Page 1
2 of 2 DOCUMENTS
Warning
As of: Aug 12, 2012
THE PEOPLE, Plaintiff and Respondent, v. MEKI
GAONO, Defendant and Appellant.
D055290
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
2011 Cal. App. Unpub. LEXIS 7373
September 29, 2011, Filed
NOTICE:
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
CALIFORNIA RULES OF COURT,
RULE
8.1115(a),
PROHIBITS
COURTS AND PARTIES FROM
CITING OR RELYING ON OPINIONS
NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED,
EXCEPT AS SPECIFIED BY RULE
8.1115(b). THIS OPINION HAS NOT
BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED
FOR THE PURPOSES OF RULE
8.1115.
PRIOR HISTORY: [*1]
APPEAL from a judgment of the Superior Court of San Diego County. Super. Ct. No. SCN222540. Runston G.
Maino, Judge.
DISPOSITION:
Convictions affirmed; sentence reversed in part; and
remanded for modification of sentence.
JUDGES: AARON, J.; BENKE, Acting
P. J., NARES, J. concurred.
OPINION BY: AARON
Page 2
2011 Cal. App. Unpub. LEXIS 7373, *
OPINION
I.
INTRODUCTION
Defendant Meki Gaono appeals from
a judgment of conviction and sentence
after a jury convicted him of first degree
murder and other crimes related to the
shooting death of an Oceanside police
officer. On appeal, Gaono raises the following claims: (1) that the trial court
erred in admitting portions of his statements to police, on the ground that the
statements were made involuntarily or
that they were obtained in violation of
Miranda and/or Seibert ; (2) that the
court erred in denying his motion for
mistrial based on the trial testimony of
one of the investigating detectives who,
Gaono contends, testified differently at
trial than he did at the pretrial suppression hearings; (3) that the court prevented Gaono from presenting a full defense by excluding the testimony of a
proposed expert witness; (4) that the
court abused it discretion in permitting
the prosecutor to show the jury, during
opening statement and [*2] closing argument, a computer animation depicting
how the prosecution believes the shooting occurred; (5) that this court should
review the record of the in camera
Pitchess hearing to determine whether
the trial court properly decided Gaono's
motion for discovery of the police officers' personnel files; (6) that cumulative
error requires reversal; (7) that the trial
court erred in imposing and staying a
10-year gang enhancement, rather than
striking it; and (8) that the abstract of
judgment does not correspond with the
trial court's oral rendition of judgment,
in that it reflects the imposition of fines
that the court did not orally impose, and
fails to reflect that the court ordered that
the imposition of victim restitution be
joint and several between Gaono and
another defendant.
1 Miranda v. Arizona (1966) 384
U.S. 436 (Miranda) and Missouri
v. Seibert (2004) 542 U.S. 600
(Seibert)
2
Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess).
1
We agree with Gaono that the trial
court should have stricken the 10-year
gang enhancement, and that the abstract
of judgment must be amended to accurately reflect the trial court's oral rendition of judgment. We reject Gaono's
other contentions [*3] of error. We
therefore affirm Gaono's convictions,
but reverse his sentence insofar as the
court imposed and stayed a 10-year gang
enhancement. The trial court is directed
to strike that enhancement. On remand
the trial court shall also amend the abstract of judgment to accurately reflect
the court's oral pronouncement of judgment.
2
II.
FACTUAL AND
BACKGROUND
PROCEDURAL
Page 3
2011 Cal. App. Unpub. LEXIS 7373, *
A. Factual background
1. Historical background
The neighborhood where the shooting occurred is a high gang crime area.
In particular, a gang known as the
Westside Deep Valley Bloods (WDVB)
is active in the neighborhood. At the
time of the events in this case, a number
of WDVB gang members lived on the
500 and 600 blocks of Arthur Avenue,
and on nearby streets.
In 2006, Oceanside Police Officer
Dan Bessant, a member of the
Oceanside Police Department's Neighborhood Policing Team, was assigned to
an area that included the neighborhood
near the intersection of Arthur Avenue
and Gold Street. Bessant, accompanied
by code inspection officers, had visited
the homes of known WDVB gang
members, including the residences of the
Toluao family and the Seau family.
Members of both of these families were
known as "shot-callers" of the gang,
[*4] which meant that they were considered to be leaders of the gang.
2. The shooting
On December 20, 2006, Oceanside
Police Officer Karina Pina was on patrol
with a civilian ride-along, Jacqueline
Castaneda. Officer Pina was in uniform
and was driving a marked police vehicle.
At approximately 6:15 p.m., Officer
Pina initiated a traffic stop of a vehicle
that had expired registration tags. The
driver of the vehicle pulled over at the
intersection of Arthur Avenue and Gold
Drive. Pina approached the vehicle, obtained the driver's information, and returned to her police vehicle. Castaneda
got out of the police car and stood next
to it.
A few minutes after the traffic stop,
Officer Bessant, who was also in uniform, arrived at the location and parked
his marked police vehicle behind Pina's.
The location where the three cars
were parked was dark. There was only
one functioning streetlight nearby. The
headlights and overhead lights on Officer Pina's car provided some additional
lighting. Officer Bessant had turned on
the amber lights on top of his vehicle,
but not the overhead lights. Officer Bessant stood nearby while Officer Pina
wrote out a citation for the driver of the
car.
At approximately 6:30 [*5] p.m.,
Officer Pina heard a number of "whizzy
sounds go by." She saw Officer Bessant
grab himself under his left arm and turn
away from the 600 block of Arthur Avenue. Castaneda heard four to six shots
in rapid succession. After the first shot,
Castaneda heard Officer Bessant say,
"Oh no, oh no." After a very brief pause
between the first three or four shots,
Castaneda heard one or two louder
shots, which she believed had come
from a higher caliber weapon.
3
3
Castaneda had prior law enforcement training.
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2011 Cal. App. Unpub. LEXIS 7373, *
After the shots were fired, Officer
Bessant drew his firearm and immediately moved toward the right front side
of Officer Pina's police vehicle. According to Castaneda, Bessant appeared
to be injured as he moved toward Pina's
car. Leaning against the right front
fender of Pina's vehicle, Bessant slid to
the ground and dropped his gun.
After hearing the shots, Officer Pina
looked toward the 600 block of Arthur
Avenue, but was unable to see anything
because it was so dark in that area. She
could not see anyone and could not pinpoint where the shots had come from.
Pina fired one shot in the direction of the
600 block of Arthur Avenue.
Officer Pina became aware that Officer Bessant was critically [*6] injured. She called in over her police radio
than an officer was down and needed
immediate assistance.
Sergeant Jeffrey Brandt responded to
the scene of the shooting within a few
minutes of Pina's call. Brandt approached Officer Bessant, who was
slumped on the ground, leaning against
Pina's vehicle. Sergeant Brandt tried to
get Bessant to tell him where he was injured since Brandt could not see Bessant's injury, but Bessant only blinked in
response. After approximately 10 or 15
seconds, Bessant's "pupils basically
fix[ed]" and there was "no life left in
him."
On December 21, 2006, deputy medical examiner Jonathan Lucas performed
an autopsy on Officer Bessant. Lucas
determined that a .22 caliber bullet had
entered Bessant's chest cavity from his
left side, punctured his heart and passed
through his liver, and finally came to
rest in the right corner of Bessant's chest
cavity.
3. Other witnesses
A number of neighbors who were in
the area that night around the time of the
shooting saw a group of between three
and six males standing near the mailbox
in front of the residence at 622 Arthur
Avenue. Some of the witnesses identified Jose Compre as one of the men who
was hanging out in front of [*7] 622
Arthur Avenue. Other witnesses reported that they saw a big, stocky man with
bushy hair among the group.
4
4 622 Arthur Avenue was Jose
Compre's residence.
A neighbor who lived across the
street from 622 Arthur Avenue also reported that one of the men had big,
bushy hair. She heard the men arguing,
and later heard three to eight gunshots.
When she looked across the street again,
the men were gone.
Another neighbor who lived across
the street had walked next door to drop
something off. On her way back to her
house, she saw a big man walking north.
She heard the man say, "Come on, let's
go get it. Let's go get it. It's in the
house." By that time, the men had begun
to disperse, and all of them appeared to
be walking north. After the witness en-
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2011 Cal. App. Unpub. LEXIS 7373, *
tered her house, she heard noises, like
rapid firecrackers, which sounded like
they were coming from just outside her
door.
Jade Morales had been working on
her car when she heard three or four
loud firecracker noises. She then saw
two men quickly walking north. One of
the men was skinny and was wearing a
red t-shirt. The other man was stocky
and had "poofy" hair. This man was
wearing a white t-shirt and might have
been carrying a rifle. Morales's [*8]
brother had also noticed two or three
men, including Compre and possibly
Penifoti Taeotui, standing near the
mailbox at 622 Arthur Avenue shortly
before the shooting.
5
5
A gang expert testified that
members of the WDVB used the
color red to represent their gang affiliation.
A neighbor who lived three houses
north of 622 Arthur Avenue heard the
sound of two sets of gunshots coming
from a location south of her house, and
saw two men running north. One of the
men was carrying a long silver object
against his chest.
Another neighbor, Julio Mata, who
lived across the street and north of 622
Arthur Avenue, had left his house to
move a trailer around the corner. While
he was parking the trailer, he heard
gunshots. Mata walked back to his house
and saw Gaono run into the side entrance of 680 Arthur Street holding a
black three-and-a-half-foot long object
under his arm. Mata then saw four other
people run into the residence at 661 Arthur Avenue. Mata's mother, who had
been waiting for him in front of their
house, heard gunshots and saw a young
man running in her direction. He was
carrying something under his arm, and
he ran between the residence at 680 Arthur Avenue and the house next door.
This [*9] witness also saw several other men run into the house at 661 Arthur
Avenue, which was the Seau family residence.
Mata and his mother started to drive
to the store, but when they were halfway
there, they turned around. When they
returned to their residence, they saw
Gaono come out of his house wearing
shorts and no shirt. Gaono was looking
south, in the direction of the police officers. Mata approached a police officer
and told him that he had seen a person
run into Gaono's house carrying a long
object.
Elizabeth Musser is a neighbor of
Karalena Gaono, who is Gaono's cousin.
At around 7:00 p.m. that night, Musser
heard a helicopter and went outside to
see what was going on. Musser saw
Karalena at home. A few minutes later,
Musser saw a stocky man with "puffy"
hair and a white t-shirt run into Karalena's house.
6
6 According to Karalena and another neighbor, Penifoti Taeotui
was stocky, over six feet tall,
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2011 Cal. App. Unpub. LEXIS 7373, *
weighed 280 pounds, and had
"puffy" hair.
Karalena Gaono admitted that Gaono
had called her on the night of the shooting. She testified that he called her only
to ask her how she was doing and
whether she had heard all of the sirens.
Karalena admitted that after she received
the call from [*10] Gaono, Taeotui arrived at her house and asked to use her
telephone. After using Karalena's telephone, Taeotui left.
4. The investigation
Officers recovered seven .22-caliber
shell
casings
and
a
single
nine-millimeter shell casing from the
street in front of 622 Arthur Avenue.
Samples taken from the brick mailbox at
that residence tested positive for gunshot
residue.
Officers found a black guitar case in
a locked shed in Gaono's backyard. Inside the guitar case was a .22 caliber rifle with a scope. In addition, officers
found a .22 caliber revolver, wrapped in
a towel, in a drawer in Gaono's kitchen.
The revolver's cylinder contained nine
expended .22 caliber cartridges in it,
which meant that there had been nine
bullets in the revolver, and that all nine
had been fired.
Gaono's DNA and fingerprints were
found on the rifle. The scope of the rifle
contained a mixture of DNA from four
people, including Gaono, Taeotui, and
Compre and a fourth, unidentified person. The wooden portion of the rifle
contained a mixture of DNA from
Gaono, Taeotui, Compre, Randy Seau,
and Sala Toluao. Gaono's left thumb
print was found on the scope of the rifle.
Police identified other fingerprints on
the rifle [*11] as Gaono's, as well.
Taeotui's DNA was found on the
handle of the .22 caliber revolver. Officers found a sock that contained 146 .22
caliber bullets in a closet in Taeotui's
living room.
Officers found a nine-millimeter cartridge in the pocket of a pair of Compre's
shorts. They also found a box of
nine-millimeter ammunition wrapped in
a black bandana behind a dryer in Compre's garage. Compre's fingerprints were
on the box.
In March 2008, a resident of the
house behind Compre's residence found
a nine-millimeter handgun wrapped in a
blue shirt near the fence that divided his
yard from Compre's yard. The gun was
covered in cobwebs and dirt, and appeared to have been there for a while.
Investigators found no fingerprints or
any testable DNA samples on the handgun. However, testing revealed that the
nine-millimeter shell casing found in
front of Compre's house after the shooting had been ejected from the handgun
that was found behind Compre's house.
Samples of DNA taken from cigarette butts that were found in front of
622 Arthur Avenue matched DNA from
Gaono, Taeotui, and Randy Seau.
Page 7
2011 Cal. App. Unpub. LEXIS 7373, *
A criminalist determined that the
bullet that killed Officer Bessant was
fired from the .22 caliber scoped rifle.
[*12] The seven casings recovered from
the area had been expended from that
rifle.
Gaono associated with members of
the WDVB criminal street gang and appeared [*13] to be a member of the
gang. Police had identified Gaono as a
WDVB gang member in December
2006.
On the basis of tests that were conducted to determine the "drop distance"
of a bullet fired from the rifle at a target
386 feet away, the examiner concluded
that the rifle had been aimed at Bessant's
head. The criminalist also explained that
a nine-millimeter firearm makes a much
louder sound than a .22 caliber firearm.
In addition, although there is a subtle
difference between the sounds made by
a .22 caliber revolver and the sounds
made by a .22 caliber rifle, any difference would be "masked" if they were
fired simultaneously.
Govier testified that in his opinion,
the shooting was committed for the benefit of the WDVB gang. According to
Govier, younger members of the gang,
such as Taeotui, Gaono and Compre,
would increase their status in the gang
by shooting at a police officer. Such
younger members tended to look for
opportunities to earn higher status in the
gang or to prove themselves.
7
7
The distance between the
mailbox in front of 622 Arthur
Avenue and Officer Bessant's location at the time he was hit was approximately 386 feet.
5. Gang evidence
Oceanside Police Detective Gordon
Govier testified that the WDVB gang is
a criminal street gang that has nearly
100 documented members and/or associates. Govier testified that the gang's
primary activities include murder, attempted murder, assault with deadly
weapon, robbery, carjacking, burglary,
illegal possession of firearms, drug
sales, and vandalism.
6. Gaono's statements to police
8
8
We discuss the details of
Gaono's interviews with police
more thoroughly in part III.A.,
post. We provide here an abbreviated version of the most relevant
portions of Gaono's statements that
were admitted at trial.
Gaono spoke with police detectives
at the police station for many hours
overnight on the night of the shooting. In
addition, Gaono led detectives on a
walkthrough of his residence in the early
morning hours the day after the shooting. Detectives also visited Gaono while
he was in juvenile hall on December 22
and 23. Detectives did not question
Gaono on December 22 because he
asked to have his mother present before
answering any questions. A detective
returned the following day with Gaono's
Page 8
2011 Cal. App. Unpub. LEXIS 7373, *
[*14] grandmother, and then talked with
Gaono about the shooting of Officer
Bessant.
Prior to trial, pursuant to a pretrial
motion to suppress, the trial court excluded some of the statements that
Gaono made to detectives during certain
portions of the interviews. However, the
court permitted the prosecution to introduce the tape recordings and transcripts
of other portions of Gaono's interviews.
Among the statements that the court allowed in evidence were statements that
Gaono made at approximately 3:30 a.m.
on December 21, to the effect that he
had been drinking beer that day in the
park, and that he had picked up the guitar case that contained the rifle for protection while he walked around to sober
up. Gaono stated that when he saw the
police officers near Arthur Avenue, he
was scared that they would arrest him
for being intoxicated, so he pulled out
the rifle and a .22 caliber handgun and
fired at both of the officers simultaneously. After firing at the officers, Gaono
ran home.
On December 23, at juvenile hall,
Gaono told a detective that he fired the
rifle at Officer Bessant while standing
near the mailbox at 622 Arthur Avenue,
that Jose Compre had fired the
nine-millimeter handgun, [*15] and
that another individual whom Gaono did
not name had fired the .22 caliber handgun.
9
9 At this point in the investigation, no one had identified Taeotui
as having been involved in the
shooting.
B. Procedural background
On January 23, 2009, the district attorney filed a second amended information charging Gaono with first-degree
murder of Officer Bessant, a police officer (Pen. Code, § 187, subd. (a); count
1), committed while lying in wait (§
189). The information also alleged special circumstances, including that Gaono
intentionally and knowingly killed a
peace officer engaged in the performance of his duties (§ 190.2, subd.
(a)(7)); knowingly murdered a peace officer while the officer was engaged in
the performance of his duties (§ 190,
subd. (b)); intentionally killed a police
officer (§ 190, subd. (c)(1)); personally
used a firearm during the commission of
the murder of a peace officer engaged in
the performance of his duties (§ 190,
subd. (c)(4)); committed the crime for
the benefit of, at the direction of, and in
association with a criminal street gang (§
186.22, subd. (b)(1)); intentionally and
personally discharged a firearm, causing
death (§ 12022.53, subd. (d)); and personally
[*16] used a firearm (§
12022.5, subd. (a)).
10
10
Further statutory references
are to the Penal Code unless otherwise indicated.
The information also charged Gaono
with assault with a firearm on a peace
officer engaged in the performance of
her duties with respect to Officer Pina.
Page 9
2011 Cal. App. Unpub. LEXIS 7373, *
(§ 245, subd. (d)(1); count 2.). The information alleged that during the commission of count 2, Gaono intentionally
and personally discharged a firearm (§
12022.53, subd. (c)), and that Gaono
committed the offense for the benefit of,
at the direction of, and in association
with a criminal street gang (§ 186.22,
subd. (b)(1)).
Finally, the information charged
Gaono with assault with a semiautomatic firearm as to Castaneda (§ 245, subd.
(b); count 3), and alleged that Gaono
personally used a firearm in the commission of this offense (§ 12022.5, subd.
(a)) and committed the offense for the
benefit of, at the direction of, and in association with a criminal street gang (§
186.22, subd. (b)(1)).
On April 20, 2009, a jury found
Gaono guilty of first-degree murder
while lying in wait as alleged in count 1,
and also found true the corresponding
special circumstance allegations. The
jury also found Gaono guilty on count 2,
and [*17] found true the corresponding
enhancement allegations. The jury acquitted Gaono on count 3.
On June 4, 2009, the trial court sentenced Gaono to a total of 61 years plus
life without the possibility of parole. On
June 23, Gaono filed an amended notice
of appeal.
III.
DISCUSSION
A. The trial court did not err in admitting portions of Gaono's statements to
police
1. Additional background
a. The relevant interviews
At approximately 8:30 p.m. on the
night of the shooting, police officers
who were outside of Gaono's house investigating the shooting noticed activity
in the home, and also noticed that the
front door was open. Officers ordered
Gaono's aunt and uncle, Lola and Tele,
as well as Gaono, out of the house. Once
all three were outside, the officers
handcuffed them for the purpose of securing the officers' safety. Gaono was
wearing shorts, but was otherwise unclothed and was not wearing shoes. A
police officer offered Gaono a blanket,
and also repositioned Gaono's handcuffs
to allow his arms to be in front of him,
so that he would be more comfortable.
Gaono was told that he could sit in a
heated patrol car. Gaono initially refused
this offer, but later accepted. At around
10:30 p.m., Gaono [*18] agreed to go
to police headquarters to be interviewed.
Officers were not sure at that point
whether Gaono was a witness or a suspect.
i. The midnight interview
Gaono, Lola and Tele were transported to the police department, where
they waited in the lobby with other people who were also waiting to be interviewed. Detective Brown had told
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2011 Cal. App. Unpub. LEXIS 7373, *
Gaono that he was not under arrest and
had taken off Gaono's handcuffs, explaining to him that the handcuffs had
been used only as a precaution, to ensure
officer safety.
At around 12:00 a.m., Detective
Brown and Detective Jeff Novak placed
Gaono in an interview room. The room
contained a table with one chair on one
side, and two chairs on the opposite side.
The room was equipped with a video
camera that recorded the interview.
Detectives Brown and Novak began
the interview by asking Gaono about his
residence and who else lived there, and
then asking him what he had been doing,
and where he had been earlier in the day
and into the evening. Gaono told the detectives that after he left school at about
1:30 p.m., he had gone to a nearby park,
and that he had returned home at around
5:30 p.m. Gaono claimed that he had not
been aware of the shooting that took
[*19] place on his street until he went
outside to get firewood. At that time,
Gaono said, he noticed a police helicopter circling above the neighborhood.
Gaono told the detectives that he did not
see anyone out and about, and that he
had not seen anything going on.
ii. The two-hour break
After approximately 45 minutes, Detectives Brown and Novak left the interview to attend a briefing on the case.
While Brown and Novak were attending
the briefing, Detective Karen Priem
stayed with Gaono in the interview
room. Gaono asked Priem whether he
could leave the police station, and she
responded that because he was 17 years
old, she could not let him leave alone.
Gaono asked whether his mother was
still at the station, and indicated that he
wanted to leave. Detective Priem responded that she did not "know what the
status is," and asked him to "hang in
there for [her]." She encouraged him to
rest while they waited.
11
11
Although Gaono appears to
have been discussing his aunt, Lola, he often referred to her as his
"mom" or "mother."
iii. The 2:40 a.m. statements
Detective Brown returned to the interview room just before 2:40 a.m. At
the briefing, Brown learned that a witness had informed police that he [*20]
believed he had seen a person running
into Gaono's house carrying a long object. The witness said that the person
whom the witness saw running into the
house was "the kid that lives there."
Detective Brown reinitiated his interview of Gaono, and asked Gaono to go
over again what Gaono had been doing
earlier in the day on December 20. After
Gaono related a number of details about
what he had done that day, Detective
Brown asked Gaono if he knew why
they would be asking him questions that
they already know the answers to.
Gaono responded, "To see if I was telling the truth." Detective Brown indicated that there were some things that
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2011 Cal. App. Unpub. LEXIS 7373, *
Gaono was telling the detectives that did
not make sense, and asked Gaono to
clear those things up. Detective Brown
told Gaono that other people had seen
what had happened and had picked
Gaono out of a photographic lineup. The
following exchange then took place:
"Det. Brown: [¶] . . . [¶]
You've told us a lot of things
that aren't true. Now's your
chance to tell us what is true.
Tell us why this all went
down, why this happened, rather than let us go with what
it looks like.
"Meki Gaono: I just want
to go home, man.
"Det. Brown: I understand.
But you made a mistake.
[*21] And you're not telling
us the truth. You--you saw all
the people that are out there;
right? Okay? We're at your
house right now. We found
some things. Okay? And
we've taken statements from
witnesses that saw it go down.
"[¶] . . . [¶]
"Do you want to tell us
what really happened instead
of the lies? Tell us what happened.
"Meki Gaono: I was just
standing down the street. I
was drunk. (Inaudible.) I don't
even know what I was think-
ing. I was just running back
home. (Inaudible.)"
Gaono proceeded to tell the detectives that he had run down the street
carrying two guns, a .22 caliber rifle and
a .22 caliber revolver, and that he had
put at least one of the guns in the shed in
his yard. Gaono said that he been carrying the guns in a guitar case because he
was scared of Crips and of other people
who had been messing with him at
school. Gaono initially said that when he
saw the police cars, he aimed and shot in
the air, but later admitted that he had
aimed "at the officer," whom Gaono
thought was "pulling [him] over." The
detectives continued to talk with Gaono
and ask him more questions about his
story and the events of that night. At
some point Detective Novak left the
room. When he returned, [*22] he
asked for Detective Brown's help outside
the room.
iv. The post-Miranda 3:30 a.m. statements
At approximately 3:30 a.m., Detectives Novak and Brown returned to the
interview room. At that point, Detective
Brown read Gaono his Miranda rights.
Gaono agreed to continue talking with
the detectives. Gaono asked whether the
officer who had been shot was "okay."
Detective Brown told Gaono that he did
not know the status of the officer. Gaono
also said that he wanted Detective
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2011 Cal. App. Unpub. LEXIS 7373, *
Brown to "know that [he was] really
sorry."
that Compre was also in custody at juvenile hall.
Detective Brown then asked Gaono
to tell them what had happened, from the
beginning. Gaono reiterated that he had
been drunk, that he saw the police car,
and that he saw a police officer walking
back and forth between two cars. Gaono
fired the rifle first, in the direction of the
officer. He fired a total of four to six
shots, using both the rifle and a gun that
he had in his pocket. Afterward, he
started running home.
Brown told Gaono that other people
had told the police things that made
Gaono "look really bad." Brown said
that he wanted to talk to Gaono about
"all the things that came up." Brown
then read Gaono his Miranda rights.
v. The videotaped walkthrough of
Gaono's residence
At 5:06 a.m., Detective Brown took
Gaono to Gaono's residence and videotaped Gaono while he guided police on
a walkthrough of the house and a shed in
the backyard. Gaono pointed out where
he had put the rifle and [*23] the
.22-caliber revolver, and also pointed
out the location of the clothes that he
had been wearing at the time Officer
Bessant was shot.
The officers and Gaono returned to
the police station at approximately 6:20
a.m., after which Gaono was arrested
and taken to juvenile hall.
vi. The December 22 interview
On December 22, Detectives Brown
and Sylvia O'Brien went to juvenile hall
to conduct a follow-up interview with
Gaono. Gaono was aware by this time
that Jose Compre had been arrested and
Despite Brown's efforts to encourage
Gaono to talk with the detectives, Gaono
told them that he was not willing to
speak with them until his "mom or father
get here." A little bit later, Gaono said
that he could not "talk about anything
until my parents get here or until I have
both of my parents present or my lawyer." Detective O'Brien asked Gaono
whether he would be willing to speak
with the detectives if they came back
with Pua, Gaono's [*24] grandfather's
wife. Gaono indicated that he would
speak to the detectives if Pua came with
them when they returned. At this point,
Brown ended the interview.
12
13
12
The transcript of the interview uses the words, "Until mom
or mother get here," but from the
recording of the interview it appears that Gaono says "Until my
mom or father get here."
13 It appears that Gaono referred
to both his Aunt Lola, and his
grandfather's wife, Pua, as his
"mother."
vii. The December 23 interview
Page 13
2011 Cal. App. Unpub. LEXIS 7373, *
At just after 8:00 a.m. on December
23, Detectives Brown and O'Brien returned to juvenile hall. O'Brien had
picked up Pua Gaono, and she accompanied the detectives to the interview
room. After Gaono was brought into the
room, he and Pua spoke briefly in both
Samoan and English. At one point, Pua
said, "Are you sure? That's your choice."
She also said to him, "Make sure you're
making the right choice, Meki. Make
sure you're making the right choice. I'm
here for you, and your dad, he is here for
you. You know, okay--so tell them."
Detective Brown started to tell both
Gaono and Pua what he wanted to talk
with Gaono about, and said that he
wanted to clear up some information. He
then said, "And just so your mom hears
it, [*25] I don't want her to think and I
don't want you to think that I'm pulling
anything over your eyes. You already
know this is no big deal. Let her know."
At this point, Detective Brown again
read Gaono his Miranda rights.
Gaono told Brown that he and a few
other guys had been drinking in front of
Compre's house near the mailbox when
the group saw a police car pull over a
vehicle. Gaono said that he "had the rifle" and began shooting toward the police cars. Gaono fired approximately five
or six times. He heard other gunshots, as
well. After shooting the rifle, Gaono put
it back into a bag and ran home. When
he arrived at his residence, he put the rifle in a shed in the backyard.
Gaono admitted knowing that someone else had a .22 caliber revolver at the
time the officer was shot, but he would
not say who that person was. He implicated Compre as the person who had
shot the nine-millimeter handgun.
b. The suppression hearings
The trial court heard argument from
the parties during two hearings, the preliminary hearing and a subsequent hearing, regarding Gaono's motion to suppress the statements that he made to police officers. Gaono challenged the admissibility of the statements that he
made during [*26] four interviews: (1)
the late December 20/early December 21
interview at the police station; (2) the
videotaped walkthrough of Gaono's residence, narrated by Gaono; (3) the attempted postarrest interview at juvenile
hall on December 22; and (4) the interview at juvenile hall on December 23.
Gaono contended that the interviews violated his Fifth and Fourteenth Amendment rights, on the grounds that his
statements were coerced and that officers had violated his rights under Miranda, supra, 384 U.S. 436 and Seibert, supra, 542 U.S. 600. Gaono's argument
that his statements were coerced was
based on a number of his personal characteristics, including the fact that he was
young, unsophisticated, mostly undressed, cold, and sleep-deprived, and
also the context in which the interviews
took place, including that he had been
that he had been subjected to lengthy interrogations during which the detectives
Page 14
2011 Cal. App. Unpub. LEXIS 7373, *
employed a number of coercive interrogation techniques.
At the preliminary hearing, the prosecutor asked Detective Brown what he
knew about 680 Arthur Avenue when,
on the night Officer Bessant was shot, he
received an assignment to meet with
Escondido officers who were with the
residents of 680 [*27] Arthur Avenue.
Detective Brown said that he "knew a
witness had possibly seen somebody run
from the area where they believed the
shooting was committed from, possibly
into that residence carrying a long object," but that he had no other information. When Brown met with the witnesses, he noticed that they were all
handcuffed, so he called the station to
determine whether the individuals were
witnesses or suspects. Detective Brown
was told that all three were witnesses,
and that he should treat them as witnesses.
Detective Brown, who was going to
transport Gaono to the police station,
took off Gaono's handcuffs and "asked
him if he understood why the handcuffs
had been put on him, that they were for
safety purposes only." Gaono indicated
that he understood. Brown then informed Gaono that he was not under arrest, but that the police wanted to speak
with him at the station, if he would agree
to go. Gaono said that he understood that
he was not under arrest, and agreed to go
to the station to be interviewed.
Detective Brown testified about the
logistics and circumstances of his inter-
view of Gaono on the night that Officer
Bessant was shot and into the next
morning, including what transpired
[*28] when he left the interview room
after approximately 40 minutes to attend
a briefing. When asked whether he knew
"Mr. Gaono had been identified as the
person a witness had seen going into 680
Arthur after the shooting," Brown said,
"I don't know that [that] was where he
was identified. I know that people had
mentioned he lived there, and I knew
that it was a possibility that he could
have been the person that ran in there."
After a few follow-up questions to
which objections were sustained, the
prosecutor asked Brown, "At the time
you were coming back into the interview
room after you had the briefing conference--you're returning from the break in
other words--had anybody identified or
told you that Mr. Gaono had been identified as the person who was seen running into 680? Had that information
been given?" Detective Brown responded, "Not identified. Just that he met the
description of the person seen running in
there."
The prosecutor then asked Detective
Brown about Gaono's statement, "I just
want to go home, man." Specifically, the
prosecutor asked Detective Brown if he
remembered an earlier conversation with
the prosecutor during which the prosecutor inquired as to why Brown had
continued [*29] to question Gaono after Gaono told Brown that he wanted to
go home, and what his reaction had been
to the prosecutor's inquiry. Detective
Page 15
2011 Cal. App. Unpub. LEXIS 7373, *
Brown said, "Yeah. I remember I was
really upset. I was actually upset at you
for saying that. I thought you were dead
wrong, and I was 100 percent convinced
that that never happened." According to
Detective Brown, in response to being
shown a transcript of the interview, he
had been "very surprised" because he
"didn't think there was any way in heck
that could have happened." When asked
what he believed had occurred, why he
was shocked, and how he could have
continued asking Gaono questions after
Gaono said that he wanted to go home,
Detective Brown answered, "After having read the transcript and actually
view[ing] the video of that occurring, I
knew exactly what happened. It was obvious to me from watching what was
going on and hearing what was being
said, it was obvious my ears heard
something being said, but I was in the
middle--I distinctly remember being in
the middle of a thought and it didn't register what the words were said [sic]. It's
kind of like when you're doing something, watching TV or something and
your family, you know, interrupts
[*30] and asks you a question and you
answer that and later they bring that up
and you have no idea that it occurred
because you really weren't paying attention to what they said."
The prosecutor also asked Detective
Brown about the timing of his advising
Gaono of his Miranda rights. After asking Detective Brown questions about his
and Detective Novak's leaving the interview room and later returning, the pros-
ecutor asked, "Now, why did you admonish Mr. Gaono at that time?" Brown
responded, "Because I recognized based
on his admissions and what we knew at
that point that he was going to be arrested. There was no if's, ands, or buts,
and that would require me to Mirandize
him in order to continue talking to him."
Defense counsel also questioned Detective Brown about Gaono's statement,
"I just want to go home," on cross examination. During that examination, the
following colloquy occurred:
"Q. It [i.e., Gaono's statement about going home] was
of sufficient significance that
it made you upset that you
missed it, correct?
"A. I believe it could be of
possible significance, and I
would have addressed things
a little bit differently had I
been aware of that.
"Q. Because you know
that when you're telling
[*31] somebody that they're
free to leave and they're not in
custody and you're taking
statements from them, you
know that when they say
things like 'I want an attorney'
or 'I want to leave' or 'I want
to end this interview,' you
have to abide by those things,
correct?
"A. That's correct.
Page 16
2011 Cal. App. Unpub. LEXIS 7373, *
"Q. And you're trained in
that. You know this stuff,
right?
"A. Yes, sir.
"[¶] . . . [¶]
"Q. Well, we gave the
court a copy of the transcript
and the tapes. But your response is similar to 'I just
want to go home, man.' You
say, "I understand'; is that
correct?
"A. That's what I said, yes.
"Q. So your mind was
somewhere else, but you said
you understood?
"A. I said that. Having
viewed it, I believe I was in
the middle of a thought, and it
was, 'Hang on. Let me complete what I'm thinking here.'
"
Defense counsel asked Detective
Brown some other questions about the
interview, and pointed out some of the
incriminating statements that Gaono had
made. Counsel then asked, "[W]ell, let
me ask you. Just at that point [after
Gaono had said he 'was just aiming and
shooting']--wow, did it occur to you at
that point that maybe I need to read him
his rights because--did it occur to you?"
Brown answered, "Not at that point because [*32] I don't make arrests until I
corroborate a confession."
Upon further inquiry by defense
counsel, Detective Brown acknowledged
that one of the reasons that he and Detective O'Brien wanted to interview
Gaono on December 22 at juvenile hall
was because "there may have been a
problem with the [original] interview."
A few days later, the trial court heard
argument from the attorneys concerning
whether some or all of the statements
that Gaono made to police should be
suppressed. Defense counsel argued that
the statements that Gaono made in the
early morning hours of December 21
were coerced and involuntary, and that
the detectives had engaged in a deliberate two-step interrogation process that
violated Siebert when they first obtained
incriminating statements from Gaono,
read him his Miranda rights only after
obtaining the statements, and then proceeded to obtain additional incriminating
statements after having advised Gaono
of his rights. Defense counsel argued
that the incriminating statements that
Gaono made on December 23 were also
obtained in violation of Seibert, and further argued that Gaono had invoked his
right to silence and to an attorney on the
day before this interview took place,
[*33] when he asked for his parents or a
lawyer.
During the discussion among the
court and the attorneys, it became clear
that the prosecution was not seeking to
introduce Gaono's 2:40 a.m. statements,
from the time that Gaono said, "I just
want to go home, man," until Detective
Brown advised Gaono of his rights un-
Page 17
2011 Cal. App. Unpub. LEXIS 7373, *
der Miranda. With respect to Gaono's
other statements, the prosecutor argued
that there was no evidence that Gaono
had been coerced into making the statements. The prosecutor cited the fact that
Gaono was not handcuffed when he
made the statements, that he was offered
blankets, food, and drinks, and that he
was allowed to use the restroom and to
sleep. In addition, the prosecutor noted
that Gaono had not complained of discomfort during the interviews. At one
point during the interviews, just before
Detectives Novak and Brown took a
break, Gaono even asked whether he
could continue talking with them when
they returned.
The trial court delivered its initial
ruling on the suppression motion at the
preliminary hearing. The trial court noted that it had reviewed the transcripts
and both video and audio recordings, in
addition to having read the parties' motion papers. The court concluded [*34]
that none of the statements that Gaono
made to police at the police station on
December 21 were coerced or involuntary. The trial court determined that
Gaono was not in custody until he asked
Detective Priem whether he could go
home. The court ruled that all of the
statements that Gaono made during the
2:40 a.m. interview, up to the time that
Detective Brown advised Gaono of his
Miranda rights, were obtained in violation of Miranda, and had to be excluded.
The court also excluded the videotape of
Gaono's walkthrough of his house and
the statements that he made during the
walkthrough, as well as any statements
that he made after the walkthrough.
Finally, with respect to Gaono's December 21 statements, the court found
that Detective Brown had acted in good
faith and that he had not intentionally
violated Miranda, nor deliberately conducted a two-step interrogation in order
to avoid Miranda, when he obtained incriminating statements from Gaono before advising him of his rights. For example, the court said, "[W]hen Detective
Brown makes the statement, 'I understand,' I think he made that statement.
There's no doubt that he made it. It's on
the tape and I heard it. I also believe him
when [*35] he says it [i.e. Gaono's request to go home] simply did not register with him, and that sort of makes
sense when I know how long he's been
up and your client has also been up the
same amount of time. I have to put that
into context when he maybe gets confused and says things. But I believe Detective Brown, and it did not register
with him, even though he responded to
it. My experience in life is you say
things all the time like that. Someone
says something that's very important,
and we say, 'Yeah, fine.' The next thing,
you promised to buy your wife something, and you didn't listen to her when
she was asking about it. It's one of those
things that happens. That's what brings
me to the good faith or objective test
with Seibert." The trial court later reiterated this conclusion, stating:
Page 18
2011 Cal. App. Unpub. LEXIS 7373, *
"Well, I still see it the way
I saw it before. . . . [W]hat
does this word 'deliberate' as
used in these cases mean?
And I think it means more
than they just did something
intentional. Deliberate means
they want to avoid Miranda.
And I do believe Detective
Brown when he says it came
as a complete surprise to him
when he was told that, about
page 100, Mr. Gaono had
said: 'I just want to go home,
man,' [*36] and he responded: 'I understand.' I am very
cognizant of the fact that both
Mr. Gaono and the officers
have been up a long time.
Frankly, I have seen it in the
courtroom towards the end of
every long session. The attorneys start to misspeak, and
they get tired, and even you
admit you are tired. And so
the fact he heard the words
and said 'I understand,' but
they didn't register does not
frankly shock me at all. [¶] . .
. I will not change my ruling
from the tentative ruling."
With respect to the interviews on
December 22 and 23, the court found
that there was no Seibert problem, in
view of the significant lapse in time between the interviews, and because these
interviews took place at a location dif-
ferent from the location where the initial
interview was conducted. The court also
determined that on December 22, Gaono
had not asked for a lawyer, but indicated
only that he wanted to remain silent at
that time. Further, as to the December 22
interview, the court found that there was
nothing improper about Detective
O'Brien's attempt to "clea[r] up an ambiguous statement" by asking Gaono
whether he was requesting that his
mother be present when he seemed to be
asking for his stepgrandmother [*37]
or his parents. In addition, the court determined that as to both of the interviews
that took place at juvenile hall, the detectives' Miranda warnings were legally
sufficient.
After holding a hearing on Gaono's
renewed suppression motion, the trial
court reaffirmed its earlier findings and
rulings with respect to the admissibility
of Gaono's statements to police. Thus, at
trial, the court prohibited the prosecution
from introducing the statements that
Gaono made to police during the 2:40
a.m. interview, up until the time that
Gaono was advised of his Miranda
rights at around 3:30 a.m., as well as the
videotaped walkthrough of Gaono's
home and the statements that Gaono
made during the walkthrough.
2. Analysis
"Miranda requires courts in criminal
cases to exclude, at least from the prosecution's
case-in-chief,
self-incriminatory statements made by
the accused during custodial interroga-
Page 19
2011 Cal. App. Unpub. LEXIS 7373, *
tion unless the accused has knowingly
and voluntarily waived the Fifth
Amendment
privilege
against
self-incrimination, which in this context
includes the rights to silence and the assistance of counsel. [Citations.]" (People
v. Lessie (2010) 47 Cal.4th 1152, 1156.)
"'Thus two requirements must be met
before [*38] Miranda is applicable; the
suspect must be in "custody," and the
questioning must meet the legal definition of "interrogation."' [Citation.] The
prosecution has the burden of proving
that a custodial interrogation did not take
place. [Citation.] [¶] A person is in custody for purposes of Miranda if he is
'deprived of his freedom in any significant way or is led to believe, as a reasonable person, that he is so deprived.'
[Citation.] 'Interrogation consists of express questioning or of words or actions
on the part of police officers that they
should have known were reasonably
likely to elicit an incriminating response.' [Citations.]" (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.)
"The standard of appellate review of
a trial court's ruling on a motion to suppress is well established. We defer to the
trial court's factual findings, express or
implied, where supported by substantial
evidence. In determining whether, on the
facts so found, the search or seizure was
reasonable under the Fourth Amendment, we exercise our independent
judgment." (People v. Glaser (1995) 11
Cal.4th 354, 362.)
a. The initial statements, prior to 2:40
a.m. on December 21
The trial court ruled that the prosecution [*39] would be permitted to introduce Gaono's initial statements to police because Gaono was not in custody
until some point during the two-hour
break, when Detectives Novak and
Brown were attending a briefing on the
case. Gaono contends that the trial
court's determination concerning at what
point the interview became custodial
(i.e., during that break) was erroneous,
and that he was "in custody" from the
time he was ordered out of his residence
on the night of December 20.
The requirements of Miranda apply
only to a custodial interrogation. (People
v. Morris (1991) 53 Cal.3d 152, 197.) In
People v. Ochoa (1998) 19 Cal.4th 353
(Ochoa), the California Supreme Court
outlined the standard of review that applies to a defendant's claim that he was
in custody for purposes of determining
whether Miranda advisements were required:
"The question whether defendant was in custody for
Miranda purposes is a mixed
question of law and fact. [Citation.] 'Two discrete inquiries are essential to the determination: first, what were the
circumstances
surrounding
the interrogation; and second,
given those circumstances,
would a reasonable person
have felt he or she was not at
Page 20
2011 Cal. App. Unpub. LEXIS 7373, *
liberty to terminate the interrogation [*40] and leave.
Once the scene is . . . reconstructed, the court must apply
an objective test to resolve
'the ultimate inquiry": "[was]
there a 'formal arrest or restraint on freedom of movement' of the degree associated
with a formal arrest." [Citations.] The first inquiry, all
agree, is distinctly factual. . . .
The second inquiry, however,
calls for application of the
controlling legal standard to
the historical facts. This ultimate determination . . . presents a "mixed question of
law and fact" . . . .' [Citation.]
Accordingly, we apply a deferential substantial evidence
standard [citation] to the trial
court's conclusions regarding
'"basic, primary, or historical
facts: facts 'in the sense of recital of external events and
the credibility of their narrators . . . .'"' [Citation.] Having
determined the propriety of
the court's findings under that
standard, we independently
decide whether 'a reasonable
person [would] have felt he or
she was not at liberty to terminate the interrogation and
leave.' [Citation.]" (Ochoa,
supra, at pp. 401-402.)
We conclude that the facts, as found
by the trial court, demonstrate that it was
not until Gaono asked to leave the police
station and this request [*41] was denied that the interrogation became custodial. Prior to the time that Gaono
asked whether he could go home, which
occurred while Detective Priem was sitting in the interview room with Gaono
and Detectives Novak and Brown were
at the briefing, Gaono had been told a
number of times that he was not under
arrest, and was otherwise treated as a
witness. In fact, although Gaono had
originally been handcuffed, once Detective Brown was told that Gaono was to
be treated as a witness, Brown removed
the handcuffs and explained to Gaono
that the handcuffs had been used only as
a precaution to ensure officer safety.
Brown reiterated at that time that Gaono
was not under arrest. Detective Brown
asked Gaono whether he would be willing to talk with police at the station, and
Gaono voluntarily consented to do so.
As noted above, after Gaono was taken
to the police station for an interview, he
was informed that he was free to go
home. This did not change until Gaono
asked whether he could go home and
was told by Detective Priem that he
would have to wait until his mother or
another adult could take him home. We
therefore conclude that the trial court
correctly determined that Gaono's initial
interview [*42] with detectives at the
police station, prior to the break when
the detectives left to attend the briefing,
was not a custodial interrogation, and
Page 21
2011 Cal. App. Unpub. LEXIS 7373, *
that the trial court thus did not err in declining to suppress the statements that
Gaono made to police during the initial
interview.
b. Gaono's post-Miranda statements
made after 3:30 a.m.
Gaono next contends that the trial
court should have excluded the statements that he made to Detectives Brown
and Novak after the interrogation became custodial and after he was advised
of his Miranda rights because, he asserts, "Detective Brown deliberately
undermined Miranda with a two-step
interrogation tactic." Gaono relies on
Seibert, supra, 542 U.S 600, to support
this contention.
In Seibert, an officer "testified that he
made a 'conscious decision' to withhold
Miranda warnings, thus resorting to an
interrogation technique he had been
taught: question first, then give the
warnings, and then repeat the question
'until I get the answer that she's already
provided once.'" (Seibert, supra, 542
U.S. at pp. 605-606, plur. opn. of Souter,
J.) Employing this "question-first practice," the interrogating officer left the
defendant alone in an interview room at
[*43] the police station for 15 to 20
minutes, then "questioned her without
Miranda warnings for 30 to 40 minutes,
squeezing her arm and repeating" an accusatory remark. (Id. at pp. 604-605,
611.) After the defendant confessed and
was given a 20-minute break, the officer
read her the Miranda warnings, resumed
the questioning by mentioning their pre-
vious conversation, "and confronted her
with her prewarning statements." (Id. at
p. 605.)
A divided Supreme Court held that
the defendant's postwarning statements
were inadmissible. (Seibert, supra, 542
U.S. at pp. 617, 622, conc. opn. of Kennedy, J.) Justice Souter's plurality opinion questioned the validity of the police
tactic of "question first, warn later," and
concluded that this tactic could undermine the very purpose of the Miranda
warnings. The plurality focused on
whether "it would be reasonable to find
that in these circumstances the warnings
could function 'effectively' as Miranda
requires," (id. at pp. 611-612, plur. opn.
of Souter, J.) noting that giving Miranda
warnings midstream "without expressly
excepting the statement just given, could
lead to an entirely reasonable inference
that what [the accused] has just said will
be used, [*44] with subsequent silence
being of no avail." (Id. at p. 613.) The
plurality stated that the circumstances of
the second confession in Seibert did not
"reasonably support a conclusion that
the [Miranda] warnings given could
have served their purpose [to reduce the
risk of admitting coerced confessions]."
(Id. at p. 617.)
Justice Kennedy, who concurred in
the result of the plurality opinion, expressed his view that the test that the
plurality stated, which "envisions an objective inquiry from the perspective of
the suspect, and applies in the case of
both intentional and unintentional
two-stage interrogations," was too
Page 22
2011 Cal. App. Unpub. LEXIS 7373, *
broad. (Seibert, supra, 542 U.S. at pp.
621-622, conc. opn. of Kennedy, J.) Justice Kennedy noted that in Oregon v. Elstad (1985) 470 U.S. 298, the court held
that "the postwarning statements could
be introduced against the accused because 'neither the general goal of deterring improper police conduct nor the
Fifth Amendment goal of assuring
trustworthy evidence would be served
by suppression' given the facts of that
case." (Seibert, supra, at pp. 619-620,
conc. opn. of Kennedy, J.) With these
dual goals in mind, Justice Kennedy observed that a deliberate two-step technique [*45] intended to violate Miranda did "not serve any legitimate objectives" and presented inherent temptations for police abuse. (Id. at pp.
620-621.) Justice Kennedy concluded:
"I would apply a narrower
test applicable only in the infrequent case . . . in which the
two-step interrogation technique was used in a calculated
way to undermine the Miranda warning." (Id. at p.
622.)
"If the deliberate two-step
strategy has been used, postwarning statements that are
related to the substance of
prewarning statements must
be excluded unless curative
measures are taken before the
postwarning statement is
made. Curative measures
should be designed to ensure
that a reasonable person in the
suspect's situation would understand the import and effect
of the Miranda warning and
of the Miranda waiver. For
example, a substantial break
in time and circumstances
between
the
prewarning
statement and the Miranda
[*46] warning may suffice in
most circumstances, as it allows the accused to distinguish the two contexts and
appreciate that the interrogation has taken a new turn.
[Citations.] Alternatively, an
additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient." (Seibert, supra, 542
U.S. at p. 622, conc. opn. of
Kennedy, J.)
Because Justice Kennedy "concurred
in the judgment[] on the narrowest
grounds" (Marks v. United States (1977)
430 U.S. 188, 193), "his concurring
opinion represents the Seibert holding."
(People v. Camino (2010) 188
Cal.App.4th 1359, 1370 (Camino).)
"Justice Kennedy did not articulate
how a court should determine whether
an interrogator used a deliberate
two-step strategy." (United States v.
Williams (9th Cir. 2006) 435 F.3d 1148,
1158 (Williams).) The Williams court
suggested that "courts should consider
Page 23
2011 Cal. App. Unpub. LEXIS 7373, *
whether objective evidence and any
available subjective evidence, such as an
officer's testimony, support an inference
that the two-step interrogation procedure
was used to undermine the Miranda
warning." (Ibid.) "Such objective evidence would include the timing, setting
and completeness of the prewarning interrogation, [*47] the continuity of police personnel and the overlapping content of the pre- and postwarning statements." (Id. at p. 1159.)
It is not clear what standard of review
applies to a trial court's determination
that law enforcement's use of a two-step
interrogation was not deliberate. (See
Camino, supra, 188 Cal.App.4th at p.
1371.) At least one court--the Camino
court--has concluded that "the trial
court's determination of deliberateness is
a factual finding entitled to deference."
(See id. at p. 1372.) Under this standard,
a reviewing court is bound by the trial
court's factual findings if they are supported by substantial evidence. (Ibid.)
Here, there is substantial evidence
supporting the trial court's determination
that the detectives, and in particular,
Detective Brown, did not deliberately
employ a two-step technique in questioning Gaono. Brown testified that he
was treating Gaono as a witness and that
he did not advise Gaono of his Miranda
rights until he knew that Gaono was a
suspect and was going to be formally
detained. In addition, Brown testified
that it simply did not register with him
that Gaono had said that he wanted to go
home. Brown's statements about how he
might have missed [*48] Gaono's request to go home--statements that the
trial court found to be credible--constitute substantial evidence in
the record to support the trial court's
finding. Further, the transcript and videotape of the interview demonstrate that
the objective indications support the trial
court's determination. First, when the
detectives initially brought Gaono to the
police station, they had very little information about what other witnesses had
said about the shooting or the events
surrounding the shooting. Brown had
been told that Gaono was to be treated as
a witness, and every indication is that
Brown followed that directive.
Further, Gaono's initial statements to
police, although confessionary in nature,
did not necessarily make sense. It is
clear from the transcript and Detective
Brown's testimony that the detectives
had doubts about Gaono's story at the
time he made these statements. In effect,
the initial portion of the interview,
which occurred prior to the Miranda
warnings, fell far short of a complete
rendition of the circumstances surrounding the shooting of Officer Bessant, which Gaono gave only after having been advised of his Miranda rights.
(Compare Seibert, supra, 542 U.S. at p.
616 [*49] (plur. opn. of Souter, J.)
[when police were finished with the unwarned portion of the interrogation,
"there was little, if anything, of incriminating potential left unsaid"].) In sum,
the record does not indicate that the detectives deliberately delayed advising
Page 24
2011 Cal. App. Unpub. LEXIS 7373, *
Gaono of his Miranda rights in order to
elicit a confession from him. The trial
court read all of the transcripts and
watched the videotapes of the interviews. The court found Brown credible
and determined that he had acted in
good faith in the manner in which he
advised Gaono of his Miranda
rights--i.e., that Brown did so as soon as
he felt that there was probable cause that
Gaono had, in fact, been involved in the
shooting and that Gaono would be taken
into custody. That finding is supported
by substantial evidence.
c. The police did not violate Miranda by
reinitiating interviews with Gaono on
December 22 and 23
Gaono contends that the detectives
violated Miranda again by reinitiating
the interrogation of Gaono after Gaono
had invoked his right to silence "before
and
during
the
December
21
walkthrough." The basis of Gaono's assertion that he invoked his right to silence either before or during the December 21 walkthrough of [*50] his
house is not clear. As far as we are able
to discern, the only statement in the record on which Gaono may be relying is a
question that Gaono posed to Detective
Brown during the walkthrough, when
Gaono asked Brown, "Do I still have the
right to remain silent?" Detective Brown
told Gaono that he did retain that right.
After receiving this response to his
question, Gaono continued to conduct
the walkthrough. If this question is the
basis of Gaono's contention that he in-
voked his right to remain silent, it is insufficient to support that contention. We
therefore reject Gaono's claim that the
officers violated Miranda by reinitiating
the interrogation.
d. Gaono's statements were neither coerced nor involuntary
Gaono contends that the trial court
should have excluded the confessions
that he made in the early morning hours
of December 21 because they were coerced, and therefore, involuntary. The
trial court found that the inculpatory
statements that Gaono made to detectives at the police station were not involuntary.
"'It long has been held that the due
process clause of the Fourteenth
Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a [*51] law
enforcement officer from a criminal
suspect by coercion. [Citations.] A
statement is involuntary [citation] when,
among other circumstances, it "was
'"extracted by any sort of threats . . ., [or]
obtained by any direct or implied promises, however slight . . . ."'" [Citations.]
Voluntariness does not turn on any one
fact, no matter how apparently significant, but rather on the "totality of [the]
circumstances." [Citations.]' [Citation.]"
(People v. Leonard (2007) 40 Cal.4th
1370, 1402 (Leonard).)
"'Once a suspect has been properly
advised of his [or her] rights, he [or she]
may be questioned freely so long as the
Page 25
2011 Cal. App. Unpub. LEXIS 7373, *
questioner does not threaten harm or
falsely promise benefits. Questioning
may include exchanges of information,
summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between
police and suspect. . . . Yet in carrying
out their interrogations the police must
avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises
of leniency as a reward for admission or
confession. . . .' [Citation.]" (People v.
Holloway (2004) 33 Cal.4th 96, 115
(Holloway).)
"'It is well settled [*52] that a confession is involuntary and therefore inadmissible if it was elicited by any
promise of benefit or leniency whether
express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does
not render a subsequent confession involuntary. . . . Thus, "[w]hen the benefit
pointed out by the police to a suspect is
merely that which flows naturally from a
truthful and honest course of conduct,"
the subsequent statement will not be
considered involuntarily made. [Citation.] On the other hand, "if . . . the defendant is given to understand that he
might reasonably expect benefits in the
nature of more lenient treatment at the
hands of the police, prosecution or court
in consideration of making a statement,
even a truthful one, such motivation is
deemed to render the statement involun-
tary and inadmissible . . . ."' [Citations.]"
(Holloway, supra, 33 Cal.4th at p. 115.)
"The test for determining whether a
confession is voluntary is whether the
questioned suspect's 'will was overborne
at the time he confessed.' [Citation]"
(People v. Cruz (2008) 44 Cal.4th 636,
669.) [*53] "'A finding of coercive police activity is a prerequisite to a finding
that a confession was involuntary under
the federal and state Constitutions. [Citation.]'" (Ibid.)
"On appeal, we uphold the trial
court's findings of historical fact, but we
independently review its determination
that defendant's statements were voluntary. [Citations.]" (Leonard, supra, 40
Cal.4th at pp. 1402-1403.)
Gaono argues that the factors that
support his contention that his inculpatory statements were coerced include his
age (17), his lack of familiarity with the
criminal justice system, and the fact that
he was ordered out of his house on the
night of December 20 at gunpoint and
was handcuffed and separated from his
family. Gaono adds that he was interviewed during the middle of the night,
for several hours, and that he had been
unable to rest and was only partially
clothed. He further notes that it is clear
from the videotape of the walkthrough
of his home that he was exhausted. In
addition, Gaono points to the detectives'
"suggestive statements," to the effect
that his actions had been a "mistake,"
which, according to Gaono, implied that
his conduct was not criminal and further
Page 26
2011 Cal. App. Unpub. LEXIS 7373, *
implied that he would receive [*54] lenient treatment. Gaono complains that
the detectives suggested that they could
help him by saying good things about
him to the prosecutor, and that the detectives mentioned someone else's
40-years-to-life sentence, implying that
if he cooperated with them, he could receive a lesser sentence than that. Gaono
notes that Detective Brown lied to him
in telling him that someone had picked
him out of a photographic lineup and
that someone had identified Robert Seau
as having been present at the time Officer Bessant was shot. All of this,
Gaono contends, demonstrates that he
was coerced into confessing.
We disagree with Gaono's conclusion. Although he was questioned under
some unpleasant circumstances (i.e., for
many hours, in the middle of the night,
after having been ordered out of his
house at gunpoint and handcuffed for a
period of time), the substance of the interviews and the detectives' treatment of
Gaono does not compel the conclusion
that Gaono's will was overcome by police tactics when he confessed. Again,
there must be "'coercive police activity'"
in order for a statement to be found to
have been given involuntarily. (Leonard,
supra, 40 Cal.4th at p. 1403, citation
omitted.)
There [*55] is no evidence that the
detectives made any express or implied
threats toward Gaono. Rather, the officers treated Gaono with respect, offering
him blankets, asking him how he was
doing, offering him food, and suggesting
that he try to rest. Further, despite
Gaono's contention that the officers implied that he would receive lenient
treatment if he were to confess, the
statements of the detectives do not contain any promises of leniency, express or
implied. Although the detectives attempted to appeal to Gaono's sense of
morality, and repeatedly asked him to be
honest, the detectives did not promise
Gaono that he would receive more lenient treatment if he were to confess.
Detective Novak reminded Gaono
that he had essentially no criminal history, noted that "he still had a chance"
because he was a juvenile, and mentioned that the detectives could tell the
district attorney that Gaono had been
cooperative and honest. While these
comments can be viewed as suggesting
that Gaono might receive more lenient
treatment if he agreed to speak with the
detectives and answer their questions,
the comments do not demonstrate that
the detectives promised Gaono that he
would receive some sort of beneficial
[*56] treatment if he were to confess.
Rather, Detective Novak was pointing
out factors that were in Gaono's favor.
Although the comments may have implied that Gaono might receive more lenient treatment if he were to confess,
there was no promise, either express or
implied, that Gaono would in fact receive more lenient treatment. Nor do the
detectives' repeated requests of Gaono to
tell them the truth constitute a coercive
police tactic. "'No constitutional principle forbids the suggestion by authorities
Page 27
2011 Cal. App. Unpub. LEXIS 7373, *
that it is worse for a defendant to lie in
light of overwhelming incriminating evidence.' [Citation.]" (People v. Williams
(2010) 49 Cal.4th 405, 444.) "Absent
improper threats or promises, law enforcement officers are permitted to urge
that it would be better to tell the truth.
[Citations.]" (Ibid., citing, e.g., People v.
Carrington (2009) 47 Cal.4th 145, 171;
People v. Hill (1967) 66 Cal.2d 536, 549
[" 'advice or exhortation by a police officer to an accused to "tell the truth"' or
that "it would be better to tell the truth"
unaccompanied by either a threat or a
promise, does not render a subsequent
confession involuntary' "], quoting People v. Nelson (1964) 224 Cal.App.2d
238, 250; and [*57] Amaya-Ruiz v.
Stewart (9th Cir. 1997) 121 F.3d 486,
494 [finding no coercion in statements
that "'"the . . . [c]ourt system will not
forgive your lies,"'" and an exhortation
to the suspect to tell the truth if he wants
to receive "'"forgiveness"'" (citations
omitted)].)
The physical circumstances of the
interrogation similarly were not coercive. Although the interrogation was
lengthy, there were breaks in the questioning, and Gaono was offered food and
drinks, and was permitted to use the restroom. (See People v. Jablonski (2006)
37 Cal.4th 774, 816 [factors supporting
finding of voluntariness of confession
include lack of denial of creature comforts, even during prolonged questioning, as well as absence of harsh or accusatory tone by interrogators].) In addition, the detectives maintained a re-
spectful tone throughout the questioning,
and did not display a harsh or accusatory
tone. (Ibid.) [*58] As the trial court
pointed out, at one point, when the detectives were leaving the interrogation
room, Gaono actually asked the detectives whether he could continue to speak
with them when they returned. This belies Gaono's contention on appeal that
his statements to the detectives were involuntary.
We conclude that Gaono's statements
at the police station were voluntary, and
that they were not the product of police
coercion.
B. The trial court did not err in denying
Gaono's motion for a mistrial based on
Detective Brown's trial testimony
Gaono contends that the trial court
erred in denying his motion for a mistrial on the ground that Detective Brown's
trial testimony pertaining to Gaono's
motion to exclude portions of his interviews with police differed materially
from his testimony at the preliminary
hearing. Specifically, according to
Gaono, Detective Brown's testimony at
trial differed from his earlier testimony
with respect to the circumstances of the
interrogation. Gaono argues that the difference in the testimony suggests that
Brown deliberately violated Miranda
under the holding of Seibert, and thus
calls into question the trial court's findings of fact as to Brown's subjective
[*59] intent during the interviews.
Page 28
2011 Cal. App. Unpub. LEXIS 7373, *
Gaono challenges the denial of his
mistrial motion. We review the denial of
a motion for mistrial for an abuse of discretion. (See People v. Slocum (1975) 52
Cal.App.3d 867, 884.) "A trial court
should grant a mistrial only when a party's chances of receiving a fair trial have
been irreparably damaged." (People v.
Bolden (2002) 29 Cal.4th 515, 555.)
Gaono contends that Detective
Brown's testimony at the preliminary
hearing differed from his testimony at
trial with respect to whether Brown
knew, after he returned from the briefing, that a neighbor had identified
Gaono as the person seen running into a
nearby house carrying an item that appeared to be a rifle. Detective Brown
testified at the preliminary hearing as
follows:
"Q. Can you tell us why
you left the interview room?
"A. To attend a briefing to
see if anybody else had gathered any information that I
was not aware of.
"Q. When you returned to
the interview room after that
break, did you know whether
or not Mr. Gaono had been
identified as the person a
witness had seen going into
680 Arthur after the shooting?
"A. I don't know that I was
[aware] he was identified. I
know that people had mentioned he lived [*60] there,
and I knew that it was a possibility that he could have
been the person that ran in
there.
"Q. Well, let me rephrase
the question. Had anybody
told you that Mr. Gaono had
been identified as the person a
witness had seen going into
680? Had that information
been given to you?
"A. Was he seen running
into the residence? I don't
understand the question.
"Q. No, sir. You've indicated that there was a witness
who had seen somebody run
into 680 Arthur after the
shooting, shortly after the
shooting had occurred. Am I
understanding that--is that
correct?
"A. Yes.
"Q. Had anybody identified that person?
"[Objections made
sustained.] [¶] . . . [¶]
and
"Q. At the time you were
coming back into the interview room after you had the
briefing conference--you're
returning from the break in
other words--had anybody
identified or told you that Mr.
Gaono had been identified as
the person who was seen run-
Page 29
2011 Cal. App. Unpub. LEXIS 7373, *
ning into 680? Had that information been given?
"A. Not identified. Just
that he met the description of
the person seen running in
there."
A few minutes later, the questioning
returned to this subject:
"Q. And you know that
there was a Samoan male
adult who was running across
the street with something in
his [*61] arms heading towards the back of 680. You
know that at this point, right?
"A. I know somebody
possibly ran into that address
meeting his general description carrying something long.
That's what I knew at that
point.
"Q. And you knew Meki
Gaono lived at 680?
"A. Correct."
At trial, Detective Brown testified as
follows:
"Q. Now what information
do you learn at the briefing
that you did not have when
you initially interviewed the
defendant [Gaono]?
"A. I learned that a neighbor in the area across somewhere nearby 680 Arthur had
identified the person seen
running into that residence
with what was believed to be
a rifle as the kid that lives
there."
Gaono also contends that Detective
Brown's testimony differed with respect
to whether Brown was treating Gaono as
a suspect or as a witness during this interview. At the preliminary hearing,
Brown testified that he removed the
handcuffs from Gaono before transporting him to the police station because
Brown had been told that Gaono was a
witness, not a suspect. At trial, Brown
gave essentially the same testimony,
stating that he took the handcuffs off of
Gaono because Gaono was a witness,
not a suspect. However, in explaining
why he sat in the back [*62] seat with
Gaono on the way to the station, Brown
stated:
"A. I know somebody has
been seen running in the
house that he apparently lives
at carrying a rifle. I know I
have a friend that's dead. I
don't know if he knows who
ran in that house and can provide information and he's a
witness or he's in fact involved. Every police officer
knows we want to go home. I
Page 30
2011 Cal. App. Unpub. LEXIS 7373, *
was back there so that if he
was in fact a suspect he
couldn't hurt anybody on the
ride to the police department.
[¶] . . . [¶]
"A. . . . There's no cage in
the car. If I would have rode
in the front and pretended I
had no concerns, he could
reach up in the front seat, disarm me, take my weapon, and
he could choke somebody. I
didn't know if he was a suspect or a witness, and I wasn't
willing to take that chance.
"Q. So sort of from the legal perspective he's a witness,
but from your safety perspective you are going to be cautious, careful?
"A. Correct."
The third area of testimony about
which Gaono complains pertains to Detective Brown's statements regarding
Brown's subjective beliefs about
Gaono's involvement in the crime. At
trial, Detective Brown said the following
with respect to his beliefs regarding
Gaono's involvement in the
[*63]
shooting:
"Q. Now you indicated
that based on this first interview you had concerns about
what the defendant told you.
What were the concerns?
"A. The concerns were we
knew there were a lot of people out in that neighborhood
when this event occurred. We
knew somebody had run into
that house carrying what was
possibly a rifle. During his
interview, when we allowed
him to tell us what he was
doing from 1:30 in the afternoon to when the police officers came and contacted
him, . . . he said he saw absolutely no one out in the block
during the time of the incident. He heard no shots. He
didn't see anyone running.
During that interview he told
us that it was he, Tele and
Lola were the only people
that were in that house. So if
he was telling me the truth, he
would have said: There were
people in the street, and I saw
this person run into my house.
This is who it is or this is
what they looked like. That
information didn't come out.
He didn't know anything
about the incident whatsoever
is what he was telling me.
"Q. Did he, during that interview, take responsibility
for any part in the murder?
"A. No.
"Q. Now was this a--I will
use the term 'red flag,' as [defense counsel] said. Was this
Page 31
2011 Cal. App. Unpub. LEXIS 7373, *
a red [*64] flag for you and
Detective Novak?"
"A. It was a huge red
flag."
"Q. At that point did you
believe he may have been involved when you walked out
of that room?
"A. I was a hundred percent convinced he was involved."
At the preliminary hearing, Detective
Brown was not asked anything similar,
and did not testify at that hearing concerning his beliefs, early in the interview, as to whether Gaono was involved
in the shooting.
According to Gaono, the difference
between Detective Brown's testimony at
the preliminary hearing and his testimony at trial calls into question the trial
court's determination at the hearing that
Brown's failure to advise Gaono of his
Miranda rights after Gaono asked to go
home was an inadvertent mistake.
However, the record makes clear that
Detective Brown's testimony at the preliminary hearing and his testimony at
trial was substantially similar--so similar, in fact, that the trial court had no
reason to question its earlier rulings with
respect to the admission of portions of
Gaono's statements to police.
For example, with respect to what
Detective Brown knew after he attended
the briefing and before he returned to the
interview room to continue his first interview with [*65] Gaono, Detective
Brown essentially testified, both at the
preliminary hearing and at trial, that he
was aware that a witness had seen a
person who looked like Gaono and who
was carrying what appeared to be a rifle,
run into Gaono's house. Although Brown
used the word "identified" at trial, and
did not use that word at the preliminary
hearing, Detective Brown nevertheless
indicated that at the hearing he had
learned that someone had told police that
an individual who matched Gaono's description had run into Gaono's house
holding something that looked like a rifle. This was the pertinent information,
and Brown's testimony was generally
consistent in this regard from the preliminary hearing to the trial. The trial
court thus did not abuse its discretion in
determining that a mistrial was unnecessary based on this portion of Brown's
trial testimony.
14
14 Defense counsel could have
impeached Brown with the discrepancy between Brown's preliminary hearing testimony and his trial testimony regarding whether
Gaono had been "identified" as a
participant in the shooting at the
briefing or not. However, this discrepancy in Brown's testimony did
not provide grounds for a mistrial.
The same is true [*66] with respect
to Detective Brown's testimony regarding whether, at the time of the first in-
Page 32
2011 Cal. App. Unpub. LEXIS 7373, *
terview, he regarded Gaono as a witness
or a suspect. The fact that Brown testified at trial that he took the precaution of
sitting with Gaono in the backseat of the
transport vehicle does not undermine
Brown's testimony at the preliminary
hearing and at trial that he had been told,
and that he understood, that Gaono was
to be treated as a witness. As Detective
Brown explained, the fact that he was
told to treat Gaono as a witness did not
mean that police had determined that
Gaono was not in fact involved in the
shooting. Rather, it meant that there had
been no determination at that point in
time that Gaono had been involved in
the shooting. Thus, the instruction that
Gaono was to be treated as a witness did
not eliminate the need for Brown to take
precautions with respect to officer safety, particularly in view of the events of
that day. Brown's testimony at trial and
at the preliminary hearing was substantially consistent on this point; Brown
maintained throughout his pretrial testimony and his trial testimony that he understood that when Gaono was first taken to the police station to be interviewed, [*67] he was to be treated as a
witness. The court did not abuse its discretion in denying a mistrial based on
Brown's testimony about his treatment
of Gaono as a witness prior to Gaono's
admission regarding his role in the
shooting.
Finally, the fact that Detective Brown
testified at trial regarding his increasing
suspicion of Gaono based on what
Gaono told Brown during the first inter-
view, but did not testify to this effect at
either the preliminary hearing or the later suppression motion hearing, similarly
did not require that the court declare a
mistrial. Detective Brown was not asked
about his subjective impressions concerning Gaono's initial statements to police at the preliminary hearing or at the
later hearing on Gaono's renewed suppression motion, so his trial testimony
did not actually diverge in this regard
from his pretrial testimony. Further, although Brown may have personally begun to question whether Gaono really
was a witness, or instead, should be considered a suspect, he did not share these
thoughts with Gaono, nor did he suggest
to Gaono that Gaono was no longer free
to leave. As far as Gaono knew, prior to
the time that his request to the leave the
station was denied, [*68] he was still
there voluntarily, as a possible witness
to an officer shooting, and was free to
leave. The fact that Detective Brown
may privately have begun to question
whether Gaono was in fact merely a
witness did not affect Gaono's subjective
understanding of the situation, and in
particular, whether he was or was not in
custody. For this reason, whether Brown
regarded Gaono as a witness, or instead,
a suspect, did not impact when Brown
was required to advise Gaono of his Miranda rights. Nor did it provide grounds
for the court to revisit its earlier conclusion that Detective Brown had not deliberately engaged in a two-step interrogation process in order to circumvent
Miranda. Although Brown's comments
15
Page 33
2011 Cal. App. Unpub. LEXIS 7373, *
at trial suggest that as early as during his
initial interview with Gaono, he started
to question Gaono's status as a witness,
Brown also testified that in general, his
practice was not to make an arrest, even
when there was a confession, without
having some corroborating evidence to
support the confession. The fact that
Brown may have been suspicious of
Gaono does not mean that he deliberately engaged in a two-step process in
order to avoid advising Gaono of his
Miranda rights. [*69] Rather, the evidence before the trial court still supported the court's earlier conclusion. The
court thus did not abuse its discretion in
denying Gaono's motion for a mistrial on
the basis of Detective Brown's trial testimony.
15 The fact that an officer starts
to suspect that a person is guilty of
a crime is not the circumstance that
triggers the requirement that an individual be advised of his rights
under Miranda. Rather, the Miranda advisement is required when
"a person has been taken into custody or otherwise deprived of his
freedom of action in any significant
way." (Miranda, supra, 384 U.S. at
p. 444.) Custody consists of a formal arrest or a restraint on freedom
of movement of the degree associated with a formal arrest. (People
v. Leonard (2007) 40 Cal.4th 1370,
1400; People v. Boyer (1989) 48
Cal.3d 247, 271.) When there has
been no formal arrest, the question
is how a reasonable person in the
defendant's position would have
understood his situation. (Boyer, at
p. 272.)
C. The trial court did not exclude the
testimony of an expert witness for the
defense; rather, defense counsel made a
tactical decision not to call the expert to
testify
Gaono contends that the trial court
erred [*70] in excluding the testimony
of Dr. Richard Leo concerning the fact
that interviews conducted at a police station may be coercive in nature, and the
reasons why a person might give a false
confession during such an interview.
Prior to trial, defense counsel advised
the trial court that he might call Dr. Leo
as an expert to testify on the topic of coercive police interrogation techniques.
The trial court mentioned to the attorneys during pretrial discussions that the
court would be open to holding an Evidence Code section 402 hearing to determine whether to allow Dr. Leo to testify as an expert on coerced confessions.
Although the prosecution requested that
any such hearing be held prior to trial,
defense counsel noted that Dr. Leo had
not yet completed his work on the case.
Later, defense counsel offered the
following update to the court:
"Here is where we are with
Doctor Leo. I disclosed Doctor Leo. 1054 said I should.
Whether or not I actually call
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2011 Cal. App. Unpub. LEXIS 7373, *
Doctor Leo depends on the
evidence that comes out. I
think, after great consideration, there are mine fields, to
be quite frankly honest with
the court and counsel, and I
am concerned there could be
doors opened. I know that the
People have [*71] expressed
to me that they're concerned
about keeping parameters as
well, and we don't want testimony that goes far afield,
which they feel is not right
and so forth. [¶] I am in the
position where I would be
calling him as a general witness--as a witness, unless the
court shuts me down, and I
don't think the court will. The
real purpose for him is, from
my perspective, is that the
general lay person, the general public, potential jurors
may be of the opinion, oh, no
one would confess ever unless
something happened. He has
experience in that regard. I
would be calling him to act as
a general witness, not as a
witness who would be testifying regarding Meki's statements, or things that happened in this particular case,
not about police reports. My
concern is that things which
clearly would not be relevant
would suddenly become relevant to impeach him, and
things would come in that
shouldn't. That's sort of where
I am."
Shortly thereafter, the trial inquired,
"You don't know if you will call him
yet?" Defense counsel responded, "I
don't know if I will call him. I don't
know that yet." The court and defense
counsel proceeded to discuss whether it
would be appropriate under the law to
allow [*72] Dr. Leo to testify on the
issue of coerced confessions in a general
manner, and not with respect to the particular facts of this case. Defense counsel indicated that his intention was to
call Dr. Leo to testify only as to general
factors related to coerced confessions,
and not as to the facts of the case. The
court then said, "I am probably thinking
way ahead of where I have to think on
this, but I would think that if he was allowed to testify as to some of these factors, and some of them he may not be
because, but if he does that, I think
maybe the People would want to play
the entire tape with Mr. Gaono because I
know at the end of the tape, if my
memory is correct, he even asked to
shake the detective's hand, which to me
was [a] very powerful indication that
this was not a coerced confession."
A few days later, the prosecution
filed a motion to exclude or limit Dr.
Leo's testimony, arguing that (1) Dr.
Leo's testimony lacked sufficient reliability, (2) to the extent that Dr. Leo's testimony was grounded in science, it fell
Page 35
2011 Cal. App. Unpub. LEXIS 7373, *
within the common understanding of
jurors, such that expert testimony was
unnecessary, and (3) there was no evidence that tended to support a reasonable inference [*73] that any of Gaono's
admissions were coerced.
In response to the prosecution's motion, the trial court raised the issue of Dr.
Leo's testimony with counsel:
"Let's talk about the potential testimony of Doctor Leo.
I have read over the prosecutor's moving papers on that. I
have read the cases that [the
prosecutor has] cited that I
thought were important: People v. Ramos, 2004 case, 121
Cal.App.4th 1194, and People
v. Cage, 2 Cal.App.4th 161,
1991 case.
"The cases are somewhat
helpful. They're not determinative. They talk about discretion in the court. For example, all Ramos talks about
is how that judge exercised, I
think, his discretion which I
thought was sort of interesting. . . . There were other
cases that I read about experts. I thought they were interesting. That is the area of
experts talking about people's
thought patterns. For example, there's a case, Sandoval, a
2008 case, 164 Cal.App.4th
994. In that case the defense
wanted to call an expert on
what they call 'make-up sex.'
In other words, someone is
charged with a forcible sex
crime, and you call an expert
to show it's not forcible because this is the way some
couples make up. The court
excluded that testimony on
the grounds
[*74] that's
within knowledge of jurors.
They can figure this out.
"A civil case was Kotla . .
. v. The University of California Regents, 115 Cal.App.4th
283, in which the people who
were fired wanted to call an
expert to testify that the firing
was retaliatory. The court did
not permit it, and the court of
appeal held that that was
permitted. That was a proper
decision by the trial judge on
the grounds of why someone
does something. Why an act
is performed doesn't normally
need an expert.
"[¶] . . . [¶]
"My feeling on this case,
to let you know, there's some
things the jury has to consider
in listening to the testimony
about the statements that Mr.
Gaono made. They are going
to consider his age, what kind
of experience he's had with
the police, what kind of experience he has had being questioned by the police, where
Page 36
2011 Cal. App. Unpub. LEXIS 7373, *
was the place of the interrogation, what kind of activities
occurred before the interrogation. For example, the evidence is going to show he
came out of the house. He
was handcuffed and put on
the sidewalk a while and put
in a car and unhandcuffed and
brought to the police station
by I don't think the police but
somebody else. He got to the
police station. Then what was
his status [*75] when he was
in the interrogation room.
They can consider whether or
not he was offered food or
not, water or not, how many
officers are present, what the
body language is between the
officers. If you play the videos, all of these things are
things that the jurors are going to be able to see. They can
make their own determination
as to whether or not that influences the statement or
statements that Mr. Gaono
made.
"My feeling is that Doctor
Leo doesn't, I don't believe,
have to comply with the
Kelly-Frye rule. I base that on
a couple of cases I read on the
psychological test things. I
think he's an expert. I read all
of this over, and I think he's
an expert, even though he's
not a sociologist and things. I
don't think that it's [i.e., Dr.
Leo's expertise] something
that the jurors need to make a
decision. I could change my
mind, depending on the evidence as it comes out . . . ."
At that point, defense counsel reiterated that he was not sure that he would
call Dr. Leo, and stated that it would be
premature for the court to make a definitive ruling on Dr. Leo's testimony until
after the prosecution had presented its
case.
The trial court indicated that it was
reserving an ultimate decision [*76] on
the matter until after the prosecution
presented its case. The court said, "My
plan would be [to] let the D.A. put their
case on and see what they come up with.
You are--depending on how Detective
Brown comes out and the other detectives, you may decide that this is not a
productive area to go into, and I don't
have to make a decision. Assuming that
you think that Doctor Leo would be
helpful to the jury, again, I emphasize
the ultimate issue I have to decide. I
would say we should let the jury go,
have a 402 hearing for a whole day, and
decide what it is he's going to testify to,
how extensive the cross can be. . . .
Again, my tentative feeling would be
that if Doctor Leo is allowed to testify,
he would be testifying in the way that
expert witnesses on ID testify. They
don't testify about any other case where
there's been a false identification. They
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2011 Cal. App. Unpub. LEXIS 7373, *
don't testify about the specific facts of
this case. They simply give factors for
the jurors to consider."
Defense counsel reiterated that if he
were to call Dr. Leo at all, it would be to
have him testify "basically to generic
[factors], not specifically about this
case." Defense counsel suggested that
this meant that Dr. Leo's testimony
[*77] would not "open[] the door to
cross-examination with the specifics of
this case because Doctor Leo would not
be prepared to answer those [questions]." The court concluded the discussion by saying, "That's typically the way
it happens with an ID expert. They get
up and testify about the factors. The
D.A. cross-examines on the factors. If
they want to, they hire their own expert
to talk about the factors, and no one
talks about the actual case in front of the
jury. Who knows whether the jury gives
that any weight or not. [¶] Anything else
to talk about today?"
After the prosecution concluded its
case, defense counsel called one witness,
Oceanside Police Officer Scott Hunter,
and then rested, without calling Dr. Leo,
and without seeking a hearing under
Evidence Code section 402 regarding
Dr. Leo's potential testimony.
After the defense rested, the trial
court released the jurors for the day, and
then spoke with the attorneys, on the
record, about jury instructions and various trial exhibits. The court also noted
that defense counsel had not called Dr.
Leo as a witness before resting. With
respect to defense counsel's earlier suggestion that counsel might call Dr. Leo
as a witness, the court [*78] stated,
"Let's maybe talk about the Doctor Leo
situation. What I would like to do is
make a record."
The trial court proceeded to discuss
the fact that the decision whether a confession is coerced or involuntary is a legal one to be made by the court, whereas
the question for the jury would be
whether the interview responses by the
defendant were reliable and accurate.
The court asked defense counsel, "And I
think you want to call Doctor Leo in this
regard to show that they aren't accurate
and reliable. [¶] You would not be calling him to show that these things were
coerced or involuntary; is that correct,
Mr. Stone?" In response, defense counsel said, "With the exception of, I think,
Doctor Leo could also testify as to involuntariness, separate and apart from
the court's constitutional decisions. It
has--it's part and parcel of a false confession of itself. I think that's an area
that is also subject to his expertise." The
court agreed, and then discussed with
counsel a number of case citations that
the parties had provided to the court.
At one point during this discussion,
the trial court stated, "If Doctor Leo
were called, I would tell you that no way
would I let him testify to whether [*79]
or not he thought this particular case involved an unreliable or inaccurate interrogation. I would allow him to talk about
the various factors, if I allowed him to
testify at all. The factors that he's going
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2011 Cal. App. Unpub. LEXIS 7373, *
to testify to, it seems, are common sense.
So that's sort of the way I see it." The
court then allowed the attorneys to present further argument.
Defense counsel explained, among
other things, "So I think he can take a
totality of evidence, and including what
the gang detective and what [another
witness] told us, and it might help the
jurors, shed some light to the jurors, in
terms of that these things [i.e., false
confessions] happen. . . . Given that
there are limited numbers of statements,
now, I think, although my position was
none of the statements should come in,
given that they are limited, my assessment was that Doctor Leo's helpful testimony would be less helpful, because
there's less testimony."
The trial court stated: "I mean, without even hearing Doctor Leo, going
through a[n Evidence Code section] 402
[hearing], definitely I would tell you he
would not be allowed to testify as to
whether or not he--the present interview
or interviews with the defendant were
either voluntary, [*80] involuntary, coerced, noncoerced, reliable or accurate.
He would not be allowed to do that. He
would just be allowed to talk about the
factors. I mentioned some of them . . . .
Assuming he would have some opinion
on that, I don't see that opinion as relevant. That's the way I sort of look at it."
The prosecutor then stated his position:
"The first thing I would
say is that my understanding
all along, from Mr. Stone,
was that the only thing he was
offering, if he was going to
offer Doctor Leo, was just the
generic concepts that might
cause a false confession. I
think he conceded in the very
first conversation that he
wasn't going to ask anything
of this nature [i.e., about the
case at hand].
"I am taking this response
by Mr. Stone as a purely tactical position on his part because he had the opportunity
to have a[n Evidence Code
section] 402 hearing to see
what he was going to get. The
court has fairly and accurately, from the People's point of
view, in essence, we agree
with the court that the only
thing he should be able to testify to, if he's allowed to testify at all, would be the generic factors that can cause
these kinds of things, which
are frankly nothing more than
common sense, [*81] which
is our ultimate argument that
it probably shouldn't be allowed.
"To the extent that we're
talking about the generic factors that might cause somebody to give a false confession, that's always been
Page 39
2011 Cal. App. Unpub. LEXIS 7373, *
counsel's opportunity here to
convince the court that that is
sufficient. It struck me, from
everything I was hearing in
advance of this particular
moment, that counsel was
making a tactical decision on
this not to call Doctor Leo."
Defense counsel then asked to clarify
his position, and stated the following:
"There's a history of progression [as to what the defense may have sought from
Dr. Leo], I think, that will be
found in the record. What I
would have liked Doctor Leo
to have been able to do would
have been . . . to testify to
some of the factors as they
more specifically apply to this
case, not just that a young
person might be--or somebody in custody for a period
of time might be but, actually,
as they find in this case. But
there was some discussion[]
earlier about how that would
open the door, and then the
District Attorney would be
able to bring in, 'Well, did
you know about this? Did you
know about this? Did you
know about this?' Then things
that have otherwise been suppressed, [*82] and rightfully
so, might come in.
"So then the defense position had to change somewhat
into more generic factors.
Then, even within the generic
factors, it seems like things
are narrowing down. So, I
mean, that's why counsel is
right. It's a tactical decision,
based on what the court's previous rulings have been and
the indications that I am getting from the court, in terms
of what I would actually be
able to do. I think that's why
we are where we are." (Italics
added.)
Ultimately, the trial court told the attorneys that the court believed it would
be a "waste of time to have Doctor Leo
come [in] and tell us what he wants to
testify to: maybe the generic factors,
age, how long you are in custody, conditions of your custody, what the police
say to you relative to your conscience,
your God, your mother, the victim's
family, the police giving you some inaccurate or false--or lies, whatever you
want to call it, and misinformation. One
side is relying on the other. All those
things I don't think Doctor Leo can testify to because I do believe they are just
common sense, and it's what the jurors
do." After the court asked whether the
attorneys "want[ed] a better record set,"
defense counsel [*83] asked, "[I]s the
court saying that it would not permit any
of Doctor Leo's testimony, even as to the
Page 40
2011 Cal. App. Unpub. LEXIS 7373, *
generic factors, or it would consider allowing him to testify to generic factors?"
The trial court responded, "I would not
allow him to testify to generic factors."
A few days later, after a discussion
concerning proposed jury instructions,
the prosecutor asked to be permitted to
put something additional on the record.
The prosecutor said, "I would like to
touch on Dr. Leo for just a moment,"
and then stated:
"In this case, with respect
to Dr. Leo, the defense rested
in this case, they didn't call
Dr. Leo, they did not request
a[n Evidence Code section]
402 hearing, and the Court
had not rendered its final [decision] on that issue except to
say it would not permit an
opinion on the ultimate issue
on the case or the tying of
factors to specific evidence
because the People would
agree that that would clearly
invade the province of the jury on an issue that is well
within the jury's ability to decide.
"But the Court had not decided as to the general factors
that might affect whether a
statement was false or true
with respect to Dr. Leo.
"And to the extent such
testimony was to be admitted
[*84] in that context, the Peo-
ple were more than prepared
to address Dr. Leo, but the
defense elected to rest and
that was clearly a calculated
choice.
"And from our perspective, it was more than understandable.
"First, having reviewed the
transcripts of Dr. Leo's testimony, he is a very difficult
witness to keep between the
lines, and this could well open
doors to questioning on the
physical evidence or other
statements of the case that
tend to inculpate this defendant, that the defense undoubtedly wanted to avoid.
"And second, if the jury
didn't adjust well to Dr. Leo,
which we felt may be a real
possibility, knowing what our
investigation of that circumstance showed, any arguments
by counsel who is far better
acquainted with the sum of
the facts could then fall on
de[af] ears if they didn't like
the presentation by Dr. Leo . .
..
"So the reality here is the
defense made a tactical choice
and rested, and we certainly
understand why.
"Well, the Court subsequently indicated it would not
Page 41
2011 Cal. App. Unpub. LEXIS 7373, *
have chosen to permit Dr.
Leo's testimony on even the
general factors themselves for
the reason the Court has stated.
"The defense's choice to
rest before that decision was
made was simply a tactical
choice and
[*85] doesn't
seem to us to raise any issue
for direct appeal, nor do we
believe that choice would be a
viable issue in any form, because the choice was more
than understandable, certainly
from our perspective."
In response, defense counsel stated:
"I don't think the prosecution can know what my strategies are or what my thoughts
were with regard to Dr. Leo
or anything of that nature.
The way things worked out
and in part occurred [was
that] the Court had provided
me with some of your research and we had some unreported discussions, and it
was fairly obvious where
things were going. There
were some questions and
concerns about when the jury
would be coming back, and
the timing of the case, and I
think that is more--it explains
more how things went than
simply the comments that Mr.
Cross made."
The trial court then related its understanding of what had occurred:
"I think the record is pretty
clear as to what I said, and
maybe it was some of the
wider flailings of the judicial
arms, but it is clear to me that
after reading all of this stuff
and thinking about it and
thinking about all of the implications, you withdrew the
request of Dr. Leo, at least
that's what I believe happened. And I threw [*86] in
the additional comment, well,
even if you did call him, we
would have a[n Evidence
Code section] 402 hearing,
based
on
my
present
knowledge of the law and
what has been testified to, that
he would be able to testify. So
I think that was just an additional thing I threw in there."
(Italics added.)
On appeal, Gaono argues that the trial court "ruled that appellant would not
be permitted to present expert testimony
as to the factors related to false or inaccurate confessions," and that as a result,
the court "deprive[d] appellant of a
meaningful opportunity to present a
Page 42
2011 Cal. App. Unpub. LEXIS 7373, *
complete defense under the confrontation clause of the Sixth Amendment and
the due process clause of the Fourteenth
Amendment. [Citation.]"
We disagree with Gaono, however,
that the trial court made any ruling that
prevented him from presenting Dr. Leo's
testimony. The record demonstrates, instead, that defense counsel made the decision not to call Dr. Leo or to even request a formal Evidence Code section
402 hearing on the matter, and never
sought a final ruling on the admissibility
of Dr. Leo's testimony. Gaono suggests
that the court did make a ruling on the
matter, based on statements that the
court made after the [*87] defense had
already rested, in which the court indicated that it would not have permitted
Dr. Leo to testify as to either the specific
facts of this case or to the general factors
related to false confessions. However,
the last thing that the court said to the
attorneys on the matter of Dr. Leo's testimony before the start of trial--which
were the court's last statements on the
matter before the defense presented its
case and rested without calling Dr.
Leo--was that it was not making a final
ruling on Dr. Leo's testimony, and that it
would make such a ruling if and when
defense counsel sought to introduce his
testimony. Specifically, the court said:
"My plan would be [to] let
the D.A. put their case on and
see what they come up with.
You are--depending on how
Detective Brown comes out
and the other detectives, you
may decide that this is not a
productive area to go into,
and I don't have to make a
decision. Assuming that you
think that Doctor Leo would
be helpful to the jury, again, I
emphasize the ultimate issue I
have to decide. I would say
we should let the jury go,
have a[n Evidence Code section] 402 hearing for a whole
day, and decide what it is he's
going to testify to, how extensive [*88] the cross can
be. . . . Again, my tentative
feeling would be that if Doctor Leo is allowed to testify,
he would be testifying in the
way that expert witnesses on
ID testify. They don't testify
about any other case where
there's been a false identification. They don't testify about
the specific facts of this case.
They simply give factors for
the jurors to consider."
At that time, the court clearly noted
that defense counsel might decide not to
call Dr. Leo, and if that were to happen,
the court "[would not] have to make a
decision." The court further indicated
that if defense counsel decided that he
did want to call Dr. Leo, the court would
be open to holding an Evidence Code
section 402 hearing, and would be inclined to allow Dr. Leo to testify as to
Page 43
2011 Cal. App. Unpub. LEXIS 7373, *
the general factors that one should consider in deciding whether a confession is
reliable. This is precisely the testimony
that defense counsel stated he intended
to present, if [*89] he were to offer Dr.
Leo's testimony at all. Thus, at the time
defense counsel made the decision not to
call Dr. Leo, the trial court had indicated
that it would be willing to allow defense
counsel to present the testimony that the
defense was seeking to present--i.e., testimony on the general factors related to
unreliable confessions, only.
The conclusion that the trial court
had been inclined to permit the defense
to call Dr. Leo to testify as to the general
factors that pertain to the reliability of
confessions is further bolstered by the
court's comparing the nature of the testimony that defense counsel said he
wanted to elicit from Dr. Leo with the
sort of testimony typically admitted by
courts with respect to experts in witness
identification.
It thus appears from the record that
defense counsel made a strategic decision not to call Dr. Leo as a defense
witness. This was clearly the trial court's
understanding, as the court explained
after defense counsel attempted to counter the prosecutor's description of the
relevant events, stating, "[B]ut it is clear
to me that after reading all of this stuff
and thinking about it and thinking about
all of the implications, [defense counsel]
[*90] withdrew the request of Dr. Leo,
at least that's what I believe happened."
The trial court did not indicate in any
way that it would not have allowed Dr.
Leo to testify at all until after the defense had rested, and thus, clearly had
decided not to call Dr. Leo as a witness.
Any comments that the court made with
respect to its sense that it would not have
allowed Dr. Leo to testify as to either the
specifics of the case or as to the general
factors related to the reliability of confessions were merely comments about
what the court might have done if defense counsel had sought to introduce
Dr. Leo's testimony. The court's statements cannot be construed as a definitive ruling on the admissibility of Dr.
Leo's testimony, since the defense made
no request to be permitted to present Dr.
Leo's testimony at any time before resting its case, and never requested to reopen its case in order to present that testimony.
Gaono attempts to place emphasis on
the language of the minute order that
was entered on the day that the defense
rested without calling Dr. Leo or seeking
a hearing under Evidence Code section
402. The portion of the minute order that
Gaono insists demonstrates that the
court made [*91] a definitive ruling
against allowing Dr. Leo to testify does
seem to support Gaono's claim:
"Court and counsel confer
re: Dr. Leo. [Defense counsel]
makes an offer of proof as to
what Dr. Leo would testify to
at a[n Evidence Code section]
402 hearing. The Court holds
Page 44
2011 Cal. App. Unpub. LEXIS 7373, *
that Dr. Leo would not be allowed to testify as to whether
or not this particular confession was reliable and accurate. As to the factors in the
case which might indicate an
unreliable
or
inaccurate
statement, such as, an appeal
to the defendant's conscience,
doing right by his family, doing right by the victim's family, amongst other things, Dr.
Leo would not be permitted to
testify as no expert is needed
in this area. Therefore, the
Court denies the defendant's
request for a[n Evidence Code
section] 402 hearing."
Gaono proffers that "both the minute
order and the oral proceedings of April 8
support appellant's position on whether
the court ruled [on allowing or not allowing Dr. Leo to testify]." We disagree.
First, it is clear even from the minute
order that the defense had rested its case
without having raised the issue of Dr.
Leo's testimony, or having made any
request regarding Dr. Leo, and before
the parties and the [*92] court discussed Dr. Leo that day. Indeed, the
minute order indicates that the defense
rested at 10:52 a.m., and that at 10:54,
a.m. the jurors were excused and defense
counsel made a motion for judgment of
acquittal, which the court denied. Only
after all of this is the statement quoted
above entered into the minutes for that
day.
Further, the minute order does not
accurately describe the events that took
place that day as those events are recorded in the reporter's transcript. Although the minute order implies that defense counsel actually made a request
for an Evidence Code section 402 hearing, the transcript demonstrates that, in
fact, no such request was ever made.
Rather, it was the trial court that raised
the issue of Dr. Leo's testimony, apparently in an attempt to make "a record"
for appeal, despite the fact that defense
counsel never moved to call Dr. Leo as
an expert. Thus, the court did not make
any ruling on the matter, but rather,
merely expressed what the court believed its ruling would have been if the
defense had actually sought to have Dr.
Leo testify.
It is not difficult to understand how
the minute order came to summarize the
proceedings in the manner that it did.
[*93] However, we see no reason to give
the description in the minute order more
weight than what is contained in the reporter's transcript from that day. (See
People v. Smith (1983) 33 Cal.3d 596,
599 [when there is a conflict between a
clerk's transcript and a reporter's transcript, the question of which controls is
determined by consideration of the circumstances of each case].) We therefore
reject Gaono's contention that the minute
order demonstrates either that defense
counsel requested an Evidence Code
section 402 hearing or asked to be per-
Page 45
2011 Cal. App. Unpub. LEXIS 7373, *
mitted to call Dr. Leo to testify, or that
the court made any ruling on the matter.
The transcript clearly demonstrates that
defense counsel had already decided not
to call Dr. Leo to testify before the court
indicated that if counsel had made that
request, the court would not have permitted Dr. Leo to testify.
Gaono appears to suggest, in the alternative, that defense counsel somehow
knew, prior to resting, that it would have
been futile to call Dr. Leo because
counsel was aware that the trial court
would not have permitted Dr. Leo to testify. Gaono contends that his attorney
was not required to make what would
have been a futile request. However,
[*94] the record does not support
Gaono's contention. Rather, the record
demonstrates that it would not have been
reasonable for defense counsel to have
concluded that calling Dr. Leo would
have been futile at any time before the
defense rested its case. Again, the last
word from the court, prior to the defense
presenting and resting its case, was that
the court would accept a request from
the defense to present Dr. Leo's testimony, that the court would hold an Evidence Code section 402 hearing, and
that the court would potentially be open
to allowing Dr. Leo to testify as to the
general factors pertaining to the reliability of a confession. Defense counsel
never sought to have the court make a
final ruling, and there is nothing in the
record that suggests that the reason defense counsel never requested a ruling is
because defense counsel believed that
the court would not permit the defense
to present Dr. Leo's testimony. Rather,
the record suggests that defense counsel
made a tactical decision not to call Dr.
Leo because there was the potential that
his testimony might open the door for
the prosecution to ask Dr. Leo about
statements made by Gaono that the court
had otherwise excluded, [*95] and because the relative value of Dr. Leo's testimony compared to the risk of opening
the door to this damaging evidence was
not sufficient to justify taking that risk.
To the extent that Gaono contends
that the trial court's statements to the effect that the court would limit Dr. Leo's
testimony to only the general factors related to unreliable confessions deterred
him from seeking to present Dr. Leo's
testimony, such an argument is similarly
meritless. It is clear from the transcript
of the trial proceedings that defense
counsel was considering having Dr. Leo
testify about general psychological factors and police techniques that can lead
to false or unreliable confessions. It is
equally clear that prior to the defense
resting its case, the trial court was inclined to permit the defense to question
Dr. Leo on these topics. What the trial
court indicated it would not permit was
for Dr. Leo to give an opinion as to
whether the particular admissions that
Gaono made in this case were unreliable
or inaccurate. Thus, even if the court's
comments could be interpreted as constituting a tentative ruling on the matter,
it appears that the court was considering
prohibiting only testimony that [*96]
Page 46
2011 Cal. App. Unpub. LEXIS 7373, *
defense counsel indicated he did not intend to elicit.
D. The court did not abuse its discretion
in allowing the prosecutor to show the
animation of Officer Bessant's shooting
during his opening statement and closing argument.
Prior to trial, the prosecution moved
to be permitted to present a two-minute
computer generated animation to illustrate the prosecution's theory regarding
how Officer Bessant was murdered. The
animation presented a visual depiction
of the prosecution's understanding of the
evidence pertaining to the positions of
the two officers, and the shooter, at the
time of the shooting, as well as the trajectory of the fatal bullet. The animation
depicted a person with a scoped rifle
crouched near a mailbox, and included a
green line indicating the approximate
path of the bullet from the shooter's rifle
to the victim.
Defense counsel objected to the
prosecutor's use of the animation during
opening and closing arguments on the
ground that the animation did not comply with People v Kelly (1976) 17
Cal.3d 24 (Kelly), that the animation
was not accurate, that it was speculative,
and that it would be too powerful and
the jury would ignore the testimony
from the witnesses and would [*97] instead rely on the animation.
The prosecutor argued that the animation was "not a [computer generated]
simulation," and that it would give jurors
"an overview, if you will, of the relative
positions of the two crime scenes and
the underlying nature that the evidence
shows . . . how this crime was committed. [¶] It doesn't say who committed it.
It doesn't give any emotion to it. It's basically a static overview with no emotion
placed into the video in any way, shape,
or form." Defense counsel argued that
the animation could prejudice the jurors
"and how they're going to see the case"
because they would see the animated
presentation before any witnesses had
taken the stand.
The trial court ruled that the prosecution would be permitted to use the animation, and determined that the court
would give the jury a limiting instruction
specifically pertaining to the animation.
Prior to closing arguments, the trial
court instructed the jury with the following admonition with respect to the
computer animation:
"In the People's closing
arguments you will again see
the computer animation that
the prosecution believes visually depicts some of the circumstances surrounding this
occurrence. [¶] Please [*98]
remember, however, that any
presentation in a closing argument is not evidence in and
of itself. Evidence comes to
you solely from the testimony
of the witnesses and the introduction of physical or other
evidence admitted during the
Page 47
2011 Cal. App. Unpub. LEXIS 7373, *
trial. [¶] As with all information in a closing argument,
the computer animation represents what the People believe the evidence has shown
in this case. You may disregard the animation if you find
it to be inaccurate or unhelpful. On the other hand, if you
find the demonstration to be
supported by the evidence
you have received in this
case, you may consider the
animation to the extent it
helps you better understand
the prosecution's closing argument. Please remember,
however the computer animation is not itself evidence in
this case."
Neither party has identified the
standard of review that applies to this
matter. This is perhaps a reflection of the
fact that there appears to be a dearth of
authority regarding precisely how an
appellate court should review a defendant's claim that a trial court should not
have permitted the prosecution to utilize,
during opening and/or closing arguments, an illustrative aid that was not
actually admitted in evidence during
[*99] trial. We have found one case in
which the Supreme Court appears to
have applied standards similar to those
used in reviewing evidentiary rulings to
a trial court's decision to permit the
prosecutor to display to the jury a
demonstrative aid that, insofar as one
can glean from the opinion, was not admitted in evidence at trial. (See People
v. Barnett (1998) 17 Cal.4th 1044 (Barnett).
In Barnett, supra, 17 Cal.4th at pages 1135-1136, the Supreme Court considered a defendant's challenge to the
prosecutor's display of a hunting
knife--which was not the actual weapon
used in the crime--as a demonstration
during closing argument. The Supreme
Court noted that the testimony at trial
"provided a sufficient basis for the
knife's display," that "there was no attempt to mislead the jury into believing
the knife was the actual murder weapon," and that there was "no indication
that the knife was in fact dissimilar or
more vicious in appearance than the
knife described by the witnesses, or that
display of the knife was so unduly prejudicial as to require exclusion under
Evidence Code section 352." (Id. at p.
1136.) From Barnett, we infer that the
standard that we are to apply in our review of the trial [*100] court's decision
to permit the prosecution to display the
computer animation as an illustrative aid
during opening and closing arguments
should be nothing more stringent than
the abuse of discretion standard that applies to rulings on the admission of evidence. Applying this standard, we find
no abuse here.
Gaono's argument that the computer
animation was "akin to evidence being
admitted" without having been authenticated and without his having been af-
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2011 Cal. App. Unpub. LEXIS 7373, *
forded the opportunity to challenge the
accuracy of the animation, is unpersuasive. The animation was not treated as
evidence, and the court specifically instructed the jury that it was not evidence
and that the jury was not to consider it to
be evidence. The trial court's admonition
to the jury in this regard clearly directed
the jury not to regard the animation as
evidence and to consider only the evidence that had been presented at trial in
reaching its decision. Thus, the animation was not "akin to evidence being
admitted" as Gaono contends.
Defense counsel was able to view the
animation prior to trial, and had the opportunity to dispute the accuracy of the
animation with respect to the events that
it depicted. In addition, the trial [*101]
court made a finding that the animation
had been properly authenticated. Further, even after defense counsel heard
the witnesses' testimony, defense counsel never raised any issue with respect to
whether the animation accurately reflected that testimony. Beyond this, even
on appeal, Gaono has not identified any
way in which the animation failed to
adequately represent the evidence that
was presented at trial, or was otherwise
misleading. Since Gaono has not
demonstrated that the animation was deficient, misleading, or failed to adequately represent the evidence presented
at trial, Gaono has failed to show that
the court abused its discretion in permitting the prosecution to use this demonstrative aid during opening and closing
arguments.
E. The trial court did not err in declining to disclose any portion of Detectives
Brown, Novak, or Priem's personnel
files in response to Gaono's Pitchess
motion
Before trial, Gaono sought to discover the personnel records of Detectives
Brown, Novak, and Priem with respect
to acts of interviewing suspects without
properly advising them of their Miranda
rights, conducting coercive interrogations, misplacing evidence, dishonesty,
giving false statements [*102] or testimony, and making significant omissions in police reports.
"[O]n a showing of good cause, a
criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel
records of a peace officer accused of
misconduct against the defendant. [Citation.] Good cause for discovery exists
when the defendant shows both '"materiality" to the subject matter of the
pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.] A showing
of good cause is measured by 'relatively
relaxed standards' that serve to 'insure
the production' for trial court review of
'all potentially relevant documents.' [Citation.]" (People v. Gaines (2009) 46
Cal.4th 172, 179 (Gaines).)
"If the defendant establishes good
cause, the court must review the requested records in camera to determine
what information, if any, should be dis-
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2011 Cal. App. Unpub. LEXIS 7373, *
closed. [Citation.] Subject to certain
statutory exceptions and limitations [citation], 'the trial court should then disclose to the defendant "such information
[that] is relevant to the subject matter
involved in the pending litigation."' [Citations.]" (Gaines, supra, 46 Cal.4th at
p. 179.)
mulative effect that is prejudicial." (In re
Avena (1996) 12 Cal.4th 694, 772, fn.
32.) We have concluded that none of
Gaono's asserted [*104] claims of error
has merit. There is thus no cumulative
error on which to base a reversal of the
judgment against him.
On appeal, [*103] this court is required to review the "record of the
documents examined by the trial court"
and determine whether the trial court
abused its discretion in refusing to disclose the contents of the officer's personnel records. (People v. Mooc (2001)
26 Cal.4th 1216, 1229; see also People
v. Hughes (2002) 27 Cal.4th 287, 330.)
G. The 10-year gang enhancement that
the court imposed and stayed should be
stricken
The trial court reviewed the requested records in camera and determined
that they contain no information relevant
to the subject matters raised by Gaono's
motion. We have reviewed the transcript
and the personnel records of Detectives
Brown, Novak, and Priem that the trial
court considered. Our review confirms
the trial court's determination: The confidential personnel records do not contain any disclosable information. The
trial court thus properly declined to disclose any items from the officers' confidential records.
F. There is no cumulative error
Gaono contends that the cumulative
effect of the alleged errors requires reversal. "Under the 'cumulative error'
doctrine, errors that are individually
harmless may nevertheless have a cu-
Gaono contends that the 10-year
gang enhancement that the trial court
imposed and stayed pursuant to section
186.22, subdivision (b)(1) should have
been stricken, instead. According to
Gaono, subdivision (b)(5) of section
186.22 governs his sentence, since that
provision deals with indeterminate sentences such as his. The People assert that
the trial court was correct in imposing
and staying the 10-year gang enhancement under section 186.22, subdivision
(b)(1).
16
16 Unlike in the current appeal,
the People conceded this issue in
Penifoti Taeotui's appeal from his
conviction and sentence for first
degree murder related to Officer
Bessant's killing.
In People v. Lopez (2005) 34 Cal.4th
1002, 1006 (Lopez), the Supreme Court
considered the question "whether a first
degree murder committed for the benefit
of a gang is subject to the 10-year enhancement in section 186.22[, subdivision] (b)(1)(C) or whether such a murder
falls within that subdivision's excepting
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2011 Cal. App. Unpub. LEXIS 7373, *
clause and is governed instead by
[*105] the 15-year minimum parole eligibility term in section 186.22[, subdivision] (b)(5)." The defendant in Lopez,
who had received a sentence of 25 years
to life in prison, argued that section
186.22, subdivision (b)(5) "applies when
the felony is 'punishable by imprisonment in the state prison for life'" and that
"first degree murder, which is punishable by 'imprisonment in the state prison
for a term of 25 years to life' [citation],
is such an offense." (Lopez, supra, at p.
1006.) The People argued that the phrase
"punishable by imprisonment . . . for
life," as used in section 186.22, subdivision (b)(5), was intended to refer to
"straight" life terms, and therefore would
not apply to first or second degree murder. (Lopez, supra, at p. 1006.)
The Supreme Court concluded that
the language in section 186.22, subdivision (b)(5) "encompass[es] both a
straight life term as well a term expressed as years to life," and that the
Legislature "intended to exempt [all of]
those crimes from the 10-year enhancement in subdivision (b)(1)(C)." (Lopez,
supra, 34 Cal.4th at p. 1007.)
Lopez is not on all fours with this
case, since that case involved a term of
25 years to life with the possibility of
parole, [*106] while Gaono's sentence
is a term of life without the possibility of
parole. However, we conclude that the
text of the statute and the reasoning of
Lopez compel the same result as that
reached in Lopez, even when, as here,
the sentence at issue is life without the
possibility of parole. The language of
the statute, i.e., "punishable by imprisonment in the state prison for life," does
not distinguish between terms of life
with the possibility of parole and those
without. In other words, there is no exception in the language of section
186.22, subdivision (b)(5) for individuals who have been sentenced to life in
prison without the possibility of parole.
Further, as the Lopez court acknowledged, a 15-year minimum parole eligibility requirement "will have no practical effect" in any first degree murder
case. (Lopez, supra, 34 Cal.4th at p.
1009.) Despite this fact, section 186.22,
subdivision (b)(5) applies to defendants
convicted of first degree murder who are
punished with "'imprisonment in the
state prison for a term of 25 years to
life.'" (Lopez, supra, 34 Cal.4th at p.
1006, citation omitted.) According to the
Lopez court, the Gang Violence and Juvenile Crime Prevention Act of 1998
[*107] (which increased the penalties in
§ 186.22) "recognized that not all of its
provisions necessarily established the
greatest possible punishment" (Lopez,
supra, at p. 1009), and the fact that section 190 fixes a parole eligibility date
equal to or greater than that in section
186.22 subdivision (b)(5) is "neither an
absurdity nor an anomaly." (Ibid.)
We therefore conclude that the
10-year enhancement imposed pursuant
to section 186.22, subdivision (b)(1) is
to be stricken. (Lopez, supra, 34 Cal.4th
at p. 1011.)
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2011 Cal. App. Unpub. LEXIS 7373, *
H. The abstract of judgment must be
modified to correspond with the trial
court's oral pronouncement of judgment
Gaono contends that the abstract of
judgment does not correspond with the
trial court's oral rendition of judgment.
According to Gaono, the trial court did
not orally impose fines under section
1202.4, subdivision (b) or 1202.45, yet
fines were included in the abstract of
judgment. He further complains that the
court ordered imposition of the victim
restitution to be joint and several as to
Gaono and Taeotui, but that the abstract
of judgment fails to reflect this fact.
Gaono asks that the abstract of judgment
be corrected to reflect the court's oral
pronouncement.
The [*108] People concede that the
abstract of judgment should be corrected
as to both of these matters. We agree. In
orally pronouncing judgment, the trial
court failed to impose a restitution fine
or the corresponding parole revocation
fine that is mandatory when a restitution
fine is ordered. A restitution fine is considered a discretionary sentencing
choice. Thus, if the trial court fails to
impose such a fine and the People fail to
object, the matter is forfeited. (See People v. Tillman (2000) 22 Cal.4th 300,
303.) "It is, of course, important that
courts correct errors and omissions in
abstracts of judgment. An abstract of
judgment is not the judgment of conviction; it does not control if different from
the trial court's oral judgment and may
not add to or modify the judgment it
purports to digest or summarize. [Cita-
tion.]" (People v. Mitchell (2001) 26
Cal.4th 181, 185.) As a result, the trial
court should amend the abstract of
judgment to omit the restitution
(§1202.4, subd. (b)) and parole revocation (§ 1202.45) fines, and to reflect that
Gaono is jointly and severally liable for
the victim restitution with Taeotui.
The People point out that the abstract
of judgment contains another error
[*109] in that it fails to reflect the imposition of mandatory court security fees,
which are required under section 1465.8,
subdivision (a)(1). At the time Gaono
was sentenced, that section provided:
"To ensure and maintain adequate funding for court security, a fee of twenty
dollars ($20) shall be imposed on every
conviction for a criminal offense . . . ."
This provision "unambiguously requires
a fee to be imposed for each of defendant's conviction. Under this statute, a
court security fee attaches to 'every conviction for a criminal offense.'" (People
v. Schoeb (2005) 132 Cal.App.4th 861,
865.) Gaono concedes that these fees are
mandatory and that this court can order
that the judgment be modified to reflect
the imposition of such fees. (See People
v.Crabtree (2009) 169 Cal.App.4th
1293, 1328.) Accordingly, the judgment
must be modified to reflect the imposition of two court security fees, one for
each of Gaono's two convictions. The
trial court shall amend abstract of judgment to reflect this change, as well.
IV.
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2011 Cal. App. Unpub. LEXIS 7373, *
DISPOSITION
The trial court is directed to strike the
10-year enhancement, and impose two
court security fees. The judgment is otherwise affirmed. The trial court is directed to [*110] prepare an amended
abstract of judgment reflecting the striking of the 10-year enhancement, omitting the restitution and parole revocation
fines, reflecting that Gaono is jointly and
severally liable for the victim restitution
amount, and reflecting the imposition of
two court security fees. The trial court
shall forward a copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.