PEOPLE v. GARCIA (1986)

Following a court trial appellant Catalino Garcia was convicted of second degree murder,¹ and a firearm use allegation was found true.  (Pen. Code, §§ 187, 12022.5.)   A statement given to a police detective was admitted against appellant over his objections to its voluntariness.   The central issue of this appeal is the correct standard of evidence for determining the voluntariness of a confession.   We find that the adoption of article I, section 28, subdivision (d) of the California Constitution (§ 28(d)) requires the application of the federal standard for determining voluntariness, preponderance of the evidence.   The trial court applied the preponderance standard below.   Finding no error by the trial court on this issue or on the other issues raised by appellant, we affirm the judgment.

FACTS

The killing of the victim, Mario Garcia, was the result of a family feud which began in Mexico.   The victim, Mario, killed appellant's father.   Either Mario or his brother killed appellant's brother.   Mario may also have killed appellant's brother-in-law.   These killings took place approximately 12 to 15 years ago.   Though there were no other deaths, the families subsequently exchanged “pot shots.”   The victim came to this country about five months before his death on November 7, 1983, to avoid the continuing feud.

Appellant had been coming to this country for the past eight years to work as a seasonal farm laborer.   The last time he entered the United States was seven months before Mario's murder.   Appellant was then living in Santa Ana, but at one time he lived in Pacoima.   He found out that Mario was living in Pacoima.   He took the bus there, went to a neighborhood with which he was familiar, and found Mario.   Mario recognized appellant and ran.   Appellant chased him and shot him in the back several times.   Appellant ran to a nearby car and entered on the front passenger side.   The car drove away.²

Appellant was eventually arrested in Chino and transported to the Foothill station by Los Angeles Police Department Detective Hernandez.   Appellant was interviewed in the Foothill station interview room by Detective Hernandez.   The interview was conducted in Spanish, and it was tape recorded.

Following an Evidence Code section 402 hearing, at which the defense called a clinical psychologist who had examined appellant, appellant's statement to Detective Hernandez was admitted into evidence.

THE STANDARD OF VOLUNTARINESS

Appellant contends that the trial court erred in determining the voluntariness of his statement under the preponderance of the evidence standard, rather than applying the beyond a reasonable doubt standard.   Appellant relies on Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789, for his argument that the reasonable doubt standard established in People v. Jimenez (1978) 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672 survives the adoption of section 28(d), also known as Proposition 8.³  The Attorney General contends that the trial court properly applied the preponderance of the evidence standard enunciated in Lego v. Twomey (1972) 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618.

Section 28(d) states, in pertinent part, that “relevant evidence shall not be excluded in any criminal proceeding․  Nothing in this section shall affect any existing statutory rule of evidence relating to privilege․”  Evidence Code section 940 is an “existing statutory rule of evidence relating to privilege within the meaning of [section 28(d) ].”  (People v. Jacobs (1984) 158 Cal.App.3d 740, 750, 204 Cal.Rptr. 849.)  Section 940 provides:  “To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.”   The language of section 940 “is purposefully broad, and is meant to include within its reach judicial decisions relating to the privilege against self-incrimination.”  (Ramona R. v. Superior Court, supra, 37 Cal.3d at p. 808, 210 Cal.Rptr. 204, 693 P.2d 789.)   The Law Revision Commission comment to section 940 declares that “the scope of the privilege is determined by the pertinent provisions of the California and United States Constitutions as interpreted by the courts.”   Thus, following the analysis of Ramona R., we must determine whether the reasonable doubt standard of People v. Jimenez, supra, is mandated by either the California or United States Constitution, including judicial interpretations thereof.   If it is, it falls “within the exception to section 28(d) for statutory privileges, and thus survive[s] the adoption of Proposition 8.”  (Ramona R. v. Superior Court, supra.)   Conversely, if the standard is not mandated by either constitution it does not fall within the section 28(d) exception for privileges and cannot be saved.

As stated in the Jimenez opinion, prior to 1972 the California Courts of Appeal “uniformly concluded that the prosecution must establish proof of the voluntariness of a confession beyond a reasonable doubt.”  (21 Cal.3d at p. 602, 147 Cal.Rptr. 172, 580 P.2d 672.)   The courts apparently based their conclusion on what was thought to be the rule under the United States Constitution.   But the United States Supreme Court in Lego v. Twomey, supra, 404 U.S. 477, 92 S.Ct. 619 established that the federal Constitution required proof of voluntariness only by a preponderance of the evidence.   The Lego holding cast doubt upon the prior California decision, and the case law was thrown into confusion.   Our Supreme Court settled the question in Jimenez.   The court stated at page 605:  “Although the defendant urges that the privilege against self-incrimination contained in article I, section 15 of the state Constitution requires application of the reasonable doubt standard in order to fully protect the important values embodied therein, we find it unnecessary to reach the constitutional question as we conclude for the reasons set forth below that the reasonable doubt standard is required as a judicially declared rule of criminal procedure.”  (Emphasis added.)

 The reasonable doubt standard of Jimenez is not required by our state Constitution, as Jimenez was not interpreting the scope of the constitutional privilege against self-incrimination.   Beyond a reasonable doubt is not mandated by the federal Constitution.  (Lego v. Twomey, supra, 404 U.S. at pp. 488–489, 92 S.Ct. at p. 626.)   Thus, the California standard for determining the voluntariness of a confession does not survive the passage of section 28(d), and the federal standard must be given effect by our trial courts.⁴  (See In re Lance W. (1985) 37 Cal.3d 873, 890, 210 Cal.Rptr. 631, 694 P.2d 744.)   The trial court correctly applied the preponderance of the evidence standard in finding that appellant's confession was voluntary.

THE VOLUNTARINESS OF THE CONFESSION

Appellant contends that even under the preponderance of the evidence standard the People failed to prove the voluntariness of his confession.   The reviewing court must examine the uncontradicted facts to make an independent determination of voluntariness.  (People v. Jimenez, supra, 21 Cal.3d at p. 609, 147 Cal.Rptr. 172, 580 P.2d 672.)   Where the testimony is conflicting, the version of the facts most favorable to the People is accepted on appeal, if supported by the record.  (Id.)

 The key issue, as defined by appellant, concerning the voluntariness of his confession is whether he invoked his right to an attorney.   If he did, all questioning by Detective Hernandez should have ceased.  (Miranda v. Arizona (1966) 384 U.S. 436, 444–445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694;  Edwards v. Arizona (1981) 451 U.S. 477, 484–485, 101 S.Ct. 1880, 1884–1885, 68 L.Ed.2d 378.)   Any statement made after the right to an attorney is invoked is inadmissible.  (People v. Pettingill (1978) 21 Cal.3d 231, 237, 145 Cal.Rptr. 861, 578 P.2d 108;  People v. Navarez (1985) 169 Cal.App.3d 936, 945, 215 Cal.Rptr. 519.)

Detective Hernandez read appellant his Miranda warnings.   Then the following exchange took place:

“H. Do you understand each one of your rights as they have been explained to you?

“G. pause․  Well this one about (interrupted)

“H. Yes or No?

“G. Yes I understand (tried to continue but was again interrupted)

“H. Yes or No.

“G. Yes, Yes.   But this thing about an attorney, how․

“H. O.K., O.K.

“G. If I don't have the money to pay, how can I do it?

“H. O.K.   It says here, if you don't have the money to get an attorney, we can name one for you without cost.

“G. Oh, yes, yes.

“H. Do you wish to give up your right to remain silent?   Do you want to talk to me today?

“G. Yes, why not.

“H. Move your hand, I can't hear you well.   Do you wish to give up your right to an attorney and have him present during your questioning?

“G. Uh Huh.

“H. Yes or No?

“G. Yes.

“H. Then we can talk about what happened.

“G. Uh Huh.

“H. O.K.   That's fine․”

 We find on this record that appellant unambiguously waived his right to have counsel present and agreed to talk to Detective Hernandez.   There are indications that, as appellant contends, he twice tried to ask questions about having an attorney, but was interrupted by Hernandez.   Nevertheless, appellant was permitted to ask his question.   He received a full explanation and chose to talk.

 Appellant also argues that his confession was involuntary because Detective Hernandez coerced him into waiving his Miranda rights.   In determining whether appellant's statements were voluntary or coerced, the reviewing court must consider the totality of the circumstances—“ ‘․ both the characteristics of the accused and the details of the interrogation.’ ”   (People v. Hogan (1982) 31 Cal.3d 815, 841, 183 Cal.Rptr. 817, 647 P.2d 93, quoting Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854.)

Appellant relies solely on the testimony of a clinical psychologist who testified for the defense.   Based on this testimony appellant describes himself as a relatively young man with a borderline intelligence;  a poorly educated migrant farmer.   The record shows appellant to be 31 years old.   While the psychologist's testimony does show that appellant is of borderline intelligence, it also shows that he is not mentally retarded.   Appellant has lived in this country for at least eight years, supporting himself, taking care of his own needs and functioning within the society.   He earned as much as he could, lived on a minimal amount of the money and sent the rest to his family in Mexico.   Appellant's description of himself is not completely inaccurate, but the record does not support the implication that appellant was a confused juvenile who was incapable of making decisions.   The trial court stated on the record that the psychologist's testimony indicated that appellant had the ability to understand the general concepts embodied in the Miranda warnings.   The picture of appellant created by the record is not one of a person who was either emotionally or intellectually unable to decide to talk to a police officer.

The transcript of the interrogation shows little that could be interpreted as techniques to overcome appellant's will.   Twice Detective Hernandez interrupted appellant by saying, “Yes or No.”   This was explained by Hernandez.   He testified that appellant wanted to begin telling him what happened before he had a chance to Mirandize appellant.   Hernandez wanted the Miranda warnings complete on the tape before he allowed appellant to tell what had happened.

This record supports the trial court's ruling that the statements were voluntarily made.⁵

MALICE

 Appellant contends that the evidence does not support the trial court's finding that he committed second degree murder because the People failed to prove malice.   Malice is demonstrated when the evidence shows the deliberate intent to take another's life.  (People v. Keeling (1957) 152 Cal.App.2d 4, 10, 312 P.2d 407.)   The existence of malice is a question of fact.  (People v. Thomas (1945) 25 Cal.2d 880, 903–904, 156 P.2d 7.)   The finding of the court will be affirmed on appeal if supported by substantial evidence.  (People v. Johnson (1980) 26 Cal.3d 557, 562, 162 Cal.Rptr. 431, 606 P.2d 738.)   Malice may be inferred from the circumstances of the homicide.  (People v. Lewis (1969) 1 Cal.App.3d 698, 701, 81 Cal.Rptr. 900.)

 Appellant seeks to rely on a longstanding feud between himself and the victim to argue that the crime was committed in the heat of passion.   Revenge is never recognized as a sufficiently disturbing state of mind to cause one to act rashly or out of passion.  (People v. Morse (1969) 70 Cal.2d 711, 734–735, 76 Cal.Rptr. 391, 452 P.2d 607.)   There was no evidence of provocation whatsoever.   In fact, the victim was running away.   The record supports the trial court's finding.

Appellant tries to liken his case to People v. Bridgehouse (1956) 47 Cal.2d 406, 303 P.2d 1018.)   The court in Bridgehouse reduced a second degree murder conviction to voluntary manslaughter.   In its analysis the court considered both that the defendant's wife had been having an affair with the victim, an acquaintance of the defendant, over a long period of time, and that the defendant knew about the affair.   But there was an additional fact which the court deemed to be the act of provocation:  the defendant saw the victim at the home of his wife's mother.   This was found to be “a great shock to the defendant who had not expected to see [the victim] there or anywhere else.”   (47 Cal.2d at p. 413, 303 P.2d 1018.)   Appellant contends that seeing the deceased in a chance encounter caused him to react the way the defendant did in Bridgehouse.   But appellant cannot seriously contend that his meeting with Mario was a chance encounter;  he deliberately went to Pacoima to seek out his victim.   Appellant has shown no fact which can be considered a provocation sufficient to change his conviction to manslaughter.

USE ALLEGATION

Appellant's final contention is that the trial court abused its discretion by refusing to stay or strike the use allegation.   A court may strike a section 12022.5 use allegation upon a determination that there are circumstances in mitigation of the additional punishment.  (Pen. Code, § 1170.1, subd. (h).)  The guideline circumstances in mitigation are listed in California Rules of Court, rule 423.  (People v. Johnson (1979) 95 Cal.App.3d 352, 356–357, 157 Cal.Rptr. 150.)   Appellant has not specified the mitigating circumstance upon which he is relying.   Based on the facts he is employing, however, “an unusual circumstance, such as great provocation, which is unlikely to recur” (Cal. Rules of Court, rule 423(a)(3)) is the best description of his argument.   He is also relying on his record, a circumstance which is included in rule 423(b)(1).

 The trial court clearly found against appellant on the provocation issue.   The court concluded that his crime was “obviously planned” and “coldly premeditated.”   Based on this finding, which is supported by the evidence, the trial court did not abuse its discretion by denying the request to strike the use allegation.   While it is true that appellant has no prior record, that fact alone does not mandate that the use allegation be stricken.   Balanced against that fact is the seriousness of the crime for which he was convicted.

The judgment is affirmed.

FOOTNOTES

1.   An agreement was reached between the People and appellant's counsel that, if found guilty, appellant would not be convicted of first degree murder.

2.   There is discrepancy in the record with respect to the presence of the car.   The detective who interviewed appellant believed that appellant and his friend Vincente Diaz planned the murder.   The detective believed that appellant went to the Diaz house in Chino and stayed there overnight, that Diaz drove appellant to the Pacoima neighborhood where appellant found Mario, waited for appellant to commit the crime and drove appellant away from the scene.   Appellant maintained that he took the bus directly to Pacoima and after he killed Mario he just by chance saw Diaz driving along the street where the murder took place.   Appellant, in an obvious attempt to protect Diaz, ultimately insisted on his version of the facts, even though at some points during the interview he admitted that the detective's version was the correct one.

3.   Appellant also relies on the fact that on May 2, 1985, In re Randy Joe H., ––– Cal.3d ––––, 214 Cal.Rptr. 903, 700 P.2d 781, was retransferred by the Supreme Court to the Court of Appeal, Third District, for reconsideration in light of Ramona R.   The court in Randy Joe H. had held that preponderance of the evidence is the standard for determining the voluntariness of a confession.   The Randy Joe H. opinion did not take into consideration that section 28(d) specifically states that no existing statutory rule of evidence relating to privilege is affected by the section.   The analysis herein is not similarly flawed;  indeed, we follow the analysis stated in the Ramona R. opinion.

4.   People v. Dingle (1985) 174 Cal.App.3d 21, 27, footnote 6, 219 Cal.Rptr. 707, concludes that Ramona R. compels the application of the preponderance standard without a discussion of Jimenez.   We decline to follow Dingle.People v. Molina (1986) 177 Cal.App.3d 429, 222 Cal.Rptr. 894, also following the analysis of Ramona R., holds that the California standard survives the passage of section 28(d).   The court reaches that conclusion by interpreting the Jimenez decision to base the reasonable doubt standard on the California Constitution.   As noted above, the Constitution is not the basis of the Jimenez rule;  the language of the Supreme Court could not be clearer.   We, therefore, decline to follow the reasoning or the result of Molina.

5.   Even if the reasonable doubt standard were applied, appellant's statements would be admissible.   The transcript of the interview by Detective Hernandez does not contain any statement by appellant that could be construed as a request to have an attorney present.  (Contra, People v. Russo (1983) 148 Cal.App.3d 1172, 1176, 196 Cal.Rptr. 466, & cases cited therein.)Close scrutiny of the totality of the circumstances surrounding the interrogation discloses no coercion.   The only defense evidence was Dr. Herrera's opinion testimony.   He focused on appellant's low intelligence and lack of education, but admitted that appellant had been supporting himself and his family, was a good farmer, and a good farm worker.   His employers “always took him back.”   Dr. Herrera's testimony shows appellant to be a hard working, stable and capable individual.   Though Dr. Herrera tried to establish that Detective Hernandez chose vague words in Spanish and confused appellant, he also stated that appellant understood the words Hernandez used and the concepts involved.   Furthermore, the transcript of the interview does not support the theory that appellant was confused.

ASHBY, Associate Justice.

f LILLIE, P.J., and EAGLESON, J., concur.