People v. James ( 2021 )

Filed 10/28/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A157062
v.
CHLOE ALEXANDRA JAMES, (Solano County
Super. Ct. No. FCR322082)
Defendant and Appellant.
A jury found defendant Chloe Alexandra James guilty of felony child
abuse or endangering the health of a child (Pen. Code,1 § 273a, subd. (a)) and
found true the special allegation that she personally inflicted great bodily
injury on the victim, D.G., who was under five years old (§ 12022.7, subd. (d)).
The court then found James had a prior conviction of a serious felony.
(§§ 667, subds. (b)-(i), 1170.12.) She was sentenced to 18 years in prison.
On appeal, James contends (1) defense counsel provided ineffective
assistance when he failed to move to exclude her statements to detectives,
(2) the trial court erred in refusing to allow defense counsel to ask
hypothetical questions of the defense expert witness on police interrogation
techniques, (3) the trial court erred in failing to instruct the jury, sua sponte,
that it could consider the reliability of her admission in determining her
1 Further undesignated statutory references are to the Penal Code.
1
guilt, and (4) the trial court erred in denying her Romero2 motion to strike or
dismiss her prior conviction for sentencing purposes. James also asks this
court to review the trial court’s pretrial ruling on her Pitchess3 motion.
The Attorney General concedes the matter should be remanded for the
trial court to exercise its discretion on the Romero motion, and we agree with
the parties on this issue. We will order a limited remand and otherwise
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant begins babysitting D.
The G. family—mother K., father K., and baby D.—lived across the
street from defendant in Fairfield. Mrs. G. and defendant became close after
D. was born in December 2015. Defendant had a little boy, and she offered
baby clothes to Mrs. G.
When Mrs. G. decided to return to work after maternity leave, she was
unable to find daycare. Defendant was a stay-at-home mother, and she
offered to watch D. until the G.’s could arrange daycare. Mrs. G. felt
comfortable with defendant taking care of D. because she had seen how
defendant interacted with her own son and stepson4 and how she interacted
with D.
Defendant started babysitting D. fulltime at the end of April 2016.
D.’s Injury
On June 13, 2016, D. was just shy of six months old. He was not
crawling, but he could roll over from his stomach to his back. The G.’s
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
3 Pitchess v. Superior Court (1974) 11Cal.3d 531 (Pitchess).
4 Defendant had a young son, whom she described as in his “terrible
two’s” in June 2016. Defendant also lived with her fiancé and his older son.
2
dropped D. off with defendant in the morning as usual. Around 10:30 or
11:00 a.m., defendant texted Mrs. G. that D. was a little fussy. He was
teething; defendant gave him a teething ring and reported he was fine.
Around 2:00 p.m., defendant texted that D. was fine and that he was a sweet
boy and liked to cuddle.
Mrs. G. picked up D. shortly before 5:00 p.m. and did not notice
anything unusual. Mr. G. came home between 5:30 and 6:00 p.m. Mr. G.
happened to touch the left side of D.’s head while holding him, and the baby
let out an alarming scream. Mr. G. had never heard a child scream like that
before. The G.’s then noticed swelling on the left side of D.’s head.
Mr. G. called defendant and asked if anything happened, and she said
no. About five minutes later, defendant called Mrs. G. and told her that she
remembered she had propped D. up in a boppy (a nursing pillow) on the play
carpet in the living room before going to the kitchen for a bottle and when she
returned from the kitchen, D. had flopped backwards out of the boppy and
was on his back screaming.
The G.’s took D. to the emergency room in Vacaville. A CT scan showed
a skull fracture, and D. was transferred by ambulance to the pediatric unit of
the Kaiser hospital in Oakland.
Dr. Shaun Fitzgerald, a pediatric hospitalist, examined D. Fitzgerald
recommended an ophthalmology exam and skeletal survey to look for other
injuries because the family’s explanation of what happened “did not
completely match the injuries that [the doctor] was observing.” He was told
that D. was on the floor and fell from a boppy, but Fitzgerald did not believe
simply falling from a seated position, even onto a hardwood floor, would
cause a skull fracture. Fitzgerald testified that swelling would begin within
hours after suffering an injury such as D.’s, but he could not determine with
3
certainty when D. had been injured. He agreed that D.’s injury was
potentially consistent with having fallen from a couch two to three feet off the
ground onto a hard surface such as a hardwood floor or brick.
Dr. Stephanie Yamout took over D.’s care after Dr. Fitzgerald’s shift
ended on the morning of June 14. She thought it would take anywhere from
“minutes to hours” to notice the swelling after D. received his injuries. In her
experience, a baby falling from sitting would not cause such a severe fracture
as D. had. Yamout agreed it was possible D.’s injuries could have been
caused by falling off a couch two or three feet high onto a hardwood floor or a
brick fireplace. She could not tell when the injury occurred.
D. stayed in the hospital for three days. X-rays showed he had three
skull fractures—two on the parietal bone on the side of the head and another
fracture on the occipital bone at the back of the head. There was also a
possible fracture of the right third rib.
About three weeks after he was discharged from the hospital, D. began
projectile vomiting and screaming. A few days later, his eyes started to
bulge. The G.’s took D. to the emergency room, and he was again transferred
to the Oakland hospital. D. had surgery to place an extraventricular drain to
decrease pressure in his head. D. stayed in the hospital for 10 days. By the
time of trial in December 2018, D. was “great” according to Mrs. G.
Detectives Meet with Defendant and Question Her at the Police Station
Solano Child Protective Services received a report regarding D., and
the matter was referred to Fairfield police detective Michael Arimboanga and
his partner Adam Brunie. On June 14, Arimboanga spoke with D.’s parents,
Dr. Yamout, and a social worker at the hospital. Based on what he heard,
Arimboanga determined that he needed to speak with defendant since it
appeared she was caring for D. when he was injured.
4
Arimboanga and his partner went to defendant’s house that evening.
Arimboanga told defendant he was investigating D.’s injury and he wanted to
get her side of the story. Defendant showed him where she had placed D. in
the boppy in her home; the boppy (described as a U-shaped pillow) was on a
small rug in a living area near a brick fireplace and a couch. Arimboanga
asked defendant to come to his office for an interview, where the interview
room had a better recording system, and she agreed to do so.
In the police department interview room, Arimboanga read defendant
her Miranda rights, and then he and his partner Detective Brunie questioned
her. Arimboanga testified that he distinguishes between interviews and
interrogations, explaining that in an interview, he asks questions and gives
the person an opportunity to tell her side of the story, whereas an
interrogation is “the confrontation stage,” during which he confronts the
person by stating he does not believe what he is being told or saying
something along the lines of, “Hey, that’s not what the evidence is showing
. . . .”
Arimboanga testified the questioning of defendant began as an
interview and became an interrogation. Defendant was in the interview room
for about two and a half hours, but the detectives took long breaks.
Defendant was alone in the interview room for a total of about an hour
during those breaks. A videorecording of defendant’s interview/interrogation
was played for the jury.
Defendant’s Recorded Statements to the Detectives
At the beginning of questioning, defendant maintained she placed D.
and the boppy on the floor, and she heard D. start to cry while she was in the
5
kitchen.5 She “didn’t see anything, but just heard him crying.” Defendant
told Arimboanga, “there’s a lotta . . . crawling around” and D. “loves to bounce
back”; she had said to Mr. G., “ ‘The only thing that I can think of, is that he
probably bounced back and [hit] his head on the brick.’ ” She ran back to D.
immediately and did not notice anything unusual (no bumps or bruises), D.
“was just crying.” Asked why she did not mention the incident to Mrs. G.,
defendant responded that she “wasn’t really concerned about it because [she]
didn’t see anything” and she “didn’t think it was anything of severity.”
The detectives had defendant demonstrate how D. was placed on the
floor using the boppy and a doll (Arimboanga referred to the doll as a
simulated toddler).
Detective Brunie told defendant that D. had multiple fractures and it
was difficult to square defendant’s story with the severity of his injuries. He
wondered aloud whether defendant was “maybe leaving out a little bit more
as to what happened” because she had “that guilt of, ‘I was supposed to be
watching him.’ ” Defendant responded, “Yeah, I know.” Brunie said, “I
think—pretty much your story, your account is one hundred percent
accurate, except I think you’re leaving something out regarding maybe where
he was. I don’t necessarily think he was on the floor at the time—for
whatever the reason. That’s not a big deal. But I think you realized maybe
where he was and you don’t wanna really say, ‘Hey maybe he wasn’t really on
the floor just because I don’t want you to think I’m a bad babysitter or I
wasn’t paying attention to him.’ ” He told defendant, “Accidents happen like
that. An accident is not a crime,” and defendant said, “Right.”
5 The summary is based on both the transcript and the video itself.
6
Brunie continued, “But we need to understand fully how that accident
happened so that it doesn’t look malicious and it doesn’t look like a crime.
Does that make sense?” “It’s one thing to tell the parents, ‘Hey this is what
happened and I hope they believe me because that’s about as much of the
explanation as I wanna give ’em.’ It’s a different thing to simply tell a few
detectives that were assigned this morning deal with this. The truth
compared to what you told the parents. And it’s not to say that you’re a bad
person because of that.” The detective asked, “[A]m I dancing around the
right path?” Defendant responded, “You’re right.”
Defendant then admitted D. fell from the couch, not while he was
placed on the floor. She reported D. was crying and screaming and she
“didn’t know what to do.” She said, “I had him on the [b]oppy and I put the
[b]oppy down on the couch, put him in it, ran to get a bottle, and he fell on
the floor on the back of his head. And I picked him up and it was a little
swollen and I put ice on it, and I didn’t know what to do. Because it’s like,
you know.” She thought this happened the previous Friday (not Monday,
which was the day before the interview). Defendant said D. “projectile
vomited” all over her shirt. She showed Mrs. G. her shirt when Mrs. G.
picked up D. on Friday, and Mrs. G. said it was acid reflux.
Detective Arimboanga told defendant she had her “days mixed up”
because if D. had been injured Friday, the parents would have known
something within three or four hours, and D. “would not have made it
through the weekend.” Defendant stated she was “very distraught all day
dealing with” Mr. G. and, “it could have happened Monday.”6 Arimboanga
6Defendant explained she had been dealing with the G.’s all that day
(June 14). Mr. G. first told her that D. had a skull fracture, then right before
the detectives arrived at defendant’s house, he said it was three fractures.
7
said, “[I]f you think it happened Friday, . . . you’re wrong, it [did] not happen
on Friday.” Defendant responded, “You’re right. It happened on Monday.
He fe[l]l off the couch. I was super upset about it. I didn’t know what to do.
So I put him down—after I picked him up and put him on the [b]oppy, had
him sittin’ up, went and got his bottle and came back.”
Arimboanga asked defendant to show him again how she put D. down
on the boppy. She demonstrated and said he was “not completely secure in
the [b]oppy.” Defendant said she ran to get the bottle and heard a “thud.”
She ran back and D. “wasn’t crying,” he was “[n]ot choking, but like
struggling to breathe.” She fed him his bottle, and he threw up all over her.
She thought this happened around 4:00 p.m. after D. woke up from his
afternoon nap. Defendant emphasized that she was “really scared” and it
was a “complete accident.”
Arimboanga told defendant he needed to take a break to talk to his
boss. He asked whether defendant wanted water or something. Defendant
declined but asked if she could see her son. (It is evident from the video of
the interview that defendant’s son and fiancé were at the police station close
by the interview room.) Arimboanga said, “[G]ive us a few seconds ‘cause
we’re almost done here.” The detectives then left defendant alone in the
interview room for more than 30 minutes.
After the break, defendant left to use the bathroom and returned.
Brunie asked defendant about “the level of stress in [her] life.” Defendant
talked about the stress of being a stay-at-home mother with no social
interaction; she mentioned her own son having tantrums and acting out and
She said Mr. G. was concerned “people think that he’s abusin’ his child and
we’re both in the same—it’s just.” Defendant did not finish her thought and
stated she couldn’t believe this happened.
8
frustration in her relationship with her fiancé. She said she took medicine
for depression and, “I don’t feel depressed lately but, um, I’m not happy in my
life.”
Brunie suggested defendant was frustrated on Monday because D. was
crying and because of other circumstances in her life. He offered his theory
that, given her frustration and the medical information that D. may have
fractured a rib, it was “a little bit more plausible” defendant “threw [D.] a
little bit and that’s how he tumbled.” As Brunie demonstrated with the doll
and the boppy how he thought she threw the boppy and D. together onto the
couch, defendant said, “I wouldn’t say it was like that,” referring to the
detective’s demonstration. Brunie continued describing and reenacting his
theory of what happened. “[Y]ou get up and you give him, probably enough
force to get him goin’, right? . . . and it’s kind of a one motion, you get it off
your belly, you get him too and it’s just like a . . . .”
Defendant then admitted she tossed D. onto the couch and saw him
bounce off and hit his head on the brick fireplace. She said, “Do you want me
to show you like sitting here? And I got up and like you showed and I’m not
throwing him, but just tossed him right here and he bounced and his butt
bounced off that and hit [the] brick and then he landed right here. [¶] . . .
[¶] And I just said, ‘Oh shit.’ ” Defendant described D. as falling backwards,
and she thought he would land on the pillows but “he bounced off his butt
and hit his head . . . on the brick right about when I was—after I was walking
away and then hearing the thud, ran back and propped him on the boppy
pillow right there and went to finish to get his bottle.” She told the detectives
that D. was trying to gasp for air and then he cried and cried. When she
picked him up, he threw up all over her. Defendant panicked and admitted
9
she downplayed the incident when describing it to Mrs. G. because she was
“really scared that something could really . . . be wrong.”
Defendant again admitted she “tossed” D., stating that she did not tell
her fiancé “that I had tossed him because I didn’t want him to pass judgment
on me and be like, ‘Um, what [were] you thinking?’ ” She said her frustration
was with life in general and D. “wasn’t [her] target of frustration at all.”
Defense
The defense called one witness, Professor Richard Leo, as an expert in
“social psychology, criminology, and the specific study and practice of police
interrogation and psychological coercion.” Leo explained that in the past,
police interrogations could be physically violent, but “today, it’s all
psychological.” He testified that police officers in the United States typically
are trained in specific psychological interrogation techniques and methods,
which are designed to “break down the denials and move the suspect to
admission.”7
Leo testified the goal of interrogation is to influence suspects to confess.
There are two steps to reach this goal. First, “convince the suspect that they
are caught” and “all the evidence establishes their guilt, there is no way out
of the situation.” Second, convince the suspect “it’s in their self-interest” to
confess, that “the best choice they have is to stop denying and start admitting
to the crime they are being accused of in the interrogation.”
Leo described interrogation as “a very repetitive activity” and identified
the following “basic techniques”: isolate the suspect; develop rapport over
7 Like Arimboanga, Leo distinguished between interviews, which he
said are “more like a conversation,” and interrogation, which “is much more
goal directed, much more accusatory, and involves these techniques” he was
testifying about.
10
time; give Miranda warnings if the suspect is in custody and then “accuse
them of committing the crime, accuse them of lying when they den[y]
committing the crime,” and challenge the suspect’s denials as implausible or
inconsistent with the evidence; use “personal pressure” to raise “anxiety or
make the suspect think it is the only opportunity they will have to . . .
minimize the damage of the situation”; appeal to the suspect’s self-interest in
moral, religious, psychological, or legal terms, for example, by focusing on
how “what they say will influence other people in a favorable or not favorable
way”; and “come up with two scenarios, both of which involve the suspect
committing the act,” giving a good choice (it was an accident or self-defense)
and a bad choice (it was premeditated).
He elaborated that suspects are made to think conviction is inevitable
and “they need to give an account or agree to the account the interrogator
suggested that minimizes their damage, even if they were not involved in a
crime or the facts are different than what they are being accused of.”
Leo testified that, unless a suspect confesses right away, interrogators
necessarily use psychological pressure and manipulation. He said there are
two risks to the use of psychologically coercive interrogation techniques.
“One is that you elicit an involuntary confession against the suspect’s will.
And the other is that you elicit an unreliable confession, which could be
partially unreliable or false.” “It could be that somebody had some
involvement in a crime, but their confession overstates their involvement; or
they did the physical act, but they confessed to a false mental state. So you
can have a partially true and partially false confession, and that would be
unreliable in varying degrees.”
There are situational and individual factors that increase the risk of
eliciting a false confession. Situational risk factors include the use of false
11
evidence, the “use of minimization that communicates or implies . . . leniency
in exchange for confession,” long interrogations that go six hours or more, and
sleep deprivation. Individual risk factors include being a juvenile or having a
“highly suggestible personalit[y]” and “being an obedient personality.”
Leo testified that there was no dispute that false confessions occur. In
cross-examination, he testified that the conventional wisdom was most
confessions are true or partially true and false confessions are rare, “but we
don’t know how rare. [One] percent, 5 percent, 10 percent, we don’t know.”
In his closing argument, defense counsel argued defendant left D. on
the couch, the baby fell off the couch and hit his head, and what occurred was
“a terrible accident,” not a crime. He told the jury Detective Arimboanga had
good intentions, but in wanting “to hold accountable somebody for the
injuries to a little child,” the detective “turned what was an accident into
something it wasn’t.”
Defense counsel asserted, “You heard the testimony of Dr. Leo. After
hearing that testimony and after hearing about how police interrogations
work, and after hearing the testimony of this detective here, I submit to you
that there’s obviously reasonable doubt here, very obvious.” He pointed out
the techniques the detectives used that Leo had described and argued, “My
client didn’t enthusiastically adopt their theory. [¶] At a certain point, she
had enough and she slumped her head down and said, ‘Yeah.’ The next thing
she did was yawn. She wanted out of there. After being told by this detective
so many times that obviously he believed it was an accident, she thought this
was her way out. Because an accident is not a crime, right. But turns out he
was lying. He tricked her.”
12
DISCUSSION
A. Defense Counsel’s Failure to Move to Exclude Statements
Defendant contends defense counsel provided ineffective assistance
because he did not file a pretrial motion to exclude her statements to the
detectives on the ground they were involuntary.
“On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance are more
appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013)
57 Cal.4th 986, 1009; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264,
266–267 [habeas corpus is the more appropriate procedure to address an
ineffective assistance of counsel claim because it may include evidence of an
attorney's reasons for making the complained-of decision, which is outside
the appellate record].)
Here, the record is silent as to why defense counsel failed to challenge
the admissibility of defendant’s statements based on involuntariness. To
assess whether there could be a satisfactory explanation for defense counsel’s
omission, we consider the law on involuntary confessions.
“An involuntary confession may not be introduced into evidence at
trial.” (People v. Carrington (2009) 47 Cal.4th 145, 169 (Carrington).) “The
test for the voluntariness of a custodial statement is whether the statement is
‘ “the product of an essentially free and unconstrained choice” ’ or whether
the defendant’s ‘ “will has been overborne and his capacity for self-
determination critically impaired” ’ by coercion.” (People v. Cunningham
(2015) 61 Cal.4th 609, 642 (Cunningham).) The question of voluntariness is
13
determined under the totality of the circumstances. (Ibid.) Relevant
considerations include “ ‘ “the crucial element of police coercion,” ’ ” the length
and location of the interrogation, and the defendant’s traits, including her
age, education, and physical and mental health. (Id. at pp. 642–643; see also
In re Elias V. (2015) 237 Cal.App.4th 568, 577–587 [discussing psychological
interrogation techniques and recognizing the danger of false confessions].)
“Coercive police conduct includes physical violence, threats, direct or
implied promises, or any other exertion of improper influence by officers to
extract a statement.” (People v. Battle (2021) 11 Cal.5th 749, 790.) Our
Supreme Court has explained that “ ‘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.’ ” (People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway).) But
“ ‘[o]nce a suspect has been properly advised of his rights, he may be
questioned freely so long as the 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.’ ” (Ibid.; accord
People v. Spencer (2018) 5 Cal.5th 642, 674 [quoting Holloway]; Carrington,
supra, 47 Cal.4th at p. 170 [same].)
“ ‘In assessing allegedly coercive police tactics, “[t]he courts have
prohibited only those psychological ploys which, under all the circumstances,
are so coercive that they tend to produce a statement that is both involuntary
and unreliable.” ’ ” (Cunningham, supra, 61 Cal.4th at p. 643.) The mere fact
that the police lie to a suspect during questioning does not render the
suspect’s statements involuntary. (People v. Chutan (1999) 72 Cal.App.4th
1276, 1280.) “Police officers are . . . at liberty to utilize deceptive stratagems
14
to trick a guilty person into confessing. The cases from California and federal
courts validating such tactics are legion.” (Ibid., citing cases.)
Defendant asserts on appeal that the detectives used coercive tactics
that overcame her will. She cites the following conduct as evidence of
coercion. The questioning began with the detectives stating defendant was
not under arrest. She was then read her Miranda rights in “a low-key
manner . . . consistent with the [detectives] never informing [her] that she
potentially faced criminal charges stemming from the incident.” At one point,
defendant asked to see her son, and the detectives did not allow it. She was
left alone when the detectives took long breaks. Detective Brunie told
defendant he generally believed her account except for the part about D.
being on the floor. He said it was “not a big deal” and, “Accidents happen like
that. An accident is not a crime.” The detectives repeatedly told defendant
they believed the injury was an accident. Brunie “became aggressive” when
defendant said the accident occurred Friday rather than Monday. Brunie
asked about how frustrated, depressed, and stressed out she was at the time.
Defendant claims there was ample basis upon which defense counsel
could have argued her statements should be excluded as involuntary. But
defense counsel reasonably could have determined otherwise. First, the
questioning in this case was not inherently coercive. The detectives did not
threaten harm or falsely promise benefits. Rather, they confronted defendant
with facts that appeared to contradict her version of events and suggested a
theory of events. These tactics are permissible. (Holloway, supra, 33 Cal.4th
at p. 115.) In particular, “suggestions that the [incident] might have been an
accident . . . were not coercive; they merely suggested possible explanations of
the events and offered defendant an opportunity to provide the details of the
crime. This tactic is permissible.” (Carrington, supra, 47 Cal.4th at p. 171.)
15
Second, the interrogation was not unusually lengthy, and the setting was not
physically harsh. (See People v. DePriest (2007) 42 Cal.4th 1, 35 [rejecting a
claim of involuntariness where the defendant “was not worn down by a
lengthy interrogation or deprived of human comforts or necessities”].)
The test for voluntariness includes consideration of the defendant’s
traits, but defendant was a 26-year-old adult. (Cf. In re Elias V., supra, 237
Cal.App.4th at p. 578 [juveniles are more suggestible than adults].) Defense
expert Leo testified suggestible and obedient personalities were risk factors
for eliciting a false statement, but no evidence was offered that defendant
had such personality traits. Nor was evidence presented that she was of low
intelligence or low educational attainment. (Cf. Procunier v. Atchley (1971)
400 U.S. 446, 453–454 [“Low intelligence” of the suspect relevant “in
establishing a setting in which actual coercion might have been exerted to
overcome the will of the suspect”]; People v. Cahill (1994) 22 Cal.App.4th 296,
317 [relying on the facts the defendant was an 18-year-old “whose education
extended only to the eighth grade” in determining law enforcement
questioning amounted to an improper promise].) Defendant claims it was
“clear” that the detectives were aware she suffered from bipolar disorder and
depression and that they “were likely capitalizing on that when they
repeatedly suggested that she was frustrated and stressed.” But defendant
did not provide a citation to the appellate record on this point, and we see no
mention of bipolar disorder in the interview/interrogation.8
8 Elsewhere in defendant’s opening brief, she refers to her diagnosis of
bipolar disorder with a record cite, but it is to a pretrial services report,
which in turn references what defendant said about her mental health issues
in a “probation interview,” not in the interrogation by the detectives.
16
In People v. Lucas (1995) 12 Cal.4th 415 (Lucas), habeas corpus
granted in part on other grounds in In re Lucas (2004) 33 Cal.4th 682, the
defendant argued he received ineffective assistance of counsel in the guilt
phase when his trial counsel failed to challenge the admission of his
statements based on alleged involuntariness. (Id. at p. 441.) Our Supreme
Court rejected this argument citing, among other things, that the defendant
did not claim at trial that the allegedly coercive tactics overrode his will to
resist. (Id. at p. 442.)
Similarly, in this case, defendant points to nothing in the record
showing that defendant herself claimed that her will was overborne by the
detectives’ tactics. Indeed, the record does not foreclose the possibility that
defense counsel discussed the issue with defendant and she did not believe
her will was overborne. “[A]n attorney naturally must assess his or her
client’s account of the interrogation in order to determine the plausibility of a
claim that statements were involuntarily obtained. Counsel here may have
concluded their client’s account would not support such a claim in this
instance.” (Lucas, supra, 12 Cal.4th at p. 442.) On this record, we cannot say
there could be no satisfactory explanation for defense counsel’s omission. It
is possible defense counsel chose not to file a motion to exclude defendant’s
statements on the ground of involuntariness because counsel reasonably
believed such a motion had “little or no basis.” (Ibid.; see People v. Price
(1991) 1 Cal.4th 324, 387 [“Counsel does not render ineffective assistance by
failing to make motions or objections that counsel reasonably determines
would be futile”].)
Defendant, however, argues the defense theory at trial was predicated
on the contention that her statements “were involuntary because her will was
overborne by the coercive interrogation techniques employed by [the
17
detectives],” so defense counsel could have no reason not to raise the same
contention in a pretrial motion to exclude the statements.9 But defense
counsel did not argue to the jury that defendant’s will was overborne during
the interrogation such that her statements were involuntary; rather, he
argued her statements communicating agreement with the detectives’ theory
that she tossed D. were unreliable. This is a different argument. Even when
a defendant’s statement is admissible because it was voluntarily made,
“ ‘evidence surrounding the making of [the statement] bears on its
credibility.’ ” (Crane v. Kentucky (1986) 476 U.S. 683, 688 (Crane).) In Crane,
the United States Supreme Court observed, “[E]ntirely independent of any
question of voluntariness, a defendant’s case may stand or fall on his ability
to convince the jury that the manner in which the confession was obtained
casts doubt on its credibility.” (Id. at p. 689, italics added.) Thus, there is
nothing contradictory or inherently unreasonable in defense counsel
9 Defendant notes that during a pretrial discussion of a discovery
motion regarding Dr. Leo’s testimony, the trial court asked defense counsel
whether he was moving to exclude defendant’s statements as involuntary,
given that defense briefing on the defense expert witness indicated Leo could
testify on “the phenomenon of false confessions” to show the detectives’
interrogation techniques “created a risk of false and involuntary confession.”
(Italics added.) Defense counsel responded that he was not. The trial court
asked, “So at this point, you’ve actually simply offered [Leo’s testimony] . . .
on the issue of . . . [the] second prong, the reliability portion; correct?”
Defense counsel responded, “Correct, your Honor.” Recall that psychological
interrogation tactics are only prohibited when “ ‘ “they tend to produce a
statement that is both [(1)] involuntary and [(2)] unreliable” ’ ” under the
circumstances. (Cunningham, supra, 61 Cal.4th at p. 643.) As discussed
above, defense counsel may have had a satisfactory reason for believing he
could not establish defendant’s statements to the detectives were involuntary
(and, therefore, a motion to exclude would have been futile). Yet, at the same
time, defense counsel could reasonably have believed a defense based on the
unreliability of defendant’s statements was viable under the circumstances.
18
determining that a pretrial motion to exclude based on involuntariness would
be futile and then presenting evidence and arguing to the jury that
defendant’s statements were, nonetheless, “ ‘unworthy of belief.’ ” (Id. at p.
689.)
B. Court Ruling Regarding Questioning Expert Leo
Next, defendant contends the trial court committed prejudicial error
“when it refused to allow defense counsel to examine his expert witness
through the use of hypothetical questions, thereby violating [defendant’s]
rights to due process of law, to present a complete defense and to a fair trial.”
1. Procedural Background
Well before trial, defense counsel sent the prosecutor an email with the
subject line “Witness Statement Disclosure,” describing defense counsel’s
interaction with defense expert witness Dr. Leo. Defense counsel wrote that
he “had a very brief conversation” with the expert, during which Leo
informed him, “based on his review of the material . . . (including the
recorded interrogation and police reports), he believed that the police used
interrogation methods and/or techniques known to cause false confessions
and therefore he could provide material testimony at the trial in this case.”
Defense counsel provided the expert’s CV but told the prosecutor that Leo
had not prepared a report and that counsel would not be requesting one
because it was not essential to preparing for trial and would result in
unnecessary expense.
The People filed a discovery motion requesting a court order that
defense counsel “immediately turn over any handwritten notes (or other
statements) from Dr. Leo,” and if there was no discoverable information, the
People sought exclusion of Leo’s testimony “for lack of relevancy.”
19
The defense filed an opposition arguing Leo’s testimony was necessary
to explain the phenomenon of false confessions and to counter commonly held
misconceptions that would otherwise lead jurors to underestimate the
possibility that a suspect would confess to a crime she did not commit.
Defense counsel argued evidence bearing on the reliability of defendant’s
statements to the detectives was relevant and admissible, citing Crane,
supra, 476 U.S. 683 and People v. Page (1991) 2 Cal.App.4th 161 (Page). The
opposition stated Leo would testify on (1) “general psychology factors and
interrogation techniques which might lead to an unreliable confession” and
(2) “specific evidence in [defendant] James’ taped statement which indicates
that those psychological factors and interrogation techniques were present in
this case,” but he would not testify that defendant’s statements were false.
The trial court heard argument on the matter after the trial started.
The prosecutor accused defense counsel of gamesmanship in failing to
produce any documentation on what Leo would testify to and requested the
court exclude the witness. Defense counsel responded that the prosecution
knew everything about Leo that he knew and said, “I don’t have anymore
information that I haven’t given to them.” He denied any gamesmanship,
explaining it was “simply an economic reality and there’s no requirement . . .
[of] a report.”
The court stated its ruling. It considered two categories of proposed
testimony from the defense expert: (1) general testimony “to educate the jury
about . . . myths” regarding false confessions, and (2) testimony “about what
[Leo] saw on the video and his conclusions based on that.” The court ruled
the first category of testimony would be allowed but the second category
would not.
20
As to the first category, testimony on police interrogation techniques in
general, the court found the proffered evidence “perfectly acceptable,” citing
Page, supra, 2 Cal.App.4th 161.
As to the second category, testimony on the specifics of defendant’s
interrogation, the court reasoned: “[Defense] counsel’s indicated he doesn’t
know what [Leo is] going to say in that regard. There’s no report . . . so it’s
speculation as to what he’s going to say. I don’t know if he’s going to say
anything relevant. I don’t know if he’s going to say anything that’s probative,
and when I weigh that against undue consumption of time, this unknown
testimony has very little probative value, as far as I’m concerned. [¶] Maybe
it would be great testimony; maybe it wouldn’t be; but when I’m doing a 352
balancing analysis, an unknown testimony to my mind has little probative
value and may just be a waste of time. So under those facts, I’m not going to
allow him to come in and say he saw [defendant’s] video; point out at this
specific point, this officer used this technique, etc.”10
The court elaborated on its evidentiary ruling: “[Dr. Leo is] not to
mention that he’s reviewed the videos; that he’s seen the videos. He’s to—his
testimony in this regard is well-known, so I don’t want him to shade his
testimony towards what he knows in the video. He’s to play it straight and
inform the jury as to these factors, and then it will be up to both counsel to
make the argument—‘cause some factors might apply; some factors might not
apply. You can each make your pitch to the jury as to that regard.”
10 Although the parties did not mention Evidence Code section 352 in
their motion papers, they undoubtedly understood “352 balancing” to refer to
the court’s discretion under section 352 to “exclude evidence if its probative
value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.”
21
Defense counsel asked the court, “So I just want to clarify what the
Court’s ordering. What I’m understanding is the Court is not going to allow
the expert to testify about his analysis of the facts in this case; correct?” The
court confirmed this was correct.
Then defense counsel asked, “I just want to make sure that I’m going to
be able to ask hypotheticals that may mirror the facts.”
The court responded, “No; because—and the reason why is because I
know he’s seen the videos. So . . . I’m familiar with some of this testimony—
you know. They’ll talk about, you know, how long you leave somebody in
there. So, you know, don’t ask him a hypothetical of this and this fact, but
ask him—you would be certainly well to say, well, what’s the range where
you see this effect come into play? I don’t want you to put the direct facts of
this case in front of him, because he knows those direct facts. [¶] So I think
you can get what you want; you just have to be careful the way you get
there.”
The court further instructed, “You can ask him about [the factors you
look for in a false confession] in general, but what I don’t want you to do is
say to him, okay, we got a confession, an alleged confession that took two-
and-a-half hours. There were two officers here. They did bad cop/good cop.
What’s the combination of those three factors? What does that look like to
you? You’re going to have to make that argument yourself. So you could
have him identify all the factors, explain how they might relate to each other,
but he’s not going to give the conclusion. You’re going to argue that.”
2. Analysis
Defendant claims the trial court erred in ruling defense counsel could
not pose hypothetical questions to expert witness Leo.
22
As a preliminary matter, the Attorney General argues defendant has
forfeited this appellate challenge to the trial court’s evidentiary ruling
because, after the court stated defense counsel could not ask hypothetical
questions of Leo, defense counsel neither objected nor made an offer of proof
regarding the hypothetical questions he wanted to ask.
To preserve an appellate challenge to the exclusion of proffered
evidence, the proponent must “ma[k]e known to the court” “[t]he substance,
purpose, and relevance of the excluded evidence.” (Evid. Code, § 354, subd.
(a); People v. Ramos (1997) 15 Cal.4th 1133, 1178.) In People v. Fauber
(1992) 2 Cal.4th 792, for example, the appellant argued for the first time on
appeal that the trial court erred in excluding certain evidence as hearsay
because the evidence was relevant for a nonhearsay purpose. (Id. at p. 854.)
Our high court concluded the appellant was “precluded from complaining on
appeal” because defense counsel did not “specifically raise this ground of
admissibility” at trial. (Ibid.)
In this case, the trial court ruled that hypothetical questions would not
be allowed after it had ruled Leo would not be allowed to identify specific
techniques used in defendant’s interrogation because defense counsel could
not make an offer of proof (as counsel did not “know what [Leo was] going to
say in that regard”) to establish relevance.
Defendant now contends for the first time on appeal that the trial court
erred in prohibiting hypothetical questions that mirrored the facts of her
interrogation because the California Supreme held in People v. Vang (2011)
52 Cal.4th 1038, that an expert properly may “express an opinion, based on
hypothetical questions that track[ ] the evidence.” (Id. at p. 1048.)
Defense counsel, however, did not “specifically raise this ground of
admissibility” before the trial court. (People v. Fauber, supra, 2 Cal.4th at p.
23
854.) Nor is this contention necessarily responsive to the court’s reasoning
that questions related to the particular facts of defendant’s interrogation
would not be allowed because defense counsel failed to establish relevance.
The Attorney General argues, “It is therefore not surprising that while in this
Court [defendant] argues that the trial court abused its discretion in not
permitting defense counsel to ‘use hypothetical questions’ with Dr. Leo ‘to
elicit testimony regarding the circumstances of this particular case’ . . .,
[defendant] never sets forth any such hypothetical questions or specifies the
circumstances of this case that the court should have permitted Dr. Leo to
testify about.” On this record, we agree with the Attorney General that
defendant’s claim is forfeited.
In any event, defendant’s claim also fails on the merits.
Expert witnesses are limited to opinion testimony “[r]elated to a subject
that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) “ ‘The trial court
has broad discretion in deciding whether to admit or exclude expert
testimony [citation], and its decision as to whether expert testimony meets
the standard for admissibility is subject to review for abuse of discretion.’ ”
(People v. Duong (2020) 10 Cal.5th 36, 60.)
Here, the trial court’s initial ruling that Leo could not identify the
specific techniques used by the detectives in defendant’s interrogation (the
second category of proposed testimony) comports with Page, supra, 2
Cal.App.4th 161, a case that defendant herself relied on in her brief in the
trial court opposing the People’s motion to exclude Leo.
In Page, the defendant intended to call an “expert on persuasion and
conformity” and proposed three general categories of testimony: (1) “the
general psychological factors which might lead to an unreliable confession”;
24
(2) identification of particular elements in the taped police interrogation
“which indicated that those psychological factors were present” in the
defendant’s interrogation; and (3) the expert’s opinion on the reliability of the
defendant’s confession. (Page, supra, 2 Cal.App.4th at pp. 180, 183.) The
trial court restricted the expert testimony to the first category only. (Id. at p.
183.)
The Court of Appeal held the trial court acted within its discretion in
excluding the second category of testimony because such testimony would not
be necessary once the first category of testimony was fully presented. The
court reasoned that after an expert educates the jurors on the expert’s subject
matter, “ ‘the factual issues in the case become ones that the jurors can
answer as easily as the expert.’ In other words, an expert’s thorough
description of the general principles to be applied in a given case may make
additional (and more specific) expert testimony superfluous. [Citations.] In
such a case, ‘ “[t]here is no necessity for [additional expert] evidence, and to
receive it would tend to suggest that the judge and jury may shift
responsibility for decision to the witness[ ].” ’ ” (Page, supra, 2 Cal.App.4th at
p. 189.)
The Page court continued, “[I]n the present case, [the expert] outlined
the factors which might influence a person to give a false statement or
confession during an interrogation. Having been educated concerning those
factors, the jurors were as qualified as the professor to determine if those
factors played a role in Page’s confession, and whether, given those factors,
his confession was false. [¶] In sum, we conclude the trial court did not abuse
its discretion when it limited [the defense expert]’s testimony” to the first
category of proposed testimony. (Page, supra, 2 Cal.App.4th at pp. 188–189.)
25
In this case, defense expert Leo testified at length about interrogation
techniques and the potential for unreliable admissions—his testimony spans
over 60 pages of reporter’s transcript, in a trial that involved only three days’
of witness testimony.11 Following the reasoning of Page, the trial court did
not abuse its discretion in excluding hypothetical questions that mirrored the
facts of defendant’s interrogation because such questions were not necessary
once Leo thoroughly educated the jury on psychological interrogation
techniques.
Defendant’s reliance on People v. Vang, supra, 52 Cal.4th 1038, on
appeal is unavailing. There, our high court held only that it was permissible
for a gang expert to “express an opinion, based on hypothetical questions that
tracked the evidence, whether the assault, if the jury found it in fact
occurred, would have been for a gang purpose.” (Id. at p. 1048.) In doing so,
the court disagreed with the appellate court, which held it was error to allow
such hypothetical questions. (Id. at p. 1041.) Of course, the Vang court did
not hold that trial courts are required to allow hypothetical questions of
experts in all cases. Nor did the court purport to limit the trial court’s broad
discretion regarding the admissibility of expert opinion generally. In short,
nothing in Vang undermines Page or our analysis.
Finally, we reject defendant’s constitutional claims that the exclusion of
hypothetical questions denied her the rights to present a complete defense
and to a fair trial.” Here, as in Page, the defense was allowed “to thoroughly
explore the physical and psychological environment in which the confession
was obtained” and the defense expert was allowed “to testify as to the
11Leo’s testimony took up a good share of that time. Leo was the first
witness called on the second day of trial, and his testimony continued after
the lunch break.
26
psychological factors which could lead to a false confession”; under these
circumstances, the trial court’s limitation on the expert’s testimony did not
amount to a violation of the constitutional right to present a complete
defense. (Page, supra, 2 Cal.App.4th at pp. 185–186.)
C. Jury Instructions
Defendant argues she was entitled to an instruction advising the jury
that it could consider the reliability of her statements in determining guilt,
and the trial court erred in failing to so instruct the jury sua sponte or,
alternatively, defense counsel was ineffective in failing to request a pinpoint
instruction. We find no prejudicial error.
1. The Trial Court’s Sua Sponte Duty to Instruct
“In criminal cases, even in the absence of a request, a trial court must
instruct on general principles of law relevant to the issues raised by the
evidence and necessary for the jury’s understanding of the case.” (People v.
Martinez (2010) 47 Cal.4th 911, 953.)
The court’s duty to instruct, however, does not extend to “ ‘specific
points or special theories which might be applicable to a particular case,
absent a request for such an instruction.’ ” (People v. Ramsey (2000) 79
Cal.App.4th 621, 630.) If “ ‘an instruction relates “particular facts to the
elements of the offense charged,” it is a pinpoint instruction and the court
does not have a sua sponte duty to instruct.’ ” (People v. Garvin (2003) 110
Cal.App.4th 484, 489; accord People v. Anderson (2011) 51 Cal.4th 989, 996–
997 [when a defendant attempts to negate or rebut the prosecution’s proof of
an element of the offense, the trial court has no sua sponte duty to give a
pinpoint instruction relating the defendant’s evidence to the elements of the
offense].)
27
On appeal, defendant claims the trial court should have instructed the
jury that it “was required to determine if [her] statements [to the detectives]
were reliable and credible in light of the manner by which they were
obtained.” This proposed instruction relates particular evidence presented at
trial (the videotaped interrogation, Dr. Leo’s testimony) to the elements of the
offense. Thus, it is pinpoint instruction, and the trial court had no sua sponte
duty to give it. (People v. Garvin, supra, 110 Cal.App.4th at p. 489; People v.
Anderson, supra, 51 Cal.4th at pp. 996–997.)
2. Ineffective Assistance of Counsel
In the alternative, defendant argues defense counsel was ineffective in
failing to request a pinpoint instruction.
It is well established that to prevail on a claim for ineffective assistance
of counsel, a defendant must show (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) prejudice, that is, a reasonable
probability that the result of the proceeding would have been different absent
the alleged error. (Strickland v. Washington (1984) 466 U.S. 668, 693; People
v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
Here, even if we assume it was unreasonable for defense counsel not to
request a pinpoint instruction along the lines proposed on appeal, defendant
has failed to show prejudice.
The jury in this case was given CALCRIM No. 358 on evidence of
defendant’s statements: “You have heard evidence that the defendant made
an oral or written statement before the trial. You must decide whether the
defendant made any such statement, in whole or in part. If you decide that
the defendant made such a statement, consider the statement, along with all
28
the other evidence, in reaching your verdict. It is up to you to decide how
much importance to give to the statement.”12 (Italics added.)
As we have described, Leo testified at great length about interrogation
techniques and the potential for unreliable admissions. In their closing
arguments, both the prosecutor and defense counsel focused the jury on the
reliability of defendant’s statements to the detectives and the circumstances
of the questioning.13 Defense counsel suggested defendant was nervous and
scared in the interview room. He urged the jury to watch the video again and
argued it would show that defendant “disaffirm[ed]” the detectives’
12 The trial court also instructed the jury with CALCRIM No. 357 on
adoptive admissions as follows: “If you conclude that someone made a
statement outside of court that accused the defendant of the crime or tended
to connect the defendant with the commission of the crime and the defendant
did not deny it, you must decide whether each of the following is true: [¶] 1.
The statement was made to the defendant or made in her presence; [¶] 2.
The defendant heard and understood the statement; [¶] 3. The defendant
would, under all the circumstances, naturally have denied the statement if
she thought it was not true; [¶] AND [¶] 4. The defendant could have denied
it but did not.
“If you decide that all of these requirements have been met, you may
conclude that the defendant admitted the statement was true. If you decide
that any of these requirements has not been met, you must not consider
either the statement or the defendant’s response for any purpose.”
13 The prosecutor told the jurors they had the opportunity to watch the
entire interview and urged them to look at defendant’s demeanor. She said,
“When someone tells a lie, they have different versions of the lie. When you
tell the truth, there’s only one truth. [¶] In this case, when the defendant
was interviewed by the officers, she came in, she was giggling, she was joking
about her weight. So clearly she was comfortable in her environment.”
Later, she pointed out the video shows that defendant “grabs the doll herself
and she demonstrates what she did with [D.] . . . and this is not something
the police say, she tells you herself that she got up, she tossed [D.] and his butt
hit the edge of the couch.” (Italics added.)
29
suggestion she threw D. and that she “said no, it didn’t happen like that. She
didn’t toss the child. That’s what she was saying.” Referring to Leo’s
testimony on how police interrogation works, defense counsel argued that
defendant “didn’t enthusiastically adopt [the detectives’] theory” and that the
detectives “tricked” her.
The jury was instructed, “It is up to you to decide how much
importance to give to the [defendant’s] statement.” Given the jury
instructions, evidence, and closing arguments in this case, we agree with the
Attorney General that the jury undoubtedly understood that it had to decide
whether defendant’s inculpatory statements to the detectives were reliable.
Defendant has not persuaded us that a pinpoint instruction telling the jury it
was required to determine whether defendant’s statements “were reliable
and credible in light of the manner by which they were obtained” would have
made any difference in the outcome. Under these circumstances, defendant’s
claim of ineffective assistance of counsel fails because she has not established
prejudice.
D. Romero Motion
1. Procedural Background
Defendant was convicted of felony child abuse (§ 273a, subd. (a)) with
an enhancement for great bodily injury (§ 12022.7, subd. (d)). She was also
found to have a prior serious felony conviction; in October 2012, she was
convicted in Napa County Superior Court of first-degree burglary (§ 459).
The trial court sentenced defendant to 18 years in prison—the
aggravated term of six years, doubled due to the prior strike conviction, plus
a six-year enhancement for great bodily injury.
30
On appeal, defendant challenges the trial court’s denial of her Romero
motion to strike the prior conviction. She does not challenge the imposition of
the upper term or the six-year enhancement.
According to the probation report, defendant’s prior conviction for
burglary “involved [defendant] entering her friend’s house to steal an iPad
from her friend and a debit card belonging to an acquaintance. She admitted
to using stolen property to receive Oxycontin.” Defendant stated she took
OxyContin for a year before “she got clean” in August 2012, and she has
maintained her sobriety since then. Defendant had another prior felony
conviction, for possession of stolen property (§ 496), also from October 2012.
These crimes were committed when defendant was 22 years old.
Defendant filed a “Romero/Williams request.”14 She asked the court to
consider that she “was a young mother that was baby sitting for her neighbor
and had been experiencing recent stress” at the time of her current offense
and that her prior strike offense “was merely a property crime for the purpose
of fueling a drug addiction.” She urged it would serve “the interests of justice
that this young woman who is on her way to prison be given the opportunity
to reenter society at a young enough age in life where she can reestablish
herself in our society and start over after having been adequately punished
for [her] crime.”
The People opposed the motion. They noted the current offense was
defendant’s third felony conviction. The People asserted defendant “showed
no remorse and blamed her actions on others” in her prior offenses. They
concluded, “Looking at the whole picture, defendant clearly f[ell] under the
spirit and purpose of the three strikes law.”
14 People v. Williams (1998) 17 Cal.4th 148 (Williams).
31
At the hearing on the motion, defense counsel argued that defendant’s
prior burglary conviction was not violent and asked the court to strike the
prior conviction “in light of the conduct that gave rise to that prior
conviction.”
After stating it “considered the comments of counsel, the submission of
counsel,” the trial court denied defendant’s Romero motion. The court
explained its reasoning: “The legislature was clear, in terms of which felonies
they find qualify for the purposes of the three strikes law, and burglary is one
of them, rightfully so. If someone invades someone else’s house, in order to
commit a felony, it can . . . have lasting consequences to the victims. It can
also be incredibly dangerous, so the Romero motion is denied.”
2. Analysis
In ruling on a Romero motion, the trial court “must consider whether,
in light of the nature and circumstances of his present felonies and prior
serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside
the [spirit of the three strikes law] scheme[ ] . . . in whole or in part, and
hence should be treated as though he had not previously been convicted of
one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at
p. 161.) Defendant refers to these considerations as “the Williams factors.”
We review a court’s decision not to strike or dismiss a prior conviction
allegation for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367,
374 (Carmony).) “Where the record is silent [citation], or ‘[w]here the record
demonstrates that the trial court balanced the relevant facts and reached an
impartial decision in conformity with the spirit of the law, we shall affirm the
trial court’s ruling, even if we might have ruled differently in the first
instance.’ ” (Id. at p. 378.)
32
Defendant contends the trial court erred in failing to consider the
Williams factors because “its sole consideration [in deciding the motion] was
whether a first degree burglary is appropriately deemed a strike.” The
Attorney General changed its position and conceded at oral argument that
remand was appropriate in this case in light of the recently decided opinion
in People v. Avila (2020) 57 Cal.App.5th 1134.
We agree with the parties. Here, the record is not silent as to the trial
court’s reasoning in denying defendant’s motion, and the court’s
pronouncement does not demonstrate the “ ‘court balanced the relevant facts
and reached an impartial decision in conformity with the spirit of the law.’ ”
(Carmony, supra, 33 Cal.4th at p. 378.) To the contrary, it appears the court
denied the Romero motion either because the crime of residential burglary
can be “incredibly dangerous” in the abstract or because it surmised, without
evidence, that the burglary defendant committed was dangerous. In either
case, it does not appear the court appropriately considered the facts and
circumstances of defendant’s current and prior offenses and her particular
background, character, and prospects. The record here suggests defendant’s
prior crimes were related to a drug addiction to OxyContin, her criminal
history does not include any actual violence, and she cooperated with the
police in this case, circumstances that may indicate she is outside the spirit of
the three strikes law. (People v. Garcia (1999) 20 Cal.4th 490, 503; People v.
Avila supra, 57 Cal.App.5th at pp.1140–1141 [“Cumulative circumstances,
including that a defendant’s crimes were related to drug addiction and the
defendant’s criminal history did not include actual violence, may show that
the defendant is outside the spirit of the Three Strikes law”].) And
defendant’s prospects appear to be good. She reports she has addressed her
drug addiction, she is a high school graduate and trained pastry chef, and she
33
has maintained positive relationships with her family15 and her boyfriend
(previously her fiancé). On this record, we will remand to allow the trial
court to analyze defendant’s Romero motion in conformity with the spirit of
the law.
E. Pitchess Motion
Defendant filed a pretrial Pitchess motion seeking relevant information
from the personnel files of Detective Arimboanga and Detective Brunie. The
City of Fairfield Police Department provided records including personnel
folders for both detectives, and the trial court stated for the record what
documents it examined in camera. (See People v. Mooc (2001) 26 Cal.4th
1216, 1228 [in deciding a Pitchess motion, a trial court makes an appropriate
record when it “state[s] for the record what documents it examined (such
transcript, of course, to be sealed)”].) At defendant’s request, we have
reviewed the sealed transcript of the in camera proceeding. The trial court
properly swore in the custodian of records, and we find no abuse of discretion
in the court’s determination that there was no relevant information to
disclose. (See ibid. [review of a trial court’s decision on a Pitchess motion is
for abuse of discretion].)
DISPOSITION
The matter is remanded to the superior court to reconsider defendant’s
Romero motion under applicable legal principles. The judgment is otherwise
affirmed.
15Defendant submitted several letters from family members, including
one from her grandmother attesting to the attentive care defendant provided
her during her extended convalescence after surgery in 2017.
34
_________________________
Miller, J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Richman, J.
A157062, People v. James
35
Trial Court: Superior Court of Solano County
Trial Judge: Hon. William Pendergast
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and
Appellant
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General, René A.
Chacón and Bruce Ortega, Deputy Attorneys General, for Plaintiff and
Respondent
A157062, People v. James
36