People v. Swope CA3 ( 2021 )

Filed 12/30/21 P. v. Swope CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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 purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE, C091436
Plaintiff and Respondent, (Super. Ct. No. P17CRF0001)
v.
MICHAEL EDWARD SWOPE,
Defendant and Appellant.
A jury found defendant Michael Edward Swope guilty of the murder of John Doe
(count 1), assault on a child under 8 years old causing death (count 2—Pen. Code,
§ 273ab, subd. (a)),1 and three counts of felony child abuse (counts 3-5—§ 273a, subd.
(a)). The jury also found true with respect to counts 3 through 5 that defendant
1 Undesignated statutory references are to the Penal Code.
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personally inflicted great bodily injury on a child under 5 years old. (§ 12022.7, subd.
(d).)
The court sentenced defendant to 25 years to life in prison for count 2 plus a
determinate term of 12 years. The court calculated the determinate term as follows: the
middle term of 4 years plus 5 years for the enhancement on count 3, and 16 months (one-
third the middle term) plus 20 months for the enhancement on count 4. The court
imposed a concurrent term of 4 years plus 5 years for the enhancement on count 5. The
court stayed a sentence of 15 years to life on count 1 pursuant to section 654.
On appeal, defendant argues his trial counsel rendered ineffective assistance by
failing to seek suppression of: (1) his communications with his wife, and (2) his
statement to law enforcement that his daughter jumped on Doe the morning of his death.
Defendant also contends the cumulative effect of these alleged instances of ineffective
assistance requires reversal. We reject defendant’s assertions of ineffective assistance of
counsel. As such, we also reject his assertion of cumulative error. Defendant further
argues, and the People concede, that the trial court miscalculated his custody credits. In
supplemental briefing, defendant argues, and the People concede, that the matter should
be remanded for resentencing in light of recent amendments to section 654. We accept
both of the People’s concessions and will remand for the trial court to consider whether
to exercise its new discretion under section 654. On remand, the trial court shall correct
the calculation of custody credits as described in this opinion. In all other respects the
judgment is affirmed.
I. BACKGROUND
We dispense with a detailed recitation of the facts because it is unnecessary to the
issues on appeal. For context, however, we explain that Doe’s mother testified at trial.
She said she had been married to defendant for several years when she gave birth to Doe
on November 5, 2016. She and defendant have a daughter who was about two and half
2
years old when Doe was born. On the morning of December 18, 2016, defendant’s wife
found Doe in his crib, not breathing.
Three days later, defendant received a telephone call from El Dorado County
Sheriff’s detectives who wanted defendant and his wife to come in to go over more
paperwork related to Doe’s death. Defendant’s father-in-law drove the couple to the
sheriff’s substation where detectives interviewed them separately. The detectives told
defendant’s wife that her baby had died from a head injury and that he had 14 broken
ribs. At this point, she told the detectives that defendant was rough with the baby and the
baby was not his. The detectives asked her if they could put her and defendant in a room
together to see what was said. A video recording of defendant’s interview with
detectives and his discussion with his wife was played for the jury.
II. DISCUSSION
A. Alleged Ineffective Assistance of Counsel
Defendant argues his trial counsel rendered ineffective assistance in several ways.
To establish a claim of ineffective assistance of counsel, defendant must show:
(1) trial counsel’s representation was deficient because it fell below an objective standard
of reasonableness under prevailing professional norms, and (2) “resulting prejudice, i.e., a
reasonable probability that, but for counsel’s deficient performance, the outcome of the
proceeding would have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
“When examining an ineffective assistance claim, a reviewing court defers to
counsel’s reasonable tactical decisions, and there is a presumption counsel acted within
the wide range of reasonable professional assistance. It is particularly difficult to prevail
on an appellate claim of ineffective assistance. 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
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explanation. All other claims of ineffective assistance are more appropriately resolved in
a habeas corpus proceeding.” (People v. Mai, supra, 57 Cal.4th at p. 1009.)
1. Marital Communications Privilege
Defendant argues his communications with his wife “pervaded this case” and trial
counsel rendered ineffective assistance by failing to seek suppression of his statements to
his wife under the marital communications privilege.
Evidence Code section 980, subject to certain exceptions, allows one spouse to
prevent another from disclosing a communication that “was made in confidence between
him or her and the other spouse while they were spouses.”
One exception, which was identified by neither party on appeal, is set forth in
Evidence Code section 985, subdivision (a). Under this provision, there is no privilege
“in a criminal proceeding in which one spouse is charged with . . . [¶] [a] crime
committed at any time against the person or property of the other spouse or of a child of
either.” As defendant was charged with the murder of his wife’s child, any objection on
the basis of the martial communication privilege would have been futile. Defendant has
failed to establish that his trial counsel was ineffective in failing to object on the basis of
the marital communication privilege. (See People v. McPeters (1992) 2 Cal.4th 1148,
1173, superseded by statute on another ground as stated in Verdin v. Superior Court
(2008) 43 Cal.4th 1096, 1106 [“Defense counsel is not required to advance unmeritorious
arguments on the defendant’s behalf”].)
2. Defendant’s Statement to Law Enforcement
Defendant further contends his trial counsel rendered ineffective assistance by
failing to seek suppression of his statement to law enforcement that his daughter jumped
on Doe the morning of his death on the grounds that the statement was made
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involuntarily or that, by the time it was made, the interview had become custodial and no
Miranda2 warnings were provided.
The interview apparently began with detectives asking for defendant’s cell phone
and defendant giving it to them along with the password. The detectives told him more
than once that he could stop at any time. The interview lasted about four hours including
breaks.
Eventually, the detectives told defendant that Doe had a very serious skull fracture
that had to have occurred a few hours before his death. Defendant indicated this was
where his daughter had kicked Doe about a week earlier. The detectives also told
defendant they found fractured ribs that were several weeks old. Defendant said he had
told them everything he knew about the injuries. The detectives repeatedly stated they
were looking for “the truth.”
One detective told defendant he would not be arrested that day and would be
leaving on his own accord, but “somebody did something wrong. And that’s what we
need to find out. I’m not accusing you. I’m not going to accuse her. But I’m going to
accuse one of you. [¶] . . . [¶] Maybe both of you.”
Near the end of the interview, defendant said his daughter had jumped on Doe’s
head, but denied that it happened the morning of Doe’s death. Defendant said he did not
want his daughter to be blamed. He repeatedly told the detectives to blame him. The
detectives told him they wanted the truth. Eventually, a detective said he would not do
anything to defendant’s daughter. Defendant said, “Yes, but that doesn’t change my
fears.” A detective asked what defendant’s fears were. Defendant said he was afraid
they would take his daughter away. A detective replied, “I will take her – listen to me
right now. This is the most important thing I’m going to tell you all night. I will take her
2 Miranda v. Arizona (1966) 384 U.S. 436.
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away, and CPS will have her if I don’t know what the truth is. If I don’t know, if you did
or [your wife] did, and if it was intentional or accident, if I think that you did this on
purpose, you will never see your daughter again; you understand that? If you tell me
something that makes sense and you’re honest with me, then we can move forward. At
least she’d have one parent or two, that would be great. But if you sit in here and lie to
me and I don’t know what happened to your son, even if it was an accident, if I don’t
have that answer, I have a duty as a law-enforcement officer to protect your daughter,
even if it’s from you because without the truth, I don’t know who you are. I don’t know
if you’re a good guy or a bad guy.” Defendant then asked if he could have “really hurt
[Doe’s] ribs by swaddling him too tightly?” They discussed this possibility and
defendant said, “I didn’t hurt his head in any way.” A detective responded, “Then tell me
what happened so we can keep your family together. You think you[’re] protecting your
daughter, and you can do it now by telling the truth.” The other detective added, “You’re
making it worse.” Defendant apologized, said he was not a liar and then told the
detectives his daughter jumped off the coffee table onto Doe while he was on the floor
Defendant explained, “[h]e wasn’t dead. I kept checking on him. I calmed him down,
and I laid him down. Just please make me the bad guy.” A detective said the injury was
not caused by the daughter jumping. Defendant said, “I don’t have another truth” and
“[t]hen tell me what you want to hear.”
a. Miranda
We first address defendant’s alternative assertion that his trial counsel was
ineffective for failing to seek to suppress his statement that his daughter jumped on Doe
because, at least by the time he made it, the interview had become custodial and no
Miranda warning had been given. “ ‘An interrogation is custodial, for purposes of
requiring advisements under Miranda, when “a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” ’ ” (People v. Linton
(2013) 56 Cal.4th 1146, 1167.) “The test for Miranda custody is, ‘ “would a reasonable
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person have felt he or she was not at liberty to terminate the interrogation and leave.” ’
[Citation.] The objective circumstances of the interrogation are examined, not the
‘ “subjective views harbored by either the interrogating officers or the person being
questioned.” ’ ” (People v. Kopatz (2015) 61 Cal.4th 62, 80.)
“Although no one factor is controlling, the following circumstances should be
considered: ‘(1) [W]hether the suspect has been formally arrested; (2) absent formal
arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects;
and (5) the demeanor of the officer, including the nature of questioning.’ [Citation.]
Additional factors are whether the suspect agreed to the interview and was informed he or
she could terminate the questioning, whether police informed the person he or she was
considered a witness or suspect, whether there were restrictions on the suspect’s freedom
of movement during the interview, and whether police officers dominated and controlled
the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they
pressured the suspect, and whether the suspect was arrested at the conclusion of the
interview.” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404.) We disagree
with defendant’s assertion that the interview was accusatory in tone. Rather, we agree
with the People that the questions were general and neutral investigative questions.
Defendant went to the sheriff’s substation where he was interviewed by two detectives
over a period of four hours who were not dressed in uniform. Defendant was not
arrested, was told he would not be arrested, and was repeatedly told he was free to leave.
Defendant chose to hand over his phone to detectives. He did not know until the end of
the interview that the officers were not giving it back. A reasonable person would have
felt free to leave. Thus, we reject defendant’s assertion that a Miranda advisement was
required. His trial counsel was not ineffective for not seeking to suppress his statement to
law enforcement on this ground.
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b. Voluntariness
We now turn to defendant’s primary assertion that his trial counsel rendered
ineffective assistance by not seeking to exclude the statement that his daughter jumped on
Doe as involuntary. “ ‘A statement is involuntary if it is not the product of “ ‘a rational
intellect and free will.’ ” [Citation.] The test for determining whether a confession is
voluntary is whether the defendant’s “will was overborne at the time he confessed.” ’ ”
(People v. McWhorter (2009) 47 Cal.4th 318, 346-347.)
Defendant argues his statement was coerced by detectives’ threats to arrest his
wife and take away his daughter if he did not provide a satisfactory explanation. “A
confession may be found involuntary if extracted by threats or violence, obtained by
direct or implied promises, or secured by the exertion of improper influence.” (People v.
McWhorter, supra, 47 Cal.4th at p. 347.) However, “[i]n evaluating the voluntariness of
a statement, no single factor is dispositive.” (People v. Williams (2010) 49 Cal.4th 405,
436.) In addition to considering “ ‘ “the crucial element of police coercion,” ’ ” a motion
to exclude would require the court to also consider other factors, including “ ‘ “the length
of the interrogation [citation]; its location [citation]; its continuity” as well as “the
defendant’s maturity [citation]; education [citation]; physical condition [citation]; and
mental health.” ’ ” (Ibid.) As to these factors, defendant observes he was interviewed by
two detectives who had his phone for about four hours in a room at a sheriff’s substation
and no Miranda advisement was provided. We note defendant has a college degree, the
interview included breaks, and while defendant was emotional, the transcript indicates he
told his wife he did not believe the detectives’ threats:
“[Defendant]: . . . They said they’ll take [our daughter] away.
“[Wife]: They said that?
“[Defendant]: No. They’re just trying to make (inaudible).”
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“Because the question of coercion turns on the intensely factual inquiry into the
totality of the circumstances [citation], it is an especially poor candidate for first-time
consideration on appeal.” (People v. Quiroz (2013) 215 Cal.App.4th 65, 78.)
We reject defendant’s assertion that trial counsel had no rational tactical basis for
not moving to suppress.
Defendant’s argument that there was no reasonable strategy for failing to suppress
his statement that his daughter jumped on Doe on the day of his death is based solely on
his contention that the statement was prejudicial. In support of that assertion, he observes
the jury was instructed with CALCRIM No. 362 that if he made a false or misleading
statement before trial relating to the charged crime, “knowing the statement was false or
intending to mislead, that conduct may show he was aware of his guilt of the crime and
you may consider it in determining his guilt.” Further, during deliberations, the jury
asked to see his entire interview and for his testimony to be read back. The jury
rewatched the entire interview, continued their deliberations, and then changed their
minds and declined the readback. As we will discuss next, in light of the fact the marital
communications privilege did not apply, and similar evidence was introduced from other
sources, this prejudice argument fails and defendant cannot demonstrate his trial counsel
could have had no tactical reason for not seeking to exclude this particular statement to
law enforcement.
Defendant’s wife testified that he told her that their daughter had jumped on Doe
on the morning of his death for the first time when they were placed in a room together.
This was part of the video the jury rewatched. Defendant testified that he told her he was
going to tell the officers that their daughter jumped on Doe the morning he died.
Defendant offers no basis for excluding his wife’s testimony or his conversation with her
outside of the inapplicable marital communications privilege. Nor is any basis for
excluding her testimony readily apparent. (See, e.g., People v. Tate (2010) 49 Cal.4th
635, 686-687 [“Even when the suspect is in the process of a custodial interrogation,
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voluntary statements to someone the suspect does not believe is a police officer or agent,
in a conversation the suspect assumes is private” do not implicate the suspect’s Miranda
rights]; People v. Webb (1993) 6 Cal.4th 494, 526 [“ ‘Miranda forbids coercion, not mere
strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes
to be a fellow prisoner’ or ally”]; People v. Jenkins (2004) 122 Cal.App.4th 1160, 1173
[nothing improper or coercive about placing defendant and another suspect alone together
in holding cell and secretly tape-recording their conversation].) As such, the jury would
have heard his recorded statement to his wife and her testimony even if his statement to
the detectives was excluded. Moreover, defendant testified that he made up this story to
placate the detectives. In closing, his counsel also argued he made the story up in
response to the detectives’ questioning and because they threatened to take his daughter
away. Particularly given that defendant’s version of his conversation with his wife
appeared to conflict with his wife’s version, it would have been reasonable for trial
counsel to want the jury to hear this part of the interview with the detectives to support
defendant’s explanation. Defendant does not identify any other portion of the interview
that he views as damaging. Regardless of whether a motion to suppress was likely to
succeed, defendant has failed to demonstrate his counsel lacked a rational tactical
purpose for failing to make it.
Defendant’s assertions of ineffective assistance of counsel are without merit.
B. No Cumulative Error
We reject defendant’s contention that reversal is required based on the cumulative
effect of the foregoing alleged errors. “We have identified no errors; there is,
accordingly, nothing to cumulate.” (People v. Duff (2014) 58 Cal.4th 527, 568.)
C. Custody Credits
Defendant contends, and the People concede, that the trial court miscalculated his
custody credits as 1,284 days. We accept the People’s concession. Defendant was taken
into custody on December 29, 2016, and sentenced on January 31, 2020. His total actual
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credit should be 1,129 days and his conduct credit (limited to 15 percent pursuant to
section 2933.1) should be 169 days for a total of 1,298 days. On remand, the court
should correct the sentencing minute order and abstract of judgment to reflect 1,129 days
of actual custody credit plus 169 days of conduct credit.
D. Section 654
As previously set forth, the court imposed a sentence of 25 years to life for assault
on a child under 8 years old causing death (count 2) and stayed a sentence of 15 years to
life for murder (count 1) pursuant to section 654. In supplemental briefing, defendant
argues, and the People concede, that remand is required so that the trial court may
exercise its new discretion under amended section 654 regarding which of these two
counts to stay. At the time of sentencing, section 654, subdivision (a), provided that
“[a]n act or omission that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” Thus, the trial court was required to impose the sentence for assault on a
child causing death because it was the longest. On October 1, 2021, the Governor signed
Assembly Bill No. 518 (2021-2022 Reg. Sess.), which amended this provision, effective
January 1, 2022, to remove the requirement that the court impose the longest potential
term of imprisonment: “An act or omission that is punishable in different ways by
different provisions of law may be punished under either of such provisions, but in no
case shall the act or omission be punished under more than one provision.” (Stats. 2021,
ch. 441, § 1.)
The parties agree defendant is entitled to the benefit of this change in the law
under the retroactivity rule articulated in In re Estrada (1965) 63 Cal.2d 740 (Estrada).
“The Estrada rule rests on the presumption that, in the absence of a savings clause
providing only prospective relief or other clear intention concerning any retroactive
effect, ‘a legislative body ordinarily intends for ameliorative changes to the criminal law
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to extend as broadly as possible, distinguishing only as necessary between sentences that
are final and sentences that are not.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 881.) We
agree that the amendment to section 654 applies to defendant’s appeal. (See People v.
Stamps (2020) 9 Cal.5th 685, 699 [“Eliminating the prior restriction on the court’s ability
to strike a serious felony enhancement in furtherance of justice constitutes an
ameliorative change within the meaning of Estrada”].) Further, “ ‘[d]efendants are
entitled to sentencing decisions made in the exercise of the “informed discretion” of the
sentencing court. [Citations.] A court which is unaware of the scope of its discretionary
powers can no more exercise that “informed discretion” than one whose sentence is or
may have been based on misinformation regarding a material aspect of a defendant’s
record.’ [Citation.] In such circumstances, [our Supreme Court has] held that the
appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had been aware
that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
The record before us does not clearly show that the trial court would have reached
the same conclusion had it been aware of its discretion under Assembly Bill No. 518.
Accordingly, we agree with the parties that remand is appropriate in this case to allow the
trial court to exercise its new discretion as to whether to stay count 1 or 2 under section
654.
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III. DISPOSITION
The case is remanded to the trial court for it to consider whether to exercise its
discretion under Assembly Bill No. 518. The trial court is directed to correct the abstract
of judgment and sentencing minute order to reflect 1,129 days of actual custody credit
plus 169 days of conduct credit. The court shall forward a certified copy of the new
abstract of judgment to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
HULL, J.
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