Opinion
B329882
04-30-2024
THE PEOPLE, Plaintiff and Respondent, v. LUIS ANTONIO FRANCO et al., Defendants and Appellants.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant Luis Antonio Franco. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant James Hugo Davidson, Jr. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. KA127945, Victor D. Martinez, Judge. Affirmed.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant Luis Antonio Franco.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant James Hugo Davidson, Jr.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, Acting P. J.
Defendants Luis Antonio Franco and James Hugo Davidson, Jr. were convicted of conspiracy to commit murder; attempted willful, deliberate, and premeditated murder; and being felons in possession of firearms. The trial court sentenced Franco to 25 years to life plus two years and Davidson to 50 years to life plus four years in prison, and imposed certain assessments and a restitution fine against Franco.
On appeal, Franco and Davidson contend the trial court violated their due process rights by admitting inculpatory incustody statements Davidson made to undercover police agents who were posing as fellow inmates. Davidson made admissions indicating, among other things, that he was present when Franco shot the victim, Davidson handed his firearm to Franco during the incident, and Davidson knew that Franco intended to kill the victim prior to the shooting. Additionally, Franco argues the trial court erred in failing to instruct the jury that it could not convict him based solely on Davidson's statements, and that Franco's counsel rendered ineffective assistance by failing to object to the trial court's imposition of the assessments and restitution fine.
We reject Franco's and Davidson's due process claim because they do not demonstrate the undercover agents coerced Davidson into admitting his involvement in the crimes. Next, the trial court's failure to instruct the jury that it could not rely exclusively on Davidson's pretrial admissions was harmless because the victim's testimony independently supported Franco's convictions. Lastly, Franco's ineffective assistance claim fails because the trial court did not err in imposing the assessments and restitution fine without first determining whether Franco had the ability to pay them. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In describing the procedural history and trial evidence, we rely in part on admissions made by the parties in their appellate briefing, and on assertions made by the Attorney General that Franco and Davidson do not contest in their briefing. (See Williams v. Superior Court (1964) 226 Cal.App.2d 666, 668, 674 [" 'An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case.' "]; Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [" '[A] reviewing court may make use of statements [in briefs and argument] . . . as admissions against the party [advancing them].' "]; Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 & fn. 4 (Reygoza) [criminal case in which the Court of Appeal assumed that an assertion made by respondent was correct because "defendant did not dispute respondent's claim in his reply"]; Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89-90 (Rudick) [concluding that the appellants made an implicit concession by "failing to respond in their reply brief to the [respondent's] argument on th[at] point"].)
We summarize only those facts relevant to the instant appeals.
1. The information
The People filed an information charging Franco and Davidson with conspiracy to commit murder, in violation of Penal Code section 182, subdivision (a)(1) (count 1); attempted murder, in violation of sections 664 and 187 (count 2); and possession of a firearm by a felon, in violation of section 29800, subdivision (a)(1) (count 3 as to Franco and count 4 as to Davidson).
Undesignated statutory citations are to the Penal Code.
2. The People's trial evidence
In January 2022, 14-year-old C.T. was in a room at the Deluxe Motel with Franco, Davidson, Marie, and Gloria. C.T. and Marie had a physical altercation inside the motel room, which ended when someone pulled C.T. off Marie. After the fight concluded, Davidson told C.T. to get her" 'ass in the car.'" Although C.T. did not want to leave, Davidson forced C.T. out of the motel room with Franco's assistance. At some point before they forced her out of the room, C.T. had observed Davidson and Franco were carrying handguns.
Davidson got into the driver's seat of a U-Haul truck, Franco sat in the passenger seat, and C.T. sat in between them. While in the truck, Davidson gave C.T. a lecture about getting into fights. C.T. fell asleep during the truck ride.
C.T. awoke and realized that the truck was parked somewhere in the mountains. Franco and Davidson were talking outside the truck. Franco approached the truck and asked C.T. for her assistance in getting something out of the back of the vehicle. C.T. and Franco subsequently carried a seat to the other side of the road. As a car passed by, Franco told C.T. to get down.
Franco thereafter pointed his firearm at C.T.'s face from about five feet away and fired at her; the bullet struck C.T. in her right eye. Franco shot C.T. three more times in her stomach and once in or near her shoulder. C.T. lay on the ground and pretended to be dead. Franco ran back to the truck, and Davidson and Franco drove away.
With the assistance of a motorist who later drove by, C.T. left the area and ultimately obtained medical care at a hospital. C.T. lost her right eye, and has since worn a prosthetic eye. On appeal, Franco and Davidson acknowledge the People introduced evidence that after the incident, C.T. also had a bullet in her waist area, a large scar on her stomach, and a weak right arm.
3. The jury's verdicts, the trial court's sentences, and Franco's and Davidson's notices of appeal
After a joint trial, the jury found Franco and Davidson guilty of conspiracy to commit murder; attempted willful, deliberate, and premeditated murder; and being felons in possession of firearms. After Davidson admitted he suffered a prior strike conviction, the trial court sentenced him to an aggregate prison term of 50 years to life plus four years. The court sentenced Franco to an aggregate prison term of 25 years to life plus two years and ordered him to pay a $300 restitution fine pursuant to section 12024, $120 court operations assessment pursuant to section 1465.8, and $90 criminal conviction assessment under Government Code section 70373.
Franco and Davidson timely appealed.
DISCUSSION
A. Franco and Davidson Fail To Demonstrate the Undercover Agents Coerced Davidson To Make Inculpatory Statements
Several months after C.T. was injured, the police arrested Davidson and placed him in a jail cell with two undercover agents who were posing as inmates and wearing recording devices. During his conversation with the agents, Davidson initially denied any involvement in the shooting. Davidson later changed his story and implicated himself in the crimes at issue.
In particular, Davidson admitted, inter alia: (1) the shooting occurred in the mountains; (2) Davidson and Franco were both armed; (3) Davidson knew "what was going to happen" to C.T.; (4) after they arrived in the mountains, Franco and C.T. carried an object to the other side of the road; (5) Franco had only one bullet in his firearm; (6) at one point during the incident, Davidson handed to Franco Davidson's nine-millimeter gun; and (7) Davidson heard several gunshots during the incident. An audio recording of Davidson's conversation with the undercover agents was played for the jury.
Although the audio recording is not in the record before us, a redacted transcript of that recording was submitted to this court. Because the parties rely upon the transcript for the contents of Davidson's conversation with the undercover agents, we shall do the same.
Franco and Davidson argue the trial court's admission of Davidson's inculpatory statements violated due process because the undercover agents employed "coercive tactics . . . to induce him to confess" to his involvement in the instant crimes.
" 'The test for determining whether a confession is voluntary is whether the defendant's "will was overborne at the time he confessed." [Citation.]" 'The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were "such as to overbear [the accused's] will to resist and bring about confessions not freely self-determined." [Citation.]' [Citation.] In determining whether or not an accused's will was overborne, 'an examination must be made of "all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation." [Citation.]' [Citation.]" [Citation.]' [Citation.]" (People v. McWhorter (2009) 47 Cal.4th 318, 346-347 (McWhorter).)
" 'A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citation.] 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. [Citation.]' ....[Citation.]" (McWhorter, supra, 47 Cal.4th at p. 347.)" 'The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made. [Citations.]' . . . [Citation.]" (People v. Winbush (2017) 2 Cal.5th 402, 452.) "Our standard of review is well established. Voluntariness is a legal question subject to independent review; a trial court's related factual findings are upheld if supported by substantial evidence." (Ibid.)
Regardless of the applicable standard of review, however, "the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573; see also Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 554-555 [" 'Even when our review on appeal "is de novo, it is limited to issues which have been adequately raised and supported in [the appellant's opening] brief. [Citations.] Issues not raised in an appellant's brief are deemed waived or abandoned."' "].) In accordance with this principle, "all intendments and presumptions are indulged in favor of [the] correctness" of the judgment. (See People v. Arter (2017) 19 Cal.App.5th Supp. 1, 6 (Arter).) To overcome the presumption of correctness, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' "]); People v. Flint (2018) 22 Cal.App.5th 983, 1006, fn. 17 [noting that an appellate court may" 'decline to consider any factual assertion unsupported by record citation at the point where it is asserted[,]'" and that" '[a]n appellate court "will not develop the appellants' arguments for them"' "].)
In support of his claim that Davidson's inculpatory statements were coerced, Franco maintains the two agents "pos[ed] as gang members," and "[t]hese gang members would arguably be able to inflict substantial harm on Davidson, through word of mouth or their own actions, if he failed to confess to them." Franco claims, "Davidson would have likely viewed [one of the agents] as a high ranking member to whom he was required to provide details of the underlying crimes" because the agent "indicated he was an older gang member, 53 years old." Additionally, Franco asserts the agents "told Davidson that evidence of his involvement in the underlying crimes existed" (e.g., a "video 'for the hotel' "), and the agents "psychologically hammered Davidson by telling him that [Franco] had accused him of being the shooter and Davidson would be best served by providing to them his version of the events." Franco claims, "[Davidson] would have said anything to save his reputation with the gang and to appease these gang members, who likely knew people who were upset that they had botched the job and C.T. was still alive." Davidson joins Franco's arguments.
Franco and Davidson have not shown that Davidson's statements to the undercover agents were involuntary. First, they fail to substantiate their assertion that Davidson feared he would suffer reprisal from his gang if he did not disclose his involvement in the shooting. The excerpt of the transcript they cite in connection with this argument shows that the undercover agent who claimed to be 53 years old indicated he was a "[g]angster . . . from Florence," whereas the other agent did not claim to be a member of any particular gang. The
Attorney General maintains Davidson and Franco were from the Cherryville gang. Davidson and Franco tacitly concede that point by failing to contest it in their reply briefs. Further, the Attorney General correctly contends that neither Franco nor Davidson directs us to any "evidence that a member of the Florence gang," which is the gang with which one of the agents had claimed to be affiliated, "would have any power or influence over someone from the Cherryville gang."
(See Reygoza, supra, 230 Cal.App.3d at p. 519 & fn. 4; Rudick, supra, 41 Cal.App.5th at pp. 89-90.)
Next, Franco and Davidson do not demonstrate that the undercover agents' representations regarding evidence of Davidson's involvement in the shooting (e.g., Franco accusing Davidson of being the shooter) or their persistent questioning constituted coercive police tactics that negated the voluntariness of Davidson's admissions. Our high court has held that" '[t]he use of deceptive statements during an investigation does not invalidate a confession as involuntary unless the deception is the type likely to procure an untrue statement.' [Citations.]" (People v. Fayed (2020) 9 Cal.5th 147, 165 (Fayed).) Aside from their unsupported claim that Davidson "would have said anything to save his reputation with the gang and to appease these gang members," neither Franco nor Davidson argues that the operatives employed subterfuge likely to extract false admissions from Davidson. Indeed, their appellate briefing demonstrates that C.T.'s trial testimony was consistent with the version of events Davidson related to the agents.
Even assuming arguendo that the undercover agents had "coaxed and prodded [Davidson] . . . to speak," it does not necessarily follow that he "was . . . compelled into revealing his role in" the instant offenses. (See Fayed, supra, 9 Cal.5th at p. 166.) The Attorney General correctly points out the transcript shows (1) a detective approached Davidson's cell and indicated (a) the detective intended to speak with Davidson "in regard to a case of a girl who got shot in the . . . mountains" and (b) the detective had already spoken with Franco about that case; and (2) shortly after the detective walked away from the cell, one of the agents offered to "tell [Davidson] how to play [his] cards." Pursuant to the presumption of correctness accorded to the trial court's decision to admit Davidson's statements, we assume that Davidson decided to disclose his involvement in the shooting because of his desire to obtain advice from the agents, and not because his free will was overborne. (See Arter, supra, 19 Cal.App.5th Supp. at p. 6; Fayed, at p. 166 ["If the' "decision [to speak] is a product of the suspect's own balancing of competing considerations, the confession is voluntary."' "].)
In sum, Franco and Davidson have not shown the trial court erred in admitting Davidson's incriminating statements to the undercover agents. We thus do not reach the parties' arguments regarding (1) whether Franco and Davidson failed to preserve this claim of error for appeal, and (2) whether any error in admitting Davidson's statements was harmless.
B. The Trial Court's Failure Properly To Instruct the Jury on the Corpus Delicti Rule Was Harmless
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself-i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant." (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) Under this "corpus delicti rule," "[w]henever an accused's extrajudicial statements form part of the prosecution's evidence, . . . the trial court [is obligated] to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone." (See id. at pp. 1165, 1170, italics omitted.)
"Though mandated by no statute, and never deemed a constitutional guaranty, the rule requiring some independent proof of the corpus delicti has roots in the common law." (Alvarez, supra, 27 Cal.4th at p. 1169.) "This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened." (Ibid.) Franco and the Attorney General agree that the corpus delicti rule applies not only to the accused's out-of-court statements, but also to admissions made by codefendants. (See also Jones v. Superior Court (1979) 96 Cal.App.3d 390, 397 ["[W]e hold that the corpus delicti of the crimes charged against the accused must be established independently of and without considering the extrajudicial statements of the accused or a codefendant."].)
The trial court instructed the jury on the corpus delicti rule as applied to Davidson but not Franco: "Defendant James Davidson may not be convicted of any crime based on his out-of- court statement alone. You may rely on the defendant's out-ofcourt statements to convict him only if you first conclude that other evidence shows that the charged crime was committed."
Franco argues the trial court erred in failing, sua sponte, to "instruct the jury (1) that [Franco] could not be convicted based on Davidson's out-of-court statements alone, and (2) that it could only rely on Davidson's out-of-court statements to convict [Franco] if it first concluded that other evidence showed the charged crimes were committed." The Attorney General concedes the court erred, but maintains "the lack of instruction was harmless because there was . . . independent evidence establishing that the charged crimes were committed." We agree with the Attorney General.
As a preliminary matter, we address the standard of prejudice applicable to Franco's claim of error. In his opening brief, Franco argues, "The trial court's error should be evaluated under the Chapman[ v. California (1967)] 386 U.S. 18 standard of prejudice." The Chapman standard applies to "violations of the federal Constitution" and "requires reversal unless the error is harmless 'beyond a reasonable doubt.' [Citation.]" (See People v. Gonzalez (2018) 5 Cal.5th 186, 195-196 (Gonzalez).) To establish that the trial court's failure to provide a proper corpus delicti instruction constitutes an error of federal constitutional dimension, Franco characterizes the omission as" '[i]nstructional error regarding the elements of the offense ....' [Citation.]"
The Attorney General counters that in Alvarez, our high court held that error in omitting a corpus delicti instruction is governed by the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818. (Citing Alvarez, supra, 27 Cal.4th at p. 1181, which in turn cites, inter alia, Watson, supra, 46 Cal.2d at p. 836.) An error of state law is"' "ordinar[ily]" '" subject to Watson's standard, which "requires us to evaluate whether the defendant has demonstrated that it is' "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."' [Citations.]" (See Gonzalez, supra, 5 Cal.5th at pp. 195-196.) In his reply brief, Franco does not contest the Attorney General's assertion that Watson governs his claim of error; rather, Franco argues he is entitled to reversal under that state-law standard. We are bound by Alvarez's holding that the Watson standard applies. (See People v. Perez (2020) 9 Cal.5th 1, 13 [" 'The decisions of this court are binding upon and must be followed by all the state courts of California.' "].) We now evaluate Franco's corpus delicti claim under Watson's standard of prejudice.
If there is" 'a slight or prima facie showing' permitting an inference of injury, loss, or harm from a criminal agency," then, "even if a noncriminal explanation is also plausible," "the omission of an independent-proof instruction is necessarily harmless" under Watson. (See Alvarez, supra, 27 Cal.4th at pp. 1171, 1181.) "There is no requirement of independent evidence 'of every physical act constituting an element of an offense,'" and "[t]he independent proof may be circumstantial and need not be beyond a reasonable doubt ...." (See id. at p. 1171.)
Franco acknowledges C.T. testified that Franco (1) held a ".22 caliber revolver to her face from about five feet away" and (2) shot C.T. in her right eye, stomach, and right shoulder. Franco further acknowledges, "Prior to trial, [he] admitted two prior felony convictions as to the felon in possession count, and the court found these prior convictions to be true." Franco does not explain why C.T.'s testimony and his pretrial admissions do not constitute sufficient evidence of corpus delicti as to his attempted murder and felon-in-possession convictions.
Regarding Franco's conviction for conspiracy to commit murder, he argues, "Davidson's confession was extremely prejudicial to [Franco] in that it established an agreement between [Franco] and Davidson to kill C.T.," which is an essential element of the offense. Yet, Franco acknowledges C.T. provided testimony that (1) she left the motel with Davidson and Franco because "Davidson grabbed her by the arm and [Franco] was behind her"; (2) upon arriving in the mountains, C.T. observed that "[Franco] and Davidson were whispering outside the truck," and that "[i]t appeared . . . Davidson was explaining something to [Franco]"; (3) after C.T. asked why she and Franco were moving a seat across the highway, Franco replied," 'Pops said to do it' "; and (4) after Franco shot C.T., "Davidson yelled to [Franco], 'Let's go,' and [Franco] ran to the truck and they drove away." This is circumstantial evidence from which a factfinder could infer that the two men had agreed to kill C.T. It follows that "there is some slight or prima facie showing of" an agreement that is independent from Davidson's admissions. (See Alvarez, supra, 27 Cal.4th at p. 1171.)
(See People v. Ware (2022) 14 Cal.5th 151, 163 ["Conspiracy' "is an inchoate offense, the essence of which is an agreement to commit an unlawful act."' [Citation.] This crime has four elements[, including,] . . . the existence of an agreement between at least two persons ...."].)
(See People v. Bogan (2007) 152 Cal.App.4th 1070, 1074 [noting that the elements of a conspiracy "may be established through circumstantial evidence," including" '" 'the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy'"' "].)
For the foregoing reasons, we conclude Franco has not discharged his burden under Watson of establishing a reasonable probability that the jury would have reached a more favorable verdict had it been instructed it could not convict him based solely on Davidson's statements. (See Alvarez, supra, 27 Cal.4th at p. 1181; see also Gonzalez, supra, 5 Cal.5th at p. 195.) He thus fails to show prejudice supporting reversal of his convictions.
C. Franco's Trial Counsel Did Not Render Ineffective Assistance By Failing To Object to Imposition of the Assessments and the Restitution Fine Because Duenas Is Inapplicable to Franco's Crimes
Franco argues that his trial attorney deprived him of his constitutional right to effective assistance of counsel by failing to object to the $90 criminal conviction assessment, the $120 court operations assessment, and the $300 restitution fine pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157. Franco's claim of ineffective assistance fails because he was not entitled to relief under Duenas. (People v. Bradley (2012) 208 Cal.App.4th 64, 90 ["Failure to raise a meritless objection is not ineffective assistance of counsel."].)
In Duenas, an unemployed, homeless mother with cerebral palsy had her driver's license suspended when she was unable to pay over $1,000 in fees that had been imposed for three juvenile citations. (People v. Caceres (2019) 39 Cal.App.5th 917, 923 (Caceres) [summarizing the facts of Duenas].) Thereafter, she received multiple convictions related to driving with a suspended license, each accompanied by jail time and additional fees that she could not afford to pay. (Id. at pp. 923-924.) Despite undisputed evidence that the defendant was indigent, the trial court imposed a $30 criminal conviction assessment, a $40 court operations assessment, and a $150 restitution fine. (See id. at pp. 920-921 &fn. 2, 924.) The Court of Appeal reversed, holding that due process prohibited the trial court from imposing the assessments, and required the court to stay the execution of the restitution fine, until that court had ascertained that the defendant had the ability to pay those assessments and fines.(Caceres, at p. 924.)
After the Court of Appeal decided Duenas, our high court granted review in a different case to decide the following questions: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?" (People v. Kopp (2019) 451 P.3d 776 [granting review on Nov. 13, 2019 in case No. S257844]; Duenas, supra, 30 Cal.App.5th at p. 1157 [opinion issued on Jan. 8, 2019].)
We have limited Duenas's holding to its "peculiar" factual context, a context "that several appellate courts have described as 'extreme.' [Citations.]" (See Caceres, supra, 39 Cal.App.5th at pp. 926, 928-929.) The defendant in Caceres was convicted of criminal threats. (See id. at pp. 920-921.) We held that Duenas was inapplicable because criminal threats "is not a crime either 'driven by' poverty or likely to 'contribut[e] to' that poverty such that an offender is trapped in a 'cycle of repeated violations and escalating debt.'" (See Caceres, at p. 928, quoting Duenas, supra, 30 Cal.App.5th at p. 1164 &fn. 1.)
Likewise, Franco does not argue that his decision to conspire to commit murder, perpetrate an attempted murder, and possess a firearm was caused by poverty or likely to contribute to poverty. Furthermore, as we observed in Caceres, "to the extent [Franco] cannot pay the imposed costs and is subject to a civil judgment, . . . such a consequence [does not] violate[ ] due process." (See Caceres, supra, 39 Cal.App.5th at p. 929.) Because Franco's ineffective assistance claim is predicated solely on Duenas, which we have concluded is inapplicable, he has failed to show error.
DISPOSITION
We affirm the judgments as to defendants Luis Antonio Franco and James Hugo Davidson, Jr.
We concur: CHANEY, J. WEINGART, J.