Opinion
D040052. D040246.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ERIC HANSEN, Defendant and Appellant. THE PEOPLE, Plaintiff and Appellant, v. MICHAEL ERIC HANSEN, Defendant and Respondent.
In case number D040052, Michael Eric Hansen appeals from his conviction of second degree murder (Pen. Code, § 187) with personal and intentional use of a firearm. (§§ 12022.5, subd. (a)(1), 12022.53, subd. (d).) In case number D040246, the People appeal from the courts order striking the section 12022.53, subdivision (d) firearm enhancement on the ground that its imposition would constitute cruel and unusual punishment. (Cal. Const., art. I, § 17.) We reverse the order striking the firearm enhancement, affirm the judgment in all other respects, and remand to the trial court with directions to impose the mandatory 25-life sentence for the firearm enhancement.
Unless otherwise specified, all statutory references are to the Penal Code.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Michael Hansen was married to Sarah Hansen. They had three young daughters, one of whom was Sarahs daughter from a prior relationship. The Hansens were members of the Mormon Church.
In the late summer or early fall of 2000, Sarah began to go out drinking in the evenings without Hansen. On a number of occasions, she went to Bubs Dive Bar and Grill (Bubs Dive Bar) in Pacific Beach. Sarah was flirtatious and became more extroverted when she drank alcohol.
On August 25, 2000, Hansen and Sarah went to a San Diego Chargers football game. At the game, Sarah left Hansen and went to drink with Paul Falcone, who served on the Pacific Beach Planning Board with Sarah. Afterward, Sarah went with Falcone to Bubs Dive Bar. She met Rodney Crain for the first time at the bar that night. Sarah drank and talked with Crain for several hours, then went home with him after the bar closed. They had consensual sex at his apartment in Pacific Beach.
One week later, on September 1, 2000, Sarah returned to Bubs Dive Bar with her friend, Doris Bruderer, and a neighbor, Aaron Lofstrom. Hansen stayed home to take care of their children and Bruderers daughter. Sarah met Crain at the bar. Sarah flirted with Crain and introduced him to Bruderer and Lofstrom. At one point, Sarah and Crain walked arm in arm out the back door. Sarah performed oral sex on Crain in the alley in back of the bar. Sarah and Crain eventually left the bar and walked off holding hands. They went back to his apartment and had sex.
Bruderer returned to the Hansens house around 1:30 to 2:30 a.m. She told Hansen that Sarah had left the bar with another man. Hansen was very upset. He asked Bruderer if she knew who the man was. Bruderer told Hansen she had found Sarah in the alley with the man. Hansen became even more upset. He told Bruderer he and Sarah used to go into alleys to have sex when they were dating. Hansen tried to call Sarah on her cell phone, but he was not able to reach her. He told Bruderer that his marriage was over.
Shortly after this incident, Hansen told Sarahs stepfather that Sarah had been drugged and raped the second night she failed to come home. However, Hansen did not tell other friends with whom he discussed the matter that he thought Sarah had been drugged and raped. Hansen told some of his friends that he thought Sarah was cheating on him. Hansen twice told his friend James Butters that he would like to kill the man who was involved with Sarah. Hansen also told his friend Jason Peaslee that he knew where the man lived and he was going to confront him. Hansen was very upset about Sarah not having come home, and he spoke to Peaslee about it on many occasions.
Crains car was vandalized three times between October and December 2000. Each time, someone threw a brick or a piece of concrete at the windshield while the car was parked at Crains apartment complex. After the third time, Crain began parking his car in the garage rather than in the alley.
On the afternoon of January 22, 2001, Hansen and Peaslee surfed together for about two hours. Between 5:00 p.m. and 6:40 p.m, several of Crains neighbors saw Hansen loitering around Crains apartment complex in the alley and courtyard area. When one of Crains neighbors passed by him, Hansen said, "Waiting, waiting, waiting." The neighbor asked, "Do you live here?" Hansen pointed to Crains apartment and said he was "waiting on Rod to come home."
Another neighbor later saw Crain drive through the alley, stop in front of his garage, get out of his car, and unlock his garage door. Shortly thereafter, gunshots rang out. Immediately before the gunshots, a neighbor heard a scuffling like the sound of feet dragging on the ground and a voice that sounded like Crains saying, "No, no, no." Several neighbors heard a man screaming. After the shots, neighbors saw Hansen flee down the alley with something in his hand, get into a car, and drive away. One of the neighbors wrote down his license plate number.
After the shooting, Crain was lying on the ground in front of his garage door bleeding and moaning. His garage door was open, the car was parked inside, and the drivers door was open. Crains wallet, drivers license, and keys were on the ground by the open car door, and a cellular phone was in the alley near Crain. Crain died as a result of wounds from four gunshots to the thigh, abdomen, and chest.
The police traced the license plate number to Hansen and went to his residence at 3:30 a.m. They took him to the police department for questioning. In a videotaped interview, Hansen initially stated that he had gone directly home after surfing with Peaslee that afternoon. However, Hansen eventually changed his story and admitted that he shot Crain before he went home from surfing.
Additional facts pertaining to the interrogation are set forth in our discussion of the voluntariness of Hansens statement to the police.
Hansen claimed Sarah had told him Crain had drugged and raped her. Months before the shooting, Sarah showed Hansen where Crain lived in Pacific Beach. According to Hansen, he wanted to confront Crain and beat him up, but did not intend to kill him. Hansen took a gun with him for self-protection when he went to confront Crain, in case Crain was armed. The gun was a .22-caliber that belonged to Hansens father. Hansen had taken it from his parents house the day before the shooting. Hansen waited for Crain at Crains apartment complex for about 20 minutes. When Crain pulled into his garage, Hansen approached the drivers side of Crains car and said, "How dare you?" At some point, Hansen told Crain to give him his wallet just to scare him and trick him. Hansen claimed Crain jumped out of the car and came at Hansen. Hansen pulled his gun and shot at Crain about three times. Crain did not display any weapons; Hansen told the police, "I dont know what he had over there . . . Probably his wallet."
Hansen explained, "I just couldnt live with a freaking asshole like that who would take my wife home and screw her." For months Hansen, had been "full of anger and pissed off." Hansen told the police officers, "I didnt mean to kill him. I just wanted to just hurt him or take his freakin face off or something, cause he was so horrible." Hansen also admitted he had thrown a brick or rock through Crains windshield on an earlier occasion.
Hansen told the police officers he had put the gun in the back of his truck when he arrived home after the shooting. The police recovered the gun from the truck.
The Peoples experts testified that the bullet trajectories and other evidence were consistent with Crain being seated in the car for the first two shots, coming out of the car for the other two shots, and crawling to the alley after the shooting.
Hansen testified in his own defense at trial. According to Hansen, Sarah told him she had been drugged and raped by Crain. Hansen went to Crains apartment complex to tell Crain he and Sarah knew what Crain had done to her, and to warn him never to do anything like that again. He did not intend to confront Crain and shoot him. Hansen took the gun for protection. He waited for Crain for about one hour before Crain drove up the alley. After Crain pulled his car into the garage and opened his car door, Hansen approached. Hansen said, "How dare you mess with my wife. Dont you ever . . . ." Crain grabbed something dark and shiny and started coming out of the car at Hansen. Hansen thought the shiny object could be a gun. Hansen grabbed his gun out of his waistband and started backing quickly into the alley. Crain charged at him leaning forward. Hansen yelled at him to stop. He waited until the last second, then shot Crain when he was about six feet away. Crain kept coming and Hansen kept shooting until Crain stopped. Hansen admitted he had thrown a rock or brick at Crains car on three prior occasions.
The defense experts testified that the bullet trajectories were consistent with Hansens testimony that all the shots were fired while Crain was charging at Hansen outside the car.
Sarahs mother, Kathleen Wheatley, testified that Hansen called her at 6:00 a.m. on September 2, 2000, the second time Sarah spent the night at Crains apartment. Hansen said that a man took Sarah against her will when she was incoherent and unable to make decisions or do anything for herself. Sarahs coworker Christine Van Dyke testified that Sarah told her she had been drugged and raped in September 2000.
In a jury trial, Hansen was convicted of second degree murder (& sect;§ 187, 189) with intentional and personal discharge of a firearm proximately causing death (§ 12022.53, subd. (d)) and personal use of a firearm (§ 12022.5, subd. (a)(1)). Before sentencing, Hansen filed a motion to reduce the murder conviction to voluntary manslaughter, and to strike the section 12022.53 firearm enhancement on the ground that its imposition would constitute cruel and unusual punishment. The trial court denied the motion to reduce the crime to voluntary manslaughter. However, the trial court agreed that imposition of the mandatory 25-life firearm enhancement under section 12022.53, subdivision (d) would constitute cruel and unusual punishment, in violation of article I, section 17 of the California Constitution. Accordingly, the court struck the section 12022.53 enhancement and imposed a total sentence of 19 years to life, composed of 15 years to life for second degree murder plus a consecutive midterm of four years for personal use of a firearm under section 12022.5, subdivision (a)(1).
II.
DISCUSSION
Appeal No. D040052
A. Hansens Statement to the Police Was Voluntary
1. The Suppression Hearing Testimony
In a pretrial motion, Hansen challenged the voluntariness of his videotaped statement to the police. The court viewed the videotape and held an evidentiary hearing on the motion. The relevant facts are as follows.
After the shooting, Team One of the San Diego Police Department homicide unit was assigned to investigate. Team One was the next team in rotation for a homicide investigation. Detective Lynn Rydalch was a member of Team One. He was called at home and told to respond to the scene of the shooting.
Witnesses at the scene provided the police officers with a description of the suspects vehicle and a license plate number. The police ran the license plate number and discovered that the vehicle was registered to Michael Hansen at an address in La Jolla.
Detective Rydalch recognized the name Michael Hansen because he had known the Hansen family through the Mormon Church for 27 years and was friendly with them. Detective Rydalch was a priesthood leader in the Mormon Church. Detective Rydalch and Hansen were members of the same "stake" of the Mormon church. Detective Rydalch was president of the Spanish branch of the stake. Hansen spoke Spanish but was not a member of the Spanish branch.
Hansen points out in his brief that all male members of the Mormon Church are "holders of the priesthood." However, Detective Rydalch held a more exalted status as "priesthood leader."
Detective Rydalch did not believe the Michael Hansen who was registered as the owner of the suspects vehicle could be the same Michael Hansen he knew. Detective Rydalch was not aware that the Hansens had moved to La Jolla; he believed the Hansen family lived in the Clairemont area.
The police officers decided to go to Hansens house. Detective Rydalch, three other members of the homicide team, and a patrol officer drove to Hansens home in La Jolla. They arrived there at 3:30 a.m. Detective Rydalch knocked on the door. Hansen opened the door. Detective Rydalch was surprised that it was the Michael Hansen he knew. He told the other officers he knew Hansen, and went inside the house to talk to him.
Detective Rydalch told Hansen that a witness to a shooting had written down Hansens license plate number. He asked Hansen to show him his car. Hansen took Detective Rydalch downstairs to the garage and showed him the car. Detective Rydalch looked at the license plate and asked Hansen where he had been earlier in the day. Hansen told him he had gone surfing with some friends, and had come directly home afterward.
Detective Rydalch went back outside to report to his supervisor, Sergeant Williams. He told Sergeant Williams, "I know Michael and . . . I bet the ranch he didnt have anything to do with this." Detective Rydalch was convinced there must have been some kind of mix-up or that it was just a coincidence that Hansens vehicle matched the description provided by the witnesses.
Sergeant Williams told Detective Rydalch that Rydalch was off the case. Detective Rydalch stayed outside while the other officers started to put Hansen into the back of a marked police car to transport him to the station for an interview. Detective Rydalch asked if he could transport Hansen to the station in his own vehicle because he did not see any reason to treat Hansen as a suspect. Detective Rydalch was permitted to transport Hansen to the police department in his own vehicle. Hansen sat in the front passenger seat next to Detective Rydalch. He was not handcuffed.
On the way to the police station, Detective Rydalch and Hansen engaged in casual conversation about family matters and Hansens job. At one point, Detective Rydalch again brought up the subject of the route Hansen took from the beach to his home. Detective Rydalch was attempting to understand how Hansen could have gotten "mixed up" in the investigation. Detective Rydalch did not advise Hansen of his Miranda rights.
Hansen testified he was the one who brought up this subject on the ride to the police station. According to Hansen, they were driving by Mission Bay when Hansen pointed and said "right over there" to indicate to Detective Rydalch the area he had driven through on his way home from surfing. Detective Rydalch stopped Hansen from talking and said, "Just wait, just wait."
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
At the police station, Detective Rydalch took Hansen to the cafeteria and bought him a Coke. They went to Detective Rydalchs office, where they waited for the other detectives to return from Hansens home to conduct an interview. Hansen was not handcuffed. Detective Rydalch and Hansen talked about family, friends, and the church while they were waiting. Detective Rydalch told Hansen they were waiting for the other detectives to arrive so they could conduct the interview.
Detective Rydalch never urged Hansen to talk to the other detectives or to tell them what had happened. He did not give any assurances to Hansen. Hansen never mentioned that he wanted to talk about what had happened.
Detectives Jim Valle and Felix Zavala arrived back at the station and began a videotaped interrogation of Hansen at approximately 5:20 a.m. Detective Rydalch monitored the interview from another room.
Detective Valle read Hansen his Miranda rights. Hansen stated that he understood his rights and wanted to talk. For the first hour of the interrogation, Hansen continued to claim that he had been surfing at Sunset Cliffs the previous afternoon, and that he had driven straight home, without stopping. Hansen told the officers he drove home through Pacific Beach because it was a faster route, and that he had arrived home around 6:15 p.m.
During the first portion of the interrogation, there were several casual references to Detective Rydalch. Hansen mentioned that he had attended the same high school as Detective Rydalch. Detective Valle later asked Hansen if Detective Rydalch ever got into surfing when they were growing up. Hansen explained that he and Detective Rydalch both played baseball. Hansen also mentioned Detective Rydalch when Detective Valle asked how the police had treated him when they knocked on his door at 3:30 a.m. Hansen responded, "Yeah, well, Lynn. I love Lynn, you know? . . . He could come knock on my door anytime." Finally, Hansen brought up Detective Rydalch again when he was explaining that he and his wife were both "Stake Missionaries." Hansen told the detectives, "Lynn can explain all that to you."
Hansen insisted he had never heard of Rodney Crain. The detectives said they believed Crain had had an affair with a married woman and that it may have had something to do with Hansens wife. They also informed Hansen that his wife had refused to talk about Crain and had thrown them out of the house when they asked about Crain. Finally, they told Hansen that witnesses had seen him park his car about a block and one-half away from where the shooting had taken place, that they had seen him stand for quite some time in the alley where Crain lived, that they had confronted him, and that he had told them he was "waiting for Rodney." At that point, Hansen asked the detectives, "You want me to be honest with you now?" He then broke down and admitted that he had shot Crain.
Hansen testified that he was motivated to confess because of Detective Rydalchs presence. According to Hansen, he viewed Detective Rydalch as a perfect role model because of his character and his status in the church. Hansen was a devout Mormon, and his religion permeated every aspect of his life.
Hansen felt that Detective Rydalch was there to help him through this problem and that he could speak freely because of Detective Rydalchs position as a church leader. Hansen knew Detective Rydalch was just doing his job as a homicide detective, but he felt a special connection to Detective Rydalch. Hansen lied during the first part of the videotaped interrogation because he felt uncomfortable without Detective Rydalch present in the room. However, Hansen believed Detective Rydalch was monitoring the interrogation and he eventually decided to tell the truth because he thought "everything would be fine" with Detective Rydalch. According to Hansen, the statement he gave was not a product of his own free will.
David Kressin testified as an expert on the Mormon Church. Kressin stated that members of the Mormon faith are taught to confess their transgressions to a priesthood leader. This would normally be done in a confidential meeting with the church leader, and would begin and end with prayer. As a stake president, Detective Rydalch was authorized to hear confessions. Detective Rydalch was a highly respected church leader who was considered to be "called of God." However, a member of a different stake would not normally confess to Detective Rydalch. According to Kressin, if a member of the church were praying for help and guidance about a serious problem, and a trusted friend and priesthood leader suddenly rang his doorbell in the middle of the night, the church member could consider that to be an answer to his prayers.
At the conclusion of the suppression hearing, the trial court found Detective Rydalch to be a "very credible witness" and concluded that he had genuinely believed Hansen could not have been involved in the shooting. The court found there had been no police coercion and no improper appeals to religion. Although the court ruled that Detective Rydalch had violated Miranda by questioning Hansen about the route he had taken home from the beach, the court found that Detective Rydalch was merely attempting to elicit exculpatory information because he did not believe Hansen could have been involved in the crime. The court also concluded that proper Miranda warnings were given at the beginning of the videotaped interrogation, and that the earlier Miranda violation by Detective Rydalch did not taint the admissibility of the subsequent statements at the police department. The court also found that the later statements were voluntary.
2. The Police Did Not Violate Hansens Rights Under the Fourteenth Amendment
Hansen claims his videotaped statement to the police was involuntary under the Fourteenth Amendment because it was motivated by the fact that Detective Rydalch was a Mormon priest, a trusted friend, and a role model. We independently review the trial courts determination of voluntariness. However, the trial courts factual findings regarding the circumstances surrounding an admission or confession are subject to review under the substantial evidence standard. (People v. Benson (1990) 52 Cal.3d 754, 779.)
To be voluntary, a confession must be "the product of a rational intellect and a free will . . . ." (Blackburn v. State of Alabama (1960) 361 U.S. 199, 208.) The question of voluntariness is determined by "whether the behavior of the States law enforcement officials was such as to overbear petitioners will to resist and bring about confessions not freely self-determined . . . ." (Rogers v. Richmond (1961) 365 U.S. 534, 544.) In resolving this question, the court must look to "the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation." (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226.)
Coercive police activity is a necessary predicate to a finding that a confession is involuntary. (People v. Benson, supra, 52 Cal.3d at p. 778, citing Colorado v. Connelly (1986) 479 U.S. 157, 167.) There must also be a causal connection between the coercive police conduct and the confession. (Benson, supra, 52 Cal.3d at pp. 778-779.) The coercive police conduct must have been a "motivating cause" of the suspects decision to confess. (People v. Thompson (1980) 27 Cal.3d 303, 328.)
The police may not use a suspects religion "as a tool to extract admissions of guilt." (People v. Adams (1983) 143 Cal.App.3d 970, 992, fn. 22, disapproved on other grounds in People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3; accord People v. Kelly (1990) 51 Cal.3d 931, 953; People v. Montano (1991) 226 Cal.App.3d 914, 935.) In Adams, for example, the court found a confession to be involuntary where the interrogating officer attended the same church as the suspect and extracted a confession through blatant appeals to the suspects Christianity, the Book of Romans, Gods law, sin, guilt, and "reprobate mind." (Adams, supra, 143 Cal.App.3d at pp. 979-980, fn. 8.) On the other hand, a confession is not involuntary simply because it is motivated by religion, if the police have done nothing to exploit the suspects religious beliefs. (Connelly, supra, 479 U.S. 157 [finding confession voluntary where suspect confessed to murder because the "voice of God" told him to].)
We find no basis in the record for Hansens claim of coercive police conduct. Detective Rydalch was not assigned to the case to exploit his relationship with Hansen; it was pure coincidence that he happened to be on the homicide team assigned to respond to the shooting. The trial court found credible Detective Rydalchs testimony that he did not believe Hansen could have been involved in the crime and that he thought there must have been some kind of mix-up. Contrary to Hansens contentions, Detective Rydalch made no effort to elicit a confession from Hansen. As the trial court concluded, Detective Rydalch was in fact attempting to elicit exculpatory information from Hansen in the ride to the police station to determine how Hansen could have gotten caught up in the investigation.
Although Detective Rydalch and Hansen engaged in casual conversation about their church and other matters of common interest, Detective Rydalch never used religion "as a tool to extract admissions of guilt." (Adams, supra, 143 Cal.App.3d at p. 992, fn. 22.) Even Hansen did not claim that Detective Rydalch had appealed to religion in order to get Hansen to talk. Nor did Hansen assert that he had been duped into thinking he was giving a religious confession to a church leader. On the contrary, Hansen admitted he knew that Detective Rydalch was acting in his capacity as a homicide detective. Further, Hansen did not testify that the police led him to believe Detective Rydalchs involvement was some kind of divine intervention, or even that he thought at the time that Detective Rydalch was a messenger from God, as his appellate counsel attempts to suggest.
Nor can we conclude on this record that Hansens conversation with Detective Rydalch was the motivating cause of his decision to confess. During the entire period of time Hansen was with Detective Rydalch, Hansen did not retreat at all from his initial story that he had driven directly home from surfing and that he had nothing to do with the shooting. Contrary to Hansens arguments on appeal, there is no evidence Hansen made any breakthrough admission during the ride to the police station. Even according to his own testimony, Hansen merely pointed out the route he claimed to have taken home from surfing. This was perfectly consistent with his initial denials of involvement in the shooting.
Hansen continued to stick to his initial story for the first hour of the videotaped interrogation, which was not conducted by Detective Rydalch. The entire videotaped interrogation was conducted in a relaxed, congenial, atmosphere without any hint of intimidation or coercion. The questioning was gentle and non-confrontational. The detectives did not make even the slightest appeal to religion in order to get Hansen to confess. Rather, they told Hansen they suspected his wife had been involved with the victim and informed him that witnesses had seen him and his car at the scene of the shooting. As the trial court concluded, "it was only once the detectives had told him what the evidence was against him that he broke down and broke down quickly." Thus, it is evident that Hansens decision to confess was not prompted by any coercive police conduct.
The fact that Hansen may have felt more comfortable talking to the police officers because he knew and trusted Detective Rydalch does not render his statements involuntary. If anything, Hansens friendship with Detective Rydalch made the circumstances at the police station less inherently coercive. Hansens misplaced faith that "everything would be fine" because of Detective Rydalchs presence does not constitute police coercion. (See Illinois v. Perkins (1990) 496 U.S. 292, 297 [noting that even "(p)loys to mislead a suspect or lull him into a false sense of security" do not necessarily "rise to the level of compulsion or coercion to speak"].)
We reject Hansens suggestion that Detective Rydalchs well-intentioned Miranda violation during the car ride tainted the voluntariness of the statements Hansen subsequently made to the other detectives after he received proper Miranda warnings. Failure to administer a Miranda warning that is "unaccompanied by any actual coercion or other circumstances calculated to undermine the suspects ability to exercise his free will" does not taint a subsequent statement made after proper Miranda warnings are given. (Oregon v. Elstad (1985) 470 U.S. 298, 309 (Elstad).) In such circumstances, "a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible." (Oregon v. Elstad, supra, 470 U.S. at pp. 310-311.) The second statement is therefore admissible if the earlier statement was voluntary considering the totality of circumstances. (Id. at pp. 309-310, 318.)
We also reject Hansens claim that the police failed to give proper Miranda warnings because they told him his statements "may be used" against him, rather than that they "can and will be used" against him. Miranda warnings need not be given in any "precise formulation" or "talismanic incantation." (California v. Prysock (1980) 453 U.S. 355, 359.) Although the Court in Miranda used the "can and will be used" formulation at one point in its opinion, the Court also used the more accurate "may be used" earlier in the opinion and "can be used" later in the opinion. (Miranda, supra, 384 U.S. at pp. 444, 469, 479.) Any of these will suffice to convey the basic meaning of the required warning. (See People v. Valdivia (1986) 180 Cal.App.3d 657, 664.) We also disagree with Hansens suggestion that Detective Valle attempted to portray the Miranda warnings as a "mere technicality." Immediately before giving the Miranda warnings, Detective Valle made it clear to Hansen that he would have a "choice whether to speak to us and discuss this matter or not." He also emphasized the "seriousness of the offense" and the fact that "were inside . . . police headquarters." While giving the Miranda warnings, Detective Valle spoke slowly and distinctly, pausing between each right to ask Hansen if he understood and clarifying at the end to make sure Hansen really wanted to talk. Detective Valle emphasized the gravity of the situation and did nothing to discourage Hansen from asserting his Miranda rights.
In United States v. Orso (9th Cir. 2001) 266 F.3d 1030, the Ninth Circuit applied Elstad in a case in which postal inspectors violated the suspects Miranda rights by engaging in custodial interrogation without Miranda warnings during a car ride to the Postal Inspection Service Office where a formal interview was to be conducted. The court concluded that because the suspects statements during the car ride were voluntary, the Miranda violation did not taint the admissibility of subsequent statements made by the suspect during the formal interview, after proper Miranda warnings had been given. (United States v. Orso, supra, 266 F.3d at pp. 1033-1040.)
As in Orso, we find no police coercion or other circumstances calculated to undermine Hansens ability to exercise his free will before the detectives read him his Miranda rights. Having viewed the videotaped interrogation and independently considered the totality of circumstances surrounding Hansens statements to the police, we conclude that the prosecution met its burden of proving that Hansens statements were voluntary.
B. Hansens Waiver of His Miranda Rights Was Voluntary
Hansen also claims that his waiver of Miranda rights was involuntary because it was the result of improper "softening up," in violation of the holding in People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt). There are two components to this voluntariness inquiry: "First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." (Moran v. Burbine (1986) 475 U.S. 412, 421.)
In Honeycutt, a homicide suspect was initially hostile to the interrogating detective in the interview room. The interrogating detective left the interview room and another detective (Detective Williams) who knew the suspect entered and engaged in a half-hour unrecorded discussion with the suspect. They talked about unrelated past events, former acquaintances, and the victim of the homicide. Detective Williams mentioned that the victim had himself been a suspect in another homicide case "and was thought to have homosexual tendencies." Detective Williams admitted that his intent during this discussion was to get the suspect to talk. By the end of the discussion, the suspect agreed to talk about the homicide. The police then advised him of his Miranda rights and he waived them. (Honeycutt, supra, 20 Cal.3d at pp. 158-159.)
The Supreme Court found that "Detective Williams had, prior to explaining the Miranda rights, already succeeded in persuading defendant to waive such rights." Thus, the court stated that "the critical question is what effect failure to give a timely Miranda warning has on the voluntariness of a decision to waive which is induced prior to the Miranda admonitions." (Honeycutt, supra, 20 Cal.3d at p. 159.) The court concluded that "in making his decision to waive a suspect should have knowledge of his rights afforded him by Miranda. The self-incrimination sought by the police is more likely to occur if they first exact from an accused a decision to waive and then offer the accused an opportunity to rescind that decision after a Miranda warning, than if they afford an opportunity to make the decision in the first instance with full knowledge of the Miranda rights." (Honeycutt, supra, 20 Cal.3d at p. 160.)
However, in this case, unlike Honeycutt, the police did not elicit a waiver of Miranda rights or an agreement to talk before they informed Hansen of his Miranda rights. Detective Rydalch merely engaged in casual conversation with Hansen about subjects of mutual interest while they were awaiting the arrival of the other officers to begin the interrogation. This discussion was not "intended to elicit a confession from the inception of the conversation." (Honeycutt, supra, 20 Cal.3d at p. 159.) Detective Rydalch did not encourage Hansen to talk about the shooting, nor did he discourage Hansen from exercising his Miranda rights. When the interrogation finally began, Detective Valle clearly informed Hansen of his Miranda rights and gave him a full opportunity to exercise them. In these circumstances, Honeycutt does not support a finding that Hansens waiver of his Miranda rights was involuntary. (See People v. Gurule (2002) 28 Cal.4th 557, 602 [finding no Honeycutt violation in absence of evidence that the "small talk" before the Miranda warnings "overbore defendants free will"].)
Based on our independent review of the record, including the videotaped Miranda warnings and waiver, we conclude that the prosecution met its burden of proving Hansens waiver was the product of a free and deliberate choice rather than intimidation, coercion, or deception, and that Hansen acted with full awareness of the rights being abandoned and the consequences of his decision to abandon them.
C. There Was No Prosecutorial Misconduct
Hansen contends that the prosecutor committed prejudicial misconduct by repeatedly misrepresenting the law on self-defense in her closing argument to the jury. We reject this contention.
Before closing arguments, the trial court decided what instructions would be given to the jury. The trial court agreed to give CALJIC No. 5.17 on the "imperfect self-defense" form of voluntary manslaughter for killings committed with an honest but unreasonable belief in the need for self-defense. (People v. Flannel (1979) 25 Cal.3d 668.) The last sentence of this instruction states: "However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversarys use of force, attack or pursuit."
The court also decided to give CALJIC No. 5.54, as follows: "The right of self-defense is only available to a person who initiated an assault if he has done all the following: [¶] 1. He has actually tried, in good faith, to refuse to continue fighting; [¶] 2. He has clearly informed his opponent that he wants to stop fighting; and [¶] 3. He has clearly informed his opponent that he has stopped fighting." Finally, the court gave CALJIC No. 5.55, which provides: "The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense."
In addition to these standard CALJIC instructions, the trial court wrote a special instruction, as follows:
"Generally, if one makes a legally unjustified felonious attack upon another (i.e., an unlawful assault which threatens life or great bodily injury), or if one attempts a forcible and atrocious crime against another, or if one has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray.
"However, if one commits a non-felonious assault or trespass or, if one commits a burglary under circumstances not threatening life or great bodily injury and the victim responds in a sudden and deadly counter assault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense. If the counter assault is so sudden and deadly that no opportunity is given to decline further to fight and the original aggressor cannot retreat with safety, the original non-felonious aggressor is justified in slaying in self-defense."
In his closing argument to the jury, defense counsel relied on the special instruction and argued that Hansen had a right to self-defense if he was merely committing a nonfelonious trespass and Crain responded with a sudden and deadly attack. In her final rebuttal argument, however, the prosecutor repeatedly told the jury that self-defense and imperfect self-defense were not available to the initial aggressor. In making this argument, the prosecutor relied on the last sentence of CALJIC No. 5.17 and CALJIC No. 5.55.
After the prosecutors argument, defense counsel objected that the last sentence of CALJIC No. 5.17 should not be given because it "guts" the special instruction. The trial court found that the prosecutor had erroneously suggested to the jury that the original aggressor has no right of self-defense, without mentioning that the right of self-defense is available to someone who commits a non-felonious assault or trespass that is met with a sudden and deadly counter assault. Although the court found that the prosecutor had not intended to mislead the jury, the court agreed to give a curative instruction to the jury.
In a lengthy curative instruction, the court began by explaining to the jury that imperfect self-defense was not available if "the perpetrators wrongful or criminal conduct created the circumstances giving rise to a justifiable response by the victim." The court continued:
"Now, I want to distinguish this situation from the following, and it would be where the perpetrator engaged in nonfelonious or nonlife-threatening conduct as the original aggressor justifying a reasonable force in response by the person against whom this aggression is offered but that person responds not with reasonable force, but with excessive, life-threatening or great bodily injury threatening sudden and immediate force which gives the initial aggressor no chance to retreat and then the initial aggressor regains the right to self-defense, absolute right to self-defense. [¶] Now, in sum I want to say this. It is not true that the mere fact that someone is the original aggressor absolutely therefore ends their right to self-defense. You will see in the instruction that there are conditions such as the one I just mentioned where they regain the right to self-defense unless the initial aggressor has actually contrived, that is intentionally has set up a situation where they force the other person into a response that then justifies the initial aggressors right to trounce the person in response. If its contrived, intended to set up that situation, then they dont regain their right of self-defense. . . .[¶] It is not true that if you find someone to be an initial aggressor that you disregard the other self-defense instructions and dont look at reasonable force or other concepts. You still have to look at the other concepts. (Italics added.)
Hansen claims there was prejudicial prosecutorial misconduct that was not remedied by the trial courts curative admonition. We disagree. Although a prosecutor may not misstate the law (People v. Hill (1998) 17 Cal.4th 800, 829), it is not misconduct for a prosecutor to emphasize to the jury those instructions that are favorable to the Peoples theory of the case. The prosecutor here relied upon standard CALJIC instructions actually given by the trial court — the last sentence of CALJIC No. 5.17 and CALJIC No. 5.55 — to argue that Hansen had no right of self-defense as the initial aggressor. Moreover, the prosecutors remarks must be taken in the context of her stated theory that Hansen was lying in wait with the intent to kill or seriously injure Crain by shooting him. In this factual context, it is a correct statement of the law that the initial aggressor has no right to claim self-defense or imperfect self-defense. (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
Hansen does not challenge the jury instructions on appeal. Because the issue is not before us, we express no opinion as to the correctness of the instructions.
To the extent the trial court found the prosecutors argument to be potentially misleading, any error was remedied by the trial courts curative instruction. "It is axiomatic that the prejudicial effect of errors may be overcome by subsequent corrective action such as the admonishment of the jury and that in such event the error may be deemed cured." (People v. Ryan (1981) 116 Cal.App.3d 168, 184.) The trial court reiterated the substance of the special instruction and twice told the jury "it is not true" that an initial aggressor has absolutely no right of self-defense. The jury must have understood that the trial judge was referring directly to the prosecutors rebuttal argument. The court also instructed the jury more generally that its own instructions prevailed over any conflicting statements made by the attorneys in their arguments. In these circumstances, we see no reason to depart from the usual rule that jurors are presumed to follow the courts instructions. Thus, we find there was no prosecutorial misconduct and no uncured prejudice from the claimed misconduct.
Appeal No. D040246
A. The Trial Court Erred In Finding That Imposition of the Mandatory 25-Life Firearm Enhancement Would Constitute Cruel and Unusual Punishment
The jury found true the allegation that Hansen personally and intentionally discharged a firearm, proximately causing death. (§ 12022.53, subd. (d).) This enhancement carries a mandatory consecutive sentence of 25 years to life, which cannot be stricken pursuant to section 1385 or under any other statutory authority. (§ 12022.53, subd. (h).) However, at the sentencing hearing, the trial court concluded that imposing the 25-life enhancement — in addition to the 15-life sentence for second degree murder — would constitute cruel and unusual punishment, in violation of article I, section 17 of the California Constitution. Accordingly, the trial court struck the section 12022.53, subdivision (d) enhancement. The People appeal from the trial courts order striking the section 12022.53 enhancement. We conclude the trial court erred in striking the enhancement.
Section 1385 authorizes a court to strike or dismiss enhancements, unless there is clear legislative direction to the contrary. (People v. Thomas (1992) 4 Cal.4th 206, 209-210.)
A prison sentence may constitute cruel and unusual punishment if it is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) Whether a punishment is cruel or unusual is a question of law subject to independent review. However, the underlying disputed facts must be viewed in the light most favorable to the judgment. (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)
The trial court relied on the nature of the offense and the offender in striking the enhancement. In rare circumstances, a sentence may constitute cruel and unusual punishment based on the nature of the offense and the offender. (People v. Dillon (1983) 34 Cal.3d 441, 479-480.) The nature of the offense must be viewed both in the abstract and based on the totality of the circumstances surrounding its commission, including such factors as its motive, the way it was committed, the extent of the defendants involvement, and the consequences of his acts. (Id. at p. 479.) In analyzing the nature of the offender, the court must determine "whether the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
A court must exhibit great deference to the Legislature in determining whether a sentence mandated by statute would constitute cruel and unusual punishment in a particular case. (In re Lynch, supra, 8 Cal.3d at p. 414; People v. Martinez, supra, 76 Cal.App.4th at p. 494.) "Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (Martinez, supra, 76 Cal.App.4th at p. 494; accord People v. Mora (1995) 39 Cal.App.4th 607, 616 ["Reduction of sentence under Dillon is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels"]; People v. Weddle (1991) 1 Cal.App.4th 1190, 1196 ["Findings of disproportionality have occurred with exquisite rarity in the case law"].)
Based on our independent review of the record, we conclude the trial court erred in finding that imposition of the mandatory 25-life firearm enhancement would constitute cruel and unusual punishment in this case. Viewing the offense in the abstract, murder is generally considered to be the most serious of all criminal charges. (People v. Turner (1994) 8 Cal.4th 137, 175.) Taking the life of another human being, without legal excuse or justification, is universally treated as deserving of the greatest punishment.
By finding Hansen guilty of second degree murder, the jury necessarily concluded that Hansen acted with malice aforethought, and rejected his claim that he had acted in self-defense or with an honest but unreasonable belief in the need for self-defense. Even if the jury found that Hansen acted only with implied malice, this is a highly culpable mental state that requires subjective awareness of, and conscious disregard for, the danger to human life. (People v. Estrada (1995) 11 Cal.4th 568, 576-578; People v. Nieto Benitez (1992) 4 Cal.4th 91, 104.) The United States Supreme Court has held that it does not violate the Constitution to impose the death penalty on an accomplice to a felony murder when the accomplice acted with "reckless indifference to human life." (Tison v. Arizona (1987) 481 U.S. 137, 157-158 [holding Eighth Amendment does not prohibit execution of non-killer who is a "major participant" in felony murder and acts with "highly culpable mental state" of "reckless indifference to human life"].)
The jury also found true the allegation that Hansen intentionally discharged a firearm in committing the murder. (§ 12022.53, subd. (d).) In enacting section 12022.53, the Legislature determined that the use of firearms in the commission of the designated felonies (including murder) poses such a danger that substantially longer prison sentences must be imposed in order to protect people and deter violent crime. (Martinez, supra, 76 Cal.App.4th at p. 497.) "A firearm gives a perpetrator a strong advantage over the victim and effectively deters the victims escape. A firearm is particularly lethal to the victim of the underlying crime as well as others in the vicinity; and a firearm allows the perpetrator to effortlessly and instantaneously execute an intent to kill once it is formed." (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1215.)
"Section 12022.53 as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes." (Martinez, supra, 76 Cal.App.4th at p. 495.) The statute is limited to "very serious felonies" and "sets forth three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies: 10 years if the defendant merely used a firearm, 20 years if the defendant personally and intentionally discharged it, and 25 years to life if the defendants intentional discharge of the firearm proximately caused [death or] great bodily injury." (Ibid.) In this case, the jury found true the most serious use of a firearm specified in the statute.
The circumstances surrounding the commission of the offense in this case do not warrant the trial courts finding that imposition of the firearm enhancement would constitute cruel and unusual punishment. Hansens confrontation with the victim was not a spontaneous act, but rather, a planned event. Hansen took the gun from his mothers house the day before the shooting. Armed with a loaded gun after an afternoon of surfing, Hansen drove to the victims residence, parked his car a distance away, and waited for approximately one hour to confront the victim. When the unarmed victim arrived at home, Hansen shot him four times in the abdomen and chest and left him to die in the alley. Hansen returned home to his family, ate some macaroni and cheese, and went to bed.
Hansens apparent motive for the murder was revenge. The jury rejected Hansens claim that he believed he had to shoot the victim in self-defense. Whether or not Hansen genuinely thought the victim had drugged and raped his wife, his motive for the shooting does not support a finding that imposition of the 25-life sentence enhancement would constitute cruel and unusual punishment.
In his statements to the police, Hansen expressed no remorse for his actions. Hansen told the police, "I feel perfectly fine about going to heaven right now and answering to God for what I did. . . .I feel perfectly fine about that." Hansen stated, "Hes the one thats going to have to answer to freakin God for the way he did, you know?" Hansen said that when he went home after the shooting, "I was just going to live happily for the rest of my life." Hansens lack of remorse and apparent belief that he was justified in shooting Crain to death indicate that he poses a danger to society.
In striking the enhancement, the trial court relied on the fact that there was "extreme provocation" consisting of "the immoral behavior of [Hansens] wife as well [as] of Rodney Crain." The court noted that Crains affair with Hansens wife would have been "sufficient provocation" in "some societies" for "the husband to take action and not to have any reprisal by the law." The trial court further concluded that Crain knew "he may be facing an irate husband with a gun because of what he was doing, and he didnt back out of it soon enough. He took advantage of a weak woman in a weak situation and he continued it on . . . ."
This type of moral condemnation of a homicide victim is not an appropriate factor in the legal analysis of what constitutes cruel and unusual punishment. The focus is on the nature of the offense and the offender, not the nature of the victim. The constitutional issue does not depend on the sentencing courts assessment of a murder victims character or morality. Further, the jury and the trial judge both rejected the defense claim that Crains alleged provocation was sufficient to reduce the murder to voluntary manslaughter. Because the alleged provocation was insufficient to negate malice and thereby reduce the crime from murder to voluntary manslaughter, it should have little or no significance in determining whether imposition of the mandatory firearm enhancement constitutes cruel and unusual punishment. We conclude that the circumstances of the crime warrant the severe sentence prescribed by the Legislature.
With regard to the nature of the offender, Hansen grew up in an intact two-parent family, with no known history of abuse or mental illness. Both of Hansens parents were employed. Hansen was a Boy Scout and became an Eagle Scout. He was a devout Mormon who served a two-year mission in the District of Columbia. At the time of the crime, Hansen was a 28-year old college graduate with a teaching credential. He worked as a self-employed painter and substitute teacher. Hansen was married with three young children. Over 60 of Hansens friends, family members, and church acquaintances submitted letters attesting to Hansens good character, integrity, honesty, peaceful disposition, generosity, community service, and devotion to his family, church, and friends.
Although Hansen had no criminal record, he used marijuana and LSD in high school, he threw a brick or rock through Crains windshield on three separate occasions in the months before the murder, and he took his fathers gun the day before he committed the murder. The trial court found that Hansen was under stress during the general time period before the shooting, because his father had been put into an Alzheimers home, his uncle had died, he had moved his family, he was taking care of his mother and doing repairs on her home, and he was acting as a father figure for his sisters children.
We have reviewed the totality of the record before the trial court, including the letters submitted to the trial court in support of Hansen. Despite the trial courts sympathy for Hansen, we find that Hansens character or background do not warrant the finding that imposition of the mandatory firearm enhancement would constitute cruel and unusual punishment for this second degree murder. Hansen had the benefit of privileges many other criminal defendants lack, including a close family, a college education, employment, mental health, supportive friends, and a strong church affiliation. In the months before the murder, Hansen had ample time to redirect his anger or to seek guidance from his family, friends, or church. Although Hansen may have been under some stress during this time period, a defendant cannot avoid the statutory punishment for murdering someone with a firearm on the basis that he was suffering from stress in his personal life.
Hansen is serving a sentence of 15 years to life, which he does not (and could not) claim is unconstitutional. The practical effect of striking the 25-life enhancement, and imposing a four-year firearm enhancement instead, is to make Hansen eligible for parole in 19 years rather than in 40 years. Either way, Hansen may serve the rest of his life in prison if he is not granted parole. We are aware of no authority that would allow a court imposing an indeterminate life sentence to substitute its own judgment for that of the Legislature in determining parole eligibility. The trial courts decision that a minimum term of 19 years is acceptable, but 40 years is cruel and unusual, constitutes "an intrusion into the basic line-drawing process that is `properly within the province of legislatures, not courts." (Hutto v. Davis (1982) 454 U.S. 370, 374, citation omitted.)
Where consecutive life sentences are imposed, the defendant must serve the minimum term of each life sentence before becoming eligible for parole. (§ 3046, subd. (b).) Thus, a defendant serving consecutive sentences of 15 years to life and 25 years to life would be eligible for parole in 40 years, minus any applicable credits.
Finally, we are not persuaded by Hansens argument that a sentence of 40 years to life would be unconstitutional because it may be equivalent to life without the possibility of parole. A sentence of life without the possibility of parole may be imposed for serious offenses that do not involve the taking of human life, such as aggravated kidnapping. (§ 209, subd. (a); People v. Chacon (1995) 37 Cal.App.4th 52, 63-64 [finding no cruel and unusual punishment].) Murder with personal and intentional use of a firearm is even
more serious than aggravated kidnapping. There is nothing unconstitutional about the Legislatures decision to impose a mandatory sentence that may in some cases be equivalent to life without possibility of parole for such a serious offense.
Other California cases have uniformly concluded that imposition of a mandatory firearm enhancement under section 12022.53 does not constitute cruel and unusual punishment. (See People v. Felix (2003) 108 Cal.App.4th 994, 999-1002 [10-year firearm enhancement consecutive to 5-year determinate term for 17-year old with no criminal record]; People v. Taylor (2001) 93 Cal.App.4th 318, 323-324 [10-year firearm enhancement for attempted robbery]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1230-1231 [25-life firearm enhancement for assault with firearm not resulting in death committed by defendant with no significant prior criminal record]; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1216 [25-life firearm enhancement consecutive to 25-life term for first degree murder]; People v. Gonzales (2001) 87 Cal.App.4th 1, 16-19 [25-life firearm enhancement for two aiders and abettors and perpetrator of first degree murder]; Martinez, supra, 76 Cal.App.4th at pp. 493-498 [25-life firearm enhancement consecutive to 5-year term for attempted murder for 23-year old defendant with no significant prior criminal record].)
We conclude that imposition of the mandatory 25-life firearm enhancement is not "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.) This is not one of those "rarest of cases" where a court may "declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (Martinez, supra, 76 Cal.App.4th at p. 494.) Thus, we reverse the trial courts order striking the section 12022.53, subdivision (d) firearm enhancement.
The trial court rested its decision solely on state constitutional grounds. Hansen asserts in a footnote that he is also invoking the Eighth Amendment of the United States Constitution. We find no Eighth Amendment bar to imposition of the mandatory firearm enhancement. (See Harmelin v. Michigan (1991) 501 U.S. 957 [holding mandatory sentence of life without possibility of parole for possession of 650 grams or more of cocaine did not violate Eighth Amendment]; Hutto v. Davis, supra, 454 U.S. 370 [holding 40-year prison term for possession of nine ounces of marijuana with intent to distribute did not violate Eighth Amendment].)
III.
CONCLUSION
Hansens videotaped statement to the police was properly admitted at trial. The statement was voluntarily given, in full compliance with Miranda. There was no prosecutorial misconduct during closing arguments, and even if there were, it was not prejudicial in light of the trial courts curative admonition to the jury. However, the trial court erred in finding that imposition of the mandatory 25-life firearm enhancement (§ 12022.53, subd. (d)) would constitute cruel and unusual punishment.
IV.
DISPOSITION
The trial courts order striking the section 12022.53, subdivision (d) firearm enhancement is reversed, and the case is remanded to the trial court with directions to impose the mandatory consecutive sentence of 25 years to life for this enhancement. Pursuant to section 12022.53, subdivision (f), the trial court is directed to stay the sentence for the lesser firearm enhancement under section 12022.5, subdivision (a)(1).
In all other respects, the judgment is affirmed.
WE CONCUR: NARES, Acting P. J. and HALLER, J.