The People v. Nampula CA4/2 (2013) · DecisionDepot
The People v. Nampula CA4/2
California Court of Appeal Sep 20, 2013 No. E055708Unpublished
Filed 9/20/13 P. v. Nampula CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055708
v. (Super.Ct.No. FSB803567)
JOSE NAMPULA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Affirmed.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Annie
Featherman Fraser, Deputy Attorneys General, for Defendant and Appellant.
1
I. INTRODUCTION
Defendant Jose Nampula appeals from his conviction of two counts of attempted
willful, deliberate, and premeditated murder (Pen. Code,1 §§ 664, 187, subd. (a)) with
associated enhancements (§§ 12022.53, subds. (b)-(d), 186.22, subd. (b)(1)(C)) and his
at the residence. Defendant denied he was a gang member but said he was associated
with Flats gang members, and he went by the names of Joe Joe and Chino. Defendant
said he knew both shooting victims; he and E.A. had been friends and had grown up
together.
Detective Murray then obtained a search warrant for defendant’s residence.
During the search on August 27, 2008, the officers found weapons and gang
paraphernalia, some of which had the moniker Chino written on it. Defendant was
arrested, transported to the police station, and read his Miranda rights. Defendant agreed
to talk to the detective.
During the interview, defendant asked Detective Murray why he would shoot
E.A., and the following exchange occurred:
“[Detective Murray]: You can ask me all the questions in the world and I’ll tell
you why. Okay. The reason is . . . because [E.A.] was related with LA like [Angelo]
was. And in order to get him—correct? Right?
“[Defendant]: Um-hum.
“[Detective Murray]: Am I right?
“[Defendant]: That could be it.
15
“[Detective Murray]: Okay. That sounds about right to me.
“[Defendant]: Yeah. It does.”
Defendant continued to deny his involvement. Eventually, Detective Murray
asked, “Why would you do something like that if you had this great plan [to continue his
education] in the mix? Were you pressured to do it? That would be a logical explanation
for me, man. If you were pressured to do it by some of the higher ups in the Flats. That
would make a lot more sense to me: you know?” He continued, “But it would make
sense and it would make sense to a jury and it would make sense to people saying, hey,
listen, man. I was part of a gang at a time and if I wouldn’t have done this—I’m not
willing to give anybody up but if I wouldn’t have done this, they would have killed me.
I’m not saying it makes it okay or it makes it any less better [sic], but it gives them a
reason, you know what I’m sayin’—” Defendant eventually stated he had been
“pressured” to do the shooting.
At the hearing on the motion to suppress his confession, defendant testified he was
18 years old when he was interrogated. On August 27, 2008, he and Detective Murray
had talked about where defendant had been during the shooting. The detective told
defendant that shell casings had been found in the victims’ front yard. When defendant
waived his Miranda rights, he believed they were going to be talking about the guns
found at his home.
The trial court found that defendant “was capable and did make a knowing,
intelligent, and voluntary waiver of [his Miranda] rights.” The trial court further found
that “there was [no] coercive, unfair, overbearing conduct on the part of Detective
16
Murray. We’re talking about an interview that lasted maybe a total of an hour to an hour
and 20 minutes in which Detective Murray was the only officer involved in the
questioning. Detective Murray was not so overbearing or intimidating that his mere
presence alone was likely to intimidate [defendant] into making a false statement or one
that was untrustworthy.” The court found there had been no threats or promises of
leniency. The court denied the motion to suppress the confession.
2. Analysis
“When a defendant challenges the admission of his or her statements on the
ground they were involuntarily made, the prosecution must prove by a preponderance of
the evidence the statements were, in fact, voluntary. [Citation.]” (People v. Rundle
(2008) 43 Cal.4th 76, 114, disapproved on another ground in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) Courts apply a totality of the circumstances test to determine
the voluntariness of a confession. (People v. Massie (1998) 19 Cal.4th 550, 576.)
“Among the factors to be considered are ‘“the crucial element of police coercion
[citation]; 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.”’ [Citation.] On appeal, the trial court's findings as to the
circumstances surrounding the confession are upheld if supported by substantial
evidence, but the trial court’s finding as to the voluntariness of the confession is subject
to independent review. [Citations.] In determining whether a confession was voluntary,
‘[t]he question is whether defendant's choice to confess was not “essentially free”
because his will was overborne.’ [Citation.]” (Ibid.)
17
(a) Length, location, and continuity of interrogation
The interrogation was conducted at the San Bernardino Police Department. The
trial court found that the interview lasted no more than an hour and 20 minutes, and
Detective Murray was the only officer involved in the interrogation. Those facts support
a determination that the confession was voluntary. (See, e.g., People v. Carrington
(2009) 47 Cal.4th 145, 175 [under the totality of the circumstances, questioning that
continued over eight hours did not render a confession involuntary].)
(b) Defendant’s maturity, education, physical condition, and mental
health
At the time of the interrogation, defendant was 18 years old, and he had gone to
school through 11th grade. He was under the care of a therapist who was treating him for
depression, and he was taking medication for his depression. Defendant was living with
his grandmother, his aunt, and his cousins. The record does not indicate he had any
physical limitations.
The trial court determined that defendant had the ability to relate to Detective
Murray, understood his questions, and could communicate effectively. The court
acknowledged defendant’s youth and the fact that he had completed only 11th grade, but
observed he “appeared to be intelligent in other ways what the Court would deem ‘street
smart.’ He understood where he was. He understood that the police wanted to talk to
him. He had the ability to comprehend the meaning and [e]ffect of making a statement.”
We uphold the trial court’s factual findings because they are supported by
substantial evidence in the record. (People v. Massie, supra, 19 Cal.4th at p. 576.)
18
(c) Implied threats of further harassment of defendant’s family
Detective Murray told defendant he was sure they had the “right guy.” He stated,
“[I]n order to protect your family to get the cops off your back, I think it’s incumbent on
you to just make peace with God, Bro. Seriously, you got to make peace with it.
Because you[’re] not gonna be able to run and hide forever.” Later, he stated, “You’re a
man and we gotta pay our dues and we have to respect our elders and our families.
Okay? And you can’t be bringing this heat down on your family any[]more.”
At the hearing on the motion to suppress, defendant testified the police had broken
windows at his grandmother’s house during the search and had torn things up. He
believed that by confessing, it would all end. However, he also testified that he did not
think his family “would continue to suffer” “legal pursuit by law enforcement . . . .”
In People v. Steger (1976) 16 Cal.3d 539, the court stated: “A threat by police to
arrest or punish a close relative, or a promise to free the relative in exchange for a
confession, may render an admission invalid. [Citations.] However, where no express or
implied promise or threat is made by the police, a suspect’s belief that his cooperation
will benefit a relative will not invalidate an admission. [Citations.]” (Id. at p. 550.)
Here, we do not interpret Detective Murray’s statement as an implied threat to punish
defendant’s relatives. The fact that defendant believed his confession would benefit his
family did not render his confession invalid.
(d) Implied promises of leniency and threats of harsher punishment
Defendant contends Detective Murray told him he would spend the rest of his life
in prison and then stated: “I’m trying to give you an option here Bro. I’m trying to give
19
you an option to come clean so the District Attorneys and us can work with you on this.
Okay? Wherever [sic] you want to believe it or not, you know, your well being right now
is in my best interest. ‘Cause I want to fix this. I want to make it right, any you just need
to try—you need to think about it. . . .” Defendant asserts that Detective Murray
suggested “the very words of a hypothetical confession which could result in a shorter
prison term” for defendant. He stated: “But it would make sense and it would make
sense to a jury and it would make sense to people saying, hey, listen, man. I was part of a
gang at a time and if I wouldn’t have done this—I’m not willing to give anybody up but
if I wouldn’t have done this, they would have killed me. I’m not saying it makes it okay
or it makes it any less better [sic], but it gives them a reason, you know what I’m
sayin’—” The colloquy continued:
“[Detective Murray]: Does it sound more accurate, like what happened?
“[Defendant]: I don’t know, man.
“[Detective Murray]: No you—Chino look at me Bro. You do know.
“[Defendant]: It’s ‘cause man seriously. Now I’m lost. Whatever happens right
now. I’m in the box, right?
“[Detective Murray]: It all depends how long, though? Yeah. You’re going to
have to pay—
“[Defendant]: If that’s gonna happen then—
“[Detective Murray]: —some dues. It does matter how long.”
“A promise to an accused that he will enjoy leniency should he confess obviously
implicates the voluntariness of any resulting confession. [Citation.]” (People v. Boyette
20
(2002) 29 Cal.4th 381, 412.) Here, however, Detective Murray made no express or
implicit promise of leniency or threat of harsher punishment. Moreover, at the hearing on
the motion to suppress, defendant testified he confessed because Detective Murray
promised he would serve only 10 years if he did so. No such promise appears in the
videotape of the interview. Because defendant expressly testified he confessed because
of that purported explicit promise, there is no credible evidence in the record that any
implied promise of leniency or threat of harsher punishment induced the confession.
(e) Untrue statements about the evidence
Defendant argues that Detective Murray untruthfully insisted that “‘good, solid
witnesses’” would testify that they had seen defendant running from the shooting scene
with a gun and it would look bad if he continued to deny his involvement. In fact, E.A.
told R.A. that Chino from the Flats had been the shooter, and one of defendant’s
nicknames was Chino. Thus, the detective’s statement was not entirely false. Moreover,
although “police deception is a factor to be taken into consideration in determining the
voluntariness of a confession” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1241),
“the police properly may confront, and even debate with, a suspect regarding theories
based on the circumstances of the crimes and even debate with the suspect the merits of
those theories. [Citation.]” (People v. Carrington, supra, 47 Cal.4th at p. 175; see also
People v. Williams (2010) 49 Cal.4th 405, 444 [suggesting possible explanations for how
a crime occurred is a permissible interrogation tactic].)
Moreover, telling a defendant it would look better if he admitted the crime is also
a permissible technique: “[T]here is nothing improper in pointing out that a jury
21
probably will be more favorably impressed by a confession and a show of remorse than
by demonstrably false denials.” (People v. Williams, supra, 49 Cal.4th at p. 444.)
Detective Murray’s statements that there were witnesses and that it would look
better if defendant admitted the crime were not coercive and not “‘“‘“reasonably likely to
procure an untrue statement.”’”’” (People v. Tate (2010) 49 Cal.4th 635, 684.)
(f) Conclusion
Based on the totality of the circumstances, we agree with the trial court that
defendant’s confession was voluntary.
C. Punishment
Defendant contends the sentence of 80 years to life constituted cruel and unusual
punishment.
1. Additional Background
Defendant was 18 years old when he committed the shooting. He had no known
prior criminal record, although he admitted a weapons offense as a juvenile.
2. Forfeiture
The People contend defendant failed to object to his sentence on the basis it was
cruel and unusual punishment, and he has therefore forfeited his challenge. (People v.
Russell (2010) 187 Cal.App.4th 981, 993 (Russell).) We will nonetheless exercise our
discretion to reach the merits of the issue.
3. Analysis
“A sentence violates the federal Constitution if it is ‘grossly disproportionate’ to
the severity of the crime. [Citations.]” (Russell, supra, 187 Cal.App.4th at p. 993.) “A
22
sentence violates the state prohibition against cruel and unusual punishment [citation] if
‘“it is so disproportionate to the crime for which it is inflicted that it shocks the
conscience.”’ [Citations.]” (Ibid.) State courts evaluate three factors to determine
whether a particular punishment meets that standard. First, they evaluate the nature of
the offense and the offender with regard to the degree of danger they present to society.
Second, they compare the punishment imposed to punishments prescribed by California
law for more serious offenses. Third, they compare the punishment imposed with
punishments prescribed by other jurisdictions for the same type of offense. (In re Lynch
(1972) 8 Cal.3d 410, 425-429 (Lynch), superseded by statute on another ground by
People v. Caddick (1984) 160 Cal.App.3d 46, 51.)
Defendant limits his argument to the first Lynch factor with emphasis on the
nature of the offender. He notes that he was only 18 when he committed the offense; he
had no prior criminal record; and it is unlikely his sentence will be served in his lifetime.
In People v. Caballero (2012) 55 Cal.4th 262, our Supreme Court held that sentencing a
juvenile who commits a nonhomicide offense to a de facto sentence of life without parole
is categorically cruel and unusual punishment. (Id. at p. 268.) Caballero is
distinguishable because defendant here was not a juvenile when he committed his crimes.
In People v. Argeta (2012) 210 Cal.App.4th 1478, the court rejected the argument of an
18-year-old defendant that the holding of Cabellero should be extended to his case. The
court explained, “[W]hile ‘[d]rawing the line at 18 years of age is subject . . . to the
objections always raised against categorical rules . . . [, it] is the point where society
draws the line for many purposes between childhood and adulthood.’ [Citations.]
23
Making an exception for a defendant who committed a crime just five months past his
18th birthday opens the door for the next defendant who is only six months into
adulthood. Such arguments would have no logical end, and so a line must be drawn at
some point. We respect the line our society has drawn and which the United States
Supreme Court has relied on for sentencing purposes . . . .” (Argeta, supra, at p. 1482.)
We agree with the reasoning of the court in Argeta; we conclude defendant’s sentence
was not categorically cruel and unusual punishment.
We next examine the sentence in light of the seriousness of the offense.
Attempted premeditated and deliberate murder is indisputably among the most serious of
offenses, and defendant committed the offense against two separate victims. Moreover,
his personal discharge of a firearm causing great bodily injury and the fact that the
offenses were committed for the benefit of a criminal street gang made the offenses even
more egregious. “‘It was [defendant’s] conduct, not his sentence, that was cruel and
unusual.’ [Citation.]” (People v. Leon (2010) 181 Cal.App.4th 452, 469.)
Defendant does not address the second and third Lynch factors—punishments
imposed in this jurisdiction for other serious crimes and punishments imposed in other
jurisdictions for similar offenses. He has therefore failed to meet his burden of
establishing that the punishment was cruel and unusual in light of those factors. (People
v. King (1993) 16 Cal.App.4th 567, 572.)
24
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
MCKINSTER J.
MILLER J.
25
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for attempted murder, holding that the search warrant was supported by probable cause and that the defendant's confession was voluntary under the totality of the circumstances.
Issues
Whether the trial court erred in denying the motion to suppress evidence and to quash the search warrant.
Whether the defendant's confession was involuntary and obtained in violation of his constitutional rights.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The trial court did not err in denying defendant’s motions to suppress evidence.”
“The trial court found that defendant “was capable and did make a knowing, intelligent, and voluntary waiver of [his Miranda] rights.””