Criminal Appeal

Confession Voluntary; Expert Testimony on Interrogation Properly Excluded; Intent Evidence Sufficient; Remanded for Resentencing. People v. Ramos, no. B166003 (Cal.Ct.App. (2d Dist., Div. 3) Aug. 27, 2004).

1. Confession Voluntary. The court found the defendant's confession was not the product of an improper promise of leniency. Trial court properly credited officer's version of interrogation in which officer told defendant his cooperation would benefit him in the judicial process and that he would present the fact of the defendant's cooperation to the district attorney for consideration. The court of appeal found that it was proper for the trial court to reject the defense version (which was supported by a police report) that included only the promise of leniency, without any mention of the district attorney's role.

2. No error in exclusion of expert testimony on police interrogation:

[the officer] did not misrepresent the state of the evidence to Ramos, did not subject him to a polygraph examination and did not question him repeatedly over an extended period of time. Thus, as the trial court concluded, the defense failed to demonstrate the need for [Dr.] Leo’s expert testimony. Moreover, the trial court expressly indicated its ruling was tentative and that it would revisit the issue if the evidence adduced at trial suggested Leo’s expert testimony was relevant. Because the jury could understand and evaluate all the evidence presented at Ramos’s trial without the assistance of an expert on police interrogation, we find no abuse of discretion in the trial court’s order excluding Leo’s testimony.

3. Evidence of Intent to Kill Sufficient. Intent to kill element of attempted murder satisfied by evidence that appellant was a gang member, came to party armed with other armed gang members, parked around the corner from the party, ran to front yard when he heard fellow gang member had been in a fight, pulled his gun, aimed it car full of rival gang members, and fired. In finding the evidence sufficient, the court also relied upon expert gang testimony.

4. Minimum Parole Eligibility Term. On Count 1, court imposed life with possibility of parole for attempted murder, plus 10 years and 15 years, respectively, for gun and gang enhancements. This was error, as sentenced should have been a life term with a minimum term of 15 years prior to parole eligibility: "the criminal street gang enhancement found at section 186.22, subdivision (b)(5), requires service of a 15-year term before parole eligibility, not a 15- year enhancement."

5. Consecutive Indeterminate Term Served In Full. On second count of attempted premeditated murder, court imposed life term and enhancements of 1/3 of the 10-year gun enhancement and 1/3 of the 15-year gang enhancement. This was error: "section 1170.1, subdivision (a), which directs that a consecutive subordinate term shall consist of one-third the middle term or one-third of the term imposed for an enhancement, does not apply to indeterminate sentences."

Gun Use Enhancement on Subordinate Counts (Cal. Sentencing). People v. Hill, no. A100958 (Cal.Ct.App. (1st Dist., Div. 3) May 28, 2004) (partially published).

Holding: Sentencing court may impose sentence of one-third of the 10-year upper term for a Cal. Pen. Code sec. 12022.5(a)(1) gun use enhancement on a subordinate count. Section 1170.1 does not require imposition of a sentence of one-third of the middle term on such counts.