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The People v. Matthew Mullen

March 8, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MATTHEW MULLEN, DEFENDANT AND APPELLANT.



(Super. Ct. No. NCR73590)

The opinion of the court was delivered by: Butz , J.

P. v. Mullen

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Matthew Mullen of shooting at an inhabited dwelling (Pen. Code, § 246),*fn1 permitting another to discharge a firearm from a vehicle (§ 12034, subd. (b)), and participating in a criminal street gang (§ 186.22, subd. (a)). The jury also found true the allegations that defendant committed the first two offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A) & (4)(B).) The offenses were committed when defendant was 18 years old. The trial court sentenced defendant to an indeterminate term of 15 years to life.

On appeal, defendant contends (1) the trial court erred in denying his motion to suppress a confession induced by an allegedly improper promise of leniency, (2) the court wrongly excluded expert testimony regarding factors leading to false confessions, (3) the trial court erroneously excluded testimony by a school psychologist regarding defendant's cognitive deficiencies, and (4) evidence of defendant's refusal to consent to a warrantless search of his car and bedroom was improperly introduced. The Attorney General additionally argues that the trial court erred in failing to impose a mandatory court facilities funding assessment as required by Government Code section 70373.

We conclude that defendant's contentions are without merit but that the court facilities funding assessment must be imposed. We therefore modify and affirm.

FACTUAL AND PROCEDURAL HISTORY

The Shooting

In January 2008, Juan and Cristobal Salazar*fn2 were living with their mother, Maria de Carmen Flores, in Corning, California. Flores's bedroom was located closest to the street while Cristobal's bedroom was in the back of the house.

On the evening of January 11, 2008, Eric Sandoval and German Chavez were "hanging out" with Juan and Cristobal in the Salazars' kitchen. From the kitchen, they saw a gray Volvo and old brown Buick pull up in front of the house. Ten or eleven people got out of the cars. Juan, Cristobal, Sandoval, and Chavez went outside. Juan had grabbed a "big stick," like an ax handle, on the way out.

The people who had gotten out of the cars were yelling insults such as, "We're gonna fuck you up, you fucking scraps," and displaying gang hand signs. Sandoval recognized some of the people, including Manny Zavala and defendant. Sandoval had previously seen defendant driving the brown car. After five minutes, Zavala, defendant, and the others got back into their two cars and drove away.

About 10 to 30 minutes later, Sandoval left the Salazar house to make a quick trip to a nearby store. When Sandoval returned to his own house, from which he "could see perfect" the Salazar house, he heard gunshots. Sandoval saw defendant's "brown car flying by."

Cristobal was falling asleep in his back bedroom when he heard "[t]hree or more" gunshots. Cristobal noticed "the wall shook a little." Flores heard two or three firecracker noises. She also felt the wall shake in her bedroom. A neighbor testified that he heard a "volley" of five or six gunshots.

Cristobal went outside but did not see any cars in the area. He returned inside and went to the bathroom. In the bathroom, Cristobal saw a hole through the wall as well as a broken shower tile. The shower tile had not previously been broken.

At the time of the shooting, Cristobal was a member of the UBM gang. He testified that UBM stood for "United let's go get high," and is a gang now "dead." Cristobal stated that UBM was not associated with any criminal street gang. Cristobal denied, at the time of trial, that he was a member of the Surenos gang. Juan testified he was not a member of any gang.

Corning Police Officer James White responded to an emergency call about the shooting. He found shell casings from a .45-caliber firearm on the street in front of the Salazar house. Officer White and Officer David Kain found two bullet holes in the wood siding of the house. A detective found a "fired round" on the ground, 15 to 20 feet to the west of the house. Officer White removed one of the damaged shower tiles and recovered a "bullet or slug from a shell."

Defendant's Questioning

The next night, around 10:00 p.m. or 10:30 p.m., Officer Kain went to defendant's residence to speak with him. Defendant was not home. Officer Kain spoke with defendant's stepfather, Steven Turner. Officer Kain told Steven "that his son might be in a lot of trouble," and asked Steven to tell defendant that the police needed to talk with him.

Around 2:45 a.m., Officer Kain received a telephone call informing him that defendant arrived at the police station for a "voluntary interview." About 30 minutes later, Officer Kain arrived to find defendant waiting in an interview room without a lock on the door.

Officer Kain told defendant he was free to leave and explained to defendant how to "get out of the Police Department if he chose to leave." Defendant admitted that he owned a brown Oldsmobile. However, defendant repeatedly denied being present or involved in the shooting of the Salazar house.

During the questioning, Officer Kain told defendant that his mother and sister might be subject to arrest for sending him text messages during an investigation. Officer Kain asked for defendant's consent to search his car and residence. Defendant refused and attempted to leave the interview room.

Officer Kain informed defendant that he was under arrest and moved him to a locked interview room that is subject to constant video surveillance.*fn3 Officer Kain then left defendant to prepare an application for a search warrant. When the search warrant was authorized, Officer Kain had another police officer search defendant's car. The officer found a spent shell casing under the right front passenger seat of the car. Officer Kain showed the casing to defendant and told him to start thinking about telling the truth. Officer Kain then went to defendant's house to execute the search warrant.

In defendant's bedroom, Officer Kain found that most of defendant's clothing was red in color or had red highlights. On the witness stand, Officer Kain acknowledged that the Corning High School's team colors are red and black, and that the school mascot is a cardinal. In defendant's bedroom, Officer Kain also found a handwritten poem or lyrics with a gang theme. Defendant's computer was on and showed approximately 20 downloaded songs, some of which had titles related to the Norteno gang or were recorded by artists often favored by gang members. Defendant's computer also yielded gang-related images including: a Mickey Mouse wearing a red bandana with the letter "N" on it and extending his middle finger with "X4" on it, a person wearing a red bandana holding his fingers in a "14" position, and a group of people wearing red with the title "Norte" on the image. A username "Matt" had been created for nearly a dozen Web sites with gang and illicit drug themes.

Sometime between 8:30 a.m. and 9:30 a.m., Steven Turner arrived at the police station to see his stepson. Officer Kain told Steven that defendant was in custody for a shooting and faced a possible 40-year prison sentence. Officer Kain told Steven "that things would go light on [defendant]; that it would help [defendant] out" if defendant cooperated with the police. Steven decided to get his wife to talk with defendant, telling Officer Kain: "'If anybody could get [defendant] to talk, [it] would be his mother.'" Officer Kain responded that "he thought it was a good idea, and to go for it . . . ."

Steven returned to the police station at 10:00 a.m. with defendant's mother, Michelle Turner. Officer Kain named the charges to be filed against defendant and told them that he was facing 40 years in state prison. Officer Kain "said if [defendant] cooperated [the court] may go easy on him." Michelle did not ask Officer Kain what she and her husband could do to help her son.

Defendant's parents then met with him in the interview room while Officer Kain monitored the conversation from another room. Michelle yelled at defendant, telling him that if she had known this would happen she would have thrown him in the river at birth. She told defendant that if he did not cooperate, he would hurt the entire family. Michelle repeatedly told defendant to "say something" to the police. Defendant appeared sad.

After defendant's parents left, Officer Kain advised defendant of his Miranda*fn4 rights. Defendant appeared to understand his rights and elected to give a statement to Officer Kain. Defendant then stated that he, Manny Zavala, and others went to the Salazar residence because they believed Juan was a member of the Sureno gang. At the residence, they got out of their two vehicles and "call[ed] Juan out." The group yelled "Norte," "scrap," and "fourteen." They got back into their cars and drove to Red Bluff to allow things to cool down in case the police were looking for them. The occupants of defendant's vehicle, of which he knew only Zavala, then developed a plan. They decided to cruise through Corning to find a Sureno to beat up and then shoot. Defendant planned to be the shooter because he was a Norteno "recruit" who wanted to "earn his stripes" in the gang. Their next plan was to return to the Salazar residence to shoot Juan. Finally, they decided to shoot at the Salazar residence.

The group decided that defendant would neither be the driver nor the shooter because he was too intoxicated. Instead, Zavala would drive. After the shooting, defendant disassembled the gun "based upon his Norteno training" and discarded the pieces in different locations.

When defendant was booked into jail, he indicated that he was a Norteno but not a member of a gang.

Criminalist Tom Vasquez analyzed the five cartridges from the pavement and the cartridge case recovered from defendant's car. Vasquez concluded that all the cartridges were fired by the same gun.

Officer Kain testified as an expert on criminal street gangs. He described the origins of the rival Norteno and Sureno gangs; gang clothing and signs; how new members join the gangs and rise in the ranks; the importance of respect, retaliation, and reputation to gang members; and the code of silence. Officer Kain explained that the Norteno gang identifies with the color red, the letter "N," and the number 14. "Norte" is often used as an abbreviation of "Norteno." "Scrap" is "typically a derogatory term use by Nortenos toward Surenos."

Officer Kain estimated that there were more than 100 Norteno gang members in Tehama County who engaged in violent crimes such as manslaughter, assaults with a deadly weapon, batteries, robberies, graffiti, and drive-by shootings. He described specific offenses committed by local Nortenos, including murder, assault, and a gang drive-by shooting.

Officer Kain discussed items found in defendant's bedroom and car. The predominance of red clothing was consistent with Norteno gang membership. So, too, a music CD bore cover art with a red color theme suggesting it was gang related. Defendant also had a brand of sunglasses commonly favored by gang members. Given a hypothetical based on the facts of the case, Officer Kain opined that the shooting would have been committed for the benefit of the Norteno gang.

The prosecution called Gustavo Gutierrez, Zavala, and Jacob Maldonado as witnesses. However, none provided testimony that shed any light on the events of the shooting.

To impeach Maldonado's claim of inability to remember anything from the night of the shooting, the prosecution introduced testimony as follows: On January 15, 2008, Officer Kain interviewed Maldonado at the police station. Maldonado admitted that he accompanied defendant and Zavala during the evening of the shooting. Maldonado heard defendant yelling "Norte" during the confrontation at the Salazar residence. During the later shooting, Maldonado was riding in the backseat of defendant's car. Sometime after the interview with Officer Kain, Maldonado told his probation officer that he was in the car with defendant, Zavala, and Gutierrez. Defendant had obtained a firearm prior to the shooting, racked a round into the chamber, and handed the gun to Gutierrez.

Defense

The defense called James Hernandez, a professor of criminal justice, as a witness. The professor had substantial research experience on the topic of criminal street gangs. He testified that, according to the Federal Bureau of Investigation's Web site, the Nortenos and Surenos are not criminal street gangs. Instead, the terms refer to "association identities." Hernandez testified that the images of Mickey Mouse and a person displaying a gang sign, which were found on defendant's computer, could be gang related. He also acknowledged that the confrontation in front of the Salazar house on the night of the shooting, as described in the police report, was consistent with gang activity for the benefit of the Nortenos. However, he stated that it was also possible that the activity was not gang related and "just blowin' smoke."

Defendant's mother testified that defendant "had difficulty in school from the beginning, first -- or kindergarten, first, and second." After those school years, defendant "had problems still with reading. [His parents] brought it to the attention of the teachers, and they chose to evaluate him and he was eventually placed in special education." Then, "[b]etween the first -- fourth grade when he was first placed in special education to seventh grade he made a great improvement; and in special education they re-evaluate them every three years, and at that time it was clear that more -- that he'd made great strides in visual and tactile memory, long-term memory, but he had very low scores or very low evaluation in auditory memory skills."

Throughout defendant's teenage years, he had "problems with ability to remember or recall things." His mother explained, "If you give him verbal instructions he doesn't retain them. He has to repeat things. And even then, like if you give him verbal instructions to go do three things, if he gets distracted it doesn't get done, he doesn't remember it."

The defense called Kenneth Killinger, who served as pastor of the Neighborhood Full Gospel Church in Corning. Killinger testified that he had known defendant for seven years. Defendant attended church and youth group outings. He was well behaved and got along with the other teens.

DISCUSSION

I

Claim of Improper Inducement to Falsely Confess

Defendant contends the trial court erred in denying his motion to suppress his confession about his role in the shooting of the Salazar residence. Specifically, defendant argues that Officer Kain improperly induced a false confession by telling his parents that he might receive lenient ...


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