People v. Marquez

• Decision Date: 25 June 2013
• Docket Number: F063837
• Parties: THE PEOPLE, Plaintiff and Respondent, v. VICTOR ALEXANDER MARQUEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. VICTOR ALEXANDER MARQUEZ, Defendant and Appellant.

F063837

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed: June 25, 2013

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. VCF222534)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.

SEE CONCURRING OPINION

A jury convicted Victor Alexander Marquez of the stabbing murder of Maria Juarez (Pen. Code, § 187, subd. (a)) and found true the special circumstance that the murder was committed during the commission of a robbery (id., § 190.2, subd. (a)(17)(A)). The trial court sentenced Marquez to a term of life without the possibility of parole. He was 17 at the time of the crime. There is no doubt Marquez committed the murder. He confessed to the crime, his DNA was found at the scene as the result of a wound he suffered during the murder, and Juarez's and Marquez's DNA was found on the murder weapon that was hidden in his bedroom.

Marquez argues the trial court erred when it refused to suppress his confession and the incriminating evidence found when police officers searched his residence pursuant to a probation search condition. He also claims the trial court erred when it denied his numerous motions for the appointment of new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We disagree and affirm the conviction.

Marquez also contends the sentence of life without the possibility of parole constitutes cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution. While this case was pending, the United States Supreme Court issued its decision in Miller v. Alabama (2012) 567 U.S. ___ (Miller), which held that a sentencing scheme that mandates a sentence of life without the possibility of parole for a juvenile offender for a homicide offense constitutes cruel and unusual punishment.

California's sentencing scheme does not suffer from this deficit because the trial court had the discretion to sentence Marquez to a term of 25 years to life but chose not to exercise that discretion. Miller, however, strongly implies that only in unusual circumstances will a sentence of life without the possibility of parole for a juvenile convicted of a homicide offense comply with the Eighth Amendment. Miller also provides relevant criteria for the sentencing court to consider when considering a life sentence. Since the trial court did not have Miller to guide its sentencing decision, it didnot consider all of the factors the Supreme Court considers relevant to the Eighth Amendment analysis. To ensure Marquez's sentence does not violate the Eighth Amendment, we will reverse the judgment and remand for resentencing to permit the trial court to consider the effect of Miller on its sentencing decision.¹

FACTUAL AND PROCEDURAL SUMMARY

The information charged Marquez with one count of murder and alleged the special circumstance that the murder was committed during the course of a robbery. In addition, the information alleged that Marquez used a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1).

At approximately 6:33 a.m., Visalia Police Officer William Brokhoff was dispatched to an alley where he discovered the dead body of a Hispanic female, later identified as Ms. Juarez, lying in a pool of blood. In addition to the pool of blood near the victim, numerous blood drops were located on the ground leading away from the victim's body, and a bloody palm print and blood spatter were found on a wall.

Nineteen slash and/or stab wounds were found on the victim's body. Three of the wounds in the upper chest/neck area were deep enough to puncture the left carotid artery, the right carotid artery, and the right subclavian artery. The combination of these three wounds caused massive bleeding and the victim's death.

Investigating officers obtained information that led them to Marquez, primarily Marquez's proximity to the crime scene and visible injuries to his hand that could have been consistent with knife wounds. Blood-stained clothing was found in Marquez's bedroom, and a folding knife wrapped in a T-shirt was located under the mattress. Based on information obtained from Marquez, three items of blood-stained clothing (twoshirts and a pair of shorts) were found in the dumpster of an apartment complex northeast of the crime scene.

Marquez consented to an interview with the investigating officers. While he initially denied any involvement in the murder, he eventually confessed to stabbing Ms. Juarez while attempting to rob her.

DNA evidence indicated that Marquez could not be eliminated as the source of blood in the blood drops leaving the crime scene. Population data suggested that Marquez was the donor of the blood drops.² When the knife recovered from Marquez's bedroom was tested, two contributors were identified, and neither Ms. Juarez nor Marquez could be eliminated as the source of the samples. Similarly, the sample from the knife indicated that the female contributor likely was Ms. Juarez.³

Marquez presented evidence that he was emotionally and physically abused as a child, suffered blackouts throughout his childhood, and, as he stated during his confession, he suffered a blackout during the murder.

The prosecution argued Marquez was guilty of felony murder because he committed the murder during a robbery. Marquez claimed he suffered a blackout when Ms. Juarez was killed and thus was legally unconscious and therefore not guilty of murder. He also argued the robbery ended when he had the blackout, thus he was not guilty of felony murder.

The jury found Marquez guilty and found the enhancements true.

Marquez argued at sentencing that the trial court should exercise its discretion and sentence him to 25 years to life instead of life without the possibility of parole. The trial court acknowledged its discretion pursuant to Penal Code section 190.5, subdivision (b), but chose the sentence of life without the possibility of parole.

DISCUSSION

I. Suppression of the Confession

The trial court denied Marquez's motion to suppress his confession. Marquez asserts the trial court erred for two reasons. First, he argues the confession was inadmissible pursuant to In re Wayne H. (1979) 24 Cal.3d 595 (Wayne H.). Second, he asserts the confession was coerced and therefore inadmissible.

A. Wayne H.

Wayne H. involved an admission made by a minor during a Welfare and Institutions Code section 628⁴ interview.

For perspective, we begin with section 625, which provides that a peace officer may take a minor into temporary custody when the officer has reasonable cause for believing the minor is a person described by section 601 or 602 (§ 625, subd. (a)) or if the officer has reasonable cause to believe the minor has violated an order of the juvenile court (id., subd. (b)). A peace officer who takes a minor into temporary custody pursuant to section 625 has four options: (1) release the minor (§ 626, subd. (a)), (2) deliver the minor to the public or private agency that provides shelter and care for such minors (id. , subd. (b)), (3) release the minor after preparing and serving a notice to appear (id., subd. (c)), or (4) "Take the minor without unnecessary delay before the probation officer ... and deliver the custody of the minor to the probation officer" (id., subd. (d)).

When a peace officer takes a minor into temporary custody and then delivers the minor to the probation officer, "the probation officer shall immediately investigate the circumstances of the minor and the facts surrounding his or her being taken into custody ...." (§ 628, subd. (a).) The purpose of this investigation is to determine whether the minor should be detained, released to his or her parents, or put on some other type of supervised release. (Ibid.)

The investigatory requirement of section 628 was the focus of Wayne H. Wayne was detained because the police officer had reasonable cause to believe Wayne had committed an armed robbery and thus came within the provisions of section 602. When interviewed by the investigating detective, Wayne denied any involvement in the robbery. Wayne was then delivered to the probation officer.

The probation officer advised Wayne of his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. He then explained to Wayne that the results of the interview would bear on whether or not Wayne would be detained and whether juvenile fitness proceedings would be recommended. Wayne again denied any involvement in the robbery. When the probation officer informed Wayne that he would be recommending detention and a fitness hearing, Wayne admitted he committed the robbery. (Wayne H., supra, 24 Cal.3d at p. 598.)

At the subsequent adjudication hearing on the section 602 petition, the prosecutor introduced Wayne's admission. The Supreme Court concluded that Wayne's admission should have been excluded because "the subsequent use of statements made by a juvenile to a probation officer in a section 628 interview would frustrate important purposes of that statute, and of the Juvenile Court Law generally. We therefore hold that such statements are not admissible as substantive evidence, or for impeachment, in any subsequent proceeding to determine criminal guilt, whether juvenile or...