Crimes committed for benefit of a street gang

California Courts of Appeal Reports

CARRILLO v. SUP. COURT OF L.A., B191701 (Cal.App.
12-21-2006) PEDRO ZUMUDIO CARRILLO, Petitioner, v. THE
SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE
PEOPLE, Real Party in Interest. B191701. Court of Appeal
of California, Second District. December 21, 2006.
Certified for Publication

Appeal from a judgment of the Los Angeles County Super. Ct.
No. BA270805, Robert J. Perry, Judge.

Janice Y. Fukai, Alternate Public Defender, Felicia K.
Grant and Vito Caruso for Petitioner.

No appearance for Respondent.

Steve Cooley, District Attorney, Lael R. Rubin, Head
Deputy, Brentford J. Ferreira and Phyllis C. Asayama,
Deputy District Attorneys, for Real Party in Interest.

BOREN P. J.

ORIGINAL PROCEEDING; Petition for writ of prohibition. Writ
Granted.

Petitioner Pedro Zumudio Carrillo (Carrillo) was charged
with various crimes, including committing murder for the
benefit of a criminal street gang. Defense counsel, as a
trial tactic, elected not to move prior to trial to
suppress Carrillo’s confession, deciding instead to allow
the jury to hear Carrillo’s tape-recorded interview with
the police in its entirety. After a portion of the taped
interview was played for the jury, the trial court
concluded Carrillo’s confession had been coerced. The court
found that defense counsel’s failure to move to suppress
the confession constituted ineffective assistance per se
and sua sponte declared a mistrial. Carrillo asserts in
this proceeding in prohibition that the double jeopardy
provisions of the state and federal Constitutions bar
retrial. We agree and grant his petition.

I. FACTS

On May 3, 2005, an information was filed charging Carrillo
with first degree murder, two counts of assault with a
firearm, attempted second degree robbery and making
criminal threats. It was alleged the murder was committed
while Carrillo was engaged in the commission of the
attempted robbery, and that a principal personally and
intentionally discharged and used a handgun, which caused
great bodily injury. It was also alleged the crimes were
committed for the benefit of the Orphans, a criminal street
gang.

A. Prosecutor’s Opening Statement.

Trial commenced on March 20, 2006. In his opening
statement, the prosecutor told the jury evidence would be
introduced to establish the following facts.

On May 29, 2004, at about 11:30 p.m., Carrillo was present
at the wedding of Oscar Gutierrez, an Orphans gang member.
Also at the event were fellow gang members Alfredo Villa,
known as “Joker,” and Mario Padilla, known as “Puppet.”
Puppet approached Carrillo and told him “If you’re down for
the barrio, let’s go do a hale, a job.”[fn1] Because
Carrillo did not want Puppet to think he was a “pussy,” he
drove Joker and Puppet to 8th Street and Union Street in
Los Angeles.

After leaving Carrillo’s vehicle, Puppet walked up to
Edward Brown, put a gun to his head and said, “Orphans,
this is Orphans.” Puppet then walked into a nearby liquor
store, waved the gun around and stated, “This is Orphans,
do you want it? Do you want it?”

Puppet left the liquor store and walked across and down the
street to a pay phone. The murder victim, Victor Fernandez,
was on the pay phone talking to his wife in Guatemala. She
heard a male voice state in Spanish, “Give me your wallet.
Give me your money. Give me your cell phone.” Fernandez
then stated, “Take it. I don’t have any money.” The
victim’s wife then heard several gunshots.

Angie Ruiz and Jose Alaniz, residents of an apartment
building located across the street from the pay phone,
heard gunshots and looked out the window. They saw a man
pointing a gun at Fernandez and saw Fernandez backing away.
Fernandez then ran, dodging and weaving down the street as
the shooter took additional shots. Fernandez then fell, face
down. The shooter ran to a black, two-door sedan parked in
the darkest part of a parking lot. The windows were tinted
and there were no license plates on the car. After the
shooter entered the car, the driver quickly drove away down
a dark alley.

The prosecutor told the jury that shortly after the murder,
Oscar Gutierrez contacted the police and gave a statement.
Jeff Breuer, a homicide detective with the Los Angeles
Police Department, would explain that Gutierrez contacted
the police because Gutierrez was upset because Puppet had
shot a wedding guest. Two months after the murder,
Gutierrez gave a second statement, which was taken by
Detective Breuer. This statement, which was tape-recorded,
implicated Carrillo in the murder. The prosecutor warned
the jury that Gutierrez would deny making any statements to
police and would claim that because he was drunk on the
night of the murder he could not remember all of the events
of that night.

The prosecutor next addressed Carrillo’s three-hour,
tape-recorded interview, which was taken by Detective
Breuer and his partner in October 2004. The jury was told
it would hear Carrillo initially denying any involvement in
the murder, but that after about 25 minutes Carrillo would
admit the black Honda used in the murder belonged to him. He
would claim, however, that he gave the keys to Joker and
Puppet. Then, about 45 minutes into the interview, Carrillo
would admit he was the driver; that he drove to an area
near the intersection of 8th Street and Union Street and
parked the car; Puppet told him he was going to “walk the
neighborhood and look for enemies”;[fn2] and as Puppet left
the car, Carrillo saw that he had a gun. Carrillo would
also say, “over and over again” that the shooter was
Puppet.

The prosecutor candidly admitted that the jury would also
hear Detective Breuer repeatedly telling Carrillo that he,
Breuer, knew the shooter was Joker. The prosecutor
explained, however, that following Carrillo’s interview,
Breuer discovered additional evidence which led him to
conclude that his initial belief that Joker was the shooter
was incorrect; that, in fact, Carrillo “was right about
every detail; that the shooter was . . . Puppet, not
Joker.”

In closing, the prosecutor told the jury he was sure that
they would come to understand that Carrillo knew that
crimes were going to be committed when he heard Puppet say
that if Carrillo was “down for the barrio,” he would “do a
hale,” and that he, Puppet, was going to “walk the
neighborhood and look for enemies.” The prosecutor believed
the jury would agree “that by positioning the getaway car
in that darkened parking lot with the headlights off so
Puppet could make an escape,” Carrillo had aided and
abetted the murder of Victor Fernandez, and had engaged in
and furthered gang activity.

B. Defense Counsel’s Opening Statement.

In his opening statement, defense counsel, Vito Caruso,
admitted that Carrillo was the driver of the black Honda
seen on the night of the murder. Caruso claimed, however,
that the evidence would show Carrillo was coerced into
going with Puppet and that at no time did Carrillo agree to
commit a crime and at no time did he know a robbery was
going to occur, much less a shooting.

According to Caruso, the evidence would show that Puppet
and Carrillo had never met before the night of the murder,
and that Puppet, who was attending the Gutierrez wedding
without being invited, had approached Carrillo and
manipulated him into driving to 8th Street and Union
Street, on the pretext that Puppet wanted to get some
cigarettes. Caruso described Puppet as an older, more
experienced gang member who was a “pretty intimidating
guy.” Carrillo, on the other hand, was described as “easily
manipulated.” Caruso admitted that Carrillo was no “choir
boy,” but noted that at the time of the murder he had no
criminal record, was working construction, and had a family
and a girlfriend. Caruso said that Carrillo was an Orphans
gang member because he had been “jumped in,” but downplayed
his involvement, describing him as a “tagger” who marked up
walls with graffiti.

Caruso assured the jury that once it heard Carrillo’s
tape-recorded interview with the police the jury would see
that Carrillo had been manipulated, and that Detective
Breuer had “bullied” Carrillo “into giving a false
confession” and “into basically saying his good friend
[Joker] was the shooter.” Caruso conceded that it was
“apparently okay” for the detective to lie to Carrillo by
telling him that Joker had admitted being the shooter and
had “laid out” Carrillo by telling the police that Carrillo
was the driver of the getaway car. Caruso claimed the jury
would see that the prosecution was basing its entire case
on the jury’s believing only certain segments of the tape
and disregarding other aspects of the tape. Caruso
concluded that the tape would show that although Carrillo
was scared and less than forthcoming when he first talked
to the police, he eventually came “clean” and told the
police that Puppet was the shooter and that he, Carrillo,
did not know that the killing was going to occur.

Caruso emphasized that the police “wouldn’t let up” until
Carrillo told them what they wanted to hear, i.e., that
Joker was the shooter, rather than Puppet, and that he,
Carrillo, went with Puppet and Joker to “go look for
enemies.” Caruso claimed that in order to force Carrillo to
make these false admissions, Detective Breuer and his
partner repeatedly told Carrillo “you can be with us or
against us. You can be a witness and walk home, go home or
you can be a defendant.” After a “long time,” Carrillo
started saying what the detectives wanted him to say.

Caruso concluded that after listening to the evidence,
testimony and trial court instructions, the jury would find
Carrillo not guilty.

C. Prosecution Witnesses.

Following opening arguments, Edward Brown took the stand
and testified exactly as the prosecutor said he would,
including that he saw the man who assaulted him run to a
dark colored, two-door Honda, which was parked “sideways.”
The car, with the headlights off, left the driveway and
went through an alley. Brown identified a photograph of
Carrillo’s vehicle as the car he saw on the night of the
murder.

Angie Ruiz also testified as the prosecutor indicated she
would in his opening statement. She said that after she
looked out the window of her apartment she saw a man
running toward a black car parked in a driveway of the
shopping center across the street from where she lived. The
car was facing the driveway. The headlights were off. When
the individual running toward the car got in, the driver
immediately “took off” and “went straight to the alley.”
The headlights were still off. Jose Alaniz’s testimony was
very similar to that of Angie Ruiz. He testified that he
saw the black car that was parked in the driveway, and that
when the shooting started, he saw it pull up and wait by
the driveway.

As the prosecutor warned in his opening statement, Oscar
Gutierrez testified that he did not remember speaking to
police, insisting that he got drunk at the wedding and
remembered little of the events occurring on the night of
the murder. He denied being a member of the Orphans gang.
Although he admitted that Carrillo had been invited to the
wedding, he denied Puppet was there, even after being shown
a wedding photograph showing Puppet as an attendee.
Gutierrez did not remember having a conversation with
Carrillo. He did not remember Carrillo telling him that he
had been approached by Puppet, who told Carrillo that “If
you’re down for the barrio, let’s go do a hale.” Nor did
Gutierrez remember Carrillo telling him that because he,
Carrillo, did not want Puppet to think he was a “pussy,” he
drove Puppet to the 8th Street and Union Street location;
or that after the murder Carrillo came up to him and said,
“We just did a drive-by.” Gutierrez also denied telling the
detectives that Carrillo was a “youngster” who felt he
“needed to go along” with Puppet, and that Carrillo told him
he drove Puppet to the murder location and saw Puppet with
a gun.

During cross-examination, Gutierrez testified he did not
know he was being tape recorded by the police and that the
detectives put words in his mouth and told him what to say.
He claimed he only told the police that he had “heard
rumors.”

On redirect, Gutierrez denied telling detectives that three
months prior to the murder he visited Joker’s home and that
while he was there, Puppet, who was visiting along with
Carrillo, told the group they needed to do some “hale” and
that they would “start with . . . La Raza Loca and push the
18th Street [gang] out of the area.” Gutierrez also denied
telling detectives that Puppet asked him if he wanted to buy
a gun from him, a gun Gutierrez described as a chrome,
shiny handgun.

Michael Patriquin, a police sergeant, testified that about
two months prior to the murder, at about 2:30 a.m., he was
driving a patrol car when he saw freshly sprayed paint on a
building. As he approached the building, three Hispanic
males jumped into a car and sped away. Sergeant Patriquin
stopped the car. Two of the males identified themselves as
Pedro Carrillo and Alfredo Villa (Joker).

Detective Breuer testified that at some point during his
investigation he determined that a black Honda had been
used in the murder and that Carrillo was the driver.
Detective Breuer admitted that he and his partner had lied
to Carrillo during the October 2004 police interview about
Joker in order to get Carrillo to say “who the shooter
was.” According to Detective Breuer, this was an acceptable
interview technique used by police to show a suspect “that
we know the facts of [the] case in order to try and get him
to tell us what he knows.” When asked what kinds of things
they told Carrillo that were not true, Detective Breuer
stated they told him the surveillance cameras showed
Carrillo driving the black Honda and depicted where his
vehicle was parked, and that the detective had spoken with
Joker, who had given them a statement. Detective Breuer
said that in June 2005, several months after he interviewed
Carrillo, he learned that Puppet was the shooter rather
than Joker.

Detective Breuer testified about the content of Gutierrez’s
statements to police, and identified a tape recording of
the interview he had with Gutierrez. A small portion of the
tape was played for the jury.

D. The Tape Recording of Carrillo’s Police Interview.

On March 22, 2006, the third day of trial, defense counsel
asked the court to play for the jury Carrillo’s
tape-recorded interview with the police. Counsel indicated
that the interview had lasted about three hours and noted
that Carrillo did not know he was being tape-recorded.

The jury was provided with a 300-page transcript of
Carrillo’s interview. A portion of the tape was played for
the jury, to page 80 of the transcript.

E. The Sua Sponte Declaration of Mistrial.

After listening to about a third of the tape,[fn3] the
court indicated it was becoming “increasingly concerned”
that Carrillo’s confession was “coerced,” and stated it did
not “know what to do about it.” Upon being questioned by
the court, Caruso stated that no pretrial suppression
motion had been filed.

The prosecution then presented the People’s position,
claiming that while a small portion of the interview could
be deemed unreliable, the confession, itself, was not
coerced.[fn4]

The court then stated: “Let’s not talk details here. Let’s
talk legal issues. [ ¶ ] You started trial with what
you believe is a confession. You are here in trial. The
court hears the statement. The court is coming to the
conclusion that this is a coerced statement. There was no
motion to suppress. [ ¶ ] What does the court do?”

The prosecutor urged the court to “continue reading until
the portion which is right around the corner, your Honor,
which is page 100 and on. And to take that into
consideration as far as the nature of what’s said.”

The court replied, “I think it’s unfair to the prosecution
for the court to suppress the statement [midtrial]. . . .
[a]nd that is because jeopardy has attached.”

Caruso explained that “this is in fact the trial tactic
that I chose. I thought of suppressing the statement based
on it’s obvious coercion. [¶] However, the tactic I
chose was that it was so coercive and so obvious, the fact
at the very end of the tape — not the very end
— but after a little while he starts saying, okay,
it was [Joker] who was the shooter. I drove [Joker].
[Joker] got the gun from Puppet. And it’s the tactic that I
chose because I found that in my opinion it would be the
most beneficial tactic for . . . Carrillo in a trial.”

The court replied, “The point is, no motion to suppress was
made. We’re in trial. The court is very concerned from a
legal perspective that the court would have suppressed this
statement for being coercive based upon what I have heard
so far. Not only are the detectives lying to him, which is
certainly permissible under the law, it is the extent and
nature of the lies that are of concern. [ ¶ ] I think
the detective’s activities went over the top in their
questioning and we’re only to page 100. [ ¶ ] I’m
advised that what later comes is the defendant finally
acknowledges and frankly the coerciveness of the statement
I think would be implicit in his relinquishing of what the
People now feel is the truth to adopt what the detective
says is — who the shooter was. [ ¶ ] And why
that is not coercive on its face is beyond me and why I
should not suppress this statement [midtrial] is what I am
wrestling with.”

The court reasoned that if it was “told it was a matter of
trial strategy, that we should play this case to the end.
If the defendant is convicted, the court then would
entertain a motion for a new trial, presumably grant the
motion for a new trial on the fact that this was an
impermissible illegally obtained conviction because it rests
on a coerced statement.” The court again stated it did not
know what to do.

The prosecutor once more asked the court to consider the
entire interview. “I don’t believe that at this point if
the court were to read an additional twenty pages that the
defendant would in fact concede to what the detectives are
trying to get him to say. [ ¶ ] He still maintains
it’s Puppet.”

The court refused, stating, “He’s still trying to tell the
truth despite the detective’s most forceful efforts to get
him to vary from what the People now believe is the truth.”
According to the court, what the prosecutor’s office was
“failing to see — is that if the detectives can get
the defendant to tell them something that is false, then why
in the world should this jury be allowed to rely on any
statements the defendant makes about his own involvement?”

The prosecutor then stated: “My response to that, your
Honor, would be I am going to ask them to consider
everything up until the point where he says it’s [Joker].”
The court replied that “the jury should not decide the
issue of whether a statement is coerced. That is not up to
the jury. It’s a legal question for the court. That is the
dilemma I have. I don’t know what to do with this. [
¶ ] Do I suppress it now? What do I do?”

Caruso then stated, “Your Honor, that is why in my opening
statement I said that they’re going to try and convict . .
. Carrillo on a patchwork, on a hodgepodge of facts taken
and put out of context. [ ¶ ] I wanted the jury to
hear the coercive nature of this tape because I wanted them
to see the outrageous conduct in this case. [ ¶ ]
There were other ways . . . there was the danger of having
Oscar Gutierrez and other witnesses [who would testify and
the jury would hear] damaging aspects [with respect to]
Carrillo. In my opinion this was the only way for the jury
to hear . . . why [Carrillo] said the things he said. This
is a two prong problem.”

The court declared that “if we go forward with the case, I
would feel compelled to grant a new trial based upon what I
have heard so far.”

The prosecutor then asked the court for an opportunity to
speak with defense counsel and the court recessed for
lunch. When trial resumed, the prosecutor advised the court
that he had informed his supervisor of the court’s
interpretation of the case with respect to Detective
Breuer’s interview with Carrillo and had been instructed to
ask if the court would strike that portion of the
testimony.

The court refused, stating that the damage had been done,
and that in the court’s view it was “irretrievable,”
because “[t]here was discussion in opening statement[s] of
a confession.”

The court then informed counsel that “having thought about
it, that I should grant the mistrial. I think a motion to
suppress the statement should have been made in advance of
trial. [ ¶ ] I feel that counsel has said it was
trial strategy to do otherwise. I believe that is
incorrect. I hate to base a finding on what the court
perceives to be basically incompetency of counsel but I
think that is what this was, to not move to suppress the
statement.”

The court then stated, “I have a great deal of respect for
Mr. Caruso. I have no doubt that he thinks this was a good
strategy decision and perhaps it was. But I feel based on
my hearing of the spoken words and the reading of the
transcript, that this was a clearly coercive confession. [
¶ ] My goodness, when a man is influenced to say
something that is false that the prosecution knows is false
or now believes to be false, how in the world can anyone
rely on that as a valid statement of guilt when the
defendant says I was part of it but let me tell you a false
story that’s being coerced by the detective under these
circumstances. [ ¶ ] It’s just incredible to this
court that the district attorney’s office would not see
that and try to base a prosecution on such a statement. [
¶ ] So I am going to declare a mistrial on the
court’s own motion finding that it would be a deprivation
of this defendant’s constitutional rights to go forward.
[¶ ] I am keeping the case. I am going to set it for
retrial on a date certain.”

Caruso then advised the court that “if the People want to
join, I would waive jury and continue the proceedings right
now with a court trial.” The prosecutor did not reject the
offer. Rather, he advised the court that he believed “that
sort of decision on a special circumstance case requires
Chief Deputy approval.”

The court refused to allow the prosecutor to consult with
his office, stating: “No, no, I am not going to mess around
with the district attorney’s office anymore on this. [
¶ ] All right. The court has declared a mistrial.”

F. Carrillo’s Motion to Bar Prosecution.

On April 18, 2006, Carrillo filed a motion to bar
prosecution, asserting that there was no legal necessity
for the mistrial and that it would constitute double
jeopardy to retry him. Caruso further explained his
decision not to move to suppress Carrillo’s confession,
advising that he introduced the taped interview as an
intentional trial tactic, and that his decision was not
“based frivolously or without great thought and input from
others.” Caruso explained that he was “aware of the value
of having a jury hear from [Carrillo] without being
subjected to cross-examination by the assigned district
attorney. And finally, it was clear that there would be an
additional benefit of the jury hearing a completely
different side of the detectives who unquestionably would
testify in the most positive and forthright of ways.”

The trial court stated that a “legal necessity” existed for
the mistrial based on the incompetency of defense counsel
and denied the motion. This petition for writ of
prohibition followed.

II. CONTENTION

Carrillo contends the trial court erred in denying his
motion to bar prosecution because there was no legal
necessity for mistrial under the circumstances of this
case.

III. DISCUSSION

A. Writ of Prohibition.

Prohibition is an appropriate remedy to prevent retrial
when a defendant has been once in jeopardy. (Paulson v.
Superior Court (1962) 58 Cal.2d 1, 5.)

B. Standard of Review.

Although orders denying mistrials are reviewed for abuse
of discretion, it does not appear our Supreme Court has
applied this standard to orders granting mistrials. The
Court’s only pronouncement concerning the standard to be
used in granting a mistrial is that they should only be
granted “when a party’s chances of receiving a fair trial
have been irreparably damaged.” (People v. Bolden (2002) 29
Cal.4th 515, 555.) The People urge us to construe this
language to mean that orders granting mistrials are
reviewed for abuse of discretion. However, we need not
decide the issue because this case involves application of
the principle that an error of law constitutes an abuse of
discretion. (City of Sacramento v. Drew (1989) 207
Cal.App.3d 1287, 1297-1298.)

C. The Double Jeopardy Doctrine.

The double jeopardy clause of the United States
Constitution guarantees that no person shall “be subject
for the same offence to be twice put in jeopardy of life or
limb . . . .” (U.S. Const., 5th Amend.) The provision is
applicable to the states through the Fourteenth Amendment.
(Benton v. Maryland (1969) 395 U.S. 784, 794.) The
analogous clause in the California Constitution provides
that “[p]ersons may not twice be put in jeopardy for the
same offense . . . .” (Cal. Const., art. I, ¶ 15.)
These federal and state provisions are intended to prevent
successive punishments for a single criminal act, assure
that acquittals are meaningful, prevent harassment of the
defendant through a series of aborted criminal proceedings
and to spare the accused the financial, physical and
psychological burdens accompanying trial. (Gomez v.
Superior Court (1958) 50 Cal.2d 640, 644; Curry v. Superior
Court (1970) 2 Cal.3d 707, 714 (Curry).)

Once a defendant is placed on trial in a court of
competent jurisdiction, on a valid accusatory pleading,
before a jury duly impaneled and sworn, a discharge of that
jury without a verdict is equivalent in law to an acquittal
and bars a retrial, unless the defendant consents to the
discharge or legal necessity requires it. (Curry, supra, 2
Cal.3d at p. 712.) A defendant is under no duty to object
in order to claim the protection against double jeopardy and
his silence in the face of an ensuing discharge cannot be
deemed a waiver. (Id. at p. 713.) Even when an error
prejudices a defendant’s prospects of securing an
acquittal, he may nonetheless withhold consent. He may
prefer to proceed with trial rather than begin the process
anew in order to minimize the embarrassment, expense, and
anxiety associated with trial. (Id. at p. 717.) “These
considerations are peculiarly within the knowledge of the
defendant, not the judge, and the latter must avoid
depriving the defendant of his constitutionally protected
freedom of choice in the name of a paternalistic concern
for his welfare.” (Ibid.)

Mistrial in this case was declared midtrial in a court of
competent jurisdiction, on a valid accusatory pleading,
before a jury duly impaneled and sworn. Thus, jeopardy had
attached. Although Carrillo did not specifically object to
the mistrial, neither did he consent. Since the jury was
discharged without a verdict, the only remaining issue is
whether there was a legal necessity for a mistrial.

D. Ineffective Assistance of Counsel Does Not Ordinarily
Constitute Legal Necessity.

1. California Has Placed Limitations on What Constitutes
Legal Necessity.

California provides its citizens a greater degree of
protection against double jeopardy than that provided by
federal law by placing limitations on what constitutes
“legal necessity.”[fn5] (Curry, supra, 2 Cal.3d at p. 716;
Raven v. Deukmejian (1990) 52 Cal.3d 336, 352-355
[California Constitution may be interpreted in a manner
more protective of a defendant’s rights than that extended
by the federal Constitution as construed by the United
States Supreme Court].) A judicial error of law or
procedure does not constitute legal necessity. (Larios v.
Superior Court (1979) 24 Cal.3d 324, 331332, citing Curry,
supra, 2 Cal.3d at pp. 713-714 [even “palpably prejudicial”
errors in evidentiary rulings do not give rise to legal
necessity for declaring a mistrial without the defendant’s
consent].) Rather, “legal necessity for a mistrial
typically arises from an inability of the jury to agree
[citations] or from physical causes beyond the control of
the court [citations], such as the death, illness, or
absence of judge or juror [citations] or of the defendant
[citations].” (Curry, Supra, 2 Cal.3d at pp. 713-714.)

In a case decided after Curry, legal necessity was found
where a judge disqualified himself during a juvenile court
hearing, explaining that he could not fairly and
impartially consider the evidence. (T.P.B. v. Superior
Court (1977) 66 Cal.App.3d 881, 883.) The appellate court
affirmed the grant of mistrial, finding that the
disqualification of a judge does “not involve a mere error
of law or procedure; rather it involve[s] the very
jurisdiction of the trial judge to proceed with the
action.” (Id. at p. 886.)

2. Ineffective Assistance of Counsel Constitutes Legal
Necessity Only in Extreme Circumstances.

Three cases have held that ineffective assistance of
counsel may, in extreme circumstances, constitute legal
necessity for a mistrial. (People v. Manson (1976) 61
Cal.App.3d 102 (Manson); People v. McNally (1980) 107
Cal.App.3d 387 (McNally); People , v. Coleman (1992) 9
Cal.App.4th 493 (Coleman).)

In Manson, the attorney for codefendant Leslie Van Houten
disappeared without a trace near the end of trial. Another
lawyer was appointed, over Van Houten’s objection. (Manson,
supra, 61 Cal.App.3d at p. 197.) Prior to closing argument,
Van Houten moved for a mistrial, arguing that new counsel
could not effectively argue credibility, because of his
absence during the taking of evidence. The motion was
denied. (Id. at p. 198.) On appeal, the court acknowledged
there was no per se rule a mistrial must be granted upon
counsel’s unavailability. (Id. at p. 203, fn. 102.) The
court concluded, however, that fair administration of
justice required reversal, emphasizing that the right to
assistance of counsel is the right to effective
representation, including effective closing summation. (Id.
at p. 198.) The court also discussed at length the
significance of continuity of representation, and concluded
that the dimension of the case was such that substituted
counsel could not assume a meaningful adversary role. (Id.
at pp. 199-201.) Therefore, the substitution deprived Van
Houten of the minimal requirement of effective counsel. The
disappearance of Van Houten’s lawyer was an event of legal
necessity which should have resulted in the granting of a
mistrial, in the same manner as would the absence of judge
or juror. (Id. at p. 202.)

In McNally, a disabling conflict was discovered by defense
counsel midtrial. The trial court declared a mistrial,
prompting the defendant to move for an order entering a
plea of once in jeopardy. (McNally, supra, 107 Cal.App.3d
at p. 389.) The court granted the motion and dismissed the
information, finding the defendant did not consent to the
mistrial, and that there was no legal necessity for its
granting. (Ibid.) The People appealed, claiming that legal
necessity required the mistrial and that the defendant’s
consent was therefore unnecessary. The appellate court
agreed, finding that “the development which led to the
mistrial was not simply a legal or procedural error; rather,
counsel’s belated discovery of his conflict of interest
struck at [the defendant’s] constitutionally guaranteed
right to assistance of counsel. [Citations.] If counsel
must represent conflicting interests or is ineffective
because of the burdens of representing more than one
defendant, the injured defendant has been denied his
constitutional right to effective counsel. [Citations.]”
(Id. at pp. 391-392.) Because defense counsel could no
longer effectively represent the defendant, defense counsel
became “‘absent’ as did the judge in T.P.B. v. Superior
Court, supra, 66 Cal.App.3d 881, when he disqualified
himself.” (McNally, supra, 107 Cal.App.3d at p. 392.) The
court concluded “that when, during a trial, the attorney for
a defendant discovers and declares a conflict of interest,
and when the trial court concludes that conflict may
prejudicially affect the defendant’s right to effective
counsel, legal necessity requires a mistrial. The
defendant’s consent to the mistrial under such
circumstances is unnecessary.” (Id. at p. 393.)

In Coleman, following defense counsel’s opening statement
and after a witness had commenced testifying, the defendant
moved to substitute counsel pursuant to People v. Marsden
(1970) 2 Cal.3d 118. (Coleman, supra, 9 Cal.App.4th at p.
494.) The defendant told the court he wanted a new attorney
because his initial defense counsel had misstated the
evidence in her opening statement. The defendant claimed
that if he testified, the jury would perceive him as a liar
because of defense counsel’s statement. Defense counsel
objected to the Marsden motion and urged the court to grant
a mistrial. The court denied the motion for a mistrial
without prejudice and granted the Marsden motion.
Substitute counsel was appointed, and the case was
continued to allow counsel to prepare for trial. After the
People rested, the defendant moved for mistrial. Defense
counsel argued that his predecessor’s opening statement
necessarily undermined his position in defense of the case
because the jury was left with the impression that
defendant had changed stories between defense counsel. When
asked by the court if he wanted to discharge the existing
jury for another one, the defendant indicated he did not
understand what the court was saying. The prosecutor argued
that the court could not grant a mistrial unless the
defendant specifically asked for one. The court denied the
motion, and the defendant was convicted. (Coleman, supra, 9
Cal.App.4th at p. 495.) On appeal, he claimed that legal
necessity required a mistrial when his defense counsel
misstated the evidence in her opening statement. (Id. at p.
496.) The Coleman court agreed. Relying on McNally and
Manson, the court found that “defense counsel’s
misstatement of the evidence in her opening statement
undermined [the defendant’s] credibility and created a
conflict of interest. This event caused a breakdown in the
relationship between [the defendant] and his counsel and
frustrated the realization of a fair trial.” (Coleman,
supra, at pp. 496-497.) The court concluded that, as in
McNally, “the conflict between [the defendant] and his
counsel amounted to legal necessity for a mistrial.”
(Coleman, supra, at p. 497.)

3. The Present Case Did Not Involve Extreme Circumstances.

The People claim that this case falls within the parameters
of Manson, McNally and Coleman.[fn6] We disagree. In
Manson, the defendant’s attorney disappeared midtrial and
substitute counsel, claiming he could not effectively
represent his client, requested a mistrial. In McNally,
defense counsel requested a mistrial after concluding he
was ethically barred from representing his client because
of a conflict of interest. In Coleman, the defendant
requested a mistrial based on substitute counsel’s claim
that he could not effectively represent his client because
of his predecessor’s negligence. None of these factors were
present prior to the trial court’s declaration of mistrial
in this case. Neither Caruso nor Carrillo requested a
mistrial, defense counsel did not absent himself during
trial, no ethical bar prevent defense counsel from
representing his client, and there was no evidence that a
breakdown in the relationship between Caruso and Carrillo
had occurred.

The development that led to the trial court’s declaration
of mistrial was Caruso’s decision to introduce Carrillo’s
confession into evidence. After listening to about a third
of Carrillo’s taped interview, the court became
“increasingly concerned” that his confession had been
coerced.[fn7] The court, out of the presence of the jury,
conducted a hearing, seeking guidance from counsel about
what course of action to take. The People took the position
that the statement was not illegally obtained. Caruso
advised that although he believed the confession was
coerced, he had valid reasons for introducing it into
evidence. The court did not reject Caruso’s claim. In fact,
the court stated, “I have no doubt that [Caruso] thinks
this was a good strategy decision and perhaps it was.”
Unfortunately, the court did not pursue the issue of
whether the tactic was a valid one under the circumstances
of this case. Instead, the court returned to the issue of
coercion. Ultimately, the court found: (1) the confession
was coerced; (2) because the confession was coerced,
defense counsel should have filed a pretrial motion to
suppress the confession; and (3) counsel’s failure to do so
constituted ineffective assistance of counsel per se. The
trial court erred in so finding. The court seemed not to
understand that while a defendant has a constitutional
right to object to the admission of a confession obtained
by illegal means (People v. Rodriguez (1943) 58 Cal.App.2d
415, 420), a defendant may waive the right, as long as the
waiver is express, i.e., not “arising from mistake and
inadvertence.”[fn8] (Id. at p. 421.) The trial court failed
to inquire of Caruso whether he had discussed the admission
of Carrillo’s statement with his client prior to trial and,
if so, whether Carrillo had expressly waived his right to
have his statement excluded.[fn9] As a result, the trial
court failed to obtain all the information necessary to
make an informed decision as to whether a breakdown in the
relationship between Caruso and Carrillo had arisen
sufficient to constitute “legal necessity” for mistrial.
(See People v. Medina (1980) 107 Cal.App.3d 364, 370
[declaration of mistrial improper because the trial judge
did not have sufficient information upon which to base a
conclusion that there was no reasonable probability that
the jury could agree].) This was judicial error that led to
an abuse of discretion.

4. The Trial Court Should Have Allowed the Case to Proceed
to Judgment.

Where, as here, a trial court becomes convinced that
defense tactics are denying a defendant a fair trial, the
proper course of action, in the absence of the type of
extreme circumstances described in Manson, McNally and
Coleman, is to allow the case to proceed to judgment and
then consider whether the defendant is entitled to a new
trial. (See Curry, supra, 2 Cal.3d at p. 714; see also
State v. Harrison (1998) 578 N.W.2d 234, 239 [sua sponte
declaration of a mistrial because of perceived inadequacy
of defense counsel is, and should be, an extremely rare
event; even when an inadequacy exists, a far safer practice
would be for the court to intervene only in ruling on post
trial motions following a conviction, if indeed a
conviction occurs]; Com. v. Phetsaya (1996) 663 N.E.2d 857,
861 [unwise for judge to declare a mistrial due to
counsel’s alleged ineffectiveness because it is a “chancy
business” to predict a verdict a jury may return in a
case].) This is what should have occurred in this case.
Once Carrillo became aware of the trial court’s willingness
to declare a mistrial, the decision as to the extent of the
prejudice allegedly caused by Caruso’s decision to
introduce Carrillo’s confession was for Carrillo and his
counsel. (Curry, supra, 2 Cal.2d at pp. 713-714.) The trial
court’s decision to declare a mistrial stripped Carrillo of
his right to maintain primary control over his trial and
may well have compromised his effort to prove his
innocence.

E. Defense Counsel’s Tactics Were Valid in Any Event.

Even if we were to hold that ineffective assistance of
counsel in less extreme circumstances than those described
in Manson, McNally and Coleman constitutes legal necessity
for mistrial, we find no inadequacy of counsel under the
facts of this case. According to the People, Carrillo’s
only viable defense was to deny being the driver of the
getaway car, and that by introducing Carrillo’s statement
into evidence, Caruso withdrew a potentially meritorious
defense. (People v. Ellers (1980) 108 Cal.App.3d 943, 952
[defendant’s case seriously damaged by his attorney’s
failure to move to suppress evidence].) We disagree.

A successful motion to suppress Carrillo’s statement would
not seriously have weakened the prosecution’s case. The
evidence establishing Carrillo as the driver of the vehicle
used in the murder, even without his confession to police,
was strong. The prosecution established, through Gutierrez,
that Carrillo, Joker and Puppet left Gutierrez’s wedding in
Carrillo’s vehicle to commit criminal acts in an effort to
instill fear of and respect for the Orphans gang. While the
People downplay the effect of Gutierrez’s statements to
police because of his denials on the stand and because the
prosecution was required to impeach him, his statements
were tape-recorded. Juries are increasingly familiar with
gang culture and the reasons a gang member may deny
statements made to police. Thus, it is unlikely the jury
would have given any credence to a defense based on
Carrillo’s claim that he was not the driver of the getaway
car.

Carrillo’s defense was that he did not intend to commit any
crime and did not know that Puppet intended to commit a
crime. Since Carrillo had no intention of taking the stand,
the only evidence available to support his defense was
contained in his three-hour tape-recorded interview with
the police. While the tape contained statements
incriminating Carrillo, Caruso intended to argue that these
statements were the product of police coercion, and that if
the jury listened to the entire tape, the jury would
understand that Carrillo told the truth when he stated
that, although he drove Puppet to the murder location, he
did not know Puppet intended to commit murder and other
crimes. We acknowledge that evidence was presented which
indicated Carrillo was a willing participant in Puppet’s
crimes, including statements made by Gutierrez. However,
Carrillo intended to argue that the statements made by
Gutierrez, like those he, Carrillo, made to police, were
the product of illegal acts of police coercion. Given the
circumstances of this case, we conclude that Carrillo’s
defense that he did not intend to participate in any crime
was more likely, or just as likely, to succeed as Carrillo’s
denying that he drove the vehicle used in the murder.

“There are countless ways to provide effective assistance
in any given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.”
(Strickland v. Washington, supra, 466 U.S. at p. 689.) On
this record, we cannot conclude that Carrillo’s chances of
receiving a fair trial were “irreparably damaged” by
Caruso’s trial tactics. (People v. Bolden, supra, 29
Cal.4th at p. 555.)

IV. DISPOSITION

We “are not unmindful of the apparent irony in denying the
trial court jurisdiction to proceed because of a ruling
made, at least in part, obstensibly for the benefit” of a
defendant. (Curry, supra, 2 Cal.3d at p. 718.) However,
there was no legal necessity for the trial court’s sua
sponte declaration of a mistrial. Thus, Carrillo’s motion to
bar retrial should have been granted.

Let a peremptory writ of prohibition issue as prayed. The
order to show cause is discharged. The temporary stay is
vacated. The trial court is directed to set aside the order
denying Carrillo’s motion to bar retrial and to issue a new
and different order granting the motion.

We concur:

DOI TODD J.

ASHMANN-GERST J.

[fn1] The prosecutor said that a gang officer would testify
that in gang parlance doing a “hale” meant that the gang
members were going to do a “job” to show their loyalty to
the gang. Doing a “job” meant the gang members were going
to go out into the community to instill respect for and
fear of the gang. If the individuals they confronted were
rival gang members (enemies), they would be shot. If the
individuals were “random citizens,” they would be robbed.

[fn2] The prosecutor explained that a gang member would
understand this statement to mean that Puppet was going to
protect the gang’s “turf” by confronting anyone on gang
territory and letting them know the territory belonged to
the Orphans gang.

[fn3] The court stated it had “listened to the tape for the
first hundred pages of the transcript.”

[fn4] The prosecutor stated: “It’s actually at page 100 at
the very bottom where . . . Carrillo gives the rendition
which we believe to be the full rendition from being at the
wedding to what happens at the very end. It’s the entire
— it lays everything out. And [Carrillo] continues
to state in this version that it’s Puppet, that it’s not
[Joker]. [ ¶ ] Our position is, that the only
portion of this statement that’s unreliable are those
portions that deal with — I guess the whole mantra,
the theme of this interview, that they’re trying to have him
say it was Joker. But I don’t think — there is no
other area where they are using any coercion or any
influence to try to get him to say anything else. [
¶ ] They’re not trying to get him to talk about
anything except they’re trying to get him to say that the
person in the photo is Joker and I think when you have
something limited like that — it would be very
different if he’s saying, I don’t know anything about it. I
don’t know anything about it.”

[fn5] The People contend that the double jeopardy clause of
the state Constitution should not be construed differently
from its federal counterpart, and that the California
Supreme Court’s “reasons for not following United States
Supreme Court standards, as expressed in [Cardenas v.
Superior Court (1961) 56 Cal.2d 273 and Curry] . . . are no
longer valid.” As an intermediate appellate court, we have
no authority to overrule our state’s highest court. (People
v. Briscoe (2001) 92 Cal.App.4th 568, 595.)

[fn6] In addition to Manson, McNally and Coleman, the People
point to an out-of-state case, State v. Moran (1988) 753
P.2d 333, for the proposition that ineffective assistance
of counsel constitutes legal necessity for a mistrial. In
Moran, the trial court found that defense counsel’s
performance was so deficient that it amounted to
ineffective assistance of counsel and granted a mistrial.
(Id. at p. 335.) The Montana Supreme Court affirmed,
finding “manifest necessity” for the mistrial because the
attorney was too inexperienced to conduct a felony criminal
trial. (Id. at p. 336.) We are not inclined to follow an
out-of-state case, especially one decided under the less
restrictive “manifest necessity” federal standard. In any
event, we believe Moran should be narrowly read to mean
that legal necessity may exist in instances where defense
counsel’s conduct severs the attorney-client relationship
and thus amounts to no representation at all. This reading,
we believe, is consistent with Manson, McNally and Coleman.

[fn7] We will assume for purposes of this petition that
Carrillo’s confession was coerced. However, the trial
court’s refusal to review all of the statement before
deciding the issue of coercion causes us concern,
especially since the court’s finding of coerciveness led to
the declaration of a mistrial.

[fn8] “It is for the defendant to decide such fundamental
matters as whether to plead guilty [citation], whether to
waive the right to trial by jury [citation], whether to
waive the right to counsel [citation], and whether to waive
the right to be free from self-incrimination [citation]. As
to these rights, the criminal defendant must be admonished
and the court must secure an express waiver; as to other
fundamental rights of a less personal nature, courts may
assume that counsel’s waiver reflects the defendant’s
consent in the absence of an express conflict. [Citation.]”
(In re Horton (1991) 54 Cal.3d 82, 95.) In our view, a
defendant’s constitutional right to exclude a coerced
confession is not a fundamental constitutional right
requiring admonishment by the court.

[fn9] Caruso had a duty to consult with Carrillo on
important decisions and to keep the defendant informed of
important developments in the course of the prosecution.
(Strickland v. Washington (1984) 466 U.S. 668, 688.)