P. v. Fava
Filed 5/8/13 P. v. Fava 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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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,
v.
TROY DANTE FAVA,
Defendant and Appellant.
E055407
(Super.Ct.No. FV1800549)
O P I N I O N
APPEAL from the Superior Court of
Bernardino County.
Jules E. Fleuret, Judge.
Affirmed.
Eric Weaver, 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 James D. Dutton and Sabrina Y. Lane-Erwin,
Deputy Attorneys General, for the Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Troy Dante Fava guilty of
the murder of Adam Atencio (Pen. Code, § 187, subd. (a)),
grand theft (§ 487, subd. (a)), and burglary (§ 459). The jury also found that defendant was armed
with a firearm in each count.
(§ 12022, subd. (a)(1).) In
a bifurcated trial, the court found that defendant had two prison priors. (§ 667.5, subd. (b).) Defendant was sentenced to 35 years to life,
and appeals.
At trial, the evidence showed that Adam Atencio
was shot and killed on March 7, 2008,
at the apartment of Lucas Buckingham in Hesperia, after defendant and several
of his cohorts burglarized the apartment and beat up Buckingham. Buckingham’s Glock handgun was stolen from
the apartment. It was unclear whether
defendant or one of his cohorts shot and killed Atencio with a second handgun,
a Sig Sauer.
title="">[2]
Shortly after the shooting, San Bernardino County
Sheriff’s Deputy Frank Hardin and other deputies entered defendant’s home with
guns drawn. After searching defendant
for weapons, Deputy Hardin told defendant he was a suspect in a shooting that
had just occurred nearby, and asked defendant to step outside so that a witness
could identify him or rule him out as being involved in the shooting. In response, defendant said he had not left
his house all day and could not have been present at the shooting. Defendant was not read his
rights before he made the statement.
On this appeal, defendant claims only that his un
the time of the shooting was admitted in violation of his Miranda rights and Fifth Amendment right against
statement, and Deputy Hardin’s statement to him that he was a suspect was
reasonably likely to elicit an incriminating response.
We conclude that defendant’s exculpatory
statement was properly admitted. Even if
defendant was in custody when he made the statement, he was not being
interrogated. Under the circumstances,
the deputy’s statement to defendant that he was a suspect in the shooting was
not reasonably likely to illicit an incriminating response. Instead, defendant reasonably should have
understood that the statement was to inform him why the officers were there and
why they wanted him to step outside. We
therefore affirm the judgment.
II. FACTUAL
BACKGROUND
Buckingham had two encounters with defendant
before the shooting of Atencio at Buckingham’s apartment on March 7, 2008. We describe the prior encounters before
describing what occurred at the time of the shooting.
A. Events
Preceding the March 7, 2008,
Shooting
Buckingham testified that he first met defendant
at a friend’s house several months before the shooting, when Buckingham was a
marijuana and cocaine dealer. One
morning in February 2008, defendant showed up at Buckingham’s apartment and
woke Buckingham up by pounding on the door.
Buckingham answered, and defendant asked whether he was Buckingham. Buckingham responded by asking, “What’s it to
you?â€
Defendant and Peter Lewis then forced their way
into the apartment. Once inside,
defendant proceeded to kick, punch, and beat Buckingham. While defendant was beating up Buckingham,
Lewis picked up Buckingham’s shotgun.
Lewis pointed the gun at Buckingham, but defendant told him to stop.
Knowing he was a dealer, defendant and Lewis
asked Buckingham where he kept his stash, cell phones, money, and guns. Buckingham denied having anything. After rummaging around the apartment,
defendant and Lewis found Buckingham’s marijuana. Defendant then beat Buckingham more severely
for lying to him. After the beating,
Buckingham’s shirt was soaked in blood.
Defendant and Lewis left the apartment with two
baggies of marijuana, the shotgun, a video camera, and some cell phones. Before leaving, defendant told Buckingham
that if he called the police, every skinhead in Southern California
would be at Buckingham’s door to rape him.
Buckingham believed that defendant attacked him because of a
disagreement Buckingham had with defendant’s girlfriend’s mother.
Buckingham did not report the attack, but
reported to police that his shotgun was taken in a burglary while he was not
home. He testified that he reported the
gun was stolen because it was registered in his name and he was worried what
defendant and Lewis would do with the gun.
Officer Arnold Mathias took the report on February 25, 2008.
Along with the missing shotgun, Buckingham reported that a diamond ring
and $170 in cash were taken. After his
shotgun was taken, Buckingham illegally obtained a .40-caliber Glock handgun.
Buckingham further testified that some time after
the February 2008 incident but before the March 7, 2008, shooting, he was
sitting in his car in his apartment complex when an SUV pulled up behind him
and blocked him in. Defendant got out of
the SUV, walked up to Buckingham’s car, knocked on the window in a hostile fashion,
and told Buckingham they needed to talk.
Buckingham opened his window slightly, pointed his Glock at defendant,
and defendant backed away. Buckingham
then backed his car into the SUV, forced his way out of his parking space, and
quickly drove off. According to
Buckingham, defendant got back into the SUV and the SUV tried to follow
Buckingham, but the SUV lost sight of Buckingham after four or five minutes.
B. The
March 7, 2008, Shooting
On the night of March 6, 2008, Buckingham was in
his apartment with two of his friends, Atencio and Atencio’s brother
Andrew. They drank beer and Tequila,
smoked marijuana, and took Valium and Norco.
Buckingham showed Atencio how to use the Glock.
Buckingham recalled that Atencio was still awake
and at the apartment when Buckingham went to sleep between 3:00 and 5:00 a.m.
on March 7. Buckingham could not recall
whether the Glock was in the kitchen or under his pillow when he went to sleep.
Atencio’s brother Andrew awoke and left the
apartment at 7:00 a.m. on March 7, before the shooting occurred. Andrew recalled there was a gun on the coffee
table that Atencio had handled.
Later on the morning of March 7, Buckingham awoke
to defendant sitting on top of him, beating him up. Defendant hit Buckingham in the face 10 to 20
times. While defendant was beating
Buckingham, Lewis was in the room with a gun and a third person was blocking
the bedroom door, possibly holding a gun as well. Defendant and Lewis then dragged Buckingham
off the bed to the floor, where defendant proceeded to kick him.
Lewis then demanded to know where Buckingham kept
his “stash.†Defendant said, “That’s not
what we’re here to do. Do what we came
here to do,†and Lewis then crouched down and began choking Buckingham. Buckingham could not breathe, became dizzy,
his vision became fuzzy, and he felt like he was going to die. He did not suffer any lasting injuries from
the assault, however.
As Lewis was choking him, Buckingham heard a loud
thud coming from the living room.
Buckingham did not know anyone else was in the apartment. Lewis got off Buckingham, and Lewis,
defendant, and the other man ran from the bedroom. Buckingham got up, but still had fuzzy vision. When he got to the bedroom door, he could see
Lewis firing his handgun towards the front door.
Buckingham estimated that Lewis fired at least
six to seven shots, but he heard a total of 10 to 15 shots. Once the shooting ended, defendant yelled,
“We gotta go now,†and defendant, Lewis, and the other man ran off. Buckingham then went through the living room
and out the front door. Outside, he
found Atencio on the ground, in a planter.
Atencio was gasping for breath and bleeding from his chest. Buckingham called 911, but Atencio died
before help could arrive. Buckingham did
not see his Glock anywhere.
C. Charles
Carr’s Testimony
Charles Carr was arrested on March 8, 2008, and
he and defendant were initially charged with the same crimes. Carr pled guilty to being an accessory to the
crimes (§ 32), and was facing a sentence of up to four years in prison
when he testified for the prosecution at defendant’s trial.
Around two days before the March 7, 2008,
shooting at Buckingham’s apartment, Carr, Christopher Rivera, defendant, and
Lewis were in the SUV, blocking Buckingham’s car from leaving the apartment
complex. Rivera was driving the SUV,
which belonged to Rivera’s mother, and defendant was in the front passenger
seat. The foursome arrived at Buckingham’s
apartment complex in the SUV as Buckingham was leaving. Defendant got out of the SUV and ran to the
driver’s side of Buckingham’s car.
Rivera then backed the SUV behind Buckingham’s car, blocking Buckingham
in.
Carr saw a gun pointed out of the window of
Buckingham’s car, and defendant put his hands in the air and froze. Buckingham then backed into the SUV, sped
off, and defendant jumped back into the SUV.
Rivera was upset that the SUV was damaged, and defendant was saying,
we’re “gonna . . . kick his ass.â€
They followed Buckingham but lost him, and returned to defendant’s home.
On the day of the shooting, Carr, Rivera, Lewis,
defendant, and defendant’s girlfriend were at defendant’s house. Eventually, defendant, his girlfriend, and
Lewis left the house in Lewis’s car, and Rivera followed in Rivera’s car. They dropped defendant’s girlfriend off at a
McDonald’s before proceeding to Buckingham’s apartment.
When Carr arrived at the front door of the
apartment, defendant, Rivera, and Lewis were already inside. From the front door, Carr could hear fighting
coming from the bedroom. Carr saw a
young man on the couch, asked the man what was going on, and the man stood up
with a gun in his hand. After the young
man cocked the gun, Carr ran from the apartment. As he ran, Carr heard more than 10
gunshots. Carr ran around the building
and jumped over a fence.
While running down the street, Carr doubled back
and saw defendant and the other men getting into their cars. Rivera told Carr to get into Rivera’s
car. Carr asked, “What happened, man?,â€
and Rivera said, “I don’t even know what happened, I had to fire back†or “I
had to shoot back.†Rivera may have also
said something like, “The kid wouldn’t stop shooting, I had to shoot
back.†Rivera also said he did not aim
his gun but simply pointed the gun around the corner.
Carr and Rivera drove to Carr’s house. When they arrived, Rivera pulled out two guns
and said: “I have to have someplace to
put these.†Carr offered a hiding spot
at Carr’s house, and Rivera put the guns there.
Rivera then received a text message that defendant had been arrested,
and retrieved the guns from Carr’s hiding place.
Carr and Rivera then drove to Rivera’s mother’s
house where Rivera wiped the guns down with towels. Carr and Rivera then drove to the desert
where Rivera hid the guns under a rock pile.
Later on March 7, Rivera and Carr returned to Carr’s house. That evening, the police came to Carr’s house
and arrested Rivera and Carr. Carr
showed a detective where the guns were hidden in the desert.
D. Ballistics
and Other Prosecution Evidence
Atencio suffered two gunshot wounds to his right
chest and one to his left chest. The
left chest wound was fatal. It took
Atencio several minutes to die, and he could have walked 15 to 20 feet before
collapsing.
The guns the police recovered from the rock
formation were Buckingham’s Glock and a Sig Sauer nine-millimeter. The Sig Sauer was registered to Rivera’s
father. Criminalist William Matty
testified that three bullet casings recovered from the apartment were fired by
the Glock, and two were fired by the Sig Sauer.
All of the bullet fragments removed from
Atencio’s body were consistent with the Sig Sauer. Other fragments were consistent with both
guns, and some fragments were too damaged to identify. Criminalist Hazel Whitworth believed the Sig
Sauer was fired from the doorway of the apartment towards the outside.
Defendant’s
girlfriend, Stephanie Barling, was interviewed by police, and a tape of the
interview was played for the jury.
Barling said that before they left defendant’s house on March 7, she
overheard defendant tell Lewis, “Don’t worry, they’re strapped,†meaning that
Carr and Rivera had guns. She was
concerned and told defendant, “don’t go being stupid, please.†Defendant told her not to worry.
E. Defendant’s
UnMirandized Statement to Deputy
Hardin
At trial, the jury heard Deputy Hardin testify
that he spoke with Buckingham shortly after the shooting on March 7, 2008, then
went to defendant’s house with several other deputies. Defendant’s house was only two blocks away
from Buckingham’s apartment. When the
deputies contacted defendant inside his house, it appeared that defendant had
just gotten out of the shower. Deputy
Hardin told defendant that he was a suspect in a shooting that had occurred a
couple of blocks away. In response,
defendant said he had been home all day and could not have been at the scene of
the shooting. Deputy Hardin then took
defendant outside to participate in an in-field lineup, and waited for other
officers to bring Buckingham to the house.
After he saw Buckingham arrive in the backseat of a patrol car,
defendant told Deputy Hardin that he did not know who Buckingham was.
III. ANALYSIS
Defendant claims his statement to Deputy Hardin
that he had been home all day and could not have been present at the shooting
was admitted in violation of his Miranda
rights. We disagree. As we explain, defendant did not make the
statement in response to a question or statement designed to elicit an
incriminating response—even if defendant was in custody when he made the
statement.
A. The
Evidence Code Section 402 Hearing
Before defendant’s statement to Deputy Hardin
that he had been home all day was admitted, Deputy Hardin and defendant
testified in an Evidence Code section 402 hearing to the circumstances surrounding
the statement. Their testimony and the
trial court’s ruling that the statement was admissible are described
below.
1. Deputy
Hardin’s Testimony
Deputy Hardin explained that he identified
defendant as a suspect in the shooting after Buckingham told him that “Troyâ€
was at the scene of the shooting and that “Troy†lived on “I and Sultana.†Deputy Hardin was familiar with defendant,
knew where he lived, and knew he was on parole.
Deputy Hardin arrived at defendant’s house, along
with approximately four other deputies.
The deputies set up a perimeter around the house. Deputy Hardin then
went to the front door and was allowed inside by a woman, possibly defendant’s
girlfriend. Deputy Hardin entered the
house with his gun drawn, followed by at least one other deputy who also had
his gun drawn.
Deputy Hardin called out for defendant as he made
his way down a hallway. Defendant came
into the hallway from a back bedroom, holding his young daughter in his
arms. Upon seeing the child, Deputy
Hardin lowered his weapon. He asked
defendant whether he could pat him down for weapons, and defendant agreed. Defendant placed his daughter on the floor
and approached the deputy with his hands up.
It appeared that defendant had just taken a shower. Deputy Hardin holstered his weapon for the
patdown, but another deputy kept his gun trained on defendant until it was
ascertained that defendant had no weapons.
Deputy Hardin was using a “normal†tone of voice
with defendant when he spoke to him in the hallway. After the patdown, Deputy Hardin told
defendant he was there because a shooting had just occurred several blocks
away, and he had information that defendant may have been involved. He told defendant that a witness could
identify him or rule him out as being involved, and defendant agreed to step
outside for an in-field lineup. On the
way outside, defendant made the statement he claims was admitted in violation
of his Miranda rights—that he could
not have been at the scene of the shooting because he had not left home all
day. Three or four minutes passed
between the time Deputy Hardin first encountered defendant in the hallway and
the time defendant made the statement.
Defendant was not handcuffed when he made the
statement, or immediately after he walked outside. Outside, Deputy Hardin stood next to
defendant while they waited 20 to 30 minutes for Buckingham to arrive. Four men were in the in-field lineup,
including defendant. Buckingham was
brought by in a patrol car. When
Buckingham saw defendant, he said, “That’s him, that’s him, that’s the son of
bitch that shot him.â€
Deputy Hardin then handcuffed defendant, placed
him in the back of a patrol car, and told him he was being taken to the station
for further investigation. On the way to
the station, defendant said he did not know who “that guy†was, referring to
Buckingham, but not by name. Deputy
Hardin confirmed that, during the in-field lineup, defendant was being detained
and would not have been allowed to leave, but Deputy Hardin did not tell defendant
he was being detained at that time.
2. Defendant’s
Testimony
Defendant testified he had just finished changing
his two-year-old daughter in the back room of his home when the police
arrived. He knew the police were there
before he stepped out of the back room.
Deputy Hardin handcuffed him in the hallway after he patted him down for
weapons. Deputy Hardin did not make him
put his hands on the wall when he patted him down. After he was handcuffed, defendant told
Deputy Hardin that he had not left his house all day. He did not recall Deputy Hardin asking him
any questions.
3. The Trial
Court’s Ruling
Defense counsel
argued that defendant was in custody in the hallway and that Deputy Hardin’s
statement that he was a suspect in the shooting constituted an “implied
accusation,†if not a direct accusation, and an interrogation. The prosecutor argued that defendant did not
make the statement in response to an interrogation, even if he was in custody
when he made the statement.
The court found Deputy Hardin’s testimony that he
did not handcuff defendant inside the
house more believable than defendant’s testimony to the contrary. The court also found that Deputy Hardin’s
statement that defendant was a suspect in the recent shooting was not
“calculated to solicit a response†from defendant, and “the words themselves
[did] not suggest a response.†The court
said it was reasonable for Deputy Hardin to explain why he was there, and
defendant was not being interrogated when he told the deputy he had been home
all day. The court further found that
defendant was not in custody until after Buckingham identified him in the
in-field lineup, and he was handcuffed and placed in Deputy Hardin’s patrol
car.
Accordingly, the court ruled that the prosecution
could introduce evidence of: (1)
defendant’s statement to Deputy Hardin in the hallway that he had been home all
day and could not have been present at the time of the shooting; and (2)
defendant’s subsequent statement that he did not know who Buckingham was.
B. Analysis
The Miranda
rule holds that any statements a person makes, whether exculpatory or
inculpatory, during a custodial interrogation without first being advised of
his or her Miranda rights
are inadmissible to prove the defendant’s guilt. (Berkemer
v. McCarty (1984) 468 U.S. 420, 429; Miranda,
supra, 384 U.S. at p. 444.) The rule
is designed to protect the defendant’s Fifth Amendment right against
self-incrimination (Berkemer v. McCarty,
supra, at p. 428), and is concerned with the danger that a person will be
induced to make incriminating statements he or she would not make but for the
inherently coercive nature of a police-dominated atmosphere (
781 F.2d 671, 673). Thus,
there is a custodial interrogation. (
291, 301; People v. Mickey (1991) 54
Cal.3d 612, 648.)
In reviewing the trial court’s ruling that
defendant was not in custody and was not being interrogated when he told Deputy
Hardin that he had been home all day, we accept the court’s factual findings
provided substantial evidence supports them.
(People v. Mayfield (1997) 14
Cal.4th 668, 733.) However we
independently determine, based on the undisputed facts and those properly found
by the trial court, whether defendant’s challenged statement was illegally
obtained. (Ibid.)
Applying these principles, we conclude that defendant was not being interrogated
when he told Deputy Hardin that he had been home all day and could not have
been present at the time of the shooting.
It is therefore unnecessary to determine whether defendant was in
custody when he made the statement to Deputy Hardin.
Interrogation refers to express questioning and
any words or actions “on the part of the police . . . that the police
should know are reasonably likely to elicit an incriminating response from the
suspect.†(Rhode Island v. Innis, supra, 446 U.S. at p. 301, fns. omitted;
p. 732.)
Under the totality of the circumstances, Deputy
Hardin’s statement to defendant that he was a suspect in a shooting that had
just occurred only blocks away from his home was not reasonably likely to
elicit an incriminating response from defendant. After the deputy told defendant he was a
suspect, he told defendant there was a witness who could identify him or rule
him out as being involved in the shooting, and asked defendant to step outside
to participate in an in-field lineup. In
this context, the deputy’s statement that defendant was a suspect was necessary
to inform defendant why the deputies were there and why they wanted him to come
outside. It was not reasonably likely to
elicit an incriminating response from defendant, or get defendant to admit or
deny that he was involved in the shooting.
Miranda
warnings are not required when, as here, a suspect, unprovoked by police
officers, makes a voluntary and spontaneous statement. As Miranda
stipulates: “Any statement given freely and voluntarily without any compelling
influences is, of course, admissible in evidence.†(Miranda,
supra, 384 U.S. at p. 478.)
A reasonable person in defendant’s position would
have understood that he was under no compulsion to speak when told he was a
suspect in the shooting. Defendant’s
statement to Deputy Hardin that he had been home all day and could not have
been involved in the shooting was given voluntarily, and was not admitted in
violation of defendant’s Miranda
rights. Defendant’s Miranda rights were not in play when defendant made the statement,
because defendant was not being interrogated.
The present case is roughly analogous to
the defendant was not being interrogated when he told officers where a shotgun
was located. The defendant made the
statement in response to the comments the officers made, while riding in a
patrol car with the defendant, that they hoped to find a missing shotgun that
had been used in a robbery before a handicapped child found it and hurt
themselves. (Rhode Island v. Innis, supra, 446 U.S. at pp. 293-294,
302-303.) The officers’ comments were
not reasonably likely to elicit an incriminating response because nothing in
the record suggested that the officers knew the defendant was “peculiarly
susceptible to an appeal to his conscience concerning the safety of handicapped
children.†(Id. at p. 302.) Here too,
there is no indication that Deputy Hardin knew or reasonably should have known
that telling defendant he was a suspect in the shooting, in connection with
telling him why the deputies were in his house and why they wanted him to come
outside, would elicit an incriminating response from defendant.
In sum, Deputy Hardin was explaining to defendant
why he was in his house and why he wanted him to come outside when he told
defendant he was a suspect in the shooting.
In these circumstances, the deputy’s statement to defendant that he was
a suspect was not an interrogation, and the admission of defendant’s
purportedly responsive statement that he had been home all day and therefore
could not have been involved in the shooting did not violate defendant’s
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
RICHLI
Acting
P. J.
MILLER
J.
name="_ftn2" title=""> [2] This court has previously affirmed judgments
convicting defendant’s cohorts, Christopher Shane Rivera and Peter Michael
Lewis of first degree felony murder, robbery, and burglary in connection with
the March 7, 2008, shooting of Atencio.
(People v. Rivera (Apr. 18,
2012, E052339) [nonpub. opn.]; People v.
Lewis (Mar. 22, 2011, E050174) [nonpub. opn.].)
