P. v.
Filed 2/6/13 P. v. Hermosillo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ISRAEL
DEJESUS HERMOSILLO,
Defendant
and Appellant.
E054130
(Super.Ct.No.
FVA900234)
OPINION
APPEAL from the Superior
Court of
Bernardino County.
Arthur Harrison, Judge. Affirmed.
Victoria Barana and Howard C. Cohen,
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 Alana Cohen Butler, Deputy Attorneys
General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Israel Hermosillo appeals
from his conviction of commercial robbery
(Pen. Code, § 211, counts 1 & 5),
211, count 3), and assault with a semiautomatic firearm (§ 245, subd. (b),
counts 2, 4, & 6) with associated enhancements. Defendant contends the trial court erred in
denying his motion under Miranda v.
Arizona (1966) 384 U.S.
436 (Miranda) to exclude
incriminating extrajudicial statements made while in custody and in response to
interrogation. We find no error, and we
affirm.
II. FACTS AND
PROCEDURAL BACKGROUND
A. AM/PM Robbery
Gloria Gutierrez and Alejandro Reyes
were working at an Arco AM/PM gas station in Fontana
on December 6, 2008. About 5:40
a.m., a man wearing a bandanna covering his face, a plaid shirt,
and a black hooded sweatshirt, entered the store. The man fired a gun and then asked Gutierrez
for money. She gave him $70 to $80 from
the cash register while he pointed his gun toward her face from a distance of
two to three feet. The man asked for
money from the safe, and Gutierrez told him she did not have the key. The man became angry, and he fired a second
shot right past Gutierrez.
Reyes was working inside the cooler
when he heard two abnormally loud noises.
He left the cooler to investigate, and a man came out from behind Gutierrez,
pointed a gun at him, asked for money, and told him to open the safe. Reyes said he did not have the key. The man told Reyes to get to the ground, but
Reyes did not at first understand him, and the man fired three shots in Reyes’s
direction. The man then ran toward the
Superior Market
title="">[2] across the street. A surveillance videotape of the incident was
played for the jury.
In January 2009, a police officer
showed Reyes a photographic lineup of men with their lower faces covered, and
Reyes said that defendant’s photograph, taken in 2006, resembled the robber,
although the robber had looked older.
B. Valero Gas Station Robbery
Dayuth Deth was working at a Valero
gas station in Fontana on January 23, 2009. About 11:00
p.m., a man wearing a hooded jacket, with something covering the
lower part of his face, entered the store and wandered around for a few
minutes. The man bought a can of oil,
and as he was leaving, Deth saw a gun in his jacket pocket. Deth called 911.
Other customers cleared the store a
few minutes after the man had left, and the man then reentered and pointed a
gun at Deth’s face and told him to put money in a bag. Deth gave him $150 to $200 from the cash
register. The man left the gas station
and went over a block wall into a field.
A surveillance videotape of the incident was played for the jury. On January 25, Deth identified
defendant’s photograph from a photographic lineup.
C. Police Investigation
About 11:10 p.m. on January 23, 2009, a police
officer searched the field where the suspect had run and found a magazine for a
semiautomatic handgun with three bullets in it and a nine-millimeter bullet
beside the magazine. Later that night,
another officer located a nine-millimeter semiautomatic Ruger handgun in
another nearby field about 20 feet west of Tokay
Street.
There was no magazine in the gun.
On January 24, a police officer noticed a man who matched the
description of the Valero robbery suspect; the man appeared to be looking for
something in the bushes near Tokay Street
about 100 yards from where the gun had been found. Defendant told the officer he was looking for
his dog, and he pointed to a dead dog nearby.
Defendant said his dog had run away a day or two earlier, but the dead
dog appeared to have been dead well over a week. Defendant was wearing a gray shirt, black and
white shoes, and dark pants, and he had a key lanyard around his neck. Defendant had a scab on his right hand, and
he said he had recently removed a bandage.
The man shown in the surveillance videotape of the Valero robbery had a
bandage on his right hand and was wearing a gray shirt under his jacket, black
and white tennis shoes, and black pants, and he had a key lanyard around his
neck.
Also on January 25, officers executed a search warrant for the
house where defendant was renting a room.
In defendant’s room, they found a paycheck stub in defendant’s name from
Superior Market and a pair of black pants similar to those worn by the suspect
in the Valero robbery. A single spent
nine-millimeter shell casing was found in the pocket of the pants. The officers also seized an empty box of Wolf
nine-millimeter rounds, two bandannas, and a jacket with a hood which were
similar, but not identical, to those worn by the robber in both incidents. Defendant was arrested for the Valero
robbery.
Five spent shell casings found at the scene of the AM/PM robbery and
the spent shell casing found in defendant’s pants pocket all were determined to
have been fired from the recovered Ruger pistol.
Officer David Campa testified that after he learned of the ballistics
results, he went to defendant’s house to interview him about the AM/PM
robbery. Officer Campa knocked on
defendant’s bedroom door, and defendant stepped out into the hallway. Before the officer could say anything,
defendant “explained that he had already bailed out on a previous robbery and I
had nothing on him, the previous robbery being the Valero Gas Station
one.†The officer “indicated that [the
police] had evidence that led [them] to believe he was a suspect involved in an
additional robbery. And during the
commission of that robbery, he fired towards the actual store clerk, trying to
kill him.†Defendant replied, “‘No, no.’ He admitted to the robbery, but he said he
wasn’t trying to kill nobody. He was
just shooting up in the air.†The whole
exchange had happened within 30 seconds, and the officer had never asked
defendant a question.
Defense Evidence
Defendant testified in his own behalf.
He had been working Monday through Saturday in December 2008 as the
night manager at the Superior Market, and he usually got off work at 7:30
a.m. His work uniform was a dark gray
polo shirt, black pants, and black shoes.
He did not remember where he had been on January 23, 2009. On December 6, 2008, he would have been
at work. He denied committing the
robberies. The empty ammunition box
found in his room was not his; the box had been there since he had first rented
the room in November 2008. He had never
seen the shell casing that had been found in his pants pocket, and he did not
believe the officers were being honest about finding the shell casing in his
pants. He had never possessed or fired a
nine-millimeter handgun and had never possessed bullets for such a gun. Tokay Street is about 50 feet from his
home. When he was stopped by the police
on January 24, 2009, he was looking for his dog. He found the dog dead in the bushes.
Officer Campa had entered his bedroom without knocking in March 2009,
and the officer said he was going to book defendant for attempted murder or
robbery. Defendant said he had nothing
to say to the police. Both officers had
their guns drawn and were pointing them at him.
He never made the statements attributed to him that day.
E. Defendant’s Statement to Police and Motion to
Suppress
Before trial, defendant moved to
suppress his statement made to the police officer on March 14, 2009. At the hearing on the motion, Officer Campa
testified he had gone to the Fontana residence where defendant rented a
room. The officer did not have an arrest
warrant or search warrant; he wanted to talk to defendant about defendant’s
being a possible suspect in the AM/PM robbery.
He knew defendant had been arrested for the Valero robbery and that a spent
shell casing had been found in defendant’s bedroom and that the shell casing
matched those at the AM/PM.
Officer Campa, accompanied by
Officer Snyder, was admitted into the residence by the homeowner. The officers went to defendant’s room and
knocked on the door. Defendant opened the
door and stepped out into the hallway.
Without being questioned, defendant said he was already out on bail in a
case, and the officer had nothing on him.
Officer Campa testified he had explained to defendant that they had
evidence indicating defendant was a suspect in another armed robbery during
which he had shot several rounds at a clerk, trying to kill him. Defendant said, “No, no, no.†He admitted to the armed robbery but denied
he had been trying to kill anyone; he had just been shooting up in the air. Officer Snyder never said anything to
defendant.
Officer Campa was wearing his police
gang unit uniform and was carrying a gun, which remained holstered; Officer
Snyder was similarly dressed. Officer
Campa did not tell defendant he was under arrest, did not handcuff him, and did
not give him any orders. Neither officer
drew his gun. Defendant made his
inculpatory statement within one minute from when the encounter began. The officer did not record defendant’s
statement because it “happened all of a sudden,†and he “wasn’t expecting
[defendant] to make the statement.â€
After defendant made the statement,
Officer Campa took him outside and arrested him. His original intention had been to take
defendant outside to talk in the police vehicle or to ask him to accompany him
to the police department, but he never had a chance to do that.
The trial court found that defendant
had been in “the functional equivalent of an arrest†when he made his
statement, but that no interrogation had taken place. The court explained: “The analysis then switches to whether
interrogation occurred. And it doesn’t
require expressed [sic] questioning,
but it requires either expressed questioning or the functional equivalent. And in a case where an officer is explaining
why he’s there to talk to somebody or what he’s being arrested for or detained
for, I don’t think that arises to the functional equivalent of an
interrogation. [¶] In this matter the officer indicated, in
clarification for the defendant’s edification, that there wasn’t a mistake,
that he already—that the defendant had indicated he was—had already been
arrested and bailed out in a particular incident. The officer was explaining that, no, there’s
something else we need to talk to you about, but there wasn’t questioning that
occurred.â€
F. Verdict and Sentence
The jury found defendant guilty of
commercial robbery (§ 211, counts 1 & 5), attempted commercial robbery
(§§ 664, 211, count 3), and assault with a semiautomatic firearm
(§ 245, subd. (b), counts 2, 4, & 6).
The jury also found true allegations as to counts 1 and 3 that defendant
personally used and personally discharged a firearm (§ 12022.53, subds.
(b), (c)); as to counts 2, 4, and 6 that defendant personally used a firearm
(§ 12022.5, subds. (a), (d)); as to count 5 that he had personally used a
firearm (§ 12022.53, subd. (b)); and as to counts 5 and 6, that he had
personally used a firearm (§ 12022.5, subd. (a)).
The trial court sentenced defendant
to 34 years eight months in prison.
III. DISCUSSION
Defendant contends the trial court erred in denying his motion to
exclude incriminating extrajudicial statements made while in custody
Standard of Review
In reviewing the trial court’s denial of a motion to suppress a
statement purportedly obtained in violation of Miranda, we “accept the trial court’s resolution of disputed facts
and inferences, and its evaluation of credibility, if supported by substantial
evidence. [Citation.]†(People
v. Wash (1993) 6 Cal.4th 215, 235-236.)
We then determine independently whether the challenged statements were
improperly obtained. (
Analysis
Under Miranda, “a suspect
may not be subjected to custodial interrogation unless he or she knowingly and
intelligently has waived the right to remain silent, to the presence of an
attorney, and to appointed counsel in the event the suspect is indigent.†(People
v. Sims (1993) 5 Cal.4th 405, 440 (Sims),
overruled on other grounds in People v.
Storm (2002) 28 Cal.4th 1007, 1031-1032.)
Statements obtained in violation of Miranda
may not be used to establish guilt.
(Sims, supra, at p. 440.)
“Miranda safeguards come
into play whenever a person in custody is subjected to either express
questioning or its functional equivalent. That is to say, the term ‘interrogation’ under
Miranda refers not only to express
questioning, but also to any words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response from the
subject.†(Rhode Island v. Innis (1980) 446 U.S. 291, 300-301, fns. omitted (
Stated another way, “[t]he questioning prohibited by
investigation.’†(People v. Patterson (1979) 88 Cal.App.3d 742, 748.) “In deciding whether police conduct was
‘reasonably likely’ to elicit an incriminating response from the suspect, we
consider primarily the perceptions of the suspect rather than the intent of the
police.†(People v. Davis (2005) 36 Cal.4th 510, 554 (Davis).)
In Innis, the defendant was
arrested, given his Miranda admonishments,
and invoked his right to counsel. (
While he was placed in the backseat of a patrol car, two officers in the
front seat discussed their concern that school children would find the murder
weapon, a shotgun, and hurt or kill themselves.
(Id. at pp. 294-295.) The defendant then told the officers he would
show them where the gun was. The United
States Supreme Court held the conversation between the officers was not
interrogation within the meaning of Miranda,
but was “nothing more than a dialogue between the two officers to which no
response from the [defendant] was invited,†and it was not the “‘functional
equivalent’ of questioning.†(
Defendant relies
primarily on Sims and
Officer Campa interrogated him. In
another state for a murder in California, and he invoked his
interview room at the jail, the defendant asked them about being extradited to
California or to South Carolina where he was wanted for other crimes. A police officer from California told the
defendant there was a warrant for his arrest in South Carolina for the murder
of two Domino’s Pizza employees and a warrant for the defendant’s arrest in
California for the murder of another Domino’s Pizza employee, and that the
officer intended to commence extradition
proceedings. The officer “testified
he thereafter ‘explained to Mr. Sims that I was from Glendale. I told him that I was present at the Regalodge
in the City of Glendale on December the 10th, in which a body of a male was
discovered in a room of the Regalodge, room 205, and at this point I had reason to believe that he and a female
companion occupied that room prior to the demise of [the victim] . . . .’
(Italics added.) The officer
further testified on cross-examination that he told defendant that the murder
victim had delivered a pizza to that motel room. Defendant, seated and looking toward the
corner of the interview room, interrupted the officer, stating, ‘I had to kill
that boy.’ Surprised at the remark, [the
officer] asked defendant a question to the effect, ‘What did you say?’ Defendant repeated, ‘I had to kill that
boy.’ [¶] [The officer] continued describing the crime
scene, including the condition of the victim, bound, gagged, and submerged in
the bathtub, and said to defendant that the victim ‘did not have to die in this
manner and could have been left there tied and gagged in the manner in which he
was found.’ Defendant replied, ‘The boy
would have identified me.’†(
officer’s statements were the functional equivalent of interrogation because
they indirectly accused the defendant of the murder and were likely to induce
him to incriminate himself. (
with defendant, [the officer] was aware defendant already had been advised by
the Nevada authorities that they were arresting him for a murder committed in
Glendale. Under such circumstances, and
viewed from an objective perspective, [the officer’s] conduct in describing the
motel-room crime scene, and asserting that defendant had occupied that motel
room and that the victim had delivered a pizza to the room before his death,
would not reasonably have been understood as simply informing defendant of the
charges pending against him or of the next step in extradition
proceedings.†(Id. at p. 442.)
We
conclude that Sims is distinguishable
and is therefore unhelpful to defendant’s position. In Sims,
the defendant had been arrested and had invoked his Miranda rights. When he
asked a question about extradition proceedings, the officer gave a
nonresponsive reply, “focusing upon the investigation, and confronting
defendant with the evidence linking him to the crimes,†and which “served no
legitimate purpose incident to defendant’s arrest or custody.†(Sims,
supra, 5 Cal.4th at p. 443.) Here, in contrast, Officer Campa made a single
statement in response to defendant’s assertion that he was out on bail on a
robbery charge, and the officers had nothing on him. Officer Campa’s statement had the legitimate
purpose of informing defendant of the possible new charge the officers wished to
discuss with him.
title="">[4] In Davis,
after the defendant was arrested, he was placed in a holding cell with the
codefendants after he was invoked his Miranda
rights. The defendant’s conversation
was recorded. During the recording, a
detective entered the holding cell. The
following dialogue ensued:
“‘Det.
DeAnda: Well, you are going to court
tomorrow my friend.
“‘[Defendant]: So what will happen?
“‘Det.
DeAnda: Well we filed murder counts on
you.
“‘[Defendant]: How many?
“‘Det.
DeAnda: Two. Special Circumstances.
“‘[Defendant]: What’s that?
“‘Det.
DeAnda: . . . Special Circumstances means that you can get
life in prison without parole or the death penalty.
“‘[Defendant]: Oh man.
“‘Det.
DeAnda: Alright remember that Uzi?
“‘[Defendant]: Yeah.
“‘Det. DeAnda: Think about that little fingerprint[
on it we’ll see ya (Jail door closes).
“‘[Codefendant]: Say what?
Is he talking about everybody?
“‘[Defendant]: No man he talking about me.’†(Davis,
supra, 36 Cal.4th at pp.
552-553.) The defendant thereafter made
incriminating remarks to his codefendants that were recorded. (Id.
at p. 553.)
On the defendant’s
appeal, our Supreme Court held that the detective “directly engaged in
interrogation when he asked defendant if he ‘remember[ed] that Uzi,’†and “[t]hat
question, after defendant had invoked his Miranda
rights,†elicited an incriminating response. (Davis,
supra, 36 Cal.4th at p. 555.) The court further held that the detective’s
comment that defendant’s fingerprint had been found on the weapon indirectly
accused defendant of shooting the victims and was likely to elicit an
incriminating response. (
We find
question of defendant and did not engage in an extended dialogue with him. Second, the officer’s statement about the
AM/PM robbery was in response to defendant’s assertion that he was already out
on bail and the officers had nothing on him; the officer’s statement thus
served merely to clarify to defendant which of the robberies they wished to
discuss with him.
This case is far
more similar to People v. Haley (2004)
34 Cal.4th 283, in which the defendant had been arrested for murder and placed
in a police car when a detective told him the detective knew the defendant had
committed the murder because his fingerprints had been found at the scene. The defendant replied, “‘You’re right, I did
it.’†(Id. at p. 300 & fn. 7.) The court rejected the defendant’s
argument that his statement had been made in response to police interrogation
because the officer’s statement was not phrased as a question, did not call for
an incriminating response, and merely informed the defendant about evidence
against him. The court explained: “A brief statement informing an in-custody
defendant about the evidence that is against him is not the functional
equivalent of interrogation because it is not the type of statement likely to
elicit an incriminating response.†(
stated: “[T]elling defendant he was a
murder suspect did not call on him to confess; rather, the effect should have
been, and indeed was, the opposite:
Defendant admitted only the obvious (that he had escaped from a work
detail) and denied that he killed [the victim].â€
In
1174, Shedelbower, one of the defendants, was brought to the police station
where he was informed of his Miranda rights
and then waived those rights. After giving
a lengthy narrative in which he made incriminating remarks, he invoked his
right to an attorney. While the
investigators were preparing to leave the interview room and to take the
defendant to the booking area, a detective falsely told Shedelbower that a
stabbing victim had identified his picture as one of the persons who had raped
her and murdered her friend and truthfully told Shedelbower that his
codefendant Dominick was in custody. (
talk about the case without an attorney present. (Ibid.) The trial court admitted Shedelbower’s
statement into evidence, and the Court of Appeal affirmed, explaining: “Inasmuch as the officers had in the earlier
interview told Shedelbower that he was not under arrest, it appears that they
felt obliged to inform him why he was now going to be held in custody. Thus, they informed him that Dominick was
already in custody and further told him that the surviving victim had
identified him from photographs, something the officer knew was not yet
true. We do not find these comments to
constitute interrogation, nor, in the circumstances of this case, to be a form
of subtle softening up.†(
that telling a person why he is in custody does not constitute interrogation is
relevant and persuasive.
We conclude the
trial court did not err in admitting defendant’s statement into evidence.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
RICHLI
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise specified.
name="_ftn2" title=""> [2] Other witnesses referred to the Superior Food
Warehouse and the Superior Grocery Store.
For convenience, we will use Superior Market herein.
