P.
v. Jimenez

 

 

Filed
10/15/13  P. v.
Jimenez CA2/4

 

 

 

 

 

NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

 

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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION FOUR

 

 

 

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   GERMAN JIMENEZ,               Defendant and Appellant.

B241724         (Los Angeles County       Super. Ct. No. KA089986)

 

 

 

            APPEAL
from a judgment of the Superior Court of
Los Angeles County, Robert M. Martinez, Judge.  Affirmed as modified.

            Marta
I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy
Attorneys General, for Plaintiff and Respondent.

introduction

            A
jury convicted defendant German Jimenez of three counts of willful, deliberate,
premeditated attempted murder of a peace officer (Pen. Code, §§ 664, 187, subd.
(a); counts 1-3);href="#_ftn1"
name="_ftnref1" title="">^[1] two counts of assault on a peace officer with
a semiautomatic firearm (§ 245, subd. (d)(2); counts 4 & 5); one count
of assault upon a peace officer with a deadly weapon or by force likely to
produce great bodily injury
(§ 245, subd. (c); count 6); two counts of willful, deliberate,
premeditated attempted murder (§§ 664,
187, subd. (a); counts 7 & 8); two counts of assault with a semiautomatic
firearm (§ 245, subd. (b); counts 9 & 10); and one count of attempted
carjacking (§§ 664, 215, subd. (a); count 11).  The jury found true the allegation as to
counts 1, 2, 4, 5, 7, and 8 that appellant personally and intentionally
discharged a firearm proximately causing great bodily injury (§ 12022.53,
subds. (c) & (d)), the allegation that as to counts 9 and 10 appellant
personally used a firearm (§ 12022.5) and inflicted great bodily injury as a
result of discharging a firearm from a motor vehicle (§ 12022.55), and that as
to count 9 appellant personally inflicted great bodily injury (§ 12022.7).

            The
court sentenced appellant to a total of two life terms, plus 145 years to life,
plus 23 years and six months, consisting of the following:  40 years to life on each of counts 1 and 2
(15 years to life for the substantive offense, plus 25 years to life for the
§ 12022.53, subd. (d) firearm enhancement); 15 years to life on count 3;
life on counts 7 and 8 plus 25 years to life for the section 12022.53,
subdivision (d) firearm enhancement as to each count; the upper term of nine
years on count 10, plus 10 years for the section 12022.5 firearm enhancement;
and four years and six months on count 11 (half the upper term of nine
years).  The sentences on counts 4, 5, 6,
and 9 were stayed pursuant to section 654. 
The remaining enhancements were stricken. 

            Appellant
contends on appeal that, due to his voluntary intoxication, there was
insufficient evidence to support the jury’s finding that appellant formed the
specific intent to commit willful, deliberate, premeditated attempted murders
of three peace officers and two other men, and attempted href="http://www.fearnotlaw.com/">carjacking, and that the trial court
erred by admitting appellant’s statement to detectives purportedly taken in
violation of appellant’s Mirandahref="#_ftn2" name="_ftnref2" title="">^[2] rights. 
Appellant also contends and the Attorney General correctly concedes that
the trial court erred by imposing a consecutive sentence as to count 10,
assault with a semiautomatic firearm, when the factual basis for that crime
arose out of the same indivisible course of conduct as count 8, attempted murder,
and therefore the sentence as to count 10 should have been imposed and stayed
pursuant to section 654.  We are not
persuaded by appellant’s contentions as to the specific intent crimes and
admission of his statement.  However,
because we find the trial court erred by imposing sentence as to count 10, we
direct the trial court to modify its judgment accordingly.  In all other respects, the judgment is
affirmed.

factual and procedural
background

I.          Prosecution Evidence

            In
the late afternoon on May 28, 2010, Javier Gonzalez and
Abraham Carrasco were driving a company van to their workplace when they
noticed a dark grey Malibu driving erratically.  As Gonzalez drove the van into an
intersection, the Malibu attempted to pass and
collided with the van.  The van and the Malibu, which was being driven by
appellant and contained one passenger, pulled over to the curb.  Appellant refused to give Gonzalez his
license and insurance information, saying “Fuck you,” and “I’m not giving you
shit.”  Carrasco photographed appellant’s
license plate number.  Appellant pointed
at Gonzalez and Carrasco and said, “I’m going to get you guys,” and then drove
away.  Gonzalez called the police.

            Police
Officer Rick George, a motorcycle officer, responded to the collision.  Officer George parked his motorcycle next to
the van, and Gonzalez and Carrasco showed him a picture of the Malibu’s license plate.

            Appellant
returned, although with no passenger in the car, and parked the Malibu behind the van.  Officer George asked appellant to step out of
his car and provide his information, but appellant did not do so.  Officer George called for backup.  Corporal Glen Eugenio responded to the scene
on his motorcycle.  As Corporal Eugenio
tried to speak to appellant, appellant pulled away from the curb, steered
around the van, drove his car into a driveway just in front of the van, and
stopped.  Appellant then extended his
right arm in the direction of his open passenger side window and fired a
handgun three or four times at Officer George, Gonzalez, and Carrasco.  Gonzalez immediately began running and tore a
ligament in his right knee.  Carrasco ran
and hid behind the van but was hit in the lower leg with two bullets.

            Using
as cover a big rig stopped in the left-hand turn lane, Corporal Eugenio fired
at appellant.  Officer George ran toward
appellant alongside the van, then ran across the street to join Corporal
Eugenio, also firing back at appellant. 
Appellant backed out of the driveway and drove on the wrong side of the
road directly toward the officers. 
Fearful that appellant would run over them, they dove under the big
rig.  Appellant continued to shoot at
them, and they fired back.  Officer
George was struck by a bullet in the right arm, severing his ulnar artery and
nicking his ulnar nerve, which resulted in permanent nerve damage.  Corporal Eugenio was grazed in the leg by a
bullet.

            Appellant
continued driving, turning onto Durfee Boulevard.  Detective Ralph Batres, driving a marked
police car at 47 miles per hour with its lights flashing and siren sounding,
was responding to the scene when he encountered appellant in the Malibu,
driving toward him.  As the two cars
approached one another, appellant suddenly accelerated and steered his car into
Detective Batres’s police car.  Appellant’s
car struck the police car directly behind the driver’s door.  Detective Batres’s car spun around, struck a
parked car, and came to rest in the middle of the street.  Detective Batres suffered neck and back
injuries as a result of the collision. 
Appellant’s airbag deployed, and although his car was damaged he was
able to pull into the driveway of a business.

            David
Lopez was parked nearby.  His 13-year-old
son was also in the car and his 14-year-old daughter was about to get into the
backseat of the car.  Appellant, yelling
and acting bizarrely, got out of his car, ran to Lopez’s car, and jumped on the
hood.  He came to the driver’s door and
tried to open it, then began pounding on the window until he broke it.  He grabbed Lopez and tried to get him out of
the car, but Lopez had his seatbelt fastened. 
Lopez removed his seatbelt, exited the car, and pushed appellant
away.  Appellant and Lopez began fist
fighting.  Appellant fell to the ground
and Lopez backed away, but appellant began searching around his waistband with
his hand so Lopez began hitting him again.

            Detective
Batres’s head was spinning, but he saw appellant and Lopez fighting and
stumbled toward them.  When appellant
began to run away Detective Batres used his taser to stop him.

            Detective
Adam Girgle responded to the scene and placed appellant in handcuffs, telling
him he was being detained pending an investigation.  Appellant was cooperative and coherent.  Los Angeles County Fire Department personnel
arrived and treated appellant, and he was responsive and cooperative in
answering their questions.  Detective
Girgle accompanied appellant when he was transported by ambulance to the
hospital.  Detective Girgle did not
question appellant, but appellant spontaneously stated that he had smoked
methamphetamine earlier in the day.  He
said his car was struck by another vehicle, and that he had used a
nine-millimeter black handgun to shoot at police officers from his car because
he was tired of officers taking his car. 
He said he fired his gun until it was empty.  He offered, “For what I did, I am guilty.”

            At
the hospital, appellant was treated for a gunshot wound to the left hand and a
graze wound to the shoulder.  Appellant
told Detective Girgle that after the collision he got out of his car, fought
with someone, and tried to take that person’s car.  He said he was then “electrocuted” and asked
Detective Girgle if he had tasered him. 
Detective Girgle observed that appellant was cooperative and did not
seem agitated during the time they spent together.

            Because
appellant stated he had smoked methamphetamine that day, Detective Girgle had
hospital personnel test him for drugs. 
Detective Girgle indicated on a drug influence report form that
appellant exhibited some symptoms of being under the influence.  These included poor pupil reaction, severe
muscle rigidity, and agitation.  He did
not know whether the latter two symptoms were due to being handcuffed to the
gurney and having a gunshot wound, or due to narcotics use.  Appellant displayed these symptoms only at
the hospital and not at the crime scene or in the ambulance.  Appellant’s speech was clear and deliberate
at all times.  It did not appear to
Detective Girgle that appellant’s judgment was affected by drugs.

            The
police recovered a nine-millimeter Luger semiautomatic gun on the driver’s side
front floorboard in the Malibu.  Twelve cartridge casings fired from the gun
were found at the scene of the shootout with Officer George and Corporal
Eugenio.

            The Malibu was registered to Aldo
Jimenez (appellant’s brother) and had been parked at his sister’s home in El Monte.  Appellant was not permitted to drive the car
at the time of the incidents described here, as the last time appellant drove
it he was stopped for speeding and the car was impounded because appellant did
not have a driver’s license.

 

II.        Defense Evidence

            >A.         Stipulations

            The
parties stipulated that when appellant was tested at the hospital he had in his
system 27 nanograms of amphetamines per milliliter of blood, and 141 nanograms
of methamphetamine per milliliter of blood. 
When he was arrested, appellant had a piece of paper in his pocket that
contained a brown crystal substance resembling methamphetamine, but the amount
of the substance was insufficient to perform a test to determine its nature.

 

            >B.         Defense
Testimony

            Dr.
Ari Kalechstein testified as an expert in psychology with specialty training in
neuropsychology and forensic psychology. 
He said that methamphetamine use can cause impaired judgment, reasoning
skills, and social perception.  People
who take methamphetamine are more likely to act without thinking about the
consequences, without planning, and without reasoning before they act.  They can also become psychotic and experience
hallucinations, delusions, and paranoia. 
Methamphetamine use can also cause people to act aggressively, to be
irritable, and to snap at people.  People
react differently to methamphetamine use. 
Some users feel euphoric, alert, and more energetic.  Methamphetamine has a half-life in the body
of about 8 to 12 hours, so someone who used it early in the day could still be
feeling the effects later in the day. 
Dr. Kalechstein did not know what time appellant had smoked
methamphetamine the morning of the incident.

            Appellant’s
hospital records indicate he was cursing, snapping his jaw, and being vulgar to
the female nurses.  Dr. Kalechstein said
this type of irritable, aggressive behavior was common in people who are high
on methamphetamine.  He acknowledged
there could be other explanations for appellant’s behavior, however, such as
his being upset and angry because he had been shot and was in pain, and because
he was in police custody.  Appellant’s
erratic driving and behavior toward Lopez were also consistent with
methamphetamine use, as was the fact he escalated a minor traffic accident into
gunfire.

            Dr.
Kalechstein did not meet with or interview appellant or obtain information
about his background or medical history. 
His opinions were based on his review of the police reports, hospital
records, and conversations with appellant’s counsel.  Because the police reports contained
statements from appellant’s family members indicating appellant’s use of
methamphetamine was problematic and affected his behavior, Dr. Kalechstein
did not think it necessary to interview appellant.

            Dr.
Kalechstein opined that, “There is no other explanation for why [appellant]
behaved the way he did, and so methamphetamine intoxication would seem to be
the best explanation for his behavior.” 
The fact that the fire department personnel who treated appellant at the
scene did not observe typical physical symptoms of methamphetamine intoxication
did not change Dr. Kalechstein’s opinion. 
He noted that Detective Girgle observed some such symptoms.

 

III.       Prosecution Rebuttal Evidence

            Los
Angeles Sheriff’s Detectives Kevin Acebedo and Dan McElderry interviewed
appellant in the hospital around 12:45 p.m. on May 29, 2010, the day after the incidents described above.  Appellant told them the Malibu belonged to him but was
registered to his brother, Aldo Jimenez. 
Appellant’s car had been taken away five or six times because he did not
have a driver’s license.  It cost him
over $3,000 each time to get it back, and he was angry about that.

            Appellant
said the collision occurred when Gonzalez refused to allow appellant to merge
into traffic and intentionally struck appellant’s car.  Appellant’s friend, Ana, was in the car with
him.  Appellant pulled over, as did the
van, and Gonzalez and Carrasco began cursing at him and asking for
identification and immigration papers. 
This made appellant angry.  He
refused to give them his information and they argued back and forth.  They laughed at appellant and implied that
because he did not have a driver’s license he could not do anything about the
fact they had caused the accident. 
Appellant dropped Ana off and returned to the scene.  Appellant was so angry that he felt he was
“losing control.”

            When
he returned he saw Officer George.  He
refused to respond to Officer George’s order to get out of the car because he
knew he would lose his car again and he could not afford to get it back.  When Corporal Eugenio knocked on his window,
appellant was angry and drove away.  He
pulled out the gun, pulled into the driveway, and began shooting at Gonzalez
and Carrasco because he was angry about how they had treated him.  He was not aiming at the police officers, but
the officers began shooting at him.  One
of the officers’ bullets struck him as he drove away, and this made him even
angrier and he turned his car around to shoot at the officers.  He saw the officers run under the big rig and
fired at them until his gun was empty.

            Appellant
then drove away without a plan of where to go. 
When he saw the patrol car he decided to crash into it because he was so
angry.  He intended to kill the police
officer or himself.

            After
the crash, appellant’s car was not working properly so he looked for another
car to take in order to get away.  He
told Lopez to give him his car but Lopez refused, so appellant struck the
window hard and broke it.  He and Lopez
began fist fighting.  Appellant saw a
police officer approach and taser him.

            As
appellant was being interviewed, he was given morphine.  At that point he told the officers that he
felt people often laughed at him and insulted him.  He believed people followed him and that
there was a tracking device or surveillance cameras in his car.  Appellant said he had been using
methamphetamine for over one year.  When
he first used the drug it caused him to see faces, shapes, and ghosts, and to
feel cold or as if a tornado was going through him.  On the day of the offenses he had taken two
“hits” of methamphetamine early in the morning. 
He did not feel cold or see ghosts that day.  At the time of the offenses he felt almost
nothing when he used methamphetamine except increased energy.  Appellant said he knew it was an addiction
and that he usually used methamphetamine three or four times per day so the
energy would last all day.

 

IV.       Defense Surrebuttal Evidence

            Dr. Kalechstein
noted that appellant’s statements to Detectives Acebedo and McElderry
demonstrated paranoia, including that appellant thought people were following
him and laughing at him, and that he was under surveillance.  He also exhibited psychotic hallucinations in
that he said he saw ghosts and spirits. 
Dr. Kalechstein opined that appellant’s criminal behavior was caused by
his methamphetamine intoxication and that this opinion was bolstered by
appellant’s statements during the interview that he had been using
methamphetamine for about one year. 
Appellant described being high on methamphetamine as losing
control.  Dr. Kalechstein indicated that
was a layperson’s way of explaining that when a person used methamphetamine
they act without thinking and lose control of their ability to inhibit
responses.

discussion

>I.          Substantial
Evidence Supports the Finding that Appellant Formed the Specific Intent to
Commit Counts 1, 2, 3, 7, 8, and 11

            Appellant
contends there was insufficient evidence to demonstrate that he had the
specific intent to commit willful, deliberate, premeditated attempted murder
and attempted carjacking, because he was too intoxicated at the time of the
offenses to form the specific intent to kill, to premeditate and deliberate, or
to form the specific intent to commit carjacking.  We disagree.

 

            A.         Standard
of Review

            “In
reviewing a sufficiency of evidence claim, the reviewing court’s role is a
limited one.  ‘“The proper test for
determining a claim of insufficiency of evidence in a criminal case is whether,
on the entire record, a rational trier of fact could find the defendant guilty
beyond a reasonable doubt. 
[Citations.]  On appeal, we must
view the evidence in the light most favorable to the People and must presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. 
[Citation.]”’  (>People v. Ochoa (1993) 6 Cal.4th 1199,
1206; see Jackson v. Virginia (1979)
443 U.S. 307, 319.)

            “‘“Although
we must ensure the evidence is reasonable, credible, and of solid value,
nonetheless it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts on
which that determination depends.  [Citation.]  Thus, if the verdict is supported by
substantial evidence, we must accord due deference to the trier of fact and not
substitute our evaluation of a witness’s credibility for that of the fact
finder.  [Citations.]”  (People
v. Jones (1990) 51 Cal.3d 294, 314.)’ 
(People v. Ochoa, >supra, 6 Cal.4th at p. 1206.)”  (People
v. Smith (2005) 37 Cal.4th 733, 738-739.)

 

            B.         Applicable Law Regarding Specific
Intent Crimes

            The
offenses of attempted murder and attempted carjacking are specific intent
crimes.  To find appellant guilty of
attempted murder (counts 1-3 and 7-8), the jury had to find that he had the
specific intent to kill or harbored “express malice” as to each victim.  (§§ 21a, 187, subd. (a) & 664; CALCRIM
No. 600.)  To find that the attempted
murders were committed willfully, deliberately, and with premeditation, the
jury had to find appellant’s decision to kill was considered in advance and
arrived at as a result of considered thought. 
“‘A verdict of deliberate and premeditated first degree murder requires
more than a showing of intent to kill. . . .  “Deliberation” refers to careful weighing of
considerations in forming a course of action; “premeditation” means thought
over in advance.  [Citations.]  “The process of premeditation and
deliberation does not require any extended period of time.  ‘The true test is not the duration of time as
much as it is the extent of the reflection. 
Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly.’ 
[Citations.]”’  (>People v. Koontz (2002) 27 Cal.4th 1041,
1080 . . . .)”  (>People v. Young (2005) 34 Cal.4th 1149,
1182.  See also CALCRIM No. 601.)

            To
find appellant guilty of attempted carjacking (count 11), the jury had to find
that he specifically intended to deprive Lopez of his car, accomplished by
force or fear.  (§§ 21a, 215, subd. (a)
& 664, CALCRIM Nos. 460 & 1650. 
See, e.g., People v. Marquez
(2007) 152 Cal.App.4th 1064, 1067-1068.) 


            As
noted above, appellant contends there was insufficient evidence to demonstrate
that he had the specific intent to commit willful, deliberate, premeditated
attempted murder and attempted carjacking because he was too intoxicated to
form the specific intent to kill, to premeditate and deliberate, or to form the
specific intent to commit carjacking.  A
defendant is entitled to a jury instruction regarding voluntary intoxication
when there is “substantial evidence of the defendant’s voluntary intoxication
and the intoxication affected the defendant’s ‘actual formation of specific
intent.’  (People v. Horton (1995) 11 Cal.4th 1068, 1119; see also >People v. Saille (1991) 54 Cal.3d 1103,
1117 [explaining that a defendant charged with murder is free to show that
‘because of his mental illness or voluntary intoxication, he did not >in fact form the intent unlawfully to
kill’ (original italics)].)”  (>People v. Williams (1997) 16 Cal.4th
635, 677.)

            CALCRIM
No. 625, with which the jury here was instructed, provides that the jury may
consider evidence of the defendant’s voluntary intoxication only in a limited
way.  Here, the jury was permitted to
consider such evidence only in deciding whether the defendant acted with an
intent to kill, or acted with deliberation and premeditation, or acted with an
intent to carjack.  The instruction is
based on section 29.4, which provides as follows:  “(a) No act committed by a person while in a
state of voluntary intoxication is less criminal by reason of his or her having
been in that condition.  Evidence of
voluntary intoxication shall not be
admitted to negate the capacity to
form any mental states for the crimes charged, including, but not limited
to, purpose, intent, knowledge, premeditation, deliberation, or malice
aforethought, with which the accused committed the act.  [¶] 
(b) Evidence of voluntary intoxication is admissible solely on the issue
of whether or not the defendant >actually formed a required specific
intent, or, when charged with murder, whether the defendant premeditated,
deliberated, or harbored express malice aforethought.”  (Italics and bold emphasis added.)

 

            >C.        Analysis

            >By his own admission, appellant returned
to the scene of the collision with Gonzalez and Carrasco because he believed
they had caused the accident and had been disrespectful toward him, and he was
very angry at them.  When he returned and
was approached by officers, he considered the fact he did not have a driver’s
license and did not want to pay to get his car out of impound.  He drove to the front of the van and
positioned himself so he would have a clear shot at Gonzalez and Carrasco and began
firing his handgun.  He stated he was
initially aiming only at Gonzalez and Carrasco, but when the peace officers
began shooting at him and shot him in the wrist, he was angered and turned his
car around in order to shoot back at the officers.

            After
appellant drove away he saw the patrol car being driven by Detective Batres
and, again by his own admission, he decided to crash into it because he was so
angry and intended to kill the police officer or himself.

            After
the crash, appellant’s car was not working properly so he said he looked for
another car to take in order to get away. 
He told Lopez to give him his car but Lopez refused, so appellant broke
the driver’s side window and began fist fighting with Lopez.

            Detective
Girgle testified that upon being arrested appellant was responsive, coherent,
and cooperative.  Although appellant was
rude to the nurses at the hospital, and during his interview expressed bizarre
statements about the effect methamphetamine had had on him since he began using
it a year before, he nonetheless was coherent and remembered considerable
detail about the events of the previous day, and specifically about his thought
process and intent to commit the charged crimes.  Appellant argues on appeal that
methamphetamines impaired his judgment and perception, caused him to take risks
and act aggressively, and exhibit paranoid and psychotic behavior.  But these arguments go to appellant’s >capacity to form the specific intent to
commit the charged crimes, not to whether he actually formed the required intent.  The jury was called upon to determine whether
he formed the specific intent required as to each crime, not to determine
whether his reasoning process was sound. 
Methamphetamines might have played a role in appellant’s incredibly poor
decisionmaking, but by appellant’s own admission he did in fact engage in a
decisionmaking process in advance of his commission of each crime and reached a
decision as a result of considered thought. 
The same evidence established that appellant premeditated and
deliberated before attempting to kill his victims.  Because there was ample evidence to support
the jury’s findings, the jury’s resolution regarding the effect of appellant’s
alleged intoxication had on his formation of the requisite intent to kill and
carjack and ability to premeditate and deliberate is conclusive on appeal. 

 

>II.        Appellant’s
Statement to Detectives Was Properly Admitted

Appellant contends the trial
court erred in admitting his statement to Detectives Acebedo and McElderry
because the officers obtained his statement in violation of >Miranda v. Arizona, supra, 384 U.S. 436.  He asserts he did not knowingly,
intelligently, and voluntarily waive his right to counsel, and that he
attempted to invoke this right but the detectives deceptively undermined his
efforts to do so.  We disagree.

 

A.         Factual
Background

Detective Acebedo began by
reading appellant his rights.  He
informed appellant he had the right to an attorney before and during
questioning.  Appellant indicated his
understanding.  Detective Acebedo then
told appellant that if he could not afford an attorney one would be appointed
for him “before questioning if you wish; do you understand?”  Appellant replied, “In that situation, yeah,
I don’t have money to pay attorney.  Yeah,
you put one or how that — would this work?” 
He continued, “If I don’t have the money —”  The detective said, “Then what happens
is:  when you go to court, the court can
appoint an attorney for you.”  Appellant
said, “Okay.”  Detective McElderry added,
“Yeah, there — they will represent you because you don’t — because you don’t
have money.”  Shortly thereafter he
added, “But just so we’re clear, we just wanna make sure that you’re okay
talking to us without getting to that point of, um, of getting an attorney; do
you understand that?”  Appellant replied,
“Yes.”  Detective McElderry said,
“Okay.  And you’re okay talking with us
right now and trying to explain what happened?” 
Appellant said, “Yes.”

Appellant was concerned that
the detectives might not believe him, but the detectives said they would
discuss that after appellant explained what had occurred.  Detective McElderry reiterated, “So, we just
wanna make sure, are you okay talking to us now and taking care of that,
right?”  Appellant then asked if a
Spanish interpreter were available because although he could speak English, he
might be able to express himself better in Spanish.  The detectives sent for an interpreter.  Detective Acebedo gave appellant a written
form that stated the rights he had explained to appellant and indicated
appellant was choosing to waive those rights. 
Appellant signed the form.  A
Spanish-speaking deputy arrived and offered to readvise appellant in Spanish of
his Miranda rights, but appellant
indicated he had already signed the waiver form and had no problem, and that he
understood his rights.

Defense counsel made a
pretrial motion to exclude appellant’s statement to the detectives on >Miranda grounds.  The court initially deferred ruling on the
motion until the prosecution sought to admit the statement.  The prosecution sought to introduce
appellant’s statement as rebuttal evidence after Dr. Kalechstein
testified.  The court excused the jury
and held a hearing.

Defense counsel argued to
the trial court, as does appellate counsel, that appellant’s statement that he
did not have money for an attorney was an indication he wanted an attorney
immediately, and that the officers misleadingly responded by informing
appellant that when appellant went to court counsel would be appointed for
him.  The court ruled that the police
officer had explained that if appellant could not afford an attorney, one would
be appointed for him, free of charge, at a time subsequent to their discussion.  The officer specifically asked if appellant
wanted to speak to them without hiring an attorney.  Appellant indicated he understood his rights
and was willing to talk to the detectives. 
He signed the waiver form and declined the detectives’ offer to have the
Spanish-speaking officer state his rights to him in Spanish, expressly
indicating he already understood his rights and was willing to waive them.

 

>B.         Analysis

“Under the familiar
requirements of Miranda, designed to
assure protection of the federal Constitution’s Fifth Amendment privilege
against self-incrimination under ‘inherently coercive’ circumstances, 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.) 
The prosecution bears the burden of demonstrating that a defendant who
makes a statement in the absence of counsel knowingly and intelligently waived
the privilege against self-incrimination and the right to counsel.  (People
v. Peevy (1998) 17 Cal.4th 1184, 1192.)

“[I]n order to determine
whether a defendant voluntarily, knowingly, and intelligently has waived his >Miranda rights, a court analyzing the
question must consider two distinct components: 
‘First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. 
Second, the waiver must have been made with a full awareness of both the
nature of the right being abandoned and the consequences of the decision to
abandon it.  Only if the “totality of the
circumstances surrounding the interrogation” reveals both an uncoerced choice
and the requisite level of comprehension may a court properly conclude that the
Miranda rights have been waived.  [Citations.]’”  (People
v. Whitson (1998) 17 Cal.4th 229, 247, quoting Moran v. Burbine (1986) 475 U.S. 412, 421.)

“‘In considering a claim
that a statement or confession is inadmissible because it was obtained in
violation of a defendant’s rights under [Miranda],
we accept the trial court’s resolution of disputed facts and inferences, and
its evaluation of credibility, if supported by substantial evidence.’”  (People
v. Whitson, supra, 17 Cal.4th at
p. 248, quoting People v. Wash (1993)
6 Cal.4th 215, 235-236.)  Although
appellate courts “‘independently determine whether, from the undisputed facts
and those properly found by the trial court, the challenged statements were
illegally obtained [citation], we “‘give great weight to the considered
conclusion’ of a lower court that has previously reviewed the same
evidence.”’”  (Ibid.)

Once a suspect has clearly
asserted his or her right to counsel during custodial interrogation, the
interrogation must cease and the suspect is not subject to further
interrogation by the authorities until counsel has been made available to
him.  (People v. Gonzalez (2005) 34 Cal.4th 1111, 1122; >Edwards v. Arizona (1981) 451 U.S. 477,
484-485.)  However, “if a suspect makes a
reference to an attorney that is ambiguous or equivocal in that a reasonable
officer in light of the circumstances would have understood only that the
suspect might be invoking the right
to counsel, our precedents do not require the cessation of questioning.”  (Davis
v. United States (1994) 512 U.S. 452, 459.) 
Whether a suspect has invoked his right to counsel is an objective
inquiry.  (Ibid.)

Here, in response to the
detective informing appellant that if he could not afford an attorney one would
be appointed for him “before questioning if you wish,” appellant asked, “In
that situation, yeah, I don’t have money to pay attorney.  Yeah, you put one or how that — would this
work?”  Viewed objectively, this question
by appellant was not a clear assertion of his right to counsel.  Appellant was expressing concern about his
inability to afford an attorney, but he did not indicate he wanted a lawyer at
that time.  The detectives were not
obliged to cease their questioning.  They
told appellant that  “when you go to
court, the court can appoint an attorney for you.”  Even if this statement could have misled
appellant into thinking he could not have an attorney until he went to
court—although he had just been told one would be appointed before questioning
if he wanted—the detectives immediately clarified by saying, “But just so we’re
clear, we just wanna make sure that you’re okay talking to us without getting
to that point of, um, of getting an attorney; do you understand that?”  Appellant affirmatively replied, “Yes.”  He proceeded to sign the waiver form and
decline the detectives’ offer to have his rights restated in Spanish.  Based on these circumstances the trial court
properly admitted appellant’s statement. 
Appellant did not assert a desire to have counsel present before
speaking to the police officers.  He
voluntarily relinquished his right, and the record does not support the
assertion that his waiver occurred because the officers deceived him.  The officers clarified the nature of his
right and verified he understood, and thus his waiver was made with full
comprehension of the right being abandoned and the consequences of doing
so.  The trial court did not err in
admitting appellant’s statement.

 

III.       The Sentence on Count 10 Must Be Stayed
Pursuant to Section 654

            Finally,
appellant contends and the People concede that his sentence on count 10 for
assaulting Gonzalez with a firearm must be stayed because it was based on the
same indivisible course of conduct underlying his conviction on count 8 for
attempted murder of Gonzalez.

            Subdivision
(a) of section 654 prohibits multiple punishments for “[a]n act or omission
that is punishable in different ways by different provisions of law.”  Generally, multiple punishments are proper if
the defendant pursues suitably independent criminal objectives.  (People
v. Williams (1992) 9 Cal.App.4th 1465, 1473-1474.)  The test governing the application of section
654 was first stated in Neal v. State of
California (1960) 55 Cal.2d 11, 19: 
“Whether a course of criminal conduct is divisible and therefore gives
rise to more than one act within the meaning of section 654 depends on the
intent and objective of the actor.  If
all of the offenses were incident to one objective, the defendant may be punished
for any one of such offenses but not for more than one.”  In determining the appropriate sentence under
section 654, a court must identify the count carrying the longest sentence,
including enhancements, and stay the sentence imposed under the other pertinent
counts.  (People v. Kramer (2002) 29 Cal.4th 720, 722.)

            Here,
appellant was charged with an assault crime and attempted murder pertaining to
each shooting victim, Officer George, Corporal Eugenio, Detective Batres,
Gonzalez, and Carrasco.  The court
imposed a term for the attempted murder conviction and stayed the term for the
assault conviction as to each shooting victim except Gonzalez.  As to the counts involving Gonzalez, the
court imposed consecutive terms for the assault count and the attempted murder
count.  The court indicated its intent to
impose consecutive sentences only for counts involving separate victims of
separate acts of violence which were therefore not subject to section 654.  Thus, the court implicitly made the factual
finding, which is supported by substantial evidence, that the shootout
constituted an indivisible course of conduct, finding that separate sentences
should be imposed only as to separate victims. 
There was nothing about appellant’s shooting at Gonzalez that differentiates
it from his shooting at the three other victims.  The court’s apparent oversight in failing to
stay the sentence as to assault with a firearm on Gonzalez, count 10, must be
remedied.

            “If
a trial court violates section 654, the proper remedy on appeal is not reversal
of the counts involved, but elimination of the penalty for all but one of them
(the one carrying the greatest penalty, if the penalties are disparate), by
staying execution of, or simply striking, the terms of imprisonment for all but
one of them.  [Citations.]”  (People
v. Davis (1989) 211 Cal.App.3d 317, 323; see In re McGrew (1967) 66 Cal.2d 685, 688.) Appellant’s punishment
must therefore be stayed for count 10.

disposition

            The
judgment is modified to stay punishment for appellant’s conviction for
assaulting Javier Gonzalez with a firearm (count 10; § 245, subd. (b)).  In all other respects, the judgment is
affirmed.  The superior court is directed
to prepare an amended abstract of judgment to reflect the modification to
appellant’s sentence, and forward a copy of the amended abstract of judgment to
the California Department of Corrections and Rehabilitation.

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

                                                                                    SUZUKAWA,
J.

 

We concur:

 

 

 

            EPSTEIN, P.
J.

 

 

 

            MANELLA, J.