P. v. Martinez

Filed 12/18/09 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge.

Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Joseph Martinez.

Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant Pablo Lopez III.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellants Daniel Joseph Martinez and Pablo Lopez III were charged, by first amended information, with premeditated murder of Jefte Garcia (Pen. Code,^[1] 187; count I), attempted premeditated murder of Jair Garcia ( 187, 664; count II), and active participation in the Norteno criminal street gang ( 186.22, subd. (a); count III). As to counts I and II, it was alleged that Lopez personally and intentionally discharged a firearm and proximately caused great bodily injury or death ( 12022.53, subd. (d)), that both used a firearm and the crime was committed for the benefit of or in association with a criminal street gang ( 12022.53, subd. (e)(1)), and that both committed the offense for the benefit of or in association with the Norteno criminal street gang ( 186.22, subd. (b)). As to count III, it was alleged that Lopez personally used a firearm ( 12022.5, subd. (a)).

Following a jury trial, Lopez was convicted of first degree murder in count I, acquitted of count II, and convicted of count III. The murder was found to have been premeditated, and all of the special allegations as to counts I and III were found to be true. Martinez was convicted of second degree murder in count I, acquitted of count II, and convicted of count III, and section 186.22, subdivision (b) and 12022.53, subdivision (e)(1) of the allegations were found to be true as to count I.^[2] Martinezs new trial motion was denied, and he was sentenced to an aggregate term of 40 years to life in prison. Lopezs new trial motion was similarly denied, and he was sentenced to an aggregate term of 50 years to life in prison. Both filed timely notices of appeal.^[3]

FACTS

As of December 8, 2005, Kristian Sandoval had been residing at 1309 Alamo Street, Modesto, for approximately four months. The neighborhood was gang infested, and included both residents claiming Norteno membership and those claiming Sureno membership.^[4] Sandoval became acquainted with the mother of the Garcia family, which lived across the street at 1310 Alamo. Two of her sons, who were about 17 or 18 years old, were Surenos. They bragged about their gang involvement to Sandoval, and one Jefte Garcia showed him the San Diego tattoo on his back.^[5]

Martinez lived two doors down from Sandoval. Sandoval first met him about two weeks after moving to 1309 Alamo, and they became good acquaintances. Sandoval saw Martinez hanging out with Lopez every day. Martinez and Lopez often wore red items of clothing, and they claimed Norteno.

Around 6:00 p.m. on December 8, Sandoval was inside his house with his friend, Lounny Manivong. They were in the kitchen when appellants knocked on Sandovals door. Referring to the Garcia brothers, one said that the guys were over there, that something was going to happen, and that they had gone and gotten a gun or something like that. Sandoval did not hear any commotion, but Martinez asked him for the gauge. Sandoval knew him to be referring to the pump-action, sawed-off shotgun appellants had left at Sandovals house approximately two days earlier. Sandoval knew the gun was loaded; while appellants were showing it to him when they first brought it over, someone had put shells into it.

Sandoval retrieved the firearm, unwrapped it, and handed it to Lopez, who was standing right next to Martinez. Sandoval still did not hear any commotion outside, but warned that he did not want anything stupid happening in front of his house. Appellants then walked down the driveway. Lopez put the gun behind his back, under his sweatshirt.

As appellants walked down the driveway with Sandoval and Manivong following, they started exchanging words with the Garcia brothers, who were across the street on the sidewalk in front of their house. One of the Garcias Sandoval believed it was Jefte was accusing appellants of having tagged YGL on their sidewalk.^[6] His tone of voice was angry. Martinez responded with an obscenity and forcefully denied that he or Lopez had done it.

Appellants stopped about halfway down the driveway, next to Manivongs car. The exchange between appellants and the Garcia brothers lasted approximately two to three minutes, during which time Lopez was just holding the shotgun behind his back.

Sandoval told the Garcia brothers to get back in their house and not be little kids, and he told appellants to take their shit somewhere else, but things escalated. Jefte was extremely angry. He walked into the middle of the street, took off his shirt, and started saying he was a grown man and all tatted up. He turned the SD tattoo on his back toward appellants, Sandoval and Manivong, and said this is San Diego or something, and something Surenos. He pointed at his back and also held up a blue San Diego hat. Sandoval considered this a gang challenge or gang call-out. He saw no weapons on or about the person of either Jefte or Jair. It appeared to him that Jefte wanted to have a fist fight.

Martinez yelled back his gang set, saying, This is YGL. Jair, who was standing behind Jefte, said, Ill peel your guys cap back, meaning he was going to shoot the other groups way or shoot somebody. Sandoval interpreted the statement as a death threat against everyone in the group by Sandovals house. Jair, who had on a shirt, reached one hand behind his back. Lopez pulled out the shotgun from under his sweatshirt and pointed it forward. Martinez told Lopez, Just do it. Seconds later, which was a matter of seconds after Jair had made the verbal threat, Sandoval heard a single gunshot from Lopezs direction. By this time, Lopez was outside Sandovals fence, adjacent to the mailbox in front of the sidewalk. Everyone ran; Sandoval told Manivong to get out of there, then Sandoval ran back inside his house. He did not know anybody had been shot at this point, but when he looked out, he saw a person he believed to be Jair, squatting down inside the fence in the middle of the Garcia yard and talking on his phone. Sandoval could not see Jeftes body, because it was dark.

Sandoval went up into his attic. He did not call 911. The SWAT team extracted him about an hour later.

Portions of Manivongs account of events differed from Sandovals version. Manivong had been present at Sandovals house on several occasions when one or both appellants were there. Sometimes, Lopez would talk about how some of the neighbors were scraps. Manivong understood this to be a derogatory term for Surenos. A couple of weeks before the shooting, Manivong was at Sandovals house when Sandoval produced what appeared to be the weapon subsequently fired by Lopez. Sandoval said he was using it for protection.

Manivong arrived at Sandovals house between 5:00 and 6:00 p.m. on December 8, and he and Sandoval smoked some marijuana. Manivong smoked half a blunt, which is a cigar filled with marijuana. He described himself as being only a little high.

After appellants came to the door, Manivong walked out of the house before Sandoval. When Sandoval came outside, he was carrying some sort of bag over his shoulder. Manivong could not tell what it was and did not see what Sandoval did with it.

The only words Manivong heard spoken by Jair were at the outset.^[7] When Manivong walked out of the house, Jair was the first one to talk about the graffiti and disrespect. Manivong saw no weapons about his person, nor did he ever hear any threats to shoot, or any references to firearms, from either brother. At no time did Manivong believe the brothers were going to shoot at him. However, once Jefte pulled off his shirt, Manivongs attention was focused exclusively on him, and he did not know where Jair was or what he was doing.

After taking off his shirt, saying he was from San Diego, and flipping his hat back, Jefte said, Lets fight. Lets go. Lets down. Manivong saw no weapon in Jeftes hands or on his person. He did not hear Martinez say anything after Jefte started walking toward the middle of the street. However, Lopez suggested a couple of times that they go to the corner. Lopez had his hands behind his back when he said this. Jefte responded, No, lets fight right here. When Lopez produced the sawed-off shotgun from behind his back and held it against his hip, Jefte turned and ran. Manivong did not hear either brother, or either appellant, say anything. No more than two to three minutes elapsed from the time Jefte walked to the middle of the street and took off his shirt to when Lopez pulled out the shotgun. During those minutes, Jefte was verbally challenging them to fight. Lopez pulled out the shotgun very shortly after the final time he suggested going to the corner. He pumped the shotgun and fired it almost immediately after pulling it out. He fired just one shot, at Jefte. Sandoval and appellants then ran toward the house; Manivong got in his car and drove off.

Stanislaus County Sheriffs Deputy Alves was dispatched to the 1300 block of Alamo at about 7:00 p.m., in response to a call that someone had been shot. He found a body near the front entrance of the residence at 1310 Alamo. The person appeared to have one gunshot wound to the arm and one to the eye. Alves saw no weapons on or around the person, and no shell casings in the yard or evidence of an exchange of gunfire. Detective Hatfield saw a spray-painted message on the sidewalk in front of 1310 Alamo. A line had been drawn through the letters with black spray paint, and a black spray paint can was found on the trunk of a car parked on the front lawn of the residence. What appeared to be fresh bullet holes were found running through the front wall of the house, as well as in items on the front lawn. Expended projectiles and a fragment were recovered from inside 1310 Alamo. The shot pattern and recovered pellets were consistent with a double-aught buck shotgun blast.^[8] Although no firearms or ammunition were found inside the house, Hatfield did find a magazine for an air soft gun, a toy that shoots small rubber bullets, in the front room. Some types of that toy gun look very realistic.

After the shooting, Martinez arrived on a bicycle at a residence on Hatch Road, a short distance from Alamo, at which Librado Lopez was staying.^[9] Martinez stated, I shot this fool, man. I smoked his ass and I just shot this fool, shot this scrap. He was excited and bragging. When some of the people at the house told him that the boy might not make it and it was serious, Martinez responded that he did not care and that he hoped he died.

Jefte suffered a bullet wound to the right eye that penetrated the brain, and another to the right inner forearm. Bullet fragments consistent with double-aught buckshot were recovered from the brain. The cause of death was gunshot wound to the brain. Once the gunshot entered Jeftes eye, he would have been rendered immediately unconscious and died shortly after. He might have had some reflexive action and taken a few steps, but he would not have done any purposeful activity after the shot. He was facing the weapon when shot.

On December 10, Martinez was arrested at the residence on Hatch, where he had stayed since arriving after the shooting. Later that day, Detective Navarro informed him of his rights and then took a statement from him. In part, Martinez said that the subjects across the street had started the argument that led to the shooting. He said the gun, which came from Sandovals residence where he thought it had been for a couple of weeks, was only fired once. He also said the shotgun was loaded before it was fired, but he denied having loaded it. Navarro asked whether, during the confrontation prior to the shooting, Martinez felt threatened by the individual who took off his shirt. Martinez said he guessed yeah, but at the same time no. Later, he said he guessed not. He also said he did not see any gun. He said, however, that the other subjects could have a weapon in their pocket or something. Martinez denied being a gang member, but admitted associating with the Northerners. When asked if he associated with YGL Northerners, Martinez said no. He said he saw the guys across the street crossing out the tagging in their front sidewalk area. When Navarro asked whether crossing out a rival gangs sign was disrespecting that gang, Martinez answered affirmatively. Navarro gave a hypothetical in which a Sureno and Norteno argued, and the Sureno took off his shirt and showed a Sureno tattoo to the Norteno, and asked whether that was disrespect. Martinez again answered affirmatively. When Navarro asked what would happen if a gang noticed a rival gang was covering up the first gangs graffiti, Martinez said he did not know and was not into gangs like that.

Shortly after 1:00 a.m. on February 2, 2006, Lopez was located and arrested at a house on Florence Avenue in Modesto. Later that morning, Navarro interviewed Lopez after advising him of his rights. Lopez said that he had seen one of the individuals from across the street with a spray paint can. When asked what the individuals were saying or doing when they came out on the street, Lopez said they were issuing a challenge to fight. He also remembered one saying he was from San Diego and getting all crazy. Lopez said the individual also said, We dont play. Well fuckin smoke your ass, you know what Im saying? Lopez said the two were known to have weapons and, while they did not make any threats to him, one said they were going to blast them. Lopez said Sandoval gave him the gun. Lopez said he had a feeling that one of the subjects had something, and that he thought he had seen the one without a shirt grabbing something from his pants. Lopez said he saw a gun and had to protect himself. He felt like it was going to be them or him. Lopez admitted that when he saw what appeared to be a gun, he pointed the shotgun. When he did that, the other individual pulled his weapon. Lopez said that he did not wake up in the morning and decide to go kill somebody, and that he feared for his life and thought the other individual was going to kill him. When Navarro observed that there was no gun and asked how the other man was going to kill Lopez, Lopez said thats just the way they were talking. He insisted he had seen something, and started describing a black revolver. Lopez remembered the other individuals running, and somebody saying, Shoot. Lopez said he was still scared for his life. Later, Navarro asked if Lopez was sure the other individual pulled something out, or if it was just because of what he was saying with his mouth. Lopez replied, It was probably that. When Navarro suggested Lopez never saw a gun, Lopez responded that he did not see a gun, but he saw something.

When Navarro asked whether Lopez knew if the man he had shot was a Sureno, Lopez said he was not sure, but was pretty sure they were toward the end. Later, Lopez said that if the subject from the street would not have said anything to him, he would not have said anything. Lopez said he already knew the person was a Sureno. When Navarro asked the name of Lopezs gang, Lopez said he was just a Northerner. Navarro asked whether he was part of YGL; Lopez again responded that he was just a Northerner. Lopez said he had been claiming Norte (Northerner) since he was 14, but that this was not a gang-related killing.

Maria Estrada was the mother of Jefte and Jair. She never saw either of her sons with a firearm, nor had she ever seen a gun in the house. A few months before the shooting, she witnessed an exchange of gestures and words between Jair, Martinez, and a young man with Martinez. On another occasion, she observed Martinez and two others, all of whom were wearing red T-shirts, verbally attack Jefte and Jair. Ms. Estrada had no knowledge of any criminal street gangs on Alamo Street, and did not suspect her sons were involved with gangs. They wore blue, as the whole family liked the color. Jefte had a blue bandanna. Although born in Modesto, both boys grew up in Southern California.

The residence at 1310 Alamo was searched shortly after the shooting. A blue bandanna was found in the kitchen. Various items indicative of gang involvement were found in the search of 1309 Alamo and 1245 Alamo, which was Martinezs residence. Found on the floor of the living room of that residence were two unfired Federal brand double-aught buck, three-inch magnum shotgun rounds. The residence on Hatch, where Martinez was arrested, was searched shortly after his arrest. Gang-related items were found. According to Librado Lopez, it was common for a number of people to be at the house. Some were Nortenos; none were Surenos. A Sureno would get shot or something. The residence on Florence, where Lopez was arrested, was searched shortly after his arrest. Indicia of residency for Anthony Gonzales were found, as were gang-related items.

Stanislaus County Sheriffs Detective Soria, an expert on criminal street gangs, testified that appellants were YGL members, and that YGL was part of the Norteno gang. The primary criminal activities of the Norteno criminal street gang include homicides, drive-by shootings, assaults with deadly weapons, auto thefts, burglaries, robberies, and home invasions in other words, crimes of violence. These are generally perpetrated against members of the Nortenos rival gang, the Surenos. The Sureno criminal street gang has similar primary criminal activities. Norteno gang members thrive on respect, and demand it from fellow Nortenos and from rival gang members. They generally respond with violence to acts of disrespect by rival gang members. They also thrive on fear. Fear, intimidation, and respect benefit Nortenos in conducting their criminal activities because they know people will not report their activities to law enforcement.

According to Soria, the area in which the shooting took place was high in Norteno and Sureno gang activity. Gangs are territorial, and graffiti tells the community and rivals who controls the neighborhood. Tagging a sidewalk in a position in which the occupants of a residence walk out of their house and see YGL X4 is consistent with targeting that particular residence. The perpetrators want the residents immediately to observe the rival gangs tagging on their property, which is a form of disrespect. Defacing a rival gangs graffiti by crossing it out is a form of ultimate disrespect and a cause of violence.

Based on the evidence in this case and other information available to him, such as records of prior law enforcement contacts, Soria opined that on December 8, 2005, Sandoval was actively participating in the Nortenos criminal street gang; appellants were actively participating in the Nortenos criminal street gang, specifically the Young Gangster Locos; and Jefte and Jair were both actively participating in the Surenos criminal street gang, specifically South Side Trece (SST). YGL and SST were enemies.^[10]

Soria further opined that the shooting of Jefte Garcia was committed for the benefit of, and in association with, a criminal street gang. The shooting benefited the gang because the crime bolstered the reputation not only of the individuals involved, but also of their gang. Both fellow and rival gang members would know that these people will take violent action against their rivals; members of the community would think twice about cooperating with law enforcement concerning criminal activities in their neighborhood.

DISCUSSION

I

Admission of Appellants Confessions

Appellants both contend their confessions were wrongly admitted, and that the error requires reversal. Each says his confession was obtained in violation of the rules laid down in Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and its progeny. Lopez further contends his confession was coerced.

A. Applicable Legal Principles

The Fifth Amendment to the United States Constitution guarantees that a suspect in a criminal case may not be compelled to be a witness against himself in any respect. (Colorado v. Spring (1987) 479 U.S. 564, 574.) To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent. [Citation.] As long as the suspect knowingly and intelligently waives these rights, the police are free to interrogate him. [Citation.] (People v. Stitely (2005) 35 Cal.4th 514, 535.)

No particular manner or form of Miranda waiver is required, and a waiver may be implied from a defendants words and actions. [Citations.] (People v. Davis (2009) 46 Cal.4th 539, 585.) The waiver inquiry has two aspects. 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 reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude the Miranda rights have been waived. [Citations.] (Moran v. Burbine (1986) 475 U.S. 412, 421.) The totality of the circumstances include the particular background, experience and conduct of the accused. [Citation.] (People v. Davis, supra, 46 Cal.4th at p. 586.)

Once it is determined that a suspects decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the States intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. (Moran v. Burbine, supra, 475 U.S. at pp. 422-423, fn. omitted.) If, however, the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the produce of compulsion, subtle or otherwise. (Miranda, supra, 384 U.S. at pp. 473-474, fn. omitted.)

In Edwards v. Arizona (1981) 451 U.S. 477, 484-485 (Edwards), the United States Supreme Court announced a related rule designed to prevent the badgering of a criminal suspect by a law enforcement officer in order to get the suspect to waive his or her rights under Miranda [citations]: [A]n accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him [citations] and indeed not until counsel is actually present [citation], unless the accused himself initiates further communication, exchanges, or conversations with the police [citations]. (People v. Neal (2003) 31 Cal.4th 63, 80.) This rigid prophylactic rule [citation] embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. [Citations.] Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. [Citation.] (Smith v. Illinois (1984) 469 U.S. 91, 95.)

[N]o particular form of words or conduct is necessary on the part of a suspect in order to invoke his or her right to remain silent [citation], and the suspect may invoke this right by any words or conduct reasonably inconsistent with a present willingness to discuss the case freely and completely. [Citation.] (People v. Crittenden (1994) 9 Cal.4th 83, 129.) Whether a suspect has invoked his or her right to counsel is an objective inquiry. [Citation.] Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. [Citation.] But 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, [United States Supreme Court] precedents do not require the cessation of questioning. [Citation.] [] Rather, the suspect must unambiguously request counsel. Although a suspect need not speak with the discrimination of an Oxford don, [citation] he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. [Citation.] (Davis v. United States (1994) 512 U.S. 452, 459.)

If a suspects request for counsel or invocation of the right to remain silent is ambiguous, the police may continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights. [Citations.] (People v. Box (2000) 23 Cal.4th 1153, 1194.) However, an accuseds postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. Such subsequent statements are relevant only to the distinct question of waiver. (Smith v. Illinois, supra, 469 U.S. at p. 100.) Where an accused has invoked his or her rights, he or she initiates further communication, exchanges, or conversations of the requisite nature when he speaks words or engages in conduct that can be fairly said to represent a desire on his part to open up a more generalized discussion relating directly or indirectly to the investigation. [Citations.] In the event he does in fact initiate such further communication, exchanges, or conversations, the police may commence interrogation if he validly waives his [Miranda] rights. [Citations.] (People v. Waidla (2000) 22 Cal.4th 690, 727-728.)

Statements obtained in violation of the foregoing rules are inadmissible to prove guilt. (People v. Stitely, supra, 35 Cal.4th at p. 535.) In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendants rights under Miranda , we accept the trial courts resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we 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 conclusions of a lower court that has previously reviewed the same evidence. [Citations.] (People v. Wash (1993) 6 Cal.4th 215, 235-236.)

The process on appeal is similar when a question of voluntariness is raised. A defendants admission or confession challenged as involuntary may not be introduced into evidence at trial unless the prosecution proves by a preponderance of the evidence that it was voluntary. [Citations.] A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. [Citations.] (People v. Williams (1997) 16 Cal.4th 635, 659.)

The due process (voluntariness) test which also applies to a determination of the voluntariness of a Miranda waiver (Colorado v. Connelly (1986) 479 U.S. 157, 169-170) examines whether a defendants will was overborne by the circumstances surrounding the giving of a confession. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1093, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the totality of [the] circumstances. [Citations.] (People v. Neal, supra, 31 Cal.4th at p. 79.) Thus, we must consider both the characteristics of the accused and the details of the interrogation [citations] (People v. Guerra, supra, 37 Cal.4th at p. 1093), including the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity as well as the defendants maturity [citation]; education [citation]; physical condition [citation]; and mental health. [Citation.] (People v. Williams, supra, 16 Cal.4th at p. 660.)

On appeal, we review independently the trial courts determination on the ultimate legal issue of voluntariness. [Citation.] But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including the characteristics of the accused and the details of the interrogation [citation], are subject to review under the deferential substantial evidence standard. [Citation.] (People v. Williams, supra, 16 Cal.4th at pp. 659-660.) Where, as here, the interview was recorded, the facts surrounding the giving of the statement are undisputed; hence, we may independently review the trial courts determination of voluntariness. (People v. McWhorter (2009) 47 Cal.4th 318, 346.)

B. Martinezs Statement

1. The interview and trial court proceedings

At trial, Martinez claimed he invoked his right to counsel after being read his rights; hence, questioning should have ceased at that point. The prosecutor argued that the exchange between Martinez and Detective Navarro (the interviewing officer) had to be considered in context, and that Navarro used no words or conduct intended to elicit an incriminating response.

The trial court read the transcript of the interview, as have we. The transcript shows that upon entering what we assume was an interview room at the sheriffs department, Navarro uncuffed one of Martinezs hands, got him some water, and made sure that he was all right. Navarro then introduced himself and asked Martinezs name, date of birth, and address. He informed Martinez that he wanted to talk to him about the shooting, and that he had already talked to some of the people who were around. Navarro said he needed to advise Martinez of his rights before they talked, but that Navarro really wanted to get Martinezs side of the story, and that he only had one side of the story at that point, from the Surenos across the street. This ensued:

Navarro: I really want to talk to you OK. So listen up. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to an attorney and have them present before and during questioning. If you can not afford to hire an attorney, an attorney will represent you free of charge if you want. Do you understand your rights ?

Martinez: Uh yeah.

Navarro: OK. Do you want to tell me your side of the story? The honest one? I mean truthful.

Martinez: I can have an attorney?

Navarro: You want an attorney?

Martinez: I dont I mean I dont know much about the system and I dont

Navarro: Yeah. So youd rather not talk to me then?

Martinez: I would like to have an attorney.

Navarro: OK. Do you have an attorney?

Martinez: At least one present.

Navarro: Uh hmm. Do you have an attorney?

Martinez: Uh yeah.

Navarro: Whos that?

Martinez: Percy.

Navarro: Percy. Oh, I know Percy. OK. Have you talked to him?

Martinez: Naw, I havent.

Navarro: OK. So youll talk to me but with an attorney present?

Martinez: Yeah (unintelligible) cuz I dont know much about the law.

Navarro: OK.

Martinez: You know so.

Navarro: Alright. Whats your fathers name?

Martinez: My dad?

Navarro: Uh hmm.

Martinez: His names Anthony.

Navarro: Anthony too?

Martinez: Yeah.

Navarro: Hes senior?

Martinez: Uh naw.

Navarro: Just Anthony Martinez?

Martinez: Yeah well he has different middle name?

Navarro: Whats his whats his middle name?

Martinez: Valdez

Navarro: Valdez. Alright.

Martinez: Alright. Im willing to talk to you guys uh but just I would like to have an attorney present. Thats it.

Navarro: Yeah, I dont know if we could get a hold of him right now.^[[11]]

Martinez: Yeah.

Navarro: All I wanted was your side of the story. Thats it. OK. So, Im pretty much done with you then. Um, I guess I dont know another option but to go ahead and book you. OK. Because

Martinez: What am I being booked under?

Navarro: Your [sic] going to be booked for murder because I only got one side of the story. OK.

Martinez: But how hows he going to go about that. If we talk, once you get a hold of my uh attorney.

Navarro: Thats the thing, I dont know when were [sic] going to get a hold of him. Maybe I dont when hes going I dont know when your [sic] going to call him.

Martinez: I have to get a hold of him.

Navarro: Huh?

Martinez: I have to get a hold of him?

Navarro: Yeah.

Martinez: You guys dont (unintelligible)

Navarro: No. No, your [sic] going to have to call him and its going to have to be from jail.

Martinez: Psss fuck.

Navarro: OK. You want anymore water? You OK?

Martinez: Naw. Im fuckin I dont know Im cool. I dont know (unintelligible) murder see what I mean.

Navarro: Yeah. Right. It has to be that way.

Martinez: What did you want to tell me?

Navarro: Huh?

Martinez: What did you want to talk to me about?

Navarro: About the shooting.

Martinez: Lets [sic] talk shit, Im cool.

Navarro: Do you want the attorney or you dont care? I mean do you. Its up to you bro. I mean I just want to talk to you about it. Get your side of the story.

Martinez: I mean I know you understand I aint trying to go just

Navarro: I know.

Martinez: Booked under that you know what I mean?

Navarro: Hold on OK. You want anymore water or your [sic] OK?

Martinez: Uh, yeah go ahead and give me another cup[.] []  []

Navarro: So what do you want to do? I mean well sit down and talk if you want. Its going to be up to you. Im gonna leave it to you. Gonna be up to you. I want to I mean like I told you I just want your side of the story. Thats it Daniel. OK. You dont look like a bad person. Alright, but I need to talk to you. But you dont have to though. Its up to you.

Martinez: I just you know Im tired of going back and forth to jail. And if thats the charge I mean you go, you dont get the choice to go back and forth you know so.

Navarro: Uh hmm. Its up to you. Do you want to talk or you want me to sit down?

Martinez: Yeah. I mean Im willing to talk to you, you know what I mean but

Navarro: With the truth?

Martinez: Shit, if thats what helps me walk away.

Navarro: Your [sic] young man. Just be honest.

Martinez: Honest, the truth Im just trying to go through this and be able to walk home and

Navarro: So do you want to talk to me so I could sit down or what do you want to do?

Martinez: Yeah.

Navarro: Yeah. OK. You dont you dont want Percy then right now? Right? You dont want Percy?

Martinez: Well, if I I mean

Navarro: You dont you dont want an attorney right now? Your [sic] willing to talk to me right now? I want to clarify that.

Martinez: Yeah.

Navarro: OK.

Martinez: Im willing.

The trial court concluded that Navarro treated Martinezs invocation of his right to counsel as such, but then clarified for Martinez that contrary to Martinezs apparent misperception there was no attorney standing by. The court found that Martinez then voluntarily changed his mind. Accordingly, the court concluded that Martinez voluntarily waived his rights.

2. Analysis

Martinez now says his waiver of rights was involuntary, and hence his statement should have been excluded, because Navarro misled him about the availability of appointed counsel. Martinez says he was told he would have to get his own attorney, and would have to do so from jail.

When we consider the entirety of the exchange between Martinez and Navarro, we conclude the trial court properly ruled Martinezs statement was admissible. This was not a situation in which the suspect had no attorney or needed one appointed and was left to his own devices to obtain one as best he could. Instead, Martinez already had an attorney, and the problem was getting in touch with the attorney at the time of the interview, which was after normal business hours.

In our view, once Navarro clarified that Martinez was willing to talk to him, but wanted an attorney present, interrogation ceased. The questions Navarro asked concerning Martinezs father did not constitute interrogation: Focusing primarily on Martinezs perceptions, they were not words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police [should have known were] reasonably likely to elicit an incriminating response from the suspect. (Rhode Island v. Innis (1980) 446 U.S. 291, 301, fns. omitted; People v. Huggins (2006) 38 Cal.4th 175, 198.)

It was Martinez who then turned the subject back to having an attorney present; we see nothing deceptive or coercive in Navarros response that he did not know if they could get hold of Martinezs attorney then and that he had no option but to book Martinez. Martinez continued to inquire of Navarro; his question about what he was being booked for, [a]lthough ambiguous, evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. It could reasonably have been interpreted by the officer as relating generally to the investigation. (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045-1046 [no violation of Edwards rule where suspect asked what was going to happen to him].)

There was nothing inappropriate or misleading in Navarros telling Martinez that Martinez would have to call his lawyer from jail. Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one. The Court in Miranda emphasized that it was not suggesting that each police station must have a station house lawyer present at all times to advise prisoners. [Citation.] If the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel. [Citation.] (Duckworth v. Egan (1989) 492 U.S. 195, 204, fn. omitted [no Miranda violation where suspect informed, inter alia, that attorney would be appointed if and when suspect went to court]; see People v. Simons (2007) 155 Cal.App.4th 948, 955-959.) After Martinez asked what Navarro wanted to talk about, Navarro proceeded to make certain that Martinez was waiving his right to counsel and did not want to have an attorney, or his attorney, present. (See People v. Hart (1999) 20 Cal.4th 546, 643; People v. Simons, supra, 155 Cal.App.4th at p. 958.)

C. Lopezs Statement

1. The interview and trial court proceedings

At trial, Lopez asserted that his statement was involuntary because he told Navarro he did not want to talk right then since he was tired, but Navarro persisted in trying to get him to talk until he gave in and agreed. The prosecutor responded that there was no invocation of rights, and that the waiver was knowing and intelligent.

The trial court read the transcript of the interview, as have we.^[12] The transcript shows that the interview began at 3:47 a.m.^[13] Upon entering the interview room, Navarro rehandcuffed Lopez in a more comfortable position and gave him some water. Navarro then obtained personal information, such as Lopezs name, address, and date of birth. Navarro informed Lopez that he wanted to talk to him about the incident and get his side of the story. This ensued:

Navarro: Um so listen up OK. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to an attorney and have him present before and during questioning. If you can not afford to hire an attorney, an attorney will represent you free of charge if you want. You understand your rights Pablo?

Lopez: Yes sir.

Navarro: Do you want to tell me your side of the story? The honest one. I want the truth.

Lopez: Yeah I do, but right now Im just Im a little tired. I feel hungry though.

Navarro: You want something to eat?

Lopez: No. I think I just need some sleep.

Navarro: You do?

Lopez: Yeah.

Navarro: But, you know I want to get your side of the story though Pablo.

Lopez: Yeah.

Navarro: To get it over with.

Lopez: Yeah. I know.

Navarro: OK. Cuz I only have their side of the story. I dont have yours and I know theres 2 stories to 2 sides to every story.

Lopez: (Nods head yes) Yeah.

Navarro: Thats why Im here. I mean its Im tired too. You know, but thats why Im here to talk to you. You look like a nice guy. You dont look like a bad person.

Lopez: Yeah.

Navarro: You want to tell me what happened? The truth only. The truth. The honest truth.

Lopez: Like I said I do, but right now Im just

Navarro: You want to get it over with right now?

Lopez: Nah, I want to get some sleep man.

Navarro: Youve been up or what?

Lopez: Yeah.

Navarro: OK. Alright. Well, if you were gonna talk, I wanted to talk today. I mean, I, we probably wont be able to do it tomorrow or anytime soon. Thats why we need to do it cuz I got other case that I need to work on. Thats why I want to talk to you.

Lopez: (Nods head yes)

Navarro: Just tell me I mean if you want to talk to me just tell me what happened. Just tell me the truth real quick. Tell me what happened? Exactly what happened because like I said, I only have their story.

Lopez: Yeah.

Navarro: I dont have yours. I did talk to a lot of people out there. You know. I talked to your friends. I talked to uh people that know you. It sounds like it sounds like your [sic] not a bad person, but you know Ill be honest with you.

Lopez: Yeah.

Navarro: Do you want to tell me?

Lopez: (Unintelligible)

Navarro: Well do it quick.

Lopez: Oh, yeah?

Navarro: Yeah. Well do it quick.

Lopez: Im tired man.

Navarro: Itll be up to you.

Lopez: (Unintelligible)

Navarro: To do it to do it quick.

Lopez: (Unintelligible) think straight, I dont even know (unintelligible)

Navarro: Yeah you do, but you know what?

Lopez: Hmm?

Navarro: Your [sic] nervous thats why. And dont be. Just relax. Calm down. Just calm down.

Lopez: (Nods head yes)

Navarro: OK. I mean what happened already happened. OK. Uh, but like I said theres always 2 uh sides to the story.

Lopez: Yeah.

Navarro: OK. And if I dont hear yours, Im just gonna have theirs. Right?

Lopez: (Nods head yes)

Navarro: Its up to you Pablo. Now, do you want to talk right now? Im not gonna be able to talk to you later.

Lopez: You wont?

Navarro: No.

Lopez: Why not?

Navarro: Because I wont be able to. Trust me.

Lopez: Well, what exactly am I being charged with?

Navarro: Right now, uh right now your [sic] being charged with uh murder because we dont have your story. So, thats why we wanted to talk. I only got their side of the story. I dont have yours.

Lopez: Whos [sic] side?

Navarro: The people across the street.

Lopez: Whats their story?

Navarro: Huh?

Lopez: What is their story?

Navarro: Well, well, do you want to talk to me about it? Yes or no? I need to find that out first before I tell you anything. And Ill tell you what they what they told me. You want to talk to me about the incident or not? Ill tell you what they told me.

Lopez: Whatd they tell you?

Navarro: You need to tell me if you want to talk to me about the incident. Alright, Ill tell you. Um, they told me that for no reason OK um you started firing the gun OK. Yeah their [sic] saying that, but what whats the story here. Whats the truth? OK. Its up to you man. If you wanna get it off your chest and just be honest and tell the truth.

Lopez: Yeah.

Navarro: Its up to you. I think its better.

Lopez: Yeah.

Navarro: Yeah. You dont look like a bad person bro. You dont.

Lopez: I try not to be.

Navarro: Yeah. Do you want to tell me? Just get it get it out of the way.

Lopez: Yeah fuck it.

The trial court found nothing to suggest Lopez had been up for so long or was so tired that he could not knowingly give an intelligent waiver. The court also found nothing to indicate Lopez had been intentionally deprived of sleep in order to obtain a waiver. The court found that Lopezs response that he wanted to talk, but was tired was equivocal. The court acknowledged that Lopez eventually said no, he wanted to get some sleep, but found he did not use an unequivocal term such as by saying he wanted to talk to his attorney or did not want to talk to the police. Instead, when Lopez said he wanted to get some sleep, Navarro was entitled to clarify whether all discussion was ended, and to explain that he could not simply wait for Lopez to get some sleep. When defense counsel agreed that Navarro had a right to clarify the implication, but argued that instead he proceeded to elicit incriminating responses, the court disagreed and saw what followed as basically discussing whether Lopez wanted to give a statement or was invoking his rights. Based on its finding of a knowing, intelligent, and voluntary waiver, the trial court ruled Lopezs statement was admissible.

2. Analysis

Lopez now contends that he unequivocally invoked his Miranda rights; hence, Navarro was required to cease the interrogation and, as he did not do so, Lopezs confession should have been excluded from evidence. To the contrary, we find the exchange demonstrates ample equivocation on Lopezs part. We recognize that no particular form of words or conduct is necessary on the part of a suspect in order to invoke his or her right to remain silent [citation], and the suspect may invoke this right by any words or conduct reasonably inconsistent with a present willingness to discuss the case freely and completely [citation]. (People v. Samayoa (1997) 15 Cal.4th 795, 829.) Here, however, Lopez expressly stated more than once that he wanted to talk to Navarro, including immediately before he was asked whether he wanted to get it over with right then and he responded no, that he wanted to get some sleep. In light of Lopezs clear indication that he did indeed want to talk, Navarro was entitled to attempt to clarify whether he was waiving or invoking his rights (compare People v. Box, supra, 23 Cal.4th at pp. 1192-1195 & People v. Johnson (1993) 6 Cal.4th 1, 25-27, disapproved on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879 with People v. Peracchi (2001) 86 Cal.App.4th 353, 358-363 & People v. Harris (1989) 211 Cal.App.3d 640, 645-649), and we are satisfied he did not exceed the bounds of what is constitutionally permissible by explaining that he would not be able to talk to Lopez at a later time.

Pointing to his complaints about lack of food and sleep, Lopez further contends his statement should have been excluded because it was coerced and involuntary. Sleep deprivation can support a finding that a waiver of rights was not knowing and voluntary. (See People v. Anderson (1990) 52 Cal.3d 453, 470.) We are not convinced, however, the record shows the coercive police activity that is a prerequisite to a finding of involuntariness. (See Colorado v. Connelly, supra, 479 U.S. at p. 167.) The trial evidence showed that Lopez was arrested shortly after 1:00 a.m., and remained at the scene for approximately an hour while the residence and its other occupants were secured. He was then transported to the sheriffs department, arriving about 2:45 a.m. He was interviewed beginning sometime between 3:15 and 3:47 a.m. The record does not reveal what took place between arrival and interview, or whether Lopez had a chance to nap during that time. Nothing in the record suggests Lopez was intentionally deprived of sleep. Absent the element of police coercion, Lopezs alleged mental condition is an insufficient basis on which to conclude he did not knowingly or voluntarily waive his rights. (People v. Cox (1990) 221 Cal.App.3d 980, 985-987; see People v. Murtishaw (1981) 29 Cal.3d 733, 753-754, disapproved on other grounds in People v. Boyd (1985) 38 Cal.3d 762, 773.)

In any event, the record lends no support to a claim Lopezs will was overborne by the circumstances surrounding the giving of his statement. (See People v. Guerra, supra, 37 Cal.4th at p. 1093.) He declined Navarros offer of food, and, despite his stated fatigue, the record establishes he was coherent, able to comprehend his rights and all questions asked, and was not confused or his thinking impaired. The trial court properly rejected his claims of involuntariness and coercion. (See People v. Perdomo (2007) 147 Cal.App.4th 605, 616-619; People v. Hernandez (1988) 204 Cal.App.3d 639, 648.)

II

Evidentiary Issues

A. Exclusion of Kristian Sandovals Potential Sentence

On direct examination by the prosecutor, Sandoval testified that he was arrested on December 22, 2005. He was charged equally, by criminal complaint, with appellants. On October 22, 2007, he entered into a written agreement with the district attorneys office to testify in this case. Shortly thereafter, he was released from custody pursuant to the agreement, after having been incarcerated for almost two years. At the time of trial, he was still technically charged with murder; it was his understanding based on the agreement, however, that after testifying, he would be allowed to pled guilty to a violation of section 32, accessory after the fact, a felony. He would receive time served, which was, in essence, two years. The gist of the agreement was that he would tell the truth and answer all questions. Sandoval had never been convicted of a crime before, and had not been made any other promises, or provided any other benefit, involving his testimony, other than what was contained in the agreement.

On cross-examination, Lopez established that Sandoval was charged with first degree murder and attempted murder, each with gang and firearm-related penalty enhancements, and that if he testified in a way that satisfied the prosecutor, he would avoid going back to jail. No one would ask any more from him than the two years he had already served. This ensued:

Q. [by Mr. Baker, Lopezs attorney] So exactly how much of a benefit is that? Well, let me put it this way: Did your lawyer, Mr. Forkner, tell you how much time you would face if you were to go to trial and be convicted on all of those charges?

MR. BRENNAN [prosecutor]: Judge, I object. This is attorney/client privilege.

THE COURT: Sounds like it would be.

MR. BAKER: Is to hi