P. v. Barrios

Filed 2/18/10 P. v. Barrios CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A jury found Mario Steve Barrios guilty of first degree murder (Pen. Code,  187, subd. (a)/189). The jury also found that he personally used a firearm ( 12022.53, subds. (b)-(d)) and committed the crime for the benefit of, at the direction of, and in association with a criminal street gang ( 186.22, subd. (b)(1)(C)).[1] We affirm.

FACTS

Filiberto Figueroa was a member of the North Side 18th Street gang. He had a number of tattoos, including the number 18 on his upper left arm and head. On January 21, 2006, at approximately 8:45 p.m, Figueroa was walking with Arturo Pinuelas on Beck Street in North Hollywood.

As Figueroa and Pinuelas reached the corner of Beck and Sylvan Streets, three cars stopped in front of them. The first two cars had black-tinted windows. A window in the first car rolled down and a person inside said, "West Side 18th Street." The corner of Beck and Sylvan is in 18th Street gang territory. Figueroa responded, "North Side 18." The person in the car said, "All right, 18th," and motioned for Figueroa to come closer to the car. When Figueroa approached the car, a person inside said, "We are just looking for homeboys from 18th." He said they were going to turn around. Figueroa and Pinuelas went to the second car. Figueroa told the driver to turn the car around. Figueroa and Pinuelas started walking toward the third car. Pinuelas heard a gun being "clucked." The car door opened, Barrios came out and shot Figueroa in the back. Figueroa screamed at Pinuelas to run. Pinuelas ran toward his home. He heard eight or nine shots. When Pinuelas reached home he called 911.

The police found eight 9-millimeter bullet casings and two bullets near where Figueroa had fallen. They also saw a parked car. It was dirty and had fresh fingerprints on it. A detective believed the shooter stood at the car. He had it dusted for fingerprints.

A few days after the shooting, the police saw a car that matched the description of a car involved in the shooting. A number of young men were near the car, including Esmy Zamora. Zamora is a known member of the Mara Salvatrucha gang. During a patdown search of Zamora officers found a gun in his waistband. Ballistics tests determined the gun was used to shoot Figueroa.

Police traced the partial palm print found on the car to Barrios. After the police advised him of his Miranda rights, he spoke with detectives. At first, Barrios denied any involvement in the shooting. He said he was at home with his mother. When confronted with the palm print evidence, he had no explanation, but continued to deny any involvement.

The police decided to try a ruse. They falsely told Barrios that someone had identified him as the shooter. But he again denied involvement. He said a lot of "homies" look like him.

The police asked Barrios whether he had a girlfriend. He said he did, and that she was pregnant. The police told him it was time to become a man, and that means admitting when he has done something wrong. Barrios said, "It just happened." He said he was waiting to be picked up by a friend, Luis, who is not a gang member. While he was waiting, he picked up a gun. He was smoking marijuana and forgot he had the gun when Luis picked him up. They were on their way to a Honda dealership when Figueroa came up to his car. He said Figueroa threw gang signs at him. Barrios's friend told him to calm down. But Figueroa was still throwing gang signs. Barrios got angry. Then Figueroa said, "fuck shit," which was a sign of disrespect for Barrios's gang. A friend tried to hold Barrios back, but he got out of the car and shot Figueroa.

DISCUSSION

I

Barrios contends the finding that the murder was deliberate and premeditated is not supported by substantial evidence.

In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime or enhancement beyond a reasonable doubt. (People v. Johnson, supra, at p. 578.)

Barrios's argument is based on the theory that the prosecution is bound by statements made in his confession. He cites People v. Collins (1961) 189 Cal.App.2d 575, 590, for the proposition that in the absence of proof to the contrary, the prosecution is bound by the defendant's statement as to how the killing occurred. It is true that where the only evidence admitted shows lack of deliberation and premeditation, the prosecution has failed to carry its burden of proof as to those elements of first degree murder. But the prosecution need not produce evidence directly contradicting the defendant's statements. Instead, it is well settled that the necessary elements may be inferred from the circumstances of the homicide. (See People v. Lines (1975) 13 Cal.3d 500, 505.)

Here Barrios attempts to paint a picture that starts with an innocent excursion. He and a nongang member friend are on their way to a Honda dealership and Barrios has forgotten he is armed. Unexpectedly, the pair are confronted by Figueroa, who throws rival gang signs and insults Barrios's gang. Barrios is enraged. Although his friend tries to hold him back, Barrios leaves the car and shoots Figueroa.

But Barrios ignores Pinuelas's testimony. It was not just Barrios and a nongang member innocently on their way to a Honda dealership. A three-car caravan stopped in front of Figueroa and Pinuelas. The occupants of the cars knew they were in 18th Street gang territory. A person in the first car said they were looking for some 18th Street gang members. Figueroa told the first two cars to turn around. Without provocation, Barrios got out of the third car and shot Figueroa, a rival gang member. The jury could reasonably conclude Barrios shot Figueroa deliberately and with premeditation for the benefit of Barrios's gang.

The verdict is supported by substantial evidence.

II

Barrios contends that his confession should have been excluded as involuntary.

Barrios argues that he did not make a voluntary, knowing and intelligent waiver of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) After the police gave Barrios his Miranda rights, he said he understood those rights. The police asked if he wanted to talk about "the reason you're here." He said yes. But the police did not expressly ask if he wanted to waive his rights nor did he expressly state that he wanted to waive them.

The prosecution must prove by a preponderance of the evidence that the waiver is both voluntary and knowing. (People v. Whitson (1998) 17 Cal.4th 229, 248.) The waiver may be express or implied. (Id. at p. 246.) A suspect's express willingness to answer questions after acknowledging an understanding of his Miranda rights is sufficient to constitute an implied waiver. (People v. Hawthorne(2009) 46 Cal.4th 67, 86.) The waiver must be voluntary in the sense that it was the product of a free choice rather than intimidation, coercion or deception. (People v. Whitson, supra,at p. 247.) It must also be knowing and intelligent in the sense that it must be made with a full awareness of the rights being abandoned and the consequences of their abandonment. (Ibid.)

Here Barrios concedes the waiver was voluntary in that it was not a product of intimidation, coercion or deception. Instead, he claims the waiver was not knowing and intelligent.

During the Miranda advisement, a police detective told Barrios, "You have the right to have an attorney present before and during any 'integratory' [sic], do you understand?" Barrios argues he might not have understood the meaning of "'integratory.'" Neither do we. But the officer was obviously referring to "interrogation." When asked whether he understood Barrios replied, "Okay," indicating he did understand.

Barrios asked no questions about his rights or otherwise indicated any confusion. Nor is there any indication that he suffered from a disability that would have prevented him from making a knowing and intelligent waiver. It is true he spoke Spanish. But he had a translator. The transcript shows he had no difficulty understanding the translator. It is also true that he was only 18 years old at the time of the interrogation. But 18 is an adult. The trial court's finding that Barrios's waiver of his Miranda rights was voluntary, knowing and intelligent is supported by the evidence.

Barrios also complains that the police used deception when they told him that someone had identified him as the shooter. But a deception that produces a confession does not preclude admissibility of the confession unless the deception is of such nature as to produce an untrue statement. (People v. Watkins (1970) 6 Cal.App.3d 119, 125.)

Here the attempted deception did not even induce a confession. Instead, Barrios dismissed the attempted deception by stating a lot of "homies" look like him. He continued to deny involvement in the shooting until he mentioned that his girlfriend was pregnant. It was only after the police appealed to his humanity and his responsibilities as a father that Barrios confessed.

Barrios points out that his interrogation lasted three-and-a-half hours. He claims that a lengthy interrogation by three experienced police officers wore him down. Thus he believes his confession was coerced. But a review of the confession in light of all the circumstances shows no coercion. Instead, it appears an appeal to Barrios's responsibilities as a father and his guilt led to the confession.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Michael A. Latin, Judge

Superior Court County of Los Angeles

______________________________

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless stated otherwise.