Opinion
B223020
12-06-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE ARMANDO ALATRISTE, Defendant and Appellant.
Law Offices of Allen G. Weinberg and Allen G. Weinberg for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA344055)
APPEAL from a judgment of the Superior Court of Los Angeles County. Craig E. Veals, Judge. Affirmed.
Law Offices of Allen G. Weinberg and Allen G. Weinberg for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jose Armando Alatriste appeals from the judgment entered upon his conviction by jury of second degree murder (Pen. Code, § 187, subd. (a), count 1); attempted murder (§§ 664, 187, subd. (a), count 8); and assault with a semi-automatic firearm (§ 245, subd. (b), counts 3 and 9). With respect to counts 1 and 8, the jury found true the allegations that appellant personally used and intentionally discharged a handgun, which proximately caused great bodily injury and death. (§ 12022.53, subds. (b), (c) & (d).) With respect to counts 3 and 9, the jury found true the allegations that appellant personally used a handgun and inflicted great bodily injury. (§§ 12022.5 & 12022.7, subd. (b).) With respect to all counts, the jury found true the allegation that the offenses were committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members. (§ 186.22, subd. (b)(1)(C).) The trial court sentenced appellant to a total of 77 years to life: on count 1, to a prison term of 15 years to life plus 25 years for the firearm-use enhancement; and on count 8, to a consecutive sentence of 7 years, plus 20 years for the firearm-use enhancement, and an additional 10 years for the gang allegation. Sentence on counts 3 and 9, and the remaining allegations in counts 1 and 8 were stayed pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant was acquitted of attempted murder and assault with a firearm on two additional victims in counts 4, 5, 6, and 7. The jury did not reach a verdict as to count 2, which was dismissed pursuant to section 1385.
Appellant contends that the trial court erred in failing to suppress his custodial confession obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Appellant also seeks review of the trial court's in camera hearing pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We find no error in the denial of appellant's motion to suppress. Nor do we find any abuse of discretion with respect to the in camera hearing. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
On July 9, 2007, at approximately 9:45 p.m., Dionicio Martinez was walking his dog on the sidewalk near Jack's Market on Cesar Chavez Street. He saw a group of his friends which included Primo Garcia (Primo), Vanessa Martinez (Vanessa), Cesar Rodriguez (Junior), and Wenceslao Valenton (Benjamin) drinking beer in front of the market. Before he could reach the group he heard multiple gunshots. Mr. Martinez was scared and threw himself to the ground by a car that was parked on the street. Mr. Martinez could see Vanessa and Benjamin lying on the ground but could not see Primo because he was on the other side of a wall. When the gunfire ceased Mr. Martinez walked over to where Primo was on the ground and saw that he was bleeding and having great difficulty breathing.
Los Angeles Police Officer Ray Mejia along with his partner Officer Hernandez responded to the shooting and found Primo on the ground in a pool of blood. Officer Mejia found bullet casings on the ground near the corner of Saratoga and Cesar Chavez. Primo was treated by Dr. Leslie Kobayashi at Los Angeles County U.S.C. Medical Center for gunshot wounds to his face. Primo had one bullet hole in his face near his lip and jaw, and another bullet hole on his left neck. Primo was comatose and Dr. Kobayashi determined that he had suffered a hypoxic brain injury, his brain was not receiving enough oxygen, and the injury was permanent.
On July 12, 2007, at approximately 8:10 p.m., Los Angeles Police Officer Jaime Anchondo observed a 2002 Nissan Altima fail to stop at a stop sign. Appellant was the driver and Carlos Estrada and Roberto Gomez were passengers in the car. Officer Anchondo and his partner Officer Jason Smith pursued the vehicle for several blocks and had to activate the overhead emergency lights and use the siren before appellant finally stopped the vehicle. Both officers drew their weapons and ordered the occupants out of the car. After the three occupants of the vehicle were handcuffed Officer Anchondo observed a .40 caliber Glock handgun underneath the front passenger seat.
Primo could only breathe with the assistance of a ventilator and was transported to Children's Hospital of Orange County for long-term care in February 2008. Primo had difficulty breathing and also became infected with a Methicillin-resistant Staphylococcus aureus. On February 19, 2008, Primo's breathing tube became partially obstructed and he required emergency surgery. The surgery was unsuccessful and Primo died. An autopsy confirmed the cause of death as complications arising from the emergency tracheostomy. The tracheostomy was required because of the injuries Primo suffered on July 9, 2007.
Los Angeles Police Department Criminalist Stella Chu compared the bullet casings found at Jack's Market with the .40 caliber Glock recovered from appellant's car and concluded that the casings had come from appellant's gun.
Primo's case was reclassified as a murder and on July 24, 2008, Los Angeles Police Detectives Araceli Negrete and Jacob Dugger interviewed appellant. Appellant initially denied any involvement in the July 9, 2007 shooting during a recorded interview. Appellant subsequently admitted that he was the shooter, but claimed he fired in self-defense. Appellant claimed that he was being followed and shot at as he ran through the neighborhood. He recognized some of the people standing in front of Jack's Market as having shot at him earlier in the evening. Appellant claimed he was scared and felt trapped and surrounded. Appellant believed he fired a total of 16 rounds from his .40 Glock handgun.
The recording and the transcript of the recording were entered into evidence as People's exhibits 69A, and 69B, respectively.
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Los Angeles Police Officer Sergio Salas, assigned to the Hollenbeck Gang Enforcement Detail, was called as the prosecution's gang expert. He testified that the Michigan Criminal Force gang had approximately 100 members, the Breed Street gang had approximately 100 members, and the East Los Angeles Trece Street gang had approximately 190 members. The gangs frequently disrespected each other through graffiti. The Breed Street gang was friendly with the Michigan Criminal Force gang, but there was an ongoing war between East Los Angeles Trece and Michigan Criminal Force.
Officer Salas testified that on July 9, 2007, appellant was an active member of the East Los Angeles Trece gang. The primary activities of the East Los Angeles Trece gang included grand theft, robbery, felony vandalism, narcotics sales, assault with a deadly weapon, attempted murder, and murder. Junior was a member of the Breed Street gang, and Primo and Benjamin were members of the Michigan Criminal Force gang.
Defense Evidence
On July 9, 2007, Antonio Garcia-Montes was working as a security guard at a restaurant near Jack's Market. After he heard gunshots he saw a person with a revolver coming towards him from the direction of Jack's Market. The person with the revolver was not appellant. Police officers later conducted a field identification which included several people who had been detained but Mr. Garcia-Montes was unable to identify anyone as the person he saw with the revolver.
On July 9, 2007, Benjamin and Junior were detained by police officers. According to Benjamin, Junior did not have a gun and there were no shots fired before those that struck and killed Primo. Los Angeles Police Officer Jason Smith found a .38 caliber revolver at 334½ Saratoga Street in the vicinity of Jack's Market. Officer Smith interviewed Benjamin and testified that Benjamin said that he saw Junior run to the rear of 334 Saratoga Street with a handgun, and then return to the sidewalk without the gun. The results of a gunshot residue test were inconclusive as to whether Benjamin or Junior were in the environment of the .38 caliber revolver, and there was no gunshot residue on either individual. Pitchess Motion
Appellant filed a Pitchess motion for discovery of reports of any misconduct contained in the personnel files and other confidential records of Detectives Negrete and Dugger. The trial court granted the motion, held an in camera hearing on July 14, 2009 with the custodian of records present, and found no discoverable matters.
DISCUSSION
I. Appellant's confession was properly admitted.
Appellant contends that he invoked his right to remain silent during the course of his interrogation, and that his statements which followed were inadmissible under Miranda and its progeny. Specifically, appellant contends that he attempted to end the questioning on four distinct occasions but each time was ignored and the questioning continued.
Appellant was interviewed by Los Angeles Police Detectives Dugger and Negrete on July 24, 2008. Appellant was advised of his Miranda rights and was told that the officers were investigating the shooting at Jack's Market on July 9, 2007. He was asked if he would tell them what happened that day. Appellant said he did not know. Appellant was questioned regarding his gang activities and the circumstances of his arrest on July 12, 2007. Appellant continued to deny any knowledge of the shooting on July 9, 2007. Detective Negrete told appellant, "Jose, you just can't even lie. Your face tells it all." Appellant stated, "I just want to go to East Lake. I want to go to sleep." Detective Negrete continued, "That's why you don't look up when we're asking a question?" Detective Dugger added, "What happened, Jose? Why did you guys shoot that kid?" Appellant replied, "I want to go to East Lake." Detective Dugger then stated, "Well, you don't get to call the shots here. I do. Why did you shoot the kid? . . . . What happened, Jose?" Appellant replied, "I want out of here." Detective Negrete then asked appellant some questions about his living arrangements and why he was in possession of a gun where a two-year-old boy resided. Appellant answered and then said, "I want to go to East Lake."
Appellant, addressing Detective Dugger stated, "Can I speak to you by yourself?" When Detective Negrete left the interrogation room, appellant stated to Detective Dugger, "But is it like—you know, why she keeps looking at me like—you know?" Detective Dugger replied, "I don't know. . . . If you're more comfortable with me, that's fine." Appellant replied, "Yup." Appellant added, "But if—but if I have to discuss it with you. Not with a girl[,]" and "Because like, what the fuck? A girl? Why do I got to speak to a girl for?" Appellant proceeded to admit he shot Primo and the others at Jack's Market on July 9, 2007.
Prior to trial, appellant challenged the admissibility of the confession. The trial court found no Miranda violation, explaining that while it was a "close call," based on the entire record and the equivocal nature of appellant's request, the court found no coercion and no reluctance expressed at any time by appellant.
In considering a claim that a statement or a confession was obtained in violation of a defendant's rights under Miranda, we undertake an independent review of the record to determine if the right to remain silent was invoked. (People v. Peracchi (2001) 86 Cal.App.4th 353, 359.) We independently determine from the undisputed facts and those facts properly found by the trial court whether the challenged statement was elicited in violation of Miranda. (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) In making this determination, we apply federal standards. (Ibid.; accord, People v. Boyette (2002) 29 Cal.4th 381, 411.)
"'If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.'" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238 (Musselwhite), quoting Miranda, supra, 384 U.S. at pp. 473-474.) "In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect 'must unambiguously' assert his right to silence or counsel. [Citation.]" (People v. Stitely (2005) 35 Cal.4th 514, 535.) However, whether a suspect has invoked that right is a factual question to be decided in light of all the circumstances. (Musselwhite, supra, at p. 1238.)
Appellant contends that his statements are clear invocations of his right to discontinue the interrogation and cites to a number of California decisions as support. In People v. Carey (1986) 183 Cal.App.3d 99 (Carey), after being advised of his Miranda rights, the defendant told police, "'I ain't got nothing to say at all.'" (Id. at p. 105.) On appeal, the reviewing court found an unambiguous invocation of the defendant's right to remain silent. (Ibid.) In People v. Harris (1989) 211 Cal.App.3d 640 (Harris), the defendant had left town but agreed to return to help straighten things out with the police. (Id. at pp. 644-645.) After being advised of his Miranda rights and asked if he wanted to talk, the defendant told police, "'Not really.'" (Harris, supra, at p. 645.) The investigator left the room, and on his return asked the defendant if he had changed his mind about talking. (Id. at p. 646.) Defendant relented and confessed. (Ibid.) The court held that the police should have cut off questioning when the defendant said he did "'not really'" want to talk. (Id. at p. 649.) In People v. Marshall (1974) 41 Cal.App.3d 129 (Marshall), the defendant was read his Miranda rights and answered some initial questions about the murder of his stepfather. (Marshall, supra, at pp. 131-132.) When asked if he wanted to go back over the parts he had left out, defendant answered, "No." (Id. at p. 132.) The court concluded that the defendant's unequivocal "no" amounted to a clear invocation of his right to remain silent. (Id. at p. 133.)
The cases appellant cites as support involve statements that are definitive and clear on the right to remain silent, either directly referring to the defendant's refusal to initially speak when asked to do so (Carey and Harris), or the defendant's refusal to clarify or expand on something already disclosed (Marshall). As the court in Musselwhite, supra, 17 Cal.4th at page 1240 observed, there are a number of decisions where similar contentions were raised and the California courts have concluded that the defendants' statements were something less or something other than an invocation of rights. In In re Joe R. (1980) 27 Cal.3d 496, 516, the court concluded that in context, the defendant's statement, "'That's all I have to say'" or "'That's all I want to tell you,'" did not amount to assertion of right to remain silent, and what he was truly expressing was, "That's my story, and I'll stick with it." In People v. Silva (1988) 45 Cal.3d 604, 629, the defendant's statement, "'I really don't want to talk about that,'" did not amount to invocation of Miranda.
More on point here is the case of People v. Jennings (1988) 46 Cal.3d 963 (Jennings), in which the defendant had earlier indicated that he trusted certain police officers and was speaking to Officer Cromwell because he was assured by an officer he knew and trusted that Cromwell would be fair. (Id. at p. 978.) Defendant claimed that he invoked his rights during the interrogation with Officer Cromwell when he stated: "'I'll tell you something right now. You're scaring the living shit out of me. I'm not going to talk. You have got the shit scared out of me,'" and "'I'm not saying shit to you no more, man. You, nothing personal man, but I don't like you. You're scaring the living shit out of me. . . . That's it. I shut up.'" (Id. at p. 977.) The trial court ruled that the statements made by the defendant after he made this pronouncement were voluntary. (Ibid.) The California Supreme Court acknowledged that the claim appeared meritorious if they relied solely on the reporter's transcript of the cited portion. (Id. at p. 978.) But the court considered the statement in the context of the defendant's demeanor before, during, and after the statements were made and concluded that they reflected "only momentary frustration and animosity toward Cromwell[,]" after the officer persisted in seeking clarification of some answers. (Ibid.) The court concluded based on the entirety of the interview that the further statements were voluntary because the defendant had not invoked his right to silence. (Id. at p. 979.)
Here, appellant denied involvement in the shooting while being questioned by a female detective (Negrete) and a male detective (Dugger). Appellant's statements that he wanted "out of there" to go to "East Lake," and that he wanted to sleep were made in response to Detective Negrete's comment that appellant's face was betraying his attempts to lie. Appellant acknowledged that he was uncomfortable in the presence of a female detective because a few moments later while addressing Detective Dugger, appellant stated, "Can I speak to you by yourself?" When Detective Negrete left the room, appellant showed no reluctance to talk and explained his discomfort with Detective Negrete, stating, "But is it like—you know, why she keeps looking at me like—you know?" Appellant confirmed that he was more comfortable speaking with Detective Dugger once Detective Negrete had left the room. Appellant then stated that he was in "a fucked up bad situation" but he preferred to discuss it with Detective Dugger and "[n]ot with a girl[,]" "[b]ecause like, what the fuck? A girl? Why do I got to speak to a girl for?" Once Detective Negrete had left the room, there was no further prompting by Detective Dugger and appellant continued with the interview.
The court below, could reasonably conclude that appellant refused to talk further with Negrete with whom he was not comfortable, and when alone with Dugger voluntarily made these statements. "While we must review the record and make an independent determination of the question, we, . . . 'give great weight to the considered conclusions' of a lower court that has previously reviewed the same evidence. [Citation.]" (Jennings, supra, 46 Cal.3d at p. 979.) Having independently reviewed the recording and transcript of appellant's interrogation we find no error in the trial court's ruling. Appellant did not, by his statements, indicate that he was invoking his right to remain silent. (People v. Davis (1981) 29 Cal.3d 814, 824.) II. The Pitchess Motion.
We have independently reviewed the sealed transcript of the in camera proceedings on appellant's Pitchess motion. The trial court's findings during that review, as reflected in the sealed transcript, were sufficient to permit appellate review of its ruling. (People v. Mooc (2001) 26 Cal.4th 1216, 1229, 1232.) We find no error in the trial court's ruling.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD, Acting P. J. We concur:
ASHMANN-GERST, J.
CHAVEZ, J.