Opinion
F040659.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO RANGEL, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Jeffrey D. Firestone and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On August 22, 2001, an information was filed in the Superior Court of Fresno County charging appellant Roberto Rangel with count I, first degree murder of Norberto Castillo (Pen. Code, § 187, subd. (a)), with the special allegation that he personally used a firearm and caused great bodily injury or death ( § 12022.53, subd. (d)); and count II, assault with a firearm on Pedro Montoya ( § 245, subd. (a)(2)), with the special allegation that he personally used a firearm during the commission of the offense ( § 12022.5, subd. (a)(1)). Appellant pleaded not guilty and denied the special allegations.
All further statutory references are to the Penal Code unless otherwise indicated.
On November 20, 2001, the court heard appellants motion in limine to exclude his postarrest statements to the police, the matter was submitted, and his jury trial began. On November 27, 2001, the court denied the motion. On December 5, 2001, the jury was transported to the crime scene. On December 14, 2001, appellant was found guilty as charged.
On January 14, 2002, appellant filed a motion for new trial based on the trial courts failure to exclude his pretrial statements, prosecutorial misconduct, and insufficient evidence of premeditation and deliberation for first degree murder. On February 15, 2002, the prosecution filed opposition. On April 26, the motion was argued and submitted. On April 30, the court denied the new trial motion.
On May 3, 2002, the court denied probation and imposed the indeterminate term of 25 years to life for count I, first degree murder, with a consecutive term of 25 years to life for the firearm allegation; as to count II, assault with a firearm, the court imposed the midterm of three years with a consecutive term of four years for the firearm allegation, for an aggregate term of 57 years to life.
On May 22, 2002, appellant filed a timely notice of appeal.
FACTS
Sometime after midnight on June 9, 2001, Norberto Castillo was fatally shot at the El Corral Bar in Fresno. Appellant Roberto "Chino" Rangel was arrested, charged, and convicted of first degree murder. He was also convicted of assault with a firearm, based on wounding an associate during the shooting. On appeal, he contends the trial court improperly admitted his postarrest statements because he invoked his right to counsel during the interrogation. Appellant also challenges the sufficiency of the evidence for premeditation and deliberation to support the first degree murder conviction, and raises an instructional issue.
The El Corral Bar
On the evening of Friday, June 8, 2001, Norberto Castillo picked up his cousin, Francisco Avalos, and they drove to Tony Lopezs house, where they split an 18-pack of beer. Castillo only drank three or four beers because he was driving. Avalos testified that Lopez offered to sell a .380-caliber handgun to Castillo for $ 100. Castillo examined the weapon and thought it was in good condition. Lopez gave him a bullet and invited him to test the gun. Castillo went outside and loaded the bullet in the gun, racked the slide, and tried to fire, but it didnt work. Castillo tried to fire the handgun two more times but it never discharged. Avalos testified that when Castillo tried to rack the slide, the bullet stood straight up instead of going into the chamber. Nevertheless, Castillo paid for the gun and placed it in his belt, and they left Lopezs house. Castillo got into his car and placed the gun inside the center console. Avalos believed Castillo purchased the gun in order to fix it and resell it for a profit.
Around 8:00 p.m., Castillo and Avalos arrived at El Corral Bar on East Belmont Avenue in Fresno. El Corral had a serving bar, a juke box, and several pool tables. Avalos testified there were about 25 people inside the building, and they recognized some of the patrons from their prior visits. Castillo was wearing cowboy boots and a cowboy hat. Castillo and Avalos stood at the serving bar and drank several beers with two other men. The juke box was playing and the overhead bar lights were on. Avalos testified Castillo talked and laughed with Rebecca Villaverde, who worked as the bartender. There were no arguments or fights while they were there.
Castillo and Avalos left the bar around 9:15 p.m., and Castillo drove Avalos back to his apartment. Avalos testified they had consumed the same amount of beer together and he was "more or less" sober. Castillo said he was going to take his wife to dinner and left.
The Shooting
Even though Norberto Castillo said he was taking his wife to dinner, he actually returned to El Corral Bar. Jose "Wache" Magana was working at El Corral that night, and testified Castillo arrived some time between 10:00 p.m. and 11:00 p.m. Castillo was wearing a big cowboy hat and boots, and stood at the serving bar with Magana and Rebecca the bartender. Magana testified Castillo asked Rebecca to drink with him, but Rebecca refused. Magana described Castillo as acting like a big man and showing off. Magana believed Castillo was being a little aggressive toward Rebecca because he had been drinking.
Magana testified that appellant Roberto "Chino" Rangel arrived at El Corral later that night with Pedro Montoya. Appellant and Magana were cousins. Pedro Montoya sat at the serving bar and appellant played dice at the pool table. Magana testified that Castillo continued to bother Rebecca and flirt with her. Magana testified that Rebecca and Pedro Montoya were dating, Montoya paid the rent for Rebeccas apartment, and Montoya had been jealous about her on a previous occasion. Montoya now became upset about Castillos conduct toward Rebecca. Magana decided to warn Castillo and told him "in a loud voice not to bother her because Pedro was there, and he could get upset." Magana never saw Castillo display a gun.
Magana noticed that Castillo was upset and he tried to calm him down. Magana testified that appellant left the pool table and came to the serving bar. Appellant pulled Magana by the shirt, said he didnt have anything to do there, and told him to get away. Magana left the serving bar and went to dice table, and appellant walked out of the building.
Magana testified he went into the restroom and heard gunshots. He immediately returned to the bar and saw appellant firing a gun in the general direction of the serving bar. At trial, Magana testified he didnt see who appellant was shooting at. However, Magana admitted he previously told the police that appellant was firing at Castillo, who was still standing at the serving bar. Magana testified appellant fired more than three shots, and Castillo fell down next to the serving bar. Magana quickly left the building and didnt look back to see what appellant or anyone else was doing. Magana didnt know how many shots were fired because there was too much confusion.
Miguel Valladares testified he was playing dice at the pool table with appellant, Luis Palomar and other patrons. Valladares testified that Pedro Montoya had an argument with Rebecca the bartender earlier in the evening because he was jealous. Valladares testified that sometime after midnight, appellant received a call on his cell phone and went outside because the juke box music was very loud. Appellant reentered the building within five minutes. Valladares heard gunshots "immediately" after appellant returned to the building. "When [appellant] crossed by the opening and about five seconds or so, they started shooting." Valladaress back was to the serving bar when the shots were fired. He turned around and saw Pedro Montoya walking toward the juke box and firing a handgun. Valladares jumped over the pool table to protect himself and fell on top of Rebecca the bartender, who was already hiding on the floor.
Valladares testified two shots were initially fired. There was a slight pause, and at least 10 more shots were fired. The gunshot sounds echoed in the building and everything happened very fast. Valladares stayed under the pool table and did not see appellant firing a gun. However, he heard gunshots being fired from the area where appellant had been standing by the juke box. Valladares testified Pedro Montoya walked out of the bar with one hand on his stomach and the other hand hanging by his side, and he was still holding the gun. Valladares testified everyone ran out of the bar after the shots were fired. Valladares got up and saw a body on the floor. He thought it was Jose "Wache" Magana but Luis Palomar told him it was someone else.
Rebecca Villaverde, the bartender, testified Norberto Castillo and his cousin, Francisco Avalos, arrived at El Corral around 8:00 p.m. Castillo was not a regular patron and she had never seen him before, but she had seen Avalos. Castillo stood at the serving bar, spoke to a young girl, and invited her to have a beer with him. Rebecca thought the young girl was with Castillo. Rebecca served three beers to Castillo and the girl, but denied that Castillo offered to buy her a drink. Castillo and Avalos left around 8:30 p.m., and Castillo told the girl that he would be back for her later.
Rebecca testified that Castillo returned to the bar around 12:15 a.m. Castillo was alone but it appeared as if a young man was waiting for him. Castillo and the young man sat at the far end of the serving bar, next to the mens restrooms, and they talked. Rebecca testified she could hear their conversation, and it seemed they were arguing because the young man owed money to Castillo. She served one beer to Castillo, and then she went outside to smoke a cigarette.
Rebecca testified she did not talk with Castillo, he was not rude or disrespectful toward her, he did not try to pick her up, and she did not make such claims to anyone at the bar that night. She did not see Castillo in possession of a gun or tell any of the patrons he had a gun. Rebecca admitted Pedro Montoya was also at the bar that night and they had been dating, but they just broke up a few days before the shooting. Appellant was also at the bar.
Rebecca testified that when she returned into the building after her cigarette, she was standing by the main door when she heard gunshots. Rebecca testified she heard three or four shots, and then she ran out of the building and into the parking lot. She went to a public telephone to call for a taxi because she needed a ride home. She couldnt make the call, however, so she walked to her sister-in-laws house. Rebecca testified she didnt call the police that night because she was scared.
Luis Palomar testified he was playing dice with appellant and Miguel Valladares at the back pool table. Appellant went outside then returned to the bar, and Palomar thought appellant was going to rejoin the dice game. Shortly after appellant returned, Palomar heard one or two shots and immediately went down to the floor. He heard about six or seven more shots while he was hiding under the pool table. Palomar saw more than one pair of feet moving closer to the serving bar as the shots were being fired. He also saw some people struggling, but he couldnt see their faces because he was still hiding under the pool table.
Palomar testified everyone ran out of the bar when the shooting stopped. Palomar saw Pedro Montoya getting up from the floor. Montoya was near Castillo, who was lying on the floor between the serving bar and one of the pool tables. Palomar tried to help Castillo but he was already dead. Palomar testified he was scared and left, and he was the last person to leave the building. Palomar testified he didnt call the police that night because he was on probation. The next morning, however, he contacted Fernando Medina, the owner of the bar, and told him to call the police.
The Investigation
Around 8:30 a.m. on Saturday, June 9, 2001, Fernando Medina received a telephone call from Luis Palomar that someone had been shot the previous night at El Corral. Medina owned the bars liquor license and Palomar was the manager. However, Medina testified that Palomar was actually the secret owner of the establishment. Palomar couldnt hold the liquor license because of his criminal record. Medina testified he had an arrangement with Palomar where he agreed to place his name on the liquor license in exchange for a monthly share of the bars income. Medina testified he never went to the bar, and Palomar actually owned and operated the business.
At trial, Palomar denied the existence of this arrangement and testified he was just a patron at El Corral. However, Rebecca Villaverde testified Luis Palomar was "supposedly" the owner and paid her wages, and Palomar paid Francisco Medina to place his name on the liquor license.
Palomar picked up Medina and they drove to the bar. During the drive, Palomar told Medina he received a call that morning from Rebecca Villaverde, the bartender, who told him about the shooting. When they arrived at the bar, Palomar dropped off Medina and told him to call the police. Medina stood outside the bar and saw Rebecca Villaverde walking across the street. Medina was afraid to go into the bar and went to a nearby liquor store and used their telephone to call the police.
Medina testified that he initially told the police the false story that he learned about the shooting directly from Rebecca. He didnt mention his conversation with Palomar because he wanted to keep their ownership arrangement confidential. However, Medina became nervous as he spoke to the police and he eventually revealed his arrangement with Palomar, and that Palomar told him about the shooting. Medina also told the police he saw Rebecca walking around the building when he arrived that morning.
At 8:46 a.m., Fresno Police Officer Bert Phillips and several other officers responded to the bar and spoke with Medina, who stated he learned about the shooting from Rebecca, the bartender, but he had been too afraid to go into the building. Officer Phillips testified Medina was very evasive in response to his questions, and seemed reluctant to give much information.
The officers found a black Ford Probe parked in front of the building. The officers entered the darkened building and found Norberto Castillos body near the serving bar. The victim was lying on his back, and he was about 20 feet from the door. The victims eyes were open but nonreactive and fixed straight ahead. The body was rigid with dried blood on the clothing. There was a black, gun-metal .380-caliber semi-automatic handgun on Castillos left side, just a couple of inches from his hand. Castillos hand was in a closed, clenched, holding position. There were several shell casings scattered around the floor.
Officer Phillips returned outside and again spoke with Medina, who changed his story and said he learned about the shooting from Luis Palomar. Medina also said he had just seen Rebecca Villaverde across the street while the officers were inside the building. Officer Phillips obtained her description, entered his patrol car, and drove around the block. He found and detained Rebecca, and escorted her back to the bar.
Rebecca testified she walked back to El Corral that morning because she couldnt sleep. She kept walking when she saw the police. However, the police detained her and escorted her back to the building. She walked through the building with an officer and indicated the beer bottles which she sold to the patrons the previous night.
Officer Guy Ballesteroz conducted an extensive examination of the interior of El Corral Bar. There was a spent .380-caliber brass shell casing on the pool table. There were several shell casings spread across the floor, between the wall and the pool table. There were two more casings and a spent slug inside a restroom. There was a bullet hole through a metal Budweiser sign affixed to the wall; the projectile went through the wall, into another restroom, hit a metal grate over the restrooms window, and fell on the floor next to the toilet. The bullet had been flattened when it hit the metal grate. There was a bullet hole in the buildings metal back door, near the juke box and restrooms.
There was a spent shell casing and a pack of sunflower seeds on one end of the serving bar, and another spent casing on the floor on the other side of the serving bar. There were beer bottles scattered on top and below the pool tables, and a pair of dice on one of the tables. There were two pieces of a shoe sole on the floor, near a bar stool and the front door. There were also some intact copper-jacketed bullets on the floor, and some bullet fragments on the restroom floor. A $ 20 bill was under one of the pool tables.
Norberto Castillo had been wearing a gold chain and medallion around his neck. He had a brown wallet and $ 87 in his pocket. There were a couple of broken watches on the floor, just to the left side of the body: a Citizen watch with a broken black leather band, and a gold Bulova watch. There was a white cowboy hat, a pen, a cell phone, and a pack of gum on the floor near the body, between the juke box and the pool table. Castillo had a set of keys attached to a braided leather strap in his pocket; one of the keys opened the black Ford Probe parked in front of the building. Castillos fingerprints were on three beer bottles, one of which was on top of the bar.
Norberto Castillo had suffered five gunshot wounds to his body: three in his back, one in his left hip, and one in his left arm. The pathologist testified the cause of death was the multiple gunshot wounds, but it was impossible to determine the order of the wounds. All the bullet wounds followed the same general direction: left to right and back to front, and the shots entered the upper part of his body and traveled downward. There were no strippling marks on his body or clothes, which indicated the shots were fired from a distance past 24-30 inches away.
The pathologist testified about the locations of the five gunshot wounds. There was an entrance wound in his upper left back, which went into the left chest cavity and perforated the left lung, the heart, the right lung, and exited through the right anterior chest, and would have been fatal. An entrance wound in his right back went through the right lung, and also was fatal. An entrance wound in the midback went through the spinal column, the right lung and the liver, then exited the body. It could have been fatal if the victim didnt receive immediate treatment for bleeding. The entrance wound in the left hip went through the hip bone and the abdominal cavity, then existed through the right lower quadrant of the abdomen, and was not fatal. The fifth entrance wound went into the left arm, exited the arm, then went through the chest and abdominal cavities. It lacerated the liver then exited through the side, and was potentially fatal if the victim didnt receive immediate medical attention for internal bleeding. There were also two laceration abrasions on Castillos forehead, consistent with blunt force trauma to his head. There was no evidence of broken glass in his skin to indicate the trauma was inflicted with a beer bottle. There was a single blood drop on the floor near Castillos body.
Castillos blood-alcohol level was .22 percent, consistent with consuming approximately nine and one-half beers in a short period of time. There was a small amount of cocaine and its metabolite in his urine, which had already passed through his bloodstream but still indicated recent use or that he was coming down from a cocaine high.
Officer Ballesteroz testified that based on the manner in which the shell casings were scattered through the building, the shots could have been fired by anybody moving from one area of the bar to another. In addition, the casings could have been kicked around the floor or stepped on as people were running out. Officer Ballesteroz testified the shell casings were consistent with a .380-caliber weapon. He also testified that if the bullets had been fired from a revolver, the casings would have remained in the revolver unless the shooter manually removed them. There was one 9-millimeter Winchester cartridge case on the floor. All the remaining casings were .380-caliber, several of which were Winchester brand.
The coroner arrived at the bar and examined the body, and removed a bullet from the victims right front pants pocket and gave it to the police. It was a unexpended, .380-caliber full metal copper-jacketed bullet with an aluminum casing. In contrast, the .380-caliber shell casings scattered on the floor had brass or copper-type casings.
The coroner replaced the bullet in the victims pocket. The funeral home later gave this bullet to the victims brother, and he gave it to the police.
The .380-caliber gun found next to Castillos body was inoperable and not capable of firing any of the .380-caliber bullets or shell casings found in the bar. Even if Castillos gun had been operable, it left different ejector marks when it was tested and could not have fired any of the bullets or casings found at the scene. There were no fingerprints on the gun. Francisco Avalos later identified the gun as the inoperable weapon which Castillo purchased earlier that evening.
The police recovered a total of six .380-caliber expended shell casings from the bar. These casings all had the same ejector marks in the same location, and the same breech face marks, which indicated all six casings were fired from the same gun. The six casings could not have been fired from Castillos inoperable gun or a nine-millimeter handgun. The police also recovered four bullets which had been fired from the same gun, but not from the gun which fired the six .380-caliber casings or Castillos inoperable weapon. A single nine-millimeter expended casing was recovered from the scene, but it was not fired from Castillos gun and wasnt connected to any other casing or bullet found in the bar. The police also recovered four bullet fragments, but they were too small to determine the type of weapon they had been fired from. The murder weapon was never found.
Appellants Postarrest Statements
On June 9 and 13, 2001, Detective Robert Schiotis went to University Medical Center to interview a patient admitted as "Jesus Gonzalez," who had been treated for three gunshot wounds to his torso. Detective Schiotis determined the patient was actually Pedro Montoya. Montoya stated he had been shot and robbed, and denied any involvement in the El Corral shooting.
Detective Eppie Cardenas testified appellant worked as a narcotics informant for him about five or eight times over two and one-half years. At some point between June 9 and 17, 2001, Detective Cardenas spoke with appellant about another matter but asked if he knew anything about the incident at El Corral Bar. Appellant said he didnt know about it and Detective Cardenas replied that someone had been killed there. Appellant replied it wasnt any of his business and he didnt know anything. Cardenas testified this conversation occurred before he knew the police considered appellant a suspect in the shooting. Appellant was not working as an informant at that time.
On June 17, 2001, Detective Jerado Chamalbide arrested appellant Roberto Rangel after receiving a tip about his location. Appellant falsely identified himself as Jose Rodriguez. Appellant was advised of the Miranda warnings, and the interview was tape-recorded. Appellant denied being known as "Chino." Appellant said he had been at the El Corral Bar on previous occasions while working with Detective Cardenas, but he didnt know about the shooting. He heard through some friends that a person was beaten at the bar but it wasnt his concern. Appellant denied being at the bar at the time of the shooting and repeatedly claimed he was pig hunting at a ranch in Lemoore that night. Appellant asserted he had several witnesses who would place him in Lemoore. Appellant repeatedly said he worked as an informant for Detective Cardenas and he needed to keep in touch with him.
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602
Appellant asked Detective Chamalbide if he had Detective Cardenass telephone number. Chamalbide asked appellant if he wanted to call him, and appellant said yes. The homicide investigators contacted Cardenas and told him appellant wanted to speak with him.
Detective Cardenas arrived at the police department and went into the interview room. No other officers were present. Appellant immediately said he wanted to tell Cardenas the truth about what happened. Appellant said he was at the El Corral Bar with his cousin, Jose Magana, and Norberto Castillo came at them with a gun. Appellant said Castillo fired twice and appellant returned fire, and he hit Castillo once in the left rib cage. Appellant also said there were some individuals who brought truckloads of drugs to the bar.
Detective Cardenas said he had to talk to the homicide detectives before they could continue the conversation. Cardenas left the interview room and conferred with the homicide detectives. Cardenas returned to the interview room, readvised appellant of the Miranda warnings, and asked if he would answer questions. Appellant agreed and again told him about the incident at the bar. Appellant said he had to get his cousin, Magana, out of the way because Castillo had a gun, he was talking to Rebecca the bartender, and he was "acting like a big man with wads of money and a gun on his waistband." Appellant described Castillos weapon as a small black gun, and said it was a .380-caliber. Appellant said Pedro Montoya, Rebeccas boyfriend, was carrying a nine-millimeter handgun.
Appellant admitted he had a gun but gave inconsistent statements about it. Appellant said he left the bar and went into the parking lot, where he retrieved a .380-caliber handgun from his car. Appellant also said a friend loaned the gun to him earlier in the evening. Appellant then said he carried the gun in his waistband and several people knew he had it.
Appellant said when he returned to the bar, Castillo and Pedro Montoya were next to the serving bar and physically struggling, and appellant heard two gunshots. Appellant said Castillo fired his weapon, and Montoya shouted that he had been shot. Castillo turned toward appellant and he thought he was going to be shot next. Appellant shot Castillo once in the left rib cage then ran out the door. Appellant said Montoya also shot Castillo and he thought the wound was in the neck. Appellant also gave inconsistent statements about Montoyas weapon. He said he didnt know the caliber of Montoyas gun, that Montoya carried both a .380-caliber and a nine-millimeter, and that Montoya was accompanied that night by an armed bodyguard. Appellant said Montoya killed Castillo.
Detective Cardenas told appellant the victim suffered more than two gunshot wounds. Appellant said the victim was carrying a .380-caliber handgun. Appellant initially said he was also carrying a .380-caliber, but later said he wasnt sure of the caliber of his own weapon. Appellant told Detective Cardenas that he drove away from the bar, threw his gun into a canal, and went home. Detective Cardenas told appellant it was important to retrieve the gun to compare it with the bullets in the victims body. Appellant said he had cleaned the gun very well. Appellant subsequently admitted he lied about throwing the gun into the canal, and the gun was stored "in a ranch house somewhere in Lemoore." Appellant refused to identify the ranch house and said he would contact the relevant people to retrieve the gun.
Detective Cardenas testified appellant was not working for him as an informant at the time of the shooting. During the interview, however, appellant tried to tell Cardenas about a methamphetamine laboratory. Cardenas told appellant they had to take care of this matter before they talked about any drug information.
Defense Evidence
Neither appellant nor Montoya testified at trial. Appellant did not call any additional witnesses but recalled several prosecution witnesses. Luis Palomar admitted he had prior felony convictions for driving under the influence and the sale of controlled substances in December 1999. Miguel Valladares testified the bars overhead lights were not on that night, but the small lights were on over the serving bar. Valladares testified it wasnt too bright but "you can see the people there." Valladares testified when he heard the first shot, he turned around and saw appellant walking through the door, then saw Pedro Montoya firing his weapon toward the serving bar. Valladares saw Montoya fire two shots and walk out of the bar, but Valladares heard several more shots fired. Everyone went down to the floor when the shots were fired. Valladares had known appellant for a long time and he wasnt a violent person.
Rebecca Villaverde was asked whether she feared for her safety to testify about the shooting. She admitted she was afraid right after the shooting, but she felt calmer after appearing in court. She denied that she went into hiding after the shooting. She quit working at El Corral after the shooting "because I was afraid and I dont want any problems." Rebecca again denied that she argued with Pedro Montoya shortly before the shooting.
Francisco Avalos again testified that he was at El Corral with Norberto Castillo early in the evening, prior to the shooting. Avalos testified Castillo was not talking to a female patron, and Rebecca the bartender was the only woman in the establishment. Castillo was "not exactly flirting" with Rebecca but they had a short conversation. They left the bar and Castillo dropped off Avalos at his apartment around 9:15 p.m. Castillo said he was going to take his wife to dinner or a dance.
Appellant was convicted of the first degree murder of Norberto Castillo and assault with a deadly weapon on Pedro Montoya, and sentenced to 57 years to life. On appeal, he contends the court should have excluded his postarrest statements to the police because the officers continued to interrogate him after he invoked his right to counsel. He also challenges the sufficiency of the evidence of premeditation and deliberation for first degree murder. Finally, he contends the court should have given the revised version of CALJIC No. 9.00.
The record is silent as to whether Pedro Montoya was charged with any offenses.
DISCUSSION
I.
DENIAL OF MOTION TO EXCLUDE APPELLANTS POSTARREST
STATEMENTS
Appellant contends the trial court erroneously denied his motion in limine to exclude his postarrest statements. Appellant argues he invoked his right to counsel during the interrogation, and the homicide detectives should have immediately ceased all questioning. Instead, they invited Detective Cardenas to join the interview and he continued to question appellant about the shooting. Respondent asserts appellants purported request for counsel was ambiguous, and he reinitiated the conversation when he asked to speak with Detective Cardenas. Respondent argues appellants statements were not obtained in violation of Miranda.
Appellant was arrested and interviewed on June 17, 2001, and the interviews were tape-recorded and transcribed. The interviews are divided into two sections. The first interview was conducted by Detectives Chamalbide and Schiotis, and the second interview was conducted by Detective Cardenas. Appellant claims he invoked his right to counsel at the conclusion of the first interview, the officers conducted the second interview in violation of Miranda, and his inculpatory statements should have been excluded.
A. Appellants Initial Postarrest Interrogation
As discussed ante, Detective Epifanio "Eppie" Cardenas testified appellant had worked for him as a narcotics informant in the previous two and one-half years, but appellant was not working for him at the time of the shooting. Detective Cardenas spoke with appellant at some point after the shooting, and asked if he knew anything about the incident at the bar. Appellant said he didnt know anything about it. This conversation occurred before Cardenas knew the police considered appellant as a suspect.
On June 17, 2001, appellant was arrested and transported to the Fresno Police Department. At 12:25 a.m., he was interviewed by Detectives Chamalbide and Schiotis. Detective Chamalbide conducted the interview in Spanish and translated for Detective Schiotis. Appellant was advised of the Miranda warnings and that the officers were investigating the shooting at El Corral Bar, and asked if he would answer questions. Appellant said he would answer questions but he didnt know anything about the shooting.
The detectives removed appellants handcuffs and before they could ask him any questions, he immediately said: "I work with an officer also, I work with the DEA." "Right now . . . Im going to get them thirty boxes of pills and five pounds of crank." "With Officer Santellano and Epifanio Cardenas. Yeah I work with them . . . thats why I dont know anything or want to."
The detectives asked appellant if he had ever been at El Corral Bar. Appellant said he went there sometimes with Detective Cardenas "to look at people that he was going to make a contract with...." They asked about his whereabouts the night of the shooting, and appellant said he was pig hunting with some friends at a ranch in Lemoore. Appellant again returned to the subject of Detective Cardenas, and said they had talked all week about doing a narcotics job, and "you can ask him." The detectives asked appellant more about his alibi, and appellant went into great detail describing his friends, the location of the ranch where they were hunting, when and how they got there, and that he used a rifle.
As the interrogation continued, appellant repeatedly talked about Detective Cardenas (referring to him as "Epifanio"), and how he was working with him on a big drug deal. The detectives asked appellant where he lived, and he responded that Detective Cardenas had been to his house and knew the address. They again asked if he knew anything about the bar shooting, and appellant said he didnt know about it until Cardenas told him. "Epifanio was the one who told me." Appellant never went to El Corral because "they knew that I do work with" Cardenas. Appellant went to El Corral a few times to look at people for Cardenas but he had never done a job there. Appellant admitted he knew some of the patrons and the female bartender.
The detectives again advised appellant he was in custody for the bar shooting, and he again said he was at the Lemoore ranch and didnt know anything about it. The detectives replied that he was lying and they had several witnesses who placed him in the bar. Appellant said they were lying and he wasnt there, and he was willing to lead them to the ranch in Lemoore to support his alibi. Appellant then retreated from this offer and again said he wasnt at the bar and didnt have a gun.
The detectives repeatedly told appellant that several witnesses saw him at the bar and they knew he was lying. Appellant said "things will be fixed by Epifanio." The detectives said they knew appellant was there and they were probably going to find appellants fingerprints in the bar. They asked if the victim had been vulgar with Rebecca the bartender, and appellant told them to ask Rebecca.
Detective Chamalbide told appellant this wasnt something he could get out of by doing a job "with Epifanio," and asked "what is Epifanio going to say . . . what type of person are you."
"[Chamalbide] You want to talk to Epi . . . you work better with him.
"[Appellant] No..he never answers. . . the dude . . . (inaudible) . . .
"[Chamalbide] If I . . . I can call him at home . . .
"[Appellant] Yeah ... if he wants to come see me because I need to give the details . . . (inaudible) . . .
"[Chamalbide] No . . . If I call him . . . we are going to talk about what happened at the El Corral . . . ." (Italics added.)
Appellant again said he was working on another job for Cardenas involving three hundred boxes of pills. Chamalbide said appellant was a good person who worked with officers, and they couldnt fix anything but they could talk to the judge "that there was another reasons [sic] on why things happened." Appellant again said he was at the ranch and not the bar.
Detective Chamalbide said he knew appellant was defending someone and maybe there was a fight, and asked if he had been hiding. Appellant said if he wanted to hide, he would have gone somewhere and not come back. Chamalbide replied that everyone said appellant was looking for money to go back to Mexico.
"[Appellant] Yeah . . I work . . . If I do a job like the one that I am going to do for Epifanio (inaudible) . . . If I go with the DEA they pay more . . . no I do a job and I get money and I leave . . . but . . no . . why am I going to go.
"[Chamalbide] Because you shot someone.
"[Appellant] No . . no (inaudible) . . If I only do one job with Epifanio they pay me ...."
Chamalbide again told appellant he was lying and they were going to find his fingerprints in the bar. Chamalbide also said appellant had been hiding and wanted to go to Mexico. Appellant replied "all the days I was calling Epifanio." Chamalbide said he knew Pedro Montoya was fighting with another guy, and appellant said they should ask Montoya.
Appellants claim that he invoked his right to counsel during this interrogation is based on the following sequence, which occurred as the interrogation came to an end:
"[Chamalbide] What . . . what happened. Tell me what happened.
"[Appellant] I dont know . . . lock me up. Then tomorrow . . . uh . . . I11 go with a lawyer and we11 talk about everything.
"[Chamalbide] (Inaudible).
"[Appellant] (inaudible) . . talking . . .we11 talk with a lawyer. And . . . (inaudible) . . . uh . . . we will talk about everything . . . inaudible
"[Chamalbide] Okay . . . Okay. . . I am going to take the handcuffs off the chair . . . Inaudible...
"Coughing
"Key Sounds
"Handcuff sounds
"[Appellant] (Inaudible).
"[Chamalbide] Okay . . . inaudible . . .
"[Appellant] Yes . . . uh . . . um . . . do you know Eppies number?
"[Chamalbide] Yes.
"(Door opening)
"[Appellant] Yes? Mm.
"[Chamalbide] Do you want me to call him or what?
"[Appellant] Uh huh . . .
"[Chamalbide] And what do you want me to tell him?
"[Appellant] To come . . . . uh . . . . to see me, because I want to . . . talk . . . uh . . . uh . . tell him this is all gonna work. I have it all ready just want to know for myself.
"[Chamalbide] Okay.
"(Door closes)[.]" (Italics added.)
The transcript ends at this point.
B. The Second Postarrest Interview
Detective Chamalbide apparently called Detective Cardenas and asked him to come down to the police department. According to the transcript, Detective Cardenas arrived at 4:05 a.m. and entered the interview room, where appellant had been waiting. Detectives Chamalbide and Schiotis were not in the interview room, and Cardenas was alone with appellant.
"[Cardenas] Hey . . . whats going on? They told me you had asked for me ... that you wanted to talk to me. Well ... Im here... They woke me up ... I just woke up.
"[Appellant] Huh? Im going to tell you that happened and its the real truth. If you can help me. (Inaudible) Then, the . . . . the guy had a gun on his hand. And my cousin was there. Then the guy arrived with the gun on the outside. (Inaudible) and he started saying things (Inaudible) that works there. My cousin was there and he told him something to my cousin. (Inaudible) then I saw and walked to get my cousin out of there. But the guy pulled out the gun, he had it in his hand (Inaudible) and the other guy went at him, also with a gun in hand. I turned . . . I was leaving and thought he was going to shoot me in the back. I also had a little gun (pistolita) with me, but the other guy is the one who shot him. I only shot him once. The one who got him shot him in the neck. (Inaudible) and he hit the other guy . . .
"[Cardenas] (Sighs)
"[Appellant] (inaudible).
"[Cardenas] Oh yeah. . . . .
"[Appellant] Yes . . . .(inaudible) well yeah. Right now (inaudible). Thats why I was saying (inaudible). And I had (inaudible) get away (inaudible). (Inaudible) they were arguing (inaudible). Thats what I know."
Cardenas told appellant he was being held for the shooting.
"[Appellant] (Inaudible). But I didnt have a chance but (inaudible). And he had a gun. I dont know who took the gun from him or what. But he arrived with the gun on the outside. When I was arriving, but left . . . (inaudible). . . .
"[Cardenas] Listen. I just got here. I just woke up. They called me ... and ... and ... you come out with these guys here ... lets see whats happening. Uh ... why they have you here and then I11 be back to talk with you.
"[Appellant] And why if I didnt want to say anything to them, until I talked to you."
Cardenas said he would check with "these guys" and be right back. Cardenas left appellant in the interview room and went outside.
The transcript states Cardenas returned about 12 minutes later. Cardenas told appellant he spoke to the detectives, and they said appellant was under arrest for the shooting death at the bar. The detectives also told Cardenas that he had to advise appellant of his rights if he wanted to ask any questions. Cardenas then readvised appellant of the Miranda warnings and asked if he would answer questions. Appellant said yes. Thereafter, Cardenas conducted a lengthy interview with appellant about the shooting. As set forth ante, appellant admitted he shot Castillo but claimed he was trying to protect both his cousin and Pedro Montoya.
C. Motion In Limine to Exclude Pretrial Statements
Appellant filed a motion in limine to exclude his postarrest statements as having been obtained in violation of Miranda. Appellant asserted he was questioned by Detectives Chamalbide and Schiotis for three hours in the early-morning hours of June 17, 2001, and invoked his right to counsel when he said he would get a lawyer the next day and they would talk about everything. Nevertheless, the interrogation continued and the homicide detectives asked Detective Cardenas to join the interview. Appellant argued the interrogation should have ended because he invoked his right to counsel, and his inculpatory subsequent statements should be excluded. Appellants motion was supported by limited portions of the interview transcript.
On November 20, 2001, the scheduled first day of trial, the court heard appellants motion in limine to exclude his postarrest statements. Defense counsel argued the attached portions of the interview transcript "speak for themselves" but offered to introduce the full transcripts. The prosecutor also offered to produce the full transcripts, and argued appellants alleged request for counsel was vague and ambiguous. The prosecutor noted the homicide detectives advised appellant of the Miranda warnings at the beginning of the interrogation and appellant agreed to answer questions. Immediately after appellants comments about counsel, however, he asked the homicide detectives if they had Detective Cardenass telephone number. They asked if he wanted to call Cardenas, and appellant affirmatively replied. When Cardenas arrived, appellant voluntarily spoke to him about the shooting and he never asked for an attorney. Cardenas again advised him of the Miranda warnings before he asked any questions.
Defense counsel argued appellant had been interrogated for several hours in the middle of the night, and the homicide detectives brought in Detective Cardenas at 4:00 a.m. to continue the interrogation when appellant hadnt slept. Appellants statements clearly indicated his request for an attorney, and the detectives even knew the name of his attorney. "Considering the time of the morning this takes place, theyre obviously trying to get as much information out of him without any respect for his Fifth Amendment or Miranda rights." The court took the matter under submission.
On November 27, 2001, the court denied appellants motion in limine pursuant to Davis v. United States (1994) 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 and People v. Crittenden (1994) 9 Cal.4th 83, 885 P.2d 887, and found appellants purported request for counsel was ambiguous or equivocal, and did not require the cessation of interrogation.
"What Mr. Rangel said here was, I dont know. Lock me up. Then tomorrow I11 go with a lawyer, and we11 talk about everything. And then just a minute later talking, We11 talk with a lawyer, and we will talk about everything. And it just — it seems to me that that is not sufficiently unequivocal that the police officer who was interviewing Mr. Rangel should have reasonably ascertained that he was invoking his right to counsel."
Defense counsel asserted appellants request for counsel occurred at 4:00 a.m. and he had identified his attorney, "and there was a translation." The court replied he had heard and decided the issue, and again denied the motion.
D. Trial Evidence
At trial, the prosecutor called Detective Chamalbide to testify about his initial interview with appellant. Defense counsel requested to voir dire Detective Chamalbide as to his ability to translate appellants interrogation, which was conducted in Spanish and tape-recorded. Detective Chamalbide testified he took college-level Spanish courses but he wasnt a qualified or certified interpreter. However, he had been translating "all my life. My mother doesnt speak any English. My father speaks limited English."
The transcript reflects that Detective Chamalbide asked appellant the questions in Spanish, and translated his answers into English for Detective Schiotis. Detective Cardenas conducted his interview with appellant in Spanish. Detective Chamalbide testified he gave the tape-recording of the interrogation to his secretary, who produced an English translation. His secretary was fluent in English and Spanish, but he didnt know if she was a qualified or certified interpreter. Chamalbide testified he also listened to the tape-recording, compared his interpretation with his secretarys transcription, and made some changes because "there was some differences in words and meanings."
Detective Chamalbide conceded that some Spanish words could have multiple meanings, and there were such phrases in appellants interrogation. "I took into account, you know, the conversation, how we were, you know, conversing back and forth and what the meaning was at that time." However, he denied defense counsels suggestion that he had a motive to slant the interpretation in favor of the prosecution. "I put down what he said."
Defense counsel argued Chamalbide was not qualified to be an interpreter for the purpose of translating the interrogation. The court denied counsels motion and found he was qualified, "and if there is some dispute the way some of the tape was translated by Detective Chamalbide, you can certainly bring in a Spanish-language interpreter to present that evidence, but the motion will be denied."
As set forth ante, Detectives Chamalbide and Cardenas testified at trial about the nature and circumstances of appellants interrogation, and his postarrest statements. The prosecution also had two witnesses read lengthy sections from the transcript before the jury.
E. Motion for New Trial
After his convictions, appellant filed a motion for new trial and argued the trial court erroneously denied his motion in limine to exclude his postarrest statements. Appellant again argued his request for counsel was unequivocal, he did not make any conflicting or conditional requests, and the detectives should have immediately ceased the interrogation instead of bringing in Detective Cardenas.
Appellant conceded there was some ambiguity as to whether he "initiated further discussion with the police after he stated his desire to have an attorney present during further questioning." Even if he did initiate further communications, however, the police only could have interrogated him if he validly waived his Miranda rights. Appellant also argued there were inaudible portions of the interview transcript, and Detective Chamalbide brought up Detective Cardenass name and appellant "took the bait."
"It is equally clear that Mr. Rangel did not want to talk with Officers Chamalbide and Schiotis any further without the presence of an attorney, and that he wanted to consult with Eppie [Cardenas], whom he trusted. Mr. Rangels conduct did not manifest a desire on his part to open up a more generalized discussion relating directly or indirectly to the investigation."
Appellants motion was supported by the limited quotations from the transcript of the interrogation.
The prosecutors opposition to the new trial motion asserted appellants purported request for an attorney was equivocal and ambiguous. The prosecutor attached the entire transcript of appellants interrogation, and argued that when appellant mentioned his attorney, the detectives did not ask any more questions about the shooting and appellant asked them to contact Detective Cardenas. The prosecutor also challenged appellants claims as to the accuracy of the transcript. "There are no gaps in the transcript as the defense has stated. There are inaudible remarks which the defense is now attempting to supplant with entirely unsupported and self-serving suggestions as to what might have been said." The prosecutor further argued appellant voluntarily told Cardenas about the shooting, Cardenas readvised him of the Miranda warnings, and appellant again told him about the shooting.
Appellant filed a supplemental memorandum in support of motion for new trial and submitted another version of the interview transcript prepared by a defense interpreter, who listened to the tape-recording and produced an alternate translation. This motion was supported by a declaration by Maria Diaz, who stated she had been employed as an interpreter and legal secretary for four years and interpreted from Spanish to English "hundreds of times." Ms. Diaz declared she listened to the interrogation tapes and it was "possible to hear and translate several of the portions of the interview that are listed as inaudible" in the original transcript. In particular, Ms. Diaz translated one of appellants statements about an attorney as "I11 talk with an attorney." Ms. Diaz further declared "the plain meaning" of this statement was "not ambiguous. It was a very clear request for an attorney. This is a translation from Spanish to English, but there is no question in my [mind] that Mr. Rangel was requesting an attorney." Based on Ms. Diazs declaration, appellants supplemental memorandum asserted the trial court erroneously denied his motion in limine to exclude his statements, and the new trial motion should be granted because of the Miranda violation.
At the hearing on the new trial motion, the prosecutor asserted appellants supplemental memorandum was untimely and it shouldnt be considered. The court declined to strike the supplemental memorandum and conducted the hearing.
Defense counsel asked the court to reconsider its earlier ruling as to the admissibility of appellants postarrest statements. Counsel opined that the court "was rushed" when it denied the motion in limine "because I believe we were just about to have the jury come in and start the selection process." The court replied: "I wasnt rushed. I had plenty of time to consider it ...." Defense counsel asserted that his interpreter listened closely to the tape-recording of the interrogation with "the player device . . . tuned up and a stack filter is just simply pressed," and was able to hear several sections which had been deemed inaudible. Counsel asserted that when appellant asked for his attorney, Detective Chamalbide acknowledged he didnt want to talk to him.
The court interrupted and asked if the tape-recording was available before trial. Counsel replied he had the tape and listened to it several times. The court asked counsel why he didnt raise this claim before the trial started. Counsel explained he didnt have the right equipment and tried different methods to elicit the faint sounds on the tape. After the trial, counsel found and purchased the appropriate device which was able to bring out the previously inaudible statements. Counsel also used a technique recommended in an audio magazine and successfully brought out certain portions of the tape. "It did take quite an effort to do this."
Defense counsel argued that his interpreters analysis of the tape-recording indicated appellant said, "I11 talk with an attorney . . . we11 talk with a lawyer. The plain meaning of this, and its not ambiguous, is that I want a lawyer. "The court replied appellant never said he wanted an attorney. Counsel replied appellants statements were in Spanish and "the way that adjectives and verbs are used can often reverse into our understanding. [P] The plain meaning of the statement is that I want a lawyer, and thats what [the defense interpreter] has sworn to under her declaration." The court reviewed the interpreters declaration, which translated appellants statements as "I will, I11, I will talk with an attorney." Counsel replied a reasonable officer should have known that appellant meant he wanted an attorney, and that the homicide detectives actually removed appellants handcuffs from the chair in order to escort him from the room. Such conduct indicated the officers themselves realized appellant asked for an attorney, and all questioning should have stopped. Nevertheless, the homicide detectives brought Detective Cardenas into the interview room 30 minutes later, the interrogation continued, and appellant made incriminating statements. Appellant asserted the Miranda violation was prejudicial and the new trial motion should be granted.
The prosecutor again objected to appellants supplemental motion and asserted there was no evidence the defense interpreter was qualified, and the defense interpreter reached legal conclusions in her declaration as to the meaning of appellants statements. In addition, appellant never objected to the actual transcript of the interrogation or asserted the translation was inaccurate, and his objections were now untimely. The prosecutor argued that even if appellant requested an attorney, he immediately asked the homicide detectives to contact Detective Cardenas and said he wanted to talk with him, and the interview ended. Cardenas arrived and didnt ask appellant any questions, but appellant spontaneously told Cardenas about the shooting. Cardenas didnt ask appellant any questions until he readvised appellant of the Miranda warnings.
Defense counsel replied the prosecutor had changed his position and seemed to concede that appellant invoked his right to counsel at the end of the first interview. The court noted appellant spontaneously asked to speak with Detective Cardenas. Counsel argued that once appellant requested an attorney, all questioning had to stop and they couldnt bring in another detective and start the interrogation again. The court reviewed the transcript and noted that when Cardenas arrived, he simply asked what was going on and that appellant asked for him. Thereafter, appellant made a spontaneous and lengthy statement about the shooting. Defense counsel again argued that a Miranda violation cannot be cured by bringing another officer to restart the interrogation.
Defense counsel also asserted that he objected to the text of the transcript during trial, and argued Detective Chamalbide should not have acted as the interpreter to prepare the transcript. The court concurred that defense counsel conducted voir dire as to Chamalbides ability to translate the interview but questioned the defenses failure to timely submit an alternative translation. Counsel again explained he was unable to obtain the appropriate equipment until after the trial.
The prosecutor noted that appellant was present during the motion in limine and trial testimony, and he could have advised defense counsel at any time as to what he said. The prosecutor also asserted that even if he asked for an attorney, he also reinitiated contact with the officers when he asked them to call Detective Cardenas, and his statements to Cardenas were spontaneous. The court took the new trial motion under submission.
On April 30, 2002, the court filed a written order and denied appellants new trial motion. The court declined to accept appellants revised translation of the interrogation:
"... Both the tape recording and transcript of the interview were available to defendant long before the trial started and no claim was made regarding the authenticity of the tape recording or the correctness of the transcription until many months after [appellants] conviction and one day before the hearing on his motion for new trial. Apart from the fact that no objection was made, and although an evidentiary hearing was held before jury selection with regard to this issue, no evidence was offered by [appellant] that the tape recording or transcript were in error or incomplete or as to any different version of what [appellant] said with regard to an attorney. Further, insufficient information is provided as to how the tape recording was enhanced by [appellant] to reveal dialogue that was previously inaudible or about Maria Diaz, [appellants] interpreter, to establish her qualifications as an objective interpreter of the enhanced recording."
The court further held appellant failed to cite any pervasive authority for changing its prior ruling. "At best, [appellants] statements would indicate to a reasonable police officer that at some future time he intended to speak with an attorney, not that he wanted one immediately." The court also found Detective Chamalbide did not ask any substantive questions and ended the interview shortly after appellants statements about the lawyer. "The balance of the discussion" reflected appellants request for Chamalbide to contact Detective Cardenas, and appellant made spontaneous statements when Cardenas arrived. The court held Cardenas did not initiate any questions until he readvised appellant of the Miranda warnings.
F. Right to Counsel
Appellant contends the trial court should have granted his motion to exclude his postarrest statements because he invoked his right to counsel at the conclusion of his interview with Detective Chamalbide when he said "lock me up. Then tomorrow ... uh ... I11 go with a lawyer and we11 talk about everything." Appellant argues the police violated Miranda when Detective Cardenas subsequently arrived and spoke to him.
In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendants rights under Miranda v. Arizona, supra, 384 U.S. 436, the scope of our review is well established. "We must accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained." (People v. Bradford (1997) 14 Cal.4th 1005, 1033, 929 P.2d 544.) "We apply federal standards in reviewing defendants claim that the challenged statements were elicited from him in violation of Miranda." (Ibid.)
"Under the familiar requirements of Miranda, designed to assure protection of the federal Constitutions 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, 853 P.2d 992, citing Miranda v. Arizona, supra, 384 U.S. at pp. 444-445, 473-474; Sims was abrogated on other grounds by People v. Storm (2002) 28 Cal.4th 1007, 1031-1032.) Once a suspect receives Miranda warnings, he "is free to exercise his own volition in deciding whether or not to make a statement to the authorities." (Oregon v. Elstad (1985) 470 U.S. 298, 308, 84 L. Ed. 2d 222, 105 S. Ct. 1285; People v. Box (2000) 23 Cal.4th 1153, 1194.)
In Edwards v. Arizona (1981) 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, the court held that if a suspect requests counsel, "the interrogation must cease until an attorney is present." (Id. at p. 482, quoting Miranda v. Arizona, supra, 384 U.S. at p. 474.) The purpose of the Edwards rule is "to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." (Michigan v. Harvey (1990) 494 U.S. 344, 350, 108 L. Ed. 2d 293, 110 S. Ct. 1176; Davis v. United States, supra, 512 U.S. at p. 458.)
If defendant invokes his right to counsel and, assuming there is no break in custody, the police initiate a meeting in the absence of counsel, the suspects statements are presumed involuntary and are inadmissible as substantive evidence at trial, even if the suspect executes a waiver and the statements would be considered voluntary under traditional standards. (McNeil v. Wisconsin (1991) 501 U.S. 171, 176-177, 115 L. Ed. 2d 158, 111 S. Ct. 2204; People v. Cunningham (2001) 25 Cal.4th 926, 992-993; People v. Crittenden, supra, 9 Cal.4th at p. 128.) The state must demonstrate the voluntariness of a confession by a preponderance of the evidence. (People v. Bradford, supra, 14 Cal.4th at p. 1033.)
The instant case involves a situation where the trial court found appellants request for counsel was equivocal or ambiguous. Edwards "applies only when the suspect has expressed his wish for the particular sort of lawyerly assistance that is the subject of Miranda. [Citation.] It requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police." (McNeil v. Wisconsin, supra, 501 U.S. at p. 178, italics omitted; People v. Crittenden, supra, 9 Cal.4th at p. 129.) If a suspects request for counsel or invocation of the right to remain silent is ambiguous, the police may not interrogate him but may "continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights." (People v. Johnson (1993) 6 Cal.4th 1, 27, 859 P.2d 673.) "Interrogation" consists of express questioning, or words or actions on the part of the police that "are reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis (1980) 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682, fn. omitted; People v. Clark (1993) 5 Cal.4th 950, 985, 857 P.2d 1099.) "The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response." (People v. Clark, supra, at p. 985; U.S. v. Foster (9th Cir. 2000) 227 F.3d 1096, 1101-1104.)
Prior to 1994, California precedent had held that a suspects request for counsel need not be unequivocal or absolute to invoke Miranda. (People v. Thompson (1990) 50 Cal.3d 134, 165, 266 Cal. Rptr. 309, 785 P.2d 857.)
"We have observed previously 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 (People v. Randall (1970) 1 Cal.3d 948, 955, 83 Cal. Rptr. 658, 464 P.2d 114), 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. (People v. Burton [(1971)] 6 Cal.3d 375, 382, 99 Cal. Rptr. 1, 491 P.2d 793.) Earlier decisions of this court and the Courts of Appeal have indicated that a request for counsel need not be unequivocal in order to preclude questioning by the police. (See People v. Clark (1993) 5 Cal.4th 950, 990, 857 P.2d 1099; People v. Thompson (1990) 50 Cal.3d 134, 165, 266 Cal. Rptr. 309, 785 P.2d 857; People v. Randall, supra, 1 Cal.3d 948, 955.) As we stated in People v. Johnson, supra, 6 Cal.4th 1, 27-28, California decisions have concluded that a defendant may invoke the constitutional right to counsel by such diverse statements or questions as: "Do you think we need an attorney?" and "I guess we need a lawyer" (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 735-736, 125 Cal. Rptr. 798, 542 P.2d 1390); "Tell me the truth, wouldnt it be best if I had an attorney with me?" (People v. Hinds (1984) 154 Cal. App. 3d 222, 234, 201 Cal. Rptr. 104); "I dont know if I should have a lawyer here or what ...." (People v. Russo (1983) 148 Cal. App. 3d 1172, 1176-1177, 196 Cal. Rptr. 466); and "Well, maybe I should talk to my attorney, Mr. Corbin" (People v. Munoz (1978) 83 Cal. App. 3d 993, 995-996, 148 Cal. Rptr. 165)..." (People v. Crittenden, supra, 9 Cal.4th at p. 129.)
For example, in People v. Clark (1992) 3 Cal.4th 41, 833 P.2d 561 (Clark), defendant was advised of the Miranda warnings and asked if he waived his right to have an attorney. Defendant asked how long it would take to get an attorney, that he would like "to try to get one" and get "that process started," but he was willing to talk to the police in the interim. (Id. at p. 120.) Clark held that while defendant expressed the desire to start the process of getting an attorney, "he never showed the slightest reluctance to talk in the meantime. A desire to have an attorney in the future, coupled with an unambiguous willingness to talk in the meantime, is not an invocation of the right to counsel requiring cessation of the interview." (Id. at p. 121.)
In People v. Johnson, supra, 6 Cal.4th 1, defendant waived his Miranda rights and answered questions, and was informed several times he was going to be charged with murder. Defendant replied his mother would pay for "a high price lawyer out of New York." (Id. at p. 27.) The police asked for the lawyers name but defendant refused and said he didnt want them talking to his lawyer. Defendant asked about the possible penalties for murder, learned he might face the death penalty, and said, "Maybe I ought to talk to my lawyer, you might be bluffing ...." (Ibid.) The officer immediately asked if he wanted to talk to a lawyer but defendant simply said he thought the police were bluffing, and made no further mention of the lawyer during the interview. (Ibid. )
Johnson held defendants first remark, that his mother was going to get him a lawyer out of New York, represented his "mere bragging about his ability to secure high priced legal representation for future proceedings," he refused to give the name of his attorney, and he did not request to consult with an attorney during the interrogation. (People v. Johnson, supra, 6 Cal.4th at p. 28.) Defendants second remark, that maybe he ought to talk to a lawyer, was deemed equivocal and "more troublesome." (Ibid.) The entirety of the interview revealed that defendant maintained a "confident, cocky attitude, verbally sparring with the officer, expressing doubts about the strength or admissibility of the evidence against him, negotiating ... for a possible reduced sentence, and bragging about his good looks, his various girlfriends, his ability to produce an alibi ..., and his mothers ability to hire an expensive lawyer." (Id. at p. 29.) The court noted defendant appeared to "almost relish[]" his role as the focus of the officers attention. In addition, he declined to respond to the officers attempt to learn his lawyers name or determine whether he truly wanted to speak to an attorney. (Ibid.) The court concluded defendant did not invoke his right to counsel based on the entirety of the record, including defendants overall conduct and demeanor during the interview, "the ambiguous and tentative nature of his reference to an attorney, [the officers] immediate attempt to clarify defendants remark, and defendants refusal to respond thereto ...." (Id. at p. 30.)
In Davis v. United States, supra, 512 U.S. 452, the United States Supreme Court clarified the interpretation of ambiguous or equivocal references to counsel during custodial interrogation, and determined that a suspects remark to Naval Investigative Service agents-"Maybe I should talk to a lawyer"-was not a request for counsel. (Id. at p. 455.) The court noted that when a suspect requests the assistance of counsel, the prophylactic rule of Edwards requires an officer to stop questioning the suspect until a lawyer has been made available or the suspect reinitiates the conversation. Davis explained that the application of this rigid rule requires the court to determine whether the suspect "actually invoked" his right to counsel. (Id. at p. 458, italics in original.) "To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry." (Id. at pp. 458-459.) "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, our precedents do not require the cessation of questioning." (Id. at p. 459, italics in original.)
"Rather, the suspect must unambiguously request counsel. As we have observed, a statement either is such an assertion of the right to counsel or it is not. [Citation.] 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, supra, 512 U.S. at p. 459.)
Although Davis declined to require an officer to ask clarifying questions when a suspect makes an ambiguous or equivocal statement about the right to counsel, the court observed it is "good police practice" under such circumstances for the interrogating officer "to clarify whether or not [the suspect] actually wants an attorney." (Davis v. United States, supra, 512 U.S. at p. 461.) However, Davis declined to adopt a rule requiring that officers ask clarifying questions. "Unless the suspect actually requests an attorney, questioning may continue." (Id. at p. 462.)
Davis recapitulated the rules of Miranda and Edwards as follows:
"... We held in Miranda that a suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance. We held in Edwards that if the suspect invokes the right to counsel at any time, the police must immediately cease questioning him until an attorney is present. But we are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue." (Davis v. United States, supra, 512 U.S. at p. 462.)
Accordingly, Davis held that "after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney." (Davis v. United States, supra, 512 U.S. at p. 461.) Davis concluded defendants equivocal remark-"Maybe I should talk to a lawyer"—was not a request for counsel triggering the Edwards rule. (Id. at p. 462.)
In People v. Crittenden, supra, 9 Cal.4th 83, the court held defendants question— "Did you say I could have a lawyer?" (id. at p. 123), was not a request for counsel. The court relied on Davis and held an unequivocal request for a lawyer is required before a suspect who has previously elected to speak with officers can argue that he or she invoked the Miranda right to counsel. Crittenden acknowledged this conclusion was contrary to prior California authority, which had concluded certain equivocal statements were sufficient to invoke the Miranda right to counsel. Crittenden noted, however, that subsequent to the adoption of article I, section 28, subdivision (d) of the California Constitution, it was required to apply federal standards in reviewing a defendants claim that his statements were elicited in violation of Miranda. (Id. at pp. 129-131.) Crittenden thus concluded that defendants question as to whether he could have a lawyer was not an unambiguous request for counsel.
In People v. Cunningham, supra, 25 Cal.4th 926, defendant was advised of the Miranda warnings and asked if he would answer questions. Defendant said yes, and also said: " I want to have an attorney present. I will talk to you now until I think I need one. I dont need one present at this time." The officer asked whether defendant wanted to talk to an attorney or wanted to talk to the officer without an attorney. Defendant told the officer: "I11 talk to you until I think I need an attorney." The officer again asked whether defendant wanted to talk to the officer with an attorney present or without an attorney present. Defendant told the officer: "I11 talk to you now without an attorney present. I11 ask for one when I think I need one." The officer wrote down each question and answer. Defendant examined the form recording this exchange, initialed each answer after it was written down, and executed the waiver form. (Id. at p. 991.)
Cunningham held the officers attempts to clarify defendants intentions did not constitute interrogation or call for incriminating responses. (People v. Cunningham, supra, 25 Cal.4th at pp. 993-994.) The court found defendants statements were similar to the situation in Clark, supra, 3 Cal.4th 41, 120, in that defendants desire for an attorney in the future, but willingness to talk in the interim, did not constitute the invocation of his right to counsel.
In the instant case, it is a close question whether appellants statements to Detective Chamalbide to "lock me up. Then tomorrow . . . uh . . . I11 go with a lawyer and we11 talk about everything" and "we11 talk with a lawyer. And . . . (inaudible) . . . uh . . . we will talk about everything" constituted an unequivocal and unambiguous invocation of his right to counsel. Davis held that this determination is an objective inquiry. (Davis v. United States, supra, 512 U.S. at pp. 458-459.) Unlike Davis and Crittenden, however, appellants statements about an attorney were not in the form of a direct question to the officers, a rhetorical question, or an attempt to clarify his right to an attorney. Unlike Clark and Cunningham, appellant didnt say the officers could continue to question him until he spoke to a lawyer at a later time. Instead, appellants words constitute declarative statements to hold him in custody and he would talk with a lawyer the next day. His statement to "lock me up" strongly implies the invocation of his right to be silent.
The trial court found appellants statements were "not sufficiently unequivocal that the police officer who was interviewing [appellant] should have reasonably ascertained that he was invoking his right to counsel." However, Detective Chamalbide clearly interpreted appellants statements as the invocation of his right to counsel because he ceased the interrogation and unlocked appellants handcuffs from the chair to escort him from the interview room. Chamalbides interpretation of these statements seems reasonable under the circumstances. Appellant was aware he had been arrested for the killing at the bar and willingly answered the detectives questions during the lengthy interview. He gave a detailed explanation of his alibi and the people who were with him in Lemoore, and repeatedly denied that he was at the bar when Castillo was killed. As the interview ended, appellant told Detective Chamalbide to "lock me up. Then tomorrow . . . uh . . . I11 go with a lawyer and we11 talk about everything." This statement clearly constitutes an unequivocal and unambiguous invocation of his right to counsel-that appellant wanted to end the interview until he spoke to an attorney the next day. We thus conclude the trial court improperly found appellants statements were too ambiguous to constitute an invocation of his right to counsel.
G.
Reinitiation of Further Communication
Our conclusion about appellants unambiguous invocation of his right to counsel, however, does not end our inquiry. If the suspect has invoked his right to counsel, he is not subject to further interrogation by the police until counsel has been made available to him, unless the suspect personally "initiates further communication, exchanges, or conversations" with the authorities. (Edwards v. Arizona, supra, 451 U.S. at pp. 484-485; Davis v. United States, supra, 512 U.S. at p. 458; People v. Cunningham, supra, 25 Cal.4th at p. 992; People v. Crittenden, supra, 9 Cal.4th at p. 128; People v. Sims, supra, 5 Cal.4th at p. 440; see also McNeil v. Wisconsin, supra, 501 U.S. at pp. 176-177; Arizona v. Roberson (1988) 486 U.S. 675, 680-682, 100 L. Ed. 2d 704, 108 S. Ct. 2093.) "The initiation of further dialogue by the accused, however, does not in itself justify reinterrogation. (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1044, 77 L. Ed. 2d 405, 103 S. Ct. 2830.) Even if a conversation taking place after the accused has "expressed his desire to deal with the police only through counsel," is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation. (Ibid.)" (People v. Sims, supra , at p. 440.)
Therefore, it is clear that a conversation may be resumed in the absence of counsel only if the "accused himself initiates further communication, exchanges, or conversations with the police" (Edwards v. Arizona, supra, 451 U.S. at pp. 484-485) and the circumstances indicate that the accused has made a knowing and intelligent waiver of the right to an attorney. (Oregon v. Bradshaw, supra , 462 U.S. at pp. 1044-1045; People v. Bradford (1997) 15 Cal.4th 1229, 1310-1311, 939 P.2d 259.) An accused 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. " (People v. Mickey (1991) 54 Cal.3d 612, 648, 286 Cal. Rptr. 801, 818 P.2d 84, quoting Oregon v. Bradshaw, supra, 462 U.S. at p. 1045 (plur. opn. of Rehnquist, J.).) "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." (People v. Mickey, supra, at p. 649; accord, Edwards v. Arizona, supra, 451 U.S. at p. 486, fn. 9; Oregon v. Bradshaw, supra, 462 U.S. at p. 1046 (plur. opn. of Rehnquist, J.); People v. Waidla (2000) 22 Cal.4th 690, 727-728, 996 P.2d 46.)
Even if the suspect initiates further communication, exchanges, or conversation, the police may continue to interrogate the suspect only if he has validly waived his right to have counsel present. (Oregon v. Bradshaw, supra, 462 U.S. at pp. 1044-1045, (plur. opn. of Rehnquist, J.); People v. Waidla, supra, 22 Cal.4th at pp. 727-728.) Whether the waiver was knowing and intelligent must be judged from the totality of the circumstances. (Oregon v. Bradshaw, supra, at p. 1046.)
In People v. Marshall (1990) 50 Cal.3d 907, 925-926, 269 Cal. Rptr. 269, 790 P.2d 676, the court held the Edwards rule was not violated where police officers advised defendant of the Miranda warnings, he initially requested an attorney, immediately changed his mind without intervening comments by the officers, and initiated further conversation.
In the instant case, appellant contends Detective Chamalbides decision to call Detective Cardenas was improper and violated his Miranda rights:
"Unknown to [appellant], and notwithstanding [appellants] statement that he wanted to talk to the police tomorrow with his lawyer present, [Chamalbide] took it upon himself to summon Cardenas out of bed that very night (early morning) and bring him to the jail."
Appellant argues the second interview was initiated by the police and not by him.
"... [Appellant] never stated that he wanted to talk to Cardenas that night, after he had already been interrogated for several hours. He stated only that he wanted to talk to Cardenas, without specifying a date or time. Thus, his request that the detective telephone Cardenas cannot vitiate his earlier statement that he would talk tomorrow with his lawyer. Put another way, he never withdrew his request for a lawyer. It was therefore the government that reinitiated the interrogation when the first detective hurriedly arranged for Cardenas to be roused from his bed and summoned to the jail, where he immediately launched into questioning of the exhausted Rangel."
Appellants version of events is undermined by the entirety of the interview transcript. When Detectives Chamalbide and Schiotis began their initial interrogation of appellant, he was advised of the Miranda warnings and the reason for his arrest, and appellant agreed to answer questions. Before any questions could be asked, however, appellant immediately stated he worked as a narcotics informant for Detective Cardenas and "thats why I dont know anything or want to." As the detectives asked about the bar shooting, appellant repeatedly discussed his work with Cardenas, claimed he had been to the bar on previous occasions while working for Cardenas, he was currently working on a big job for Cardenas, and he only knew about the bar shooting because Cardenas told him about it. The detectives asked for his address, and appellant said Cardenas had been to his home and knew his address. Appellant said he never went to El Corral Bar because the patrons knew he worked for Cardenas, and he repeatedly denied any involvement in the shooting.
As the interview continued, the detectives accused appellant of lying and admonished that he couldnt get out of this by doing a job with Detective Cardenas. The detectives asked appellant what Cardenas would think of him for being involved in the shooting.
"[Chamalbide] You want to talk to Epi . . . . . you work better with him..
"[Appellant] No..he never answers . . . the dude . . . (inaudible) . . .
"[Chamalbide] If I . . . I can call him at home. . .
"[Appellant] Yeah ... if he wants to come see me because I need to give the details. . .(inaudible). .
"[Chamalbide] No..If I call him..we are going to talk about what happened at the El Corral . . . ." (Italics added.)
Appellant clearly wanted to talk to Cardenas "because I need to give the details" but Chamalbide told appellant that they would only talk about the bar shooting and not some narcotics deal. Appellant continued to answer questions about the bar shooting by saying that he had talked with Cardenas on the telephone, Cardenas paid him for narcotics information, and he was working on a big job involving hundreds of boxes of pills.
At this point, appellant told the detectives to "lock me up. Then tomorrow...uh. . . I11 go with a lawyer and we11 talk about everything." Chamalbide ended the interrogation, removed the handcuffs from the chair, and prepared to escort appellant from the interview room. Appellant spontaneously asked:
"[Appellant] Yes . . . uh . . . . um . . . . do you know Eppies number?
"[Chamalbide] Yes.
"(Door opening)
"[Appellant] Yes? Mm.
"[Chamalbide] Do you want me to call him or what?
"[Appellant] Uh huh. . .
"[Chamalbide] And what do you want me to tell him?
"[Appellant] To come . . . . uh . . . . to see me, because I want to . . . talk. . . uh . . . uh..tell him this is all gonna work. I have it all ready just want to know for myself.
"[Chamalbide] Okay.
"(Door closes)[.]" (Italics added.)
There are several crucial statements in this exchange. First, appellant spontaneously asked Chamalbide if he knew Cardenass telephone number. This question must be considered in context with Chamalbides earlier offer to call Cardenas, and appellants remark that it was hard to get him on the telephone. Appellant said he wanted to talk to Cardenas, but Chamalbide warned they would only talk about the bar shooting and not any drug deals. Appellants spontaneous request to call Cardenas strongly inferred that appellant finally accepted Chamalbides earlier offer to contact Cardenas to talk about the shooting.
Second, Chamalbides responses to appellant were proper and did not constitute interrogation in violation of Miranda. (People v. Cunningham, supra , 25 Cal.4th at pp. 993-994.) Chamalbide asked if appellant wanted him to call Cardenas and what to tell him. In the context of their earlier conversation about Cardernas, these questions were not designed to elicit an incriminating response from appellant. Appellant replied that he wanted Chamalbide to call Cardenas and tell him "to come . . . . uh . . . . to see me, because I want to . . . talk . . . uh . . . uh..tell him this is all gonna work. I have it all ready just want to know for myself." Instead of escorting him from the interview room, Chamalbide left appellant there while he called Cardenas.
The entirety of the record thus undermines appellants claim that the police initiated the contact with Detective Cardenas. During the first interrogation, appellant talked about Detective Cardenas almost as his purported alibi. Appellant repeatedly reminded the homicide detectives that he worked out narcotics deals with Cardenas and was paid for his services, and implied that he had information and wanted to work out the same kind of deal. He wanted Cardenas to join the interview but doubted the detectives could reach him by telephone, even though Chamalbide offered to call him at home. As the interview ended, he spontaneously asked Chamalbide if he really had Cardenass telephone number, that he wanted the detective to call Cardenas, and he wanted to talk to Cardenas because he had certain information for him. Thus, appellants claim that he didnt know the detectives were going to call Cardenas and ask him to come down to the police department that night is refuted by the entirety of the record.
When Detective Cardenas arrived, he simply said that he was told appellant asked for him: "Well . . . . Im here." Cardenas did not ask any questions and his statements were not reasonably like to elicit an incriminating response. Appellant did not express his shock or surprise that Cardenas was there, and didnt wait for Cardenas to ask any questions. Instead, he spontaneously and eagerly spilled out his story about the bar shooting. Cardenas sighed and told appellant he was being held for the bar shooting, and appellant again gave his version of the incident. Cardenas stopped appellant and said he needed to speak with the homicide detectives. When Cardenas returned to the interview room, he readvised appellant of the Miranda warnings, appellant waived his rights, and he gave the inculaptory statements admitted at trial.
When a suspect invokes his right to counsel, a conversation may be resumed in the absence of counsel only if the "accused himself initiates further communication, exchanges, or conversations with the police." (Edwards v. Arizona, supra, 451 U.S. at pp. 484-485.) An accused 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. " (People v. Mickey, supra, 54 Cal.3d at p. 648, quoting Oregon v. Bradshaw, supra, 462 U.S. at p. 1045 (plur. opn. of Rehnquist, J.).) The entirety of the record reflects appellant was not interrogated after he invoked his right to counsel. Instead, he reinitiated the conversation with the detectives and asked them to call Detective Cardenas. He had already discussed his connections with Cardenas and indicated his desire to speak with him. When Cardenas arrived, he didnt ask appellant any questions but simply said he complied with appellants request and was there. Appellant spontaneously and voluntarily told Cardenas about his involvement in the bar shooting. Cardenas still refrained from asking appellant any questions until he readvised him of the Miranda warnings.
We thus conclude that even if appellant invoked his right to counsel with Detective Chamalbide, he spontaneously reinitiated the conversation and asked him to call Detective Cardenas and to talk with him, and appellant voluntarily told Cardenas about his involvement in the bar shooting without being asked any questions. Even though the trial court erroneously found appellants request for counsel was equivocal and ambiguous, it still properly denied appellants motion to exclude his postarrest statements because appellant reinitiated the conversation with the detectives and asked to speak with Cardenas that night.
II.
EVIDENCE OF PREMEDITATION AND DELIBERATION
Appellant was convicted of the first degree murder of Norberto Castillo. Appellants motion for new trial asserted there was insufficient evidence of premeditation and deliberation to support this conviction. The trial court denied the motion and found sufficient evidence to support the jurys verdict of first degree murder.
"There was evidence of a struggle between the decedent and Pedro Montoya arising as the result of the decedents interest in the bartender, Montoyas present or former girlfriend and a decision by defendant to intervene on behalf of Montoya. Defendant left the bar and returned with his weapon and fired several shots at the decedent, leaving the scene thereafter. Although this evidence was disputed, it was apparently believed by the jury and was sufficient to support the jurys finding of premeditation."
Appellant now contends there is insufficient evidence of premeditation and deliberation to support his conviction for first degree murder of Norberto Castillo. Appellant argues there is no evidence he planned the murder, the purported manner of the killing did not show premeditation, and he had no motive to kill because Castillo was flirting with someone who was not his girlfriend.
"When considering the claim of a criminal defendant that a verdict was not supported by sufficient evidence, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Hawkins (1995) 10 Cal.4th 920, 955, 897 P.2d 574, overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 999 P.2d 666.) The standard of review is the same when the People rely mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792, 897 P.2d 481; People v. Sanchez (1995) 12 Cal.4th 1, 32, 906 P.2d 1129.) Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Hughes (2002) 27 Cal.4th 287, 370.)
As observed in numerous cases, we apply the test of People v. Anderson (1968) 70 Cal.2d 15, 73 Cal. Rptr. 550, 447 P.2d 942, in deciding whether the evidence is sufficient to support a finding of premeditation and deliberation based on three factors: (1) planning activity; (2) motive (established by a prior relationship and/or conduct with the victim); and (3) manner of killing. (Id. at pp. 26-27; People v. Wharton (1991) 53 Cal.3d 522, 546-547, 280 Cal. Rptr. 631, 809 P.2d 290.) "This court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)." (People v. Anderson, supra , at p. 27.)
There are thus three types of evidence used to sustain a finding of premeditation and deliberation: "(1) facts about how and what [the] defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing-what may be characterized as "planning" activity; (2) facts about the defendants prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of "a pre-existing reflection" and "careful thought and weighing of considerations" rather than "mere unconsidered or rash impulse hastily executed" [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victims life in a particular way for a "reason" which the jury can reasonably infer from facts of type (1) or (2)." (People v. Hawkins, supra, 10 Cal.4th at p. 956, quoting People v. Anderson, supra, 70 Cal.2d at pp. 26-27.)
"... However, as later explained in People v. Pride (1992) 3 Cal.4th 195, 247, 833 P.2d 643: Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate courts assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.] Thus, while premeditation and deliberation must result from "careful thought and weighing of considerations" [citation], we continue to apply the principle that 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. Bolin (1998) 18 Cal.4th 297, 331-332, 956 P.2d 374.) As we have stated, these guidelines "were formulated as a synthesis of prior case law, and are not a definitive statement of the prerequisites for proving premeditation and deliberation in every case." (People v. Hawkins, supra, 10 Cal.4th at p. 957.)
There is substantial evidence to support appellants conviction for first degree murder. As for motive, appellant entered the bar with Pedro Montoya and was obviously aware that someone was trying to pick up Montoyas girlfriend, Rebecca the bartender. Magana testified Montoya had previously been jealous of Rebecca, and Montoya watched as Norberto Castillo flirted with her at the serving bar. As for planning activities, appellant told Magana, his cousin, to get away from the serving bar, where Castillo was flirting with Rebecca. Appellant admitted he left the building, went to his car, and armed himself with a .380-caliber handgun. Appellants actions also indicate his awareness of the growing tension between Montoya and Castillo. As for the manner of killing, Magana saw appellant firing a gun at Castillo, who was still standing at the serving bar. Magana testified appellant was firing "constantly" toward the serving bar, and fired three or more rounds. Miguel Valladares jumped for cover when the shots were fired, but testified he heard gunshots fired from the area where appellant had been standing. Luis Palomar also jumped for cover but saw more than one pair of feet moving closer to the serving bar as the shots were fired. Castillo was shot four times in the back, and once in the left side, with the bullets traveling at a downward angle, which suggests that appellant continued to fire as Castillo went down.
While the entire sequence occurred in a limited period of time, the process of premeditation and deliberation does not require any extended period of time. Appellant had enough time to realize there was going to be a confrontation between Pedro Montoya and Castillo, he warned his cousin to get away from the serving bar, he went to his car to arm himself, and he returned with his gun blazing. He fired multiple shots into Castillos back, and the path of the bullets implies that he continued to fire as Castillo fell to the floor. There is thus substantial evidence of premeditation and deliberation to support appellants conviction for first degree murder.
III.
CALJIC No. 9.00
Appellant was convicted in count II of assault with a firearm on Pedro Montoya ( § 245, subd. (a)(2)). Appellant contends the court improperly instructed the jury as to this count because it gave the 1998 version of CALJIC No. 9.00, instead of the 2002 revision of this instruction, and the 1998 version failed to inform the jury of the knowledge element of assault. Respondent concedes the instructional error but asserts it is harmless given the entirety of the evidence.
Respondent asserts appellants failure to object to CALJIC No. 9.00 waives review of this issue. However, appellants instructional challenge necessarily implicates a substantial right because he claims the jury was not properly instructed on the elements of the offense. (People v. Baca (1996) 48 Cal.App.4th 1703, 1706; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
Appellants instructional argument is based on People v. Williams (2001) 26 Cal.4th 779, where the California Supreme Court sought to clarify the mental state required for assault. (Id. at p. 782.) The court reiterated that assault is a general intent crime, and a specific intent to injure the victim is not required. (Id. at pp. 788, 790.) However, "a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur." (Id. at p. 788, fn. omitted.) "Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.) Mere recklessness or criminal negligence is not enough to prove assault. (Id. at p. 788.)
Accordingly, Williams held the 1994 revision of CALJIC No. 9.00 was "potentially ambiguous." (People v. Williams, supra, 26 Cal.4th at p. 790.) That instruction stated, in pertinent part, the crime of assault required proof that: " 1. A person willfully and unlawfully committed an act that by its nature would probably and directly result in the application of physical force on another person; and [P] 2. At the time the act was committed, such person had the present ability to apply physical force to the person of another." (Id. at p. 783.) As the court explained, "Because the test of natural and probable consequences is an objective one [citation], merely requiring the jury to find that a defendant willfully and unlawfully committed an act that by its nature would probably and directly result in physical force being applied to the person of another may permit a conviction premised on facts the defendant should have known but did not actually know. Thus, under the instruction given, a jury could conceivably convict a defendant for assault even if he did not actually know the facts sufficient to establish that his act by its nature would probably and directly result in a battery." (Id. at p. 790, italics omitted.)
Nevertheless, Williams assessed prejudice under the Chapman standard, found the instructional error harmless, and cautioned that "any instructional error is largely technical and is unlikely to affect the outcome of most assault cases, because a defendants knowledge of the relevant factual circumstances is rarely in dispute." (People v. Williams, supra, 26 Cal.4th at p. 790.) Williams involved a defendant who admitted loading his own shotgun with two rounds and firing a "warning" shot at the rear passenger wheel of someones truck. Defendant acknowledged knowing and seeing the driver was present, but claimed he did not see two young children nearby. (Id. at pp. 782-783, 790.) "In light of these admissions, defendant undoubtedly knew those facts establishing that his act by its nature would directly, naturally and probably result in a battery." Any "minor ambiguity" in the instruction was found harmless beyond a reasonable doubt. (Id. at p. 790.)
CALJIC No. 9.00 was revised in 2002, purportedly in response to Williams. As currently phrased, CALJIC No. 9.00 now defines the crime of assault according to the following three elements:
"... 1. A person willfully [and unlawfully] committed an act which by its nature would probably and directly result in the application of physical force on another person; [P] 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and [P] 3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another." (CALJIC No. 9.00 (2002 rev.) (6th ed.1996).)
In the instant case, the court gave the 1998 version of CALJIC No. 9.00, which is substantively similar to that used in Williams. While the 1998 version added as an element that "the person intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person," (CALJIC No. 9.00 (1998 rev.) (6th ed. 1996)), this additional language did not cure the ambiguity addressed by Williams. The instruction used here stated that appellant could be found guilty if he intended to use physical force upon another person or to do an act substantially certain to result in the application of physical force. One could intend to commit an act substantially certain to result in the application of physical force without knowledge of facts that would lead a reasonable person to believe the act would result in the application of force to another.
The 2002 revision of CALJIC No. 9.00 omits the language contained in the 1998 revision that: "[2. At the time the act was committed, the person intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person]." (CALJIC No. 9.00 (1998 rev.) (6th ed. 1996).)
Appellant argues the instructional error is prejudicial because there was no evidence he quarreled with Montoya or intended to shoot him, and they arrived at the bar together and were apparently friends. Appellant further argues the jury could have reasonably found that he shot Montoya accidentally while aiming at Castillo, and "the evidence supports no other interpretation."
Appellants argument is specious based on the evidence in this case. The quality of the actors aim is not a defining issue in the crime of assault, and it is sufficient the weapon is pointed or brandished in the general direction of the intended victim. (See People v. Raviart (2001) 93 Cal.App.4th 258, 263-264.) The pivotal question in this case is whether shooting another patron would be seen as probable based on a reasonable understanding of the natural consequences of appellants actions. Appellant intentionally opened fire in a dark and crowded building, knowing that other patrons were in the vicinity of the serving bar as he aimed at Castillo. Appellant only warned Magana, his cousin, to get away from the serving bar before he fired. Appellant told Detective Cardenas that when he returned to the bar with his gun, he saw Montoya and Castillo engaged in a physical struggle. Nevertheless, appellant intentionally opened fire directly at Castillo and "undoubtedly knew those facts establishing that his act by its nature would directly, naturally and probably result in a battery" and any "minor ambiguity" in the instruction was harmless beyond a reasonable doubt. (People v. Williams, supra, 26 Cal.4th at p. 790.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., and CORNELL, J.