Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Kennedy-Powell, Judge. Los Angeles County Super. Ct. No. BA295837
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Appellant Aymar Torres was convicted following a jury trial of murder in the first degree. (Pen. Code, § 187, subd. (a).) The jury found true all six special circumstances and enhancements charged in the information: (1) the murder was carried out in furtherance of a criminal street gang (§ 190.2, subd. (a)(22)); (2) the murder was committed while Appellant was engaged in a robbery (§ 190.2, subd. (a)(17)); (3) Appellant personally and intentionally discharged a firearm, causing great bodily injury and death (§ 12022.53, subd. (d)); (4) Appellant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); (5) Appellant personally used a firearm (§ 12022.53, subd. (b)); (6) the offense was committed for the benefit of a criminal street gang with the specific intent to promote, further, or assist criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).
All further statutory references are to the Penal Code unless otherwise specified.
Appellant contends on appeal that the trial court erred in denying his motion to suppress statements that he made in the hospital following his arrest because he was not given his Miranda warnings. (See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) Although we agree that there was a Miranda violation, we will affirm because the error was harmless. We will strike the robbery special circumstance allegation but affirm the judgment in all other respects.
BACKGROUND
Around 10:00 in the morning on January 3, 2006, Phillip Gonzales, an MTA bus driver, was driving his bus near the intersection of Boyle and Whittier in Los Angeles. Gonzales noticed three people near the bus stop who looked as if they were getting into a fight. Appellant and another man were facing the third man, 17-year-old Christian Castellanos, and they were pushing Castellanos, as if they were in a fight. Gonzales pulled up to the bus stop and opened the bus door. Castellanos motioned to Appellant that he did not want any conflict, and he said “I don’t want anything.” Castellanos seemed to change his mind about entering the bus, and he began to run away from the bus stop, passing in front of the bus. Appellant shot two shots at Castellanos’ back. Castellanos stumbled, and Appellant shot him several more times until Castellanos was no longer moving.
Appellant ran away after shooting Castellanos. Appellant ran past a van being driven by Don Adams, who had witnessed the initial confrontation and the shooting.
Adams testified that he saw three people at the bus stop. The shooter, identified by Adams as Appellant, was looking in Adams’ direction at the victim, talking and gesturing at the victim, then Appellant lifted his shirt and shot the victim in the chest. The victim started to run away, but Appellant followed and continued shooting the victim in the back. Appellant ran away, directly past Adams’ van. Adams tried to follow Appellant in his van, but he lost sight of Appellant, so Adams returned to try to help Castellanos, but the police had taped off the area. Later that day, Adams went to the police station to tell the police what he had seen. The police asked Adams to look at six photographs and choose the one that most closely resembled the shooter. He identified Appellant as the shooter.
The shooting also was witnessed by Mark Stroup, who was in his car in a parking lot near the bus stop at the time of the shooting. He heard gunshots, and he saw two men running toward him; the first man “looked like he was running for his life.” Stroup saw Castellanos stumble after being shot, and then Appellant stopped and shot Castellanos two more times. Appellant looked at Stroup and then turned around and started running in the other direction. After the police caught Appellant and were holding him in an ambulance, Stroup identified Appellant as the shooter, although he noted that Appellant was no longer wearing a shirt or “anything on his head.”
Victor Morales was in a shop near the incident when he heard gunfire and saw Appellant running away, holding a gun. After police captured Appellant, they asked Morales if he could identify him as the person he saw with a gun. Morales identified Appellant as the person he saw.
Elizabeth Plascencia also witnessed the initial confrontation and the shooting. She was in her car when she saw two people yelling at a third person near the bus stop. Castellanos was going to cross the street in front of Plascencia’s car, and the other two “were coming along yelling at” Castellanos. Appellant then took out a gun and shot Castellanos, who fell to the ground after trying to walk away; Appellant continued to shoot Castellanos. The third person stayed there during the shooting, “mov[ing] his head from side to side,” staying with Appellant while he shot Castellanos. As Appellant was shooting Castellanos, Plascencia got out of her car and yelled at Appellant in Spanish to stop shooting. Appellant, who was about 18 feet away from Plascencia, looked directly at Plascencia before he ran away, so she was able to identify Appellant when the police took her to the ambulance to identify him. Plascencia went to Castellanos and stayed with him until the police arrived. When Plascencia identified Appellant to the police, she identified Appellant as the shooter but told police that his clothing was different.
Officers used police dogs and found Appellant on an embankment under a freeway. Officers found a gun and some pieces of Appellant’s clothing near the freeway embankment, and they found eight spent casings from the gun near the scene of the shooting.
Brent McGuyre, an officer with the Los Angeles Police Department, responded to the shooting at around 10:00 a.m. Although McGuyre did not see the suspected shooter, he thought that the shooting might have been gang-related. At approximately 2:00 that afternoon, McGuyre and his partner were assigned to guard Appellant, who was a suspect in the shooting and was in the emergency room at the hospital. Appellant was handcuffed to a hospital bed in a hallway in the emergency area of the hospital. McGuyre and his partner stayed with Appellant for approximately four hours.
McGuyre and his partner took over guard duty from the officers who were watching Appellant and sat in chairs across the hallway from Appellant’s bed. Appellant had not been given any Miranda warnings. McGuyre “had very little information when [he] arrived,” so he asked Appellant his name, his birthday, and why he was in the hospital. McGuyre stated that he wanted to know what Appellant’s medical condition was so that McGuyre would know how long he would be “stuck” guarding Appellant. Appellant told McGuyre that he had been attacked and bitten by a police dog.
About 20 minutes later, McGuyre noticed a mark on Appellant’s hand, so he asked Appellant what the mark was. Appellant showed McGuyre the tattoo and remarked, “That’s why I did it.” McGuyre saw that the tattoo said “WF,” which McGuyre understood to stand for White Fence, a gang in the area. McGuyre asked Appellant “what they called him,” and Appellant told McGuyre, “‘Sporty’ or something like that.” Appellant did not talk any more, and McGuyre started talking to his partner about tennis.
About half an hour later, while McGuyre and his partner were talking, Appellant “leaned his head over and said, ‘That guy got smoked?’” McGuyre asked Appellant what he meant, and Appellant asked McGuyre, “‘That guy got killed?’” McGuyre replied, “‘I don’t know; I couldn’t tell you.’”
McGuyre and his partner continued talking about non-work related things, and, approximately 30 minutes later, Appellant began to ask again if “‘that guy died,’” but they repeatedly told Appellant that they couldn’t talk about it. At one point, Appellant told McGuyre, “‘You know, it was my idea, it wasn’t my homie’s, to jack that guy.’” McGuyre testified that he was not asking Appellant any questions, but that Appellant told him, “‘You know, I just told myself if that guy got crazy, I was going to smoke him.’” Appellant “went on to say that he had just picked some guy off the bus at random, told him to give him his money.” When the victim said that he only had $1.50, Appellant told him to give him the money, but “the guy got crazy, so he smoked him.”
A few minutes later, Appellant “leaned over and said, ‘You know, I think I shot that guy like ten times.’” Appellant also told McGuyre, “‘most homies only shoot like twice and then they will run, but I shot that guy like ten times.’” McGuyre described Appellant’s demeanor as “calm,” almost as if Appellant was bragging. Appellant continued to ask McGuyre whether the victim had died, and McGuyre repeatedly told him that he did not know. Appellant then said to himself, “‘Of course that guy died. Why else would you guys have been coming after me so hard?’”
Around 5:15 p.m., McGuyre told a supervisor, Sergeant Sanchez, that Appellant was “making some spontaneous statements,” so Sanchez told McGuyre not to ask any questions but just to let Appellant talk. Sanchez further instructed McGuyre to try to remember what Appellant said and to take some notes, and then to let the detectives know. McGuyre told Detective Gutierrez, an investigating officer, about Appellant’s statements. Before leaving the hospital, McGuyre wrote some notes about Appellant’s statements, and he wrote a report about them a few hours later.
A preliminary hearing was held in August 2006. The People presented testimony by officers and by eyewitnesses to the shooting.
At the preliminary hearing, defense counsel moved to strike McGuyre’s testimony regarding the statements made by Appellant in the hospital. She argued that Appellant’s statements were not voluntary for several reasons: (1) Appellant was seriously injured and therefore was vulnerable to questioning or comments by the police; (2) Appellant had been beaten by officers when he was taken into custody; (3) McGuyre already knew that the shooting could have been gang-related and was familiar with the White Fence gang; (4) McGuyre was familiar with gang tattoos; (5) McGuyre’s report, written on the day that Appellant made the statements, indicated that the statements were not as spontaneous as McGuyre indicated in his testimony, but instead were elicited by McGuyre’s questions.
The trial court denied Appellant’s motion to strike McGuyre’s testimony. The court found McGuyre to be credible and found that the statements were “volunteered and not in response to interrogation or the factual equivalent of interrogation, but rather on the defendant’s own initiative.” The court stated that “[t]here was no coercive atmosphere in the hospital and no evidence that the defendant was under any type of circumstances where it should have been anticipated that the statements made to him by Officer McGuyre were eliciting any incriminating response.”
Mario Morales, an officer with the gang unit of the Los Angeles Police Department, testified at the preliminary hearing and at Appellant’s trial that he had had extensive experience with several gangs, including the White Fence gang, and that he had previously had contact with Appellant. Morales identified several photographs of members of the White Fence gang with whom he was familiar, including Appellant, and he explained the significance of Appellant’s tattoos. Morales testified that, the first time he had contact with Appellant, Appellant was living with several White Fence gang members at a residence that was considered to be a White Fence hangout. At Morales’ second encounter with Appellant, Morales filled out a field identification card, which officers completed following any contact with someone. Appellant told Morales at that time that he was a member of the White Fence gang and told Morales his moniker and which clique he belonged to. Morales further testified that he believed that the shooting committed by Appellant was done for the benefit of his gang.
Defense counsel moved to dismiss for insufficiency of the evidence all the counts and allegations, and, in particular, the robbery and gang allegations. She contended that the only evidence that the murder was committed during a robbery and was committed for the benefit of a gang were the statements made by Appellant. The court denied the motion, finding that there was sufficient evidence to hold Appellant to answer for the murder charge.
In September 2006, Appellant was charged by information with one count of first degree murder. (§ 187, subd. (a).) The information charged Appellant with six special allegations: (1) the murder was carried out while Appellant was an active participant in a criminal street gang, and the murder was carried out to further the activities of the gang (§ 190.2, subd. (a)(22)); (2) the murder was committed while Appellant was engaged in a robbery (§ 190.2, subd. (a)(17)); (3) Appellant personally and intentionally discharged a firearm, causing great bodily injury and death (§ 12022.53, subd. (d)); (4) Appellant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); (5) Appellant personally used a firearm (§ 12022.53, subd. (b)); (6) the offense was committed for the benefit of a criminal street gang with the specific intent to promote, further, or assist criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).
Appellant pleaded not guilty. A jury trial was held in May 2008. As at the preliminary hearing, the People presented testimony by numerous officers and eyewitnesses to the shooting, setting forth the facts summarized above. At issue in this appeal is the testimony of Officer McGuyre regarding the statements Appellant made while McGuyre was guarding him at the hospital.
At trial, Appellant moved to strike McGuyre’s testimony regarding Appellant’s statements made at the hospital, so the court held a suppression hearing on the motion. The court denied the motion to exclude the statements, finding that McGuyre’s interaction with Appellant did not constitute an interrogation. The court found, first, that there was no evidence that Appellant’s medical condition was dire, reasoning that, if it had been dire, Appellant would not have been left on a gurney in a hallway for several hours. The court further found that it seemed that Appellant “just really wanted to brag about what he has done.” The court stated that it seemed that Appellant was proud about being in a gang and that McGuyre’s question to see Appellant’s tattoo was sparked by curiosity about the mark, which was in plain sight. Appellant’s response, that the tattoo was the reason he shot Castellanos, was “not at all the kind of response that was... called for, if you even call that a question.” The court noted McGuyre’s “low key” demeanor in finding that McGuyre did not interrogate Appellant and found that Appellant’s statements were not responses to an interrogation.
The jury found Appellant guilty of first degree murder and found true all six special allegations charged in the information. Appellant was sentenced to a term of life without the possibility of parole on the murder charge, with an enhancement of 25 years to life for the allegation that Appellant personally and intentionally discharged a firearm, causing great bodily injury and death. (§ 12022.53, subd. (d).) Appellant timely appealed.
DISCUSSION
Appellant’s sole contention on appeal is that the trial court erred in denying his motion to exclude his statements to McGuyre in the hospital. Appellant contends that he was subjected to the “functional equivalent” of interrogation and that McGuyre should have known that his conversation with Appellant was “reasonably likely to elicit an incriminating response” from Appellant. (Rhode Island v. Innis (1980) 446 U.S. 291, 301 (Innis).) We agree that the statements were erroneously admitted; however, the error was harmless beyond a reasonable doubt.
The state has the burden of proving the voluntariness of a confession by a preponderance of the evidence. (People v. Haley (2004) 34 Cal.4th 283, 298 (Haley).) We apply a totality of the circumstances test to determine whether a confession was voluntary. (Ibid.) “‘On appeal, the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession is subject to independent review.’ [Citation.]” (Ibid.)
The procedural safeguards established by the United States Supreme Court in Miranda are well known. Miranda requires that “‘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, if indigent, to appointed counsel.’ [Citation.]” (People v. Dykes (2009) 46 Cal.4th 731, 751.) In Innis, however, the Court explained that “the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” (Innis, supra, 446 U.S. at p. 300.) The Court held in Innis that “the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent,” which the Court defined as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Id. at pp. 300-301, fns. omitted.) “In deciding whether police conduct was ‘reasonably likely’ to elicit an incriminating response from the suspect, we consider primarily the perceptions of the suspect rather than the intent of the police. [Citations.]” (People v. Davis (2005) 36 Cal.4th 510, 554.)
Appellant relies on People v. Morris (1987) 192 Cal.App.3d 380 (Morris), in which the court held that the defendant was subjected to the functional equivalent of questioning under Innis. (Id. at p. 389.) In Morris, the defendant was arrested for murder and had been placed in a holding cell when the officer “remembered he had forgotten to place an identifying wrist bracelet on defendant.” (Id. at p. 388.) The officer asked the defendant “‘if we should anticipate any type of problem with his being in jail,’” and asked who he was accused of killing. (Ibid.) The defendant told him that he had killed his sister-in-law. The officer testified that he had asked these questions “solely for the purpose of jail security and not to elicit information from defendant that might be used against him,” but the appellate court held that the questioning was improper under Innis. (Id. at pp. 388-389.) The court further held, however, that the admission of the evidence was harmless under the standard of Chapman v. California (1967) 386 U.S. 18. (Id. at p. 391.) The court reasoned that the defendant admitted that he committed the homicide and that the jury had substantial evidence of other statements made by the defendant. (Id. at p. 392.)
Appellant contends that McGuyre should have known that the question he asked Appellant about the tattoo on Appellant’s hand was reasonably likely to elicit an incriminating response. We agree. McGuyre suspected that the shooting was gang-related before he asked Appellant about the tattoo. McGuyre testified at the preliminary hearing that he could tell that the mark probably was a tattoo. McGuyre was an experienced officer who had been working in the area for several years, and he was familiar with the White Fence gang and recognized the “WF” tattoo as symbolizing the gang. Moreover, after Appellant showed McGuyre the tattoo, McGuyre asked Appellant what his gang moniker was.
There is no question that Appellant was in custody because he was handcuffed to the hospital bed and guarded by officers.
We conclude, however, that the admission of Appellant’s statement at the hospital was harmless error. “[A] violation of the prophylactic rules of Miranda/Edwards does not automatically mean that any ensuing confession was coerced. [Citation.]” (People v. Davis (2009) 46 Cal.4th 539, 598.) “When a statement obtained in violation of Miranda is erroneously admitted into evidence, the conviction may be affirmed if the error is harmless beyond a reasonable doubt” under the standard set forth in Chapman v. California, supra, 386 U.S. 18. (People v. Peracchi (2001) 86 Cal.App.4th 353, 363.)
Edwards v. Arizona (1981) 451 U.S. 477 held that “if the suspect invokes the right to counsel, the officer may not resume questioning on another occasion until counsel is present, unless the suspect voluntarily initiates further contact.” (People v. Neal (2003) 31 Cal.4th 63, 67.)
Here, the jury was instructed as to willful, deliberate and premeditated first degree murder; first degree felony murder; and second degree murder. They were instructed that they needed to agree unanimously not only as to whether the defendant was guilty, but whether he was guilty of first or second degree murder. Contrary to Appellant’s argument, the evidence is more than sufficient to support the verdict of first degree murder.
“‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. [Citations.] “The process of premeditation 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.]”’ [Citation.]” (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) The California Supreme Court has “described three categories of evidence recurring in those cases: planning, motive, and manner of killing.” (Id. at p. 420.) These guidelines, however, “are descriptive and neither normative nor exhaustive.... [Citations.]” (Ibid.)
There was overwhelming evidence that Appellant willfully and deliberately shot Castellanos. According to eyewitnesses, Appellant and another person confronted Castellanos at the bus stop and were pushing Castellanos, as if they were in a fight. Appellant then shot Castellanos and chased Castellanos down the street, shooting him in the back numerous times. Appellant accordingly had the opportunity to deliberate about whether or not to shoot Castellanos, and, after initially shooting Castellanos, he chased him down the street to continue shooting him.
Courts have found that “[p]lanning was evidenced by ‘the fact that defendant brought his loaded gun [with him] and... thereafter used it to kill...’ [the victim]. [Citations.]” (People v. Williams (1995) 40 Cal.App.4th 446, 455; see also People v. Elliot (2005) 37 Cal.4th 453, 471 [“That defendant armed himself prior to the attack ‘supports the inference that he planned a violent encounter.’ [Citation.]”].) There was substantial evidence that Appellant carried a loaded gun, confronted Castellanos at the bus stop, shot Castellanos after Castellanos indicated that he did not want any conflict, and then chased Castellanos down the street and shot him numerous times in the back. The evidence is sufficient to support a finding of first degree murder.
Respondent concedes that, if all of Appellant’s statements at the hospital are excluded, the robbery special circumstance allegation should be stricken because Appellant’s statements at the hospital provided the only evidence of a robbery. We conclude, however, that the evidence is sufficient to support the criminal street gang allegation.
Respondent states that “it appears the robbery special circumstance should be stricken if this court finds a Miranda violation.” Because of this concession, we need not address whether grounds exist to find that the statements Appellant made following the remark about his tattoo are admissible.
Officer Morales testified at the preliminary hearing and at trial. He had extensive experience with gangs, including the White Fence gang, and specifically with Appellant. He testified that Appellant was living at a residence known as a White Fence hangout, that Appellant told him he was a member of the gang, and that he had had two prior contacts with Appellant. Morales testified about the types of activities that gang members are required to do, called “putting in work” for the gang. He testified that committing a shooting such as the one Appellant committed would benefit and further the White Fence gang by showing how “hard core” the gang is, explaining that such gangs are based on respect. Morales also testified that such a shooting would elevate the person’s status in the gang because other gang members would brag about the shooting. Morales further explained that the White Fence gang thrived on intimidation, such as that engendered by this type of shooting.
Gonzales, Adams, and Plascencia all testified about the person who confronted Castellanos along with Appellant and stayed with Appellant while he shot Castellanos. Plascencia testified that the third person chased Castellanos with Appellant.
We agree with Respondent that the evidence is sufficient to support the gang enhancement. There was overwhelming evidence that Appellant was a member of the White Fence gang, that this type of cold-blooded shooting was consistent with activities of the gang and would benefit the gang, and that there was someone with Appellant confronting Castellanos and watching while Appellant shot Castellanos. It is reasonable to infer that this person was there to embolden Appellant’s actions.
For the foregoing reasons, we conclude that the Miranda error was harmless beyond a reasonable doubt. (People v. Peracchi, supra, 86 Cal.App.4th at p. 363.)
DISPOSITION
The robbery special circumstance is stricken. In all other respects, the judgment is affirmed.
We concur: ROTHSCHILD, Acting P. J., JOHNSON, J.