Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F06692
DAVIS, J.
A jury convicted defendant Gilberto Martinez of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) of Ernesto M. (count three) and Anthony P. (count four), and found true allegations that he personally used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of each count. The jury acquitted defendant of attempted murder (§§ 187, subd. (a), 664) of Ernesto (count one) and Anthony (count two), and found not true allegations that he committed the assaults for the benefit of the Sureño gang (§ 186.22, subd. (b)(1)). Defendant was sentenced to state prison for 13 years four months.
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends his motion to exclude his pretrial statements pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) was erroneously denied. We shall affirm the judgment.
Facts
Prosecution Case-in-Chief
In July 2005, Ernesto was 18 years old and his half-brother Anthony was 16 years old. On July 20, around 3:00 p.m., Anthony and two neighborhood friends went to a service station to put air in his bicycle’s tires. Defendant, his mother Kathleen, his sister Maxine, and his friend L.A., whom Anthony knew as “Chucky,” walked by the station.
Chucky, whom Anthony knew from middle school, said “gang-related stuff” to him, such as “Chap.” He also said, “‘Fuck you’” and “‘you fuckin’ chap.’” Neither defendant, Kathleen nor Maxine said anything. Anthony did not respond but left the gas station with his friends.
“Chap” is a derogatory term for a Norteño gang member. Anthony denied that he was a member of that gang. He believed Chucky and defendant were Sureño gang members.
Defendant and his group walked in the same direction that Anthony and his friends had gone. Chucky made Sureño gang gestures and also “flip[ped Anthony] off.” Defendant did not make any hand gestures or say anything.
Anthony saw Ernesto driving his car along a roadway. Ernesto’s girlfriend Christina and her sister Alyssa were with him. Anthony approached the car and told Ernesto that some guys were “messing” with him and had made gang gestures.
Ernesto drove up to Chucky, who was still with defendant and his family. Ernesto got out of his car and confronted Chucky. A fight ensued in which Chucky and Ernesto wrestled around, holding each other. Punches were thrown, but none landed. Neither Chucky nor Ernesto had a weapon. Eventually, Ernesto put Chucky into a headlock. However, neither of them appeared to be winning the fight.
Kathleen pulled out a knife and tried to stab Ernesto, whose back was toward her. She missed and retreated to where her daughter was standing.
Defendant never joined the fray and instead stood several feet away, watching.
Anthony ran toward the fight. Once there, he grabbed Ernesto. Ernesto backed up, and Anthony and Chucky began swinging at each other.
Defendant, who was six to 15 feet away from the scuffle, pulled out a gun and fired four or five times. Ernesto heard the shots while he had Chucky in a choke hold. Everyone fled after the shooting. No one other than defendant had a gun.
Ernesto suffered two gunshot wounds, one to his chest and the other to his abdomen. He underwent surgery and was hospitalized for three days. Anthony was shot in the back of his left thigh. He was treated and released from the hospital the same day.
Sacramento County Sheriff’s Deputy Jeffrey Massagli investigated the shootings of Anthony and Ernesto. Massagli learned that the suspect, named Gilberto Martinez, lived in a green house in the neighborhood.
About 10:00 p.m., Massagli was dispatched to a residence to investigate a report that it had been the target of a drive-by shooting. At the outset, he did not believe that this shooting was connected to the earlier shootings of Anthony and Ernesto.
At the residence, Massagli contacted Richard M., who showed him bullet holes in the living room and den. Given the house’s location in the neighborhood and its green color, Massagli began to believe that the shootings were related. Massagli asked Richard his son’s name, and Richard freely answered that it was Gilberto Martinez. Richard also stated that his wife and daughters were in the house. Once Massagli realized that defendant lived there, he began to suspect that the house had been shot at in retaliation for the shootings of Anthony and Ernesto.
Massagli contacted defendant in his bedroom and handcuffed his hands behind his back. Massagli then walked defendant outside to the patrol car. As defendant entered the car, Massagli asked him, “‘Where’s the gun?’” Defendant answered, “‘I tossed it.’” Massagli asked where it had been tossed, and defendant answered, “‘Someone picked it up already.’”
The next day, gunshot residue samples were taken from defendant. One characteristic gunshot residue particle was found on the sample from the right palm, and another was found on the sample from the back of the left hand.
Defense
Chucky testified that he is affiliated with a gang that is, in turn, affiliated with the Sureño gang. He recounted that, after he left the gas station with defendant and his family, they encountered a group of about six kids who wore red shirts and glared at them “as if they want[ed] to do something to us.” He recognized Anthony, who had attacked a friend of his several weeks prior. Eventually, the six went in the opposite direction and Chucky lost sight of them.
As Chucky and his group walked, a car pulled up behind them. The driver, Ernesto, got out and confronted Chucky about why he had tried to attack his cousin and chase his brother. While Chucky and Ernesto conversed, Anthony “sucker punched” Chucky in the head. Chucky tried to fight Anthony and Ernesto. Ernesto removed a gun from his waist and aimed it at Chucky. Chucky backed up. Someone punched the back of Chucky’s head and he fell flat on his face. Chucky heard two gunshots; when he realized he had not been shot, he got up and ran.
Chucky met up with defendant, who was running in the same direction. Defendant did not have a gun. Chucky had never known defendant to be involved in gangs or to have a firearm.
Kathleen testified that as she walked with defendant and his group, she saw five or six kids with “their mouths moving.” She could not hear what they were saying. She told defendant, Maxine and Chucky to ignore them and keep walking.
A blue car “pulled up fast and stopped fast.” Ernesto jumped out. He hastened to Chucky, not to defendant. Defendant walked backward onto a driveway. Ernesto cussed, accused Chucky of “‘messing’” with Anthony, and began beating Chucky, who fought back.
Kathleen denied possessing a knife and denied waving a knife at anyone. She also denied ever seeing defendant with a gun. She did not see any other participant with a gun and did not hear any gunshots.
Detective Jason Ramos testified that he interviewed Ernesto and obtained some statements that were inconsistent with what he had learned from Ernesto’s brother and girlfriend. Ernesto then acknowledged that some of his statements had been inaccurate.
Ernesto’s former girlfriend testified that he had been violent with her.
Anthony’s schoolmate described Anthony as someone who harassed other students.
Maxine testified that defendant never spoke about gangs, never wore gang-related clothing, and did not have any gang-related nicknames or tattoos.
Maxine testified that on the day of the shooting, Anthony and his friends were “mean-muggin[g]” or staring hard at defendant and Chucky. She saw Anthony punch Chucky but did not see Ernesto fight him. She heard defendant tell his mother and sister to run, which they did. She “could have heard” a gunshot but was unsure because there was also construction noise. She did not see anyone with a weapon.
Defendant presented character witnesses who testified that he was not hostile or violent but was peaceful and friendly.
Rebuttal
Anthony testified that approximately one year after the incident, he saw Chucky and three other males in a car. The car pulled up in front of him. Chucky and the other males yelled gang phrases and pulled out a gun. Chucky got out of the car, displayed three fingers, and yelled the initials of a gang and phrases in Spanish. Chucky pulled out a black handgun, and Anthony left. An investigator for the district attorney’s office testified that she had spoken with Anthony about the incident and he had identified Chucky as the perpetrator.
Discussion
Defendant contends his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution were violated when the trial court ruled that his pretrial statements to the arresting officer fell within the public safety exception to Miranda. He argues that the exception was not applicable because the circumstances surrounding his detention did not support a reasonable belief that there was an immediate danger creating a serious likelihood of harm if the gun used to shoot Anthony and Ernesto was not found. We are not persuaded.
Background
Deputy Massagli testified at the preliminary hearing that he responded to the shootings involving Anthony and Ernesto. Later that same day, he was dispatched to the residence that had been fired upon. The shooting at the house occurred around 9:00 p.m., about five hours after the shooting of Anthony and Ernesto.
When he arrived, Massagli did not realize that the residence was the same house that witnesses to the earlier shooting had described. However, when he spoke to the owner of the house, he realized that it was the same house, and that defendant was in the back bedroom.
Massagli went to the bedroom to detain defendant, who was standing inside the room. Massagli searched defendant but did not search the room. Defendant was handcuffed and taken to the patrol car. He was not free to leave. While defendant was handcuffed, sitting in the back of the patrol car, Massagli asked him, “‘Where’s the gun?’” Defendant replied that he had “tossed it.” Massagli asked him where, and he replied that “somebody [had] picked it up already.” Massagli asked defendant no further questions.
At the time of the questions, Massagli did not know where the gun was located. As far as he knew, it “[c]ould have been anywhere,” including the house or some public place. He did not administer Miranda warnings because he did not intend to question defendant about the shootings of Anthony and Ernesto. He only inquired about the gun as a matter of public safety. Defendant did not request to talk to detectives about the case.
In ruling on the suppression motion, the trial court reviewed the pertinent portions of the preliminary hearing transcript. It rejected defendant’s request for an Evidence Code section 402 hearing, impliedly concluding that his opportunity to question the witness at the preliminary hearing had been adequate. Relying upon federal and state case authority on the public safety exception to Miranda, the court denied the motion.
Analysis
Miranda holds that, “‘[b]efore being subjected to “custodial interrogation,” a suspect “must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”’ [Citations.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1399-1400.) It is undisputed that defendant was in custody at the time of the questioning.
“In New York v. Quarles (1984) 467 U.S. 649, 81 L.Ed.2d 550, 104 S.Ct. 2626] [Quarles] the United States Supreme Court enunciated a narrow ‘public safety’ exception to the prophylactic procedures mandated by Miranda. In Quarles, the police, after apprehending the defendant, were confronted with the immediate necessity of ascertaining the location of a gun that they had reason to believe the defendant had discarded in a supermarket. Before reciting the Miranda warnings, the police asked the defendant where the gun was located, and the defendant showed them. After the police retrieved the weapon, they advised the defendant of his Miranda rights. [The] [d]efendant claimed his statement directing the police to the gun, elicited prior to the Miranda warnings, was the product of custodial interrogation violative of Miranda and therefore inadmissible. The trial court agreed and excluded the defendant’s statement directing the police to the gun, also excluding the gun itself and subsequent statements as illegal fruits of the Miranda violation. [¶] On appeal, the United States Supreme Court reversed, holding that the rationale of Miranda does not require its application in circumstances where police officers must ask questions reasonably prompted by public safety. The court concluded that ‘the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination’ [citation], but held that the exception for such a situation must be circumscribed by the exigency that justifies the exception, thus authorizing the police to engage in questioning only to the extent ‘necessary to secure their own safety or the safety of the public . . . .’ [Citation.]” (People v. Sims (1993) 5 Cal.4th 405, 450 (Sims).)
In Sims, our supreme court held that the circumstances of the defendant’s arrest fell within the scope of the Quarles exception to the Miranda rule, because the defendant was believed to be armed with one and possibly two firearms and was considered to be extremely dangerous and to have a “‘death wish.’” Thus, the arresting officers had reasonable grounds to suspect that firearms were present somewhere in the room in which the defendant was arrested, and that the defendant might struggle to gain access to the weapons in order to resist arrest or to effect an escape. (Sims, supra, 5 Cal.4th at pp. 450-451.)
The present case is similar to Quarles and Sims in that Officer Massagli had previously responded to the shooting of Anthony and Ernesto and had personal knowledge that a gun had been involved in that case. Before asking the first question, Massagli searched defendant but did not search the room in which he was found. He knew the gun “[c]ould have been anywhere,” including that room or elsewhere in the house.
Like the defendant in People v. Simpson (1998) 65 Cal.App.4th 854, who was questioned while handcuffed at a police command post (id. at p. 861), here defendant was questioned while handcuffed in the patrol car. However, other persons, who had been attacked in evident retaliation for the first shooting, remained at the residence. Further gun violence was foreseeable, especially if the house was again attacked. A reasonable officer who discovered the evident retaliation would want to ensure that the gun was not left behind for use in the next round of shootings. (Cf. Trice v. United States (D.C. App. 1995) 662 A.2d 891, 896 [unwarned interrogation was permissible four days after shooting because the threat remained imminent].)
Trial evidence showed that another member of the household wielded a knife in the first incident, further elevating the risk of future violence. However, Deputy Massagli did not present that evidence at the preliminary hearing. Thus, we do not consider it.
Defendant’s reliance on State v. Sharpe (2008) 174 Ohio App.3d 498 [882 N.E.2d 960] (Sharpe) is misplaced. In Sharpe, the defendant’s girlfriend called police to file a domestic violence complaint; thereafter, police interviewed the girlfriend and obtained an arrest warrant. Ninety minutes later, the defendant was at another location with a gun threatening to kill himself. Ninety minutes after that, the defendant was seen entering his residence through a rear window. (Sharpe, supra, 882 N.E.2d at pp. 964-965.) Police surrounded the residence for two to three hours waiting for the defendant to come out; when he did, police arrested him and performed a protective sweep of the residence where they found approximately two and a half pounds of marijuana in plain view. Defendant refused to consent to a search of the residence. Officers immediately obtained and executed a search warrant. They seized the marijuana they had seen, along with over 100 grams of cocaine and a loaded .45-caliber handgun. The defendant was charged, inter alia, with two counts of drug possession and one count of being a convicted felon in possession of a firearm. Defendant filed several motions to suppress; in his last motion, he contended that the protective sweep was illegal and tainted the facts in the affidavit supporting the search warrant request. The trial court denied the motion. (Id. at pp. 965-966.) The Ohio Court of Appeal reversed. The court held the sweep was not constitutional since the police had no idea whether anyone was in the house to present “a risk of danger from [the gun’s] use” (id. at p. 971) and the gun did not play “any part in the domestic violence offense [the defendant] allegedly committed.” (Id. at p. 972.)
We invited the parties to submit supplemental letter briefs on State v. Sharpe.
The facts of this case are very different from those in Sharpe. Deputy Massagli knew that at least one other person, the homeowner, was in the residence where he found defendant. Thus, after taking defendant into custody, there was still one other person who could pose a danger of the gun being used. (Sharpe, supra, 882 N.E.2d at p. 971.)
In addition, firearms had been used that day in two locations where defendant was seen. The first instance was the shooting earlier that day, and the second instance was at the residence where defendant was found. Thus, the gun did play a part in the offense that defendant allegedly had committed, and a gun was involved in the shooting of the residence where he was found. (Contra, Sharpe, supra, 882 N.E.2d at p. 972 [no weapon involved in alleged domestic violence incident].) Nothing in Sharpe suggests that the public safety exception to the Miranda rule should not be applied in this case.
To the extent that defendant’s answer to Deputy Massagli’s first question (“‘I tossed it’”) dispelled the danger of another round of shootings, it also raised a new one. Because the gun had not been recovered at the crime scene, and the possibility that defendant had “tossed” it in the vicinity of his house was remote, his answer raised the possibility that the gun had been thrown into in a public place somewhere between those two endpoints. As in People v. Gilliard (1987) 189 Cal.App.3d 285, Massagli could ask where the gun had been tossed, “simply to remove it from a location where it might be retrieved by a child or other member of the public.” (Id. at p. 292.)
Because defendant’s second answer (“‘[s]omeone picked it up already’”) dispelled that danger, Massagli correctly asked no more questions.
Defendant claims “the reasoning of Quarles and thus the continuing viability of the ‘public safety’ exception to the Miranda warning requirement have been called into question by the holding of Dickerson v. United States (2000) 530 U.S. 428 [147 L.Ed.2d 405 (Dickerson)].” He reasons that, “to the extent Quarles rests on the premise that the Miranda rules are merely ‘prophylactic,’ its continuing viability is open to question.” We disagree.
Dickerson anticipated defendant’s contention by stating: “The Court of Appeals also relied on the fact that we have, after our Miranda decision, made exceptions from its rule in cases such as [Quarles] and Harris v. New York[(1971)] 401 U.S. 222, 28 L.Ed. 2d 1, 91 S.Ct. 643 []. [Citation.] But we have also broadened the application of the Miranda doctrine in cases such as Doyle v. Ohio[ (1976)] 426 U.S. 610, 49 L.Ed. 2d 91, 96 S.Ct. 2240 [] and Arizona v. Roberson[ (1988)] 486 U.S. 675, 100 L.Ed. 2d 704, 108 S.Ct. 2093 []. These decisions illustrate the principle -- not that Miranda is not a constitutional rule -- but that no constitutional rule is immutable. No court laying down a general rule can possibly foresee the various circumstances in which counsel will seek to apply it, and the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision.” (Dickerson, supra, 530 U.S. at p. 441, italics added.)
In short, Dickerson reasoned that Quarles is a viable exception to Miranda’s constitutional rule. Defendant offers no persuasive basis for an opposite conclusion.
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P. J., RAYE, J.