Opinion
NOT TO BE PUBLISHED
Superior Court County No. TA084751-02 of Los Angeles Paul A. Bacigalupo, Judge
Law Offices of Rene Sanz, Rene Sanz for Defendant and Appellant.
Edmund G. Brown, Jr., Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, William H. Shin, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Jorge Nunez appeals a judgment following conviction of three counts of attempted murder, two counts of discharging a firearm at an occupied motor vehicle, and one count of discharging a firearm at an inhabited dwelling, with findings of firearm discharge, and criminal offenses committed to benefit a criminal street gang. (Pen. Code, §§ 187, subd. (a), 664, 246, 12022.53, subds. (b), (c), (d), 186.22, subd. (b)(1)(C).) We affirm.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Stockwell Street Incident (Counts 7, 8, & 9)
Shortly after midnight on January 29, 2006, Oralia Avila and her brother-in-law, Jorge Gonzalez, returned to her home on 2037 East Stockwell Street in Compton. Gonzalez opened the driveway gate and Avila drove into the driveway. They noticed the driver of a Jeep Cherokee vehicle stop in front of the residence. The driver alighted and asked, "Where you from?" Gonzalez responded, "We don't bang." The driver then pulled a long gun from the vehicle and fired approximately 15 shots at Gonzalez, Avila's vehicle, the residence, and the residence next door. Gonzalez received a bullet wound to the buttocks and required medical treatment. Avila's vehicle and another family vehicle parked in front of the residence received gunshot damage. The interior walls of the neighboring residence at 2033 East Stockwell were also damaged by the gunfire.
Avila's brother ("Chopper") was a member of the Tortilla Flats criminal street gang. He had been incarcerated for six years, however, and no longer resided at the Stockwell Street residence.
A Los Angeles County deputy sheriff later recovered five bullet casings near the driveway of 2043 East Stockwell Street. A firearms examiner opined that the bullet casings were consistent with being fired from an AK-47 assault rifle.
Nord Street Incident (Counts 3, 4, & 5)
In the early evening of May 7, 2006, Ladell Lebaron was parked in front of 2019 Nord Street awaiting his girlfriend. He noticed a Chevrolet Malibu automobile, occupied by Martin Rocha and a male driver, stopped nearby. A few minutes later, a man ran from around the corner and began shooting at the Malibu automobile. Rocha and the driver were not injured by the gunshots. A bystander heard the gunshots and saw two men enter a Jeep Cherokee vehicle and speed away. The bystander obtained a partial license plate number of the Jeep Cherokee.
Jorge Erazo and his family were standing at a nearby Nord Street residence when they heard the gunshots. Erazo took his children and ran away. He fell to the ground, however, and realized that he received a gunshot wound to his leg. Erazo later received medical treatment for the wound. Physicians were unable to safely remove the bullet and it remains lodged in his knee.
Nunez's Police Interviews
During the afternoon of June 1, 2006, Los Angeles Sheriff's Detective Daniel Tobin interviewed Nunez. After oral advisement of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda) and execution of a written Miranda waiver, Nunez admitted involvement in the Stockwell Street and Nord Street incidents. Tobin recorded the interview, but the recording was unintelligible when replayed.
The following morning, Tobin reinterviewed Nunez and used a different recorder. Nunez stated that a member of the Tortilla Flats criminal street gang was in front of the Avila residence on Stockwell Street. The gang member insulted him and he heard a firearm being racked. He retrieved an AK-47 assault rifle from the backseat of his Jeep Cherokee. He fired the rifle toward the Avila residence and the rival gang member fired back. He then left the area, sold the rifle, and urged his father to report the Jeep Cherokee as stolen.
Nunez also stated that on May 7, 2006, he was a passenger in a Toyota Camry automobile driven by his girlfriend. He noticed two Tortilla Flats gang members parked in a green-colored Chevrolet Malibu automobile on East Nord Street. Earlier that day, Nunez's fellow gang members, Richard Montemayor and Raul Ordaz, had been fired upon by the occupants of a green-colored automobile. Using his cellular telephone, Nunez called Ordaz and informed him of the sighting. Montemayor and Ordaz drove to Nord Street in Nunez's Jeep Cherokee vehicle. Ordaz left the vehicle and fired approximately eight gunshots at the occupants of the Malibu automobile. Montemayer and Ordaz then left the neighborhood and met Nunez at his residence shortly thereafter.
The prosecutor played the recording of the second interrogation at trial.
The parties stipulated at trial that Nunez's father reported the Jeep Cherokee vehicle as stolen on January 29, 2006, and on May 16, 2006, notified the Department of Motor Vehicles that its license plate was stolen.
Criminal Street Gang Evidence
Detective Tobin testified regarding Compton criminal street gangs. He stated that the Locos Trece street gang identified with the St. Louis Cardinals baseball team symbol and that Nunez had a large tattoo of that symbol on his arm. Tobin testified that the primary activities of the Locos Trece gang included violent assaults, shootings, murders, and illegal sales of weapons and narcotics.
Tobin opined that Nunez was a member of the Locos Trece street gang, based upon his tattoo, his admissions, and his association with other Locos Trece gang members. Tobin stated that inquiring, "Where you from?" is a gang challenge that often is followed by an assault. Tobin opined that the Stockwell Street and Nord Street incidents were committed for the benefit of and in association with the Locos Trece street gang. He explained that the incidents occurred in neighborhoods claimed by Locos Trece street gang as well as the Tortilla Flats street gang, and that the shootings were directed at rival gang members.
Conviction and Sentencing
The jury convicted Nunez of three counts of attempted murder, two counts of discharging a firearm at an occupied motor vehicle, and one count of discharging a firearm at an inhabited dwelling. (§§ 187, subd. (a), 664, 246.) The jury also found that a principal personally and intentionally discharged a firearm during the Nord Street incident, that Nunez personally discharged a firearm during the Stockwell Street incident, and that the criminal offenses were committed to benefit a criminal street gang. (§§ 12022.53, subds. (b), (c), (d), 186.22, subd. (b)(1)(C).)
The trial court sentenced Nunez to a prison term of 170 years to life. It imposed a $5,000 restitution fine, a stayed $5,000 parole revocation restitution fine, and a $100 court security fee. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a)(1).) The court awarded Nunez 1, 071 days of presentence custody credit.
Nunez appeals and contends that 1) the trial court erred by not conducting the evidentiary hearing regarding his confession prior to trial; 2) the trial court erred by denying the motion to exclude evidence of his confession; 3) he received the ineffective assistance of counsel; and 4) the trial court erred by denying his motion for a new trial.
DISCUSSION
I.
Nunez objects to the timing of the evidentiary hearing regarding the admissibility of his confession. He points out that the trial court held the hearing outside the jury's presence immediately prior to Detective Tobin's testimony. Nunez asserts that he suffered prejudice because the prosecutor referred to the confession during his opening statement and therefore, "the Court prejudged that the confession would [be admissible]." The trial court did not err. Prior to trial, Nunez informed the court that he was requesting a hearing "at some point in time" regarding the admissibility of his confession. After brief discussion, the trial judge stated: "Well, then, we'll bring that up at the appropriate time. Whenever you want to raise it, just let me know." During his opening statement, the prosecutor briefly referred to Nunez's confession. Immediately prior to Tobin's testimony, Nunez requested the hearing. The trial court then held a hearing, heard argument by the parties, and denied the motion.
A defendant may obtain a hearing on the validity of a confession at different times during the prosecution. (People v. Smithson (2000) 79 Cal.App.4th 480, 494.) "The hearing can... occur pursuant to a pretrial common law motion or motion in limine, or it can occur following an objection raised during trial." (Ibid.) Nunez requested the hearing prior to Tobin's testimony. The trial court then held a hearing and heard argument by the parties prior to deciding that the confession was admissible. There is no evidence that the trial court prejudged the case.
II.
Nunez argues that the trial court erred by denying the motion to exclude evidence of his confession because it was obtained in violation of his rights pursuant to Miranda, supra, 384 U.S. 436, 444. Nunez adds that Detective Tobin improperly questioned him because other officers were aware that he had been arrested in a different matter (the death of Carlos Ramos and the attempted murder of his wife ("Ramos crimes")) and his family had retained an attorney to represent him. The Ramos crimes occurred on May 13, 2006, a week after the Nord Street incident. Law enforcement officers arrested Nunez pursuant to an arrest warrant on May 30, 2006, concerning the Ramos crimes and possession of methamphetamine.
A statement made by a suspect during custodial interrogation may be admitted into evidence only if the interrogating officer advises the suspect of his right to remain silent and his right to have counsel present at questioning, and the suspect waives these rights and agrees to speak to the officer. (People v. Guerra (2006) 37 Cal.4th 1067, 1092.) On appeal, we independently review a trial court's ruling on a Miranda motion to exclude a statement or confession. In so doing, we accept the trial court's resolution of disputed facts and inferences and its evaluations of credibility if supported by substantial evidence. (Guerra, at pp. 1092-1093.) Thus, "we defer to the... court's express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality... on the facts." (People v. Woods (1999) 21 Cal.4th 668, 673.)
In the exercise of our independent review, we conclude that Nunez's statements were not obtained in violation of his Miranda rights. During Tobin's first interview with Nunez on June 1, Tobin advised him of his Miranda rights. Nunez signed a written waiver of those rights. Following the interview, Tobin realized that the tape recorder malfunctioned and the recording was unintelligible. The following morning, he reinterviewed Nunez. At the inception of the interview, Tobin introduced his supervising officer and asked Nunez "to tell him what we talked about [yesterday]." Tobin inquired if Nunez remembered his Miranda rights, and Nunez replied affirmatively. Tobin then asked Nunez to state his rights. Nunez replied, "To remain silent" and "understand everything." Tobin then reminded Nunez that he had "the right to an attorney" and that "[a]nything [Nunez] might say could be used against [him.]" Nunez replied, "Un-huh, " and agreed to "tell [the] Sergeant what [they] talked about yesterday." At the conclusion of the second interview, Nunez stated that his parents had retained an attorney the day before to represent him following his arrest for the Ramos crimes.
The totality of circumstances supports the trial court's conclusion that Nunez knowingly and voluntarily waived his rights. (People v. Martinez (2010) 47 Cal.4th 911, 950 [defendant's subsequent interrogation the following morning complied with Miranda when detectives reminded him of the Miranda admonitions given the night before and defendant responded that he remembered those rights and wanted to speak to detectives].) Nunez's willingness to be interviewed following his express acknowledgement of his Miranda rights was sufficient to support the trial court's finding of his implied waiver. (People v. Cruz (2008) 44 Cal.4th 636, 667 [valid waiver of Miranda rights may be express or implied; suspects willingness to answer questions after acknowledging understanding of his Miranda rights is sufficient to constitute implied waiver].) Moreover, Nunez did not assert that his parents had retained an attorney to represent him until the conclusion of the second interview. We therefore do not consider it an unequivocal invocation of his right to counsel. (Moran v. Burbine (1986) 475 U.S. 412, 432 [defendant has right to presence of attorney during interrogation occurring after first formal charging proceeding; defendant may waive right to counsel during interrogations occurring beforehand].)
III.
Nunez contends that he did not receive the effective assistance of counsel in the following respects: 1) failure to request a pretrial suppression hearing, provide written points and authorities in support thereof, and allow Nunez to testify at the hearing; 2) failure to object to the prosecutor's opening statement referring to Nunez's confession; 3) failure to request a pretrial lineup; 4) failure to move to sever trial of the two incidents; and 5) asserted ineffective cross-examination of Tobin regarding victim Rocha.
The Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee a criminal defendant the right to the assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684-685.) This right entitles defendant not to bare assistance, but to "effective assistance." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) In order to establish the ineffective assistance of counsel, a defendant must show that counsel's performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland, at pp. 687-688.) A defendant must also show prejudice from counsel's performance or lack thereof. (In re Avena (1996) 12 Cal.4th 694, 721.) "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland, at p. 686.)
When considering a claim of ineffective assistance of counsel, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. (Strickland v.Washington, supra, 466 U.S. 668, 697; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Prejudice requires a reasonable probability that a more favorable outcome would have resulted--a probability sufficient to undermine confidence in the outcome. (Fairbank, at p. 1241.)
We reject Nunez's contentions of ineffective assistance of counsel because he has not demonstrated prejudice. As discussed in I., ante, Nunez received a fair hearing of the suppression motion prior to Tobin's testimony. He presented an oral summary of his factual contentions and argued a legal conclusion of inadmissibility. The trial court instructed that the prosecutor's opening statement is not evidence. The court's later ruling regarding the confession supported the prosecutor's brief references. (CALCRIM No. 222.) A pretrial lineup would have been an idle gesture because the witnesses did not see the face of the person firing the firearm. (People v. Thompson (2010) 49 Cal.4th 79, 122 [counsel not ineffective for failing to make frivolous or futile motions].) Likewise, a motion to sever the counts would have been futile; the counts were of same nature (attempted murders and discharging a firearm at occupied vehicles and residences) and involved the same Jeep Cherokee. (§ 954; People v. Stanley (2006) 39 Cal.4th 913, 934 ["[D]efendant can only predicate error in the denial of severance on a clear showing of potential prejudice"].) Lastly, Nunez's cross-examination of Detective Tobin regarding victim Rocha's statement was helpful to the defense. Rocha informed Tobin that the person shooting was not shooting at him, but instead was shooting at the occupants of another automobile. There is no error, single or cumulative.
IV.
Nunez argues that the trial court erred by denying his new trial motion made upon grounds of: 1) newly discovered evidence that he was represented by an attorney in the matter of the Ramos crimes at the time Tobin interviewed him regarding the Stockwell Street and Nord Street incidents, and 2) insufficient evidence supports the verdicts.
Newly Discovered Evidence
Prior to sentencing, Nunez retained a different attorney and filed a new trial motion pursuant to section 1181. In part, he claimed that there was newly discovered evidence that prior to the interviews with Detective Tobin, another detective interviewed him regarding the matters for which he had been arrested – the Ramos crimes and possession of methamphetamine. (This initial interview was preceded by Miranda admonitions.) His parents had retained an attorney that day to represent him. When he so informed the detective at the outset of the interview, she ceased the interrogation. Shortly thereafter, Tobin entered the interview room and commenced interviewing him regarding the Stockwell Street and Nord Street incidents.
Nunez testified at the new trial motion that the first detective advised him of his Miranda rights and stated that she wanted to question him about the Ramos crimes. Nunez replied: "I know nothing about it, " and "I ha[ve] retained a lawyer already." In response, "[t]hey left it alone and just walked out."
The trial court did not abuse its discretion by denying Nunez's new trial motion. (People v. Navarette (2003) 30 Cal.4th 458, 526 [standard of review].) First, the fact that Nunez's family had retained an attorney the day of the first Tobin interview was not newly discovered evidence within section 1181, subdivision 8. This evidence was within Nunez's knowledge but he simply chose not to bring it to the attention of his trial counsel. Second, assuming that the evidence was newly discovered within the meaning of the statute, it was such that a different result was not probable on retrial. (People v. Delgado (1993) 5 Cal.4th 312, 328 [no abuse of discretion to deny new trial motion where different result not probable on retrial].) Our review of the recorded interview reflects that Nunez did not articulate his desire to have counsel present. (Davis v. United States (1994) 512 U.S. 452, 459 [accused must clearly assert right to counsel; likelihood that accused would "wish counsel to be present" is not the test].) Indeed, he did not inform Tobin of his retained attorney until the conclusion of the interview.
Sufficiency of Evidence
In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Solomon (2010) 49 Cal.4th 792, 811.) Our review is the same in prosecutions primarily resting upon circumstantial evidence. (Ibid.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Guerra, supra, 37 Cal.4th 1067, 1129.)
Sufficient evidence supports the judgment. Victims and witnesses saw Nunez's Jeep Cherokee. A bystander obtained a partial license plate number and identified a photograph of the Jeep Cherokee at trial. A firearms examiner examined the ammunition casings found near the Avila residence on East Stockwell Street and concluded that they were consistent with having been fired from an AK-47 assault rifle. The parties stipulated that Nunez's father reported the Jeep Cherokee (license plate number 3KGG495) as stolen shortly after the Stockwell incident and reported the license plate stolen shortly after the Nord Street incident. The parties also stipulated that Nunez's cellular telephone records reflected three calls made within minutes of each other on May 7, 2006, to the cellular telephone used by Montemayor. Lastly and importantly, following Miranda admonishments and a written waiver of his Miranda rights, Nunez confessed to each crime and admitted his criminal street gang involvement and motives for committing the crimes.
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.