Opinion
E066863
06-07-2018
THE PEOPLE, Plaintiff and Respondent, v. SIMON GARIBO RIVERA, Defendant and Appellant.
Law Office of Zulu Ali and Zulu Ali for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1402310) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed. Law Office of Zulu Ali and Zulu Ali for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Simon Garibo Rivera appeals a jury verdict finding him guilty of cruelty to animals and being a felon in possession of a firearm. Rivera admitted to law enforcement that he shot his neighbor's dog because he was tired of it coming on his property and pointed out the rifle he had used for the killing. Rivera challenges his convictions, arguing (i) the trial court should have suppressed his admissions because he did not receive Miranda warnings, (ii) there was insufficient evidence he shot the dog with malice or possessed the rifle, (iii) the prosecutor committed misconduct by commenting on evidence related to whether he was justified in shooting the dog, and (iv) the trial court should have instructed the jury on defense of another because his granddaughter testified the dog had growled at her.
Miranda v. Arizona (1966) 384 U.S. 436.
We reject all these objections. The trial court correctly concluded Rivera was not in custody when he made his admissions. The admissions and other evidence provided substantial support for the jury's verdict on both offenses. The prosecutor's comments on evidence of justification responded to defense counsel's discussion of the same evidence and therefore were not improper. And the trial court correctly concluded neither granddaughter's testimony nor any other evidence supported giving a defense of others instruction to the jury.
We therefore affirm the judgment in all respects.
I
FACTUAL BACKGROUND
A. The Killing
This case arises from events in Perris the evening of January 28, 2014, where Jose Cortes lived with his family and two dogs. One his dogs was a black Golden Retriever and Labrador mix named Bear. Cortes described Bear as calm and obedient. However, he acknowledged his dogs sometimes got out of his yard, and said he thought Bear went over to the house of Rivera that night because Rivera had a female dog in heat.
According to Cortes, he saw Bear lying in his yard around 6:00 p.m. Later that evening, he heard a gunshot, but did not investigate because it sounded far off. Later he received a phone call from his nephew telling him Bear was hurt. He went outside and found Bear with a gunshot wound to his chest and on the verge of dying. Cortes called the police for assistance.
Riverside County Sheriff's Deputy Joshua Hephner responded to the call around 9:40 p.m. Deputy Hephner spoke to Cortes and saw the deceased dog. He said he saw a bullet entry wound to the dog's chest and an exit wound on the dog's underside toward its back legs.
Deputy Hephner followed the blood trail from where Cortes found Bear. The trail led him to a fence surrounding Rivera's property. While standing outside the fence, Deputy Hephner got Rivera's number from his dispatcher and called him. The deputy asked Rivera to come outside so they could talk in person. Rivera came out and met Deputy Hephner at the back gate of the fence around his home. Rivera permitted the deputy to come in and look around the front yard. There, he found a .22-caliber shell and blood. He concluded Bear had been shot in Rivera's yard.
Deputy Hephner asked Rivera what had happened to Bear, and Rivera said "he was tired of the dog coming onto his property, so he shot it." Rivera said he was in the kitchen inside his house when he saw the dog in his front yard. He grabbed a .22-caliber rifle, walked outside, and shot at the dog three times. According to the deputy, Rivera said Bear yelped loudly and ran away. Rivera said he saw the dog's blood and went back into his house. When the deputy asked him again why he shot the dog, Rivera repeated he was tired of the dog being on his property.
Rivera told the deputy one of Cortes's dogs had come onto his property in the past and killed livestock. He said these raids had occurred six and two years earlier. Deputy Hephner said Rivera did not report Bear being near any livestock or person that night, nor did he report any person or property was in danger from Bear. The deputy said he later checked and found neither his department nor county animal control had received any complaints from Rivera's residence about any of Cortes's animals.
While taking pictures on appellant's property, Rivera pointed out to Deputy Hephner a rifle leaning against his home's door frame. The deputy took a picture of the rifle and recorded its serial number.
Rivera's granddaughter was the only defense witness. She said a black dog came within a "couple feet" of her and her younger sister on their front porch and growled at them. The sisters ran into the house, told Rivera about the dog, and then went into their mother's room, where they watched television and fell asleep. She said she did not hear a gun being fired. The granddaughter also said there were other times the dog came onto their property and growled and barked, and there were times when they were walking to school with their mother that the dog would try to bite her.
B. The Trial and Verdict
A Riverside County Superior Court jury found Rivera guilty of committing animal cruelty (Pen. Code, § 597, subd. (a), unlabeled statutory citations refer to this code), and being a felon in unlawful possession of a firearm (§ 29800, subd. (a)), and found true the allegation he personally used a firearm to commit animal cruelty (§ 12022.5, subd. (a)).
Rivera moved for a new trial on the ground the trial court had erred by not instructing the jury on the law of the defense of others. After hearing argument, the trial court denied the motion because there was no evidence anyone faced imminent danger. The court then sentenced Rivera to prison for four years and four months.
Rivera filed a timely notice of appeal.
II
DISCUSSION
A. The Admission of Rivera's Self-Incriminating Statements
Rivera argues the trial court erred when it refused to suppress his pretrial statements admitting he shot Bear because he was tired of him coming onto his property. He complains Deputy Hephner did not advise him of his Miranda rights, though he was questioned while a suspect.
The trial court held a pretrial hearing on the propriety of Deputy Hephner's questioning without advising Rivera of his rights. Deputy Hephner said he made contact with Rivera after following a blood trail to the fence around his yard. The gate was locked, so the deputy obtained Rivera's phone number and called him. The deputy said they spoke in English, and Rivera understood him and spoke very well. The deputy said "I asked him if he could come outside so I could speak with him in person. He agreed to come out to the gate, the locked gate, and I spoke with him through the chain-link fence." The deputy said he did not order him to come out, but asked him, and Rivera came out willingly. After they spoke for a while, the deputy asked to enter the property and Rivera invited him to enter.
Deputy Hephner said Rivera was never under arrest and remained free to leave at all times. The deputy did not draw his weapon and never told him he could not go back into his house. He did not explicitly advise Rivera he was free to leave. The deputy said he did not know if Rivera was a suspect when he arrived; that was what he was trying to determine. He said he spent about 30 to 45 minutes on the property, but said he "spoke with [Rivera] briefly regarding what happened, and then I collected all the evidence and took photographs. So I didn't speak with him at the time of taking photographs." Deputy Hephner said the interview and investigation resulted in Rivera being charged for killing Bear. The trial court denied Rivera's motion in limine to exclude his statements to Deputy Hephner.
Before law enforcement subjects someone to "custodial interrogation," they must warn the suspect they have the right to remain silent, any statement they do make may be used as evidence against them, and they have the right to the presence of an attorney, retained or appointed. (People v. Kopatz (2015) 61 Cal.4th 62, 80.) "Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] 'When reviewing a trial court's determination that a defendant did not undergo custodial interrogation,' an appellate court accepts the trial court's findings of historical fact if supported by substantial evidence but independently determines 'whether, given those circumstances,' the interrogation was custodial." (Ibid.)
"An interrogation is custodial when 'a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' [Citation.] The test for Miranda custody is, "'would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.'" [Citation.] The objective circumstances of the interrogation are examined, not the "'subjective views harbored by either the interrogating officers or the person being questioned.'" (People v. Kopatz, supra, 61 Cal.4th at p. 80.)
Here, Rivera's encounter with Deputy Hephner was not custodial. First, the interview occurred at Rivera's home and only after Rivera consented to it. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1253.) The deputy called Rivera from outside his property and asked him to come outside to talk face-to-face. Deputy Hephner said the request was not a demand, and Rivera came out voluntarily. The deputy did not detain Rivera in any way. He did not handcuff Rivera, display his weapon, or attempt to transport him away from his home. Instead, he merely asked questions of Rivera while investigating the scene. (Cf. In re Manuel G. (1997) 16 Cal.4th 805, 821 [circumstances establishing seizure include presence of several officers, officer's display of weapon, some physical touching of the person, or use of language or tone of voice indicating compliance with officer's request might be compelled].) Though the questioning took place over 30 to 45 minutes, Deputy Hephner said he spent much of that time taking pictures of the scene of the shooting, rather than asking questions of Rivera.
Given these facts, it is clear a reasonable person in Rivera's position would have understood he was free to terminate the interview. All he would have had to do was walk into his house and shut the door. Accordingly, Rivera was not in custody when he was interviewed, and the trial court correctly denied his motion to suppress the interview.
B. Substantial Evidence of Cruelty to Animals and Gun Possession
Rivera argues the People did not present sufficient evidence to support the jury's finding him guilty of either offense. He says there was "no evidence to establish that [Rivera] killed the dog with maliciousness . . . rather [than] to protect his livestock" and "the testimony of Deputy Hephner fell short of proving beyond a reasonable doubt that [Rivera] owned or knew he owned, received, and/or possessed a firearm."
We disagree. Substantial evidence is evidence "of ponderable legal significance . . . [which] must be reasonable . . . , credible, and of solid value." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) "The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record." (Ibid.) Thus, we will affirm the verdicts if there is reasonable evidence to support it considering the entire record.
We conclude substantial evidence supports both jury verdicts. We take the cruelty to an animal conviction first. "[E]very person who . . . maliciously and intentionally kills an animal, is guilty of a crime punishable" as a felony by imprisonment or by a fine of not more than $20,000. (§ 597, subds. (a) & (d).) An offender acts maliciously and intentionally if he has the general intent to do what the law proscribes. (People v. Alvarado (2005) 125 Cal.App.4th 1179, 1187-1188.)
Rivera's own admissions provide sufficient evidence to support the jury's finding he shot Bear maliciously. As Deputy Hephner reported, and as we recounted above, Rivera repeatedly said he shot Bear because he was tired of him coming onto his property. That evidence shows both that he committed the proscribed act (killing an animal) and did so with the requisite intent.
Rivera's suggestion that he did not act maliciously because he was seeking to protect his livestock is not well-taken for two reasons. First, Rivera acted with general intent to kill Bear whether or not he sought to protect livestock from Bear. Second, there is no evidence Rivera acted for that reason. He told Deputy Hephner he shot Bear because he was tired of him coming onto his property; he did not say Bear was threatening (or ever had threatened) his livestock.
Section 599c excludes from the statute against cruelty to animals the killing of "any animal known as dangerous to life, limb, or property," but Rivera does not challenge his conviction on the basis that Bear fit that description, nor does the evidence support its application to this case. --------
We turn now to Rivera's gun-possession conviction. An ex-felon possesses a firearm the instant he "in any way has a firearm within his control." (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410.) He constructively possesses a firearm when he knowingly exercises control over or the right to control it, either directly or through others. (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084.) Here, Rivera admitted he used a gun to shoot Bear. He then pointed to the weapon resting inside his home. This evidence, at minimum, is sufficient to support a jury finding Rivera had constructive possession of the firearm and knew that he had such possession.
We therefore conclude substantial evidence supported both Rivera's convictions.
C. Prosecutorial Misconduct
Rivera argues his conviction for animal cruelty should be reversed because the prosecutor committed misconduct by arguing issues related to his defense of another defense though the trial court had refused to instruct the jury on that defense.
In his own closing argument, Rivera's defense counsel argued the jury should find Rivera not guilty because the dog had repeatedly come on his property and scared his granddaughters. In rebuttal, the prosecutor responded that Rivera's granddaughters were not nearby when Rivera shot the dog and there was no evidence the dog had bitten anyone or attacked livestock. Rivera now argues this argument was prejudicial misconduct because it raised issues related to a defense on which the trial court refused to instruct the jury.
When a claim of misconduct "focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) There is no reasonable likelihood the prosecutor's comments would mislead the jury as to the facts or the prosecution's burden of proof on the elements of the cruelty to animals count. Though the jury was not instructed on legal justification for the killing of Bear, defense counsel raised or construed evidence related to that defense in his closing arguments. The prosecutor's rebuttal to those points was both fair as a response and "a fair comment on the state of the evidence." (People v. Mayfield (1993) 5 Cal.4th 142, 178.) We therefore conclude the prosecutor's argument was not misconduct.
D. Refusal of Instruction on Defense of Another
Finally, Rivera argues the trial court erred when it rejected his request to instruct the jury that he acted in defense of another when he shot Bear and erred when it refused to grant his motion for a new trial on that basis.
A trial court has a sua sponte duty to instruct on defense of another "if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." (People v. Breverman (1998) 19 Cal.4th 142, 157.) Rivera does not identify in his brief what evidence would have supported giving the instruction. We presume it is the testimony of his granddaughter that Bear came up to her and her sister on the porch and growled at them. However, his granddaughter also said she and her sister got up, went inside, told their grandfather, and settled safely in with their mother. Thus it is uncontested Rivera could not have reasonably believed the children were in imminent danger when Rivera shot Bear, a prerequisite to invoking the defense. (People v. Iraheta (2014) 227 Cal.App.4th 611, 618, fn. 9.)
We conclude the trial court did not err in refusing to instruct the jury on defense of another or in denying Rivera's motion for a new trial.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. McKINSTER
J.