Opinion
B161796.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. EUSTORGIO RODRIGUES and FABIAN SILVA, Defendants and Appellants.
Nancy Mazza for Defendant and Appellant Eustorgio Rodrigues. David Joseph Macher, under appointment by the Court of Appeal, for Defendant and Appellant Fabian Silva. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Eustorgio Rodrigues and Fabian Silva each appeal from the judgment entered after a jury trial in which Rodrigues was found guilty of first degree murder, conspiracy to commit murder and findings that a principal was armed with a firearm as to both counts, (Pen. Code, § 187, subd. (a), 182, subd. (a)(1)/187, subd. (a), 12022, subd. (a)(1)) and Silva was found guilty of murder, conspiracy to commit murder and a finding that he personally discharged a firearm. (Pen. Code, § 187, subd. (a), 182, subd. (a)(1)/187, subd. (a), 12022.53, subds. (b), (c), and (d).)
Although the record indicates that this appellants name is "Estorgio Rodriguez", he testified in trial that his name is "Eustorgio Rodrigues," and therefore we will refer to him as "Rodrigues" in the body of this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Sandro Vargas was shot in the early morning hours of May 26, 2001, as he was arriving home from work. Vargas had been driven home by Cesar Munoz, who was still in the car when Vargas was shot. Munoz was unable to identify the shooter because it was dark, but told police that the shooter was probably Hispanic, aged 18 to 25 and five foot two inches to five foot five. No money or property was taken from Vargas. After police interviewed Vargas girlfriend, Rocelia Diaz, who was inside the house when Vargas was shot, four men were charged with the murder: Rodrigues, Silva (the appellants in this case), Juan Valencia, and Rafael Loera. All were named in the same information, but prior to trial, the court granted a motion to sever. As a result, Valencia and Loera were tried in one trial, but with two separate juries, and then after those juries had reached a verdict, another trial was held for Rodriguez and Silva, also with two separate juries. The case regarding Valencia and Loera and their respective contentions on appeal is discussed in case No. B161144.
At this trial Munoz testified that he drove Vargas home from work in the early morning hours of May 26, 2001. When Vargas exited the car to open up the driveway gate, a man dressed in a black pullover with a hood approached Vargas and shot him. Munoz was able to give a basic description of the man but could not see his face because it was dark.
Rocelia Diaz testified that she was living with Vargas and waiting inside the house when he was shot. She did not see the shooter. She had been romantically involved with Valencia since she was 18. They had two daughters and she was pregnant with another child of his at the time of the shooting. She knew he was married to someone else and that they had children. She had met Vargas recently, and had moved in with him. The night before he was shot, Valencia had taken her daughters and refused to return them until she called the police. Valencia had threatened her not to see another man after the eighth month of her pregnancy.
The police interviewed Valencias two sons, Victor and Juan Miguel, and tapes of the interviews were played at trial.
In his taped police interview, which was played for the jury, Juan Miguel Valencia (Juan Miguel), appellant Valencias 20 year old son, said that Rodrigues and Loera had offered to kill Vargas in exchange for a debt they owed to Valencia. Loera was the driver and Rodrigues had the gun, but another man, Rodrigues friend, was going to do the shooting. The third man was not appellant Silva.
In his taped interview, Victor Valencia (Victor), Valencias 18 year old son, had said that Loera and Rodrigues told Valencia that they were going to shoot Vargas with Loeras car and Loeras gun.
At trial, Victor testified that he lived with his parents and six siblings. He was aware that his father had a relationship and children with Diaz and said that his father was sad when the relationship ended and that there were custody problems. Victor heard his father ask his friend, appellant Loera, to talk to Vargas and Diaz about support payments. He did not hear them mentioning appellant Rodrigues. Victor knew who Rodrigues was because he was a client of his fathers auto repair business. Victor said he invented the story he told the police because the police were screaming at him and threatening to arrest him, as well as his father and brother. He was kept at the police station for over twelve hours and denied food and drink. The police told him they would release his father if he went along with what the officers said. He also made up the written statements he signed identifying Loeras and Rodrigues picture, and stating that to extinguish debts they owed to Valencia, Loera agreed to drive the car and Rodrigues agreed to shoot Vargas. Victor explained that he had written this statement after the police had taken him home after questioning and he had discussed this with his brothers.
Juan Miguel testified that his father was upset about the custody problems he was having with Diaz and that his father had told Loera and Rodrigues about these problems. He was taken to the police station in the early morning hours and the police yelled at him and threatened him. He made up the story he told to police because they were blaming him. He also fabricated the written statements he wrote next to the pictures of Loera and Rodrigues, and of Loeras car.
Detective Rudy Flores testified that he interviewed Rodrigues at the police station and turned on the tape recorder only after he had given him the Miranda admonitions, and that Rodrigues signed a written form in Spanish advising him of his rights. During the taped interview Rodrigues told him that Loera drove the car, and Silva was in the car with him. Silva got out and shot Vargas and returned without a gun. Rodrigues later identified a picture of Loera, and identified Silva as the shooter.
Miranda v. Arizona (1966) 384 U.S. 436.
In Rodrigues defense, his employer testified that Rodrigues was working until 11:30 p.m. on the night of the shooting. Rodrigues also testified in his own defense. He was never read his rights by the police and was given a written form in English, which he does not read. The detectives told him he would be jailed for life, deported and would not see his family again if he did not cooperate. He denied signing any forms or identifying any photographs. He denied talking to Valencia or his sons.
Silva did not testify at trial. The prosecution introduced the tape of his interview with police during which he admitted that Valencia offered to pay Silva and the others to shoot Vargas for money. Silva admitted that he was wearing brown pants, a black T-shirt and a blue baseball cap on the day of the shooting, and that he shot Vargas and threw the gun into the street.
Detective Flores testified that he had advised Silva of his constitutional rights in Spanish and that Silva signed a card containing an admonition of rights.
CONTENTIONS ON APPEAL
Rodrigues contends that his statement to the police was a product of coercive police conduct, that he did not receive Miranda warnings and that the trial court erred in denying his motion to exclude those statements. He also contends that the evidence was insufficient to support the verdict, and finally, that the trial court coerced a dissenting juror during deliberations.
Silva contends the court erred in denying the motion to exclude his taped statements because no Miranda warnings were given to him, that the court erred in failing to instruct the jury on accomplice testimony, and that the Penal Code section 12022, subdivision (a)(1) enhancements imposed must be stricken. He also joins in the arguments of co-appellant Rodrigues.
DISCUSSION
1. Miranda Warnings
After Rodrigues filed a motion to exclude his statements to the police on the grounds that they were obtained in violation of Miranda, the trial court held an evidentiary hearing. During that hearing, Rodrigues testified that he and his wife were sitting in the alley behind Loeras house when the police arrived. They handcuffed him and told him they were taking him to the police station. When they got there they put him in a room and Detective Flores and another man began questioning him. They did not tell him he had a right to have an attorney present. They went in and out of the room but never offered him anything to eat. Detective Flores shouted and threatened him. He was in the room for several hours and not allowed to make any phone calls. From there he was put in another room, then transported to county jail.
He denied reading and initialing the paper which had the admonition of rights. He claimed that Detective Flores told him three times what to say on the audiotape and threatened that if he did not do as Flores said, he would be sent to jail for life. He also denied circling and initialing photographs of Silva and Loera.
Detective Flores testified that Rodrigues was arrested on May 27 at approximately 1:40 p.m. and transported to the police station and placed in an interview room from approximately 2:00 p.m. until 10:15 p.m. At approximately 6:30 p.m., the detectives began to interview him and gave him the Miranda warnings in Spanish and he agreed to waive his right to an attorney. The tape was turned on at 9:35 p.m. because at that time Rodrigues started giving them information. During the taped portion of the interview, Detective Flores showed Rodrigues a "paper with . . . your rights" and asked him to initial it, which he did without objection. Detective Flores then said, "Thats fine. Do you remember the rights when — when I explained to you? Your rights? . . . Remember when I gave you the . . . your rights?" Rodrigues responded by asking, "You said to read there, right?" and when Detective Flores responded affirmatively, Rodrigues said "Yes."
Silva joined in the motion to suppress but did not present any evidence on his behalf.
The court indicated that it would review the audiotapes and stated, "I will indicate that I have seldom seen a witness so lacking in credibility as [Rodrigues]. He seems so inconsistent and so happy to say no, that none of these things are true, all of the things are fictitious when that isnt consistent with what the other defendants have said, the other two, Mr. Valencia and Mr. Loera." He later stated, "Given the body of transcripts that Ive listened to, I do find that Miranda rights were given, that they were understood and waived and that there was no coercion involved in obtaining the statements. [¶] Ive already commented on credibility. I dont think I need to do that again. But there were inconsistencies in Mr. Rodrigues own testimony that I had to consider as well. [¶] So the motion to suppress the statement is denied."
In reviewing the denial of the motion to suppress, we accept the trial courts resolution of disputed facts and evaluation of credibility if supported by substantial evidence. We then independently determine from those facts whether the statements were obtained in violation of Miranda. (People v. Waidla (2000) 22 Cal.4th 690, 730; People v. Whitson (1998) 17 Cal.4th 229, 248.)
The story Rodrigues told to police corroborated the story told by Valencias sons, by Loera, and by Silva. In addition, there was a signed waiver of rights form and Rodrigues did not deny that he had signed it, nor did he assert his right to an attorney or otherwise voice his objection on the taped statement. Thus substantial evidence supports the trial courts finding that Rodrigues was not credible. We therefore conclude, based upon the detectives testimony, the written waiver of rights, and the tenor of the taped testimony, that Rodrigues was aware of his rights and knowingly waived them. (People v. Whitson, supra, 17 Cal.4th at p. 249.)
Silva contends on appeal that he was in custody at the time of the interrogation because he had been taken from his home and placed in an interview room and not told that he was free to leave, that the prosecution did not sustain its burden of showing voluntariness by the preponderance of evidence, and that Silva did not expressly waive his rights prior to the tape recorded portion of the evidence.
Detective Flores testified that he advised Silva of his rights, Silva stated that he understood, then Silva subsequently initialed and signed a waiver of rights form. Based upon this testimony, the trial courts findings that the advisements were given, understood, waived, and there was no coercion involved, were supported by substantial evidence. From this we independently determine that there was no Miranda violation.
2. Sufficiency of the Evidence
Both appellants urge that the statements by Victor and Juan Miguel Valencia were the only statements offered into evidence by the prosecution and were thus insufficient to support the verdict. This assertion is without merit. Not only did Rodrigues and Silva admit their own involvement to police, but their versions corroborated Victor and Juan Miguels versions. In addition, Munoz, the eyewitness, gave a physical description of the shooter that matched Silvas. The physical evidence — the single gunshot wound, the fact that no money was taken — supports the story told to police. Given the fact that all the parties involved told the same story to police even though questioned separately, the jury was warranted in its apparent decision to disbelieve their trial testimony that they fabricated their statements. There was sufficient evidence to support the verdicts.
3. Instructions on Accomplice Testimony
Appellant Silva contends that the court erred in failing to instruct the jury with CALJIC Nos. 3.11, 3.13, and 3.18, on testimony by an accomplice. He argues that because there was enough evidence for the jury to conclude that Valencia, Loera and Rodrigues were accomplices, the jury should have been instructed that their testimony against Silva should have been viewed with distrust, citing People v. Tatman (1993) 20 Cal.App.4th 1, 12.
An accomplice is one who liable for the identical offense with which defendant charged. (Pen. Code, § 1111.) Failure to instruct the jury that the testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the crime is harmless if there is sufficient corroborating evidence. (People v. Hayes (1999) 21 Cal.4th 1211, 1271; People v. Tatman, supra, 20 Cal.App.4th at p. 12.)
"Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]" (People v. Hayes, supra, 21 Cal.4th at p. 1271.) Corroborating evidence is sufficient if it tends to connect the defendant with the crime so that the jury is satisfied that the accomplice is telling the truth. (People v. Lewis (2001) 26 Cal.4th 334, 369-370.)
Here, the testimony of Munoz, Juan Miguel and Victor sufficiently corroborated the accomplice testimony of Loera, Rodrigues, and Valencia. Moreover, Silva himself admitted to police that he was the shooter. Accordingly, any error in failing to instruct the jury on accomplice testimony was harmless.
4. Juror Misconduct
On the morning of June 26, 2002, after the jury had been deliberating for three days, the jury foreperson sent the following note to the judge: "We feel that Juror No. 5 is not deliberating properly. Specifically she seems to be influenced by pity for the defendant. Juror No. 5 is concerned about the defendants five children. Juror No. 5 also seems influenced by sentiment and sympathy for the defendant. [¶] Juror No. 5 is concerned and has speculated . . . what the defendants sentence will be, if convicted. [¶] . . . She is not following the judges orders. In addition, we have gone over the evidence extensively." The judge then questioned Jurors No. 1 through 4 separately, then questioned Juror No. 10. After a brief discussion with counsel the court then questioned Juror No. 5. Juror No. 5 denied that she was concentrating only on the sentence. The court then told counsel it did not think it had to question any more jurors, stating, "I think that at this point I feel that my questions have been probing, Ive been pointed in my questioning, and Ive been unable to, in the courts view, come close to discovering the demonstrable reality that would have to be shown of a violation of a juror taking — not following her oath."
The court then addressed the jury as follows: "There have been some concerns raised, and Ive talked to some of the jurors about some of these concerns. I just want to share some observations with you. [¶] Jury service is difficult sometimes. I know its an imposition to serve on a jury. We certainly appreciate the fact that youre here, and we appreciate the fact that youre doing your best to resolve the case. [& para;] Its important to remember that jurors must at all times not get personally embroiled in the decision-making process, but to be judges of the facts, judge the case on the evidence without regard for sympathy or bias or prejudice or for concerns about improper things such as possible penalty or punishment and to try to work together, consider each others opinions. Dont necessarily relinquish your own, but at least consider what the others have to say and do the best you can and thats about all I can tell you is that we appreciate the fact that youre here, that youre working on the case and we ask you to continue your deliberations." The jury then re-commenced deliberations and shortly thereafter, the jury returned its verdict.
"Courts must exercise care in responding to an allegation from a deliberating jury that one of their number is refusing to follow the courts instructions. . . . This approach recognizes the importance of maintaining the secrecy of jury deliberations and thereby protecting the freedom of jurors to express differing views." (People v. Engelman (2002) 28 Cal.4th 436, 445.) "[W]hen inquiring into asserted misconduct of a member of a deliberating jury, the court should take care that any inquiry `minimize pressure on legitimate minority jurors [citation], and the court should not conduct an inquiry that could `risk[] pressuring the dissenting juror to conform her vote to that of the majority. [Citation.]" (Id. at p. 446.)
Evidence of statements made in the jury room must be admitted with caution because such statement have a tendency to implicate the reasoning processes of jurors. (People v. Cleveland (2001) 25 Cal.4th 466, 484.)
"A refusal to deliberate consists of a jurors unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge." (People v. Cleveland, supra, 25 Cal.4th at p. 485.)
Here, when confronted with allegations of misconduct, the court properly engaged in an inquiry. Although the other jurors seemed to think that Juror No. 5 was not following instructions, Juror No. 5 denied the allegations. Faced with this conflicting evidence, the court was within its discretion in concluding that this juror was not refusing to deliberate. Its instructions to the jury were not coercive, especially with respect to Juror No. 5, and there was no misconduct.
5. Sentencing
The jury found true that Silva personally used a firearm causing great bodily injury (Pen. Code, § 12022.53, subds. (b)-(d)) and also that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)) as to both counts 1 (murder) and 2 (conspiracy to commit murder). The court sentenced him to 25 years to life for the murder plus 25 years to life for the section 12022.53 enhancement. It stayed the sentence on count 2 and both enhancements pursuant to section 654. It is unclear from the courts remarks what happened to the section 12022 enhancement on count 1.
The following colloquy occurred at sentencing: "THE COURT: . . . Okay. Then as to Mr. Silva, he has the joint finding of 12022.53 subdivision (d) as well as (c) and (b) and they merge essentially into subdivision (d), the term of 25 years to life added to 25 to life in Count 1, murder in the first degree. [¶] I should mention as to both the conspiracy charge in Count 2 of the same 25 years to life with the same enhancement is permanently stayed under 654, double punishment requirements of the Penal Code. [¶] As to Mr. Silva then 25 to life Count 1 plus 25 to life for 12022.53 subdivision (d), and I guess there was also the principal armed allegation, but I think that that— [¶] [Defense Counsel]: I think that merges also, Your Honor. [¶] THE COURT: Right. And that would add the one year, but it is stayed under 654."
Silva contends that because the base term for count 2 was stayed pursuant to section 654, the section 12022.53 enhancement must be imposed and stayed and any firearm enhancements with a lesser term must be stricken. The People concede this point (People v. Bracamonte (2003) 106 Cal.App.4th 704, 713), but argue that remand for sentencing is not necessary since no additional terms were imposed for those enhancements and the appellate court has the inherent power to modify the sentence (Pen. Code, § 1260).
Silva refers to People v. Bustamonte 2003 Cal.App. Lexis 283 in his brief. We believe this is an erroneous reference to People v. Bracamonte.
The section 12022, subdivision (a)(1) enhancements on counts 1 and 2 must therefore be stricken. The total term of imprisonment is unchanged. As a result, we see no necessity to remand, but instead shall order the trial court to modify the abstract of judgment.
DISPOSITION
The judgment against Silva only is modified to strike the section 12022, subdivision (a)(1) enhancements imposed as to counts 1 and 2. The trial court is therefore directed to prepare and forward to the Department of Corrections a modified abstract of judgment striking those enhancements. In all other respects, the judgment is affirmed.
The judgment against Rodrigues is affirmed.
We concur: VOGEL (C.S.), P.J. and EPSTEIN, J.