Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 071655.
RAYE, Acting P. J.
Defendant Larry Ross was found guilty by a jury of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); all further statutory references are to the Penal Code) and two counts of false imprisonment by force or violence (§§ 236, 237, subd. (a)). The jury also found defendant personally used a firearm in the commission of one of the robberies and both of the false imprisonments. Sentenced to an aggregate term of 20 years in state prison, defendant appeals. His sole contention on appeal is that the trial court erred in denying his motion to suppress a statement he made to detectives a few days after his arrest because he had previously invoked his right to counsel. We shall reverse defendant’s conviction on one count of second degree robbery but affirm the remaining convictions.
BACKGROUND
At around 7:30 p.m. on March 20, 2007, Howard Reamer was at a Union 76 gas station in West Sacramento. He went inside the convenience store and when he returned to his car, two men, Hermine Robinson and Carlos Cisneros, drove up in a Monte Carlo. One of the men pointed a gun at Reamer and demanded he leave his keys and get out of the car. Reamer complied and one of the men drove off In reamer’s dark gray Yukon sport utility vehicle (SUV), with the Monte Carlo following.
At around 11:25 that night, Gino Herrera drove his Cadillac Escalade to a Quik Stop store in Woodland. A dark-colored Yukon was parked at the Quik Stop’s gas pump when he arrived. After Herrera made a purchase in the store and drove out of the parking lot, the Yukon came up behind him at a high rate of speed. The Yukon then passed him, slammed on its brakes, and blocked Herrera’s path. As Herrera tried to back up and get away, two men emerged from the Yukon with a gun. Herrera managed to make a U-turn, but before he escaped one of the men fired three shots at his truck. One shot penetrated Herrera’s window and injured him. Herrera testified that he had seen three men around the Yukon when it was at the Quik Stop. Robinson was captured on surveillance video in the store just prior to the incident. Herrera later identified Robinson as the driver of the Yukon.
In the early morning hours of March 21, 2007, a man came into the United Travel Plaza store in Dunnigan and purchased $20 worth of gas from pump No. 9. Two other men, both African-American, then came into the store with handguns. One of the men walked up behind a customer, Jesus Hernandez, pointed a gun at him, and demanded his wallet. The other man went behind the counter, pointed his gun at the clerks, Veronica DeCervantes and Adrian Rosas, and demanded money. Hernandez did not initially comply with the robber standing behind him, and the robber did not ask for the wallet again. Rosas opened the cash register, one of the robbers grabbed the money, and the two robbers then left. The robbery was not captured on video, and none of the witnesses were able to identify the robbers. In the vicinity of pump No. 9, officers found papers on the ground with Howard Reamer’s name on them.
Between 1:15 and 2:00 a.m. on March 21, 2007, Robinson went into the Circle K store in Davis, purchased $10 worth of gas, and walked outside. Robinson and defendant then came back into the store. Defendant asked the clerk, Eric Jarvi, for some Hennessey. Jarvi replied that they did not have any hard liquor and directed defendant to the beer display. Jarvi was suspicious of the two men and dropped some cash from the cash drawer into the safe. Moments later, both men approached Jarvi with handguns. Defendant demanded Jarvi open the register, telling him, “Give me the cash or you’re going to die.” Jarvi opened the register, took out the cash drawer, and placed it on the counter. The men then asked about the safe. Jarvi explained that the safe was on a timer and would not open for 10 minutes. The men waited for the 10 minutes to pass, after which Jarvi complied with their demands to unlock the safe. The men warned Jarvi not to call the police and took cigars and lottery tickets from behind the counter.
While they were waiting, Hawa Safi entered the store to make a purchase. Defendant approached her, lifted his shirt to display his gun, and directed her to stand by the counter. She complied. A few minutes later, David “Max” Placencia came in to purchase coffee. Defendant approached him, displayed his gun, and directed Placencia to stand at the counter with the others. Placencia complied. When Jarvi was finally able to open the safe, he removed between $7,000 and $8,000, put the money in a bag, and gave it to the robbers, who ran out the door.
The Circle K robbery was captured on surveillance video. The video, and still photographs taken from the video, were presented as evidence. Witnesses saw the dark-colored SUV in the parking lot at the time of the robbery. Both Jarvi and Placencia positively identified defendant at trial.
Defendant’s fiancée, Candice Greer, testified that at around 1:30 a.m. on March 21, 2007, Robinson and Cisneros arrived at the Woodland apartment she shared with defendant. They were in a dark SUV she had not seen before. While defendant was upstairs in the restroom, Greer saw that one of the two men had a handgun. Defendant left with them and did not return that night.
Defendant’s friend, Barbara Parlette, told Detective Mike Glaser that on an occasion in March 2007 defendant, Robinson, and a “Hispanic-mix” male had come to her apartment with a garbage bag containing money. The men split the money three ways. An inmate from the Yolo County jail, Daman Rahal, testified that he attempted to solicit information from defendant while they were in jail in the hope of getting lenient treatment on his own case. Rahal said defendant told him he did “something stupid” at a Circle K store, that he and his cohorts tried to carjack an Escalade, and that he came up with “seven and a half racks.” Rahal also said defendant told him that his cohorts were just “soldiers” and that defendant “called the shots.” Rahal also acknowledged that he met Robinson and Cisneros in the jail, and he knew the two of them were upset with defendant because they knew defendant had implicated them to the police.
Defendant was charged with attempted murder of Herrera (count 1), attempted carjacking of Herrera (count 2), shooting at Herrera’s vehicle (count 3), second degree robbery of Jarvi at the Circle K (count 4), forceful false imprisonment of Placencia and Safi (counts 5 and 6), second degree robbery of DeCervantes and Rosas at the United Travel Plaza (count 7), attempted second degree robbery of Hernandez (count 8), and participation in a criminal street gang (count 9). The jury found defendant guilty of counts 4, 5, 6, and 7 and found defendant not guilty on the remaining counts. The jury found the personal use of a firearm allegations attached to counts 4, 5, and 6 to be true, but found the firearm allegation attached to count 7 not true.
The trial court sentenced defendant to an aggregate term of 20 years in state prison, as follows: the upper term of five years on count 4; two consecutive terms of eight months each (one-third the middle term) on counts 5 and 6; a consecutive term of one year (one-third the middle term) on count 7; a consecutive 10-year term for the firearm enhancement on count 4; and two consecutive terms of 16 months each for the firearm enhancements on counts 5 and 6.
DISCUSSION
Defendant contends the trial court erred in admitting the statements he made during a March 26, 2007, interview with law enforcement officers. He contends his statements were unlawfully elicited in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) after he had invoked his right to consult an attorney.
“‘In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda v. Arizona, supra, 384 U.S. 436, we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we “‘give great weight to the considered conclusions’ of a lower court that has previously reviewed the same evidence.” [Citations.]....’” (People v. Whitson (1998) 17 Cal.4th 229, 248.)
Once a suspect receives Miranda warnings, he “is free to exercise his own volition in deciding whether or not to make a statement to the authorities.” (Oregon v. Elstad (1985) 470 U.S. 298, 308 [84 L.Ed.2d 222, 232].) If he requests the assistance of counsel at any time during the interview, “‘the interrogation must cease until an attorney is present.’” (Edwards v. Arizona (1981) 451 U.S. 477, 485 [68 L.Ed.2d 378, 386] (Edwards), quoting Miranda, supra, 384 U.S. at p. 474.)
Defendant was interviewed by several detectives in a lengthy session on March 23, 2007. During the first few hours of this interview, defendant maintained his innocence and provided little information to the officers. Later in the interview, however, he made incriminating statements regarding some of the charged events. Defendant was also interviewed by Detective Glaser on March 26, 2007. During this interview, defendant made numerous incriminating statements.
Defendant moved to suppress most of his statements, arguing that he had invoked his right to remain silent 90 minutes into the March 23, 2007, interview and his right to counsel on two occasions during the March 26, 2007, interview. The trial court ruled that all of defendant’s statements in both the March 23 and the March 26, 2007, interviews were admissible, but at trial, the prosecution introduced only the March 26, 2007, interview.
The interviews were recorded on video and provided, along with transcripts, to the trial court at a hearing on defendant’s motion to exclude his statement. We have reviewed the video as well as the transcripts of the interviews.
The March 26, 2007, interview with Detective Glaser began with Glaser reading defendant his Miranda rights. Defendant then admitted that in the early morning hours on March 21, 2007, Robinson had picked him up from his apartment in Woodland in a black, Suburban-type vehicle. Defendant stated that Robinson was with another person, whom defendant did not know that well.
At this point, the following exchange took place:
“Q Would you recognize a picture of him if I showed you?
“A (inaudible)
“Q Was it Cisneros?
“A Let me see it. I want to talk to my attorney and stuff, is it too late for me, you think I can have an attorney appointed here right now?
“Q Yeah, you can have an attorney at any time during any interview okay. What I’m trying to determine is you already admitted to the detectives some of the things you did. Okay. That you were present with these guys when they did this.
“A Yeah.
“Q I’m gonna tell you right now, it’s important for me to find out when I investigate this, the robbery up in Dunnigan at the United Truck Stop, it’s important for me and for you for me to find out what your involvement was. Because there was involvement in that case that, you know, depending on how you say your involvement was, uh, there was at least three people there. So it’s important for me and for you to get a statement from you to tell me how’d it go down. And at any point during any of these interviews you can have an attorney. That’s why we try to let you know that. But I can tell you right now your attorney’s not going to let you have a statement. They’re not going to let you tell me what your involvement was in that case. You’ve already told the other detectives your involvement...
“A I was trying to tell the other people that, you know what I mean, what’s going on and shit, but you know what I mean, they won’t believe me when I was tellin them this shit. They kept me talking about attempted murder and stuff like that on me. You know.”
The interview continued, and defendant continued providing his version of the events, making several self-incriminating statements. Detective Glaser then allowed defendant to speak on the telephone with his fiancée, Candice. The telephone conversation was also recorded. During his telephone conversation, Candice suggested defendant ask “when we can talk to a lawyer.” Defendant then asked, “Yeah, when can I talk to a lawyer?” Detective Glaser responded, “When they arraign you tomorrow morning, you’ll have a lawyer assigned to you. Okay. You can request a lawyer at any time during your interview okay. But...” Defendant interrupted and told Candice he had court the next day, and the discussion turned to where and when he was to appear. Thereafter, he continued to discuss with Candice the events underlying his ultimate conviction. After defendant finished his telephone conversation, Detective Glaser continued with the interview, during which defendant made additional self-incriminating statements.
In ruling on defendant’s motion to suppress his statements to Detective Glaser, the trial court specifically found that at the time of the interview, defendant was in custody, the interviews were interrogations conducted by law enforcement, and defendant was read his Miranda rights. The trial court denied the motion, however, because it found defendant did not unambiguously and unequivocally state he wanted to have an attorney present and that the interview should cease.
Defendant asserts the trial court erred because his initial request for counsel was unequivocal. We agree.
“The applicability of the ‘“rigid” prophylactic rule’ of Edwards requires courts to ‘determine whether the accused actually invoked his right to counsel.’ [Citation.] To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. [Citation.] Invocation of the Miranda right to counsel ‘requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.’ [Citation.] But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, [the comment does] not require the cessation of questioning. [Citations.] [¶] Rather, the suspect must unambiguously request counsel. As we have observed, ‘a statement either is such an assertion of the right to counsel or it is not.’ [Citation.] Although a suspect need not ‘speak with the discrimination of an Oxford don,’ [citation], he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. [Citation.]” (Davis v. United States (1994) 512 U.S. 452, 458-459 [129 L.Ed.2d 362, 371].)
Applying these rules, we conclude defendant’s request for an attorney was sufficiently clear and unequivocal so as to require the officer to stop his questioning. In reaching our conclusion, we consider Supreme Court precedent.
In People v. Crittenden (1994) 9 Cal.4th 83 (Crittenden), our Supreme Court held that the defendant’s question, “Did you say I could have a lawyer?” was not an unequivocal request for an attorney and was not an invocation of Miranda rights. (Id. at pp. 123, 130-131.) Similarly, in People v. Johnson (1993) 6 Cal.4th 1 (Johnson), the court held that the defendant’s statement, “Maybe I ought to talk to my lawyer, you might be bluffing, you might not have enough to charge murder,” was not a sufficient invocation. (Id. at pp. 27, 30, overruled on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 878-879.)
Defendant’s statements in this case are legally distinguishable from the statements in Crittenden and Johnson that were found insufficient to constitute an unequivocal assertion of the right to counsel. Here, defendant clearly stated, “I want to talk to my attorney.” His question regarding whether it was too late to have an attorney and if one could be immediately appointed would not lead a reasonable officer to understand only that defendant might want an attorney. Viewed individually and as a whole, his statement and questions were sufficiently unequivocal as an invocation of his right to have an attorney present during questioning so as to require cessation of the interrogation. (Cf. U.S. v. De La Jara (9th Cir. 1992) 973 F.2d 746, 750; Robinson v. Borg (9th Cir. 1990) 918 F.2d 1387, 1391-1393; Shedelbower v. Estelle (9th Cir. 1989) 885 F.2d 570, 571-573.) Accordingly, defendant’s subsequent statements were the product of a Miranda violation and the trial court erred in denying defendant’s motion to exclude the statements on that ground.
Although the introduction of defendant’s incriminating statements was error, he is not entitled to have the judgment reversed if we determine the error was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 295, 306-312 [113 L.Ed.2d 302, 322, 329-333]; People v. Sims (1993) 5 Cal.4th 405, 447.) To determine whether federal constitutional error was harmless beyond a reasonable doubt, we must examine the record and decide whether the error had a substantial and injurious effect or influence in determining the jury’s verdict. (O’Neal v. McAninch (1995) 513 U.S. 432, 435-436 [130 L.Ed.2d 947, 952].) If we have a “‘grave doubt’ about whether an error affected a jury in this way, [we] must treat the error as if it did so.” (Id. at p. 438.)
Under the circumstances of this case, we are satisfied beyond a reasonable doubt that the introduction of defendant’s statements during the interview was harmless with respect to the charges surrounding the Circle K robbery. The same does not hold true with respect to the United Travel Plaza robbery.
In his statements, defendant admitted that he was, at least in some way, a participant in the events that occurred at both Circle K and United Travel Plaza. However, even in the absence of those admissions, the evidence was simply overwhelming that he participated in the robbery at Circle K. Defendant’s fiancée testified that earlier on the night of the Circle K robbery, Robinson and Cisneros had arrived at their apartment in a dark SUV she had not seen before, and defendant left their apartment with the men. Jarvi, Placencia, and Safi each noticed the black or dark SUV in the parking lot of the Circle K store at the time of the robbery. Prior to defendant’s invocation of his right to counsel, he admitted Robinson and another man picked him up in a black SUV the night of the Circle K robbery. Both Jarvi and Placencia positively identified defendant at trial as one of the robbers with a gun at Circle K. And significantly, defendant was captured on a surveillance video, which was shown to the jury, committing the Circle K robbery. Still photographs from the video were also shown to the jury.
In view of this evidence, and in the absence of any contrary evidence, any reasonable jury would have been compelled to find that defendant was one of the robbers at the Circle K store.
On the other hand, absent defendant’s admissions, the evidence that he participated in the United Travel Plaza robbery was not overwhelming. The prosecution’s theory was that Robinson and Cisneros carjacked Reamer and took his SUV. They then picked up defendant at his apartment in Woodland, and the three men went to a Quik Stop in Woodland. Robinson, who was seen on a surveillance video, went inside the Quik Stop store and looked around. The three men then chased Herrera in Reamer’s SUV as Herrera left the Quik Stop parking lot. Two of the men emerged from the SUV with guns and fired at Herrera, who managed to escape. The three men then went to the United Travel Plaza store in Dunnigan. There, two of the men entered the store with guns, where they attempted to rob Hernandez and succeeded in robbing store clerks DeCervantes and Rosas. The three men then went to the Circle K in Davis and committed a robbery at that store. Thereafter, the three men went to Parlette’s apartment, where they divided the money from the robberies. The prosecution relied significantly on defendant’s admissions during his interview with police to establish his presence at each of the locations.
None of the witnesses could identify defendant except those who were present in the Circle K store, which was the last location in the crime spree. Defendant’s fiancée stated that Robinson and Cisneros picked defendant up around 1:30 a.m., and the witnesses at the Circle K store testified the robbery occurred between 1:15 and 2:00 a.m. The jury found defendant not guilty of the charged offenses related to the shooting at Herrera at the Quik Stop and the attempted robbery of Hernandez at United Travel Plaza that occurred earlier in the crime spree. They also found the allegation that defendant personally used a firearm at United Travel Plaza not true, despite the fact that Hernandez and DeCervantes testified that both of the robbers inside the United Travel Plaza store had used guns.
In light of these facts, we cannot conclude beyond a reasonable doubt that the jury would have found defendant guilty of the earlier robbery at United Travel Plaza in Dunnigan, absent admission of his inculpatory statements.
DISPOSITION
The judgment is reversed as to count 7 (second degree robbery) and the consecutive sentence attached to that count is vacated. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BUTZ, J. CANTIL-SAKAUYE, J.