Opinion
E031903.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM GILBERT SALAZAR, Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Douglas C. Lee, Deputy Attorney General, for Defendant and Respondent.
1. Introduction
Defendant William Gilbert Salazar appeals from a judgment convicting him of second degree murder and attempted murder. On appeal, defendant claims the trial court erred in admitting his police statement in violation of his constitutional rights under Miranda. Defendant also claims that the trial court erred in imposing and staying more than one firearm enhancement for the second degree murder offense.
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
We conclude that the court properly admitted the police statement because defendants comments after hearing his Miranda rights did not amount to an unambiguous invocation of his right to an attorney. We, however, conclude that the court erred in imposing sentence for multiple enhancements on a single count. Therefore, we remand to the trial court to amend the abstract of judgment by striking the additional enhancements. In all other respects, we affirm defendants convictions.
2. Factual and Procedural History
On June 16, 2000, Joel Martinez and his cousin, Richard Mendez, and friend, Cesar Diaz, went to the Inland Center Mall. As the three men were about to leave the mall, Martinez, who stood about 10 feet away, noticed that Mendez and Diaz were engaged in a verbal dispute with defendant and two other men. Mendez told the three men, "I aint going to argue with you or anything in here. Well go outside." Martinez then noticed defendant and his companions following behind Mendez and Diaz as they walked toward the exit near the Macys Department Store. After walking ahead of his companions, defendant lifted his shirt and pulled out a semi-automatic handgun. Upon noticing the gun, both Martinez and Mendez rushed defendant. Before Mendez could grab a hold of defendant, defendant fired his weapon and shot Mendez in the back of his head.
After defendant shot Mendez, Martinez grabbed defendant and carried him outside. After reaching a safe distance away from the crowded mall, Martinez looked down and noticed defendant pointing the gun at the left side of his chest. As Martinez loosened his hold of defendant and attempted to reach for the gun, defendant fired a second shot and then ran away.
After checking on his cousin inside the mall, Martinez ran out in search for defendant and his two companions. A man gave Martinez a ride and, as the two exited the parking lot, Martinez noticed one of defendants companions driving a blue Ford sedan. Martinez noted the license plate number and called the police.
About two months later, the police located defendant and placed him under arrest.
In the first amended information, the San Bernardino County District Attorney charged defendant, in count 1, with the murder of Richard Mendez, the firearm enhancement for discharging a handgun and causing Mendezs death, and a criminal street gang enhancement. The district attorney also charged defendant, in count 2, with the attempted premeditated murder of Joel Martinez, the firearm enhancement for personally using a handgun, and a criminal street gang enhancement.
Penal Code section 187. All further statutory references will be to the Penal Code unless otherwise stated.
Section 12022.53, subdivision (d).
Section 186.22, subdivision (b)(1).
Sections 187 and 664, subdivision (a).
Sections 12022.5, subdivision (a)(1), and 12022.53, subdivision (b).
Section 186.22, subdivision (b)(1).
On May 17, 2002, the jury found defendant guilty of second degree murder, a lesser included offense of the crime charged in count 1, and attempted premeditated murder as charged in count 2. The jury found true both firearm enhancements, but found not true both criminal street gang enhancements. As to count 1, the jury also found true an additional firearm enhancement that was charged in the original information, but not included in the amended information. The court then sentenced defendant to a total prison sentence of 40 years to life, followed by a term of life with the possibility of parole, plus another term of 10 years.
Sections 12022.5, subdivision (a)(1), and 12022.53, subdivision (b).
3. Miranda
Defendant claims the trial court erred in admitting his police statement in violation of his constitutional rights under Miranda.
During the police interview, Detective Brian Cartony read to defendant his rights: "You have the absolute right to remain silent. Anything you say can and will be used as evidence against you in court. You have the right to be represented by an attorney, consult with him before making any statements or answering any questions, and you have the right to have an attorney present during any questioning. If you cannot afford an attorney, one will be appointed by the court, free of charge, to represent you before any questioning, if you desire." After defendant acknowledged that he understood his rights, the following exchange took place:
"Detective Cartony: . . . And with these rights in mind, are you willing to talk to me about the charges? Which, thats what were here to talk about-we need to talk about those. Are you willing to talk about that?
"William Salazar: Well, it depends on the questions.
"Detective Cartony: Okay, well, thats up to you to answer. But, you know . . .
"William Salazar: All right.
"Detective Cartony: So, you-do you want to talk to me?
"William Salazar: Well, Ill talk to you, in a-in a way.
"Detective Cartony: Um-hm.
"William Salazar: If I dont understand you, I wont answer the question.
"Detective Cartony: Oh, sure. Yeah, if-how you say, I mean, were just talkin.
"William Salazar: Thats right.
"Detective Cartony: So, you know, if theres something you dont understand, I definitely want you to ask me. I-I want you to do that. I want you to be-like I said, Im not-Im not here to trick you in any way, or anything like that, I just want to talk to you about whats going on. And, I think, you want to talk to me.
"[P] . . . [P]
"William Salazar: Is there any-is there any attorneys around?
"Detective Cartony: No, its not here, no. This is, you know, youre at the police department, now, right?
"William Salazar: Yeah.
"Detective Cartony: Yeah, thats where they brung ya, it was to the police department.
"William Salazar: Where do I sign, right here?
"Detective Cartony: Um-hm. Here, right here.
"William Salazar: Can I write something right here, too?
"Detective Cartony: Sure. What do you want to write?
"William Salazar: How do you spell, available?
"Detective Cartony: Available? A V A I L A B L E. Okay. Now, in writing, here, you said: No attorney was available.
"William Salazar: Yeah.
"Detective Cartony: You asked me if there was an attorney, here, available at the police department. I dont have an attorney. Is-is that what you were asking.
"William Salazar: Yes.
"Detective Cartony: With that there? Because, obviously, I can answer any of your questions, when it . . .
"William Salazar: Like that. Like, (unintelligible)
"Detective Cartony: If you have questions of me, but . . .
"William Salazar: (unintelligible) like this right here, so Im gone write that there, cause I asked you.
"Detective Cartony: Okay. Okay. But, this is your response. I had asked, do you understand these rights, you said, yeah. I asked if you wanted-were willing to talk to me about to me about the charges against you. . .
"William Salazar: Im willing to talk to you.
"Detective Cartony: Huh?
"William Salazar: I want-I want to talk to you, in a way, like I said. But, you know, I just wanted-I just wanted let it known that the questions that I dont answer is because there was no attorney available.
"Detective Cartony: Okay. But, youre not asking for an attorney. You just . . .
"William Salazar: No. No Im not asking . . .
"Detective Cartony: Youre just sayin, because, you may have questions of me.
"William Salazar: Yes."
During the evidentiary hearing, defendant objected to the admission of his police statement on the ground that his comments to Detective Cartony amounted to a request for counsel. The prosecutor explained that, after defendant made his comments concerning the availability of an attorney, Cartony clarified the matter and defendant again waived his rights and agreed to speak with him. After hearing the transcript of the above exchange and further argument by counsel, the trial court ruled that defendant did not assert his right to counsel, but waived his rights and voluntarily discussed the charges.
In reviewing a trial courts ruling, we accept the trial courts factual findings, including its credibility determinations, if supported by substantial evidence, and we independently determine whether the police legally obtained the challenged statement.
People v. Boyette (2002) 29 Cal.4th 381, 411; People v. Bradford (1997) 14 Cal.4th 1005, 1033, 929 P.2d 544.
Under the state and Federal constitution, an individual who is subjected to custodial police interrogation must be informed of his right to be silent and right to counsel. After being informed of his rights, the individual may knowingly and intelligently waive them and agree to speak with the police. "The waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." In determining whether a defendant waived his rights, the court must consider the totality of the circumstances surrounding the interrogation, including the defendants words, conduct, background, and experience.
Miranda v. Arizona, supra, 384 U.S. at page 444; People v. Whitson (1998) 17 Cal.4th 229, 244, 949 P.2d 18.
People v. Whitson, supra, 17 Cal.4th at page 244.
Moran v. Burbine (1986) 475 U.S. 412, 421, 89 L. Ed. 2d 410, 106 S. Ct. 1135.
People v. Whitson, supra, 17 Cal.4th at pages 245-247, quoting North Carolina v. Butler (1979) 441 U.S. 369, 373-375, 60 L. Ed. 2d 286, 99 S. Ct. 1755 and Fare v. Michael C. (1979) 442 U.S. 707, 724-725, 61 L. Ed. 2d 197, 99 S. Ct. 2560.
When a defendant invokes his rights, the police officers must cease all questioning until the defendant is provided an attorney. While a defendant is not required to use any particular words or conduct, he must, at a minimum, make some statement that can be construed by a reasonable police officer as expressing a desire for the assistance of an attorney. If defendant makes an ambiguous or equivocal reference to an attorney, the officers are not required to stop the interrogation.
People v. Crittenden (1994) 9 Cal.4th 83, 128, 885 P.2d 887; see also Edwards v. Arizona (1981) 451 U.S. 477, 484-485, 68 L. Ed. 2d 378, 101 S. Ct. 1880.
People v. Crittenden, supra, 9 Cal.4th at pages 129-130; see also Davis v. United States (1994) 512 U.S. 452, 459, 129 L. Ed. 2d 362, 114 S. Ct. 2350.
People v. Crittenden, supra, 9 Cal.4th at page 130; see also Davis v. United States, supra, 512 U.S. at page 459.
In viewing defendants comments in context, we conclude that his words did not amount to an invocation of his right to counsel. Rather, defendant simply reserved the right to not answer certain questions based on the fact that there was no attorney present to advise him or explain the questions.
Throughout the interview, Cartony did not engage in any coercive or inappropriate police tactics. After defendant asked if there was an available attorney, Cartony did not provide erroneous or misleading information by stating that there were no attorneys present at the police station. While a defendants constitutional right to counsel entitles the defendant to an attorney during police questioning if one is requested, this right does not mandate that each police station have an attorney present at all times to advise inmates. Based on defendants ambiguous comment, Cartony prudently inquired further to clarify whether defendant actually was making a request for an attorney.
See People v. Boyette, supra, 29 Cal.4th at page 411.
See Duckworth v. Eagan (1989) 492 U.S. 195, 204, 106 L. Ed. 2d 166, 109 S. Ct. 2875.
See Davis v. United States, supra, 512 U.S. at page 461; People v. Scaffidi (1992) 11 Cal.App.4th 145, 153.
Further inquiry revealed a voluntary waiver. When asked whether he wanted to talk to Cartony, defendant responded, "Well, Ill talk to you, in a -in a way." Defendant again confirmed, "Im willing to talk to you." When Cartony specifically inquired of defendant if he was asking for an attorney, defendant unequivocally stated that that was not his intent.
Additionally, defendant was not a novice. As Cartony established prior to reading the Miranda form, defendant had heard his rights before. The record indicates that defendant fully understood his rights. Even defendants comments reveal his reluctance to respond to the questioning in an entirely forthcoming manner. Hence, he reserved the right to be selective in his responses.
We conclude that defendant fully understood and freely and voluntarily waived his Miranda rights. Specifically, we conclude that defendants comments did not amount to an invocation of his right to counsel. Accordingly, the trial court properly allowed the prosecution to use defendants police statement at trial.
4. Enhancements
In challenging the trial courts decision to impose sentence for three firearm enhancements for the second degree murder charge, defendant raises several arguments, including that his sentence violated the prohibition against multiple enhancements under section 12022.53, subdivision (f).
The court sentenced defendant for the firearm enhancements in count 1, as follows: under section 12022.53, subdivision (d), a term of 25 years for discharging a firearm, which caused the victims death; under section 12022.53, subdivision (b), a stayed term of 10 years for personally using a firearm; and, under section 12022.5, subdivision (a)(1), a stayed term of four years for personally using a firearm. Although the district attorney initially charged defendant with all three enhancement allegations, the district attorney omitted all but the section 12022.53, subdivision (d), allegation from the first amended information.
Section 12022.53, subdivision (f), provides: "Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. . . ."
Under the plain language of this provision, a trial court may only impose one firearm enhancement per crime. The trial court therefore erred in imposing sentence for multiple firearm enhancements on the single count of second degree murder. To remedy this sentencing error, the court must strike the 10-year term for the section 12022.53, subdivision (b), enhancement and the four-year term for the section 12022.5, subdivision (a)(1), enhancement.
See People v. Perez (2001) 86 Cal.App.4th 675, 682.
See People v. Bracamonte (2003) 106 Cal.App.4th 704, 712; see also section 654; People v. Reeves (2001) 91 Cal.App.4th 14, 55-56; People v. Moringlane (1982) 127 Cal. App. 3d 811, 818, 179 Cal. Rptr. 726.
See People v. Haykel (2002) 96 Cal.App.4th 146, 151, quoting People v. Harvey (1991) 233 Cal. App. 3d 1206, 1231, 285 Cal. Rptr. 158.
5. Disposition
We remand to the trial court to amend the abstract of judgment by striking the firearm enhancements under sections 12022.53, subdivision (b), and 12022.5, subdivision (a)(1). In all other respects, we affirm defendants convictions.
We concur: McKinster, Acting P. J., and King, J.