Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA20834. Douglas M. Elwell, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
Defendant was charged with one count of first degree murder and one count of discharge of a firearm with gross negligence. (§§ 187, subd. (a), 246.3.) A jury convicted defendant of second degree murder and the firearm count. The jury found true the special allegations regarding use of a firearm and infliction of great bodily injury (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (d), 12022.7, subd. (a).) The court sentenced defendant to a total prison term of 46 years to life, 40 years on count 1 and six years on count 2.
On appeal, defendant challenges the admissibility of his statements to the police and the evidence of one prior uncharged shooting. Regarding count 2, he contends the upper term of three years was improper (§ 246.3) and there was insufficient evidence to support the three-year enhancement for great bodily injury. (§ 12022.7, subd. (a).)
Defendant concedes his claim regarding the stay of the firearm enhancement on count 1 (§ 12022.53, subd. (d)) has been decided against him. (People v. Palacios (2007) 41 Cal.4th 720.)
We agree there was insufficient evidence of great bodily injury and reverse the true finding on the enhancement for count 2. In consequence, the three-year upper term for count 2 was not justified. We remand to the trial court for resentencing on count 2 under the current sentencing law. (People v. Sandoval (2007) 41 Cal.4th 825, 835-837; § 1107, subd. (b); Cal. Rules of Court, rules 4.405-4.452.) Otherwise, we affirm the judgment.
2. Factual and Procedural Background
On Halloween night in 2003, during a dispute at a Fontana party, defendant, a leader of the Asylum “party crew,” shot and killed Jesse Avalos, a gang member from the San Fernando Valley. Defendant also grazed a bystander, Jesse Chavez, on his left arm.
A party crew is similar to a street gang.
In a videotaped statement to a police polygraph examiner, defendant admitted that he was trying to break up a fistfight between two of his fellow crew members, George Napoles and Ernesto Carillo. Avalos intervened and encouraged the fight to continue. Another friend, Orlando, handed defendant a gun and defendant, fearful that Avalos was armed, shot Avalos and injured Chavez.
3. Defendant’s Statements to the Police
Defendant’s principal arguments on appeal pertain to his statements made during a polygraph examination.
San Bernardino County detective, Clayton Bailey, testified that he and another detective, Scott Schultz, contacted defendant at his home and asked him to submit to an interview about what happened at the party. Defendant agreed and accompanied officer Bailey in his vehicle to the sheriff’s department. The videotaped police interview began at 5:20 p.m. and was followed by a polygraph examination.
The police interview by Bailey and another detective, Don Lupear, began with Bailey telling defendant he was not under arrest and noting that he had come in voluntarily. Initially, defendant blamed the shooting on a person called “Kros.” At approximately 5:45 p.m., Bailey told defendant “we’re pretty much done . . . all I need is . . . would you be willing to take a polygraph, just we’ve, we’ve talked to a lot of people. Like we had talked to ya earlier and just a standard thing that we[’ve] been asking everybody is to take the polygraph that way we can get them cleared so we can go after Kros.” Defendant declined, saying he had to pick up his child. Lupear and Bailey insisted the polygraph needed to be completed so they could pursue Kros. Defendant continued to resist, explaining repeatedly he did not want to be involved and he needed to talk to his dad.
The detectives began pressing defendant to tell the truth, “the real deal.” Bailey reiterated, “be straight and say what happened,” “We know what the deal is. We know what happened,” and “We talked to some of your crew.” Bailey accused defendant of being dishonest. Lupear told defendant his story did not match other witnesses’ versions. Bailey persisted in telling defendant he was not being truthful. When defendant asked, “Can I talk to my lawyer or something,” the detectives ignored him. Defendant again denied having a gun and shooting Avalos. Lupear insisted that 30 people said differently.
A third officer, Tesselaar, entered the interview room and announced that he had reviewed all the reports and interviews and defendant was lying because defendant had been identified as the shooter. The detectives continued to accuse defendant and defendant continued to deny having performed the shooting.
Finally, Lupear announced “we told you what’s going on. . . . We told you what we think. We told you what our evidence is” and defendant asked “I’m arrested?” Then Bailey read defendant his Miranda rights. Defendant requested to “speak to my lawyer or somebody.” Lupear explained defendant was being charged with murder and asked whether he wanted an attorney, to which defendant replied, “Yeah.”
Miranda v. Arizona (1966) 384 U.S. 436.
The detectives started to conduct a patdown search. Then defendant asked, “Let’s say if I did shoot him . . . If I did shoot him and you know for the reason that I did, I would, would I get in trouble, what would happen?” The detectives encouraged defendant to continue speaking without an attorney. Defendant offered to describe “the real, real version,” in which he said Avalos interfered with the fight between Napoles and Carillo and Orlando shot Avalos.
Bob Heard conducted the polygraph examination. Defendant continued to blame the shooting on Orlando. Heard explained the concept of self-defense to defendant and urged him to admit the shooting. Defendant then gave the statement in which he ultimately admitted shooting three times, killing Avalos and injuring Chavez.
After an Evidence Code section 402 hearing, the court ruled the first part of the police interview, until Tesselaar entered the room, was noncustodial. The court also determined defendant did not make any inculpatory statements before he was given the Miranda warning. Therefore, defendant’s statements made during the polygraph examination were admissible.
a. Miranda Issue
As stated in People v. Ochoa (1998) 19 Cal.4th 353, 401: “The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact.” The appellate court independently reviews the question of whether there was a custodial interrogation: “‘“We must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citation.]”’” (People v. Crittenden (1994) 9 Cal.4th 83, 128, citing People v. Johnson (1993) 6 Cal.4th 1, 25.)
The factors to be considered involve the circumstances surrounding the interrogation and whether a reasonable person would have felt he was not at liberty to terminate the interrogation and leave. (People v. Ochoa, supra, 19 Cal.4th at pp. 401-402.) The trial court makes a factual determination of whether there was a formal arrest or restraint on freedom of movement: “Accordingly, we apply a deferential substantial evidence standard [citation] to the trial court’s conclusions . . . . Having determined the propriety of the court’s findings under that standard, we independently decide whether ‘a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.’ [Citation.]” (Ochoa, supra, at p. 402.)
The parties agree the relevant circumstances include, without limitation: (1) whether the suspect has been formally arrested or the indicia of arrest are present; (2) whether the investigation has focused on the suspect; (3) the length of the detention; (4) the location; (5) the ratio of officers to suspects; and (6) the demeanor of the officers and the nature of the questioning. (People v. Forster (1994) 29 Cal.App.4th 1746, 1753-1754; People v. Morris (1991) 53 Cal.3d 152, 197, disapproved in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1, to the extent it “may be read to suggest that an officer’s subjective focus of suspicion is an independently relevant factor in establishing custody . . . .”) Furthermore, “[n]o one factor is dispositive. [Citation.] And, contrary to defendant’s argument, the mere fact that he was a suspect does not establish custodial interrogation.” (Morris, supra, at p. 197.)
In the present case, according due deference to the trial court’s factual determinations, we do not perceive that defendant was subject to a custodial interrogation during the first part of the questioning until Tesselaar made his announcement concerning defendant’s identification as the shooter. Defendant voluntarily accompanied detective Bailey to the sheriff’s department. He was advised he was not under arrest. He was 22 years old and he knew he could ask to speak to a lawyer even before he was so advised. His assertion that he needed to leave to pick up his child also suggested that he believed he was free to depart. The questioning lasted less than an hour before he was formally arrested. Taken altogether, there is substantial evidence to support the trial court’s conclusion that defendant was not subject to a custodial interrogation during the first part of the questioning even if he was the sole or primary suspect. Furthermore, defendant did not make any inculpatory statements before receiving Miranda admonitions. Therefore, his post-Miranda confession was not subject to exclusion. (Oregon v. Elstad (1985) 470 U.S. 298, 309, 314, 318.)
b. Coercion
In a related argument, defendant maintains he was coerced by police promises of leniency into making an involuntary confession. According to our independent review, the record does not support his contention: “It is the duty of a reviewing court to examine the uncontradicted facts in order to determine independently whether a confession was voluntary.” (People v. Trout (1960) 54 Cal.2d 576, 583, overruled on another point in People v. Cahill (1993) 5 Cal.4th 478, 509.)
It was not wrong for the police to tell defendant he could receive an advantage by cooperating with their investigation and taking the polygraph exam: “The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.” (People v. Ray (1996) 13 Cal.4th 313, 340.) In the present case, the police interview had ended when defendant voluntarily initiated a resumption of the questioning.
Nor was it wrong for Heard to explain that, if defendant had acted in self-defense, it could have a mitigating effect on defendant’s circumstances: “When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity.” (People v. Hill (1967) 66 Cal.2d 536, 549.)
We also do not agree defendant was so legally unsophisticated or that brief passing references by Bailey to defendant’s baby or by Heard to what “God knows and you know” had any influence on defendant’s decision to confess to Heard: “[N]one of the police comments here appear to have been calculated to exploit a particular psychological vulnerability of defendant; no acute religious anxiety or sense of guilt was apparent from prior questioning, and defendant was not particularly moved by appeals to family, . . . Thus, regardless of the propriety of the officers’ statements, they simply do not appear to have been a motivating cause behind defendant’s subsequent confession.” (People v. Kelly (1990) 51 Cal.3d 931, 953.)
4. Uncharged Offense
The court allowed the prosecution to present evidence that, at another party two years before this incident, defendant fired a shotgun in the air in response to a shooting by a rival gang member. The court held the evidence was more probative than prejudicial on the issue of motive. The court instructed the jury that defendant was never charged with a crime for that shooting and the jury should consider it only as to motive in the present case.
Not surprisingly, defendant now asserts that the evidence of the other shooting should not have been admitted. Evidence of an uncharged act may be admitted to show motive or intent. (People v. Hayes (1990) 52 Cal.3d 577, 616-617; Evid. Code, § 1101, subds. (a) & (b).) The appellate court reviews for abuse of discretion the trial court’s determination the evidence was more probative than prejudicial. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).)
Applying this standard, we find no abuse of discretion. The evidence was admissible under Evidence Code section 1101 to show motive and intent: “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Here the uncharged-crimes evidence showed that defendant had previously fired a gun for gang- or crew-related purposes and that, in this instance, he did so again in order to defend his crew and crew members. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1210-1212.) In both instances, the offenses involved a shooting occurring under similar circumstances: a fight at parties attended by defendant and members of Asylum, his party crew. The two incidents were not remote in time. (Id. at p. 1212.)
Furthermore, any error was harmless. Overwhelming evidence implicated defendant. Little evidence supported his claim of self-defense. The victim never displayed a gun. He was obnoxious but offered no real threat. After the shooting, defendant taunted his victim: “Mother fucker, wanna talk shit now, mother fucker.” Based on the evidence, a more favorable result for defendant was not reasonably probable. (People v. Welch (1999) 20 Cal.4th 701, 750.) For the same reasons, any error was harmless beyond a reasonable doubt. (Rodrigues, supra, 8 Cal.4th at p. 1120, fn. 23.)
5. Sufficiency of Evidence for Enhancement on Count 2
Chavez, the victim on count 2, was nicked on the arm. He was treated and bandaged at the hospital. At trial, he displayed a scar the size of a nickel. Defendant argues the appellate court should reverse the true finding on the enhancement for great bodily injury. (§ 12022.7, subd. (a).)
We agree. Chavez’s injury was extremely trivial and did not legally constitute great bodily injury. (People v. Caudillo (1978) 21 Cal.3d 562, 588-589; overruled on another point in People v. Martinez (1999) 20 Cal.4th 225, 229; People v. Miller (1977) 18 Cal.3d 873, 883, overruled on another point in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8; People v. Nava (1989) 207 Cal.App.3d 1490, 1496.)
The cases cited by the People all involved far more serious injuries than that described here. (People v. Escobar (1992) 3 Cal.4th 740, 750 [penetrating permanent injury]; People v. Wolcott (1983) 34 Cal.3d 92, 107 [significant gunshot wounds]; People v. Lopez (1986) 176 Cal.App.3d 460, 462-465; People v. Johnson (1980) 104 Cal.App.3d 598, 609 [fractured jaw].)
We recognize the existence of great bodily injury is a question of fact for the jury. (People v. Escobar, supra, 3 Cal.4th at p. 450.) But we cannot conscionably agree that sufficient or substantial evidence supports the jury’s finding in this instance where the victim sustained at worst a superficial, transient wound. (People v. Trevino (1985) 39 Cal.3d 667, 694, disapproved of on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1221; People v. Veitch (1982) 128 Cal.App.3d 460, 467-468.)
6. Upper Term on Count 2
The court imposed the upper term of three years on count 2, instead of the middle term of two years, based on the jury’s true finding on the enhancement for great bodily injury: “[T]he jury, finding Mr. Santos . . . guilty of inflicting great bodily injury, necessarily found factually under the facts of this case as the evidence established it that Mr. Santos had committed a crime of great violence disclosing a high degree of callousness that is firing into or in the direction of a crowd of people. [¶] Inasmuch as I think that the jury necessarily made that implied finding by virtue of its guilty verdict and its true finding that is an exception to Blakely which would allow the Court to impose the aggravated term without a further and separate jury proceeding on that issue.”
Blakely v. Washington (2004) 542 U.S. 296.
The court also mentioned the fact that defendant was on probation for a misdemeanor at the time of the offense but the court did not base its sentencing choice on that factor. The probation of 36 months had been imposed based on the misdemeanor offense of unlawful sexual intercourse with a minor (§ 2561.5, subd. (a)), which occurred in June 2001 when defendant was 19 years old.
Because we conclude the true finding on the enhancement for great bodily injury should be reversed, that aggravating factor is no longer available to justify the imposition of the upper term.
Nor are we convinced that being on probation for a misdemeanor sexual offense, defendant’s only other criminal conviction, qualifies as recidivism justifying the upper term without a jury finding. (Cunningham v. California (2007) ___ U.S. ___, 127 S.Ct. 856; People v. Sandoval, supra, 41 Cal.4th at pp. 835-837; People v. Black (2007) 41 Cal.4th 799, 819-820.) Defendant did not have a lengthy history of multiple felonies and parole violations. The nature of his present offense was entirely different in kind and character than his single former offense. (People v. Yim (2007) 152 Cal.App.4th 366, 369-371; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1515-1517.) No aggravating factor on this record supported the upper term.
7. Disposition
We affirm the convictions on counts 1 and 2 and defendant’s 40-year sentence on count 1. But we reverse the true finding on the enhancement for great bodily injury on count 2 and vacate the sentence for the upper term of three years. We remand to the trial court for resentencing on count 2.
We concur: McKinster, Acting P. J., King, J.