People v. Jimenez CA2/4 ( 2013 )

Filed 10/15/13 P. v. Jimenez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B241724
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA089986)
v.
GERMAN JIMENEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert M. Martinez, Judge. Affirmed as modified.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant German Jimenez of three counts of willful, deliberate,
premeditated attempted murder of a peace officer (Pen. Code, §§ 664, 187, subd. (a);
counts 1-3);1 two counts of assault on a peace officer with a semiautomatic firearm
(§ 245, subd. (d)(2); counts 4 & 5); one count of assault upon a peace officer with a
deadly weapon or by force likely to produce great bodily injury (§ 245, subd. (c);
count 6); two counts of willful, deliberate, premeditated attempted murder (§§ 664, 187,
subd. (a); counts 7 & 8); two counts of assault with a semiautomatic firearm (§ 245, subd.
(b); counts 9 & 10); and one count of attempted carjacking (§§ 664, 215, subd. (a); count
11). The jury found true the allegation as to counts 1, 2, 4, 5, 7, and 8 that appellant
personally and intentionally discharged a firearm proximately causing great bodily injury
(§ 12022.53, subds. (c) & (d)), the allegation that as to counts 9 and 10 appellant
personally used a firearm (§ 12022.5) and inflicted great bodily injury as a result of
discharging a firearm from a motor vehicle (§ 12022.55), and that as to count 9 appellant
personally inflicted great bodily injury (§ 12022.7).
The court sentenced appellant to a total of two life terms, plus 145 years to life,
plus 23 years and six months, consisting of the following: 40 years to life on each of
counts 1 and 2 (15 years to life for the substantive offense, plus 25 years to life for the
§ 12022.53, subd. (d) firearm enhancement); 15 years to life on count 3; life on counts 7
and 8 plus 25 years to life for the section 12022.53, subdivision (d) firearm enhancement
as to each count; the upper term of nine years on count 10, plus 10 years for the section
12022.5 firearm enhancement; and four years and six months on count 11 (half the upper
term of nine years). The sentences on counts 4, 5, 6, and 9 were stayed pursuant to
section 654. The remaining enhancements were stricken.
Appellant contends on appeal that, due to his voluntary intoxication, there was
insufficient evidence to support the jury’s finding that appellant formed the specific intent
1 All further statutory references are to the Penal Code.
2
to commit willful, deliberate, premeditated attempted murders of three peace officers and
two other men, and attempted carjacking, and that the trial court erred by admitting
appellant’s statement to detectives purportedly taken in violation of appellant’s Miranda2
rights. Appellant also contends and the Attorney General correctly concedes that the trial
court erred by imposing a consecutive sentence as to count 10, assault with a
semiautomatic firearm, when the factual basis for that crime arose out of the same
indivisible course of conduct as count 8, attempted murder, and therefore the sentence as
to count 10 should have been imposed and stayed pursuant to section 654. We are not
persuaded by appellant’s contentions as to the specific intent crimes and admission of his
statement. However, because we find the trial court erred by imposing sentence as to
count 10, we direct the trial court to modify its judgment accordingly. In all other
respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution Evidence
In the late afternoon on May 28, 2010, Javier Gonzalez and Abraham Carrasco
were driving a company van to their workplace when they noticed a dark grey Malibu
driving erratically. As Gonzalez drove the van into an intersection, the Malibu attempted
to pass and collided with the van. The van and the Malibu, which was being driven by
appellant and contained one passenger, pulled over to the curb. Appellant refused to give
Gonzalez his license and insurance information, saying “Fuck you,” and “I’m not giving
you shit.” Carrasco photographed appellant’s license plate number. Appellant pointed at
Gonzalez and Carrasco and said, “I’m going to get you guys,” and then drove away.
Gonzalez called the police.
Police Officer Rick George, a motorcycle officer, responded to the collision.
Officer George parked his motorcycle next to the van, and Gonzalez and Carrasco
showed him a picture of the Malibu’s license plate.
2 Miranda v. Arizona (1966) 384 U.S. 436.
3
Appellant returned, although with no passenger in the car, and parked the Malibu
behind the van. Officer George asked appellant to step out of his car and provide his
information, but appellant did not do so. Officer George called for backup. Corporal
Glen Eugenio responded to the scene on his motorcycle. As Corporal Eugenio tried to
speak to appellant, appellant pulled away from the curb, steered around the van, drove his
car into a driveway just in front of the van, and stopped. Appellant then extended his
right arm in the direction of his open passenger side window and fired a handgun three or
four times at Officer George, Gonzalez, and Carrasco. Gonzalez immediately began
running and tore a ligament in his right knee. Carrasco ran and hid behind the van but
was hit in the lower leg with two bullets.
Using as cover a big rig stopped in the left-hand turn lane, Corporal Eugenio fired
at appellant. Officer George ran toward appellant alongside the van, then ran across the
street to join Corporal Eugenio, also firing back at appellant. Appellant backed out of the
driveway and drove on the wrong side of the road directly toward the officers. Fearful
that appellant would run over them, they dove under the big rig. Appellant continued to
shoot at them, and they fired back. Officer George was struck by a bullet in the right
arm, severing his ulnar artery and nicking his ulnar nerve, which resulted in permanent
nerve damage. Corporal Eugenio was grazed in the leg by a bullet.
Appellant continued driving, turning onto Durfee Boulevard. Detective Ralph
Batres, driving a marked police car at 47 miles per hour with its lights flashing and siren
sounding, was responding to the scene when he encountered appellant in the Malibu,
driving toward him. As the two cars approached one another, appellant suddenly
accelerated and steered his car into Detective Batres’s police car. Appellant’s car struck
the police car directly behind the driver’s door. Detective Batres’s car spun around,
struck a parked car, and came to rest in the middle of the street. Detective Batres
suffered neck and back injuries as a result of the collision. Appellant’s airbag deployed,
and although his car was damaged he was able to pull into the driveway of a business.
David Lopez was parked nearby. His 13-year-old son was also in the car and his
14-year-old daughter was about to get into the backseat of the car. Appellant, yelling and
4
acting bizarrely, got out of his car, ran to Lopez’s car, and jumped on the hood. He came
to the driver’s door and tried to open it, then began pounding on the window until he
broke it. He grabbed Lopez and tried to get him out of the car, but Lopez had his seatbelt
fastened. Lopez removed his seatbelt, exited the car, and pushed appellant away.
Appellant and Lopez began fist fighting. Appellant fell to the ground and Lopez backed
away, but appellant began searching around his waistband with his hand so Lopez began
hitting him again.
Detective Batres’s head was spinning, but he saw appellant and Lopez fighting
and stumbled toward them. When appellant began to run away Detective Batres used his
taser to stop him.
Detective Adam Girgle responded to the scene and placed appellant in handcuffs,
telling him he was being detained pending an investigation. Appellant was cooperative
and coherent. Los Angeles County Fire Department personnel arrived and treated
appellant, and he was responsive and cooperative in answering their questions. Detective
Girgle accompanied appellant when he was transported by ambulance to the hospital.
Detective Girgle did not question appellant, but appellant spontaneously stated that he
had smoked methamphetamine earlier in the day. He said his car was struck by another
vehicle, and that he had used a nine-millimeter black handgun to shoot at police officers
from his car because he was tired of officers taking his car. He said he fired his gun until
it was empty. He offered, “For what I did, I am guilty.”
At the hospital, appellant was treated for a gunshot wound to the left hand and a
graze wound to the shoulder. Appellant told Detective Girgle that after the collision he
got out of his car, fought with someone, and tried to take that person’s car. He said he
was then “electrocuted” and asked Detective Girgle if he had tasered him. Detective
Girgle observed that appellant was cooperative and did not seem agitated during the time
they spent together.
Because appellant stated he had smoked methamphetamine that day, Detective
Girgle had hospital personnel test him for drugs. Detective Girgle indicated on a drug
influence report form that appellant exhibited some symptoms of being under the
5
influence. These included poor pupil reaction, severe muscle rigidity, and agitation. He
did not know whether the latter two symptoms were due to being handcuffed to the
gurney and having a gunshot wound, or due to narcotics use. Appellant displayed these
symptoms only at the hospital and not at the crime scene or in the ambulance.
Appellant’s speech was clear and deliberate at all times. It did not appear to Detective
Girgle that appellant’s judgment was affected by drugs.
The police recovered a nine-millimeter Luger semiautomatic gun on the driver’s
side front floorboard in the Malibu. Twelve cartridge casings fired from the gun were
found at the scene of the shootout with Officer George and Corporal Eugenio.
The Malibu was registered to Aldo Jimenez (appellant’s brother) and had been
parked at his sister’s home in El Monte. Appellant was not permitted to drive the car at
the time of the incidents described here, as the last time appellant drove it he was stopped
for speeding and the car was impounded because appellant did not have a driver’s
license.
II. Defense Evidence
A. Stipulations
The parties stipulated that when appellant was tested at the hospital he had in his
system 27 nanograms of amphetamines per milliliter of blood, and 141 nanograms of
methamphetamine per milliliter of blood. When he was arrested, appellant had a piece of
paper in his pocket that contained a brown crystal substance resembling
methamphetamine, but the amount of the substance was insufficient to perform a test to
determine its nature.
B. Defense Testimony
Dr. Ari Kalechstein testified as an expert in psychology with specialty training in
neuropsychology and forensic psychology. He said that methamphetamine use can cause
impaired judgment, reasoning skills, and social perception. People who take
methamphetamine are more likely to act without thinking about the consequences,
6
without planning, and without reasoning before they act. They can also become
psychotic and experience hallucinations, delusions, and paranoia. Methamphetamine use
can also cause people to act aggressively, to be irritable, and to snap at people. People
react differently to methamphetamine use. Some users feel euphoric, alert, and more
energetic. Methamphetamine has a half-life in the body of about 8 to 12 hours, so
someone who used it early in the day could still be feeling the effects later in the day.
Dr. Kalechstein did not know what time appellant had smoked methamphetamine the
morning of the incident.
Appellant’s hospital records indicate he was cursing, snapping his jaw, and being
vulgar to the female nurses. Dr. Kalechstein said this type of irritable, aggressive
behavior was common in people who are high on methamphetamine. He acknowledged
there could be other explanations for appellant’s behavior, however, such as his being
upset and angry because he had been shot and was in pain, and because he was in police
custody. Appellant’s erratic driving and behavior toward Lopez were also consistent
with methamphetamine use, as was the fact he escalated a minor traffic accident into
gunfire.
Dr. Kalechstein did not meet with or interview appellant or obtain information
about his background or medical history. His opinions were based on his review of the
police reports, hospital records, and conversations with appellant’s counsel. Because the
police reports contained statements from appellant’s family members indicating
appellant’s use of methamphetamine was problematic and affected his behavior,
Dr. Kalechstein did not think it necessary to interview appellant.
Dr. Kalechstein opined that, “There is no other explanation for why [appellant]
behaved the way he did, and so methamphetamine intoxication would seem to be the best
explanation for his behavior.” The fact that the fire department personnel who treated
appellant at the scene did not observe typical physical symptoms of methamphetamine
intoxication did not change Dr. Kalechstein’s opinion. He noted that Detective Girgle
observed some such symptoms.
7
III. Prosecution Rebuttal Evidence
Los Angeles Sheriff’s Detectives Kevin Acebedo and Dan McElderry interviewed
appellant in the hospital around 12:45 p.m. on May 29, 2010, the day after the incidents
described above. Appellant told them the Malibu belonged to him but was registered to
his brother, Aldo Jimenez. Appellant’s car had been taken away five or six times because
he did not have a driver’s license. It cost him over $3,000 each time to get it back, and he
was angry about that.
Appellant said the collision occurred when Gonzalez refused to allow appellant to
merge into traffic and intentionally struck appellant’s car. Appellant’s friend, Ana, was
in the car with him. Appellant pulled over, as did the van, and Gonzalez and Carrasco
began cursing at him and asking for identification and immigration papers. This made
appellant angry. He refused to give them his information and they argued back and forth.
They laughed at appellant and implied that because he did not have a driver’s license he
could not do anything about the fact they had caused the accident. Appellant dropped
Ana off and returned to the scene. Appellant was so angry that he felt he was “losing
control.”
When he returned he saw Officer George. He refused to respond to Officer
George’s order to get out of the car because he knew he would lose his car again and he
could not afford to get it back. When Corporal Eugenio knocked on his window,
appellant was angry and drove away. He pulled out the gun, pulled into the driveway,
and began shooting at Gonzalez and Carrasco because he was angry about how they had
treated him. He was not aiming at the police officers, but the officers began shooting at
him. One of the officers’ bullets struck him as he drove away, and this made him even
angrier and he turned his car around to shoot at the officers. He saw the officers run
under the big rig and fired at them until his gun was empty.
Appellant then drove away without a plan of where to go. When he saw the patrol
car he decided to crash into it because he was so angry. He intended to kill the police
officer or himself.
8
After the crash, appellant’s car was not working properly so he looked for another
car to take in order to get away. He told Lopez to give him his car but Lopez refused, so
appellant struck the window hard and broke it. He and Lopez began fist fighting.
Appellant saw a police officer approach and taser him.
As appellant was being interviewed, he was given morphine. At that point he told
the officers that he felt people often laughed at him and insulted him. He believed people
followed him and that there was a tracking device or surveillance cameras in his car.
Appellant said he had been using methamphetamine for over one year. When he first
used the drug it caused him to see faces, shapes, and ghosts, and to feel cold or as if a
tornado was going through him. On the day of the offenses he had taken two “hits” of
methamphetamine early in the morning. He did not feel cold or see ghosts that day. At
the time of the offenses he felt almost nothing when he used methamphetamine except
increased energy. Appellant said he knew it was an addiction and that he usually used
methamphetamine three or four times per day so the energy would last all day.
IV. Defense Surrebuttal Evidence
Dr. Kalechstein noted that appellant’s statements to Detectives Acebedo and
McElderry demonstrated paranoia, including that appellant thought people were
following him and laughing at him, and that he was under surveillance. He also exhibited
psychotic hallucinations in that he said he saw ghosts and spirits. Dr. Kalechstein opined
that appellant’s criminal behavior was caused by his methamphetamine intoxication and
that this opinion was bolstered by appellant’s statements during the interview that he had
been using methamphetamine for about one year. Appellant described being high on
methamphetamine as losing control. Dr. Kalechstein indicated that was a layperson’s
way of explaining that when a person used methamphetamine they act without thinking
and lose control of their ability to inhibit responses.
9
DISCUSSION
I. Substantial Evidence Supports the Finding that Appellant Formed the
Specific Intent to Commit Counts 1, 2, 3, 7, 8, and 11
Appellant contends there was insufficient evidence to demonstrate that he had the
specific intent to commit willful, deliberate, premeditated attempted murder and
attempted carjacking, because he was too intoxicated at the time of the offenses to form
the specific intent to kill, to premeditate and deliberate, or to form the specific intent to
commit carjacking. We disagree.
A. Standard of Review
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a
limited one. ‘“The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]”’ (People v. Ochoa (1993) 6 Cal. 4th 1199, 1206; see Jackson v. Virginia
(1979) 443 U.S. 307, 319.)
“‘“Although we must ensure the evidence is reasonable, credible, and of solid
value, nonetheless it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts on which that determination
depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder. [Citations.]” (People v. Jones (1990) 51 Cal. 3d
294, 314.)’ (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)” (People v. Smith (2005) 37
Cal. 4th 733, 738-739.)
10
B. Applicable Law Regarding Specific Intent Crimes
The offenses of attempted murder and attempted carjacking are specific intent
crimes. To find appellant guilty of attempted murder (counts 1-3 and 7-8), the jury had to
find that he had the specific intent to kill or harbored “express malice” as to each victim.
(§§ 21a, 187, subd. (a) & 664; CALCRIM No. 600.) To find that the attempted murders
were committed willfully, deliberately, and with premeditation, the jury had to find
appellant’s decision to kill was considered in advance and arrived at as a result of
considered thought. “‘A verdict of deliberate and premeditated first degree murder
requires more than a showing of intent to kill. . . . “Deliberation” refers to careful
weighing of considerations in forming a course of action; “premeditation” means thought
over in advance. [Citations.] “The process of premeditation and deliberation does not
require any extended period of time. ‘The true test is not the duration of time as much as
it is the extent of the reflection. Thoughts may follow each other with great rapidity and
cold, calculated judgment may be arrived at quickly.’ [Citations.]”’ (People v. Koontz
(2002) 27 Cal. 4th 1041, 1080 . . . .)” (People v. Young (2005) 34 Cal. 4th 1149, 1182.
See also CALCRIM No. 601.)
To find appellant guilty of attempted carjacking (count 11), the jury had to find
that he specifically intended to deprive Lopez of his car, accomplished by force or fear.
(§§ 21a, 215, subd. (a) & 664, CALCRIM Nos. 460 & 1650. See, e.g., People v.
Marquez (2007) 152 Cal. App. 4th 1064, 1067-1068.)
As noted above, appellant contends there was insufficient evidence to demonstrate
that he had the specific intent to commit willful, deliberate, premeditated attempted
murder and attempted carjacking because he was too intoxicated to form the specific
intent to kill, to premeditate and deliberate, or to form the specific intent to commit
carjacking. A defendant is entitled to a jury instruction regarding voluntary intoxication
when there is “substantial evidence of the defendant’s voluntary intoxication and the
intoxication affected the defendant’s ‘actual formation of specific intent.’ (People v.
Horton (1995) 11 Cal. 4th 1068, 1119; see also People v. Saille (1991) 54 Cal. 3d 1103,
1117 [explaining that a defendant charged with murder is free to show that ‘because of
11
his mental illness or voluntary intoxication, he did not in fact form the intent unlawfully
to kill’ (original italics)].)” (People v. Williams (1997) 16 Cal. 4th 635, 677.)
CALCRIM No. 625, with which the jury here was instructed, provides that the
jury may consider evidence of the defendant’s voluntary intoxication only in a limited
way. Here, the jury was permitted to consider such evidence only in deciding whether
the defendant acted with an intent to kill, or acted with deliberation and premeditation, or
acted with an intent to carjack. The instruction is based on section 29.4, which provides
as follows: “(a) No act committed by a person while in a state of voluntary intoxication
is less criminal by reason of his or her having been in that condition. Evidence of
voluntary intoxication shall not be admitted to negate the capacity to form any mental
states for the crimes charged, including, but not limited to, purpose, intent, knowledge,
premeditation, deliberation, or malice aforethought, with which the accused committed
the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of
whether or not the defendant actually formed a required specific intent, or, when charged
with murder, whether the defendant premeditated, deliberated, or harbored express
malice aforethought.” (Italics and bold emphasis added.)
C. Analysis
By his own admission, appellant returned to the scene of the collision with
Gonzalez and Carrasco because he believed they had caused the accident and had been
disrespectful toward him, and he was very angry at them. When he returned and was
approached by officers, he considered the fact he did not have a driver’s license and did
not want to pay to get his car out of impound. He drove to the front of the van and
positioned himself so he would have a clear shot at Gonzalez and Carrasco and began
firing his handgun. He stated he was initially aiming only at Gonzalez and Carrasco, but
when the peace officers began shooting at him and shot him in the wrist, he was angered
and turned his car around in order to shoot back at the officers.
12
After appellant drove away he saw the patrol car being driven by Detective Batres
and, again by his own admission, he decided to crash into it because he was so angry and
intended to kill the police officer or himself.
After the crash, appellant’s car was not working properly so he said he looked for
another car to take in order to get away. He told Lopez to give him his car but Lopez
refused, so appellant broke the driver’s side window and began fist fighting with Lopez.
Detective Girgle testified that upon being arrested appellant was responsive,
coherent, and cooperative. Although appellant was rude to the nurses at the hospital, and
during his interview expressed bizarre statements about the effect methamphetamine had
had on him since he began using it a year before, he nonetheless was coherent and
remembered considerable detail about the events of the previous day, and specifically
about his thought process and intent to commit the charged crimes. Appellant argues on
appeal that methamphetamines impaired his judgment and perception, caused him to take
risks and act aggressively, and exhibit paranoid and psychotic behavior. But these
arguments go to appellant’s capacity to form the specific intent to commit the charged
crimes, not to whether he actually formed the required intent. The jury was called upon
to determine whether he formed the specific intent required as to each crime, not to
determine whether his reasoning process was sound. Methamphetamines might have
played a role in appellant’s incredibly poor decisionmaking, but by appellant’s own
admission he did in fact engage in a decisionmaking process in advance of his
commission of each crime and reached a decision as a result of considered thought. The
same evidence established that appellant premeditated and deliberated before attempting
to kill his victims. Because there was ample evidence to support the jury’s findings, the
jury’s resolution regarding the effect of appellant’s alleged intoxication had on his
formation of the requisite intent to kill and carjack and ability to premeditate and
deliberate is conclusive on appeal.
13
II. Appellant’s Statement to Detectives Was Properly Admitted
Appellant contends the trial court erred in admitting his statement to Detectives
Acebedo and McElderry because the officers obtained his statement in violation of
Miranda v. Arizona, supra, 384 U.S. 436. He asserts he did not knowingly, intelligently,
and voluntarily waive his right to counsel, and that he attempted to invoke this right but
the detectives deceptively undermined his efforts to do so. We disagree.
A. Factual Background
Detective Acebedo began by reading appellant his rights. He informed appellant
he had the right to an attorney before and during questioning. Appellant indicated his
understanding. Detective Acebedo then told appellant that if he could not afford an
attorney one would be appointed for him “before questioning if you wish; do you
understand?” Appellant replied, “In that situation, yeah, I don’t have money to pay
attorney. Yeah, you put one or how that — would this work?” He continued, “If I don’t
have the money —” The detective said, “Then what happens is: when you go to court,
the court can appoint an attorney for you.” Appellant said, “Okay.” Detective
McElderry added, “Yeah, there — they will represent you because you don’t — because
you don’t have money.” Shortly thereafter he added, “But just so we’re clear, we just
wanna make sure that you’re okay talking to us without getting to that point of, um, of
getting an attorney; do you understand that?” Appellant replied, “Yes.” Detective
McElderry said, “Okay. And you’re okay talking with us right now and trying to explain
what happened?” Appellant said, “Yes.”
Appellant was concerned that the detectives might not believe him, but the
detectives said they would discuss that after appellant explained what had occurred.
Detective McElderry reiterated, “So, we just wanna make sure, are you okay talking to us
now and taking care of that, right?” Appellant then asked if a Spanish interpreter were
available because although he could speak English, he might be able to express himself
better in Spanish. The detectives sent for an interpreter. Detective Acebedo gave
appellant a written form that stated the rights he had explained to appellant and indicated
14
appellant was choosing to waive those rights. Appellant signed the form. A Spanish-
speaking deputy arrived and offered to readvise appellant in Spanish of his Miranda
rights, but appellant indicated he had already signed the waiver form and had no problem,
and that he understood his rights.
Defense counsel made a pretrial motion to exclude appellant’s statement to the
detectives on Miranda grounds. The court initially deferred ruling on the motion until
the prosecution sought to admit the statement. The prosecution sought to introduce
appellant’s statement as rebuttal evidence after Dr. Kalechstein testified. The court
excused the jury and held a hearing.
Defense counsel argued to the trial court, as does appellate counsel, that
appellant’s statement that he did not have money for an attorney was an indication he
wanted an attorney immediately, and that the officers misleadingly responded by
informing appellant that when appellant went to court counsel would be appointed for
him. The court ruled that the police officer had explained that if appellant could not
afford an attorney, one would be appointed for him, free of charge, at a time subsequent
to their discussion. The officer specifically asked if appellant wanted to speak to them
without hiring an attorney. Appellant indicated he understood his rights and was willing
to talk to the detectives. He signed the waiver form and declined the detectives’ offer to
have the Spanish-speaking officer state his rights to him in Spanish, expressly indicating
he already understood his rights and was willing to waive them.
B. Analysis
“Under the familiar requirements of Miranda, designed to assure protection of the
federal Constitution’s Fifth Amendment privilege against self-incrimination under
‘inherently coercive’ circumstances, a suspect may not be subjected to custodial
interrogation unless he or she knowingly and intelligently has waived the right to remain
silent, to the presence of an attorney, and to appointed counsel in the event the suspect is
indigent.” (People v. Sims (1993) 5 Cal. 4th 405, 440.) The prosecution bears the burden
of demonstrating that a defendant who makes a statement in the absence of counsel
15
knowingly and intelligently waived the privilege against self-incrimination and the right
to counsel. (People v. Peevy (1998) 17 Cal. 4th 1184, 1192.)
“[I]n order to determine whether a defendant voluntarily, knowingly, and
intelligently has waived his Miranda rights, a court analyzing the question must consider
two distinct components: ‘First, the relinquishment of the right must have been voluntary
in the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. Second, 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. Only if the “totality of the circumstances surrounding the
interrogation” reveals both an uncoerced choice and the requisite level of comprehension
may a court properly conclude that the Miranda rights have been waived. [Citations.]’”
(People v. Whitson (1998) 17 Cal. 4th 229, 247, quoting Moran v. Burbine (1986) 475
U.S. 412, 421.)
“‘In considering a claim that a statement or confession is inadmissible because it
was obtained in violation of a defendant’s rights under [Miranda], we accept the trial
court’s resolution of disputed facts and inferences, and its evaluation of credibility, if
supported by substantial evidence.’” (People v. Whitson, supra, 17 Cal.4th at p. 248,
quoting People v. Wash (1993) 6 Cal. 4th 215, 235-236.) Although appellate courts
“‘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 conclusion’ of a lower court that has previously reviewed
the same evidence.”’” (Ibid.)
Once a suspect has clearly asserted his or her right to counsel during custodial
interrogation, the interrogation must cease and the suspect is not subject to further
interrogation by the authorities until counsel has been made available to him. (People v.
Gonzalez (2005) 34 Cal. 4th 1111, 1122; Edwards v. Arizona (1981) 451 U.S. 477, 484-
485.) However, “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, our precedents do not require
16
the cessation of questioning.” (Davis v. United States (1994) 512 U.S. 452, 459.)
Whether a suspect has invoked his right to counsel is an objective inquiry. (Ibid.)
Here, in response to the detective informing appellant that if he could not afford an
attorney one would be appointed for him “before questioning if you wish,” appellant
asked, “In that situation, yeah, I don’t have money to pay attorney. Yeah, you put one or
how that — would this work?” Viewed objectively, this question by appellant was not a
clear assertion of his right to counsel. Appellant was expressing concern about his
inability to afford an attorney, but he did not indicate he wanted a lawyer at that time.
The detectives were not obliged to cease their questioning. They told appellant that
“when you go to court, the court can appoint an attorney for you.” Even if this statement
could have misled appellant into thinking he could not have an attorney until he went to
court—although he had just been told one would be appointed before questioning if he
wanted—the detectives immediately clarified by saying, “But just so we’re clear, we just
wanna make sure that you’re okay talking to us without getting to that point of, um, of
getting an attorney; do you understand that?” Appellant affirmatively replied, “Yes.” He
proceeded to sign the waiver form and decline the detectives’ offer to have his rights
restated in Spanish. Based on these circumstances the trial court properly admitted
appellant’s statement. Appellant did not assert a desire to have counsel present before
speaking to the police officers. He voluntarily relinquished his right, and the record does
not support the assertion that his waiver occurred because the officers deceived him. The
officers clarified the nature of his right and verified he understood, and thus his waiver
was made with full comprehension of the right being abandoned and the consequences of
doing so. The trial court did not err in admitting appellant’s statement.
III. The Sentence on Count 10 Must Be Stayed Pursuant to Section 654
Finally, appellant contends and the People concede that his sentence on count 10
for assaulting Gonzalez with a firearm must be stayed because it was based on the same
indivisible course of conduct underlying his conviction on count 8 for attempted murder
of Gonzalez.
17
Subdivision (a) of section 654 prohibits multiple punishments for “[a]n act or
omission that is punishable in different ways by different provisions of law.” Generally,
multiple punishments are proper if the defendant pursues suitably independent criminal
objectives. (People v. Williams (1992) 9 Cal. App. 4th 1465, 1473-1474.) The test
governing the application of section 654 was first stated in Neal v. State of California
(1960) 55 Cal. 2d 11, 19: “Whether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of section 654 depends on
the intent and objective of the actor. If all of the offenses were incident to one objective,
the defendant may be punished for any one of such offenses but not for more than one.”
In determining the appropriate sentence under section 654, a court must identify the count
carrying the longest sentence, including enhancements, and stay the sentence imposed
under the other pertinent counts. (People v. Kramer (2002) 29 Cal. 4th 720, 722.)
Here, appellant was charged with an assault crime and attempted murder
pertaining to each shooting victim, Officer George, Corporal Eugenio, Detective Batres,
Gonzalez, and Carrasco. The court imposed a term for the attempted murder conviction
and stayed the term for the assault conviction as to each shooting victim except Gonzalez.
As to the counts involving Gonzalez, the court imposed consecutive terms for the assault
count and the attempted murder count. The court indicated its intent to impose
consecutive sentences only for counts involving separate victims of separate acts of
violence which were therefore not subject to section 654. Thus, the court implicitly made
the factual finding, which is supported by substantial evidence, that the shootout
constituted an indivisible course of conduct, finding that separate sentences should be
imposed only as to separate victims. There was nothing about appellant’s shooting at
Gonzalez that differentiates it from his shooting at the three other victims. The court’s
apparent oversight in failing to stay the sentence as to assault with a firearm on Gonzalez,
count 10, must be remedied.
“If a trial court violates section 654, the proper remedy on appeal is not reversal of
the counts involved, but elimination of the penalty for all but one of them (the one
carrying the greatest penalty, if the penalties are disparate), by staying execution of, or
18
simply striking, the terms of imprisonment for all but one of them. [Citations.]” (People
v. Davis (1989) 211 Cal. App. 3d 317, 323; see In re McGrew (1967) 66 Cal. 2d 685, 688.)
Appellant’s punishment must therefore be stayed for count 10.
DISPOSITION
The judgment is modified to stay punishment for appellant’s conviction for
assaulting Javier Gonzalez with a firearm (count 10; § 245, subd. (b)). In all other
respects, the judgment is affirmed. The superior court is directed to prepare an amended
abstract of judgment to reflect the modification to appellant’s sentence, and forward a
copy of the amended abstract of judgment to the California Department of Corrections
and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
19