Filed 10/4/13 P. v. Perez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055937
v. (Super.Ct.No. FVI802609)
FERNANDO ERNEST PEREZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed with directions.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Sean M.
Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.
1 I
INTRODUCTION1
Defendant Fernando Ernest Perez participated in a home invasion robbery in
which a fellow gang member was shot and killed by one of the house‟s residents. A jury
convicted defendant of attempted home invasion robbery (§§ 664/211; 213, subd.
(a)(1)(A)); home invasion robbery (§§ 211; 213, subd. (a)(1)(A)); burglary (§ 459); two
counts of assault with a firearm (§ 245, subd. (a)(2)); and street terrorism (§ 186.22, subd.
(a).) The jury also found true that a principal used a firearm, that a principal was armed
with a firearm, and that the acts were committed at the direction of or for the benefit of a
criminal street gang. (§§ 186.22, subd. (b)(l); 12022, subd. (a)(1); 12022.53, subds. (b) &
(e)(1).) The jury acquitted defendant of murder (§ 187) and found the personal gun use
untrue. (§ 12022.5, subd. (a).) In a bifurcated proceeding, the court found true the prison
prior. (§ 667.5, subd. (b).)
The court sentenced defendant to a total term of 50 years to life in state prison. On
appeal, defendant raised two issues: Miranda2 error and sentencing error. The People
concede the abstract of judgment must be corrected to reflect the pronouncement of
judgment. Subject to that modification, we affirm the judgment.
1 All statutory references are to the Penal Code unless stated otherwise.
2 Miranda v. Arizona (1966) 384 U.S. 436.
2 II
STATEMENT OF FACTS
The facts in this case are not disputed. The only issues are whether defendant
appropriately received Miranda admonitions.
A. The Home Invasion
We describe briefly the events which occurred on November 30, 2008. After a
meeting of the East Side Victoria (ESV) criminal street gang, defendant, known as
“Bams,” and two other gang members—Joseph DeLonnie, “Goofy”, and Jorge Espinoza,
“Sleepy”—undertook a mission to recover drugs and money from David Boutieller, a
Victorville drug dealer. The ESV gang charged Boutieller a “tax” of about a hundred
dollars a week in exchange for allowing him to sell methamphetamine. Defendant
obtained a gun for Goofy to use to “scare” Boutieller.
Boutieller had barricaded the front door of his residence with a large-screen
television and a piece of wood. When the three gang members arrived, defendant kicked
open the blocked entrance. Boutieller realized someone was breaking into the house so
he grabbed his gun and locked his bedroom door. He heard someone scream, “Where‟s
David?”
Defendant kicked in the bedroom door and circled through the bedroom,
bathroom, laundry room, and kitchen, searching for Boutieller. Boutieller tried to hide in
the bathroom. Boutieller stepped into the bathtub and tried to stow his gun behind a
dresser near the bathroom door. Defendant entered the bathroom and asked for the gun.
Boutieller refused. Defendant grabbed Boutieller by his arm and wrestled with him.
3 Boutieller put the gun under his arm, pulled the trigger, and shot defendant, who fell into
the bathtub.
Boutieller left the bathroom and went into the living room. Goofy did not appear
to have heard the gunshot and was guarding two other occupants of the house,
Boutieller‟s sister and aunt. Boutieller shot Goofy twice and Goofy dropped a rifle and
ran out of the house. Goofy died in the front yard from gunshot wounds.
Because Boutieller was worried about liability for shooting defendant and Goofy,
he flushed the empty shell casings down the toilet, and locked the gun in his shed.
Officers found a rifle on the kitchen floor.
B. Gang Evidence
Deputy Josh Conley testified as a gang expert that he was part of a multi-agency
gang sweep in 2008. According to Conley, the ESV is a predominately Hispanic street
gang that originated in the City of Victorville, and has about 200 documented members
and associates. The gang is known for weapons possession and drug sales, and is an
umbrella affiliate of the larger Mexican Mafia prison gang. Conley confirmed that
Boutieller was paying taxes to the ESV gang.
Defendant admitted being an ESV member to officers on several occasions in
2007 and 2008. Defendant told Conley he was an ESV member. Defendant had not tried
to disassociate himself from the gang as of November 2008. When he was arrested,
defendant had numerous gang-related tattoos. Defendant also had two tattoos of the
number 13, showing allegiance to the Mexican Mafia.
4 C. Defendant’s Statements
Defendant was interviewed twice by deputy sheriffs. Defendant told the officers
that he, Goofy, and Sleepy entered Boutieller‟s home to recover the taxes Boutieller
owed ESV. Defendant admitted kicking down Boutieller‟s front door. Defendant also
admitted he had tried to grab Boutieller‟s gun when Boutieller shot him. Other aspects of
defendant‟s statements to the officers will be discussed below.
III
DEFENDANT‟S MOTION TO SUPPRESS
DECEMBER 8, 2008, AND DECEMBER 15, 2008, STATEMENTS
Defendant claims his statement—which was made on December 8, 2008, while he
was being treated in the hospital for his gunshot wounds—was improperly admitted
because it was obtained by means of a coercive custodial interrogation without the
officers reading him his Miranda rights. Defendant also asserts his statement from
December 15, 2008,—obtained after he was arrested and advised of and waived his
Miranda rights—was improperly admitted because it was obtained as part of an unlawful
two-step interrogation. Defendant‟s first argument fails because defendant was not in
custody on December 8, 2008. Furthermore, by not raising a claim below, he forfeited
his challenge to the December 15, 2008, statement, and also cannot demonstrate that
counsel acted ineffectively by not objecting to admission at trial. Finally, any error was
harmless.
5 A. Proceedings Below
Before trial, defense counsel moved to suppress defendant‟s December 8, 2008,
statements for violating Miranda. Defense counsel did not object to the December 15,
2008, statement because defendant appeared to be “Mirandized.” At a hearing on the
suppression motion, Sergeant Casey Jiles testified that he interviewed defendant at the
hospital with a sheriff‟s detective. Defendant was in the regular hospital, not the jail
ward. Defendant did not appear to be under the influence of any medication affecting his
participation in the interview. He was coherent and responsive to the questions.
Defendant was not under arrest and he was not handcuffed. The officers were not in
uniform although they had badges. Sergeant Jiles considered him to be a witness rather
than a suspect. The interview lasted about an hour. Defendant did not request a lawyer
or ask to stop speaking to the officers. When defendant mentioned consulting a lawyer,
Sergeant Jiles explained defendant was not under arrest and the officers only wanted to
ascertain what defendant knew about what had occurred. Jiles also told defendant the
district attorney would decide whether charges would be filed, and that it “could happen.”
Defendant did not ask about a lawyer again.
At the conclusion of Sergeant Jiles‟s testimony, the prosecution argued that
defendant was not in custody on December 8, 2008, when he was recovering from his
wounds, and there was no indication that his statements were not free or voluntary. In
response, defense counsel asserted that in order to determine whether a suspect is in
custody for Miranda purposes, the court must consider whether he has been formally
arrested, the length of his detention, the ratio of officers to suspects, and the nature of the
6 questioning. Defense counsel contended defendant was being questioned as a suspect
although the interview was not in a custodial setting. The court responded, “[i]n this case
we know [defendant] was not free to leave, but his lack of freedom to leave had nothing
to do with police officers. I think that it fails on the issue of custody. [¶] It doesn‟t
sound like he did anything to invoke his rights.” Moreover, the officers‟ concern “about
the veracity of the defendant does not mean that they thought that he was going to be a
defendant. People can be dishonest for a lot of reasons, not the least of which is just
wanting to disassociate themselves with people that are involved that might be
defendants.” The court ruled that “[o]n balance . . . I don‟t think there‟s any reason to
suppress the statements. They sound like they were made freely and voluntarily in a
noncustodial setting.” The court admitted the December 8, 2008, statements.
The jury listened to the recorded December 8, 2008, interview. At the beginning,
Sergeant Jiles asked defendant if he was able to talk and defendant agreed. After
discussing defendant‟s injuries, Sergeant Jiles explained, “. . . I‟d like to find out what
happened and get your side of it. I mean, you‟re not under arrest.” Defendant then told
the two officers “We were over there at that house. [¶] . . . [¶] [a]nd I um guess he
thought we were trying to rob him.” Defendant admitted he was with Goofy and Sleepy,
and they were “gonna do uh some kinda drug deal or something.” Defendant answered
Jiles‟s questions about what had happened in the house and how defendant was shot.
When defendant asked if he could get in trouble for telling the officers
“everything” and questioned whether he should “talk to a lawyer first,” Sergeant Jiles
repeated defendant was not under arrest but he could speak to a lawyer if he wished. Jiles
7 explained, “[I]t‟s important that, that you tell me, truthfully, what happened that night,
because a lot of things that appear to be one way may be pointed negative towards you.
Might get cleared up based on what you tell me.” Defendant said he went with Goofy
and Sleepy to Boutieller‟s residence intending to take whatever drugs or money they
could find. Defendant said that the ESV gang had threatened him. Defendant called it
the “[s]tupidest thing I‟ve ever done in my life.” Defendant was inconsistent about many
of the details. The officers encouraged him to be honest. During the interview, a nurse
and a dietitian entered the room. Defendant‟s mother also entered briefly. The officers
ended the interview and did not arrest defendant.
The officers filed an affidavit in support of a warrant for defendant‟s arrest on
December 9, 2008. When defendant was interviewed on December 15, 2008, he had
been arrested and moved into the hospital‟s jail ward. Sergeant Jiles read defendant his
Miranda rights and defendant waived them. Defendant reiterated his previous statements
adding details about the break-in and his involvement. Defendant told the officers, “I‟ma
gonna tell you everything straight, because I don‟t want this to happen to nobody else.”
He recognized the risk of gang retaliation but explained, “I‟d rather help you guys.” He
expressed remorse: “. . . I‟m ashamed . . . Someone, a kid, lost their life. I got shot and
almost died. Almost lost my life for dope.”
B. Standard of Review
Based on the Fifth Amendment right against self-incrimination, a suspect may not
be subjected to police interrogation while in custody unless he has previously been
advised of and knowingly and intelligently waived his rights to remain silent, to the
8 presence of an attorney, and to appointed counsel if indigent. Statements made in
violation of Miranda are inadmissible to establish guilt. (People v. Esqueda (1993) 17
Cal.App.4th 1450, 1480-1481.)
The reviewing court examines the uncontroverted evidence independently to
determine whether the challenged statement was unlawfully obtained. (See People v.
Gamache (2010) 48 Cal.4th 347, 385.) The appellate court accepts the trial court‟s
resolution of disputed facts and inferences, as well as its evaluations of credibility,
provided they are supported by substantial evidence. (Ibid.)
C. Defendant’s December 8, 2008, Statements
Officers must read a suspect his Miranda rights when he is subject to a custodial
interrogation, which occurs when he is taken into custody or otherwise deprived of his
freedom of action in any significant way. (Miranda v. Arizona, supra, 384 U.S. 436.)
Where there is no formal arrest, the court must determine “how a reasonable man in the
suspect‟s position would have understood his situation.” (Berkemer v. McCarty (1984)
468 U.S. 420, 442.) In making this determination, the court considers the length of the
suspect‟s detention, the location of the detention, the ratio of officers to suspects, and the
nature of the questioning. (See, e.g., People v. Pilster (2006) 138 Cal.App.4th 1395,
1403.) Additionally, the court should consider whether the suspect agreed to the
interview and was aware he could terminate the questioning, whether he was told he was
considered a witness or suspect, whether there were restrictions on his freedom of
movement during the interview, whether officers dominated and controlled the
9 interrogation, whether officers pressured the suspect, and whether the suspect was
arrested at the conclusion of the interview. (Ibid.)
Defendant contends that he was in custody for purposes of Miranda on December
8, 2008, because he was “constructively deprived” of his freedom when he was confined
to a hospital bed. He also asserts the questioning was aggressive, confrontational, and
accusatory. As the trial court observed, however, the restriction on defendant‟s freedom
of movement was not caused by the officers but because defendant was hospitalized for
his injuries. Except for being questioned by the officers, there was nothing to suggest
defendant was in custody or its functional equivalent. Defendant also spoke freely—even
eagerly—with the officers. Because defendant was not in custody, the officers were not
required to advise him of his Miranda rights.
Medical care facilities are not inherently custodial settings. In People v. Mosley
(1999) 73 Cal.App.4th 1081, the officer interviewed the defendant in an ambulance after
the defendant had been shot in the arm and was being treated by paramedics. The officer
sought to find out what happened at the scene of the shooting, and he did not know
whether the defendant was a victim. (Id. at p. 1089.) The Mosley court noted that any
restraint on defendant‟s freedom of action was caused by treatment of his gunshot wound
which was still bleeding. (Id. at p. 1091.) The defendant had not been arrested and was
not in handcuffs. The interview was conducted in the presence of medical personnel, and
the questioning was not accusatory or threatening. (Ibid.) The court held that, based on
the totality of circumstances, a reasonable person in the defendant‟s position would not
have considered himself in custody, and no Miranda warnings were required. (Ibid.;
10 United States v. Martin (9th Cir. 1986) 781 F.2d 671; Wilson v. Coon (8th Cir. 1987) 808
F.2d 688.)
In the present case, hospital staff entered defendant‟s room to check his equipment
and ask about his diet. When defendant‟s mother entered the room, the officers politely
asked to continue speaking with defendant for “a few minutes.” The officers did not
restrict defendant‟s freedom of movement. They did not arrest defendant and they
reminded him they were only speaking to him as a witness. The affidavit in support of a
warrant for defendant‟s arrest was not filed until the following day.
The record does not support defendant‟s contention that the nature of the
questioning on December 8, 2008, was aggressive and confrontational. The questions
were largely open-ended. Defendant did not try to end the interview or object to the
nature of the questioning. After responding to various questions about the shooting,
defendant asked if he was going to get into trouble. Sergeant Jiles candidly told
defendant the district attorney‟s office would determine whether charges would be filed.
Sergeant Jiles reiterated that defendant was not under arrest and he could speak with an
attorney if he felt he needed to but he was still only a witness. Defendant‟s second
interview a week later confirmed that he spoke with officers of his own accord and not
because he felt threatened or intimidated. Defendant understood the risks he faced but he
said, “I‟d rather help you guys.”
The record does not support defendant‟s characterization that the officers implied
defendant might avoid arrest if he cooperated. Instead, the officers told defendant that
they hoped to discover what happened the evening of the shooting and they suggested
11 defendant should tell the truth because he might be able to show he did not play an active
role in the crime. The officers did not mislead defendant by promising he could avoid
facing criminal charges. A reasonable person in defendant‟s position would not have
believed he was in custody. The trial court therefore properly admitted appellant‟s
December 8, 2008, statements.
D. Defendant’s December 15, 2008, Statements
The trial court also properly admitted defendant‟s December 15, 2008, statements.
Defense counsel offered no objection to the second interview, thus forfeiting any
challenge on appeal. (Evid. Code, § 353, subd. (a); People v. Mattson (1990) 50 Cal.3d
826, 854, quoting People v. Milner (1988) 45 Cal.3d 227, 236.) Recognizing the
forfeiture, defendant asserts defense counsel was ineffective in failing to challenge the
December 15, 2008, statements on the basis that his Miranda waiver was invalid under
Missouri v. Seibert (2004) 542 U.S. 600, and his statements were obtained by means of
an impermissible two-step interrogation.
In order to establish ineffective assistance of counsel, the defendant must
demonstrate that his counsel performed deficiently causing prejudice and depriving him
of a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) In order to
demonstrate sufficient prejudice to overturn a conviction, the defendant “„must show that
there is a reasonable probability that, but for counsel‟s unprofessional errors, the result of
the proceeding would have been different.‟” (People v. Montoya (2007) 149 Cal.App.4th
1139, 1147, quoting Strickland, at p. 694.) Defendant cannot establish either prong.
12 In Seibert, the investigating officer “testified that he made a „conscious decision‟
to withhold Miranda warnings, thus resorting to an interrogation technique he had been
taught: question first, then give the warnings, and then repeat the question „until I get the
answer she‟s already provided once.‟” (Missouri v. Seibert, supra, 542 U.S. at pp. 605-
606.) Defendant declares that the questioning on December 15, 2008, was “precisely the
type of questioning technique declared unconstitutional by the Court in Siebert.” We
disagree. A court applying Seibert must exclude statements obtained where officers
“deliberately employ a two-step interrogation to obtain a confession and where
separations of time and circumstance and additional curative warnings are absent or fail
to apprise a reasonable person in the suspect‟s shoes of his rights . . . .” (People v. Rios
(2009) 179 Cal.App.4th 491, 505, quoting United States v. Williams (9th Cir. 2006) 435
F.3d 1148, 1157-1158.) Even where a two-step interrogation tactic is implemented, a
substantial break in time and circumstances between the pre-warning statement and the
Mirandized statement may remedy the harm, as the accused may “distinguish the two
contexts and appreciate that the interrogation has taken a new turn.” (People v. Camino
(2010) 188 Cal.App.4th 1359, 1369-1370, citing Missouri v. Seibert, supra, 542 U.S. at
p. 622.)
As already discussed, defendant‟s December 8, 2008, statements were not
procured in violation of Miranda because defendant was not in custody at the time the
statements were made. Therefore, defendant‟s statements on December 8, 2008, and
December 15, 2008, were both admissible and Seibert does not apply. Furthermore, there
is no indication that the officers conducted the December 15, 2008, interview as part of a
13 deliberate two-step interrogation. Sergeant Jiles testified that he did not advise appellant
of his Miranda rights on December 8, 2008, because “[h]e was not in custody,” and
because he considered defendant a witness not a suspect. Sergeant Jiles read defendant
his Miranda rights on December 15, 2008, because the district attorney‟s office had filed
charges and Jiles considered defendant in custody. Defendant was read his Miranda
rights before the second interview because he was under arrest and in custody.
The facts of defendant‟s case differ significantly from the police misconduct in
Seibert. The December 8, 2008, interview was conducted without any coercion.
Defendant was not in custody or treated as if he were. Additionally, there was a
substantial break in time and circumstances between the December 8, 2008, and
December 15, 2008, interviews, rather than 20 minutes in Seibert. At the time of the
second interview, defendant had been charged and moved into the jail ward, and he was
“in custody.” Under Miranda, the officers were then required to read defendant his rights
at the second interview.
We also reject defendant‟s assertion that his December 15, 2008, statements were
improperly “derived” from his un-Mirandized December 8, 2008, statements. In Oregon
v. Elstad (1985) 470 U.S. 298, 309, the United States Supreme Court rejected the idea
that a subsequent confession must necessarily be excluded because it follows an
otherwise voluntary statement given without Miranda warnings: “It is an unwarranted
extension of Miranda to hold that a simple failure to administer the warnings,
unaccompanied by any actual coercion or other circumstances calculated to undermine
the suspect‟s ability to exercise his free will, so taints the investigatory process that a
14 subsequent voluntary and informed waiver is ineffective for some indeterminate period.”
During the December 15, 2008, interview, defendant told officers he wanted to help them
by providing information—hardly a statement he would not have made if he had been
unlawfully compelled to confess only a week earlier.
E. Harmless Error
Any error admitting defendant‟s statements was harmless beyond a reasonable
doubt. (People v. Thomas (2011) 51 Cal.4th 449, 498.) Even without defendant‟s
admissions, the undisputed evidence of his participation in the crime was extensive.
Boutieller and several other witnesses testified in consistent detail about defendant‟s
actions, including that the ESV gang sought to “tax” Boutieller by robbing him and
burglarizing his house, as also corroborated by the testimony of Deputy Conley, the gang
expert. Defendant‟s motive was thus independently established by the testimony of
Boutieller and Conley.
IV
CORRECTION OF THE ABSTRACT OF JUDGMENT
The People concede the abstract of the judgment should be corrected to reflect the
sentence on count 6 was stayed by the court pursuant to section 654. Defendant was
convicted in count 6 of assaulting Boutieller‟s sister with a firearm. For that count, the
court sentenced defendant to one-third the midterm sentence for a total sentence of one
year. It doubled the sentence pursuant to defendant‟s strike “for a total amount of two
years consecutive to additional time [defendant was] serving.” It then increased the
sentence to five years because of defendant‟s gang enhancement, and stayed the sentence
15 pursuant to section 654. Because the abstract of judgment erroneously provided for a
concurrent sentence, it should be corrected to reflect the fact the sentence was stayed
under section 654.
V
DISPOSITION
We order the superior court to correct the abstract of judgment to show the
sentence on count 6 was stayed under section 654, not imposed concurrently, and to
provide a copy of the amended abstract to the parties and to the Department of
Corrections and Rehabilitation within 30 days after this opinion becomes final.
Subject to that modification, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
HOLLENHORST Acting P. J.
KING J.