Opinion
E054130
02-06-2013
THE PEOPLE, Plaintiff and Respondent, v. ISRAEL DEJESUS HERMOSILLO, Defendant and Appellant.
Victoria Barana and Howard C. Cohen, 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, and James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. FVA900234)
OPINION
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Affirmed.
Victoria Barana and Howard C. Cohen, 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, and James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Israel Hermosillo appeals from his conviction of commercial robbery (Pen. Code, § 211, counts 1 & 5), attempted commercial robbery (§§ 661, 211, count 3), and assault with a semiautomatic firearm (§ 245, subd. (b), counts 2, 4, & 6) with associated enhancements. Defendant contends the trial court erred in denying his motion under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) to exclude incriminating extrajudicial statements made while in custody and in response to interrogation. We find no error, and we affirm.
All further statutory references are to the Penal Code unless otherwise specified.
II. FACTS AND PROCEDURAL BACKGROUND
A. AM/PM Robbery
Gloria Gutierrez and Alejandro Reyes were working at an Arco AM/PM gas station in Fontana on December 6, 2008. About 5:40 a.m., a man wearing a bandanna covering his face, a plaid shirt, and a black hooded sweatshirt, entered the store. The man fired a gun and then asked Gutierrez for money. She gave him $70 to $80 from the cash register while he pointed his gun toward her face from a distance of two to three feet. The man asked for money from the safe, and Gutierrez told him she did not have the key. The man became angry, and he fired a second shot right past Gutierrez.
Reyes was working inside the cooler when he heard two abnormally loud noises. He left the cooler to investigate, and a man came out from behind Gutierrez, pointed a gun at him, asked for money, and told him to open the safe. Reyes said he did not have the key. The man told Reyes to get to the ground, but Reyes did not at first understand him, and the man fired three shots in Reyes's direction. The man then ran toward the Superior Market across the street. A surveillance videotape of the incident was played for the jury.
Other witnesses referred to the Superior Food Warehouse and the Superior Grocery Store. For convenience, we will use Superior Market herein.
In January 2009, a police officer showed Reyes a photographic lineup of men with their lower faces covered, and Reyes said that defendant's photograph, taken in 2006, resembled the robber, although the robber had looked older.
B. Valero Gas Station Robbery
Dayuth Deth was working at a Valero gas station in Fontana on January 23, 2009. About 11:00 p.m., a man wearing a hooded jacket, with something covering the lower part of his face, entered the store and wandered around for a few minutes. The man bought a can of oil, and as he was leaving, Deth saw a gun in his jacket pocket. Deth called 911.
Other customers cleared the store a few minutes after the man had left, and the man then reentered and pointed a gun at Deth's face and told him to put money in a bag. Deth gave him $150 to $200 from the cash register. The man left the gas station and went over a block wall into a field. A surveillance videotape of the incident was played for the jury. On January 25, Deth identified defendant's photograph from a photographic lineup.
C. Police Investigation
About 11:10 p.m. on January 23, 2009, a police officer searched the field where the suspect had run and found a magazine for a semiautomatic handgun with three bullets in it and a nine-millimeter bullet beside the magazine. Later that night, another officer located a nine-millimeter semiautomatic Ruger handgun in another nearby field about 20 feet west of Tokay Street. There was no magazine in the gun.
On January 24, a police officer noticed a man who matched the description of the Valero robbery suspect; the man appeared to be looking for something in the bushes near Tokay Street about 100 yards from where the gun had been found. Defendant told the officer he was looking for his dog, and he pointed to a dead dog nearby. Defendant said his dog had run away a day or two earlier, but the dead dog appeared to have been dead well over a week. Defendant was wearing a gray shirt, black and white shoes, and dark pants, and he had a key lanyard around his neck. Defendant had a scab on his right hand, and he said he had recently removed a bandage. The man shown in the surveillance videotape of the Valero robbery had a bandage on his right hand and was wearing a gray shirt under his jacket, black and white tennis shoes, and black pants, and he had a key lanyard around his neck.
Also on January 25, officers executed a search warrant for the house where defendant was renting a room. In defendant's room, they found a paycheck stub in defendant's name from Superior Market and a pair of black pants similar to those worn by the suspect in the Valero robbery. A single spent nine-millimeter shell casing was found in the pocket of the pants. The officers also seized an empty box of Wolf nine-millimeter rounds, two bandannas, and a jacket with a hood which were similar, but not identical, to those worn by the robber in both incidents. Defendant was arrested for the Valero robbery.
Five spent shell casings found at the scene of the AM/PM robbery and the spent shell casing found in defendant's pants pocket all were determined to have been fired from the recovered Ruger pistol.
Officer David Campa testified that after he learned of the ballistics results, he went to defendant's house to interview him about the AM/PM robbery. Officer Campa knocked on defendant's bedroom door, and defendant stepped out into the hallway. Before the officer could say anything, defendant "explained that he had already bailed out on a previous robbery and I had nothing on him, the previous robbery being the Valero Gas Station one." The officer "indicated that [the police] had evidence that led [them] to believe he was a suspect involved in an additional robbery. And during the commission of that robbery, he fired towards the actual store clerk, trying to kill him." Defendant replied, "'No, no.' He admitted to the robbery, but he said he wasn't trying to kill nobody. He was just shooting up in the air." The whole exchange had happened within 30 seconds, and the officer had never asked defendant a question.
D. Defense Evidence
Defendant testified in his own behalf. He had been working Monday through Saturday in December 2008 as the night manager at the Superior Market, and he usually got off work at 7:30 a.m. His work uniform was a dark gray polo shirt, black pants, and black shoes. He did not remember where he had been on January 23, 2009. On December 6, 2008, he would have been at work. He denied committing the robberies. The empty ammunition box found in his room was not his; the box had been there since he had first rented the room in November 2008. He had never seen the shell casing that had been found in his pants pocket, and he did not believe the officers were being honest about finding the shell casing in his pants. He had never possessed or fired a nine-millimeter handgun and had never possessed bullets for such a gun. Tokay Street is about 50 feet from his home. When he was stopped by the police on January 24, 2009, he was looking for his dog. He found the dog dead in the bushes.
Officer Campa had entered his bedroom without knocking in March 2009, and the officer said he was going to book defendant for attempted murder or robbery. Defendant said he had nothing to say to the police. Both officers had their guns drawn and were pointing them at him. He never made the statements attributed to him that day.
E. Defendant's Statement to Police and Motion to Suppress
Before trial, defendant moved to suppress his statement made to the police officer on March 14, 2009. At the hearing on the motion, Officer Campa testified he had gone to the Fontana residence where defendant rented a room. The officer did not have an arrest warrant or search warrant; he wanted to talk to defendant about defendant's being a possible suspect in the AM/PM robbery. He knew defendant had been arrested for the Valero robbery and that a spent shell casing had been found in defendant's bedroom and that the shell casing matched those at the AM/PM.
Officer Campa, accompanied by Officer Snyder, was admitted into the residence by the homeowner. The officers went to defendant's room and knocked on the door. Defendant opened the door and stepped out into the hallway. Without being questioned, defendant said he was already out on bail in a case, and the officer had nothing on him. Officer Campa testified he had explained to defendant that they had evidence indicating defendant was a suspect in another armed robbery during which he had shot several rounds at a clerk, trying to kill him. Defendant said, "No, no, no." He admitted to the armed robbery but denied he had been trying to kill anyone; he had just been shooting up in the air. Officer Snyder never said anything to defendant.
Officer Campa was wearing his police gang unit uniform and was carrying a gun, which remained holstered; Officer Snyder was similarly dressed. Officer Campa did not tell defendant he was under arrest, did not handcuff him, and did not give him any orders. Neither officer drew his gun. Defendant made his inculpatory statement within one minute from when the encounter began. The officer did not record defendant's statement because it "happened all of a sudden," and he "wasn't expecting [defendant] to make the statement."
After defendant made the statement, Officer Campa took him outside and arrested him. His original intention had been to take defendant outside to talk in the police vehicle or to ask him to accompany him to the police department, but he never had a chance to do that.
The trial court found that defendant had been in "the functional equivalent of an arrest" when he made his statement, but that no interrogation had taken place. The court explained: "The analysis then switches to whether interrogation occurred. And it doesn't require expressed [sic]questioning, but it requires either expressed questioning or the functional equivalent. And in a case where an officer is explaining why he's there to talk to somebody or what he's being arrested for or detained for, I don't think that arises to the functional equivalent of an interrogation. [¶] In this matter the officer indicated, in clarification for the defendant's edification, that there wasn't a mistake, that he already—that the defendant had indicated he was—had already been arrested and bailed out in a particular incident. The officer was explaining that, no, there's something else we need to talk to you about, but there wasn't questioning that occurred."
F. Verdict and Sentence
The jury found defendant guilty of commercial robbery (§ 211, counts 1 & 5), attempted commercial robbery (§§ 664, 211, count 3), and assault with a semiautomatic firearm (§ 245, subd. (b), counts 2, 4, & 6). The jury also found true allegations as to counts 1 and 3 that defendant personally used and personally discharged a firearm (§ 12022.53, subds. (b), (c)); as to counts 2, 4, and 6 that defendant personally used a firearm (§ 12022.5, subds. (a), (d)); as to count 5 that he had personally used a firearm (§ 12022.53, subd. (b)); and as to counts 5 and 6, that he had personally used a firearm (§ 12022.5, subd. (a)).
The trial court sentenced defendant to 34 years eight months in prison.
III. DISCUSSION
Defendant contends the trial court erred in denying his motion to exclude incriminating extrajudicial statements made while in custody and in response to interrogation.
Because we conclude no interrogation took place, it is unnecessary for us to determine whether defendant was in fact in custody when he made his statement.
A. Standard of Review
In reviewing the trial court's denial of a motion to suppress a statement purportedly obtained in violation of Miranda, we "accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.]" (People v. Wash (1993) 6 Cal.4th 215, 235-236.) We then determine independently whether the challenged statements were improperly obtained. (Id. at p. 236.)
B. Analysis
Under Miranda, "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 (Sims), overruled on other grounds in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032.) Statements obtained in violation of Miranda may not be used to establish guilt. (Sims, supra, at p. 440.)
"Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject." (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301, fns. omitted (Innis).)Stated another way, "[t]he questioning prohibited by Miranda means 'substantive questions which portend to develop the facts under investigation.'" (People v. Patterson (1979) 88 Cal.App.3d 742, 748.) "In deciding whether police conduct was 'reasonably likely' to elicit an incriminating response from the suspect, we consider primarily the perceptions of the suspect rather than the intent of the police." (People v. Davis (2005) 36 Cal.4th 510, 554 (Davis).)
In Innis, the defendant was arrested, given his Miranda admonishments, and invoked his right to counsel. (Innis, supra, 446 U.S. at p. 293.) While he was placed in the backseat of a patrol car, two officers in the front seat discussed their concern that school children would find the murder weapon, a shotgun, and hurt or kill themselves. (Id. at pp. 294-295.) The defendant then told the officers he would show them where the gun was. The United States Supreme Court held the conversation between the officers was not interrogation within the meaning of Miranda, but was "nothing more than a dialogue between the two officers to which no response from the [defendant] was invited," and it was not the "'functional equivalent' of questioning." (Innis, supra, at p. 302.)
Defendant relies primarily on Sims and Davis to support his argument that Officer Campa interrogated him. In Sims, the defendant had been arrested in another state for a murder in California, and he invoked his Miranda rights. When the officers prepared to leave the interview room at the jail, the defendant asked them about being extradited to California or to South Carolina where he was wanted for other crimes. A police officer from California told the defendant there was a warrant for his arrest in South Carolina for the murder of two Domino's Pizza employees and a warrant for the defendant's arrest in California for the murder of another Domino's Pizza employee, and that the officer intended to commence extradition proceedings. The officer "testified he thereafter 'explained to Mr. Sims that I was from Glendale. I told him that I was present at the Regalodge in the City of Glendale on December the 10th, in which a body of a male was discovered in a room of the Regalodge, room 205, and at this point I had reason to believe that he and a female companion occupied that room prior to the demise of [the victim]. . . .' (Italics added.) The officer further testified on cross-examination that he told defendant that the murder victim had delivered a pizza to that motel room. Defendant, seated and looking toward the corner of the interview room, interrupted the officer, stating, 'I had to kill that boy.' Surprised at the remark, [the officer] asked defendant a question to the effect, 'What did you say?' Defendant repeated, 'I had to kill that boy.' [¶] [The officer] continued describing the crime scene, including the condition of the victim, bound, gagged, and submerged in the bathtub, and said to defendant that the victim 'did not have to die in this manner and could have been left there tied and gagged in the manner in which he was found.' Defendant replied, 'The boy would have identified me.'" (Sims, supra, 5 Cal.4th at p. 438.) The California Supreme Court found the officer's statements were the functional equivalent of interrogation because they indirectly accused the defendant of the murder and were likely to induce him to incriminate himself. (Id. at pp. 442-444.) The court explained: "The record reflects that at the time he met with defendant, [the officer] was aware defendant already had been advised by the Nevada authorities that they were arresting him for a murder committed in Glendale. Under such circumstances, and viewed from an objective perspective, [the officer's] conduct in describing the motel-room crime scene, and asserting that defendant had occupied that motel room and that the victim had delivered a pizza to the room before his death, would not reasonably have been understood as simply informing defendant of the charges pending against him or of the next step in extradition proceedings." (Id. at p. 442.)
We conclude that Sims is distinguishable and is therefore unhelpful to defendant's position. In Sims, the defendant had been arrested and had invoked his Miranda rights. When he asked a question about extradition proceedings, the officer gave a nonresponsive reply, "focusing upon the investigation, and confronting defendant with the evidence linking him to the crimes," and which "served no legitimate purpose incident to defendant's arrest or custody." (Sims, supra, 5 Cal.4th at p. 443.) Here, in contrast, Officer Campa made a single statement in response to defendant's assertion that he was out on bail on a robbery charge, and the officers had nothing on him. Officer Campa's statement had the legitimate purpose of informing defendant of the possible new charge the officers wished to discuss with him. In Davis, after the defendant was arrested, he was placed in a holding cell with the codefendants after he was invoked his Miranda rights. The defendant's conversation was recorded. During the recording, a detective entered the holding cell. The following dialogue ensued:
Carrying defendant's argument to its logical conclusion, it would always be a violation of Miranda for officers to tell any subject in custody what crime they wanted to interview him about unless the officers first administered Miranda admonishments.
"'Det. DeAnda: Well, you are going to court tomorrow my friend.
"'[Defendant]: So what will happen?
"'Det. DeAnda: Well we filed murder counts on you.
"'[Defendant]: How many?
"'Det. DeAnda: Two. Special Circumstances.
"'[Defendant]: What's that?
"'Det. DeAnda: . . . Special Circumstances means that you can get life in prison without parole or the death penalty.
"'[Defendant]: Oh man.
"'Det. DeAnda: Alright remember that Uzi?
"'[Defendant]: Yeah.
"'Det. DeAnda: Think about that little fingerprint on it we'll see ya (Jail door closes).
In fact, no fingerprint had been found on the weapon. (Davis, supra, 36 Cal.4th at p. 552.)
--------
"'[Codefendant]: Say what? Is he talking about everybody?
"'[Defendant]: No man he talking about me.'" (Davis, supra, 36 Cal.4th at pp. 552-553.) The defendant thereafter made incriminating remarks to his codefendants that were recorded. (Id. at p. 553.)
On the defendant's appeal, our Supreme Court held that the detective "directly engaged in interrogation when he asked defendant if he 'remember[ed] that Uzi,'" and "[t]hat question, after defendant had invoked his Miranda rights," elicited an incriminating response. (Davis, supra, 36 Cal.4th at p. 555.) The court further held that the detective's comment that defendant's fingerprint had been found on the weapon indirectly accused defendant of shooting the victims and was likely to elicit an incriminating response. (Ibid.)
We find Davis distinguishable. First, unlike in Davis, the officer in the instant case did not ask a direct question of defendant and did not engage in an extended dialogue with him. Second, the officer's statement about the AM/PM robbery was in response to defendant's assertion that he was already out on bail and the officers had nothing on him; the officer's statement thus served merely to clarify to defendant which of the robberies they wished to discuss with him.
This case is far more similar to People v. Haley (2004) 34 Cal.4th 283, in which the defendant had been arrested for murder and placed in a police car when a detective told him the detective knew the defendant had committed the murder because his fingerprints had been found at the scene. The defendant replied, "'You're right, I did it.'" (Id. at p. 300 & fn. 7.) The court rejected the defendant's argument that his statement had been made in response to police interrogation because the officer's statement was not phrased as a question, did not call for an incriminating response, and merely informed the defendant about evidence against him. The court explained: "A brief statement informing an in-custody defendant about the evidence that is against him is not the functional equivalent of interrogation because it is not the type of statement likely to elicit an incriminating response." (Id. at p. 302.) Similarly, in People v. Huggins (2006) 38 Cal.4th 175, 198, the court stated: "[T]elling defendant he was a murder suspect did not call on him to confess; rather, the effect should have been, and indeed was, the opposite: Defendant admitted only the obvious (that he had escaped from a work detail) and denied that he killed [the victim]."
In People v. Dominick (1986) 182 Cal.App.3d 1174, Shedelbower, one of the defendants, was brought to the police station where he was informed of his Miranda rights and then waived those rights. After giving a lengthy narrative in which he made incriminating remarks, he invoked his right to an attorney. While the investigators were preparing to leave the interview room and to take the defendant to the booking area, a detective falsely told Shedelbower that a stabbing victim had identified his picture as one of the persons who had raped her and murdered her friend and truthfully told Shedelbower that his codefendant Dominick was in custody. (Id. at p. 1189.) Shedelbower then told the officers he wanted to talk about the case without an attorney present. (Ibid.)The trial court admitted Shedelbower's statement into evidence, and the Court of Appeal affirmed, explaining: "Inasmuch as the officers had in the earlier interview told Shedelbower that he was not under arrest, it appears that they felt obliged to inform him why he was now going to be held in custody. Thus, they informed him that Dominick was already in custody and further told him that the surviving victim had identified him from photographs, something the officer knew was not yet true. We do not find these comments to constitute interrogation, nor, in the circumstances of this case, to be a form of subtle softening up." (Id. at p. 1190.) Although the circumstances of People v. Dominick are different from those in the present case, the holding that telling a person why he is in custody does not constitute interrogation is relevant and persuasive.
We conclude the trial court did not err in admitting defendant's statement into evidence.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
RICHLI
J.