Opinion
H044665
10-25-2018
THE PEOPLE, Plaintiff and Respondent, v. GERARDO ABOYTES MADRIZ, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1525588)
A jury convicted defendant Gerardo Aboytes Madriz, Jr. of premeditated attempted murder and shooting from a motor vehicle and found true associated firearm enhancement allegations. The trial court sentenced defendant to 32 years to life in prison. On appeal, defendant seeks reversal of his conviction on grounds he was denied his right to testify in his own defense and the trial court prejudicially erred in admitting his post-arrest statement over his Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) objection. Alternatively, defendant requests that the case be remanded to allow the trial court to exercise its discretion as to whether to strike the firearm enhancements based on a recent amendment to Penal Code section 12022.53. We agree that defendant's post-arrest statement should have been excluded and that its admission was not harmless. Accordingly, we reverse without reaching defendant's other claims.
All further statutory references are to the Penal Code unless otherwise indicated.
Separately, defendant filed a petition for writ of habeas corpus (In re GERARDO ABOYTES MADRIZ, JR., H046177), which we resolve by separate order.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
On June 23, 2016, the Santa Clara County District Attorney charged defendant by information with attempted murder (§§ 187, 664, subd. (a); count 1) and willfully discharging a firearm from a vehicle at a person not an occupant of a motor vehicle (§ 26100, subd. (c); count 2). The information alleged that the attempted murder charged in count 1 was willful, deliberate, and premeditated. (§ 189.) The information further alleged that in the commission of both charged crimes, defendant personally and intentionally discharged a firearm and proximately caused great bodily injury to a nonaccomplice. (§ 12022.53, subd. (d).)
B. The In Limine Motion
Defendant was arrested at his workplace on December 15, 2015. At that time and in response to an officer's question, defendant said he had not driven to work that day because his wife had given him a ride. Police found a key to a Nissan in defendant's pocket and the vehicle it started—a Nissan registered to defendant's wife—in the parking lot behind his workplace. Before trial, defendant moved to exclude his statement regarding how he got to work under Miranda. The prosecutor conceded that defendant was in custody and had not received Miranda admonitions at the time he made the statement, but argued it nevertheless was admissible under Miranda's booking exception. The trial court agreed, reasoning that the officer's question sought "routine identifying information."
C. The People ' s Evidence
Fernando Mora Reynaga (Mora) testified that defendant shot him two days before Thanksgiving in 2015. Mora previously had dated defendant's mother, and therefore he knew defendant "very well." Mora was biking down Liberty Street in San Jose's Alviso neighborhood as "[i]t was just getting dark." He saw defendant's car parked in the middle of the street near the post office with the engine running. Mora described the car as a black four-door sedan, which he believed to be either a BMW or a Honda. Mora passed by; defendant followed him in the vehicle. Mora decided to see what defendant, who had been following Mora for several days, wanted. Mora got off his bike, turned around, and asked defendant what he wanted. Defendant, still in his vehicle, said nothing. He shot Mora in the shoulder and drove away. Mora did not see the gun defendant used to shoot him. He waited for 10 to 12 minutes for a passerby to call police.
On cross-examination, Mora admitted to three prior theft convictions: misdemeanor grand theft of a bicycle in 2012, felony grand theft of copper wiring in 2014, and petty theft of alcohol in 2014. Also on cross-examination, Mora testified that defendant had moved in with his mother while she and Mora were dating. Mora said that he "almost never talked to" defendant and denied having "any problems with him." Mora acknowledged that defendant disapproved of his mother and Mora's relationship. But that relationship was over by the time of the shooting. Mora testified he did not know why defendant shot him.
Timothy Robert Cano testified that on the evening of November 24, 2015, he was walking towards the post office when he heard someone tell him to call 9-1-1. Using the light from his cell phone, he found a man—Mora—on the ground with blood around his right shoulder. Cano testified that Mora said his daughter's boyfriend had shot him about 30 minutes earlier; Cano believed he had relayed that information to police. Cano did not recall Mora saying anything about his ex-girlfriend's son or someone named "Jerry."
Defendant occasionally was referred to at trial as "Jerry."
San Jose Police officer Andrew Brown spoke with Cano on the scene. Officer Brown testified that Cano did not tell him that Mora had identified the shooter. Officer Brown's police report did not reflect any statement by Cano that Mora said his daughter's boyfriend had shot him. Officer Brown said he would have included such information in his police report.
San Jose Police officer Joshua Schwitters testified that he performed evidence collection in this case. He arrived at the scene at 6:05 p.m. It was dark by then, the sun having set at 4:52 p.m. Among other things, he searched unsuccessfully for spent shell casings. Based on the absence of any spent casings, Officer Schwitters opined that the shooter either used a revolver (which, unlike a semiautomatic or automatic firearm, does not eject spent casings) or fired from inside a vehicle.
The parties stipulated that the sun set at 4:52 p.m. on November 24, 2015.
San Jose Police officer Michael Jeffery testified that on December 15, 2015, he was briefed about an arrest warrant for defendant. As part of that briefing, he was shown defendant's picture. Officer Jeffery was aware that a black Saturn was associated with the shooting. A records check disclosed defendant's work address—a restaurant in Palo Alto. Officer Jeffery and a surveillance team went to the restaurant, where they "positively identified" defendant and placed him under arrest. A search of defendant yielded a set of keys, including a vehicle key with a Nissan emblem on it. Upon finding the keys, Officer Jeffery asked defendant "if he had driven basically to the business, how he got there to where he was working." Defendant "said that no, he did not. His wife had dropped him off." In a large parking lot to the rear of the restaurant, officers located a Nissan that the key in defendant's pocket started.
It appears Mora may have told officers that defendant drove a Saturn at one time or on the day of the shooting, although that is not entirely clear from the record. On cross-examination, the following exchange took place between Mora and defense counsel:
"Q[:] What kind of car was [defendant] driving at the time you were seeing his mother, do you recall? [¶] A[:] The Subaru of his girlfriend. [¶] Q[:] Was he driving a black Saturn? [¶] A[:] Saturn or Subaru. I'm not sure. That's the same thing I told the police. I wasn't sure if it was a Honda or a BMW. It was a sedan with four doors, black. [¶] Q[:] Well, that brings up my next question. [¶] Didn't you tell an Officer Ceballos that my client drove a black BMW the night of the shooting? [¶] A[:] I told the police that I didn't know if it was a BMW or a Honda. I just told him it was a four door, black. [¶] Q[:] And you also told another officer that [o]n the day of the shooting that my client was driving a black Saturn, correct? [¶] A[:] No, he was the one that told me it was a car, a black Saturn. That it wasn't either a BMW or a Honda."
Officers searched the Nissan, which was registered to defendant's wife, pursuant to a search warrant on December 22, 2015. In the backseat, under a blanket and wire baskets, officers found a metal case containing a revolver. In the revolver's cylinder were five rounds and one spent casing. A criminalist at the crime laboratory swabbed the revolver for DNA. Both a swab of the trigger and a swab of the grip, hammer, cylinder release, and front sight contained a mixture of DNA from at least two contributors. The DNA analyst concluded that the statistical likelihood of the DNA results obtained from the trigger were "100,000 times greater if it originated from [defendant] and an unknown individual compared to two unknown individuals in the population." The statistical likelihood of the DNA results obtained from the grip, hammer, cylinder release and front sight were "1.3 million times greater if it originated from [defendant] and an unknown individual compared to two unknown individuals."
D. The Defense Evidence
Carmen Ramirez, a 13-year resident of the Alviso neighborhood, testified that she had known Mora for eight years, but "[n]ot very well." She estimated they had interacted about 10 times, though she conceded they had not done so at all in the preceding four years. Ramirez testified that Mora has a reputation for "short chang[ing] people on things," including drugs and items he finds in the street and sells. She also stated that he has a reputation for borrowing things and not returning them, for selling drugs, and for dishonesty. She had never witnessed him selling drugs.
Ramirez testified that she had known defendant for five years and was friends with his aunt.
E. Closing Arguments and Jury Instructions
The prosecutor argued in closing that defendant's "false statement" regarding "whether his wife had given him a ride to work" was "going to be critical for [jurors] in deciding" whether defendant was guilty. The prosecutor asserted that defendant had "lie[d]" by saying he had not driven to work to prevent police from finding the gun in the vehicle. He urged jurors to conclude the lie evinced an awareness of guilt.
Jurors were instructed with CALCRIM No. 362 that "[i]f the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
F. Verdict and Sentencing
On August 18, 2016, the jury returned guilty verdicts on both counts and found true the associated firearm enhancement allegations.
The trial court sentenced defendant on May 1, 2017. The court imposed a sentence of life with the possibility of parole after seven years on count 1; plus 25 years to life for the associated firearm enhancement (§ 12022.53, subd. (d)); and the middle term of five years on count 2, plus 25 years to life for the associated firearm enhancement (§ 12022.53, subd. (d)). The court stayed the term on count 2 under section 654, for an aggregate prison term of 32 years to life.
Defendant timely appealed.
II. DISCUSSION
Defendant maintains the trial court prejudicially erred under Miranda, in admitting his response to Officer Jeffery's question regarding how he got to work.
A. Legal Principles and Standard of Review
In Miranda, the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (Miranda, supra, 384 U.S. at p. 444.) The court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Ibid., fn. omitted.) "[T]he 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 suspect." (Rhode Island v. Innis (1980) 446 U.S. 291, 301-302, fns. omitted.)
Routine booking questions seeking "the ' "biographical data necessary to complete booking or pretrial services" ' " are not interrogation for purposes of Miranda. (Pennsylvania v. Muniz (1990) 496 U.S. 582, 601-602 (Muniz) (plur. opn. of Brennan, J.) [questions regarding the defendant's name, address, height, weight, eye color, date of birth, and current age "fall outside the protections of Miranda and the answers thereto need not be suppressed"]; see id. at 608 (conc. & dis. opn. of Rehnquist, C. J.) [assuming the existence of a "routine booking question" exception but finding it "unnecessary to determine whether the questions fall within" it].) The rationale underlying this so-called "booking exception," is that "such questioning is generally unrelated to crime and unlikely to elicit an incriminating response." (People v. Elizalde (2015) 61 Cal.4th 523, 535 (Elizalde).) Our Supreme Court has given the booking exception a "narrow reading," under which it applies to booking questions seeking "the basic biographical data contemplated in Muniz," but not necessarily to "all questions asked during booking [merely because they] are reasonably related to administrative concerns." (Id. at pp. 535-536 [holding that questions about defendant's gang affiliation fell outside the booking exception].)
"In reviewing the trial court's ruling on a claimed Miranda violation, ' "we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from [those facts] whether the challenged statement was illegally obtained." ' [Citations.]" (Elizalde, supra, 61 Cal.4th at p. 530.)
B. The Statement Should Have Been Excluded
Officer Jeffery's question regarding how defendant got to work did not seek the sort of biographical data at issue in Muniz (i.e., name, address, height, weight, eye color, date of birth, and age). Nor did it elicit information that, like such biographical data, would enable police to identify defendant. Indeed, Officer Jeffery testified that he and his team already had "positively identified" defendant, placed him under arrest, and conducted a search incident to that arrest at the time the question was posed.
The Attorney General contends that the officer's question did serve "basic identification purposes" because "the presence of a vehicle among other things implied a driver's license," and because officers needed "to ensure defendant was the subject of the arrest warrant (he did not appear to be associated with a Saturn or Subaru)." The record and common sense contradict these claims. Officers already had identified defendant and arrested him. Conceivably, officers may have wanted to confirm defendant's identity with his driver's license, which also could have provided them with "the ' "biographical data necessary to complete booking or pretrial services." ' " (Muniz, supra, 496 U.S. at pp. 601-602.) But, having searched defendant, officers likely already knew whether he had a driver's license on his person. In any event, the idea that they would have attempted to locate defendant's driver's license by asking how he got to work that day is, at best, implausible. And the record disproves the Attorney General's claim that officers asked about defendant's mode of transportation "to ensure [he] was the subject of the arrest warrant," a person they understood "to be associated with a Saturn or Subaru." Officers discovered a key to a Nissan in defendant's pocket, which started a Nissan in the parking lot. If officers in fact believed they needed to link defendant to a Saturn or a Subaru to identify him as the subject of the arrest warrant, then, upon discovering the Nissan, they would have released him. That they did not do so establishes officers were not asking about defendant's mode of transportation to confirm that he was their man.
Alternatively, the Attorney General argues the officer's question fell within the booking exception because it sought information necessary to secure defendant's "vehicle and its contents." But he cites no case holding that the booking exception applies to questions seeking information necessary to secure a defendant's property, nor are we aware of any. As the Elizalde court explained, "[i]t is no answer that the questions are necessary to meet police administrative concerns." (Elizalde, supra, 61 Cal.4th at p. 536.) Police may have good reason to ask any number of questions of unadmonished arrestees. But "[t]he fact remains that unadmonished custodial interrogation implicates the Fifth Amendment." (Ibid.)
In admitting defendant's statement pursuant to Miranda's booking exception, the trial court relied on United States v. Cowan (8th Cir. 2012) 674 F.3d 947 (Cowan). There, "[b]ased upon information from a confidential informant, a controlled purchase of crack cocaine, and surveillance, police officers in Davenport, Iowa, believed crack cocaine transported from Chicago, Illinois, was being sold out of [a particular] apartment . . . ." (Id. at p. 951.) Police obtained a warrant to search the apartment. While executing that search warrant, "officers discovered at least eight adults, including Cowan, and two children in the apartment. The officers handcuffed Cowan and others." (Ibid.) After checking defendant's identification and while frisking him, a detective "asked Cowan how he got to the apartment. Cowan claimed he had traveled by bus from Chicago." (Ibid.) The Eighth Circuit concluded that Cowan's response "was not obtained in violation of Miranda" because the detective's question fell within the booking exception. (Id. at p. 958.) The court reasoned that the inquiry was a " 'request for routine information necessary for basic identification purposes,' " as the detective "was trying to understand and identify [the defendant's] presence in the apartment." (Ibid.) This case is not analogous. Officers did not need to know how defendant arrived at his workplace to "understand and identify" his presence there. They knew who he was and why he was there. For the foregoing reasons, we conclude that the question at issue was not a booking question, and therefore was not exempt from the definition of interrogation for purposes of Miranda.
The question constituted interrogation under Miranda because police should have known it was reasonably likely to elicit an incriminating response. (Elizalde, supra, 61 Cal.4th at p. 538 [questions that "do not conform to the narrow exception contemplated in Innis and Muniz for basic identifying biographical data necessary for booking or pretrial services . . . must be measured under the general Innis test, which defines as 'interrogation' questions the police should know are 'reasonably likely to elicit an incriminating response' "].) At the time of defendant's arrest, officers had reason to believe Mora was shot from a car, based on his description of the shooting and the absence of any spent shell casings at the scene. Officer Jeffery himself was aware that a vehicle (a black Saturn) was believed to be associated with the shooting. In that context, asking defendant whether he drove to work was reasonably likely to elicit an incriminating response. (See United States v. Guess (E.D. Va. 2010) 756 F.Supp.2d 730, 741-742 ["asking the [d]efendant whether or not he had a vehicle" held not to fall within the booking exception where it was not asked during booking and it "was reasonably likely to elicit an incriminating response" because, "[a]t the time of the arrest, the officers already suspected that the [d]efendant owned a white pickup truck and drove that pickup truck to the scene of the methamphetamine transaction"]; United States v. Williams (D.D.C. 2012) 878 F.Supp.2d 190, 210 [asking defendant during the booking process "how he had arrived at the police station" held not to fall within the booking exception where "[h]is mode of transportation on that particular day [was] not a personal identifying characteristic, nor was his answer necessary to serve a required property seizure receipt" and the "question [related] directly to [defendant's] connection with evidence of criminal activity"].) Because defendant was in custody and Officer Jeffery's question constituted interrogation under Miranda, defendant's unadmonished answer was inadmissible at trial.
C. Prejudice
"The erroneous admission of a defendant's statements obtained in violation of the Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18. [Citations.] That test requires the People here 'to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' [Citation.]" (Elizalde, supra, 61 Cal.4th at p. 542.) Here, that burden is not met.
The primary evidence of defendant's guilt was an eyewitness identification by the victim, who had a prior relationship with defendant. In many cases, such testimony would be strong evidence of guilt. But, here, other evidence casts doubt on Mora's credibility generally and the accuracy of his identification specifically. As to Mora's credibility, jurors learned he had suffered three theft convictions, including one for felony grand theft, in the three or four years preceding the shooting. "Theft 'reflects dishonesty and is a crime involving moral turpitude.' " (People v. Mireles (2018) 21 Cal.App.5th 237, 247.) Jurors were instructed that a witness's prior felony conviction was a factor they properly could consider in evaluating the credibility of that witness's testimony.
The circumstances surrounding the shooting raised questions about the reliability of Mora's eyewitness identification. In particular, the shooting took place as it was getting dark, likely after the sun had set. And the shooter remained inside a vehicle. Given the later fact, Mora's inability to describe the vehicle in any detail likewise raised questions about the accuracy of his identification.
The only arguably corroborative evidence was that defendant had access to a revolver, which DNA evidence indicated he had handled and that someone had fired a single bullet from at some point in time. But that gun was not conclusively linked to the shooting. As to motive, there was evidence defendant disapproved of Mora's relationship with defendant's mother, but that relationship was over. Cano, by all accounts an impartial witness, testified Mora told him his daughter's boyfriend was the shooter, not an ex-girlfriend's son. And while Mora testified that he identified defendant as the shooter to police at the scene, no police officer testified to that effect.
The prosecutor himself characterized defendant's "false statement" regarding "whether his wife had given him a ride to work" as "critical for [jurors] in deciding" whether defendant was guilty. In the context of this case, it may well have been the deciding factor.
The Attorney General's arguments to the contrary are unpersuasive. He contends the admission of defendant's statement was harmless because it "admitted nothing about a crime" and was unnecessary to link defendant to the gun in the Nissan. While true, these arguments ignore the reason the statement was damaging to the defense—as the prosecutor argued forcefully in his closing argument, jurors could consider defendant's apparent lie as evidence of consciousness of guilt. Picking up on a theory advanced by defense counsel in closing, the Attorney General notes that "no evidence disproved the statement's literal truth, e.g., defendant might have left the car at work the previous night to drive it home that day." But no evidence supported such an inference, which is far less reasonable than the one urged by the prosecutor at trial—that defendant had driven to work and lied about it in hopes police would not find the gun in his vehicle. Finally, the Attorney General says "[a]ny assumed falsity of the statement was explicable as defendant not wanting to deprive his wife of her car if impounded." Once again, the inference the Attorney General now urges—that defendant lied to police to avoid inconveniencing his wife—is far less reasonable than the alternative urged by the prosecutor at trial—that defendant lied because there was evidence linking him to the shooting in his vehicle.
For the foregoing reasons, we cannot conclude, beyond a reasonable doubt, that the erroneous admission of defendant's post-arrest statement did not contribute to the guilty verdicts.
III. DISPOSITION
The judgment of conviction is reversed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
PREMO, J.