P. v. Gonzales
Filed 11/5/13 P. v. Gonzales CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
GERALD LUIS GONZALES,
Defendant and Appellant.
B242748
(Los Angeles
County
Super. Ct.
No. VA114826)
APPEAL from
a judgment of the Superior Court
of
County, Robert J. Higa, Judge.
Affirmed.
John A.
Colucci, 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, Senior Assistant Attorney General, Scott A. Taryle and
Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________
A
jury convicted defendant Gerald Luis Gonzales of the
(Pen. Code, § 187, subd. (a)) and possession
of a firearm by a felon (id., §
12021, subd. (a)(1)). The jury also found
true the allegations that Gonzales personally used a firearm (
and intentionally discharged a firearm, causing great bodily injury and death (
the crime for the benefit of, at the direction of, and in association with a
criminal street gang (id., § 186.22,
subd. (b)(1)(C)). After the trial court
found true the allegations that Gonzales suffered two prior strike convictions
(id., §§ 667, subds. (b)-(i),
1170.12), the court sentenced Gonzales to state
prison for a total term of 110 years to life.
Gonzales’ sole contention on appeal
is that the trial court erred in failing to suppress statements he made to
police during an interrogation. We
conclude that the trial court did not err in denying Gonzales’ motion to
suppress the statements, and affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
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In the early morning hours of April 2, 2010 police found Ramirez dead in a converted garage in
Santa Fe Springs. The cause of death was
a single gunshot wound to the head. There
were no signs of a struggle, and Ramirez had no defensive wounds. Police determined that Gonzales lived in the
garage, which was located behind his family’s residence, and that Ramirez had
been staying with Gonzales. Both men
were members of the Conta Ranas gang. Police
broadcast a description of Gonzales.
Later that afternoon, police
apprehended Gonzales in the San Gabriel riverbed. At the police station, Whittier Police Detective
Robert Wolfe advised Gonzales of his Miranda
Gonzales stated he understood his rights but did not ask for an attorney. During the subsequent two-hour videotaped interrogation,
Gonzales initially claimed that he returned home to find his friend dead. Eventually, he confessed to killing Ramirez
for gang-related reasons.
Prior to trial Gonzales filed a
motion seeking exclusion of his videotaped statements to police on the ground,
among others, that his waiver of his Miranda
rights was tainted because he had previously requested an attorney. Gonzales stated in his supporting declaration
that at the scene of his arrest he recognized one of the police officers,
Detective Jerry Reyes, and told him, “I want my lawyer.â€
The trial court held an
Code section 402, prior to which defense counsel clarified that “[t]he basis
for the suppression is not a, quote, Miranda
violation, because on its face there appears to be a compliant warning.â€
Counsel emphasized that the basis for the motion was “the fact that he invoked
his right to counsel in the field, if you will, while being arrested.â€
Whittier Police Detective Joie
Tinajero and Detective Wolfe testified for the People. According to Detective Tinajero, around 3:00
p.m. on April 2, 2010, in response to information that Gonzales had been
spotted running southbound in the San Gabriel riverbed, he and his partner,
Detective Sanchez, drove past Gonzales, got out of their car, walked down into
the riverbed, and waited for him. When
Gonzales was about 20 feet away, the detectives stepped out from behind a tree
and ordered him to the ground at gunpoint.
After Gonzales complied, Detective Tinajero handcuffed him. During the time Gonzales was with Detective
Tinajero, he did not ask the detective why the officers were arresting
him. Gonzales also did not ask for an
attorney or to speak with anyone else. Detective
Tinajero did not ask Gonzales any questions regarding the murder
investigation. The detective stayed with
Gonzales until Detective Wolfe arrived. Once
Detective Wolfe arrived at the riverbed, he took custody of Gonzales.
Detective Tinajero further stated that
there were a number of police officers at the riverbed. He remembered seeing Detective Reyes but did
not know the extent of his involvement with or his proximity to Gonzales. To Detective Tinajero’s knowledge, Detective
Reyes was not close enough to Gonzales to hear anything Gonzales said. Detective Tinajero, however, was not aware of
where Detective Reyes was at all times.
When Detective Wolfe arrived at the
riverbed with his partner, Detective Todd, Gonzales was in the custody of
Detectives Tinajero and Sanchez.
was handcuffed and seated on the bike path with his legs extended along a
fence. Detective Wolfe was with Gonzales
for approximately 30 minutes. During
this time, Gonzales did not ask why he had been arrested, did not say he wanted
to speak with a lawyer, and did not tell Detective Wolfe he did not want to
talk to him. Gonzales did not appear
disoriented or confused, suffering from a mental problem, or under the
influence of a controlled substance or alcohol.
Within five minutes of his arrival, Detective Wolfe asked Gonzales,
without reading Gonzales his Miranda rights
before doing so, where the gun was, because Detective Wolfe was concerned about
public safety. Based on Gonzales’
responses, police were able to locate the gun, which was in a public place and
loaded.
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a patrol car and transported him to the police station. Detective Wolfe stated that if Gonzales had
told another officer he wanted a lawyer, that officer would have informed him
of Gonzales’ request.
After returning to the police
station, Detective Wolfe advised Gonzales of his Miranda rights.
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and did not appear to be confused or disoriented or hallucinating. Gonzales did not state that he was extremely
high or severely intoxicated. He gave no
indication that he did not understand what Detective Wolfe was saying. Gonzales did not ask for an attorney or
refuse to talk to the detective.
Detective Wolfe knew Gonzales from previous contacts and a prior
arrest. At no time during the interview
did Gonzales complain of being tired or wanting to sleep or having a “cloudyâ€
mind. He also never claimed to have told
another officer that he wanted to talk to a lawyer.
After listening to the testimony presented
at the evidentiary hearing and the argument of counsel,
testimony and I’ve read the declaration again, the motion to suppress is
denied.†Defense counsel then stated a
continuing objection to the use of the videotape of Gonzales’ admission, which
was played for the jury.
Gonzales testified at trial. He stated that many of the statements he made
during his interview were lies. Gonzales
testified that Ramirez had left his gun on the couch with the hammer
cocked. When Ramirez returned home,
Gonzales retrieved the gun, which Ramirez had placed on a shelf, and asked Ramirez
to uncock the gun and put it away.
Ramirez, who was tired and lying down, told Gonzales to do it for him. When Gonzales, who did not think the gun was
loaded, attempted to uncock the hammer, the weapon accidentally discharged,
killing Ramirez. Gonzales called out
Ramirez’s name but did not know what to do.
He ran from the scene, taking the gun with him, which he hid on a nearby
street. Gonzales testified that “[i]t
was an accident. And I turned this
accident into one ugly lie.†He admitted
to using methamphetamine regularly and claimed that he had been “up for daysâ€
and was “high as a kite just tweaking out.â€
When an arrestee invokes his right
to counsel, “a valid waiver of that right cannot be established by showing only
that he responded to further police-initiated custodial interrogation even if
he has been advised of his rights.†(
484 [101 S.Ct. 1880, 68 L.Ed.2d 378], fn. omitted.) In fact, an accused who has asked for an
attorney “is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself initiates
further communication, exchanges, or conversations with the police†(
146, 150, 153 [111 S.Ct. 486, 112 L.Ed.2d 489]; Arizona v. Roberson (1988) 486 U.S. 675, 677 [108 S.Ct. 2093, 100
L.Ed.2d 704]) or there has been a break in custody (People v. Storm (2002) 28 Cal.4th 1007, 1013; In re Bonnie H. (1997) 56 Cal.App.4th 563, 584). “‘“Even if a conversation taking place after
the accused has ‘expressed his desire to deal with the police only through
counsel,’ is initiated by the accused, where reinterrogation follows, the
burden remains upon the prosecution to show that subsequent events indicated a
waiver of the Fifth Amendment right to have counsel present during the
interrogation.†[Citation.]’†(People
v. Bradford (1997) 15 Cal.4th 1229, 1311.)
The purpose of the rule in
accused’s choice to communicate with police only through counsel,†[citation]
by “prevent[ing] police from badgering a defendant into waiving his previously
asserted Miranda rightsâ€
[citation].’ [Citation.] It ‘is not a constitutional mandate, but
judicially prescribed prophylaxis.’
[Citation.] Application of the
reference to its prophylactic purposeâ€â€™ and its presumption is not to be
uncritically extended. [Citation.]†(People
v. Thomas (2012) 54 Cal.4th 908, 926.)
Implied in the trial court’s
ruling on the admissibility of evidence is “whatever finding of fact is
prerequisite thereto.†(Evid. Code, § 402,
subd. (c); see People v. DeHoyos
(2013) 57 Cal.4th 79, 132.) Implied in
the trial court’s ruling here denying Gonzales’ motion to exclude his
videotaped statement is the court’s factual finding that Gonzales did not ask any
of the officers, including Detective Reyes, for an attorney while at the
riverbed. Substantial evidence supports
this finding. (See People v. Gamache (2010) 48 Cal.4th 347, 385; People v. Waidla (2000) 22 Cal.4th 690, 730.)
Detective Tinajero, along with his partner,
intercepted Gonzales as he fled in the riverbed. They ordered him to stop at gunpoint and took
him into custody. Detective Tinajero
stayed with Gonzales until Detective Wolfe arrived on the scene. At that point Detective Tinajero turned over
custody of Gonzales to Detective Wolfe, who stayed with Gonzales until placing
him into a patrol car for transportation to the police station. Although Detective Tinajero and Detective
Wolfe confirmed that Detective Reyes was present at the river bed, neither
heard Gonzales ask for an attorney.
The fact that Detective Reyes did
not testify at the Evidence Code section 402 hearing does not mean that the
trial court’s finding is not supported by substantial evidence. There was testimony at the hearing that due
to their close proximity to Gonzales, Detectives Tinajero and Wolfe would have
heard Gonzales if he had said something to Detective Reyes or made a statement
about wanting to speak with an attorney.
They did not hear any such statements.
Moreover, Detective Wolfe testified that, if Gonzales had made such a
request, the officer to whom the request had been made would have advised him.
The People presented ample evidence
establishing that Gonzales did not ask for an attorney at the riverbed and that
there was no violation of Edwards v.
Arizona, supra, 451 U.S. 477. We have no basis to disturb the trial court’s
decision to deny Gonzales’ motion to suppress and to allow the People to
present Gonzales’ videotaped statement to the jury.
DISPOSITION
The judgment is affirmed.
SEGAL,
J.
We concur:
PERLUSS,
P. J.
ZELON,
J.
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appeal involves the narrow issue of the trial court’s ruling on the motion to
suppress, it is unnecessary to set forth in detail the
facts regarding the killing, the investigation, or the extensive gang evidence
introduced during trial.
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[86 S.Ct. 1602, 16 L.Ed.2d 694].
