PEOPLE v. CRUZ
Filed 7/24/08 (this opn. should follow S148029, also filed 7/24/08)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S042224
v. )
) Sonoma County
TOMAS VERANO CRUZ, ) Super. Ct. No. 21687
)
Defendant and Appellant. )
)
Story Continued From Part II ..
B. Guilt Phase Issues
1. Refusal to Instruct on Voluntary Manslaughter
Defendant contends the trial court erred in refusing his request for voluntary manslaughter instructions based on provocation/heat of passion, and further, that the court had a sua sponte duty to instruct on imperfect self-defense as another theory of voluntary manslaughter. We find no such instructional error on this factual record.
Manslaughter, a lesser included offense of murder, is an unlawful killing without malice. ( 192; People v. Ochoa (1998) 19 Cal.4th 353, 422.) Malice is presumptively absent when a defendant kills upon a sudden quarrel or heat of passion ( 192, subd. (a)), provided that the provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment. (People v. Berry (1976) 18 Cal.3d 509, 515.) Similarly, when a defendant kills in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury, the doctrine of imperfect self-defense applies to reduce the killing from murder to voluntary manslaughter. (People v. Michaels (2002) 28 Cal.4th 486, 529; In re Christian S. (1994) 7 Cal.4th 768, 771, 773.)
In a criminal case, a trial court must instruct on general principles of law relevant to the issues raised by the evidence, even absent a request for such instruction from the parties. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The obligation extends to instruction on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present, but not when there is no evidence that the offense committed was less than that charged. (Ibid.)
As explained in People v. Barton (1995) 12 Cal.4th186, a trial court must instruct on provocation/heat of passion as a theory of manslaughter, if supported by substantial evidence, even when the defendant objects on the basis that the instructions would conflict with his theory of the defense. (Id. at pp. 194, 196, 201.) The same sua sponte instructional obligation applies to unreasonable/ imperfect self defense, for such is not an affirmative defense, but rather a description of one type or theory of voluntary manslaughter. (Id. at pp. 194, 201.) However, the substantial evidence required to trigger the duty to instruct on such lesser offenses is not merely any evidence . . . no matter how weak (People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12), but rather evidence from which a jury composed of reasonable [persons] could . . . conclude[] that the lesser offense, but not the greater, was committed. (Id. at p. 684, quoting People v. Carr (1972) 8 Cal.3d 287, 294; Barton, supra, 12 Cal.4th at p. 201, fn. 8; People v. Breverman, supra, 19 Cal.4th. at pp. 162-163.)
In discussing the viability of a voluntary manslaughter instruction, the trial court commented on the fact that several hours had passed between the time defendant was arrested by Deputy Perrigo in front of the Sanchez house in McArthur shortly after midnight, and the time he murdered Deputy Perrigo at approximately 3:00 a.m. The testimony of various witnesses in this case belies defendants claims that his nose was broken upon his arrest, or that he was otherwise physically injured in the course of the events that led up to his murder of Deputy Perrigo. Although, as he was being brought into the Burney substation, defendant commented, What are you guys going to do now, shoot me?, he immediately thereafter began dancing, singing, laughing, and acting cocky. Indeed, shortly after Deputy Perrigo responded to defendant, Im not going to shoot you, defendant turned his attention to the deputy and stated, prophetically, [A]ll it would take is one bullet in your head.
Defendant urges us to infer that from the time of his arrest for public intoxication four months earlier, in July 1991 (in connection with the prowling incident, during which he tried to gain entry into a mobilehome occupied by minors, kicked the father who managed to subdue him, and threatened to kill arresting Deputy Dikes with a bullet in the back of the head), until his arrest in this case, the Shasta County sheriffs deputies had harassed, mishandled, and humiliated him to the point where he acted out of the heat of passion and unreasonable self-defense in shooting Deputy Perrigo on the morning of October 21, 1991. The law, however, does not support defendants claim. There is no evidence that defendant was physically injured, much less in imminent danger of great bodily injury or death at the hands of Deputy Perrigo or the other deputies with whom he came into contact from the time of his arrest sometime around midnight until he murdered Deputy Perrigo three hours later. Indeed, the exact opposite was true.
Moreover, the jury found beyond a reasonable doubt that defendant intentionally murdered Deputy Perrigo for the purpose of perfecting his escape from the deputys lawful custody, and further, that defendant was lying in wait for a period of up to 15 or more minutes before selecting the most opportune time to retrieve the weapon he had concealed and shoot the defenseless deputy from behind in the back of the head. These special circumstance findings themselves negate any possibility that defendant was prejudiced from the failure to instruct on provocation/heat of passion or unreasonable self-defense theories of manslaughter.
2. Admission of Defendants Confessions
Defendant renews his claim that his several statements given to police immediately following his surrender at the rice plant where he had been hiding, in which he confessed to killing Deputy Perrigo, should not have been introduced against him at trial because his waiver of his constitutional trial rights was not voluntary, knowing and intelligent. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) He further seeks to argue the statements he gave were themselves involuntary, a claim that was never raised or developed below, and hence is not preserved for appeal. (People v. Maury (2003) 30 Cal.4th 342, 387-388 (Maury); People v. Mayfield (1993) 5 Cal.4th 142, 172.)
On October 2, 1992, defendant made an in limine motion to exclude his statements on the basis that the prosecution could not prove that he made a voluntary, knowing, and intelligent waiver of his Miranda rights. The People opposed the motion, and on November 3, 1992, a hearing was conducted on the motion. Detective Richard Newsome, the lead detective who questioned defendant shortly after his surrender, testified at the hearing.
It was established at the hearing that defendant had surrendered to authorities on the morning of October 26, 1991, five days after he fatally shot Deputy Perrigo and escaped from custody. Within an hour after being taken back into custody, defendant was transported back to the Burney substation. He was placed in the sergeants office, a small room with a desk and a telephone. He was neither handcuffed nor restrained. There were no firearms or weapons in the room. Sergeant Bradd McDannold was seated behind the desk; Detective Newsome and an interpreter, Ms. Rubenstein, sat next to defendant. A recorded interrogation of defendant commenced at 1:05 p.m.
Although appearing tired and scared at first, both defendant and Estrada were alert and responsive throughout their interviews. Detective Newsome, who asked most of the questions, made no threats or promises to defendant or to his family. Defendant and Estrada were given food and water during the interrogation session, which they accepted.
After the group was introduced to defendant, Detective Newsome read him his Miranda rights, which were translated for him by the interpreter. Neither defendant nor the interpreter made any complaints at any point during the interrogation to suggest there were any difficulties, problems, or misunderstandings with the translations from English to Spanish and back.
Detective Newsome explained to defendant, You have a right to talk to a lawyer and have him present with you while you are being questioned. When defendant was asked if he understood his right, he responded, mas o menos, which means more or less. Before asking any further questions, Detective Newsome read defendant his Miranda rights a second time. Defendant indicated after each one that he understood.
The first interview lasted a little over two hours, until 3:15 p.m. Estrada was then questioned while defendant waited in the holding cell, and at 5: 15 p.m., defendant was again questioned for another 15 minutes, without being given new Miranda warnings.
Defendant was then transported to Red Bluff, and the following day he was again questioned by Detective Newsome, this time in the Tehama County Sheriffs office, after the autopsy of Deputy Perrigo had been completed. The detective once again read defendant each of his Miranda rights, at the conclusion of which defendant affirmed through his interpreter that he understood them and wished to talk to the detective. This interrogation session lasted less than an hour. Defendant was then questioned together with codefendant Estrada for another period of one hour and 45 minutes. Defendant was thereafter returned to Shasta County for arraignment the following day.
On November 3, 1992, the trial court denied defendants motion to suppress his statements on Miranda grounds, stating on the record that, the totality of circumstances I believe support a proper advisement, and suggests clearly a waiver was voluntary, knowing and intelligent. Certainly by circumstances, and at the very least by inference if not outright.
In reviewing defendants claim that his Miranda rights were violated, we must accept the trial courts resolution of disputed facts and inferences, as well as its evaluation of the credibility of witnesses where supported by substantial evidence. (People v. Whitson (1998) 17 Cal.4th 229, 248 (Whitson); People v. Wash (1993) 6 Cal.4th 215, 235-236.) Miranda makes clear that in order for defendants statements to be admissible against him, he must have knowingly and intelligently waived his rights to remain silent, and to the presence and assistance of counsel. (Miranda, supra, 384 U.S. at p. 475.)
It is further settled, however, that a suspect who desires to waive his Miranda rights and submit to interrogation by law enforcement authorities need not do so with any particular words or phrases. A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision. (See North Carolina v. Butler (1979) 441 U.S. 369, 373.) We have recognized that a valid waiver of Miranda rights may be express or implied. (Whitson, supra, 17 Cal.4th at p. 246; see also People v. Cortes (1999) 71 Cal.App.4th 62, 69.) A suspects expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights. (People v. Medina (1995) 11 Cal.4th 694, 752; People v. Sully (1991) 53 Cal.3d 1195, 1233.) In contrast, an unambiguous request for counsel or refusal to talk bars further questioning. (Davis v. U.S. (1994) 512 U.S. 452, 458-460.)
Although there is a threshold presumption against finding a waiver of Miranda rights (North Carolina v. Butler, supra, 441 U.S. at p. 373), ultimately the question becomes whether the Miranda waiver was knowing and intelligent under the totality of the circumstances surrounding the interrogation. (See Oregon v. Bradshaw (1983) 462 U.S. 1039, 1044-1046 (plur. opn. of Rehnquist, J.); People v. Clark (1993) 5 Cal.4th 950, 986.)
Turning to the facts before us, defendant suggests his response, mas o menos, or more or less, when asked if he understood his Miranda rights read to him before the initial interrogation session, was an expression of confusion, not understanding. We cannot agree. Nor do we find that single response, in isolation, controlling on the question whether defendant made a knowing and voluntary waiver of his Miranda rights under the totality of the circumstances surrounding his interrogation. (Oregon v. Bradshaw, supra, 462 U.S. at pp. 1044-1046.)
After defendant replied more or less, and before any questioning commenced, Detective Newsome purposefully repeated each Miranda admonishment a second time, describing them in less formal terms so as to ensure that defendant could better . . . understand the rights he was waiving. The detective specifically told defendant he had the right to remain silent, and that this meant you dont have to talk to us if you dont want to, to which defendant replied, Yes, when asked if he understood that right. The detective then told defendant, when youre talking to us uh anything you say can be used in court in a trial, to which defendant replied, Yes I understand it. Defendant was then told, when you are talking to us you have a right to have a lawyer with you, and defendant stated, Yes, I understand it, when asked if he understood that right. Finally, defendant was told that if he did not have enough money to hire an attorney, Well get you one before we ask you any questions, to which defendant replied, Yes, yes I understand you, when asked if he understood that right. It was not until after this second, full recitation of Miranda rights, and affirmations of understanding by defendant with regard to the nature of each such right, that the questioning of defendant commenced.
In consideration of the totality of circumstances surrounding the interrogation, we find that defendants responses to Detective Newsomes inquiries reciting his Miranda rights reflect a knowing and intelligent understanding of those rights, and that defendants willingness to answer questions after expressly affirming on the record his understanding of each of those rights constituted a valid implied waiver of them. (People v. Medina, supra, 11 Cal.4th at p. 752; People v. Sully, supra, 53 Cal.3d at p. 1233.) As was the case in People v. Wash, supra, 6 Cal.4th 215, the record is devoid of any suggestion that the police resorted to physical or psychological pressure to elicit statements from defendant. To the contrary, defendants willingness to speak with the officers is readily apparent from his responses. He was not worn down by improper interrogation tactics, lengthy questioning, or trickery or deceit. (Whitson, supra, 17 Cal.4th at pp. 248-249.)
Defendant further seeks to argue that the statements he gave were themselves involuntary. The motion challenging the statements below, however, was based solely on an asserted Miranda violation. As a consequence of the issue not having been raised below, the parties had no incentive to fully litigate this theory . . . and the trial court had no opportunity to resolve material factual disputes and make necessary factual findings. (People v. Ray (1996) 13 Cal.4th 313, 339.) Accordingly, the claim of involuntariness of defendants statements and confession is not preserved for appeal. (Maury, supra, 30 Cal.4th at pp. 387-388; People v. Mayfield, supra, 5 Cal.4th at p. 172.)
Assuming for purposes of argument that the claim of involuntariness of the statements and confession is properly before us, we reject it. The test for determining whether a confession is voluntary is whether the questioned suspects will was overborne at the time he confessed. (Lynumn v. Illinois (1963) 372 U.S. 528, 534.) A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. (Maury, supra, 30 Cal.4th at p. 404.) No coercive police activity is shown on this record. Defendant was not handcuffed or restrained while in the interview room, no guns or weapons were present, he was offered food and drinks which he accepted, and his older brother, Joaquin Cruz, was permitted to see him. Defendant does not allege that any improper promises or threats were made, and we see no evidence of any other form of coercive police activity that would support a finding of involuntariness.
3. Examination of Peace Officer Personnel Files
Defendant next claims the trial court erred in denying him discovery of the confidential peace officer personnel files of Shasta County Deputies Buck Dikes and John Carelli. The declaration in support of the motion, which also sought discovery of Deputy Perrigos confidential personnel files, alleged, on information and belief, that complaints of aggressive behavior, acts of violence and/or attempted violence, acts of excessive force and/or attempted excessive force had been lodged against the officers.
A hearing was conducted on the motion. County counsel appeared and opposed it, arguing the moving papers and declarations in support of the motion were inadequate, and that Deputies Dikes and Carelli were not even present when defendant was arrested for this offense. She further represented to the court that she had reviewed the files of all three officers and that there is nothing in these files that even pertain to anything that [defendant and codefendant Estrada] appear to be looking for.
The trial court denied discovery of the confidential personnel files of Deputies Dikes and Carelli, observing that the moving papers do not establish a basis on which the records of either Dikes or Carelli would be appropriately discoverable under the circumstances of this case. There is no basis in the moving papers on which a conclusion can be reached that their past conduct would in any way have anything to do with matters or material that might in any way be helpful to the defense in the case.
The trial court agreed to conduct an in camera review of Deputy Perrigos confidential personnel file, going back five years. (See City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 12 [five-year limitation on such discovery not violative of due process].) Following its review, the court announced that Deputy Perrigos files likewise contained no evidence of any complaints.
A motion for discovery of peace officer personnel records is addressed solely to the sound discretion of the trial court. (Pitchess v. Superior Court [(1974)] 11 Cal.3d [531,] 535.) A review of the lower court ruling is subject to the abuse of discretion standard. (City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1145.)
We find no abuse of discretion on this record. In criminal cases, the court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest. (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 538, quoting Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 804.) Nor could defendant demonstrate prejudice on a finding of error, as county counsels representations at the hearing on the motion below, and the trial courts statements upon completion of its review of Deputy Perrigos confidential personnel files, together make clear that no information of the nature being sought through the discovery motion was to be found in any of the three officers personnel files. (People v. Memro (1985) 38 Cal.3d 658, 684 [prejudice required for relief on appeal].)
4. Admission of Photograph of Victim
Defendant contends the trial court erred by admitting exhibit 62, a photograph depicting visible injuries to the face of Deputy Perrigo, including blood. The prosecutor offered the photograph to demonstrate that the deputy was still alive after he was shot in the back of the head and his patrol car crashed, and then shot a second time in the neck. The defense objected to the admission of the photograph as inflammatory and irrelevant. It was not irrelevant. A crime scene photograph is relevant and may be admitted where it corroborates or clarifies the coroners testimony regarding the cause of death and condition of the body. (People v. Mendoza (2000) 24 Cal.4th 130, 171.) Here, the trial court questioned Dr. Joseph Tripoli, the Shasta County Medical Examiner, who conducted the autopsy of the victim, before ruling the photograph admissible. Dr. Tripoli indicated that the particular photograph in question best depicted the bluing of a subcutaneous contusion, and would thereby support his conclusions and serve to demonstrate to the jury that Deputy Perrigo was still alive when shot a second time. Nor was the presentation of the photograph unduly inflammatory. The trial court took steps to address defendants concerns in that regard, ordering that the photograph only be made available for viewing by the jury during the brief time that Dr. Tripoli was testifying and actually referring to it. Neither error nor prejudice has been shown.
5. Admission of Threat to Kill Deputy Dikes
Defendant next asserts the trial court erred in admitting evidence of his prior threat to kill Deputy Dikes by shooting the deputy in the back of the head. There was no error in the admission of such evidence. As defendant concedes, this courts decision in People v. Rodriguez (1986) 42 Cal.3d 730, specifically holds that a defendants prior threats to kill a police officer may be admitted on the issue of intent when that defendant subsequently does kill a police officer. (Id. at p. 757; see Evid. Code, 1101.) The prior threat to kill a deputy by shooting him in the back of the head was manifestly admissible to show defendants state of mind at the time he fatally shot Deputy Perrigo in the back of the head. (Gutierrez, supra, 28 Cal.4th at p. 1138.) Evidence of the prior express threat to use force or violence was also properly admissible at the penalty phase as an aggravating circumstance under section 190.3, factor (b).
6. Admission of Testimony of Bernard Sanchez
Defendant next contends the trial court erred in permitting witness Bernard Sanchez to testify regarding an adoptive admission by defendant that supported the finding that he had shot Deputy Perrigo.
Sanchez, an employee at the rice mill, testified defendant and Estrada walked into the packing building where he was working sometime prior to their surrender to police. Defendant still had on his handcuffs. Sanchez overheard another worker, Guadelupe Duran, ask Estrada if they still had the murder weapon. Estrada replied the gun was hidden in the alfalfa. Duran asked which one of them had done that wicked thing, a reference to the murder of Deputy Perrigo. Estrada motioned with his head toward defendant, who made no response. Defendant then stated that nothing would have happened if the lady had not called the police on them. Defendant asked the workers for money to buy clothes so that he and Estrada could flee to Oregon.
Defendants claim that Sanchezs testimony was untrustworthy and violated his rights under the confrontation clause of the federal Constitution must be rejected. Evidence Code section 1221 provides, Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth. As was explained in People v. Preston (1973) 9 Cal.3d 308, [i]f a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt. (Id. at pp. 313-314.)
Defendant is wrong in suggesting the statement was admitted under the statement against penal interest exception to the hearsay ruleit was clearly proffered and admitted as an adoptive admission under Evidence Code section 1221. Moreover, it is well settled that an adoptive admission can be admitted into evidence without violating the Sixth Amendment right to confrontation on the ground that once the defendant has expressly or impliedly adopted the statements of another, the statements become his own admissions, and are admissible on that basis as a well-recognized exception to the hearsay rule. (People v. Turner (1994) 8 Cal.4th 137, 190, quoting People v. Silva (1988) 45 Cal.3d 604, 624.) Defendants claim that Sanchezs testimony regarding the adoptive admission violated his rights under the confrontation clause is therefore unavailing.
We have further considered and must reject defendants claim that he received no notice at all of Sanchezs proposed testimony. The record reflects that defendant did receive discovery detailing Sanchezs presence at the scene of the conversation in question and the inculpatory statements made at that time, and further reflects that Sanchezs name was on the prosecutions witness list. Indeed, defense investigators had sought to contact Sanchez to discuss his testimony. In any event, even were we to find that Sanchezs testimony regarding defendants adoptive admission that he killed Deputy Perrigo was erroneously admitted, there could be no prejudice since defendant admitted as much in his own confession shortly after his surrender to authorities.
C. Special Circumstance Issues
1. Murder of Peace Officer Special Circumstance
Section 190.2, subdivision (a)(7), defines the special circumstance of intentional murder of a peace officer while engaged in the performance of his or her duties as follows: The victim was a peace officer . . . who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the course of the performance of his or her duties; or the victim was a peace officer . . . and was intentionally killed in retaliation for the performance of his or her official duties.
Deputy Perrigo was, of course, a peace officer, within the meaning of the special circumstance statute, working his shift at the Burney substation, and in full uniform in his patrol car when killed by defendant while transporting defendant and Estrada toward the main jail at Redding. Defendant cannot, and does not, contend that these essential elements of this special circumstance finding were not established on these facts.
However, it is also a well-established rule that when a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully at the time the offense was committed. (People v. Jenkins (2000) 22 Cal.4th 900, 1020 (Jenkins), citing In re Manuel G. (1997) 16 Cal.4th 805, 815; see People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [applying the rule to 190.2, subd. (a)(7)].)
Defendant contends that his arrest by Deputy Perrigo for a violation of section 647(f) (public intoxication) was unlawful because (1) he was not intoxicated at the time of his arrest, but was instead found asleep (along with Estrada) in the station wagon where he was staying in front of the Sanchez residence when first located by the deputy, and (2) the station wagon itself was on private property and not in a public place. Claiming his arrest for a violation of section 647(f) was therefore unlawful, he argues the murder of a peace officer special circumstance must be reversed. We disagree.
Section 647(f), provides, in pertinent part, Every person who commits any of the following offenses is guilty of disorderly conduct, a misdemeanor: [] . . . [] (f) Who is found in any public place under the influence of intoxicating liquor . . . in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor . . . interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.
Contrary to defendants assertions, at the pretrial hearing held to determine the validity of his arrest, it was established, through both testimony and photographic evidence, that the station wagon in which Deputy Perrigo found defendant and Estrada sleeping sometime between midnight and 1:00 a.m. was parked in a public place, on the dirt shoulder adjoining Highway 299, and well outside the fence separating Edna Sanchezs property from the highway. [W]hether a particular location is a public place depends upon the facts of the individual case. (People v. White (1991) 227 Cal.App.3d 886, 892.) A public place includes the area outside a home in which a stranger is able to walk without challenge. (People v. Olson (1971) 18 Cal.App.3d 592, 598.)
Moreover, sitting in an automobile while intoxicated does not, as a matter of law, prevent one from being arrested for intoxication in a public place. (People v. Belanger (1966) 243 Cal.App.2d 654, 658.) Nor does being found asleep in a vehicle prevent an arrest for public intoxication under section 647(f). (People v. Belanger, at p. 656; see Mardis v. Superior Court (1963) 218 Cal.App.2d 70, 72 [arrest under 647(f) valid where defendant found asleep in car 30 feet from paved roadway].)
At the pretrial hearing, Edna Sanchez testified that when she went outside of her residence about midnight to tell defendant and Estrada to stop making noise by racing the station wagon engine, defendant was pretty drunk and slurred his words. Defendant was arrested within an hour of Sanchezs observations. An inebriated person behind the wheel of a car . . . poses a greater danger to himself or herself and others than the same person lying on a park bench. (People v. Lively (1992) 10 Cal.App.4th 1364, 1373.) Moreover, although defendant would have us draw an inference that the station wagon in which he slept was not drivable, such fact was not conclusively established either at the pretrial hearing or at trial, and indeed the record facts instead support an inference that once a good battery was installed the vehicles engine ran loud and strong.
We conclude the validity of defendants arrest for public intoxication, a violation of section 647(f), was properly established at the pretrial hearing conducted for that purpose.
Alternatively, defendant contends that even if the legality of his arrest was properly established at the pretrial hearing, the evidence thereafter presented at trial was insufficient to support the jurys implicit finding that his arrest for a violation of section 647(f) was lawful, as an element of the murder of a peace officer special circumstance required to be proved beyond a reasonable doubt. Once again, we disagree.
Fry testified at trial that she observed defendant holding an open beer in one hand and a partial 12-pack of beer in his other hand just before midnight when he and Estrada appeared at the front door of Wadsworthss house. Both Fry and Wadsworth testified at trial that defendant was intoxicated; Wadsworth opining that defendant was pretty drunk, Fry adding that both men were slurring their words. Defendant and Estrada left with the battery taken from Miguels car and were located and detained by Deputy Perrigo less than an hour later in front of the Sanchez residence. Indeed, all of defendants inebriated and belligerent conduct, from the time he and Estrada were brought to Wadworths house by Deputy Perrigo, to the time he was returned to the front of Sanchezs house along with Fry, Wadsworth, and Miguel to identify the battery that had been taken from Miguels car, lends additional support to the jurys implicit finding that defendant was intoxicated a short time earlier, at around midnight, when he was located in the station wagon by Deputy Perrigo and placed under arrest.
We conclude that defendants arrest for a violation of section 647(f) was lawful, and that the evidence is sufficient to support all the requisite elements of the murder of a peace officer special-circumstance finding.
2. Escape From Custody Special Circumstance
Defendant contends the special circumstance of murder for the purpose of perfecting or attempting to perfect escape from lawful custody ( 190.2, subd. (a)(5)) must be set aside because he was not in lawful custody when he killed Deputy Perrigo, and further, that the evidence was insufficient to establish that he violated the law regarding escape when he fatally shot the deputy. We find this claim too devoid of merit.
At the time of his arrest in 1991, section 4532, subdivision (a), provided that, Every prisoner arrested and booked for, charged with, or convicted of a misdemeanor . . . who thereafter escapes or attempts to escape from [the] county or city jail, prison, industrial farm, or industrial road camp or from the custody of the officer or person in charge of him is guilty of a felony. (former 4532, subd. (a), as amended by Stats. 1984, ch. 1432, 7, p. 5025, italics added.) When a suspect flees from custody before being charged, convicted, or booked for the offense for which he was arrested, he is not subject to prosecution for violating section 4532. (Wood v. Superior Court (1975) 46 Cal.App.3d 564, 566 (Wood).)
Story Continue As Part IV ..
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