APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel J. Buckley, Judge. Affirmed as modified. (Los Angeles County Super. Ct. No. KA079985).
CERTIFIED FOR PARTIAL PUBLICATION
Pursuant to the California Rules of Court, part III(B) is deleted from publication.
Defendant, Cesar Joe Rios, appeals from his carjacking conviction. (Pen. Code,*fn1 § 215, subd. (a).) The jury further found defendant personally used a handgun in the commission of the offense. (§ 12022.53, subd. (b).) Defendant was sentenced to the low term of 3 years for the carjacking plus 10 years for firearm use. Defendant was ordered to pay: a $200 restitution fine (§ 1202.4, subd. (b)(1)); a $200 parole revocation restitution fine (§ 1202.45); and a $20 court security fee. (§ 1465.8, subd. (a)(1).) Defendant received credit for 317 day in pretrial custody plus 48 days of conduct credit for a total presentence custody credit of 365 days.
In the published portion of this opinion, we discuss defendant‟s contention his custodial statement was admitted into evidence in violation of Miranda v. Arizona (1966) 384 U.S. 436, 444-445, 473-474. Defendant contends his confession was inadmissible because the rule of implied waiver of constitutional rights first articulated by the United States Supreme Court in North Carolina v. Butler (1979) 441 U.S. 369, 371-379, was abrogated by the decision in Missouri v. Seibert (2004) 542 U.S. 600, 616-617 (plur. opn. of Souter, J.). We conclude: the controlling constitutional rule in Seibert is that set forth in Associate Justice Anthony M. Kennedy‟s concurring opinion; Associate Justice Kennedy‟s opinion does not abrogate the implied waiver rule first articulated by the Supreme Court in Butler; and thus the implied waiver rule, which applies to this case, is not rescinded by Seibert.
On July 29, 2007, after 6 p.m., Howard Stewart was sitting alone in his parked 1999 Firebird. He had just walked out of a Taco Bell restaurant and was eating his lunch. After 10 or 15 minutes, Mr. Stewart saw a man walking towards the rear of the Firebird. Mr. Stewart put his hand on the ignition key, intending to drive away. The man was wearing a white T-shirt and baggy plaid pants. The man was holding a black revolver. The man pointed the gun at Mr. Stewart at waist level. The man said, ""Get out of the car or I‟ll shoot you.‟" Mr. Stewart‟s hand was still on the key. The man said, ""Start it and I‟ll shoot you.‟" Mr. Stewart opened the door and got out of the Firebird. The man with the gun got into the car. Someone else also got in on the passenger side. The second person appeared to Mr. Stewart to be a male. Mr. Stewart ran and the two men drove away. When sheriff‟s deputies arrived, Mr. Stewart described the man with the gun as Latino, early twenties, and wearing a white T-shirt with short plaid type pants that went down below the knee a little bit. Mr. Stewart described the plaid pants as kind of baggie. Mr. Stewart described the second man as a Latino.
Deputy Sheriff Kurtis Ebbingia arrived at the carjacking scene on July 29, 2007, at approximately 7:15 p.m. It was still daylight. According to Deputy Ebbingia, Mr. Stewart was pretty excited and shaken up by the experience. Mr. Stewart described the two suspects as Latinos, approximately 18-20 years of age, 5 feet 6 or 7 inches tall, and weighing 150 to 160 pounds. Mr. Stewart described the man who approached on the driver‟s side of the car with the gun as wearing a white T-shirt and plaid baggie shorts. Mr. Stewart described the gun as a .38 or .45 caliber revolver.
Deputy Sean Cariaga made a traffic stop of Mr. Stewart‟s stolen Firebird on July 30, 2007, at 2 or 3 p.m. Deputy Cariaga recognized the vehicle from a stolen car broadcast. There were two Latinos in the car-the driver and a front-seat passenger.
Deputy Cariaga identified defendant as the driver and Jose Manuel Cuellar as the passenger. Both men were detained.
Defendant was advised of his constitutional rights to silence and counsel. Defendant claimed he got the car from one of his "homies" the night before. Defendant said he picked it up in East Los Angeles. Deputy Cariaga testified what happened next, "I told him that we had a victim that we had on the way who was going to come and identify him." Defendant looked like he was afraid. He put his head down and started to shake it. Deputy Cariaga asked, "[W]ould you really have shot the guy if he wouldn‟t have given the car up?" Defendant said no. Defendant was asked what he had been doing before he took the car. Defendant said he had been walking home from the mall. Defendant was accompanied by Mr. Cuellar. Defendant said he had a gun while he was at the mall, a .38 handgun. He had given it to one of his homies. The car was searched, but the gun was not found.
Deputy Cariaga also spoke with Mr. Cuellar. Mr. Cuellar was advised of his constitutionalrights. Mr. Cuellar admitted defendant had gotten the car the night before. Mr. Cuellar admitted he ""probably"‟ knew the car was stolen. Deputy Cariaga also described the conversation with Mr. Cuellar, "I told him that his brother had admitted to taking the car and he told me that he was there with his brother when his brother took the car at gunpoint." Deputy Cariaga described the remainder of Mr. Cuellar‟s statement: "He said he didn‟t do anything. He was just there. However, he said that he told the victim not to do anything stupid."
Both defendant and Mr. Cuellar gave written, signed and fingerprinted statements. Deputy Cariaga gave Mr. Cuellar a piece of paper. Mr. Cuellar was instructed to write down what happened. Mr. Cuellar wrote on July 30, 2007: ""Me and my brother-he told me that he,‟ wan[t]s a car . . . [¶] . . . "so we see a old m[a]n‟ . . . [¶] . . . "and we w[e]nt to the car and he point the gun at h[i]m‟ . . . [¶] . . . "so we too[k] . . . the car and I told the man to do‟ [nothing stupid]."
Mr. Stewart, the victim, got his car back. There was clothing in the car that did not belong to him, including a pair of plaid shorts. The plaid shorts were like the ones the man with the gun had been wearing. Mr. Stewart told Detective Brendan Caslin about the shorts. Mr. Stewart was unable to identify anyone from photographic line ups. Nor was he able to identify anyone in court. The photographic lineups shown to Mr. Stewart included one photograph of defendant and one of his co-defendant, Mr. Cuellar.
Mr. Cuellar testified he was 16 years old in July 2007. Mr. Cuellar knew defendant from a foster home, but they were not related; they were friends. Mr. Cuellar referred to defendant as a brother to others. On July 29, 2007, they had both gotten out of what Mr. Cuellar referred to as a jail and met again in the same foster home. They rode the bus to the West Covina Mall. When they were walking home from the mall, defendant, who was wearing plaid shorts and a white T-shirt, walked up to the driver‟s side of a car and pointed a gun at Mr. Stewart. Mr. Stewart was ordered to get out of the car. Defendant pulled the black gun from his waist. Mr. Cuellar was by the side of the car. Mr. Cuellar saw that Mr. Stewart was trying to turn on the ignition. Defendant said, ""Don‟t do nothing stupid.‟" Mr. Cuellar spoke to Mr. Stewart. Mr. Cuellar testified why he said anything at all, "Because he was in a bad situation, because I knew my brother." Mr. Cuellar thought defendant was going to do something bad. Mr. Cuellar wanted to protect the driver, Mr. Stewart. Defendant told Mr. Stewart to get out of the car. Defendant also said, ""If you turn that on I‟m going to shoot you.‟" Mr. Stewart got out of the car and ...