Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County. Petition denied. (Super. Ct. No. 07CF3276).
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
Defendant Jose Juvenal Camino and his fellow gang member, Rolando Palacios, were involved in a gun fight with a rival gang on September 30, 2007. Palacios, the lone shooter in defendant's group, was shot and killed by a bullet of unknown origin.
Hours later, officers interviewed defendant at the police station without reading him his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). During the interview, defendant revealed, inter alia, that he, Palacios, and a third companion had driven in an alley in pursuit of rival gang members and that Palacios had stepped out of the car and shot at their rivals. After this first interview, the officers gave defendant a short break. Then they moved him to a different room, advised him of his Miranda rights, and interviewed him a second time. Defendant related the same events he had described in his first interview.
Defendant was subsequently tried pursuant to the provocative act murder doctrine (under which a "person can be guilty of murder . . . even if someone else did the actual killing") for the homicide of Palacios. (CALCRIM No. 561.) At trial, the People conceded that defendant's statements in his first interview were inadmissible, but introduced into evidence, over defendant's objection, statements from his second interview. The jury convicted defendant of the second degree murder of Palacios (count 1; Pen. Code, § 187, subd. (a))*fn1 , and found he vicariously discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1), an enhancement that carries a mandatory consecutive prison term of 20 years.*fn2
In midstream Miranda cases (where a defendant is interviewed before and after the giving of Miranda warnings), a defendant's postwarning inculpatory statements are generally admissible if the prewarning statements and the postwarning statements were voluntarily made. (Oregon v. Elstad (1985) 470 U.S. 298, 318 (Elstad).) But where law enforcement uses a two-step interrogation technique "in a calculated way to undermine the Miranda warning," curative measures must be taken to ensure that a reasonable person would understand the Miranda advisement and the significance of waiving Miranda rights. (Missouri v. Seibert (2004) 542 U.S. 600, 622 (Seibert).) Here, the court concluded that the interrogating officers did not deliberately use a two-step process to circumvent Miranda.
We hold the court's conclusion is a factual finding subject to the substantial evidence standard of review, and as such, is supported by the evidence in this case. We also hold defendant's trial counsel did not render ineffective assistance by failing to "urge" the court to review the transcript of his second police interview before ruling on its admissibility. Finally, we find insufficient evidence to support the jury's finding defendant vicariously discharged a gun in Palacios's murder, because Palacios, as the lone shooter (and the only armed person) in defendant's group, could not be a principal in his own murder.
Evidence Taken From Defendant's Second Police Interview
At trial, Corporal David Rondou testified to the following information divulged by defendant during the second interview.
Defendant is a former Hard Times gang member with the moniker, "Tiny." On the night of the shooting, he went "bar hopping" with his nephew, Miguel Martinez. Later, with Martinez driving a white Chevy Camaro, they drove into the neighborhood claimed by Hard Times. There, they saw Palacios, whom defendant recognized as a Hard Times gang member.
The Camaro pulled up to Palacios. Palacios, not knowing defendant or Martinez, reached in his waistband for his gun. Defendant introduced himself to Palacios, saying he (defendant) used to "kick it" with Palacios's brother, another Hard Times gang member. Defendant told Palacios that Martinez was "Flaco" of the Lil Hood gang. Palacios got in the back seat of the Camaro and later displayed a .40-caliber handgun.
After drinking "a little bit," the threesome decided to drive to the neighborhood claimed by Lil Hood. There, they went to a small strip mall comprising of a 7-Eleven store and a Laundromat. Defendant knew that, although the Lil Hood gang claimed this territory, the Barrio Small Town gang (BST) had been trying to take it over and had marked it with graffiti.
Two to three months earlier, at this mall, defendant, Martinez, and another Lil Hood gang member had lost a fistfight against some BST members. Defendant had "back[ed] up" Martinez in that fight.
Now, Martinez parked the Camaro near the 7-Eleven store and the threesome stood there drinking. From around the corner came three BST members, one of whom had been involved in the prior fistfight. Defendant knew that these BST "guys" lived in a house "three or four down" the alley.
Martinez walked toward the BST members, "throwing his hands up . . . in a 'what's up' kind of deal." Defendant backed up Martinez by walking with him, thinking there would be "a physical altercation."
From behind them, Palacios fired his gun twice. The BST members ran back down the alley. Palacios said words like, "Let's go get them, let's go shoot them again." They got in the Camaro with Martinez driving, Palacios in the front passenger seat, and defendant in the back.
The Camaro drove into the alley. Martinez asked, "Where are they?" and turned off the car's headlights.
Palacios got out of the car, stood by the door, and started shooting. Martinez started to get out too, but retreated into the car at the sound of return gunfire. The Camaro backed out of the alley, leaving Palacios behind, alone on foot. Martinez and defendant circled the block, whistling and trying to find Palacios. After a couple of loops, they found him lying in a driveway. As Martinez started to get out of the Camaro, they heard sirens. Martinez jumped back in the Camaro, and he and defendant tried to flee the scene.
A police officer dispatched to the scene at around 3:00 a.m. came upon a white Camaro suspiciously stopped in the middle of the street with its headlights off. The Camaro started to drive away with its lights still off. The officer initiated a "high risk" traffic stop. Martinez was the driver of the Camaro and defendant a passenger. No weapons were found on them or in the car.
On a driveway, Palacios lay face down with a gun in his hand and no pulse. He had bled to death after a single bullet went into his left arm, through his chest, and out his right arm. About five bullet casings were found in the alley.
David, Adolfo, and Juanita Rodriguez*fn3 are siblings who reside in a house "butting up to the alley." At around 3:00 a.m., David (a 19-year-old BST member) heard about five gunshots. At trial, David first testified that, upon hearing the gunshots, he did not go out to the alley and furthermore that he had never seen the white Camaro before. But in his police interview on the day of the shooting, David said he was awakened by the sound of gunfire, went out into the alley, and saw a car drive down the alley. When pressed at trial about which story was accurate, David said he saw a white car in the alley that night. He had seen that car in the neighborhood several times before that night and knew it was associated with Lil Hood. According to David, BST is not friendly with Lil Hood, but is friendly with Hard Times. David saw a male in a white shirt with a handgun walking toward the Camaro. He saw the car back out of the alley.
On cross-examination, David said he heard a group of about three "piasas" (people from Mexico) throw beer bottles at the Camaro and the male shooter. David did not know whether one of the piasas might have been shooting a gun.
When pressed on redirect, David agreed he told police he saw two people outside the Camaro, one in a white shirt who got into the ...