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The People v. Cosme Eduardo Gil


May 4, 2011


(Super. Ct. No. SF103132A)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Gil CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Cosme Eduardo Gil of one count of robbery (Pen. Code, § 211)*fn1 , three counts of false imprisonment (§ 236), and one count of criminal threats (§ 422) stemming from the early morning robbery of a J.C. Penney store in Stockton, California. The jury also found defendant was personally armed with a rifle during the commission of the offenses. (§§ 12022.53, subd. (b) & 12022.5, subd. (a).) The trial court sentenced defendant to 15 years in prison.

Defendant, who is Hispanic, claims the prosecutor's peremptory challenges against prospective Hispanic jurors violated his constitutional right to equal protection and his right to trial by a jury drawn from a representative cross-section of the community under the California Constitution. The trial court ruled defendant had not made a prima facie showing of discriminatory intent pursuant to Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson). That case set forth a three step process for determining whether a prosecutor's use of peremptory challenges violates the Equal Protection Clause. First, the defendant must set forth a prima facie case of purposeful discrimination. (Id. at pp. 93-97 [at pp. 85-88].) Then the burden shifts to the state to come forward with a race-neutral explanation for the challenge. (Id. at p. 97 [at p. 88].) Third and finally, the trial court must determine whether the defendant has established purposeful discrimination. (Id. at p. 98 [at pp. 88-89].)

The trial court reasoned that no prima facie case had been shown because determining who was Hispanic was too difficult, and because using two out of three peremptory challenges to challenge Hispanic jurors did not constitute a pattern of discrimination. We shall conclude that because the challenged jurors had Spanish surnames, the trial court should have presumed that they were members of a cognizable group unless it knew otherwise. This, together with the facts that the prosecutor used two out of three challenges against Hispanic jurors, and engaged in no voir dire of one of the potential jurors was sufficient to state a prima facie case.

We shall order a limited remand to allow the trial court to complete the three Batson steps, if possible. If it is not possible, defendant must be retried.

Defendant also claims his confessions should not have been admitted because they violated Miranda*fn2 and because they were involuntary. Although we agree with defendant that the trial court should have excluded his jailhouse interview, we conclude the jury's consideration of the interview was harmless since defendant had already confessed to the crime in some detail. However, we conclude defendant's sentences for false imprisonment and making criminal threats should have been stayed pursuant to section 654 because they were committed to facilitate the robbery, and not for any separate purpose.


Defendant was employed as a janitorial supervisor for the J.C. Penney store in Stockton. He supervised Yolanda Ramos and Mario Rodriguez, two of the victims in this case. The third victim was Patricia Miller, a manager for J.C. Penney.

On January 13, 2007, Ramos, Rodriguez, and Miller arrived for work at 5:00 a.m. The maintenance crew usually begins work at 6:00 a.m., but defendant requested they start an hour earlier that day. As they were signing in, Rodriguez remarked to Ramos that defendant had not arrived yet.

Ramos was walking toward the store entrance when she saw a car pull up in front of the door, and two people emerged from it. Both people entered the store, and were wearing dark clothing with hoods and something covering their faces from the eyes down. One of the two carried a rifle.

The intruders took Miller's cell phone and key ring containing the keys to the store. There were approximately 30 to 40 keys on the ring. The keys were not marked to indicate which lock they opened. After handing over the keys, Miller heard one of the intruders lock the front door without asking which key fit the lock.

The intruders bound the victims' hands behind their backs with duct tape. Then, they walked the three victims to the jewelry department. One of the intruders, the one without a gun, took Ramos and Rodriguez back to the maintenance office, leaving Miller in the jewelry department with the other intruder. Ramos and Rodriguez were left in the maintenance office and told they would be killed if they left the office. The intruder disabled the phone that was in the room and confiscated Ramos's cell phone.

The intruder who remained with Miller told her that she was not going to be harmed. The intruder was soft-spoken and had a slight Hispanic accent. Miller recognized the voice as defendant's. Defendant told Miller that she should not work there anymore, and "[w]e'll get your family." Defendant told Miller to tell the police that the robbery had been perpetrated by African Americans. Miller believed the other perpetrator was the person who had been maintenance supervisor prior to defendant. Her belief was based on the man's build and the way he moved and interacted with defendant.

When the second intruder returned to the jewelry department, they instructed Miller to open the jewelry safes and display cases in that area. The intruders took suitcases from the luggage department and loaded them with stolen jewelry. After getting the jewelry, they said they wanted cash, and Miller took them to the cash room. After getting the cash from the cash room, they brought Miller back to the jewelry department and took her purse. They wanted the key to the camera room, but Miller told them she did not have it.

The intruders took Miller back to the maintenance office, where she, Ramos, and Rodriguez were told to wait inside for an hour. Miller freed the two other employees, then the three waited approximately 15 minutes before exiting and calling the police.

Around 6:00 a.m. that morning, Fernando Ventura, defendant's brother-in-law, was awakened by defendant at the house the two shared. Defendant appeared flushed and agitated. Defendant gave Ventura a set of car keys to a blue Honda and asked Ventura to take the car. Ventura had not seen defendant with the Honda before that morning. Ventura parked the Honda in his garage. Defendant left clothes consisting of a pair of pants, a jacket, and a pair of tennis shoes strewn around the house and asked Ventura to throw the clothes away. Ventura stored the clothing in his car.

Later the next day, Ventura moved the Honda to the front of his house and looked in the trunk. The trunk contained luggage and jewelry. A search of the Honda revealed over $23,000 in cash. The jewelry inside the three suitcases was valued at over $447,000. The police also took the clothing in Ventura's car. In all, police recovered a little over $25,000 in cash and jewelry valued at just over $1.7 million. The remainder of the loot was discovered in Oakland.

Defendant was interviewed by police on the day of the robbery, as were all the other store employees. The interview was videotaped and the video was played for the jury. At first defendant denied any involvement in the robbery. When asked if anyone had problems with the store, defendant named Ricardo Hernandez, the former maintenance supervisor. Hernandez lived in Oakland.

Eventually, defendant admitted to helping Hernandez by going into work a little late and staying out of the way to "let him do this dirt . . . ." He claimed Hernandez was a gang member who had threatened defendant's family if defendant did not cooperate, but denied any actual participation in the robbery. Later in the interview, defendant finally admitted his participation in the robbery.

In defendant's jailhouse interview, conducted two days after his arrest, defendant admitted that he kept some of the stolen goods.

Defendant testified on his own behalf. He admitted the robbery, but claimed Hernandez told him he had to do the robbery or he (Hernandez) would kill his family. He testified that he expected to be paid for the robbery. He did not seek help from the police because he did not trust the police.


I Jury Selection

Defense counsel made a motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson, supra, 476 U.S. 79 [90 L.Ed.2d 69], after the prosecutor used a peremptory challenge to exclude a person defense counsel claimed was the second Hispanic potential juror excluded by the prosecution. The trial court found no prima facie case of discrimination because there was no pattern of discrimination, and because of the difficulty in establishing bias based on the exclusion of Hispanic jurors. Defendant contends the trial court's findings were in error.

The prosecutor exercised three peremptory challenges as to the jury, and two peremptory challenges as to the alternate jurors. The first juror the prosecutor excused was Scott McBee. The second juror the prosecutor excused was Laura Miramontes. All potential jurors were directed to provide the answers to a standard list of questions. Miramontes stated she was a student and housewife, had four children, traveled in her spare time, and had a husband who was a general contractor. Miramontes was not further examined on voir dire by the court or by either party.

The third juror the prosecutor excused was Fernando Avila. Avila was employed relaying phone calls to the hearing and speech disabled. He was single, had an AA degree, and was currently trying to transfer to a university. Avila stated that he had a cousin currently being charged with murder in Modesto. He stated he did not know any of the facts of his cousin's murder case and that he did not think it would affect his judgment.

On voir dire examination by defense counsel, Avila stated that he intended to study international law relations. He stated he did not speak Spanish. He had taken a criminal justice class in college.

The prosecutor further questioned Avila regarding his cousin's murder case. Avila stated that the case was pending, that he had not been given any details about the case and had not been following it, that he grew up with his cousin, and that they had grown apart with his cousin going "in and out of the system as we grew older."

After the prosecutor excused Avila, defense counsel objected. He stated that Avila's name and appearance indicated he was Hispanic. Avila had indicated that he knew none of the facts regarding his cousin's case, and in all other respects appeared to be a good juror.

Defense counsel further stated there did not appear to be any other Hispanics on the jury, although one other juror, number 9, appeared to be of Filipino descent, indicating that juror had a Hispanic surname. Defense counsel stated that the prosecutor's previous challenge had been to Miramontes, who was then the only Hispanic on the jury. Thus, defense counsel argued, the prosecutor had removed the only two Hispanics available on the jury with his last two peremptory challenges. Defense counsel also pointed to three other jurors, apparently because they had Hispanic surnames. He said that juror number 11 had blond hair and fair skin, and juror number 5 did not look to be of Hispanic descent. Juror number 9 appeared to be Filipino.

The prosecutor argued that no prima facie case had been made, and that he was unsure whether either Miramontes or Avila were Hispanic.

The trial court made the following findings:

"It is very difficult, in my view anyway, and I may be different than others. I think it is very, very difficult any more to establish bias based upon Hispanic jurors. The population especially in Stockton is so mixed. It is virtually impossible to determine who may or may not have some Hispanic ancestry. It is not to say it can't be done. I am sure it can be. We all need to be very, very sensitive to that issue and alert for it.

It is so difficult to tell, if, for example, Mr. Villapudua [defense counsel], you said Mr. Estes, superintendent of Linden School District, was not Hispanic. I have to say, in all good faith, I can't agree with you. He could well be Hispanic. You can't tell by name. .

He was a relatively dark skinned person. Black hair. Black mustache. He could well have been Hispanic. You can't tell. . . . Mr. Avila clearly was Hispanic, and I believe Ms. Miramontes probably was, but even though she has [a] Hispanic last name, black hair, fairly light skin. For the sake of argument, let's say she was probably Hispanic.

I have to disagree with you as to the background of Filipino people. Spain settled, and one time owned the Philippines. So, I think Filipino people probably are Hispanic.

JN 09, I am not sure, again, he might be southeast Asian, too, because, again, people are so mixed up now. You cannot tell a difference. Sometimes, even if African American people, it is just very difficult to tell.

But, nevertheless, it does appear the D.A., at this point's [sic], first challenge was McBee. To me, that guy was clearly Anglo. And then this other challenge against Miramontes, somewhat questionable. I will give you that one. And the challenge of Avila, I don't think we need to get into Avila yet. Merely challenging two out of three people that happen to be Hispanic in this city, in this county, which probably has a vast majority, probably still has a majority anyway, of Hispanics is not a basis for a prima [facie] challenge.

Pattern, if I see a pattern, I will be alert to respond to it. I don't see anything that would suggest to me at this point that there is a pattern at all in, especially in view of Avila's statement. I can't consider that I realize that at this point. That motion is denied."

The two alternate jurors excused by the prosecutor were Maria Hernandez and Melvin Ocampo. Defense counsel did not renew his Wheeler/Batson motion as to either of these challenges. Hernandez volunteered that she had a brother who had been convicted of robbery. Upon voir dire by the prosecutor, she stated that her brother was killed two weeks after he got out of prison, and that he had been dead for 21 years. She also stated that she had worked for the sheriff's office, but had been asked to resign because she was living with an ex-felon.

Ocampo stated that he was not married, had no children, and that in his spare time, he watched television (basketball, football, and baseball) and read.

The names of the jurors and alternate jurors have been redacted from the record, and defense counsel made no further record as to the racial or ethnic makeup of the jury that was eventually seated.

When the defense challenges the prosecution's use of peremptory challenges and argues that they were impermissibly based on group bias such as race or ethnicity, the trial court engages in a three step procedure set forth by the United States Supreme Court in Batson, supra. "Those three Batson steps should by now be familiar. First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138], fn. omitted.) This case focuses on the first step. It is the defendant's burden to make a prima facie case. (People v. Hartsch (2010) 49 Cal.4th 472, 490.) To establish a prima facie case of bias based on the prosecutor's exercise of peremptory challenges, the defendant must be a member of a cognizable racial group, and show that the challenged jurors were members of the same group. (Batson, supra, 476 U.S. at p. 96 [90 L.Ed.2d at p. 87].) Defendant may rely on the fact that peremptory challenges constitute a practice that "permits 'those to discriminate who are of a mind to discriminate.'" (Ibid.) The defendant's burden is to produce evidence sufficient to permit the trial court to draw an inference of discrimination. (People v. Carasi (2008) 44 Cal.4th 1263, 1293.) "An inference is a logical conclusion based on a set of facts. (People v. Lancaster (2007) 41 Cal.4th 50, 74.)

Defendant successfully showed that he was a member of a cognizable racial group and that the prosecutor exercised his peremptory challenges to exclude venire members from that group. The trial court was incorrect in concluding that it was too hard to tell who was Hispanic. Hispanics constitute a cognizable group for purposes of Wheeler/Batson, as do Spanish surnamed individuals where no one knows at the time of the challenge whether the prospective juror is Hispanic. (People v. Trevino (1985) 39 Cal.3d 667, 686 (disapproved on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1219-1221).)

The evidence relevant to show a prima facie case includes: (1) that the prosecutor has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of peremptory challenges against that group; (2) that the only characteristic the jurors in question share is their membership in the group, and in all other respects they are as heterogeneous as the community as a whole; (3) that the prosecutor engaged the excluded jurors in only desultory voir dire or failed to ask them any questions; (4) that the defendant is a member of the excluded group, especially if the victim is a member of the group to which the majority of the remaining jurors belong; and (5) that the prosecutor engaged in a pattern of strikes against potential jurors from the excluded group. (People v. Bell (2007) 40 Cal.4th 582, 597.)

Applying the factors relevant to showing a prima facie case, the prosecutor used four of the five peremptory challenges he exercised against those with Spanish surnames. It is impossible to tell on this record whether there were more potential jurors with Spanish surnames who were not excused for cause or by the defense, because the names of the seated jurors have been redacted. Defendant here is Hispanic, as were two of his victims.

The prosecutor's voir dire of Avila was arguably sufficient in light of the fact that Avila had been questioned by the court and defense counsel. The prosecutor's voir dire focused on Avila's cousin who had been arrested and was being tried for murder. However, the prosecutor conducted no voir dire of Miramontes. The only information elicited from Miramontes by either party or the trial court was her answer to the standard set of questions posed to all the potential jurors.

The trial court felt that there was no pattern of strikes against Hispanics. At the time the trial court made its determination, two of the prosecutor's three peremptory challenges had been against jurors with Spanish surnames. As the Supreme Court has indicated, the ultimate issue is not whether there is a pattern of systematic exclusion, but whether a particular juror has been challenged because of improper group bias. (People v. Bell, supra, 30 Cal.4th at p. 599, fn. 3.) Nevertheless, in drawing an inference of discrimination from the fact that the prosecutor has excused most or all members of a group, a court necessarily relies on an apparent pattern in the challenges. (Ibid.) It is difficult to establish a pattern from the excusal of only one or two members of a group. (Ibid.)

There was arguably a valid non-discriminatory reason for the prosecution's exclusion of Avila, namely that he had a family member who was currently being tried for murder. However, the record discloses no information on Miramontes that would indicate why she might have been an undesirable juror for the prosecution.

Our task is to determine from the totality of the relevant facts whether the trial court could have reasonably inferred a discriminatory intent. If the only facts available were that the prosecutor excused most or all of the Hispanic jurors, the small size of the sample would make drawing an inference from this fact alone difficult. (People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 12.) Here, we also have the fact that the prosecutor excused Miramontes without asking her any questions, when the standard information she supplied was unremarkable. Additionally, neither the trial court nor defense counsel elicited any information from her.

"The exercise of even a single challenge based on race is constitutionally proscribed." (People v. Howard (2008) 42 Cal.4th 1000, 1018, fn. 10.) Even though defense counsel was unable to show a pattern of discriminatory intent, he correctly pointed to Miramontes's apparent qualification as a juror. As we have noted, there was no voir dire of Miramontes.

The prosecutor's only argument in response was that he was not sure whether either Miramontes or Avila were Hispanic. The trial court agreed, but this was not a proper ground upon which to decide the issue. A person with a Spanish surname is a member of a cognizable group where, as here, it is unknown at the time of the challenge whether they are Hispanic. (People v. Trevino, supra, 39 Cal.3d at p. 686.)

In light of the above facts, we must conclude there were sufficient facts to support a reasonable inference that Miramontes and Avila may have been challenged because of their group association.

We shall employ the remedy used by the federal courts and approved by our Supreme Court in People v. Johnson (2006) 38 Cal.4th 1096, 1099-1104. We shall remand the matter to the trial court to conduct the second and third Batson steps as to Miramontes and Avila. The prosecutor should be required to explain his challenge, and if he offers a race-neutral explanation, the court must evaluate that explanation and decide whether defendant has proved purposeful racial discrimination. If the court finds that, due to the passage of time or any other reason it cannot adequately address the issue or make a reliable determination, or if the prosecutor is found to have exercised his peremptory challenge improperly, the court should set the case for a new trial. If the prosecutor is found to have properly exercised his peremptory challenge, the judgment should be reinstated. (See, id. at pp. 1103-1104.)

II Miranda

Defendant moved in limine to exclude all of his pre-trial statements because they were made in violation of Miranda and because they were involuntary. The following evidence relevant to these issues was elicited.

Detective Jose Lopez testified he was called to the store at around 8:00 a.m. on the Saturday morning of the robbery. After walking though the scene of the crime and speaking with the manager, he went to the police station to speak with the employees that were at the site. The employees had been transported to the police station by the officers who had initially responded to the scene.

Lopez was told that when the officers originally arrived at the store they saw defendant outside the business and handcuffed him. When they determined he was an employee, the handcuffs were removed. Before being transported to the station, the employees were at a restaurant, and they were not handcuffed. The employees also were not handcuffed when they were transported to the station.

During the time defendant was at the restaurant, he left at around 9:00 a.m. to retrieve his cell phone, then returned.

Lopez interviewed two of the victims and defendant. His first interview was around 1:00 p.m. and was with Mario Rodriguez, one of the victims. That interview lasted around an hour. The next interview was with the other victim. It lasted approximately and hour and one-half.

Lopez's interview with defendant lasted several hours. The interview began at 3:47 p.m. Defendant was not under arrest, and was free to leave. The door to the interview room was shut. It automatically locked, and a key was needed to leave. All of the interviews with the other employees were conducted in interview rooms with closed doors that automatically locked.

Defendant was given food prior to the interview, and at one point was given a soda. He was given several bathroom breaks throughout the interview. The interview ended around 8:00 p.m. About two and one half hours into the interview, the police started asking defendant about inconsistencies in his statement. They continued to ask about those inconsistencies, and started to confront defendant, then gave him his Miranda warning.

Defendant testified in his own behalf at the in limine motion hearing. He stated the police "directed" him to wait at a nearby restaurant with the other employees. He admitted he was allowed by the police to leave the restaurant in order to go home and retrieve his cell phone. He said that he waited in a police car outside the store for two hours. An officer was in the car with him, and the officer never told him he was free to leave. After defendant was placed in an interview room he asked an officer if he could leave, and was told he could not leave until he was interviewed and cooperated. He claimed he was told he could not use the phone. He admitted that the videotape does not show him asking to leave or use the telephone.

The trial court reviewed the videotaped interviews and their transcripts.

A. Pre-Miranda Interrogation

Defendant argues the interrogation to which he was subjected prior to being given his Miranda warning was a custodial interrogation, and that as such the statement should have been suppressed.

A custodial interrogation occurs when there has been such a restriction on the suspect's freedom as to render him in custody. (Stansbury v. California (1994) 511 U.S. 318, 322 [128 L.Ed.2d 293, 298].) The relevant inquiry is how a reasonable person in the suspect's position would have understood the situation. (Berkemer v. McCarty (1984) 468 U.S. 420, 442 [82 L.Ed.2d 317, 336].) We look at the circumstances surrounding the interrogation, then determine whether those circumstances would have led a reasonable person to feel that he or she was not at liberty to terminate the interrogation and leave. (Thompson v. Keohane (1995) 516 U.S. 99, 112 [133 L.Ed.2d 383, 394].)

In making its ruling, the trial court thoroughly considered all of the circumstances. It noted that although defendant was initially handcuffed, he was released when it was discovered that he was an employee. The court found that defendant had been treated the same as the other innocent employees when he was asked to wait at a nearby store, and was even allowed to leave unsupervised to retrieve his cell phone.

When he was questioned at the police station, he was again treated the same as the innocent employees. The court found that when the questioning began, "the officers treated the defendant in a very civilized fashion, they offered him something to eat . . . . So I think they were concerned and appeared to be concerned for his well-being and his comfort." The officers told defendant he was not under arrest, which he indicated he understood, and that the detectives were also talking to his colleagues from work.

Having reviewed the videotape, the trial court found that when the questioning began there was no evidence that the police suspected defendant of being the perpetrator, although they thought there was a possibility that the robbery was an inside job. Only when defendant volunteered the name of Ricardo Hernandez, did the police hone in on that information.

The trial court found that the first segment of the interview, which comprised the first 83 pages of the transcript, was an information gathering situation, and that during that time there was no real reason to think that the police had any reason to suspect defendant.

During the second segment of the interview, still before the Miranda warning was given, the officers asked defendant for consent to search his house, his phone, and his car. Defendant readily gave his consent. They then informed defendant that they had a picture of him and Hernandez. The trial court found that at this point the police were beginning to focus on defendant. Nevertheless, they did not tell him he was under arrest, his custodial situation was not at all changed, and they gave him no hints that they were now considering him a suspect.

One of the detectives suggested that Hernandez might have put pressure on defendant to somehow assist in the robbery. Defendant at first denied this. After some back and forth with the detectives urging defendant to tell the truth, defendant finally admitted that Hernandez just told him to get out of the way. He continued to insist he had done nothing wrong.

The trial court found that even though the detectives kept trying to suggest that he was not telling the whole story, there was nothing to indicate that defendant's custodial status had changed. The trial court found that a reasonable person would not think there was any change in custodial status.

The court found that finally in the third segment of the interrogation, the officers decided that defendant was acting so suspiciously that they had probable cause to arrest him, at which point they did not tell him he was under arrest, but gave him a Miranda warning.

Defendant points to a number of factors which he claims indicate that he was in custody. He was transported to the police station in a police car. However, it is reasonable to assume that all of the employees who were questioned were taken to the station in this manner. There is no evidence this was not the case.

Defendant claims his freedom of movement was restricted while he was in the hands of the police. Again, there is no evidence this was the case. Detective Jose Lopez testified defendant was given several breaks and that he was unaccompanied and unsupervised during those times.

Defendant was interrogated in a locked room. However, all of the interrogation rooms locked automatically. Moreover, the fact that an interview takes place in a locked interview room at a police station does not necessarily make the interview custodial. (People v. Stansbury (1995) 9 Cal.4th 824, 834.)

Defendant argues he waited hours to be interviewed, and the interview lasted hours. We do not find this fact indicative of a custodial interview under the circumstances of this case. The police were interviewing numerous employees regarding the robbery. Some of the employees necessarily had to wait to be interviewed. Defendant was given his Miranda warning at approximately 7:20 p.m., and the interview started at approximately 3:47 p.m. A three and one-half hour interview also does not indicate defendant was in custody, especially when, as the trial court found, defendant was advised he was not under arrest and his custodial status did not appear to change during that time.

We conclude the trial court properly determined defendant was not in custody prior to receiving a Miranda warning.

B. Post-Miranda Statements

Defendant argues his post-Miranda statement should have been excluded because he did not voluntarily, knowingly, and intelligently waive his rights. We disagree.

A Miranda waiver may be either express or implied. (People v. Whitson (1998) 17 Cal.4th 229, 250.) An express waiver is not required if a defendant's actions make clear that a waiver is intended. (Ibid.) A valid Miranda waiver is one that is free from coercion or deception and that was made with full awareness of the nature of the right being abandoned and the consequences of abandoning the right. (People v. Davis (2009) 46 Cal.4th 539, 585-586.) In reviewing the trial court's decision we accept its determination of disputed facts if supported by substantial evidence, but independently decide whether defendant's statements were obtained in violation of Miranda. (Id. at p. 586.)

On the tape, the detective read defendant his Miranda rights, then asked, "Do you understand each of these rights I have explained to you?" Defendant responded, "Yes sir." The detective asked, "That's yes, Sir?" Defendant nodded in response.

The trial court found that defendant never requested a lawyer, invoked his right to remain silent, asked to leave, or asked about his custodial status. The trial court found the detectives made no improper promise, that there was no violation of the constitutional limitations on defendant's right to remain silent, and that the statement was admissible under the voluntariness rules and under the Fifth Amendment Miranda rights.

Defendant argues an involuntary waiver from the fact that he was only 20 years old, had a high school education and no prior criminal convictions or arrests, had been in this country speaking English for only five years, and was reluctant to admit his involvement in the robbery. Defendant appeared to have no trouble conversing in English or understanding his situation. If anything, his reluctance to admit his involvement indicates he was aware of the consequences of confessing. Our review of the evidence indicates the trial court's ruling was correct and that defendant voluntarily and knowingly waived his Fifth Amendment rights.

C. Jailhouse Interview

Defendant was interviewed again two days after the robbery, while he was in jail. Defendant claims his Miranda rights were violated during this interview because he invoked his right to counsel and because there was no knowing and intelligent waiver of rights.

The transcript of the interview indicates the detective gave defendant a Miranda warning and asked whether he understood. The transcript is unclear as to defendant's response. However, the trial court stated that defendant "still indicates that he understands his rights and does not ask for a lawyer, does not ask, indicate that he wants to remain silent or invoke his right to remain silent."*fn3 Also, after giving the Miranda warning and asking defendant if he understands and waives the rights, the detective says, "Okay" and proceeds to ask questions. We may infer from this that defendant answered in the affirmative.

As discussed above, defendant's recognition that he understood his rights combined with his subsequent statement constituted a voluntary, knowing and intelligent implied waiver.

Defendant's claim that he invoked his right to an attorney is based on the following incidents. At one point in the interview, defendant said, "I don't know, you know, uh, my mom was telling me that I have to wait until tomorrow for uh, for a lawyer or something for, for or can you guys like, appoint a lawyer for . . . ." The detective replied, "Tomorrow you're gonna go to court and you're gonna be assigned an attorney. What we're trying to do right now is trying to straighten it all out before it gets to that point because after that, we can't talk to you anymore."

Shortly thereafter, the defendant started to tell "the whole story" and during his recitation said, "that's why I need a lawyer, sir. So that I could get everything written down and everything, you know. All the details . . . ."

The trial court found that the first instance did not tell defendant that he did not have a right to an attorney, but that it told him the opposite, that he would get an attorney and when he did they could not talk to him. The trial court further found that if defendant wanted an attorney at that point and did not want to talk to the detectives he would have said so, but instead he just said, "Okay." He then went on to tell the officers the same basic story he had already told them in the prior interview. The trial court found the statements were admissible.

If a suspect requests counsel during an interview, he is not subject to further questioning until a lawyer has been made available, or the suspect reinitiates the conversation. (Davis v. United States (1994) 512 U.S. 452, 458 [129 L.Ed.2d 362, 370].) This prohibition on further questioning does not apply unless the suspect clearly, unambiguously and unequivocally asserts the right to counsel. (Id. at p. 459 [at p. 371].) The type of statement required is one in which the suspect unequivocally requests the immediate presence of an attorney before answering any more questions. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1126.) A statement that would lead a reasonable officer to understand only that the suspect might be invoking the right to counsel in light of the circumstances is insufficient to invoke the right. (Id. at p. 1127.)

Following this standard, the United States Supreme Court has held that the statement, "Maybe I should talk to a lawyer" is not an unambiguous request for counsel. (Davis v. United States, supra, 512 U.S. at p. 452 [at p. 373].) While we concur with the trial court that defendant's statement that his mother said he had to wait until tomorrow "for a lawyer or something" was not a clear, unambiguous and unequivocal request for counsel, and his statement that he needed a lawyer so he could write everything down and get the details straight did not constitute an unequivocal request for the immediate presence of counsel before answering further questions, we nevertheless conclude defendant's statements should have been excluded because the questioning officers misled defendant regarding his right to counsel.

A suspect must knowingly and voluntarily waive the right to remain silent and to the presence of an attorney before he may be subjected to custodial interrogation. (People v. Dykes (2009) 46 Cal.4th 731, 751.) On these circumstances we conclude defendant's waiver of his right to an attorney was not knowing and voluntary because when he stated that his mother told him he had to wait until the next day for a lawyer, then asked if a lawyer could be appointed for him, the officer's response was that he would get an attorney the next day, and that after he got an attorney, they could no longer talk to him. The implication of this statement was that the officers could not talk to defendant after he was appointed an attorney, but that they could talk to him until that time, even if he requested an attorney. Actually, once defendant requested an attorney, all questioning had to stop. (Miranda, supra, 384 U.S. at p. 474 [16 L.Ed.2d at p. 723].) Under these circumstances, there was no voluntary waiver of the right to counsel.

Nevertheless, we conclude the error was harmless beyond a reasonable doubt. Defendant had already confessed in his prior interview to participating in the robbery. The only additional information gleaned from the jailhouse interview was defendant's admission that he received some of the loot from the robbery, and his explanation of what he had done with the clothes he had been wearing. Defendant admitted at trial that he expected to be compensated for his part in the robbery. Thus, all of the information relevant to defendant's conviction of the charged crimes was before the jury without the inclusion of the jailhouse interview.

III Statements were Voluntary

Defendant argues the confessions he made during his first interview were involuntary and should have been excluded on that ground. He points to the officers' "implied promises of leniency and grants of benefits" as well as their representations that his "lack of cooperation would be communicated to the authorities."

Specifically, defendant objects that the detectives told him it was not true when defendant said they would put him in jail. Defendant claims this can be construed as a lie. This is a mischaracterization of the conversation. What defendant said was, "If you're just going to put me in jail, you're going to be like man, he's just another Mexican. You know? Like that." To this the detective replied, "No. That's not true at all. And you know that's far from the way I think. Jesus. You know that's way far from what I'm thinking. You know how we always tried to help you guys out there at the school. Against the Nortenos. . . . That's because I had respect for Luis and what Daisy and all them used to tell me." The detective was not denying that he would put defendant in jail, he was denying that he thought of defendant as "just another Mexican."

Also, defendant claims the detectives told him he would "pay the consequences" if he was not honest with them. Again, this is not supported by the record. The transcript of the interview indicates defendant told the detectives that Hernandez told him that he would "pay the consequences" if he did not go along with them, presumably to rob the store. The detectives did not tell defendant he would "pay the consequences" if he did not cooperate.

The test for determining whether a confession was voluntary is whether a defendant's will to resist was overborne such that the confession was not freely self-determined. (People v. McWhorter (2009) 47 Cal.4th 318, 346-347.) A confession may be involuntary if it is obtained by threats or violence, direct or implied promises, or improper influence. (Id. at p. 347.)

The trial court considered the issue of an involuntary confession, and found as follows:

"Now the next thing that I questioned here was whether or not what the officers said to him could be viewed as some kind of improper promises here. . . . [B]ut over and over again the officers keep telling him that he needs to tell the truth because if, in fact, this fellow Ricardo [Hernandez] was threatening him or threatening his family with some kind of injury if the defendant didn't cooperate, that they needed to know all the details so that they could take whatever steps they could to protect him.

". . . [I]t does not appear to be the sort of promise that the cases indicate would make a statement like this . . . involuntary. If there was any promise at all, it was merely a promise by the police to do their job, if they knew the facts that they might be able to help somebody out in terms of providing legal protection for them.

"There's no promises of leniency, there was no promise of reward, there is no threat, the officers are simply telling him over and over again that if you tell us the truth and give us the details that we may be able to do what we're paid to do; namely, provide public protection."

The trial court gave several examples to support its ruling. First, one of the detectives told defendant that the way it worked was that he told them the truth so that they knew what Hernandez had done to him. "How he got to you. So that we can start helping you and your family. That's how it works." At another point in the interview, defendant asked how the detectives would be able to help him. They replied that they would help by letting the District Attorney's office know his side of the story.

When defendant asked if he could be with his family, the detective told defendant he could not make that promise. The trial court found that it appeared defendant was asking if he could go home if he told the truth, but the detective never answered that question. The court found that the statement was "all admissible under the voluntariness rules with regard to the admissibility of confessions, and also under the Fifth Amendment Miranda rights."

In his reply brief defendant claims the detectives' promises to help his family were similar to the promises made in Arizona v. Fulminante (1991) 499 U.S. 279 [113 L.Ed.2d 302]. In that case the United States Supreme Court found that the confession was coerced where Fulminante's jailmate, who was an informant for the police, promised Fulminante protection from the other inmates who were threatening him because he was a child murderer in exchange for a confession to the murder. (Id. at pp. 283, 286 [at pp. 313-314, 315-316].) The court held that a confession may be coerced where the defendant is under a credible threat of physical violence and the police offer protection in exchange for a confession. (Id. at pp. 287-288 [at pp. 316-317].)

Here, the detectives never explicitly told defendant that they would offer his family police protection if he confessed. Instead, he was told the police could not help his family, or would not be able to protect them if they did not know the truth. The trial court correctly found that this was no more than a promise to uphold the law.

We agree with the trial court that there is no indication the detectives made any express or implied promise of leniency. They also did not promise defendant protection for his family, other than the protection they could provide by doing their job if they knew the truth of what had happened. His statements were properly admitted, as was the evidence obtained as a result of his consent to search his house, phone and car.*fn4

IV Penal Code Section 654

The trial court imposed consecutive sentences on the false imprisonment counts (counts 4,5, and 6) and a concurrent sentence on the criminal threat count (count 7). Defendant argues these sentences should have been stayed pursuant to Penal Code section 654. We agree.

"A defendant cannot be punished multiple times for convictions that arise out of 'an indivisible transaction' and have a 'single intent and objective.' [Citation.]" (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.) We review the trial court's finding of a separate intent and objective for substantial evidence. (Ibid.)

When sentencing defendant for the false imprisonment, the trial court stated: "[T]he Court is also going to order that he serve a term for the false imprisonments. And the reason for that is that the Court feels that this was unnecessary for the robbery. He scared these people to death . . . [¶] . . . . They certainly believed that something serious was going to happen to them, and it was unnecessary to the robbery. [¶] This was a totally separate objective of the defendant. And while I think he probably thought it would give him more chance to get away, nevertheless I think it was a totally independent objective, and certainly made the robbery much more serious."

The trial court never specified what it found to be the separate objective of the false imprisonment. There is no evidence to support defendant's intent to scare the victims to death. There is no evidence defendant or his accomplice harbored any particular ill will toward the other employees of the store. In this respect this case is unlike People v. Racy, supra, 148 Cal.App.4th at page 1337, in which this court concluded the trial court correctly imposed separate sentences for both robbery and elder abuse, since the trial court's implied finding that the defendant had a separate intent and objective for elder abuse was supported by the defendant's belief the victim had sexually assaulted the defendant's mother.

For two of the victims in this case, the imprisonment occurred before and during the robbery, and there is no evidence that the object of the imprisonment was for any reason other than to facilitate the robbery. Likewise, the third victim was bound and placed in the maintenance office before the robbers escaped with their considerable loot. There appears to be no reason for her imprisonment other than to prevent her from sounding the alarm before the robbers could escape with their suitcases of jewelry and cash.

While the act of imprisoning the victims may not have been strictly necessary in that the victims might have been subdued by the firearm alone, given the logistics of robbing a large department store and the fact that the victims outnumbered the criminals, it is reasonable to conclude that the imprisonment was for the purpose of facilitating the robbery. No other reason appears in the record.

Respondent argues the multiple victim exception to section 654 applies. Even where a defendant entertains a single principal objective, he may be convicted and punished for multiple convictions if he committed crimes of violence against different victims. (People v. Centers (1999) 73 Cal.App.4th 84, 99.) In this case defendant was found guilty of a single count of robbery, of which the named victim was Miller, and three counts of false imprisonment, in which all three victims were named. Since Miller was the victim of the robbery and one of the false imprisonment counts, the multiple victim exception applies only if the false imprisonment convictions as to Ramos and Rodriguez are crimes of violence.

A crime constitutes an act of violence if it is defined to proscribe an act of violence against the person. (People v. Hall (2000) 83 Cal.App.4th 1084, 1092-1093.) "'False imprisonment is the unlawful violation of the personal liberty of another.' [Citations.] In this context, '"[p]ersonal liberty"' is violated when 'the victim is "compelled to remain where he does not wish to remain, or to go where he does not wish to go."' [Citations.] It is the restraint of a person's freedom of movement that is at the heart of the offense of false imprisonment embodied in section 237. [Citation.] '"'The wrong may be committed by acts or by words, or both, and by merely operating upon the will of the individual or by personal violence, or both. . . .'"' [Citations.] [¶] The offense becomes felonious when it is 'effected by violence, menace, fraud, or deceit . . . .' [Citations.] '"Violence" . . . means the "'the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint.'"' [Citations.] 'Menace' is defined as '"'a threat of harm express or implied by word or act.'"' [Citation.]" (People v. Reed (2000) 78 Cal.App.4th 274, 280.)

Thus false imprisonment is a crime that may be, but is not necessarily defined to proscribe violence against the person. We are aware of no case that has determined whether false imprisonment is a crime of violence for purposes of section 654.

Not surprisingly, assault with a deadly weapon is by definition an act of violence against a person. (People v. Hall, supra, 83 Cal.App.4th at p. 1089.) Robbery at gunpoint is also an act of violence for purposes of the multiple victim exception. (People v. Miller (1977) 18 Cal.3d 873, 886, overruled on other grounds recognized in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8.) Burglary, however, is not necessarily an act of violence for purposes of section 654. (People v. Miller, supra, at p. 886.) It may qualify as a crime of violence in some circumstances, such as where the defendant intends to and does inflict great bodily injury on the victim, or where the defendant personally uses a firearm in the commission of the burglary. (Ibid.; People v. Centers, supra, 73 Cal.App.4th at p. 88.) Likewise, kidnapping at gunpoint in order to facilitate a robbery may be separately punished. (People v. Zurica (1964) 225 Cal.App.2d 25, 32.)

Felony false imprisonment is not necessarily defined to proscribe violence against the person because it may be accomplished by menace, fraud, or deceit in addition to violence. Here, the false imprisonment was not accomplished by violence. It was not done at gunpoint. The jury instructions given referred only to menace, and the prosecutor argued menace rather than violence as the means by which the imprisonment was accomplished. Under these circumstances, it would be incorrect to conclude that the false imprisonment against Ramos and Rodriguez was a crime of violence. The trial court incorrectly imposed separate sentences for false imprisonment.

The criminal threat conviction, for which defendant was given a concurrent two year sentence, was based upon defendant's statements to Miller that she should not work there anymore, that they would "get" her family, and that they would kill her if she left the maintenance office. This, too, appears to have been to facilitate the robbery. No other objective is supported by the record. The People concede this issue. The sentence should have been stayed.*fn5


The judgment is reversed and the cause is remanded to the trial court to conduct the second and third Batson steps. The trial court should require the prosecutor to explain his challenges, and if he offers a race-neutral explanation, the court must try to evaluate that explanation and decide whether defendant has proved purposeful racial discrimination.

If the court finds that, due to the passage of time or any other reason, it cannot adequately address the issues at this stage or make a reliable determination, or if it determines that the prosecutor exercised his peremptory challenges improperly, it is ordered to set the case for a new trial.

If it finds the prosecutor exercised his peremptory challenges in a permissible fashion, it is ordered to reinstate the judgment, modified as follows: the consecutive sentences on counts 4, 5, and 6 and the concurrent sentence on count 7 are ordered stayed pursuant to Penal Code section 654; and the superior court clerk is directed to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.

We concur: ROBIE , J. BUTZ , J.

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