APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. (Super. Ct. No. SCE293590)
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part; reversed in part.
The trial court sitting as trier of fact found Christopher Gonzalez (Christopher) guilty of the following: count 1, attempted murder (Pen. Code,*fn2 §§ 664 & 187, subd. (a)); count 2, assault with a deadly weapon (§ 245, subd. (a)(1)); count 3, first degree burglary (§§ 459 & 460); count 4, aggravated mayhem (§ 205); and count 5, simple mayhem (§ 203). Additionally, the court found Christopher had personally used a dangerous weapon within the meaning of section 12022, subdivision (b)(1) and had personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The court sentenced Christopher to a determinate sentence of nine years followed by an indeterminate term of 14 years to life.
Christopher appeals, contending: (1) the court prejudicially erred when it admitted evidence obtained in violation of his constitutional rights; (2) his conviction for simple mayhem must be vacated because it is a necessarily included offense of aggravated mayhem; and (3) "box 5" of the abstract of judgment should be corrected to reflect the imposition of a life sentence on count 1 only. As we explain, we reject his first contention but agree with his second and third contentions. We thus affirm in part and reverse in part his judgment of conviction.
In mid-August 2009, Maria Gonzalez (Maria) and her teenage daughter Selina G. were awakened at approximately 4:00 a.m. by knocking at their front door. It was Christopher, the son of Maria's former boyfriend Raymond Gonzalez (Ray). Christopher was upset after fighting with his father. Maria invited Christopher inside. About half an hour later, Maria's son Robert Gonzalez (Robert) came home with victim Daniel Castillo (Daniel).*fn4
Maria decided to walk Christopher back to his father's house, which was only a few blocks away. Once back at his father's house, Christopher and Ray had another fight. Christopher then left with Maria to return to Maria's house. On the way back to Maria's house, they saw some tools on the ground, including a hammer and a crowbar. Maria recalled commenting to Christopher about the tools as they walked.
After Maria and Christopher returned to Maria's house, Robert, Selina and Daniel left to get something to eat. Christopher stayed behind with Maria. Sometime after 6:00 a.m., Christopher and Daniel went to a convenience store to buy alcohol. Robert, Daniel, Selina and Christopher then watched a movie. At 6:30 a.m., Maria left for work. When she left, everyone appeared to be enjoying the movie.
Five minutes after Maria left, Selina went to her bedroom to sleep, leaving the three men alone in the living room. Christopher asked Daniel for a cigarette, then went outside.*fn5 Robert went to his room and fell asleep, leaving Daniel alone in the living room.
A few minutes later, Selina returned to the living room after she heard noises outside. Recognizing that Christopher was gone, Selina unlocked the front door for Christopher and then returned to her bedroom. Inside her room, Selina heard someone outside opening the latch of the front gate. She went back to the living room and found Daniel looking out the window. Daniel told her that Christopher had just returned. As she returned to her room, Selina heard the sound of the front door opening.
About five minutes later, from inside her room Selina heard sounds in the living room that she described as similar to the noise her dogs make when they jump off the couch. When the noise continued, Selina went to the living room and found Christopher standing behind the couch with his arm behind his back. Christopher told Selina that Daniel was sleeping. Frightened, Selina returned to her room and locked the door. Selina first called her mother and then she called 9-1-1.
As Selina was speaking to the 9-1-1 operator, Christopher knocked on the door and asked to use the telephone. Selina told the 9-1-1 operator that Christopher was banging on the door, then he began shaking the doorknob. When the banging stopped, Selina opened her door slightly and saw Daniel in the living room. His face was covered in blood. When asked, Selina explained to the 9-1-1 operator that she thought Daniel had been hit by a weapon because "his head [was] all smashed," his eye was "completely cut" and his temple looked as if it was "falling off."
A witness saw Christopher dispose of a hammer while Christopher was running in a drainage ditch. Sheriff's deputies recovered the hammer, which Maria later identified as the same hammer she and Christopher saw when out walking early in the morning. When the deputies arrested Christopher, he was sweating, breathing heavily and wearing only boxer shorts. Deputies transported Christopher to the sheriff's substation and placed a parole hold on him.
Daniel suffered a fractured jaw, cheekbone, skull and nose. He underwent multiple surgeries on his face. At trial, his upper lip remained a little numb, his right eyelid did not feel right and he had facial scars and a tracheotomy scar on his neck.
Christopher contends the trial court erred when it refused to exclude his post-arrest confession, which he contends was in violation of his rights under Miranda*fn6 and under the Fifth and Fourteenth Amendments. On review, we defer to the trial court's factual findings if they are supported by substantial evidence, but we decide de novo whether law enforcement lawfully obtained the incriminating statements. (People v. Williams (2010) 49 Cal.4th 405, 425.)
Once at the sheriff's substation, Detectives Licudine and Navarro interviewed Christopher. Christopher initially asked if he could speak with his parole agent Michael Lum. The detectives stated they needed to speak with Christopher first. They asked him some general intake questions. Detective Licudine then read Christopher his Miranda rights. Christopher stated he understood his rights and told the detectives he and Daniel had some problems because Daniel was "talking some stuff" to him.
As the detectives continued to question Christopher about the incident, Christopher unambiguously invoked his right to speak with an attorney. Detective Navarro replied, "No worries. No worries." Detective Navarro then asked Christopher if he wanted to speak with his parole agent. Detective Licudine offered to leave the room if Christopher wanted to speak with the parole agent. The detective told Christopher that she (the detective) would not be able to speak with ...