California Court of Appeals, First District, Third Division
modified Mar. 13 and Mar. 15, 2017.
Superior Court of Contra Costa County, No. 51306067, Trevor
[Copyrighted Material Omitted]
D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Jeffrey M.
Laurence, Assistant Attorney General, Donna M. Provenzano and
Arthur P. Beever, Deputy Attorneys General, for Plaintiff and
H. Derham and Tiffany J. Gates for Defendant and Appellant.
Acting P. J., with Siggins and Jenkins, JJ., concurring.
Cal.Rptr.3d 725] POLLAK, Acting P. J.
Defendant Deyanira Cuiriz appeals a judgment sentencing her
to imprisonment for 27 years to life following her conviction
for attempted voluntary manslaughter, shooting at an occupied
vehicle and mayhem. She contends that she did not voluntarily
and knowingly waive her right to remain silent when she spoke
to the police after having been advised of her rights under
Miranda v. Arizona (1966) 384 U.S. 436');">384 U.S. 436 [16 L.Ed.2d
694, 86 S.Ct. 1602] ( Miranda ), and that the trial
court erred in admitting her statements made during the
police interrogation and in refusing to excise from the
evidence presented to the jury a statement by the
interrogating detective. She also contends the sentence
imposed constitutes constitutionally prohibited cruel and
unusual punishment. We shall affirm the conviction but
conclude this is the rare case in which there is merit to
defendant's constitutional challenge to the sentence
record contains extensive testimony from numerous witnesses
describing the incident that culminated in the shooting that
rendered the victim a quadriplegic. However, a detailed
recitation of the evidence is unnecessary in view of the
issues raised on appeal.
brief, the shooting occurred after midnight on August 19,
2012, during the course of defendant's 19th birthday
party, outside the Richmond home where she lived with her
parents. Although there was conflicting evidence as to what
precipitated the incident, it is undisputed that a
confrontation occurred between defendant's father (who,
like others, had been drinking at the party) and the victim
Oscar Barcenas and his friend Miguel Magdaleno. The father
and others were outside in front of the house when Barcenas
and Magdaleno [213 Cal.Rptr.3d 726] drove by in a truck and
(for disputed reasons) exited the truck and engaged in a
physical confrontation with defendant's father. Defendant
emerged from the house, observed the two men hitting and
pushing her father and, according to defendant, pushed her
when she attempted to separate the
men. Defendant testified that she saw her father on the floor
with " his face full of blood," she was scared, and
yelled at the two men to leave and they threatened to return,
telling her they were gang members. Defendant was handed a
gun by her boyfriend and approached the truck to which
Barcenas and Magdaleno had retreated preparing to leave, and
fired one shot into the cab of the truck, piercing
Barcenas's spinal cord.
half-hour after police responded to the scene, defendant
approached an officer and, as the officer testified without
objection, acknowledged that she had shot the victim. As the
officer was handcuffing her, she explained that " she
was defending her father and that's why she shot the
subject in the vehicle." At trial she testified that as
she was standing next to the driver's side of the truck,
Barcenas " was coming outside of the truck towards
me." She continued, " He looked like he just turned
around from looking in his center console. When I turned
around, he was already coming out. I was scared." She
said she shot " [b]ecause I seen him come out the car
and I thought he had something, he was gonna do something to
me. I was already scared because he was saying that he's
in a gang, and that's really scary to me."
defendant's objection, the recording of her interrogation
by two detectives at the police station that began at 6:50
that morning was played for the jury. At one point during the
questioning, defendant stated that when Barcenas and
Magdaleno returned to the truck " and they're like,
'Oh I'm so sorry, I'm so sorry,' I was like,
'What the fuck do you mean you're sorry?' ...
[¶ ] ... [¶ ] ... I was like 'What the
hell?' I was like, 'How are you gonna say you're
sorry after you come and beat someone's dad not knowing
what the fuck is going on?' I was like, 'Fuck
that.' And then they were just like, man. They were just
saying some of this ignorant stuff. They got on my nerves.
And then I just shot the dude. I was like what the hell? Like
'cause he was gonna--he was, like, he was gonna come back
outside so I was scared. I was like, 'What the hell?'
I just shot him cause he was gonna come back and argue with
me." Later in the interrogation: " like we're
at the point where I was--where I grabbed--where my hand
started shaking. 'Cause like I got mad. Like I got mad
and I knew like, I never did nothing to anyone before. But
like they were being really ignorant. Like ... [¶ ] ...
I don't know why people. And I usually talk about ...
people being ignorant. But my anger got to me. [¶ ] ...
[¶ ] Like in desperation and I didn't want them to
come back outside and keep doing stuff." When asked why
she shot the victim, defendant answered: " Because I was
mad. Like I was telling you I was [upset] (unintelligible) he
was saying sorry. And the more he said sorry the more he got
me mad. 'Cause like it doesn't make sense for you to
hit somebody and say you're sorry and I don't know
what you're doing. I knew he was like threatening me, and
everything. So I was like, 'What the hell are you talking
about.' That's when he was gonna come outside, so
I'm guessing he was gonna do something to me. So I just
shot him. Like I didn't want anything to happen to
Cal.Rptr.3d 727] Towards the end of the interrogation,
defendant volunteered, " It was easily self defense.
That's what I chose to do." This prompted additional
questions and then the following exchange:
Q. So you decided to take it into your own hands?
A. I blacked out, like honestly my temper is ...
Q. Hey wait, and real quick, just so you understand ...
A. Yeah ...
Q. This blacking out thing is a bunch of garbage. You tell me
you black out, but you've already ...