Filed 10/4/13 P. v. Perez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055937

v.                                                                       (Super.Ct.No. FVI802609)

FERNANDO ERNEST PEREZ,                                                   OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed with directions.

         Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Sean M.

Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                               I

                                     INTRODUCTION1

       Defendant Fernando Ernest Perez participated in a home invasion robbery in

which a fellow gang member was shot and killed by one of the house‟s residents. A jury

convicted defendant of attempted home invasion robbery (§§ 664/211; 213, subd.

(a)(1)(A)); home invasion robbery (§§ 211; 213, subd. (a)(1)(A)); burglary (§ 459); two

counts of assault with a firearm (§ 245, subd. (a)(2)); and street terrorism (§ 186.22, subd.

(a).) The jury also found true that a principal used a firearm, that a principal was armed

with a firearm, and that the acts were committed at the direction of or for the benefit of a

criminal street gang. (§§ 186.22, subd. (b)(l); 12022, subd. (a)(1); 12022.53, subds. (b) &

(e)(1).) The jury acquitted defendant of murder (§ 187) and found the personal gun use

untrue. (§ 12022.5, subd. (a).) In a bifurcated proceeding, the court found true the prison

prior. (§ 667.5, subd. (b).)

       The court sentenced defendant to a total term of 50 years to life in state prison. On

appeal, defendant raised two issues: Miranda2 error and sentencing error. The People

concede the abstract of judgment must be corrected to reflect the pronouncement of

judgment. Subject to that modification, we affirm the judgment.




       1   All statutory references are to the Penal Code unless stated otherwise.

       2   Miranda v. Arizona (1966) 384 U.S. 436.

                                              2
                                            II

                               STATEMENT OF FACTS

      The facts in this case are not disputed. The only issues are whether defendant

appropriately received Miranda admonitions.

A. The Home Invasion

      We describe briefly the events which occurred on November 30, 2008. After a

meeting of the East Side Victoria (ESV) criminal street gang, defendant, known as

“Bams,” and two other gang members—Joseph DeLonnie, “Goofy”, and Jorge Espinoza,

“Sleepy”—undertook a mission to recover drugs and money from David Boutieller, a

Victorville drug dealer. The ESV gang charged Boutieller a “tax” of about a hundred

dollars a week in exchange for allowing him to sell methamphetamine. Defendant

obtained a gun for Goofy to use to “scare” Boutieller.

      Boutieller had barricaded the front door of his residence with a large-screen

television and a piece of wood. When the three gang members arrived, defendant kicked

open the blocked entrance. Boutieller realized someone was breaking into the house so

he grabbed his gun and locked his bedroom door. He heard someone scream, “Where‟s

David?”

      Defendant kicked in the bedroom door and circled through the bedroom,

bathroom, laundry room, and kitchen, searching for Boutieller. Boutieller tried to hide in

the bathroom. Boutieller stepped into the bathtub and tried to stow his gun behind a

dresser near the bathroom door. Defendant entered the bathroom and asked for the gun.

Boutieller refused. Defendant grabbed Boutieller by his arm and wrestled with him.

                                            3
Boutieller put the gun under his arm, pulled the trigger, and shot defendant, who fell into

the bathtub.

       Boutieller left the bathroom and went into the living room. Goofy did not appear

to have heard the gunshot and was guarding two other occupants of the house,

Boutieller‟s sister and aunt. Boutieller shot Goofy twice and Goofy dropped a rifle and

ran out of the house. Goofy died in the front yard from gunshot wounds.

       Because Boutieller was worried about liability for shooting defendant and Goofy,

he flushed the empty shell casings down the toilet, and locked the gun in his shed.

Officers found a rifle on the kitchen floor.

B. Gang Evidence

       Deputy Josh Conley testified as a gang expert that he was part of a multi-agency

gang sweep in 2008. According to Conley, the ESV is a predominately Hispanic street

gang that originated in the City of Victorville, and has about 200 documented members

and associates. The gang is known for weapons possession and drug sales, and is an

umbrella affiliate of the larger Mexican Mafia prison gang. Conley confirmed that

Boutieller was paying taxes to the ESV gang.

       Defendant admitted being an ESV member to officers on several occasions in

2007 and 2008. Defendant told Conley he was an ESV member. Defendant had not tried

to disassociate himself from the gang as of November 2008. When he was arrested,

defendant had numerous gang-related tattoos. Defendant also had two tattoos of the

number 13, showing allegiance to the Mexican Mafia.



                                               4
C. Defendant’s Statements

       Defendant was interviewed twice by deputy sheriffs. Defendant told the officers

that he, Goofy, and Sleepy entered Boutieller‟s home to recover the taxes Boutieller

owed ESV. Defendant admitted kicking down Boutieller‟s front door. Defendant also

admitted he had tried to grab Boutieller‟s gun when Boutieller shot him. Other aspects of

defendant‟s statements to the officers will be discussed below.

                                            III

                       DEFENDANT‟S MOTION TO SUPPRESS

            DECEMBER 8, 2008, AND DECEMBER 15, 2008, STATEMENTS

       Defendant claims his statement—which was made on December 8, 2008, while he

was being treated in the hospital for his gunshot wounds—was improperly admitted

because it was obtained by means of a coercive custodial interrogation without the

officers reading him his Miranda rights. Defendant also asserts his statement from

December 15, 2008,—obtained after he was arrested and advised of and waived his

Miranda rights—was improperly admitted because it was obtained as part of an unlawful

two-step interrogation. Defendant‟s first argument fails because defendant was not in

custody on December 8, 2008. Furthermore, by not raising a claim below, he forfeited

his challenge to the December 15, 2008, statement, and also cannot demonstrate that

counsel acted ineffectively by not objecting to admission at trial. Finally, any error was

harmless.




                                             5
A. Proceedings Below

       Before trial, defense counsel moved to suppress defendant‟s December 8, 2008,

statements for violating Miranda. Defense counsel did not object to the December 15,

2008, statement because defendant appeared to be “Mirandized.” At a hearing on the

suppression motion, Sergeant Casey Jiles testified that he interviewed defendant at the

hospital with a sheriff‟s detective. Defendant was in the regular hospital, not the jail

ward. Defendant did not appear to be under the influence of any medication affecting his

participation in the interview. He was coherent and responsive to the questions.

Defendant was not under arrest and he was not handcuffed. The officers were not in

uniform although they had badges. Sergeant Jiles considered him to be a witness rather

than a suspect. The interview lasted about an hour. Defendant did not request a lawyer

or ask to stop speaking to the officers. When defendant mentioned consulting a lawyer,

Sergeant Jiles explained defendant was not under arrest and the officers only wanted to

ascertain what defendant knew about what had occurred. Jiles also told defendant the

district attorney would decide whether charges would be filed, and that it “could happen.”

Defendant did not ask about a lawyer again.

       At the conclusion of Sergeant Jiles‟s testimony, the prosecution argued that

defendant was not in custody on December 8, 2008, when he was recovering from his

wounds, and there was no indication that his statements were not free or voluntary. In

response, defense counsel asserted that in order to determine whether a suspect is in

custody for Miranda purposes, the court must consider whether he has been formally

arrested, the length of his detention, the ratio of officers to suspects, and the nature of the

                                               6
questioning. Defense counsel contended defendant was being questioned as a suspect

although the interview was not in a custodial setting. The court responded, “[i]n this case

we know [defendant] was not free to leave, but his lack of freedom to leave had nothing

to do with police officers. I think that it fails on the issue of custody. [¶] It doesn‟t

sound like he did anything to invoke his rights.” Moreover, the officers‟ concern “about

the veracity of the defendant does not mean that they thought that he was going to be a

defendant. People can be dishonest for a lot of reasons, not the least of which is just

wanting to disassociate themselves with people that are involved that might be

defendants.” The court ruled that “[o]n balance . . . I don‟t think there‟s any reason to

suppress the statements. They sound like they were made freely and voluntarily in a

noncustodial setting.” The court admitted the December 8, 2008, statements.

       The jury listened to the recorded December 8, 2008, interview. At the beginning,

Sergeant Jiles asked defendant if he was able to talk and defendant agreed. After

discussing defendant‟s injuries, Sergeant Jiles explained, “. . . I‟d like to find out what

happened and get your side of it. I mean, you‟re not under arrest.” Defendant then told

the two officers “We were over there at that house. [¶] . . . [¶] [a]nd I um guess he

thought we were trying to rob him.” Defendant admitted he was with Goofy and Sleepy,

and they were “gonna do uh some kinda drug deal or something.” Defendant answered

Jiles‟s questions about what had happened in the house and how defendant was shot.

       When defendant asked if he could get in trouble for telling the officers

“everything” and questioned whether he should “talk to a lawyer first,” Sergeant Jiles

repeated defendant was not under arrest but he could speak to a lawyer if he wished. Jiles

                                               7
explained, “[I]t‟s important that, that you tell me, truthfully, what happened that night,

because a lot of things that appear to be one way may be pointed negative towards you.

Might get cleared up based on what you tell me.” Defendant said he went with Goofy

and Sleepy to Boutieller‟s residence intending to take whatever drugs or money they

could find. Defendant said that the ESV gang had threatened him. Defendant called it

the “[s]tupidest thing I‟ve ever done in my life.” Defendant was inconsistent about many

of the details. The officers encouraged him to be honest. During the interview, a nurse

and a dietitian entered the room. Defendant‟s mother also entered briefly. The officers

ended the interview and did not arrest defendant.

       The officers filed an affidavit in support of a warrant for defendant‟s arrest on

December 9, 2008. When defendant was interviewed on December 15, 2008, he had

been arrested and moved into the hospital‟s jail ward. Sergeant Jiles read defendant his

Miranda rights and defendant waived them. Defendant reiterated his previous statements

adding details about the break-in and his involvement. Defendant told the officers, “I‟ma

gonna tell you everything straight, because I don‟t want this to happen to nobody else.”

He recognized the risk of gang retaliation but explained, “I‟d rather help you guys.” He

expressed remorse: “. . . I‟m ashamed . . . Someone, a kid, lost their life. I got shot and

almost died. Almost lost my life for dope.”

B. Standard of Review

       Based on the Fifth Amendment right against self-incrimination, a suspect may not

be subjected to police interrogation while in custody unless he has previously been

advised of and knowingly and intelligently waived his rights to remain silent, to the

                                              8
presence of an attorney, and to appointed counsel if indigent. Statements made in

violation of Miranda are inadmissible to establish guilt. (People v. Esqueda (1993) 17

Cal.App.4th 1450, 1480-1481.)

       The reviewing court examines the uncontroverted evidence independently to

determine whether the challenged statement was unlawfully obtained. (See People v.

Gamache (2010) 48 Cal.4th 347, 385.) The appellate court accepts the trial court‟s

resolution of disputed facts and inferences, as well as its evaluations of credibility,

provided they are supported by substantial evidence. (Ibid.)

C. Defendant’s December 8, 2008, Statements

       Officers must read a suspect his Miranda rights when he is subject to a custodial

interrogation, which occurs when he is taken into custody or otherwise deprived of his

freedom of action in any significant way. (Miranda v. Arizona, supra, 384 U.S. 436.)

Where there is no formal arrest, the court must determine “how a reasonable man in the

suspect‟s position would have understood his situation.” (Berkemer v. McCarty (1984)

468 U.S. 420, 442.) In making this determination, the court considers the length of the

suspect‟s detention, the location of the detention, the ratio of officers to suspects, and the

nature of the questioning. (See, e.g., People v. Pilster (2006) 138 Cal.App.4th 1395,

1403.) Additionally, the court should consider whether the suspect agreed to the

interview and was aware he could terminate the questioning, whether he was told he was

considered a witness or suspect, whether there were restrictions on his freedom of

movement during the interview, whether officers dominated and controlled the



                                              9
interrogation, whether officers pressured the suspect, and whether the suspect was

arrested at the conclusion of the interview. (Ibid.)

       Defendant contends that he was in custody for purposes of Miranda on December

8, 2008, because he was “constructively deprived” of his freedom when he was confined

to a hospital bed. He also asserts the questioning was aggressive, confrontational, and

accusatory. As the trial court observed, however, the restriction on defendant‟s freedom

of movement was not caused by the officers but because defendant was hospitalized for

his injuries. Except for being questioned by the officers, there was nothing to suggest

defendant was in custody or its functional equivalent. Defendant also spoke freely—even

eagerly—with the officers. Because defendant was not in custody, the officers were not

required to advise him of his Miranda rights.

       Medical care facilities are not inherently custodial settings. In People v. Mosley

(1999) 73 Cal.App.4th 1081, the officer interviewed the defendant in an ambulance after

the defendant had been shot in the arm and was being treated by paramedics. The officer

sought to find out what happened at the scene of the shooting, and he did not know

whether the defendant was a victim. (Id. at p. 1089.) The Mosley court noted that any

restraint on defendant‟s freedom of action was caused by treatment of his gunshot wound

which was still bleeding. (Id. at p. 1091.) The defendant had not been arrested and was

not in handcuffs. The interview was conducted in the presence of medical personnel, and

the questioning was not accusatory or threatening. (Ibid.) The court held that, based on

the totality of circumstances, a reasonable person in the defendant‟s position would not

have considered himself in custody, and no Miranda warnings were required. (Ibid.;

                                             10
United States v. Martin (9th Cir. 1986) 781 F.2d 671; Wilson v. Coon (8th Cir. 1987) 808

F.2d 688.)

       In the present case, hospital staff entered defendant‟s room to check his equipment

and ask about his diet. When defendant‟s mother entered the room, the officers politely

asked to continue speaking with defendant for “a few minutes.” The officers did not

restrict defendant‟s freedom of movement. They did not arrest defendant and they

reminded him they were only speaking to him as a witness. The affidavit in support of a

warrant for defendant‟s arrest was not filed until the following day.

       The record does not support defendant‟s contention that the nature of the

questioning on December 8, 2008, was aggressive and confrontational. The questions

were largely open-ended. Defendant did not try to end the interview or object to the

nature of the questioning. After responding to various questions about the shooting,

defendant asked if he was going to get into trouble. Sergeant Jiles candidly told

defendant the district attorney‟s office would determine whether charges would be filed.

Sergeant Jiles reiterated that defendant was not under arrest and he could speak with an

attorney if he felt he needed to but he was still only a witness. Defendant‟s second

interview a week later confirmed that he spoke with officers of his own accord and not

because he felt threatened or intimidated. Defendant understood the risks he faced but he

said, “I‟d rather help you guys.”

       The record does not support defendant‟s characterization that the officers implied

defendant might avoid arrest if he cooperated. Instead, the officers told defendant that

they hoped to discover what happened the evening of the shooting and they suggested

                                            11
defendant should tell the truth because he might be able to show he did not play an active

role in the crime. The officers did not mislead defendant by promising he could avoid

facing criminal charges. A reasonable person in defendant‟s position would not have

believed he was in custody. The trial court therefore properly admitted appellant‟s

December 8, 2008, statements.

D. Defendant’s December 15, 2008, Statements

       The trial court also properly admitted defendant‟s December 15, 2008, statements.

Defense counsel offered no objection to the second interview, thus forfeiting any

challenge on appeal. (Evid. Code, § 353, subd. (a); People v. Mattson (1990) 50 Cal.3d

826, 854, quoting People v. Milner (1988) 45 Cal.3d 227, 236.) Recognizing the

forfeiture, defendant asserts defense counsel was ineffective in failing to challenge the

December 15, 2008, statements on the basis that his Miranda waiver was invalid under

Missouri v. Seibert (2004) 542 U.S. 600, and his statements were obtained by means of

an impermissible two-step interrogation.

       In order to establish ineffective assistance of counsel, the defendant must

demonstrate that his counsel performed deficiently causing prejudice and depriving him

of a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) In order to

demonstrate sufficient prejudice to overturn a conviction, the defendant “„must show that

there is a reasonable probability that, but for counsel‟s unprofessional errors, the result of

the proceeding would have been different.‟” (People v. Montoya (2007) 149 Cal.App.4th

1139, 1147, quoting Strickland, at p. 694.) Defendant cannot establish either prong.



                                              12
       In Seibert, the investigating officer “testified that he made a „conscious decision‟

to withhold Miranda warnings, thus resorting to an interrogation technique he had been

taught: question first, then give the warnings, and then repeat the question „until I get the

answer she‟s already provided once.‟” (Missouri v. Seibert, supra, 542 U.S. at pp. 605-

606.) Defendant declares that the questioning on December 15, 2008, was “precisely the

type of questioning technique declared unconstitutional by the Court in Siebert.” We

disagree. A court applying Seibert must exclude statements obtained where officers

“deliberately employ a two-step interrogation to obtain a confession and where

separations of time and circumstance and additional curative warnings are absent or fail

to apprise a reasonable person in the suspect‟s shoes of his rights . . . .” (People v. Rios

(2009) 179 Cal.App.4th 491, 505, quoting United States v. Williams (9th Cir. 2006) 435

F.3d 1148, 1157-1158.) Even where a two-step interrogation tactic is implemented, a

substantial break in time and circumstances between the pre-warning statement and the

Mirandized statement may remedy the harm, as the accused may “distinguish the two

contexts and appreciate that the interrogation has taken a new turn.” (People v. Camino

(2010) 188 Cal.App.4th 1359, 1369-1370, citing Missouri v. Seibert, supra, 542 U.S. at

p. 622.)

       As already discussed, defendant‟s December 8, 2008, statements were not

procured in violation of Miranda because defendant was not in custody at the time the

statements were made. Therefore, defendant‟s statements on December 8, 2008, and

December 15, 2008, were both admissible and Seibert does not apply. Furthermore, there

is no indication that the officers conducted the December 15, 2008, interview as part of a

                                             13
deliberate two-step interrogation. Sergeant Jiles testified that he did not advise appellant

of his Miranda rights on December 8, 2008, because “[h]e was not in custody,” and

because he considered defendant a witness not a suspect. Sergeant Jiles read defendant

his Miranda rights on December 15, 2008, because the district attorney‟s office had filed

charges and Jiles considered defendant in custody. Defendant was read his Miranda

rights before the second interview because he was under arrest and in custody.

       The facts of defendant‟s case differ significantly from the police misconduct in

Seibert. The December 8, 2008, interview was conducted without any coercion.

Defendant was not in custody or treated as if he were. Additionally, there was a

substantial break in time and circumstances between the December 8, 2008, and

December 15, 2008, interviews, rather than 20 minutes in Seibert. At the time of the

second interview, defendant had been charged and moved into the jail ward, and he was

“in custody.” Under Miranda, the officers were then required to read defendant his rights

at the second interview.

       We also reject defendant‟s assertion that his December 15, 2008, statements were

improperly “derived” from his un-Mirandized December 8, 2008, statements. In Oregon

v. Elstad (1985) 470 U.S. 298, 309, the United States Supreme Court rejected the idea

that a subsequent confession must necessarily be excluded because it follows an

otherwise voluntary statement given without Miranda warnings: “It is an unwarranted

extension of Miranda to hold that a simple failure to administer the warnings,

unaccompanied by any actual coercion or other circumstances calculated to undermine

the suspect‟s ability to exercise his free will, so taints the investigatory process that a

                                              14
subsequent voluntary and informed waiver is ineffective for some indeterminate period.”

During the December 15, 2008, interview, defendant told officers he wanted to help them

by providing information—hardly a statement he would not have made if he had been

unlawfully compelled to confess only a week earlier.

E. Harmless Error

       Any error admitting defendant‟s statements was harmless beyond a reasonable

doubt. (People v. Thomas (2011) 51 Cal.4th 449, 498.) Even without defendant‟s

admissions, the undisputed evidence of his participation in the crime was extensive.

Boutieller and several other witnesses testified in consistent detail about defendant‟s

actions, including that the ESV gang sought to “tax” Boutieller by robbing him and

burglarizing his house, as also corroborated by the testimony of Deputy Conley, the gang

expert. Defendant‟s motive was thus independently established by the testimony of

Boutieller and Conley.

                                             IV

                 CORRECTION OF THE ABSTRACT OF JUDGMENT

       The People concede the abstract of the judgment should be corrected to reflect the

sentence on count 6 was stayed by the court pursuant to section 654. Defendant was

convicted in count 6 of assaulting Boutieller‟s sister with a firearm. For that count, the

court sentenced defendant to one-third the midterm sentence for a total sentence of one

year. It doubled the sentence pursuant to defendant‟s strike “for a total amount of two

years consecutive to additional time [defendant was] serving.” It then increased the

sentence to five years because of defendant‟s gang enhancement, and stayed the sentence

                                             15
pursuant to section 654. Because the abstract of judgment erroneously provided for a

concurrent sentence, it should be corrected to reflect the fact the sentence was stayed

under section 654.

                                             V

                                      DISPOSITION

       We order the superior court to correct the abstract of judgment to show the

sentence on count 6 was stayed under section 654, not imposed concurrently, and to

provide a copy of the amended abstract to the parties and to the Department of

Corrections and Rehabilitation within 30 days after this opinion becomes final.

       Subject to that modification, we affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                          J.

We concur:


HOLLENHORST
                 Acting P. J.


KING
                           J.




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