Filed 12/4/15 P. v. Lopez and Stopani CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                          B259051

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. VA124204)
         v.

EUDIEL EDDIE LOPEZ and
DANIEL CESAR STOPANI,

         Defendants and Appellants.


         APPEAL from judgments of the Superior Court for Los Angeles County,
John A. Torribio, Judge. Judgment against Lopez affirmed as modified; judgment
against Stopani affirmed as modified and remanded for determination of presentence
custody credit.
         J. Kahn, under appointment by the Court of Appeal, for Defendant and
Appellant Eudiel Eddie Lopez.
         Matthew Alger, under appointment by the Court of Appeal, for Defendant and
Appellant Daniel Cesar Stopani.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson
and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found defendant Eudiel Eddie Lopez guilty of first degree murder
(Pen. Code,1 § 187, subd. (a)), found defendant Daniel Cesar Stopani guilty of
second degree murder (§§ 187, 189), and found gun (§ 12022.53, subds. (b)-(d))
and gang (§ 186.22, subd. (b)(4)) allegations to be true as to both defendants. The
trial court sentenced Lopez to 50 years to life in prison (25 years to life for first
degree murder, plus a consecutive term of 25 years to life for the gun allegation),
and sentenced Stopani to 40 years to life in prison (15 years to life for second
degree murder, plus a consecutive term of 25 years to life for the gun allegation).
The trial court also imposed, and stayed, a 10-year gang enhancement on Lopez
and a 25-year gang enhancement on Stopani.2
       Each defendant appeals from the judgment against him. Lopez contends the
judgment against him must be reversed because it was premised on his confession,
which he argues was obtained in violation of Miranda v. Arizona (1966) 384 U.S.
436 (Miranda). Both defendants also contend that the trial court erred when it
imposed, and stayed, gang enhancements under section 186.22, subdivision (b).3
The Attorney General concedes the latter contention, and argues that, under People
v. Lopez (2005) 34 Cal.4th 1002 and People v. Brookfield (2009) 47 Cal.4th 583,
we must strike the gang enhancement as to both defendants, and modify the
judgment against Lopez to impose a 15-year minimum parole eligibility term under

1
       Further undesignated statutory references are to the Penal Code.
2
      Although the minute order from the sentencing hearing states that the trial court
imposed and stayed a 10-year gang enhancement on Stopani, the reporter’s transcript
shows that the court imposed and stayed a 25-year gang enhancement on him.
3
       Stopani also contends the minute order reflecting the judgment should be
corrected to show the 25-year gang enhancement the trial court actually imposed and
stayed. That contention is moot in light of our conclusion that the trial court erred by
imposing any gang enhancement.


                                             2
section 186.22, subdivision (b)(5). The Attorney General also argues that the trial
court erred in calculating the actual custody credit due to Stopani, and asks us to
remand the matter to the trial court to determine the proper custody credit. We
conclude there was no violation of Miranda, but agree that the trial court erred by
imposing the gang enhancement and miscalculated the custody credit due Stopani.
Accordingly, we strike the gang enhancements imposed as to both defendants and
affirm the judgment as modified, but remand the matter to the trial court to
recalculate the actual custody credit due Stopani.


                                 BACKGROUND
      At around noon on March 16, 2012, Michael Soto was selling marijuana in
the parking lot of a strip mall located at the intersection of Painter Avenue and
Mulberry Drive in Whittier. He was sitting on a low wall facing a liquor store.
      Shortly before noon, a security guard for the high school across the street
from the liquor store saw four men walking quickly up Painter, towards Mulberry.
He identified one of the men as Stopani, who was walking with a tall man; one of
the other men, who was behind Stopani and the tall man, was on a skateboard or
scooter. The guard lost sight of the men after they crossed the street and walked
toward the liquor store, because a bus came up the street and blocked his view.
Shortly thereafter he heard three gunshots.
      Walter Orellana, who was standing a few feet from Soto, saw Stopani cross
the street toward the parking lot and saw Lopez approach from the train tracks
north of the parking lot. Stopani approached Soto from the front, said “Whittier
Trece,” and punched Soto in the face. Almost immediately, Lopez, who had
approached Soto from the back, pulled a silver revolver from his waistband and
shot Soto in the head, then shot him twice more in the back as Soto was falling



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down.4 After shooting Soto, Lopez ran toward the railroad tracks, and Stopani ran
with another man toward a doughnut shop.
       Emerson Vado, who was in the office of his shop across the street from the
shooting, ran outside after hearing the shots. He saw a man put an object in his
waistband and take off on a skateboard toward the train tracks. The man fell off
the skateboard by the tracks and ran away, leaving the skateboard behind.
       Jose Salmeron, who was in his car on Mulberry and heard the shooting, saw
two men running south on Painter. He followed them in his car and called 911.
While he was talking with dispatch, he saw the two men go into a Del Taco.
       Detective Ricardo Lavan of the Los Angeles Sheriff’s Department was on
patrol duty and was responding to the shooting location. As he was driving north,
he saw Jose Salmeron pointing to two men walking southbound, one of whom was
Stopani. The Detective detained both men.
       Deputy David Vivona of the Los Angeles Sheriff’s Department responded to
the railroad tracks north of the scene of the shooting. He was on his motorcycle,
and was looking for a suspect who was last seen heading north. He found a
skateboard by the railroad crossing arm. He also saw some muddy footprints along
the train tracks. He followed them until they disappeared at a fence or walled off
area of a trailer park.
       Deputy Joseph Garrido participated in the search for the suspect in the trailer
park. He went to one of the trailers and spoke to a woman at the door. He saw a
young man standing off to the side, who appeared startled by his presence, and an


4
       At trial, Orellana identified Stopani as the shooter and Lopez as the puncher.
However, he testified that he identified the shooter from a photo array five hours after the
shooting. The photo he chose was of Lopez. In addition, he testified that the person who
punched Soto had a pierced lip; Lopez did not have a pierced lip at the time of the
shooting, but Stopani did.


                                             4
older man; the young man, Rafael Vargas, was the son of the woman and older
man. Deputy Garrido asked the woman if there was anyone else in the house. She
said that her son’s friend might be in her son’s bedroom. Deputy Garrido went
into the bedroom, and found Lopez sitting on the bed.
      Detective Sergeant John O’Brien, a detective assigned to the homicide
bureau of the Los Angeles Sheriff’s Department, later searched the bedroom with
his partner, Detective Mark Lillienfield, and two gang detectives. They found a
pair of muddy sneakers in the closet; the mud appeared to be fresh. They also
found a stainless steel .357 revolver and a glove underneath the dresser. There was
a plastic bag inside the glove that contained live ammunition. Detective Sergeant
O’Brien opened the cylinder of the revolver and found it had four expended cases
and two live rounds.
      Rafael Vargas and Lopez were separately transported to the sheriff’s station.
The deputy who transported Lopez conducted a gunshot residue test on him. By
the time of the test, he had been detained for approximately four and a half hours,
two hours of which he was in the backseat of the deputy’s patrol car.
      At the sheriff’s station, Vargas and Lopez were separately interviewed by
Detective Sergeant O’Brien and Detective Lillienfield. Both interviews were
surreptitiously recorded.
      During the interview of Vargas, Vargas initially said that Lopez came to his
house at around 10:00 a.m. and knocked on his front door. Lopez looked sleepy,
so Vargas invited him to come in and sleep in Vargas’ bedroom while Vargas
played video games in the living room. The detectives pressed Vargas to tell the
truth, and Vargas asked if what he said would be anonymous. After the detectives
told him they would protect him, Vargas said that when Lopez came to his house
his was out of breath, and said, “I think I shot him.” He told Vargas that he saw
the guy fall and shot him two more times. Lopez did not tell Vargas who it was

                                         5
that he shot, but he told Vargas that he shot him because Lopez “banged on him,”
and the guy said “I don’t give a fuck.”
         The detectives interviewed Lopez the day after the shooting. After obtaining
various identification information from Lopez (such as his birthdate, address,
mother’s name, etc.), the following exchange took place between Detective
Sergeant O’Brien and Lopez:
         “O’BRIEN: Okay. Um, well, we wanted to let you, um, calm down a little
bit before we talk to you. Because I know last night was probably, uh, a long night
for you, so we didn’t want anybody to pull you out in the middle of the night when
you were tired.
         “LOPEZ: Yeah.
         “O’BRIEN: So, um, I appreciate you coming in here and talking to us. I
think you know you don’t have to talk to us. But what we’re trying [to] do is find
out the truth of what happened yesterday. OK?
         “LOPEZ: Yeah.
         “O’BRIEN: Um, basically that’s exactly what we’re here to do. We’re here
to find the truth, okay, and everything you tell us we’re gonna write down. We’re
not gonna change it. We’re not gonna manipulate it. What you tell us is the truth;
we’re gonna put on paper. And that’s if this ever goes to court, that’s what will go
to court. And if they need to use that they’ll use it for you or against you. Okay.
         “LOPEZ: Yeah.
         “O’BRIEN: Um, and since you are in here you do have a right to an
attorney, you know that. And if you couldn’t afford one, I don’t know what you[r]
circumstances are with your mom, but if you guy’s [sic] couldn’t afford one we
would provide one for you free of charge, okay. Um, and you understand that;
right?
         “LOPEZ: Yeah.”

                                           6
      Detective Sergeant O’Brien then told Lopez that he and his partner had
talked to a lot of people, and that there was not much doubt about what happened,
but they just wanted to get his side of the story. At first, Lopez told the detectives
that he had slept at Vargas’ house the night before the shooting and did not wake
up until the deputies came into the house. As Detective Sergeant O’Brien went
through the evidence they had found pointing to Lopez as the shooter, Lopez
continued to deny any involvement and asked the detective what he wanted Lopez
to tell him. The detective explained to Lopez that he was facing the death penalty
unless he could explain why things happened the way they did. Lopez, who was
surprised that he could be facing the death penalty, said, “Because he was my
enemy.” Lopez admitted that he was from Whittier Trece, and the victim was from
another gang. He told the detective that Vargas had nothing to do with the
shooting. He explained that he (Lopez) had a confrontation with the victim about a
month earlier, during which Lopez told the victim what gang he belonged to and
asked the victim where he was from, and the victim told Lopez he did not care. As
the detective began asking questions about the shooting, Lopez said that he wanted
to talk to a lawyer and said he did not want to talk to the detectives about it.
Although the detectives continued to question him, Lopez refused to discuss the
shooting with them.
      Lopez and Stopani were charged with one count of murder (§ 187, subd.
(a)), with gun and gang allegations (§§ 12022.53, subds. (b)-(d), 186.22, subd.
(b)(1)(C)). At trial, the prosecution’s evidence included testimony from the
percipient witnesses and the peace officers involved in the search for and detention
of the defendants and the investigation of the shooting, as well as testimony from
the deputy medical examiner who conducted the autopsy on Soto, two chemists
and a criminalist from the Sheriff’s Department crime lab, a sheriff’s deputy at the



                                           7
correctional facility where Stopani was housed, and a gang detective who testified
as a gang expert.
      The coroner testified that Soto’s death was caused by a gunshot wound of
the chest. One of the chemists testified that he analyzed the revolver, expended
cases, and live rounds found in Vargas’ bedroom, as well as the bullets recovered
from Soto’s body, and determined that two of the recovered bullets were fired from
the revolver. The other chemist testified that he processed the gunshot residue kit
from the test conducted on Lopez, and found one particle that, in his opinion, was
gunshot residue, which could have been there because Lopez fired a gun, handled a
gun, been next to someone who fired a gun, or touched a surface that had gunshot
residue on it.
      The criminalist, a DNA analyst, testified that he analyzed samples taken
from the inside of a shoe found in Vargas’ closet, and from the revolver, and
compared those with oral reference samples from Lopez, Stopani, and Soto. He
found a partial DNA profile from the inside of the shoe sample that was a mixture
of at least three individuals, but he could not make any conclusions because there
was such a limited amount of data from the shoe. With regard to the revolver, he
found a DNA profile from both the grip, trigger, and hammer sample, and from the
barrel, cylinder, and remaining surfaces sample. The profile from each sample was
consistent with a mixture of at least three individuals, and there was a distinct
group of alleles that was consistent with one contributor. With regard to both
samples, Lopez was included as a possible contributor, and Stopani and Soto were
excluded.
      The deputy at the correctional facility testified about items found in
Stopani’s property bag, and the gang detective testified that some of the writing on
those items was related to the Whittier Trece gang and the defendants. The gang
detective also testified that both defendants were members of the Whittier Trece

                                           8
gang and, presented with a hypothetical based upon the facts of this case, opined
that the shooting was done for the benefit of the gang.
       In addition to the testimony, the prosecution presented surveillance videos
from a bus that was stopped stop across the street from the shooting and from a
nearby store. Those videos, which were played for the jury, showed Stopani
walking north toward the victim and Lopez approaching the victim from behind on
a skateboard to shoot him, and then after the shooting, Stopani walking away while
taking his shirt off. Finally, the prosecution played for the jury the recordings from
the interviews of Vargas and Lopez, and provided transcripts of those recordings.5


                                     DISCUSSION
A.     Miranda Issue
       Lopez contends the detectives who questioned him failed to warn him of his
right to remain silent, as required by Miranda, supra, 384 U.S. 436, and therefore
the trial court’s denial of his motion to exclude the statements he made to the
detectives was erroneous and mandated reversal of the judgment against him. We
conclude that Miranda was not violated, and even if it had been, any error was
harmless.
       In Miranda, the United States Supreme Court established that before
commencing custodial interrogations, police must advise criminal suspects of their
rights under the Fifth and Fourteenth Amendments, i.e., that “he has the right to
remain silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so desires.”
5
       Lopez moved to exclude all evidence of his post-arrest statements to the detectives
on the ground they were obtained in violation of Miranda, supra, 384 U.S. 436. The trial
court denied the motion, and allowed the recording (up to the time that Lopez requested
an attorney and said he did not want to talk about the shooting) to be played for the jury.

                                             9
(Miranda, supra, 384 U.S. at p. 479.) The Court in Miranda did not require that
the advisement be given in the exact form set out in the decision. (See id. at p. 476
[“The warnings required and the waiver necessary in accordance with our opinion
today are, in the absence of a fully effective equivalent, prerequisites to the
admissibility of any statement made by a defendant,” italics added].) Indeed, in
several subsequent decisions, the Supreme Court made clear that “the ‘rigidity’ of
Miranda [does not] extend[] to the precise formulation of the warnings given a
criminal defendant,” and that “no talismanic incantation [is] required to satisfy its
strictures.” (California v. Prysock (1981) 453 U.S. 355, 359; see also Florida v.
Powell (2010) 559 U.S. 50, 60; Duckworth v. Eagan (1989) 492 U.S. 195, 202-
203; Rhode Island v. Innis (1980) 446 U.S. 291, 297.) In reviewing whether
adequate warnings were given, a reviewing court must determine “‘whether the
warnings reasonably “conve[y] to [a suspect] his rights as required by Miranda.”’”
(Florida v. Powell, supra, 559 U.S. at p. 60; see also People v. Wash (1993) 6
Cal.4th 215, 236-237.)
      In his appellant’s opening brief, Lopez asserts that he “was not advised of
his right to remain silent and refuse to speak with police. After asking general
questions, the interviewing officer, Sergeant O’Brien, told [Lopez], ‘We’re here to
find the truth, okay, and everything you tell us we’re gonna [write] down. . . . And
that’s if this ever goes to court, that’s what will go to court. And if they need to
use that they’[ll] use it for you[] or against you.” Lopez’s brief then goes on to
quote Detective Sergeant O’Brien’s warning regarding Lopez’s right to an
attorney.
      If those were the only warnings given to Lopez, we might agree that he was
not warned of his right to remain silent. But Lopez overlooks the first warning that
Detective Sergeant O’Brien gave. Immediately before the warning that Lopez
quotes in his brief, Detective Sergeant O’Brien told Lopez, “I think you know you

                                           10
don’t have to talk to us. But what we’re trying [to] do is find out the truth of what
happened yesterday. OK?” And Lopez said, “Yeah.” We find this was sufficient
to convey to Lopez that he had a right to remain silent. Our finding is supported
by the record, which establishes that Lopez understood his right to remain silent,
inasmuch as he invoked that right later in the interview and refused to answer any
questions about the circumstances of the shooting. Thus, we conclude there was
no violation of Miranda.
      Even if we had found that Detective Sergeant O’Brien’s warning was
insufficient under Miranda, we would find that any error in admitting Lopez’s
statements to the detectives was harmless beyond a reasonable doubt because the
evidence establishing that Lopez shot Soto was overwhelming. (Arizona v.
Fulminante (1991) 499 U.S. 279, 288, 310; People v. Thomas (2011) 51 Cal.4th
449, 498.) Orellana, who was standing just a few feet from Soto when he was shot
identified Lopez as the shooter a few hours after the shooting took place. Lopez
was seen by at least two witnesses fleeing the scene on his skateboard, heading
toward the train tracks. One of those witnesses saw him fall off his skateboard and
run away, leaving the skateboard behind. A deputy found the abandoned
skateboard and followed Lopez’s muddy footprints to a trailer park, where Lopez
was found in a trailer where his friend, Vargas, lived. Lopez’s muddy sneakers
were found in the closet of the bedroom where he was found, and the gun that was
used to shoot Soto was found in that bedroom. The gun had DNA on it that was
consistent with Lopez’s DNA, and Lopez had gunshot residue on his hands.
Finally, Vargas told the detectives that when Lopez came to his home, he told
Vargas that he had just shot someone because when Lopez “banged on him,” the
victim had disrespected him.
      Given this overwhelming evidence of Lopez’s guilt, we conclude beyond a
reasonable doubt that the result of the trial would not have been different even if

                                          11
Lopez’s statements, which were cumulative of other evidence, had not been
admitted.


B.    Gang Enhancements
      Both defendants contend the trial court erred by imposing and staying an
additional 10 or 25-year prison term for the gang enhancement under section
186.22, subdivision (b). The Attorney General concedes the error. We agree.
      Under People v. Lopez, supra, 34 Cal.4th 1002, a defendant who is
convicted of first degree murder committed for the benefit of a criminal street gang
is not subject to the 10-year prison term enhancement under section 186.22,
subdivision (b)(1)(C), but instead must receive a 15-year minimum parole
eligibility term under section 186.22, subdivision (b)(5). (Id. at pp. 1004-1011.)
Therefore, the judgment against Lopez must be modified to delete the 10-year gang
enhancement imposed under section 186.22, subdivision (b)(1)(C), and to reflect
the imposition of a 15-year minimum parole eligibility enhancement under section
186.22, subdivision (b)(5).
      Under People v. Brookfield, supra, 47 Cal.4th 583, when a defendant is
convicted of a gang-related crime, and a principal in the offense discharges a
firearm but the defendant did not, the trial court may not impose both a gang
enhancement and a firearm enhancement. (Id. at p. 586.) Therefore, the judgment
against Stopani must be modified to delete the gang enhancement imposed under
section 186.22, subdivision (b).


C.    Stopani’s Custody Credit
      As the Attorney General noted in its respondent’s brief, the trial court clearly
erred in awarding Stopani 938 days of actual custody credit, because that number
of days exceeds the number of days between the date of the offense and the date of

                                         12
sentencing. The record is ambiguous regarding when Stopani was incarcerated in
relation to this case, and therefore we must remand the matter with directions to the
trial court to determine the proper number of days of presentence custody credit to
which Stopani is entitled.


                                  DISPOSITION
             The judgment against Lopez is modified to delete the 10-year gang
enhancement imposed under section 186.22, subdivision (b)(1)(C), and to reflect
the imposition of a 15-year minimum parole eligibility enhancement under section
186.22, subdivision (b)(5). The judgment against Stopani is modified to delete the
gang enhancement. As modified, the judgments are affirmed, and the matter is
remanded to the trial court to determine the proper custody credit to be awarded to
Stopani. The trial court is directed to prepare amended abstracts of judgment
reflecting the modifications stated above, and to forward the amended abstracts of
judgment to the Department of Corrections and Rehabilitation.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              WILLHITE, J.




             We concur:




             EPSTEIN, P. J.                   MANELLA, J.



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