Filed 6/27/13 P. v. Mauricio CA2/8

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                     DIVISION EIGHT

THE PEOPLE,                                         B224505

        Plaintiff and Respondent,                   (Los Angeles County
                                                    Super. Ct. No. TA088962)
        v.
                                                   ORDER MODIFYING OPINION
MICHAEL ANGELO MAURICIO,                           AND DENYING PETITION FOR
                                                   REHEARING
        Defendant and Appellant.
                                                       [No change in the judgment]

        IT IS ORDERED that the opinion filed in the above-captioned matter on May 30,
2013, be modified as follows:
        1. On page 17, the first full paragraph, the last sentence commencing with
“The interpretation of section 190.5 . . .” is deleted, and replaced with:
        “The interpretation of section 190.5 in light of Miller remains unsettled for now
and we decline to resolve the issue here.”
        2. On pages 17-18, the last paragraph commencing with “We need not decide the
issue. . .” is deleted and replaced with:
        “Miller changed the focus of the sentencing decision; it “requires” trial courts “to
take into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” (Miller, supra, 132 S.Ct 2455, 2469,
fn. omitted.) The trial court here certainly was aware that it had discretion to impose a
term of 25 years to life, rather than LWOP. But that discretion was exercised through the
LWOP presumptive sentence filter of People v. Ybarra , supra, 166 Cal.App.4th 1069,
1089 and People v. Guinn, supra, 28 Cal.App.4th 1130, 1141-1142. We are in no
position to say how Miller might have affected the trial court’s decision; we remand only
to give the trial court the opportunity in the first instance to sentence Mauricio in light of
the factors enunciated in Miller. We believe this is a reasonable path to follow.
We express no opinion on whether Miller compels a particular sentence in this case.10”


       This modification effects no change in the judgment.


       The petition for rehearing filed by Respondent on June 13, 2013, is denied.




_______________________________________________________________________
      BIGELOW, P. J.             RUBIN, J.             FLIER, J.




10
        Because we remand for resentencing we do not address Mauricio’s arguments that
his total sentence constitutes cruel and unusual punishment.


                                               2
Filed 5/30/13 (unmodified version)
Opinion following remand from U.S. Supreme Court
                  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
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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B224505

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA088962)
         v.

MICHAEL ANGELO MAURICIO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Eleanor J. Hunter, Judge. Affirmed and remanded for resentencing.


         Joanna McKim, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II
and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.



                                        _________________________
         A jury convicted Michael Angelo Mauricio of three counts of first degree murder
(Pen. Code, § 187, subd. (a))1 arising from two separate drive-by, gang related shootings.
The jury’s guilty verdicts included special circumstance findings as to each count that the
murder was perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2,
subd. (a)(21)), that Mauricio intentionally killed the victim while an active participant in
a street gang (§ 190.2, subd. (a)(22)), and that he had committed multiple murders
(§ 190.2, subd. (a)(3)). The jury further found as to each murder count that a principal
had personally used a firearm (§ 12022.53, subds. (b) & (e)), personally discharged a
firearm (§ 12022.53, subds. (c) & (e)) had done so causing great bodily injury and death
(§ 12022.53, subds. (d) & (e)), and that the murder was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced Mauricio to
three consecutive terms of life without the possibility of parole (LWOP), plus
three consecutive indeterminate of term of 25 years to life, one as to each murder count,
for the attached findings that a principal had personally discharged a firearm causing
death.
         On appeal, Mauricio contended the trial court erred in declining to exercise its
discretion to sentence him to terms of 25 years to life, rather than LWOP. In an opinion
we issued on November 28, 2011, we modified various fines and fees, rejected
Mauricio’s contention, and affirmed his multiple LWOP sentence. (People v. Mauricio
(Nov. 28, 2011, B224505) [nonpub. opn.].) The California Supreme Court
denied Mauricio’s petition for review. (People v. Mauricio (Feb. 29, 2012, S199094)
[nonpub. order].) Mauricio filed a petition for writ of certiorari in the United States
Supreme Court. (Mauricio v. California (No. 11-10139.) On June 25, 2012, the United
States Supreme Court issued its decision in Miller v. Alabama (2012) 567 U.S. ___ ; 132
S.Ct. 2455 (Miller) concerning the propriety of imposing LWOP sentences upon
defendants who commit LWOP imprisoning offenses when a minor. On October 29,
2012, the United States Supreme Court granted Mauricio’s petition for writ of certiorari,

1        All further references are to the Penal Code unless otherwise indicated.

                                               2
vacated our November 2011 judgment, and remanded the cause to our court with
directions to further consider Mauricio’s sentencing arguments in light of Miller.
We now undertake the task assigned to us by the United States Supreme Court.
                                         FACTS
1.     The Murder Near Lueders Park
       On November 6, 2006, murder victim Jeffrey Shade and others were sitting around
in Lueders Park in Compton. Shade was in his mid-40’s and had been affiliated with the
Lueders Park Pirus, a “Bloods” street gang, throughout his adult life. He was wearing a
red bandana on his head. At some point, Shade left on a bicycle to go to a liquor store
near Rosecrans Avenue and Bradfield Avenue, about a block away. As Shade was riding
on Rosecrans back to the park, a black Impala drove by slowly, and the front passenger in
the car fired four to six shots at Shade. Shade died from a gunshot wound that entered his
left side and lodged in his heart.
2.     The Bus Bench Shooting
       On November 19, 2006, a gray, four-door vehicle drove by a bus stop bench near
Rosecrans Avenue and Bradfield Avenue, and multiple gunshots were fired in the
direction of Shudray Jenkins and Deaundre Hunt. Both were killed. Deputies from the
Los Angeles County Sheriff’s Department (LASD) responded to the crime scene where
they recovered shotgun wadding from the bus stop bench and an adjacent planter.
An eyewitness reported to deputies that the shooters were in a Taurus. At trial, the
eyewitness testified the shooters had been in an “Oldsmobile Cutlass, something along
the lines of that.” Jenkins suffered three gunshot wounds and died from a fatal gunshot
wound to her neck. A bullet was recovered from that wound. Hunt suffered
seven gunshot wounds, most of which were fatal. Five bullets, along with shotgun pellets
were recovered from his body.




                                             3
3.     Mauricio’s Arrest and Interviews
       On December 4, 2006, LASD Deputy Albert Carrillo and his partner were driving
on patrol in the area near Holly Avenue and Locust Circle in Compton when Deputy
Carrillo’s attention was caught by a black, four-door Chevy Impala with tinted windows
stopped at the curb with only its parking lights on. As the deputies approached the
Impala, Deputy Carrillo saw the vehicle was occupied “with quite a few people,” and he
saw that the front passenger, later identified as Daniel Riley, was holding a rifle.
       Deputy Carrillo stopped near the Impala, exited his patrol car, drew his weapon,
and ordered the occupants of the vehicle to show their hands. The driver, later identified
as Mauricio, tried to start the car, but it shut down. Besides Mauricio and Riley in front,
there were three passengers, Gerald Edwards, James Hicks, and Deonna Lewis, sitting in
the back seat of the car. The deputies secured the rifle, a .223-caliber Ruger model Mini-
14, and found that it was loaded. The letters “WLC” –– for the Ward Lane Crips gang ––
was scratched into the stock. Mauricio was arrested.
       On December 5, 2006, LASD Detective Peter Hecht interviewed Mauricio about
what he and his companions had been doing with a rifle in the car at Holly Avenue and
Locust Circle. Mauricio waived his Miranda2 rights and agreed to talk to the detective.
Mauricio stated that he and the others, and Victor Preciado, were members of the Ward
Lane Crips. He said that they had met earlier in the day and talked about a shooting that
occurred a few days earlier in which Riley’s girlfriend and M.B. were shot.3 Mauricio
and the others thought that someone from the Holly Hood Pirus gang did the earlier
shooting, and so they formed a plan to retaliate by shooting any Holly Hood Pirus gang
member they could find. Preciado stayed behind while the others had gone to the area
near Holly and Locust to look for a Holly Hood Pirus gang member to shoot.4



2      Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
3     On December 1, 2006, deputies responded to Ward Lane where they found three
gunshot victims, one of whom was M.B.


                                              4
       Several days after interviewing Mauricio, Detective Hecht and other deputies
executed a search warrant at Victor Preciado’s residence. During the search, the deputies
recovered .223-caliber bullets from Preciado’s bedroom closet. When deputies searched
a black Impala at the location, they recovered four spent .223-caliber bullet casings,
one spent .380-caliber bullet casing, and two live .25-caliber bullets. The black Impala
was registered to Preciado’s mother.
       Meanwhile, LASD Detectives Brian Schoonmaker and Kevin Lowe were
investigating the November 19, 2006 double murders at the bus bench. On February 5,
2007, as part of their investigation, Detectives Schoonmaker and Lowe interviewed
Mauricio at the Challenger Juvenile Camp.5 A CD recording of the interview was played
for the jury at trial. A transcript of the interview was marked as evidence and provided to
the jurors to assist them in following the CD. The transcripts were collected after the CD
was played, and the trial court told the jurors that “what really [was] in evidence [was]
the CD itself.” A detailed account of the circumstances surrounding, and the content of,
Mauricio’s interview on February 5, 2007, is set forth below in addressing his claim on
appeal that the trial court erred in denying his objection to the interview. Reviewed under
the substantial evidence test, Mauricio’s final interview established that he was present at
the bus bench shooting and the Lueders Park shooting, and that he had encouraged and
helped in both shootings.


4      Later in December 2006, Mauricio was charged with “conspiracy.” At some point
before February 5, 2007, Mauricio “took a deal” for “nine months.”

5       Between Mauricio’s initial interview on December 5, 2006, shortly after his arrest,
and his last interview on February 5, 2007, different deputies also interviewed Mauricio
on December 21, 2006, and January 10, 2007, both times at Los Padrinos Juvenile Hall.
Evidence of these two book-ended interviews was not presented at trial, and, thus, are not
summarized here. The content of Mauricio’s interviews on December 21, 2006, and on
January 10, 2007, was developed and considered at a hearing on his objection to any use
of statements from his final interview on February 5, 2007. We address the content of the
in-between interviews below in addressing Mauricio’s claim on appeal that his statements
in his final interview on February 5, 2007, should have been excluded.


                                             5
4.     The Criminal Case
       In September 2007, the People filed an information charging Mauricio and Victor
Preciado with the murder of Shudray Jenkins (count 2; § 187, subd. (a)), the murder of
Deaundre Hunt (count 3; § 187, subd. (a)), and the murder of Jeffrey Shade (count 4;
§ 187, subd. (a)).6 Each of the three murder counts included special circumstance
allegations that the murder was perpetrated by means of discharging a firearm from a
motor vehicle (§ 190.2, subd. (a)(21)), that Mauricio intentionally killed the victim while
an active participant in a street gang (§ 190.2, subd. (a)(22)), and that he committed
multiple murders (§ 190.2, subd. (a)(3)). Each of the three murder counts also included
allegations that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)), that a
principal personally discharged a firearm (§ 12022.53, subds. (c) & (e)), that the
discharge caused great bodily injury and death (§ 12022.53, subds. (d) & (e)), and that
the offense was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)).
       In January 2010, the charges against Mauricio were tried to a jury.7 The testimony
of a number of eyewitnesses to the two separate shootings provided general descriptions
of the incidents, i.e., a vehicle drove by and shots were fired at victims. None of the
eyewitnesses directly identified Mauricio. Ballistics evidence established that the four
spent bullet casings found in the Impala during the search at Preciado’s residence, and
three bullet fragments recovered from the bus bench shooting victim Hunt were fired by
the Mini-14 rifle found in the car being driven by Mauricio at the time of his arrest on
December 4, 2006. Bullet fragments recovered from the other bus bench shooting victim,
Jenkins, and from the body of the Lueders Park shooting victim, Shade, had similar
rifling as bullets fired from the Mini-14 rifle.




6     The information originally included a count 1 alleging another murder. That count
was dismissed as to Mauricio prior to trial and is not an issue on this appeal.

7      Preciado was tried later in 2010, and convicted on all four murder counts. He has
a separate appeal pending in our court. (Case No. B226362.)

                                               6
       Mauricio’s interview of February 5, 2007, was played for the jury. Deputy Gail
Durham testified as a gang expert. Mauricio did not present any defense evidence. His
trial counsel argued to the jury that the case against Mauricio was “based entirely” on that
interview, and that the statements that he made during that interview implicating himself
in the two shootings resulted from suggestions by the interrogating officers.
       The jury returned verdicts finding Mauricio guilty on all three murder counts as
charged, with the special circumstance and firearm findings noted at the outset of his
opinion. The trial court sentenced Mauricio as noted at the outset of his opinion. Various
fines and fees were also imposed.
       Mauricio filed a timely notice of appeal.
                                       DISCUSSION
I.     The Interview Issue
       Mauricio contends his murder convictions must be reversed because the trial court
erred in denying his objection to the prosecution’s use of his February 5, 2007 interview.
We disagree.
       A. The Governing Law
       Police may not interrogate a suspect who is in custody until the suspect is advised
of his or her right to remain silent and right to an attorney, and the suspect knowingly and
voluntarily waives those rights. (See Miranda, supra, 384 US. at p. 444; see, e.g., People
v. Bradford (1997) 14 Cal.4th 1005, 1033.) A suspect who waives his or her Miranda
rights retains the right to control the subjects to be discussed, and the length of the
interrogation, by “cut[ting] off questioning” at any point. (See Michigan v. Mosley
(1975) 423 U.S. 96, 103-104; see also Berghuis v. Thompkins (2010) 560 U.S. 370.)
       In addressing whether the trial court erred in denying an objection to the use of a
defendant’s statements as being obtained in violation of Miranda, a reviewing court must
accept the trial court’s resolution of disputed facts, and the reasonable inferences drawn
from the facts, where supported by substantial evidence; a reviewing court independently
determines from the historically fixed facts whether a challenged statement was obtained
in violation of Miranda. (People v. Bradford, supra, 14 Cal.4th at p. 1033.)

                                              7
       B. The Hearing on the Use of the Interviews
       Prior to trial, the prosecution signaled that it intended to introduce evidence of
Mauricio’s 2006 interviews of December 5 and 21 as well as his 2007 interviews on
January 10 and February 5. Mauricio’s counsel argued: (1) at the time of the interviews
on December 21, 2006, and January 10, 2007, Mauricio had been represented by counsel
in his conspiracy case involving the Mini-14 rifle in the car he had been driving (the
“conspiracy” case) and could not be interviewed in connection with that case without
approval from his counsel; (2) the parallel murder investigation had a factual and
contemporaneous relationship to the conspiracy case in that the rifle found in the car at
the time of Mauricio’s arrest was the rifle used in the two driveby shootings; (3) due to
the nexus between the conspiracy and murder matters, police should not have talked to
Mauricio on any subject without first obtaining approval from his counsel in the
conspiracy case; (4) the police in any event did not Mirandize Mauricio before they
interviewed him on December 21, 2006, or on January 10, 2007; and (5) the problems
with the interviews on December 21, 2006, and January 10, 2007, caused a “fruit of the
poisonous tree” taint for the final interview on February 5, 2007, defeating any
conclusion that Mauricio gave a knowing and voluntary waiver of his Miranda rights for
that final interview. The trial court found that Mauricio expressly waived his Miranda
rights at the time of his final interview on February 5, 2007, which took place after his
conspiracy case was ended, and that evidence of the final interview could be used at trial
by the prosecution.
       On appeal, Mauricio’s claim is a bit different. He contends that he did not at the
time of his final interview on February 5, 2007, waive his Miranda rights to talk insofar
as his involvement in the murders was concerned, and that he only agreed to discuss other
subjects. We now turn to that issue.




                                              8
       C. Forfeiture
       Before taking up Mauricio’s “selective Miranda waiver” claim of error, we must
address the People’s argument that Mauricio forfeited the issue he raises on appeal in that
he did not assert such a ground for objection in the trial court. We agree with the People
that Mauricio’s claim is forfeited on his appeal. (People v. Randle (2008) 43 Cal.4th 76,
116, 121, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.)
       To avoid this result, Mauricio argues his trial counsel was ineffective in failing to
argue that Mauricio only waived his Miranda right to remain on selective issues. In order
to resolve his claim of ineffective assistance of counsel, we will address Mauricio’s
Miranda claim within the rubric governing claims for ineffective assistance of counsel.
(See Strickland v. Washington (1984) 466 U.S. 668; see, e.g., People v. Williams (1997)
16 Cal.4th 153, 215.) Under this rubric, we consider whether trial counsel performed
deficiently in failing to assert the ground for objection argued on appeal, and whether it is
reasonably probable that making such an objection would have resulted in different
outcome at Mauricio’s trial. We find no ineffective assistance of counsel because, if a
“selective Miranda waiver” ground had been asserted below, the trial court would have
properly denied the objection.
       D. The Interviews
              i. Mauricio’s Initial Interview on December 5, 2006
       As noted above, deputies arrested Mauricio on December 4, 2006, when they
found him and fellow gang members, one of whom was holding a rifle, in a car near
Holly and Locust. On December 5, 2006, Mauricio gave a statement implicating himself
and the others in the car, along with Victor Preciado, in a conspiracy to shoot any Holly
Hood Pirus gang member that he and his cohorts in the car had been able to find. There
was no objection to this interview at trial, and no claim or showing on appeal that this
interview was improperly admitted.




                                              9
              ii. Mauricio’s Second Interview on December 21, 2006
       As noted, Detectives Schoonmaker and Lowe were investigating the double
murder at the bus bench while Mauricio’s conspiracy case was pending. On
December 21, 2006, Detective Schoonmaker interviewed Mauricio at Los Padrinos
Juvenile Hall as a person who possibly had information about the murders. At the start of
the interview, the detective explained to Mauricio that he was “working on a couple of
cases in Compton,” and that he was “wondering if [Mauricio] knew anything about one
of ‘em. [T]he two Bloods that were killed at the bus bench on Rosecrans?”
       Mauricio said that he had overheard someone talking about the shooting.
Detective Schoonmaker asked Mauricio if he was in the car when Preciado did the
shooting. Mauricio denied any involvement. The detective then asked Mauricio if he
ever heard “Tony Boy,” i.e., Victor Preciado, bragging about the shooting. Mauricio told
Detective Schoonmaker that Tony Boy had claimed credit for shooting “two Die-rus,” “a
girl and a boy,” at a bus bench. Mauricio said Preciado used a “big gun” (a rifle) that was
“[l]ike the one we . . . got caught with.” In response to this comment, Detective
Schoonmaker said, “I don’t know about that and I’m not even here for that so, I’m not
going to use anything against you.” Detective Schoonmaker questioned Mauricio about
what kind of weapon Preciado had used – whether a shotgun or an assault-type rifle had
been employed. When the detective asked whether Preciado had mentioned anyone
else’s name as being involved, because there had to be “somebody driving and somebody
shootin’,” Mauricio said he did not recall. Detective Schoonmaker then asked Mauricio
if he had been driving, and Mauricio again denied any involvement. At the end of the
interview, Detective Schoonmaker told Mauricio that he was good friends with Detective
Hecht who was working on Mauricio’s conspiracy case arising from the stop in the car
with the rifle. Detective Schoonmaker said that if what Mauricio had stated turned out to
be true and if Mauricio had any other information that would help solve a double murder,
then he would put in a “good word” on Mauricio’s behalf with Detective Hecht.




                                            10
              iii. Mauricio’s Third Interview on January 10, 2007
       On January 10, 2007, LASD Detectives Michael Caouette, Karen Shonka, and
Peter Hecht interviewed Mauricio at Los Padrinos Juvenile hall. The transcript which
was reviewed by the trial court, and which is before us on appeal, suggests that the
transcription began after the interview was already underway.8 It does not show any
Miranda warnings given to Mauricio.
       During the interview, Mauricio admitted he was the driver of the car used in the
shooting at Lueders Park. Mauricio stated that Preciado was the shooter, and Daniel
Riley (“Tilt”) was in the front passenger seat. Mauricio continued to deny any
involvement in the bus bench shootings. Mauricio said that on the day he was arrested
while going out to shoot a Holly Hood Pirus gang member, it was Preciado’s idea to do a
shooting.
              iv. Mauricio’s Final Interview on February 5, 2007
       On February 5, 2007, after Mauricio’s conspiracy case had been resolved, he was
interviewed by Detectives Brian Schoonmaker and Kevin Lowe. At the beginning of the
interview, Detective Schoonmaker advised Mauricio of his Miranda rights, and asked
Mauricio whether he knew those rights. Mauricio answered, “Yes, sir.” Detective
Schoonmaker then explained: “Basically, I wanted to ask you a couple of questions
about what we already talked about. [Do you] want to answer my questions about
that?”9 (Italics added.) Mauricio answered: “Yes.” The detective explained that when
“[d]oing an investigation, especially a double murder,” it was common to talk to “a whole
bunch of people,” and then “circle around” and ask the same people more questions to get
more information. Detective Lowe then added that Victor Preciado was “locked up,” and
had given “some information which [did not] match the information [Mauricio] gave . . . .

8     The transcript jumps right in with questions that appear to be follow-up to earlier,
nontranscribed questions.

9      When Detective Schoonmaker interviewed Mauricio on December 21, 2006, the
detective had specifically explained to Mauricio that he (the detective) wanted to know
whether Mauricio knew anything about the double murder at the bus bench in Compton.

                                            11
So somebody’s bullshittin.’ ” Detective Schoonmaker continued: “Well, the problem
what it is for you, is that Victor changed the story around a little bit and put you in the
car. [¶] . . . [¶] . . . That’s what we gotta get straightened out.” Detective Lowe directly
asked Mauricio: “You understand what case we’re here on, right? ‘Cause there’s
different shootings, we’re here on the double. At the bus bench.” And Mauricio
answered: “I know.”
       Detective Schoonmaker then explained that Preciado was “putting himself in the
car,” and that he was also was putting Mauricio in the car. The detective asked Mauricio,
“[W]hy is Victor putting you in the car . . . ?” and asked Mauricio, “[W]hat’s the real
story?”
       At that point, Mauricio said that he was not in the car with the shooters, but that he
was in another car following the shooters’ car. Mauricio explained that he was driving
Preciado’s Impala, and Riley was in the front passenger seat with Mauricio. There were
no guns in the Impala. Gerald Edwards (“Man”) was driving a gray Taurus that Mauricio
believed had been stolen to be used in a shooting. Preciado was in the front passenger
seat of the Taurus with a shotgun, and “Chris” was in the back seat of the Taurus with a
rifle. Mauricio followed the Taurus. All of the sudden, the Taurus made a U-turn and
approached the bus bench. Mauricio saw two people on the bus bench and knew they
would be targets. Preciado and Chris fired. Mauricio sped away, followed by the
Taurus. After both cars got back to Preciado’s house, Preciado, Chris, and Edwards
talked about how they thought they shot gang members from Lueders Park and Holly
Hood. Preciado said he had wanted to retaliate against the Pirus for “hitting” up Preciado
at his house. Before the shooting, Mauricio, Preciado, Riley, and Edwards had gone out
in Preciado’s Impala to steal the Taurus.
       During the course of the interview, Mauricio also admitted his involvement in the
Lueders Park driveby. Mauricio said that, for that shooting, he drove Preciado’s Impala,
and Preciado was in the front passenger seat. Riley was in the rear seat. Preciado had the
rifle and was the shooter. Mauricio pulled up next to the victim, who was riding a



                                              12
bicycle, and slowed down so Preciado could get a shot. Mauricio heard three to four
shots. Mauricio claimed that he had been a Ward Lane Crip for three years.
       E. Analysis
       Mauricio contends the record demonstrates that at the time of his final interview
on February 5, 2007, he “invoked his right to remain silent on all topics except what he
previously discussed with [Detective] Schoonmaker in his first interview” on
December 21, 2006. Namely, “Preciado’s involvement in and motive for the bus bench
shooting.” Mauricio argues that, because he “had not agreed to talk about anything new”
at the time of the interview on February 5, 2007, Detectives Schoonmaker and Lowe
“should have ceased questioning” on the subject of Mauricio’s suspected involvement in
the murders, “or obtained a valid waiver” which covered any questions concerning
Mauricio’s involvement in the murders. Mauricio argues the trial court erred in making a
finding that Mauricio gave a valid waiver of his Miranda rights related to investigatory
questions regarding his involvement in the murders. We disagree.
       During the second interview on December 21, 2006, Detective Schoonmaker
talked to Mauricio about the bus bench murders and particularly about Preciado’s
involvement in the shooting. The detective asked whether Mauricio had been involved,
and he denied any involvement. Detective Schoonmaker told Mauricio that, if his
information turned out to be true, then the detective would put a good word with the
detectives working on Mauricio’s conspiracy case. During the interview on February 5,
2007, Detectives Lowe and Schoonmaker told Mauricio they were there to talk to him
“about what we already talked about.” (Italics added.) In other words, they wanted to
talk about the bus bench murders. Moreover, the detectives told Mauricio that the
information which he had given did not mesh with a statement given by Preciado. The
detectives said Preciado had put Mauricio in the car, and that they wanted to “straighten[]
out” who was “bullshitting.” Detective Lowe directly and specifically told Mauricio that
the detectives were there to ask questions about the double murders at the bus bench.
Mauricio expressly stated that he understood. We simply disagree with Mauricio that
there is a factual basis for finding that he only waived his Miranda right as to subjects

                                             13
apart from his involvement in the bus bench murders, and that he had only agreed to talk
about Preciado’s involvement in the murders. In our view, there is only one reasonable
conclusion to be drawn from the record, and that is that Mauricio agreed to talk the
detectives about his involvement or his noninvolvement in the murders so that matters
could be straightened out. That Mauricio implicated himself does not tend to suggest that
he had not expressly agreed to talk about role in the murders.
       We disagree with Mauricio that his case is like United States v. Soliz (9th Cir.
1997) 129 F.3d 499 (Soliz), and/or United States v. Lopez-Diaz (9th Cir. 1980) 630 F.2d
661 (Lopez-Diaz). In Soliz, the defendant expressly agreed to make a statement
“regarding [his] citizenship,” and, when officers indicated they were going to ask
questions about his “activities,” he stated he “thought this was just about my citizenship.”
(Soliz, supra, at p. 501.) The Ninth Circuit found the defendant gave a valid Miranda
waiver only as to the issue of citizenship. (Soliz, supra, at pp. 501, 503.) In Lopez-Diaz,
the defendant made an express statement that he did not want to talk about drugs in a van
in which he had been arrested, but officers asked about drugs anyway. (Lopez-Diaz, at p.
663.) The Ninth Circuit found the defendant had not given a valid Miranda waiver on
the subject of drugs. In Mauricio’s current case, he did not make any express statement
that he only wanted to talk about Preciado’s involvement in the murders, nor did he make
any express statement that he did not want to discuss his own involvement.
       Mauricio’s argument that he made comments at the start of the February 5, 2007
interview that he did not want to talk about “new information,” but only information on
matters “previously discussed,” is not persuasive for two reasons. First, there is no plain
and unambiguous statement by Mauricio indicating that he wanted to limit the interview
in any particular manner. (Berghuis v. Thompkins, supra, 130 S.Ct. at p. 2260.) Second,
Mauricio had discussed the subject of his role in the murders during the first interview,
albeit only to a limited extent. And Detective Schoonmaker, during the earlier interview,
had indicated that Mauricio’s information would be checked. He said that if it was
accurate, then the detective would put in a good word for Mauricio on his conspiracy
case. When Detectives Schoonmaker and Lowe returned later for the February 5, 2007

                                            14
interview, we simply do not see that Mauricio attempted to frame only a selective scope
of inquiry by the detectives, nor do we see that his answers suggested he wanted to limit
the scope of the interview only to selected subjects.
         We reject Mauricio’s argument the record establishes that the detectives employed
a deliberate “two-step” interrogation process that violated Miranda. (Missouri v. Seibert
(2004) 542 U.S. 600, 622.) At the first interview by Detective Hecht on December 5,
2006, Mauricio was given and waived his Miranda rights and spoke about the conspiracy
crime. At the second interview on December 21, 2006, Detective Schoonmaker talked to
Mauricio as a potential witness in the bus bench shooting. The third interview on
January 10, 2007, by different detectives, was problematic and cannot be reconciled with
Miranda, but it was not used at trial in any event. That brings us to the final interview on
February 5, 2007, by Detectives Schoonmaker and Lowe. This interview took place after
Mauricio’s conspiracy case was concluded; it was separate in time; the detectives gave
proper Miranda advisements, and Mauricio waived his rights. The detectives specifically
explained that they were there to talk to Mauricio about the bus bench shooting. The
record shows an independent interview, with the proper Miranda procedures, not a
second part of a two-step interrogation which followed a problematic first step.
II.      The LWOP Issue
         Mauricio contends the trial court erred in declining to exercise its discretion to
sentence him to terms of 25 years to life, rather than LWOP. As noted above, we address
this issue in light of the Supreme Court’s directive that we re-examine Mauricio’s LWOP
sentences in light of Miller, supra, 132 S.Ct. 2455. We now turn to that issue.
Miller
         In Miller, the United States Supreme Court addressed the issue of whether state
sentencing schemes that imposed a mandatory LWOP sentence on any defendant
convicted of capital murder, without regard for whether the defendant committed the
murder when he or she was a juvenile, violated the Eighth Amendment’s prohibition on
cruel and unusual punishments. The Supreme Court ruled that the Eighth Amendment
prohibits a sentencing scheme that mandates imposition of a LWOP sentence on an

                                               15
offender who committed a murder as a juvenile. (Miller, supra, 132 S.Ct at p. 2469.)
Miller holds that, in a capital murder case involving a juvenile offender, a sentencing
court must “take into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.” (Ibid., fn. omitted.)
       In reaching the conclusion that imposition of a mandatory LWOP sentence upon a
juvenile who commits a capital murder constitutes cruel and unusual punishment, Miller
reasons: “Mandatory life without parole for a juvenile precludes consideration of his
chronological age and its hallmark features – among them, immaturity, impetuosity, and
failure to appreciate risks and consequences. It prevents taking into account the family
and home environment that surrounds him – and from which he cannot usually extricate
himself – no matter how brutal or dysfunctional. It neglects the circumstances of the
homicide offense, including the extent of his participation in the conduct and the way
familial and peer pressures may have affected him. Indeed, it ignores that he might have
been charged and convicted of a lesser offense if not for incompetencies associated with
youth — for example, his inability to deal with police officers or prosecutors (including
on a plea agreement) or his incapacity to assist his own attorneys.” (Miller, supra, 132
S.Ct. at p. 2468.)
       Miller expressly states that it did “not foreclose” the issue of the constitutionality
of an LWOP sentence upon “‘the rare juvenile offender whose crime reflects irreparable
corruption.’” (See Miller, supra, 132 S.Ct. at p. 2469, quoting Roper v. Simmons (2005)
543 U.S. 551, 573.) In a concurring opinion, Justice Breyer, joined by Justice
Sotomayor, “added” his view that the Eighth Amendment bars an LWOP sentence when
a juvenile is convicted of felony-murder, and the evidence establishes that he or she “did
not kill or intend to kill.” (Miller, supra, 132 S. Ct. at pp. 2475-2477.)
Analysis
       California sentencing law is unlike the sentencing laws reviewed in Miller.
Under section 190.5, subdivision (b), the penalty for a defendant convicted of first degree
murder with one or more special circumstances found true, who was 16 years of age or
older and under the age of 18 years at the time of the commission of the murder, “shall be

                                              16
confinement in the state prison for [LWOP] or, at the discretion of the court, 25 years to
life.” (Italics added.) Under section 190.5, LWOP is the statutorily-identified
presumptive punishment for a 16- or 17-year-old special circumstance murderer, but a
sentencing court may, in its discretion, for good reason found, impose a less severe
sentence of 25 years to life. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089;
People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142.)
       The question for us to decide then is to what extent, if any, does Miller undercut
the vitality of the California rule that LWOP is the presumptive sentence for 16- and 17-
year olds who commit special circumstances murder under section 190.5? We
acknowledge that the courts of appeal have been split on this question and the issue is
currently before the California Supreme Court in three cases. (People v. Siackasorn
(2012) 211 Cal.App.4th 909; People v. Moffett (2012) 209 Cal.App.4th 1465; and People
v. Gutierrez (2012) 209 Cal.App.4th 646.) The interpretation of section 190.5 in light of
Miller remains unsettled for now.
       We need not decide the issue, however, because the Attorney General
acknowledged at oral argument that remand for a new sentencing hearing in light of the
United States Supreme Court’s opinion was a good idea in this case. We will follow her
lead. Miller changed the focus of the sentencing decision; it “requires” trial courts “to
take into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” (Miller, supra, 132 S.Ct 2455, 2469,
fn. omitted.) The trial court here certainly was aware that it had discretion to impose a
term of 25 years to life, rather than LWOP. But that discretion was exercised through the
LWOP presumptive sentence filter of People v. Ybarra , supra, 166 Cal.App.4th 1069,
1089 and People v. Guinn, supra, 28 Cal.App.4th 1130, 1141-1142. We are in no
position to say how Miller might have affected the trial court’s decision; we remand in
light of the Attorney General’s acknowledgment that giving the trial court the opportunity




                                             17
in the first instance to sentence Mauricio in light of Miller is a reasonable path to follow.
We express no opinion on whether Miller compels a particular sentence in this case.10
III.   The Parole Revocation Fine Issue
       Mauricio contends, the People concede, and we agree that the trial court erred in
imposing a parole revocation fine under section 1202.45 because he was sentenced to
LWOP terms on all three murder counts. (People v. Jenkins (2006) 140 Cal.App.4th 805,
819.) This issue, of course, is subject to the outcome of resentencing.
IV.    The Restitution Fine Issue
       Mauricio contends, the People concede, and we agree that the trial court erred in
imposing a restitution fine under section 1202.4 in the amount of $30,000. (See People v.
Blackburn (1999) 72 Cal.App.4th 1520, 1534 [the maximum restitution fine that may be
imposed in a criminal prosecution is $10,000 regardless of the number of victims or the
counts involved].)
V.     The DNA Fine Issue
       Mauricio contends, the People concede, and we agree that the trial court erred in
imposing a “DNA fine” under Government Code section 76104.7 on each count.
(People v. Valencia (2008) 166 Cal.App.4th 1392, 1396.)
VI.    The Custody Credits Issue
       Mauricio contends he is entitled to credits for an additional 38 days of presentence
actual days in custody. Although upon resentencing, Mauricio will have been entitled to
additional presentence credit due to the passage of time, for the benefit of the trial court,
we observe that his present argument is without merit.
       Mauricio was arrested on December 4, 2006, when he was found in a car with
other gang members and a rifle. A conspiracy case was initiated. He contends that his
custody credits in his current triple murder prosecution case should have been calculated
from December 4, 2006, even though he was not in custody for any murder offense at
that time. We find Mauricio’s argument is incorrect. “[C]redit shall be given only where

10
        Because we remand for resentencing we do not address Mauricio’s arguments that
his total sentence constitutes cruel and unusual punishment.

                                              18
the custody to be credited is attributable to proceedings related to the same conduct for
which the defendant has been convicted.” (§ 2900.5, subd. (b).) Mauricio’s argument on
appeal seeks custody credit for time spent as to an offense other than his murder offenses.
The record does not disclose the date Mauricio was taken into custody for murder.11
In any event, the 1,217 days of credit awarded by the trial court were applied in response
to a calculation offered by Mauricio’s counsel, and it does not appear to be erroneous.
                                      DISPOSITION
       Mauricio’s convictions are affirmed. The judgment is reversed and remanded for
sentencing only. At the time of resentencing the trial court shall calculate fines in
accordance with Parts IV and V of our opinion.




                                                         BIGELOW, P. J.
We concur:




              RUBIN, J.




              FLIER, J.




11     Mauricio first implicated himself in the Lueders Park incident on January 10,
2007. Apparently, the court and counsel used that date as the first day Mauricio was in
custody on the murder cases, given that 1,217 days passed between January 10, 2007, and
his sentencing on May 11, 2010.

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