NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE A109361

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1 Filed 6/13/06 P. v. Zaragoza CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. JAVIER CHAVEZ ZARAGOZA, Defendant and Appellant. A (Solano County Super. Ct. No. FCR213399) Javier Chavez Zaragoza appeals convictions for shooting at an inhabited dwelling, shooting at an unoccupied vehicle, shooting from a motor vehicle, and assault with a firearm, with an enhancement for personally carrying a firearm during the commission of a street gang crime. He challenges the admission of his confession into evidence, and the jury instruction on the elements of the enhancement. We strike the enhancement and otherwise affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On the evening of October 11, 2003, friends of teenager Kelly Root visited his home in Vacaville. Kelly heard yelling and cussing while one of them used the family telephone. Later that evening, the Root family received a number of phone calls from an angry woman who identified herself as Elizabeth and threatened to assault Kelly and his brother Dale. During one call, Dale heard a male voice in the background say, I m going to kill you. Dale became angry due to the number of calls, and told the caller: Hey, if you want a problem, dude, this is where I live, and gave the caller his 1

2 address. The female caller also told Kelly and Dale s mother: bitch, um, we re going to come shoot you up. Kelly and Dale s mother reported the threatening calls to the police. The caller identification mechanism on the Roots phone indicated the calls were coming from a cell phone billed to Elizabeth Carrion. In the middle of the night, Dale woke up and heard someone banging on his window. He saw a bald-headed man with a tongue ring and tattoos on his forehead and beneath one eye. The man yelled, Sur Trece and threw up a [gang] sign. Dale yelled, call the cops and retrieved a cane from the garage. The banging also woke his brother Ryan. He grabbed a claw hammer, and the two young men went outside. Across the street, they saw a white truck with fancy tire rims and a large decal across the back window. Ryan saw a heavy-set bald Hispanic male in the passenger seat, and recognized the truck as belonging to defendant, who he had met before at the home of Josh Ellsworth. As their mother pulled Dale and Ryan back into the house, a shot was fired. Ryan heard a bullet pass by his head, felt metal from the door hit his back, and fell to the ground. A female voice yelled Dale s name, and said, that was for you. A few seconds later, a second shot was fired into the back window of a car parked in the driveway. Dale and Ryan s mother saw the white truck outside, and called 911. A newspaper delivery person and another passerby also saw the white truck in the area, and heard the two shots. 1 When police responded to the shooting, they found an expended shotgun shell in the street in front of the Root residence, took photos of the holes in the front door, and retrieved shotgun wadding found on the ground. Later that day, Ryan called Ellsworth on the telephone and asked him if he knew who shot at their house and why. Dale recognized Ellsworth as his brother s friend in a photographic line-up, but said he was not the man who banged on the window the night of the shooting. 1 The newspaper delivery person thought the truck had two occupants. The other passerby told police there were three or four people in the truck. 2

3 On October 16, Detective Carey executed a search warrant at the home of defendant and Carrion. Police found cell phone bills in Carrion s name, indicating 14 calls were made to the Root residence on the night of the shooting. 2 Police also found a white truck in the garage, with stock rims and no decal on the back window. Under a blanket in the upstairs room of Carrion s son, they found fancy tire rims. Dale later identified the rims and truck as those he saw the night of the shooting. Defendant and Carrion were detained when they returned home as police were completing the search. Defendant first spoke to police at his home. He was subsequently arrested and taken to the police station, where he was given Miranda 3 warnings and made a statement about the shooting. Defendant said that after Carrion received a number of annoying phone calls, defendant retrieved a shot gun and they drove to the Roots residence, where he saw a couple of men waving their hands. Defendant thought one of the men had a gun. Defendant leaned out the window of the truck and fired two shots. The next day, he gave the gun to a person named Francisco in Sacramento. Defendant later learned from Ellsworth that no one was shot. After the shooting, defendant changed the tire rims on the truck and drove a different vehicle to work. Defendant was charged with two counts of attempted murder, shooting at an inhabited dwelling, shooting at an unoccupied vehicle, shooting from a motor vehicle, and two counts of assault with a firearm. The attempted murder counts also alleged that defendant personally and intentionally discharged a firearm. As to all counts, it was alleged that the offenses were committed for the benefit of a criminal street gang, that defendant personally carried a firearm during the commission of a street gang crime, and that defendant personally used a firearm. 4 2 A call was also made from Carrion s cell phone to her home two minutes after Dale and Ryan s mother called Miranda v. Arizona (1966) 384 U.S Carrion was also charged in most counts of the information. At trial, the parties stipulated that she was the driver of the white truck on the night of the shooting, and that 3

4 At the preliminary hearing, defendant moved to exclude his statements to police. The trial court determined that defendant s first statement, made at his home before he received Miranda warnings, was conversational and not coerced. But the court also found that at some point, the questioning went from being mere[ly] investigative to interrogative, where the police... were confronting him with evidence that they had in the case when he would deny his involvement. The court concluded that defendant was entitled to be Mirandized during the course of this questioning, and excluded the pre-miranda statement made by defendant. The court admitted defendant s statement at the police station, made after he had received Miranda warnings and agreed to talk to the police. Detective Lopez, a gang expert, testified at trial about the activities of the Sureno gang in Vacaville and Sacramento, and the types of crimes they customarily engaged in. She collected various kinds of gang-related material during the search of defendant s home. Defendant had Sureno gang tattoos on his body, had admitted being a Sureno, and was involved in two previous drive-by shootings with the Sureno gang in Sacramento. Her opinion was that defendant was a member of the Sureno criminal street gang and committed the current offenses for the benefit of, or in association with, the Surenos. An investigator who spoke with Ellsworth and observed tattoos on his forehead and under his eyes testified for the defense. The parties also stipulated that Ellsworth called David Portillo from the Solano County jail on October 21 and October 25, On October 21, Ellsworth told Portillo, [t]hey re trying to get us on this case, on some shooting. Ellsworth instructed Portillo, You gotta get rid of that. On October 25, Portillo told Ellsworth, Got rid of that for you. You know. The jury returned a not guilty verdict as to the charges of attempted murder, and found the allegations regarding the firearm-use enhancement and the gang enhancement not true. Defendant was convicted of the remaining charges, and the allegation that he she pled no contest to knowingly permitting a person to discharge a firearm from her motor vehicle. 4

5 carried a firearm during the commission of a street gang crime was found true. Defendant was sentenced to seven years and eight months in prison, and timely appealed. 5 DISCUSSION The Admission of Defendant s Post-Miranda Confession When we review a ruling on a motion to suppress based upon a failure to warn under Miranda, we accept the trial court s findings of fact if supported by substantial evidence, but independently determine whether the challenged statements were illegally obtained. (People v. Waidla (2000) 22 Cal.4th 690, 730; People v. Kelly (1990) 51 Cal.3d 931, 947.) We conclude the trial court did not err when it denied defendant s motion to exclude his second statement. A statement taken while a defendant is in custody and has not been given Miranda warnings carries a presumption of compulsion that requires such a statement be suppressed even when it is otherwise voluntary within the meaning of the Fifth Amendment. (Oregon v. Elstad (1985) 470 U.S. 298, (Elstad).) The trial court properly excluded defendant s first statement because it concluded defendant was in custody and was not given Miranda warnings before he spoke to the police at his home. However, 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 subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. (Elstad, supra, 5 Defendant received the five-year middle term for shooting at an inhabited dwelling, a two-year enhancement for carrying a firearm during the commission of a street gang crime, and eight months for shooting at an unoccupied vehicle. Sentence on the remaining counts was stayed pursuant to Penal Code section 654. All further statutory references are to the Penal Code. 5

6 470 U.S. at p. 309.) In Elstad, a defendant s statement after he was warned of his rights was held admissible, even though it followed a statement that preceded Miranda warnings. The case involved an 18-year-old defendant implicated in a burglary. The police were allowed into his home by his mother. The defendant was lying on his bed. The police asked his mother to go into the kitchen and told him to get dressed and accompany them to the living room. Without administering Miranda warnings, an officer told the defendant he believed the defendant was involved in the crime. The defendant admitted he was there during the burglary. The police took the defendant to the sheriff s office, where he was advised of his Miranda rights and confessed to the crime. (Elstad, supra, 470 U.S. at pp ) The United States Supreme Court upheld the trial court s ruling that the confession was voluntary. Though belated, the reading of respondent s rights was undeniably complete.... There is no question that respondent knowingly and voluntarily waived his right to remain silent before he described his participation in the burglary. It is also beyond dispute that respondent s earlier remark was voluntary, within the meaning of the Fifth Amendment. Neither the environment nor the manner of either interrogation was coercive. The initial conversation took place at midday, in the living room area of respondent s own home, with his mother in the kitchen area, a few steps away. Although in retrospect the officers testified that respondent was then in custody, at the time he made his statement he had not been informed that he was under arrest. (Elstad, supra, 470 U.S. at pp ) Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), on which defendant relies here, is very different. In Seibert, police had an intentional strategy designed to circumvent Miranda. The police woke the defendant in the middle of the night, at a hospital where her son was being treated. They followed official instructions not to give her Miranda warnings. She was arrested and taken to the police station where, according to plan, she 6

7 was not given Miranda warnings and was questioned for 30 to 40 minutes. 6 When the defendant finally admitted the crime, she was given a short break, before she was given her Miranda warnings. She waived her rights, and provided a second statement when an officer reminded her of the previous conversation and confronted her with her previous statements. (Seibert, supra, at pp ) The Supreme Court concluded in Seibert that the deliberate police strategy of question first effectively undermined the purpose of Miranda warnings. (542 U.S. at pp ) The court distinguished Seibert from Elstad, which involved 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. (Seibert, supra, 542 U.S. at p. 615, citing Elstad, supra, 470 U.S. at p. 309.) The court also concluded: In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect s shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. (Seibert, supra, at pp ) This case is more like Elstad than Seibert. Although defendant made a custodial statement without the benefit of warnings, the police do not appear to have engaged in a deliberate strategy to undermine Miranda, and both of defendant s statements were voluntary and not the result of unfair persuasion or coercion. 7 6 The officer who questioned defendant in Seibert also squeezed her arm, repeating the incriminating statement he wanted her to make until she did it. (542 U.S. at p. 605.) 7 Defendant asserts that during questioning at his home, police resorted to coercive techniques calculated to extract a confession when they told defendant that his girlfriend s teenage son lied to the police, and led them to suspect he might be involved in the shooting. That comment is not a threat to arrest a family member that could render a subsequent confession involuntary. (Cf. People v. Matlock (1959) 51 Cal.2d 682, 697; People v. Weaver (2001) 26 Cal.4th 876, 920.) Nor did the police s invitation to 7

8 When the police first contacted defendant, they told him why they were at his home, and he agreed to speak with them. The conversation took place at his kitchen table. Defendant was handcuffed for officer safety, while the police executed a search warrant. Defendant was repeatedly told that he was not under arrest. (See Haynie v. County of Los Angeles (9th Cir. 2003) 339 F.3d 1071, 1077 [detention in handcuffs not a de facto arrest, if not excessive under the circumstances ]; In re Carlos M. (1990) 220 Cal.App.3d 372, 385 [handcuffing alone does not transform detention into arrest].) Defendant told the police about the calls Carrion received, and admitted the shooting. After listening to the first interview, the trial court concluded officers used a conversational tone, and were not overbearing or coercive. That finding is supported by the record. Defendant received full Miranda warnings at the police station after he was arrested, and agreed to waive his rights before giving his second statement. The video shows no coercive police conduct during the second interview. Defendant was first asked about what he did with the shotgun after the shooting, and reported new information about it. He also revealed additional details about the shooting and its aftermath, and repeated his admission. The court denied defendant s motion challenging the admissibility of his second statement at the preliminary hearing, as well as his section 995 motion based on Seibert. 8 After further testimony and argument regarding police training and practices, the trial court again found the second statement admissible, and concluded that based upon all the evidence [it had] heard in this entire transaction and [its] review of the briefs in this matter, that this officer was not attempting to deliberately and conscientiously avoid the defendant to explain his state of mind at the time of the shooting operate as an express or implied promise of leniency that would undermine the voluntariness of his confession. (Cf. People v. Carr (1972) 8 Cal.3d 287, 296; People v. Hill (1967) 66 Cal.2d 536, 549.) 8 The court did exclude defendant s first statement made at his home before he received Miranda warnings. 8

9 effects of Miranda. 9 (Cf. Seibert, supra, 542 U.S. at pp. 604, 616.) This finding is supported by the officer s testimony that he was taught to give Miranda warnings at the beginning of an investigation and it was his practice to give them when he was interrogating a suspect in custody, but he did not believe defendant was in custody for the first interview. Defendant relies upon factors recited by the plurality in Seibert to argue his second statement was inadmissible. These factors include the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator s questions treated the second round as continuous with the first. (Seibert, supra, 542 U.S. at p. 615.) He argues that because the prewarning questioning of defendant was comprehensive, police personnel were identical and the content of the second interrogation overlapped the first, it should have been excluded. Defendant also urges us to read into Seibert a requirement that police advise a defendant a prewarning statement will not be used against him before they resume questioning after a warning is given. Defendant claims such an admonition was necessary to afford defendant a real choice in whether or not to talk to the police. But as Justice O Connor said in Elstad, we should not confuse the failure to provide Miranda warnings with the violation of a constitutional right by the police. Miranda warnings are designed to guard against the prosecutorial use of compelled statements, and not every police error has the irreparable consequences of a violation of the Fifth Amendment. (Elstad, supra, 470 U.S. at pp. 304, 309.) Justice Kennedy 9 The trial court noted: It does appear that the officer thought he was complying with the law with respect to the first interrogation and there had been a long and heated debate between counsel and this Court having to spend a lot of time to untangle whether or not Miranda was necessary for the first interrogation, and so it wasn t a blatant obvious violation of Miranda. There the officer seemed to sincerely believe he was complying with the law with respect to the first interrogation. The court also noted the evidence did not indicate that the officer had been trained to violate Miranda, and defense counsel conceded as much during the argument in limine. 9

10 provided the fifth vote in Seibert and concurred on narrower grounds than those stated by the plurality. He concluded that Elstad should control unless the police intentionally used a two-step interrogation technique to undermine the efficacy of the Miranda warnings. (Seibert, supra, 542 U.S. at p. 622.) His position is persuasive, and controlling. (Romano v. Oklahoma (1994) 512 U.S. 1, 9; Marks v. United States (1977) 430 U.S. 188, 193; U.S. v. Ollie (8th Cir. 2006) 442 F.3d 1135, 1142; U.S. v. Williams (9th Cir. 2006) 435 F.3d 1148, ; U.S. v. Kiam (2006) 432 F.3d 524, 532; U.S. v. Mashburn (4th Cir. 2005) 406 F.3d 303, ; U.S. v. Stewart (7th Cir. 2004) 388 F.3d 1079, 1090.) 10 Analysis of the five factors mentioned by the Seibert plurality is unnecessary as there has been no showing of a deliberate attempt to sidestep Miranda. (See Kiam, supra, at pp ) For the same reason, we do not believe it was necessary for police to advise defendant his first statement was inadmissible. (See Elstad, supra, at pp ) The trial court properly concluded that defendant s statement made after full Miranda warnings and untainted by police compulsion was voluntary and admissible. There is no evidence to indicate the police were engaged in a deliberate attempt to undermine Miranda, and we conclude defendant s postwarning statement was properly admitted. (See Elstad, supra, 470 U.S. at p. 314.) Jury Instruction In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to and governing the case. (People v. Wims (1995) 10 Cal.4th 293, 303; People v. Estrada (1997) 57 Cal.App.4th 1270, 1275.) Except for sentence enhancement provisions that are based on a defendant s prior conviction, the 10 While defendant cites the dissent in U.S. v. Rodriguez-Preciado (9th Cir. 2005) 399 F.3d 1118, for the proposition that the subjective intent of the interrogating officer is not determinative, the Ninth Circuit has subsequently held: In situations where the two-step strategy was not deliberately employed, Elstad continues to govern the admissibility of postwarning statements. [Citations.] (U.S. v. Williams, supra, 435 F.3d at p ) 10

11 federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the prescribed statutory maximum punishment for that crime. [Citation.] Therefore, a trial court s failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision increases the penalty for [the underlying] crime beyond the prescribed statutory maximum. [Citation.] Such error is reversible under Chapman [v. California (1967) 386 U.S. 18, 24], unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury s verdict. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) Section , subdivision (a), provides an enhancement of one, two or three years when a person carries a loaded or unloaded firearm on his or her person, or in a vehicle, during the commission or attempted commission of any street gang crimes described in subdivision (a) or (b) of Section Thus, for example, the commission of a felony violation of section , subdivision (a), while carrying a firearm, triggers section (a), which imposes additional punishment of up to three years in state prison. (People v. Robles (2000) 23 Cal.4th 1106, 1113.) The jury was instructed on this enhancement as follows: It is further alleged that at the time of the commission of the crimes charged in Counts 1, 2, 3, 4, 5, 7, and 8, that the defendant carried a loaded or unloaded firearm on his person, or in a vehicle, during the commission or attempted commission of a street gang crime, as described elsewhere in these instructions. But the term street gang crime was not defined in any of the 11 Section , subdivision (a) prescribes punishment for [a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang. Section , subdivision (b)(1), provides for an enhancement to the sentence of any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. 11

12 other jury instructions, including the instruction setting forth the elements of the section , subdivision (b)(1) enhancement. Thus the jury was not instructed on a central element required to support its true finding on the section , subdivision (a) enhancement. 12 The People contend the jury instructions sufficiently defined street gang crime because the instruction on the elements of the section , subdivision (b)(1) enhancement defined the terms criminal street gang and pattern of criminal gang activity. But it remains true that the instructions as a whole did not define street gang crime, nor was the jury referred to the instructions on the section , subdivision (b)(1) enhancement for guidance. Moreover, the alleged section , subdivision (b)(1) enhancement was found not true. Even assuming the instructions were deficient, the People argue defendant suffered no prejudice because [t]here was overwhelming evidence to demonstrate that [he] carried a firearm on his person or in the vehicle during the commission of a street gang crime. In light of the jury s not true finding on the section , subdivision (b)(1) enhancement, we cannot find the failure to properly instruct on section , subdivision (a) harmless beyond a reasonable doubt. 13 (See People v. Sengpadychith, supra, 26 Cal.4th at pp. 326, , fn. 5.) 12 The jury returned a true finding on the section enhancement, and a not true finding on the section , subdivision (b)(1) enhancement (which required that the offense be committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members ). Defendant moved to strike the section , subdivision (a) enhancement pursuant to section 1385, arguing it required a finding of a gang crime under section At sentencing, however, defendant agreed to withdraw that motion and submit the matter on the probation report. 13 Nor was the court s failure to instruct cured by the prosecutor s remark during argument that the enhancement means that you have a gun on your person or in a vehicle, and you re doing some kind of a gang-related crime. Argument by counsel is not a substitute for proper instructions, and reference to some kind of gang-related crime does not adequately define the term street gang crime. 12

13 DISPOSITION The two-year enhancement imposed pursuant to section , subdivision (a) is stricken. The judgment is otherwise affirmed. The trial court is directed to forward a corrected abstract of judgment to the Department of Corrections. Siggins, J. We concur: Parilli, Acting P.J. Pollak, J. 13