People v. Aguilera

Page 587

59 Cal.Rptr.2d 587

51 Cal.App.4th 1151, 96 Cal. Daily Op. Serv. 9348,

96 Daily Journal D.A.R. 15,355

The PEOPLE, Plaintiff and Respondent, v. Joseph AGUILERA, Defendant and Appellant.

No. H013728.

Court of Appeal, Sixth District, California.

Dec. 19, 1996.

Certified for Partial Publication. ^*

Sheila B. Cohen, Michael A. Kresser by Appointment of the Sixth District Appellate Program, Santa Clara, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Asst. Atty. General, Ronald A. Bass, Senior Asst. Atty. General, Ronald E. Niver, Supervising Deputy Atty. General, David H. Rose, Deputy Atty. General, for Plaintiff and Respondent.

WUNDERLICH, Associate Justice.

I. Statement of the Case

Defendant Joseph Aguilera appeals from a judgment entered after a jury convicted him of involuntary manslaughter and conspiracy to commit battery and to fight or challenge to fight in public. (Pen.Code, §§ 192, subd. (b), 242, 415, subd. (1).) ¹ The jury also found true enhancement allegations that defendant committed both offenses while armed and that he did so for the benefit of a "criminal street gang." (§§ 186.22, 12022, subd. (a).)

On appeal defendant claims there is insufficient evidence to support either conviction. He claims his statements to police were involuntary and obtained in violation of the Miranda ² rule. He claims the court erred in admitting extra-judicial statements by co-participants, refusing proposed instructions on how to determine whether the killing was a natural and probable consequence of his criminal conduct, instructing the jury that the instant offenses could establish the "pattern" element of the gang enhancement, and instructing the jury that scienter is not an essential element of the arming enhancement. Finally, assuming a scienter requirement, defendant argues there is insufficient evidence to support the arming enhancement.

We agree that defendant's statements were obtained in violation of the Miranda rule and conclude that their admission at trial compels reversal.

II. Facts ³

On January 27, 1994, a group of Nortenos went to the Washington Elementary School in San Jose, and one of them shot Osvaldo Mojarro Rios to death.

Sometime before the killing, the group, travelling in a caravan, drove by the residence of Jesus Mesa and his family on Lotus Street in San Jose. One family member yelled " 'Sureno' " to the passing vehicles and then ran into the house. The caravan turned around and stopped. Three Nortenos walked up the driveway, yelling " 'Norteno.' " One had a gun. Another took out a knife and slashed tires on cars in the driveway. Another picked up a car bumper, which was on the ground, and tossed it through a window of the house. Thereafter, all three ran back to their cars and sped off. Two members of the Mesa household chased after them with bats.

Chris Barajas, a Sureno, testified that he saw three vehicles at a restaurant and heard the occupants yell "fourteen" and "Norte" at him and a friend. Later, he and Guadalupe Banda, also a Sureno, were standing outside the Washington Elementary School, which, according to Banda, is a Sureno area. Barajas noticed the same vehicles he had seen earlier. The vehicles stopped, and the occupants got out. They yelled "Norte" and gang initials. Some stood near a Buick Regal, and others ran toward Barajas and Banda who fled and heard gunshots.

Daniel Medina saw the three vehicles near the Regal. Someone in a white car yelled "Norte" and "fourteen." A man got out, held up a gun for others to see, and rapidly fired five or six shots into the Regal.

Stephanie Navarrette and the victim were parked in front of the school waiting for their six-year-old son. She said that a small white car pulled up and the passenger asked Rios, " '[W]hat's up?' " Rios said " '[W]hat? I don't even know you' " and rolled up the window. Navarrette saw a gun, then ducked and heard several gun shots.

Steven Gonzalez, Jesus Badillo, Rafael Gudino, Marlon Mayorga, Manuel Villalvazo were interviewed by the police in connection with the shooting. They related that on January 27, they met with a group of Nortenos and formed a caravan to look for Surenos to fight. Gonzalez described Surenos as the "enemy." Mario Abrego drove one of the cars in the caravan. Ramon Montes said he brought the murder weapon with him. Several described chasing Surenos before heading to the Washington Elementary School. Some also described the incident on Lotus Street. John Mendoza said that after they attacked, the Surenos there counter-attacked with bats and machetes. Gonzalez said the group later congratulated the person who tossed the bumper through a window. All of those interviewed said the caravan went to the Washington School, chased a group of Surenos, and left when they heard gunshots. Badillo said that after the shooting, they regrouped and agreed not to talk about the incident.

The police also interviewed defendant. He initially denied being one of those in the Norteno caravan. He understood the difference between Nortenos and Surenos, knew they did not get along, and he said had been attacked by Surenos because he looked like a Norteno. He was also aware of specific problems with Surenos in the Washington School area and said it was not unusual for Nortenos to get together because "there's more Surenos around." He knew many Nortenos in the West Side Mob, including Badillo, but denied being a gang member himself.

Ultimately, defendant admitted that he rode in the caravan but said he did not know many of the others. He explained that three cars came to pick him up from school. They went to Roosevelt Park and were joined by a fourth car. At first, he thought they were just looking for girls but he soon realized they were out " 'Gang Banging' " Surenos. He described how they would pull up to cars and yell "Norteno." He admitted he tried to "fit in" and would switch seats with others among the cars.

Defendant described the Lotus Street incident and said he too got out of his car. From there, the group stopped at a restaurant and then found and confronted some other Surenos. The caravan separated, regrouped, and drove to the Washington School because someone had seen a group of Surenos there. As his car passed the school, some Surenos started walking away. His car stopped, and he and the others got out.

He saw the victim and a woman in a parked car and heard someone yell something like "San Jo Norte." The victim made an obscene finger gesture and said something like " 'fuck you, fuck Norte.' " Somebody yelled back "Norte" or "puro San Jose" or "San Jo Norte." He then saw a person from another car approach the victim and fire a gun. The group returned to their cars and fled. Defendant went to work.

Defendant told police he did not see a gun before the shooting but had heard somebody talk about one, saying it was "cheap" and " 'no good.' " He did not know where it was and " 'just thought somebody was like holding it or something' " but did not know who.

The Defense

The defense was based on evidence and argument that (1) defendant was a passive passenger in the caravan; (2) he thought they were just looking for girls; (3) when he realized the group's purpose, he did not intend to join them; (4) he did not chase any Surenos; (5) he did not know Francisco Valdez or anyone had a gun until the shooting; (6) he was not a gang member or associate; (7) the evidence relied upon by Officer Piscitello did not suggest defendant was involved in the shooting; and (8) he has a good, peaceful, and nonviolent character.

Gustavo Aceves, Javier Ceja, Sandra Burkitt, Joel Romero, and defendant's father testified concerning defendant's character for shyness, peacefulness, honesty, and non-violence and to establish that he was not the type of person who would be in a gang or who would even be asked to join one.

III. Sufficiency of the Evidence ^**

IV. Admission of Defendant's Statement

Defendant contends the trial court erred in admitting evidence of the statements he made to Officers Torres and Sterner. He claims they were involuntary and/or obtained in violation of the Miranda rule. We agree with the latter claim.

A. Factual Background

Officer Torres testified that she and her partner Officer Mike Sterner learned from Jessie Badillo that defendant was "involved" in the events of January 27. They went to defendant's residence and asked him and his mother if he would talk to them at the police station about the homicide. They offered to bring him back home. Defendant and his mother agreed that he would go. Defendant's mother also consented to a search of her house for evidence of the homicide and gang involvement.

The officers brought defendant to an interview room at the police station. Although he was not physically restrained, Officer Torres did not recall whether defendant ever left the room. The interview lasted two hours, and when it was over, the officers drove defendant back home.

Officer Torres told defendant he was not in custody. However, she then said they would bring him home when they were finished, explaining that "[i]t really depends on how, how long you want to take and how, how quickly you tell us the truth." Torres later testified that what she meant was that if defendant told the truth in one hour or two hours, the interview would take that long. She further explained, "There's a possibility that he would never tell us the truth, then we would give him a ride home without him telling us the truth." However, Torres admitted she did not tell this to defendant.

Torres next informed defendant they knew what had happened at the Washington School, who had been present, and who had done what. Officer Sterner said they just wanted to know how he got involved. Defendant denied being involved. He said that after school, he declined an invitation to join a group of people and instead walked home with Jesus Badillo. The officers rejected...