People v. Delgado

27 Cal.App.5th 1092

238 Cal.Rptr.3d 697

The PEOPLE, Plaintiff and Respondent,

v.Ezekiel Isaiah DELGADO, Defendant and Appellant.

C082480

Court of Appeal, Third District, California.

Filed October 1, 2018

Certified for Partial Publication.^*

Joseph C. Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Ivan P. Marrs, Deputy Attorney General, for Plaintiff and Respondent.

Duarte, J.

A jury found defendant Ezekiel Isaiah Delgado guilty of two counts of first degree murder and one count of discharging a firearm at an occupied vehicle, found true a multiple-murder special circumstance and found that Delgado personally used a firearm, causing death. ( Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(3), 246, 12022.53, subd. (a).) The trial court sentenced him to prison for a total unstayed term of 100 years to life. He timely filed this appeal.

On appeal, defendant first claimed (1) his inculpatory statements to the police should have been excluded on various grounds, (2) no substantial evidence supported the murder charge, (3) the trial court misinstructed on felony murder, (4) the trial court misinstructed on voluntary intoxication, (5) limits on the voluntary intoxication defense violate due process, and (6) he was entitled to a juvenile transfer hearing because of the passage of Proposition 57. The Attorney General concedes the last point. We asked for supplemental briefing on several additional issues.

We agree with the parties that we must remand for a juvenile transfer hearing and agree with defendant that--while on remand--the trial court should have the opportunity to consider exercising its newly acquired discretion regarding firearm enhancements, as we describe post . In the published portion of this opinion, part I, we conclude the trial court erred in admitting some of defendant's inculpatory admissions, but find the error harmless beyond a reasonable doubt. We disagree with defendant's remaining contentions of error, as we explain in the unpublished portions of our opinion.

BACKGROUND

Near midnight on April 9 to 10, 2014, defendant, then aged 16, went with Taylor Cober and Elose Brown, purportedly to buy a small amount of marijuana. The seller (DeShawne Cannon) and his female companion (Gina Elarms) were sitting in a sedan. Brown had $40 and defendant gave Brown his wallet with $25 in it; the total was less than the agreed-upon amount of $70. Defendant told a detective he thought Cannon was reaching for a gun, so he shot him. He then shot Elarms because she could identify him, then shot Cannon again. He emptied his 10-shot pistol from behind, striking Cannon five times and Elarms at least three times. His admissions and reenactment were video recorded and shown to the jury. Defendant and Brown each claimed to have taken Elarms's purse, splitting the money contained therein.

Brown and Cober were given immunity and testified they thought the plan was to buy marijuana. Brown heard the shooting but claimed not to have seen it. Later, defendant told Brown he thought Cannon was preparing to shoot and defendant shot him to protect Brown. Cober testified defendant admitted shooting someone. In confusing passages, Cober testified there may have been mention of doing a "lick" (robbery) earlier, but he had thought it was said in jest.

There was corroborative but inconclusive testimony from two witnesses about the perceived ethnicity and clothing of people they saw leaving after the shootings. A review of defendant's telephone revealed searches for stories about the incident and inquiries about Amtrak and Greyhound schedules.

The defense theory was that defendant falsely confessed to protect his friends and earn street credibility. No robbery had been planned. At worst defendant acted rashly, not with deliberation, after he thought Cannon was going to pull a weapon. This would be voluntary manslaughter, via an imperfect self-defense theory.

The prosecutor argued for premeditated murder because defendant had time to reflect, fired at least five times at Cannon, shot Elarms at least three times, then shot Cannon again. Felony murder also could apply because from the evidence it was rational to infer a plan to rob the seller.

The jury convicted defendant as charged.

DISCUSSION

IAdmission of Inculpatory Statements

In overlapping claims, defendant contends he was unlawfully arrested, he was questioned in violation of Miranda , and his post- Miranda statements were tainted by the procedures used by the detectives. (See Miranda v. Arizona (1969) 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122.) We find error in part, but no prejudice.

A. Overview

Although we do not agree entirely with defendant, we agree that many mistakes were made. As we will describe, the communication among the involved detectives was inadequate to say the least.

Two seasoned detectives in the first team arrested defendant under the mistaken belief there was an outstanding warrant for his arrest. They took him in handcuffs to the station, seized his belongings including his cell phone, and left him shackled in an interrogation room for nearly an hour and a half. They did not tell the second team they had arrested and shackled him. They did not Mirandize him.

When the first detective in the second team found defendant, he immediately unshackled him, told him he was not under arrest and was free to leave, and a ride would be arranged for him. Defendant answered some questions, but made no inculpatory statements. After defendant was left in that room again, a second detective from the second team came in and immediately demanded that defendant unlock his cell phone so its contents could be retrieved. Although this detective also initially told defendant he was not under arrest, when defendant asked how long he would be there, the detective indicated the answer hinged on completion of the data retrieval process. He then questioned defendant at length. When defendant eventually admitted that he had shot the victims, a third detective in the second team--who had been watching through a one-way mirror--told the second detective via text message that it was time to Mirandize defendant. That was done, defendant was invited to repeat what he said, and he repeated and elaborated on his admissions, spontaneously moving chairs to reenact the crimes.

In a detailed written ruling, the trial court found defendant was in custody at the beginning, was freed from custody by the first interrogator, but was not back into custody until he admitted to the second interrogator that he had shot the victims. The court found defendant's statements, including those after the Miranda warnings, were voluntary, and not the product of a deliberate plan to evade Miranda .

We disagree with the trial court's determination of when custody was reinstated. When the second interrogator demanded access to defendant's cell phone and indicated he could not leave until it was examined, defendant was back in custody, and therefore his unwarned statements should have been excluded. No reasonable person would have felt free to leave at that time under these circumstances. However, precedent dictates that absent a deliberate policy or practice to evade Miranda , a subsequent voluntary warned confession is admissible notwithstanding a prior unwarned confession. (See Missouri v. Seibert (2004) 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 ; People v. Camino (2010) 188 Cal.App.4th 1359, 116 Cal.Rptr.3d 173 ( Camino ).) Although all of defendant's unwarned statements should have been suppressed as the products of a custodial interrogation without a Miranda waiver, the finding that the subsequent warned confession was voluntary is supported by the record.

The subsequent warned confession was cumulative of and more detailed than the unwarned confession. Therefore, we conclude beyond a reasonable doubt that the Miranda violation did not contribute to the verdicts and was not prejudicial to defendant. (See Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

Our conclusion should not be read to condone the multiple inexplicable failures to communicate and other mistakes demonstrated by this record.

B. Facts at Suppression Hearing

Detective Brian Meux (who had about 20 years as a peace officer) testified Cannon's cell phone was found at the crime scene and pointed the investigation to Brown, who had texted Cannon (using the moniker "WK Lynch") about a marijuana deal shortly before the killings. Meux helped execute a search warrant at Brown's residence beginning about 5:15 p.m. on April 11, 2014. Meux and fellow detectives, Angela Kirby and Jason Lonteen, had investigated Brown's associates via sheriff's records and social media, and linked Brown with a man named "Lynch" and defendant. When the warrant was executed, defendant, Cober, Brown, and some of Brown's relatives were present, and the team wanted to talk to all of them.

Although Meux apparently did not know this, Detectives French and Roberts had brought defendant to the station in handcuffs, taken his belongings, and shackled him to the floor of an interrogation room. The video shows they left defendant at about 6:54 p.m. Meux did not come in the room until about 8:18 p.m., meaning defendant was left shackled to the floor and alone in the room for nearly an hour and a half.

Meux testified he first spoke to Brown and his mother, and then went to the room where defendant was held. Meux was surprised to find him in shackles and freed him to use the bathroom; according to Meux, defendant was not then a suspect in the murders. Because of the way he had found defendant, Meux assured him that he was not under arrest, was free to leave, and did not have to talk. The video recording (with audio) shows that Meux offered to get defendant a ride or to have someone pick him up but did...