Opinion
B293727
03-04-2020
THE PEOPLE, Plaintiff and Respondent, v. REYNA GOMEZ, Defendant and Appellant.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA144673) APPEAL from a judgment of the Superior Court of Los Angeles County, Roger T. Ito, Judge. Affirmed in part and reversed in part. Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
On April 29, 2017, defendant Reyna Gomez and her fellow gang member Alejandro Lazo went on a crime spree that began in Pico Rivera and ended in Santa Fe Springs. After taking a vehicle at gunpoint, Gomez and Lazo drove around in the stolen car, taking turns shooting at people on the street and in other vehicles. One victim was killed, and several others injured, before Gomez and Lazo were apprehended.
A jury convicted Gomez of one count of murder (Pen. Code, § 187, subd. (a)), 14 counts of willful, deliberate, and premeditated attempted murder (§§ 187, 664), and one count of carjacking (§ 215, subd. (a)). The jury found true firearm use allegations (§ 12022.53, subds. (b), (c) & (d)) and allegations the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)). The trial court sentenced Gomez to prison for a determinate term of 83 years four months, and a consecutive indeterminate term of 350 years to life.
All unspecified references are to the Penal Code.
Gomez raises numerous and overlapping challenges to the judgment of conviction. She challenges several of her attempted murder convictions on the grounds there was instructional error (including instructions as to the "kill zone" theory of liability), and insufficient evidence she aided and abetted Lazo. Gomez also contends her carjacking conviction must be reversed for insufficient evidence and instructional error. Gomez further claims prejudicial violations of her Miranda and confrontation clause rights.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda).
Gomez separately contends the indeterminate sentences imposed for the attempted murder convictions were unauthorized, and that the trial court erred by imposing court assessments without first assessing her ability to pay them.
We agree that the trial court erred in instructing the jury on the kill zone theory with regard to the attempted murders charged in counts 2, 4, 8, and 14. Because we find that the error was prejudicial, we reverse those four convictions along with the special findings associated with those counts. In all other respects, we affirm the judgment.
FACTUAL BACKGROUND
A. The Prosecution's Case
Gomez and Lazo are both members of the Southside Whittier gang. Both had gang tattoos. Gomez's gang moniker was "Morena," and Lazo's was "Looney."
1. Carjacking of Johnny Godinez (Count 12)
At about 2:15 p.m. on April 29, 2017, Johnny Godinez was sitting in his green Nissan Pathfinder SUV, which was parked on the street in Pico Rivera. Lazo and Gomez drove up in a white Kia sedan. Lazo got out of the Kia, ran up to the Pathfinder, and pointed a handgun at Godinez. Gomez also got out of the Kia, and stood at the passenger-side door of the Pathfinder. Lazo told Godinez to "leave everything in the car and get out." Godinez complied, dropping his cell phone in the process. Lazo and Gomez got into the Pathfinder and drove away. Gomez threw Godinez's cell phone out the window so that the police could not use it to track her and Lazo.
2. Attempted Murder of Tommy Arellanes (Count 15)
At about 3:30 p.m., Tommy Arellanes was seated in the alley behind a Starbucks at the corner of Whittier Boulevard and Colima Road in Whittier. Someone pulled up next to him in a vehicle. The male driver handed a gun to his female companion and said "Shoot him." Arellanes saw a flash, heard a gunshot, and was hit by a bullet in the testicles.
Arellanes then saw the female shooter raise the gun and point it at his face. She pulled the trigger, but the gun did not fire. The man took the gun away from the shooter and attempted to clear the jam. Arellanes ran away and into the Starbucks. From there, he was taken to the hospital.
3. Attempted Murder of Michael Lucero (Count 17)
At about 3:40 p.m., Michael Lucero was stopped at a red light at the intersection of Colima Road and Lambert Road at the edge of Whittier. When the light turned green, Lucero heard two gunshots. One bullet struck the driver's side door, and one bullet shattered the driver's side window. Lucero was hit by glass from the window.
Rosemary and Roy Ashcraft were driving through the intersection when the shooting occurred. Rosemary, who was driving, screamed, "They're going to shoot him." Roy looked up and saw an arm with a gun sticking out of the driver's side window of a dark colored SUV, and the shattered window of Lucero's vehicle; he also saw someone in the passenger seat of the SUV. Rosemary began driving after the SUV. Roy asked, "What are you doing? You're chasing a guy with a gun." Rosemary turned around and returned to the scene of the shooting. Roy checked on Lucero, who had pieces of shattered glass around his face but otherwise seemed to be okay.
Where witnesses or victims share the same last name, we refer to them by their first names to avoid confusion and not out of any disrespect.
Officer Yasmin Segura of the Whittier Police Department arrived at the scene and spoke to Roy. Roy told her he thought there were two people in the SUV, and he gave the officer the first few digits of the license plate number.
Christopher Padilla was working at a storage facility by the intersection of Colima Road and Lambert Road. He heard two popping sounds that he thought might have been fireworks or gunshots. He then saw a green SUV speed off down Lambert Road. When police officers arrived at the scene, he told them that the storage facility's video security system may have filmed the shooting. The police viewed the video footage of the incident.
4. Attempted Murders of Benjamin and Maria Gonzalez (Counts 13 and 14)
At about 4:00 p.m., Benjamin Gonzalez was stopped for a red light at the intersection of Imperial Highway and La Mirada Boulevard in La Mirada; his wife Maria was beside him in the front passenger seat of their vehicle. Benjamin saw a green SUV to his left pull slightly forward. He saw a man in the driver's seat and a woman in the passenger's seat hugging and kissing. The green SUV moved backwards. When the light turned green, the green SUV sped forward. Benjamin heard two gunshots. He looked to his left and saw the man in the green SUV pointing a gun at him. He heard a third gunshot; his driver's side window shattered, and a bullet struck him in the arm and ribs. Benjamin tried to follow the green SUV while Maria called 911.
5. Attempted Murder of Anthony Espinoza (Count 11)
Anthony Espinoza was driving west on Imperial Highway in La Mirada. He passed Santa Gertrudes Avenue and was approaching Ocaso Avenue, when he heard "a loud noise and debris went everywhere in [his] car." A bullet had shattered the small window behind his driver's side window and lodged in his headrest. Espinoza looked in his side mirror and saw a dark SUV. He drove home and called the police.
6. The Shootings at the Intersection of Santa Gertrudes Avenue and Alicante Road
(a) Murder of Jose Sahagun (Count 1) and Attempted Murder of Jesus Aguirre (Count 2)
Jose Sahagun was stopped for a red light in a southbound lane on Santa Gertrudes Avenue at the Alicante Road intersection in La Mirada. He was driving a white SUV. His father-in-law, Jesus Aguirre, was beside him in the front passenger seat. Jose's wife, Ageda, and their baby were in the second row of seats. Jose's son and mother-in-law were in the third row of seats.
A green SUV drove up at a high rate of speed and stopped to the left of Jose's vehicle. A light-skinned man was driving the green SUV. A "Morena"—a dark-skinned Latina—whom Aguirre and Ageda identified at trial as Gomez, got out of the front passenger door and walked over to the driver's side door of Jose's vehicle. She pointed a gun at the driver's side window and fired several times. Gomez got back into the green SUV; it drove through the intersection while the light was still red.
Jose was struck three times. He later died of his injuries.
(b) Attempted Murders of Lisa Roberts (Count 3) and Hannah S. (Count 4)
Lisa Roberts, an off-duty Los Angeles County Deputy Sheriff, was stopped in a northbound lane on the other side of the intersection and witnessed the shooting of Jose. Her daughter, Hannah S., was seated in the backseat behind her. As the green SUV drove toward her, the driver pointed a gun at her and fired once through her driver's side window. The window shattered, and Roberts was cut by flying glass. After making sure that her daughter was okay, Roberts called 911.
(c) Attempted Murder of Leticia Amador (Count 9)
Letitia Amador, who was stopped at the intersection, saw Gomez standing outside the driver's side window of a white SUV, pointing an object resembling a gun at the SUV. The window of the SUV then shattered. Gomez ran to a green Pathfinder and got in on the passenger side. The Pathfinder then drove through the intersection. Amador saw the male driving the Pathfinder point a gun in her direction and fire. She saw him fire at two other cars as well.
(d) Attempted Murder of Jorge Noriega (Count 5)
Off-duty police officer Jorge Noriega was stopped at the intersection in one of the northbound lanes. He heard gunshots, then "cars trying to get out of the way, people screaming." He saw Lazo driving the green SUV, and another person in the SUV he could not identify. Lazo was shooting "at basically all the cars that were in the area," including Noriega's car.
(e) Attempted Murders of Leslie and Robert Goddard (Counts 7 and 8)
Leslie Goddard was stopped at the red light in a northbound lane on Santa Gertrudes Avenue, about the third car back from the intersection. Her husband Robert was beside her in the front passenger seat, and their son was in the back seat. Leslie and Robert heard gunshots and looked at one another in disbelief. Then a dark colored SUV pulled parallel to their car. Leslie could see the male driver and a second person in the front passenger seat. The driver "raised a gun out of the car," and Leslie and Robert ducked down. The driver, a male Hispanic in his early thirties, fired two to three shots at the Goddards' car and then sped away. The Goddards were not hit, but there was a bullet hole in their passenger-side mirror.
(f) Attempted Murder of Julio Rodriguez (Count 6)
Julio Rodriguez's SUV was the fourth vehicle back from the intersection headed northbound. He heard gunshots and saw a dark colored Pathfinder driving slowly through the intersection. The driver was shooting at the vehicles in front of Rodriguez. When he got to Rodriguez's SUV, the driver fired twice at Rodriguez. One of the bullets struck the driver's side window of Rodriguez's vehicle. Rodriguez thought a photograph of Lazo looked like the driver, but he was not sure of his identification.
Rodriguez saw a woman in the front passenger seat of the Pathfinder. The woman was sitting at an angle and looking out the driver's side window, as if she was "trying to see the action."
(g) Attempted Murder of William Korneff (Count 10)
William Korneff was also stopped in a northbound lane at the intersection. He heard three gunshots. He looked around and saw a green Pathfinder. He then saw the driver point a gun at him and shoot. A bullet struck the edge of Korneff's windshield.
7. Arrest of Gomez and Lazo
At about 7:00 p.m., Gomez registered at the Santa Fe Springs Budget Inn. She and Lazo were sitting in the parking lot in a Kia sedan. A car drove up. The passenger got out, said "Hey, homeboy," and began shooting at the Kia. Gomez, who was in the driver's seat, was hit by a bullet but was able to drive away.
Joyce Faapouli was stopped for a red light on Alondra Boulevard at the border of Santa Fe Springs. Gomez drove up behind her and began honking. Gomez then pulled up beside Faapouli, rolled down her window, said she had been shot and asked for help. Faapouli said she would call 911. She and Gomez pulled over on Carmenita Road.
When Faapouli got out of her car, she saw several bullet holes in the Kia. Gomez got out of the Kia and showed Faapouli where she had been shot. Faapouli saw Lazo in the front passenger seat of the Kia. Gomez said he had also been shot and needed help.
Santa Fe Springs Fire Captain Jay Joiner arrived at the scene. Gomez was standing outside the Kia and having difficulty breathing. She collapsed into Captain Joiner's arms; he took her to the curb and sat her down. She told him there was a gun in the Kia.
Santa Fe Springs Police Officer Edward Nyberg arrived while paramedics were attending to Lazo, who was still in the Kia. Officer Nyberg observed a handgun by Lazo. Officers recovered ammunition and shell casings from the Kia. Officer Nyberg ran the Kia's license plate and discovered it was stolen. After Gomez and Lazo received treatment for their gunshot wounds, they were placed under arrest and transported to the hospital.
Shortly after 7:00 p.m., a sheriff's deputy found the green Pathfinder at Mayberry Park in Whittier. A live ammunition round was on the ground nearby.
8. Forensic Evidence
Testing revealed gunshot residue on both Lazo's and Gomez's hands. Shell casings found in the Pathfinder and the Kia, and a bullet recovered from Sahagun, were fired by the gun recovered in the Kia.
Beer cans found in the Pathfinder and the Kia contained both Gomez's and Lazo's DNA. DNA found on the steering wheel of the Pathfinder belonged to Lazo. Lazo's DNA was also recovered from the ammunition in the gun.
9. Gomez's Hospital Interviews
On May 1, Lieutenant Richard Ruiz and Detective Sergeant Robert Gray of the Los Angeles County Sheriff's Department interviewed Gomez at the hospital. Over the course of two days, Lieutenant Ruiz and Detective Gray conducted three interviews, lasting a total of about three hours. They also conducted a one-to-two-hour "Perkins operation," in which they placed an undercover officer posing as a patient in Gomez's room to talk with her.
Illinois v. Perkins (1990) 496 U.S. 292, 297 [110 S.Ct. 2394, 110 L.Ed.2d 243] (Perkins) held that a conversation between an undercover officer and an incarcerated suspect does not implicate Miranda.
Although Gomez had been given pain medication, she was coherent and able to respond to questions. Gomez admitted that she was a member of the Southside Whittier gang, with the moniker "Morena." She also admitted that she and Lazo committed the carjacking, the shooting of Arellanes, and the shootings at the intersection of Santa Gertrudes Avenue and Alicante Road.
Gomez explained with respect to the carjacking that Lazo went to the driver's side window of the Pathfinder with a gun; she went to the passenger side. They threw Godinez's cell phones out of the Pathfinder so the police could not use the phones to track them. Gomez admitted she was the one who shot Arellanes.
Gomez told Lieutenant Ruiz and Detective Gray that she and Lazo got the Kia from "Jasmin" at Mayberry Park between 5:00 and 6:00 p.m. There was a gun in the car; Gomez acknowledged touching the gun. She and Lazo then drove to the Santa Fe Springs Budget Inn, and she went inside to register. After she returned to the Kia, she heard someone ask, "Where you fools from?" Then she heard gunshots. She drove away, but she was unable to get far because she had been shot. Lazo also had been shot and was fainting. Gomez tried to get help from a woman by bumping into her car.
On May 4, Lieutenant Ruiz and Detective Gray placed an undercover officer in the jail medical facility where Gomez was receiving treatment. Lieutenant Ruiz and Detective Gray briefly questioned Gomez. After they left, the undercover officer and Gomez talked briefly about drugs, then Gomez told the officer, "I had to tell them something, you know, if I'm really going to go down I might as well play fucking like under the influence," or "[u]nder the influence of insanity or some shit."
The undercover officer later told Gomez it was good that only she and Lazo were involved in the crimes, because "it's just him that you have to worry about, not a lot of people." Gomez responded, "That's my homie right there." She said that "he's my Bonnie," as in Bonnie and Clyde. After further conversation which was unintelligible on the recording, the officer stated, "You're more down than him, girl." This comment was followed by laughter.
Lieutenant Ruiz and Detective Gray returned to Gomez's room, and spoke with her. Then they briefly left the room. Gomez told the undercover officer that she knew the consequences she faced and was looking at "[p]robably life." Lieutenant Ruiz and Detective Gray again returned to Gomez's room and asked if she was going to tell them what happened. They asked, "If you saw that dude at Starbucks again and stuff, if he were standing right here, what would you tell him?" Gomez replied, "My bad dude."
10. Gang Evidence
Detective Ivania Farias of the Los Angeles County Sheriff's Department testified as a gang expert. She knew Gomez and Lazo to be members of the Southside Whittier gang. Detective Farias testified as to the activities of the Southside Whittier gang, crimes committed by its members, and its territory, which included Mayberry Park. She testified as to the dangers of "snitching" on a gang member. In response to a hypothetical question based on the facts of this case, Detective Farias opined that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang.
B. The Defense Case
Gomez did not testify. Her defense at trial was that the People failed to prove she was the female involved in the crime spree.
The gang expert for the defense, Martin Flores, confirmed that Gomez and Lazo were Southside Whittier gang members. He cautioned, however, that just because a gang member committed a crime did not mean the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. He added that a gang member's participation in a shooting spree might not be willful; the gang member might be at risk if he or she refuses to participate. Flores also testified that a "snitch" could lose his or her life. He did not believe Gomez was a "snitch."
DISCUSSION
A. Attempted Murder Convictions Under the Kill Zone Theory
Gomez raises numerous challenges to her convictions on counts 2, 4, 8, and 14—the attempted murder counts as to which the jury was instructed, inter alia, on the kill zone theory of liability. We find the evidence did not support the giving of a kill zone instruction, and the instructional error was not harmless beyond a reasonable doubt, requiring reversal of those four convictions. This conclusion obviates the need to address Gomez's remaining arguments as to counts 2, 4, 8, and 14.
1. The Instruction on the Kill Zone Theory
Jesus Aguirre was seated in the passenger seat of the vehicle being driven by Jose Sahagun when Gomez shot and killed Sahagun. The trial court instructed the jury with respect to count 2, "the attempted murder of Jesus Aguirre, [that] the People must prove that the defendant not only intended to kill Jose Sahagun but also either intended to kill Jesus Aguirre or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Jose Sahagun or intended to kill Jesus Aguirre by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Jesus Aguirre."
The court gave this same instruction as to count 4, the attempted murder of Hannah S.; count 8, the attempted murder of Robert Goddard; and count 14, the attempted murder of Maria Gonzalez. Like Jesus Aguirre, all three of these individuals were seated as passengers when Gomez or Lazo shot at the driver of the vehicle in which they were seated.
"In order to convict the defendant in Count 4 of the attempted murder of Hannah [S.], the People must prove that the defendant not only intended to kill Lisa Roberts but also either intended to kill Hannah [S.] or intended to kill everyone within the kill zone."
"In order to convict the defendant in Count 8 of the attempted murder of Robert Goddard, the People must prove that the defendant not only intended to kill Leslie Goddard but also either intended to kill Robert Goddard or intended to kill everyone within the kill zone."
"In order to convict the defendant in Count 14 of the attempted murder of Maria Gonzalez, the People must prove that the defendant not only intended to kill Benjamin Gonzalez but also either intended to kill Maria Gonzalez or intended to kill everyone within the kill zone."
2. Applicable Law
"To prove the crime of attempted murder, the prosecution must establish 'the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citation.] When a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be 'transferred' from one attempted murder victim to another under the transferred intent doctrine. [Citation.]" (People v. Canizales (2019) 7 Cal.5th 591, 602 (Canizales).)
The kill zone theory, first approved by our Supreme Court in People v. Bland (2002) 28 Cal.4th 313, yields a way in which a defendant can be guilty of the attempted murder of victims who were not the defendant's "primary target." In Canizales, the Supreme Court clarified "that a jury may convict a defendant under the kill zone theory only when the jury finds that: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target[;] and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm." (Canizales, supra, 7 Cal.5th at pp. 596-597.)
Canizales noted that, "[a]s past cases reveal, there is a substantial potential that the kill zone theory may be improperly applied, for instance, where a defendant acts with the intent to kill a primary target but with only conscious disregard of the risk that others may be seriously injured or killed." (Canizales, supra, 7 Cal.5th at p. 597.) For this reason, the court cautioned "that trial courts must be extremely careful in determining when to permit the jury to rely upon the kill zone theory" (ibid.), and "there will be relatively few cases in which the theory will be applicable and an instruction appropriate" (id. at p. 608).
3. The Trial Court Erred in Giving the Kill Zone Instruction
Although one can certainly infer that the use of force by Gomez and Lazo endangered Jesus Aguirre, Hannah S., Robert Goddard, and Maria Gonzalez, endangerment "is insufficient to support a kill zone instruction." (Canizales, supra, 7 Cal.5th at p. 608.) " '[I]n a kill zone case, the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located.' " (Id. at p. 607, quoting People v. Medina (2019) 33 Cal.App.5th 146, 156.) Thus, a kill zone instruction was appropriate only if there was evidence of a primary target (Canizales, supra, at p. 609), and "there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm" around that primary target, and not merely endanger or harm them (id. at p. 608).
The requirements set forth in Canizales were not met here. Gomez and Lazo had no preexisting relationship with any of their victims, and had no plan to target any particular individual and ensure that primary target's death by killing everyone in the area near the primary target. The prosecutor acknowledged as much in closing, arguing "who shoots at people randomly for no reason whatsoever, no discernable, no good reason. Who does something like that? Well, gang members do that."
Even if we considered the persons driving the vehicles to be primary targets as that term is defined for purposes of the kill zone theory, the only reasonable inference from the offense conduct was not that Gomez and Lazo intended to kill everyone in a zone around the drivers. An equally reasonable inference was that Gomez and Lazo intended to endanger and terrorize anyone else in the car by shooting at the driver. "In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target." (Canizales, supra, 5 Cal.5th at p. 607.)
As to count 2, the attempted murder of Jesus Aguirre, the evidence showed that Gomez fired several times into the driver's side window of Jose Sahagun's SUV at very close range, striking Sahugun three times and no one else. There was no evidence that Gomez aimed at Aguirre, and she did not hit him. The only reasonable inference from these facts was not that Gomez intended to kill everyone in the zone next to Sahugun to ensure Sahugun's death. Similarly, the only reasonable inference was not that Lazo intended to kill Hannah S. (as opposed to endangering her) when he fired one shot at Lisa Roberts from a distance, hitting the driver's side window while Hannah S. was in the back seat. The only reasonable inference was not that Lazo intended to make sure he killed Lisa Goddard by also killing the person next to her, namely Robert Goddard, when Lazo fired into their car. Nor was there sufficient evidence for the required sole reasonable inference as to Maria Gonzalez when Lazo aimed at and hit Benjamin Gonzalez, but did not aim at or hit Maria Gonzalez. The trial court therefore erred by instructing the jury on the kill zone theory on counts 2, 4, 8 and 14.
We decline the People's request to treat Gomez's challenge to the kill zone instruction as forfeited based on her failure to object to the instruction. As a general rule, the failure to object to an instruction forfeits any claim of error on appeal. (People v. Lucas (2014) 60 Cal.4th 153, 291, fn. 51, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 97, fn. 19.) However, "no forfeiture will be found where . . . the instructional error affected the defendant's substantial rights. [Citations.]" (People v. Mason (2013) 218 Cal.App.4th 818, 823; see also § 1259.) Here, the instructional error affected Gomez's substantial rights.
4. The Error Was Not Harmless
The Canizales court applied the standard of Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] in determining whether error in giving a kill zone instruction is prejudicial. Under that standard, error is prejudicial unless " 'it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error.' [Citation.]" (Canizales, supra, 7 Cal.5th at p. 615.)
The court left open the question whether a more stringent standard of prejudice might apply, finding that even under Chapman, the error was prejudicial.
As discussed previously, the jury was instructed on two theories of liability in connection with counts 2, 4, 8, and 14. The jury was told that it could return a verdict of guilty on those counts if it found either (1) that Gomez and Lazo intended to kill the named victim specifically, or (2) that defendants intended to kill not only the driver of the vehicle but also everyone within the kill zone. An instruction on an unsupported theory is prejudicial only if that theory became the sole basis of the verdict of guilt; if the jury based its verdict on the valid ground, or on both the valid and the invalid ground, there would be no prejudice. (Canizales, supra, 7 Cal.5th at pp. 612-613, citing People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.) However, "a different prejudice inquiry applies in cases 'in which "a particular theory of conviction . . . is contrary to law," or, phrased slightly differently, cases involving a "legally inadequate theory" . . . .' [Citation.] In determining whether a legally inadequate theory was conveyed to the jury here, we must ask whether there is a ' "reasonable likelihood" ' that the jury understood the kill zone theory in a legally impermissible manner. [Citations.] In doing so, we consider the instructions provided to the jury and counsels' argument to the jury. [Citations.]" (Id. at p. 613.)
We cannot find beyond a reasonable doubt the jury would have rendered the same verdict absent the erroneous kill zone instruction. The evidence that Gomez or Lazo intended to kill the passengers (as opposed to recklessly endangering them) was at best equivocal, and there is a reasonable likelihood the jury understood the kill zone theory in a legally impermissible manner. The prosecutor properly told the jury the kill zone theory applied when "you're targeting a space where other people can be killed with your shots and you intend to kill those other people with your shots." (Italics added.) He went on to muddy the waters, however, by arguing that Maria Gonzalez "was just on the other side of Mr. Gonzalez," so Lazo "created a kill zone by firing multiple shots in that cabin area intending to kill everybody in there." The prosecutor built on this endangerment by proximity argument by telling the jury that "Hannah [S.] was in the line of fire," and it's the "[s]ame thing with the Goddards. . . . They were seated . . . next to each other. . . . Again, that's why this is a kill zone that he has created, because [Lazo's] shooting down the line where both are seated right next to each other."
While the prosecutor addressed Jose Sahugun's murder during closing argument, he did not address the charge of attempted murder with regard to Jesus Aguirre.
Because these arguments "had the potential to mislead the jury to believe that the mere presence of a purported victim in an area in which he or she could be fatally shot is sufficient for attempted murder liability under the kill zone theory . . . , the jury might well have found factual support for what was effectively an 'implied malice' theory of attempted murder without detecting the legal error. [Citation.]" (Canizales, supra, 7 Cal.5th at p. 614.) Because the error in giving the kill zone instruction was not harmless beyond a reasonable doubt, Gomez's attempted murder convictions on counts 2, 4, 8, and 14 must be reversed along with the special findings on those counts.
B. There Was Substantial Evidence Gomez Aided and Abetted Attempted Murders
With the exception of the attempted murder of Arellanes, in which Gomez personally pulled the trigger, the remaining non- kill zone attempted murder convictions (counts 3, 5, 6, 7, 9, 10, 11, 13, and 17) were based on aider and abettor liability. Gomez contends there was insufficient evidence to show she was an aider and abettor, because "[n]one of these victims or any crime scene bystanders testified about any specific act of aiding and abetting on the part of the female passenger" in the Pathfinder.
1. Standard of Review and Applicable Law
In evaluating the sufficiency of the evidence, " 'we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] "Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict.' [Citation.]" (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
" '[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages, or instigates, the commission of the crime.' [Citations.]" (People v. Johnson (2016) 62 Cal.4th 600, 630.) A defendant's knowledge and intent to aid and abet may be inferred from the defendant's actions and the surrounding circumstances. (See id. at pp. 630-631.) Hence, "an act that 'has the effect of giving aid and encouragement' and 'is done with knowledge of the criminal purpose of the person aided, may indicate that the actor intended to assist in fulfillment of the known criminal purpose,' and may therefore serve as the basis for 'an inference' regarding an alleged aider and abettor's intent. [Citation.]" (People v. Manibusan (2013) 58 Cal.4th 40, 94.) " 'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.' [Citation.]" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) " 'Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' [Citation.]" (Id. at p. 1054.)
2. Analysis
We disagree with Gomez's characterization of herself as a mere bystander during the attempted murders in which Lazo was the shooter. Her presence and participation during the entire sequence of events, including her personally shooting other victims, helping to toss the carjacking victim's phone out of the Pathfinder so she and Lazo could not be tracked as they embarked on the shooting spree, and serving as a constant companion and second set of eyes while Lazo drove, provided sufficient circumstantial evidence of her intent to aid, promote, or encourage Lazo in his commission of the crimes in which he was the direct perpetrator. (People v. Nguyen, supra, 61 Cal.4th at pp. 1054-1055; People v. Phan (1993) 14 Cal.App.4th 1453, 1463-1464.) Gomez's reference to Lazo and herself as Bonnie and Clyde further supported a finding that she and Lazo committed the various crimes together as a team, i.e., she aided and abetted Lazo's crimes and vice versa. Accordingly, substantial evidence supports her attempted murder convictions based on aiding and abetting.
As discussed more fully below, we reject Gomez's challenges to the admission of her statements to police after arrest.
C. Failure To Instruct as to the Sufficiency of Gang Evidence To Prove Aiding and Abetting
It is established that " 'gang evidence standing alone cannot prove a defendant is an aider and abettor to a crime' [citation]." (People v. Nguyen, supra, 61 Cal.4th at p. 1055.) Gomez contends the trial court erred in failing to instruct the jury sua sponte that gang evidence alone is insufficient to support a finding of aider and abettor liability.
The jury was instructed that it could consider gang evidence only for limited purposes. Using CALCRIM No. 1403, the trial court instructed the jury: "You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements charged. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that she has a disposition to commit [a] crime." (Italics added.) We presume the jury understood and followed this instruction, and it did not consider the gang evidence for any other purpose, including as proof Gomez was an aider and abettor. (People v. Beck and Cruz (2019) 8 Cal.5th 548, 633.)
We reject Gomez's claim that the court was obligated to give a sua sponte instruction to underscore this point further. " 'When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.' (Evid. Code, § 355, italics added.) Thus, although a court should give a limiting instruction on request, it has no sua sponte duty to give one. [Citations.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.) This rule applies to the uses to which gang evidence may be put. (See id. at pp. 1051-1052.) Accordingly, the trial court had no duty to instruct the jury sua sponte that the gang evidence could not be considered for aiding and abetting purposes. (Ibid.)
D. The Carjacking Conviction
Gomez raises two challenges to her carjacking conviction (count 12). First, she argues the court erred in not sua sponte instructing the jury on when the crime of carjacking is complete. Second, and relatedly, she argues the evidence was insufficient to show that she aided and abetted Lazo before the carjacking was completed.
1. Alleged Jury Instruction Error
(a) CALCRIM No. 1650
The trial court instructed the jury on carjacking pursuant to CALCRIM No. 1650. That instruction stated, in pertinent part: "To prove that the defendant is guilty of [carjacking], the People must prove that:
"1. The defendant took a motor vehicle that was not her own;
"2. The vehicle was taken from the immediate presence of a person who possessed the vehicle or was its passenger;
"3. The vehicle was taken against that person's will;
"4. The defendant used force or fear to take the vehicle or to prevent that person from resisting; [¶] AND [¶]
"5. When the defendant used force or fear to take the vehicle, she intended to deprive the other person of possession of the vehicle either temporarily or permanently.
"The defendant's intent to take the vehicle must have been formed before or during the time she used force or fear. If the defendant did not form this required intent until after using the force or fear, then she did not commit carjacking. [¶] . . . [¶]
"A person takes something when he or she gains possession of it and moves it some distance. The distance moved may be short."
(b) Alleged Failure To Give Additional Sua Sponte Instruction
Gomez contends the trial court erred by failing to instruct the jury sua sponte as to when the crime of carjacking is completed. Gomez does not specify what that sua sponte instruction should have included, suggesting only that it needed to say something reflecting that the crime of carjacking continued so long as the Pathfinder was being carried away to a place of temporary safety.
First, the court did, in fact, instruct the jury as to when the various elements of the offense had to occur. The jury was told "[t]he defendant's intent to take the vehicle must have been formed before or during the time she used force or fear. If the defendant did not form this required intent until after using the force or fear, then she did not commit carjacking." The jury was also told that "[a] person takes something when he or she gains possession of it and moves it some distance. The distance moved may be short." In other words, the jury was told that once the vehicle was taken by force or fear and moved some distance, the crime was complete. The jury was further told that the intent to take the vehicle could not be formed after force or fear was used. Having already instructed on when the crime was complete, the court did not need to give a cumulative instruction. A trial court " 'is required to instruct sua sponte only on general principles which are necessary for the jury's understanding of the case. It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such an instruction.' [Citation.]" (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.)
Second, the case law regarding robbery, on which Gomez relies to suggest the carjacking instruction needed supplementation, is inapposite. Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." The crime of robbery includes " 'the element of asportation and appropriation of another's property.' " (People v. Gomez (2008) 43 Cal.4th 249, 256.) "[T]he commission of a robbery for purposes of determining aider and abettor liability continues until all acts constituting the robbery have ceased. The asportation, the final element of the offense of robbery, continues so long as the stolen property is being carried away to a place of temporary safety. Accordingly, in order to be held liable as an aider and abettor, the requisite intent to aid and abet must be formed before or during such carrying away of the loot to a place of temporary safety." (People v. Cooper (1991) 53 Cal.3d 1158, 1161.)
Our Supreme Court has held that "the crime of carjacking, like robbery, require[s] asportation or movement of the motor vehicle." (People v. Lopez (2003) 31 Cal.4th 1051, 1055.) The court observed, however, that while there are similarities between the two crimes, " '[t]he analogy between robbery and carjacking is imperfect' [citation]." (Id. at p. 1056.) For example, "carjacking requires either an intent to permanently or temporarily deprive; robbery requires an intent to permanently deprive. [Citation.]" (Id. at p. 1058.) "[A] completed carjacking occurs [if] the perpetrator drives off with the carjacking victim in the car or forcibly removes the victim from the car before driving off. [Citations.]" (Id. at p. 1062.) The focus of the carjacking statute is the increased risk to victims, whether owners or passengers, not the intent to permanently deprive the owner of his or her property. (Id. at pp. 1062-1063.)
U.S. v. Martinez-Bermudez (1st Cir. 2004) 387 F.3d 98, 102-103, which Gomez also cites, involved the felony-murder rule, and the question when a death occurs " 'in the perpetration of' " a carjacking. It is not controlling.
Finally, we fail to see how Gomez could have been prejudiced by the omission of the suggested instruction that the crime of carjacking continues until the perpetrator reaches a place of temporary safety. If anything, such language would serve to extend, and not shorten, the time in which Gomez could form the intent to aid and abet Lazo's commission of the crime and face liability as an aider and abettor. Under the instruction as given, if Gomez did not form the intent to aid and abet Lazo until after Lazo had taken the Pathfinder at gunpoint and driven away, she would not be guilty of carjacking, as the crime would have been completed before she formed her intent. Because giving the jury an even longer time for Gomez to aid and abet the crime would not operate to her advantage, Gomez's claim of error is without merit.
2. Sufficiency of the Evidence
Gomez next argues that, even under the instructions as given, "the People failed to present sufficient evidence that [she] aided Lazo's carjacking before her entry into Godinez's vehicle." This was because "the People failed to establish when [she] threw away Godinez's cell phone from the vehicle and, therefore, failed to establish that this act aided the carjacking."
There was no evidence of precisely when the cell phone was thrown from the vehicle. However, on a sufficiency review and taking all inferences in favor of the judgment, we must presume it was early on and before Lazo and Gomez drove away, given that the purpose was to prevent the stolen vehicle from being tracked. In any event, Gomez's act of throwing away the cell phone was not the only evidence of her aiding and abetting the carjacking. Gomez confessed to participating in the carjacking. The evidence showed Gomez accompanied Lazo to the Pathfinder, and that she stood at the passenger side of the Pathfinder opposite Lazo. The jury could reasonably interpret that coordinated activity as Gomez serving as a lookout, and a show of force preventing the victim's escape out of the other side of the car before Lazo took the keys. Accordingly, we reject the claim that there was insufficient evidence to support the carjacking conviction.
E. Use of Arellanes's Preliminary Hearing Testimony
Arellanes spoke to the police after the shootings. Arellanes testified and was cross-examined at Gomez's preliminary hearing. He was hospitalized and unavailable to testify in person at trial, so his preliminary hearing testimony was introduced. Gomez claims the admission of Arellanes's prior testimony violated her Sixth Amendment right of confrontation, requiring reversal of her conviction for the attempted murder of Arellanes.
1. Proceedings Below
On Friday, September 7, 2018, the prosecutor notified the court that Arellanes was in the hospital due to complications from diabetes and would be there for at least another week. Based on this proffer, the prosecutor asked the court to find the People had exercised due diligence to attempt securing the witness's presence, and allow Arellanes's preliminary hearing testimony to be put into evidence.
The court requested additional information. The prosecutor then questioned a police officer, who testified that he spoke to a nurse at the hospital; the nurse stated that Arellanes was admitted to the hospital on September 4, would probably stay there a week total, and most likely would be discharged in the "next couple days." The court then requested a declaration from Arellanes's physician, as well as other information. The court stated: "At this juncture I'm a little reluctant to make a finding [of unavailability], especially if he's available Monday or Tuesday."
On the following Monday afternoon, the prosecutor provided the court with a declaration from a clinical social worker at the hospital who stated that Arellanes was admitted to the hospital and had no firm discharge date. The hospital was unwilling to provide additional information due to patient privacy laws. A police officer spoke to Arellanes, who indicated he was suffering from a great deal of water retention, apparently due to kidney failure, and that he did not anticipate being discharged from the hospital for several days.
The court made a finding that Arellanes was unavailable to testify, subject to the police checking with Arellanes the following day to make sure he was not going to be discharged. The following afternoon, an officer reported on his conversation with Arellanes at the hospital. The court then made a finding as to Arellanes's unavailability to testify and ruled that his preliminary hearing testimony could be admitted. The ruling was "over defense objection."
2. Analysis
Our Supreme Court has explained, with respect to the Confrontation Clause: "A witness who is absent from a trial is not 'unavailable' in the constitutional sense unless the prosecution has made a 'good faith effort' to obtain the witness's presence at the trial. (Barber v. Page[ (1968)] 390 U.S. [719,] 724-725 [88 S.Ct. 1318, 20 L.Ed.2d 255] . . . .) The United States Supreme Court has described the good-faith requirement this way: 'The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness' intervening death), "good faith" demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. "The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness." [Citation.] The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.' (Ohio v. Roberts (1980) 448 U.S. 56, 74 [65 L.Ed.2d 597, 100 S.Ct. 2531], disapproved on another point in Crawford v. Washington (2004) 541 U.S. 36, 60-68 [158 L.Ed.2d 177, 124 S.Ct. 1354].)" (People v. Herrera (2010) 49 Cal.4th 613, 622.)
Gomez argues that she "was denied her Sixth Amendment right to face-to-face confrontation because, although Arellanes may not have been able to physically attend the trial in the courtroom, there is no evidence he was 'unavailable' to testify via closed circuit television. The court made no inquiry as to Arellanes'[s] ability to testify, as opposed to his unavailability to travel to the courthouse and attend the trial hearing." In support of this argument, Gomez cites Maryland v. Craig (1990) 497 U.S. 836, 851-852 [110 S.Ct. 3157, 111 L.Ed.2d 666], in which the United States Supreme Court held that allowing a child witness to testify via a closed-circuit television procedure did not violate the Confrontation Clause.
As the People point out, Gomez cites no authority suggesting a court must sua sponte explore such alternate means of testimony before declaring a witness unavailable to testify. "That additional efforts might have been made or other lines of inquiry pursued does not affect" the trial court's finding of unavailability. (People v. Cummings (1993) 4 Cal.4th 1233, 1298.) This principle is especially true here, where Gomez never requested that the court attempt to secure Arellanes's testimony through alternate means. By failing to make that request, Gomez deprived the court of the opportunity to determine whether such a procedure was viable. (See People v. Tully (2012) 54 Cal.4th 952, 980 [" '[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct' "].)
A claim of constitutional error may be forfeited by "fail[ing] to make a specific objection in the trial court concerning the confrontation clause violation theories" advanced on appeal. (People v. Blessett (2018) 22 Cal.App.5th 903, 910-911, review granted Aug. 8, 2018, S249250; cf. People v. Johnson (2018) 6 Cal.5th 541, 571 [defendant forfeited claim that trial court should have admitted his prior testimony in lieu of live testimony where he failed to offer it into evidence].) We conclude Gomez forfeited her Confrontation Clause argument by failing to raise it below. F. Alleged Miranda Violations
Gomez does not argue her trial counsel's failure to suggest potential alternate means for Arrellanes to testify constituted ineffective assistance of counsel. We also note that regardless of whether Arellanes's preliminary hearing testimony was admitted, Gomez admitted to the investigating officers that she shot Arrellanes.
Gomez claims a number of Miranda violations. She also contends that, to the extent her claims are forfeited by the failure to raise them below, she received ineffective assistance of counsel.
1. Gomez's Miranda Claim and the Hearing in the Trial Court
During trial, defense counsel requested the court exclude evidence from "one of the interviews with my client" because she was under the influence of drugs and incapable of giving a knowing and intelligent waiver of her rights. After the prosecutor explained the circumstances surrounding the interviews, the court asked if defense counsel was challenging the admissibility of the statements made to the undercover officer who was placed in the room with Gomez, or just the statements made to Lieutenant Ruiz and Detective Gray. Counsel stated he was only challenging the statements made to Lieutenant Ruiz and Detective Gray. The court stated it would have Lieutenant Ruiz testify concerning the interview, "[t]hen I'll make a determination as to whether or not [it] sounds like it's a knowing and voluntary waiver of Miranda. Then, secondarily, if in fact the court finds there's some kind of infirmity, then I'll take up [any issue regarding the undercover officer]."
Outside the presence of the jury, Lieutenant Ruiz testified that he first interviewed Gomez at the hospital at the University of California, Irvine, on May 1, 2017. Gomez was in a room by herself. Lieutenant Ruiz gave Gomez her Miranda warnings. Gomez said she understood the warnings and would speak to him. Gomez was coherent and answered the questions Lieutenant Ruiz was asking; she did not give answers unresponsive to his questions.
Lieutenant Ruiz interviewed Gomez a second time, on May 4, at the Los Angeles County Medical Center jail ward. He conducted a Perkins operation on that day. Before speaking to Gomez, Lieutenant Ruiz again gave Gomez her Miranda warnings. Gomez said that she understood those warnings and would speak. After speaking with Gomez, the officers left the room. Lieutenant Ruiz then placed the undercover officer in Gomez's room and listened to their conversation. Lieutenant Ruiz then returned to Gomez's room and again gave her a Miranda warning and spoke with her.
At this point in the hearing, the court reminded counsel of the basis of defense counsel's objection and suggested that the court listen to the recording of the interviews. It could make factual findings "based on listening to the nature of the responses and exactly how it comes out. If . . . it sounds like she's groggy and inappropriately responding, then I may have an issue with regards to the voluntariness of the waiver."
The court then listened to the first five to six minutes of the first recording, which included the detective's inquiring of Gomez where she had been shot, and what kind of pain medication she had. The court found "[h]er responses to all of his questioning was immediate and appropriate. There was no lag, . . . [it] did not sound like there was any kind of slurred speech, did not appear she was groggy in any way, did not appear she did not understand the questions." Rather, Gomez "was responsive and at no point during that . . . initial portion when she was Mirandized, she waived her Miranda rights, she was advised of them, did I hear anything whatsoever that even remotely approached her not being in full control of her faculties or not being aware. She may have been given some type of anesthetic. It clearly did not affect her ability to understand the nature of the questioning or, more specifically, the Miranda warnings or her waivers."
While the court tentatively found that Gomez's Miranda waivers were knowing and voluntary, it gave defense counsel the opportunity to review the recordings and point the court to anything "that suggests that she was not in control of her faculties." Defense counsel did not raise the issue again.
2. Review of Miranda Claims
Under Miranda, before a custodial interrogation, "a suspect 'must be warned prior to any questioning that [s]he has the right to remain silent, that anything [s]he says can be used against [her] in a court of law, that [s]he has the right to the presence of an attorney, and that if [s]he cannot afford an attorney one will be appointed for [her] prior to any questioning if [s]he so desires.' (Miranda, supra, 384 U.S. at p. 479.)" (People v. Linton (2013) 56 Cal.4th 1146, 1171.)
"It is well settled, however, that after the familiar Miranda advisements are given, a suspect can waive his or her constitutional rights. [Citation.] To establish a valid Miranda waiver, the prosecution bears the burden of establishing by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary under the totality of the circumstances of the interrogation. [Citation.]" (People v. Linton, supra, 56 Cal.4th at p. 1171.)
" 'On appeal, we review independently the trial court's legal determinations of whether a defendant's . . . Miranda waivers were knowingly, intelligently, and voluntarily made [citation] . . . . We evaluate the trial court's factual findings regarding the circumstances surrounding the defendant's statements and waivers, and " 'accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.' " ' [Citation.]" (People v. Krebs (2019) 8 Cal.5th 265, 299.)
As Gomez acknowledges, Miranda claims not raised in the trial court are subject to forfeiture on appeal. "[U]nless a defendant asserts in the trial court a specific ground for suppression of his or her statements to police under Miranda, that ground is forfeited on appeal, even if the defendant asserted other arguments under the same decision. [Citations.]" (People v. Polk (2010) 190 Cal.App.4th 1183, 1194; accord, People v. Tully, supra, 54 Cal.4th at p. 980.)
3. Alleged Ineffective Assistance of Counsel
Where counsel fails to raise a potentially meritorious Miranda claim in the trial court, a claim of ineffective assistance of counsel will lie. (People v. Torres (2018) 25 Cal.App.5th 162, 173; see People v. Linton, supra, 56 Cal.4th at p. 1166.) " ' "To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland v. Washington[ (1984)] 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674].)" ' [Citation.]" (People v. Rices (2017) 4 Cal.5th 49, 80; accord, People v. Johnson, supra, 62 Cal.4th at p. 653.) Defendant must establish prejudice as a demonstrable reality. (People v. Lawley (2002) 27 Cal.4th 102, 136.)
4. Gomez's Miranda Claims
(a) Statements Obtained Prior to Miranda Warnings
Gomez contends statements obtained from her prior to the Miranda warnings should have been excluded because they were incriminating testimonial statements obtained through custodial interrogation, and were not simply "routine booking questions." The statements Gomez identifies are her responses to questions regarding how she feels, what medications she was taking for the pain, her date of birth, whether she had been arrested before, and if she remembered when she was read her rights in the past.
Gomez did not challenge the admission of these statements below, forfeiting the challenge on appeal. (People v. Tully, supra, 54 Cal.4th at p. 980; People v. Polk, supra, 190 Cal.App.4th at p. 1194.) Moreover, she makes no showing whatsoever that she had a potentially meritorious Miranda claim as to these statements given the preliminary nature of the questions, which were not designed to elicit incriminating statements but instead to assess her ability to understand a Miranda warning before it was given. (See People v. Shamblin (2015) 236 Cal.App.4th 1, 22 [questions normally attendant to police administrative duties in connection with arrest and custody do not rise to level of custodial interrogation].) Counsel did not render ineffective assistance by failing to make what would have been a futile objection. (People v. Price (1991) 1 Cal.4th 324, 387.) Nor does Gomez show there is a reasonable probability she would have obtained a more favorable result had her innocuous answers to these questions been excluded. Consequently, Gomez was not deprived of the effective assistance of counsel by the failure to raise a Miranda claim as to the statements she made prior to the Miranda warnings. (People v. Rices, supra, 4 Cal.5th at p. 80.)
(b) Miranda Warning Given
Gomez next contends the warning given violated Miranda "because it failed to adequately convey (1) the right of continuous opportunity to exercise the right to remain silent [citation], (2) the right to cut off and terminate questioning [citation], (3) the right of counsel, either retained or appointed [citation], as opposed to appointed counsel before questioning and counsel during questioning, and (4) the duty to invoke the right to remain silen[t] in clear and unequivocal terms [citations]." Gomez acknowledges she was advised of her right to remain silent, that anything she said could be used in court, that she had the right to an attorney during questioning and, if she could not afford an attorney, one would be appointed for her before questioning.
Gomez cites no authority suggesting that the standard Miranda warnings are constitutionally infirm and something more was required. She merely cites portions of Miranda discussing the requirements of the Fifth Amendment. (E.g., Miranda, supra, 384 U.S. at pp. 473-474 ["Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he [or she] wishes to remain silent, the interrogation must cease" (fn. omitted)].) It is well established that "[a]n appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority. [Citations.]" (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685.) Absent authority or reasoned argument demonstrating error, Gomez's claim fails. (Cf. People v. Gurule (2002) 28 Cal.4th 557, 619.)
(c) Failure To Consider the Totality of the Circumstances
Gomez next asserts that the trial court failed to apply the constitutional "totality of the circumstances" standard in determining that her waiver of her Miranda rights was knowing, intelligent and voluntary. This standard, she argues, required the trial court "to consider all of the circumstances surrounding the interrogation process," and "not merely the first [six] minutes of the interrogation."
First, we note that Gomez's specific Miranda claim was that "[s]he was under the influence of morphine and methamphetamine" and "wasn't capable of giving a knowing and intelligent waiver of her rights." The trial court listened to the initial portion of her first interview, including the Miranda warnings, to verify Lieutenant Ruiz's testimony that Gomez was capable of understanding the warnings and waiving her rights.
Second, the court gave defense counsel the opportunity to bring to its attention any additional portion of the recorded interviews demonstrating that Gomez was incapable of a knowing and intelligent waiver of her rights. Trial counsel failed to bring any additional portions of the interviews to the court's attention. The same holds true on appeal—Gomez points to nothing in the record suggesting that the waiver of her Miranda rights was not knowing, intelligent, and voluntary. In other words, she has not established that absent any failure on the part of her trial counsel with respect to the Miranda motion fell below an objective standard of reasonableness, resulting in prejudice to her. (People v. Rices, supra, 4 Cal.5th at p. 80.)
(d) Prosecution's Failure To Prove a Valid Waiver
A defendant's waiver of her Miranda rights may be express or implied. (People v. Parker (2017) 2 Cal.5th 1184, 1216.) The existence of a valid waiver " 'must be determined on "the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." ' " (Ibid., quoting North Carolina v. Butler (1979) 441 U.S. 369, 374-375 [99 S.Ct. 1755, 60 L.Ed.2d 286].) As previously stated, "the prosecution bears the burden of establishing by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary under the totality of the circumstances of the interrogation." (People v. Linton, supra, 56 Cal.4th at p. 1171.)
Gomez asserts: (1) "The record does not reveal an express Miranda waiver"; (2) looking at the totality of the circumstances, the People failed to prove implied waiver by a preponderance of the evidence; and (3) "[t]he detectives used interrogation tactics which were disapproved in Miranda."
An express waiver of Gomez's Miranda rights is not audible on the recording of her first interview at the University of California, Irvine hospital. However, the recording shows that Gomez stated that she understood her rights; she had previously been arrested and read her Miranda rights at that time; and she spoke with Lieutenant Ruiz and Detective Gray, answering their questions and requesting that they contact her mother to let her know that Gomez was in the hospital. Substantial evidence supports finding that Gomez impliedly waived her Miranda rights. (People v. Krebs, supra, 8 Cal.5th at p. 299.)
As to point (3), Gomez made no Miranda claim in the trial court with respect to the tactics used by Lieutenant Ruiz and Detective Gray during the interviews. The claim thus is not cognizable on appeal. (People v. Tully, supra, 54 Cal.4th at p. 980; People v. Polk, supra, 190 Cal.App.4th at p. 1194.) Nor does Gomez establish ineffective assistance of counsel based on the failure to challenge the tactics used by the two officers. She cites various psychological interrogation techniques mentioned in Miranda and cites transcripts of several portions of the interviews. She does not explain, however, how these cited transcripts demonstrate Miranda violations. This falls far short of an "affirmative[ ] demonstrat[ion of] error through reasoned argument, citation to the appellate record, and discussion of legal authority." (Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at p. 685.)
Moreover, the portions of Miranda on which Gomez relies merely point out the types of psychological tactics the police use in interrogations; they do not bar the use of these tactics. (See, e.g., Miranda, supra, 384 U.S. at p. 450 [texts on interrogation tactics "stress that the major qualities an interrogator should possess are patience and perseverance"].) Gomez thus has not met her burden of demonstrating ineffective assistance of counsel. (People v. Rices, supra, 4 Cal.5th at p. 80.)
(e) Questioning in Violation of Gomez's Invocation of Her Right To Remain Silent
Gomez contends Lieutenant Ruiz and Detective Gray violated her Miranda rights several times when they continued to question her after she invoked her right to remain silent. Gomez did not raise this claim below.
The recording of the interview reveals that Gomez wanted to talk to Lazo, who was in the "hospital," i.e., the Los Angeles County Medical Center jail ward. At one point, she stated that she was ready to go to the hospital. After further conversation about Lazo, and reassurance by the officers that Lazo was going to be okay, Gomez stated that she was "just ready to go." One of the officers stated that if she was not going to talk to him, she should listen. He talked about the families of the victims and asked her to be an adult and explain what happened. Gomez suggested that she did not do anything and they should talk to Lazo. She did not know why the things the officers asked about had happened.
It is not clear from the recording that Gomez was invoking her right to remain silent, as opposed to indicating a desire to coordinate her story with Lazo and/or identify him as a better source of information, and there was no testimony on that issue. Given the absence of "a pure question of law on undisputed facts" (People v. Yeoman (2003) 31 Cal.4th 93, 118), Gomez's failure to make the claim below has forfeited the right to raise it on appeal. (People v. Tully, supra, 54 Cal.4th at p. 980; People v. Polk, supra, 190 Cal.App.4th at p. 1194.) Nor do the equivocal statements on which Gomez relies demonstrate a meritorious argument that she was questioned after invoking her right to remain silent, such that her counsel's failure to raise this claim constituted ineffective assistance of counsel (People v. Torres, supra, 25 Cal.App.5th at p. 173).
Gomez also contends that, for the same reasons that her convictions must be reversed due to Miranda violations, they must be reversed for due process violations. (See Berghuis v. Thompkins (2010) 560 U.S. 370, 385 [130 S.Ct. 2250, 176 L.Ed.2d 1098].) Inasmuch as we have rejected Gomez's Miranda claims, we must reject her due process claims as well.
G. The Trial Court Did Not Err When Sentencing Gomez on the Attempted Murder Convictions
The trial court sentenced Gomez to 15 years to life on each of her attempted murder convictions. Gomez argues that a sentence of 15 years to life was unauthorized under section 186.22, subdivision (b)(5), because attempted murder is not "a felony punishable by imprisonment in the state prison for life." Gomez is incorrect.
Section 664, subdivision (a), provides that the punishment for attempted willful, deliberate, and premeditated murder is "imprisonment in the state prison for life with the possibility of parole." Section 186.22, subdivision (b)(4), provides that "[a]ny person who is convicted of a felony enumerated in this paragraph 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, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of" that specified in other provisions of the Penal Code. Section 186.22, subdivision (b)(5), provides: "Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
Gomez relies on People v. Montes (2003) 31 Cal.4th 350 and People v. Jones (2009) 47 Cal.4th 566 to argue the trial court erroneously interpreted the applicable statutes. Montes addressed whether subdivision (b)(5) of section 186.22 applied "(a) if the defendant commits a felony which, together with the . . . section 12022.53, subdivision (d) . . . enhancement results in a life term, or (b) only if the defendant commits a felony that, by its own terms, provides for a life sentence." (Montes, supra, at p. 352.) The defendant in Montes was convicted of attempted murder, committed for the benefit of a criminal street gang, in which he intentionally discharged a firearm. The trial court sentenced him to the midterm of seven years for the attempted murder, plus a consecutive term of 25 years to life for the firearm use enhancement. (Id. at pp. 352-353.) The Supreme Court concluded that subdivision (b)(5) of section 186.22 did not apply; it "applies only where the underlying felony itself provides for a life sentence" (id. at p. 353), which attempted murder did not (see id. at pp. 358-359). Jones reiterated "that subdivision (b)(5) of section 186.22 'applies only where the felony by its own terms provides for a life sentence.' (Montes, supra, at p. 352.)" (Jones, supra, at p. 577.)
Gomez acknowledges that Montes stated that subdivision (b)(5) of section 186.22 "still has vitality where the defendant is convicted of attempted murder with premeditation. In this situation, section 186.22[, subdivision ](b)(5) raises the seven-year minimum eligible parole date (see § 3046, subd. (a)) to a 15-year minimum eligible parole date. [Citation.]" (People v. Montes, supra, 31 Cal.4th at p. 361, fn. 14.) Gomez argues, however, that "this dicta violates the express terms of section 186.22[, subdivision ](b)(5) because the commission of the 'felony'—attempted murder—is not 'punishable by imprisonment in the state prison for life' (§§ 186.22, subd. (b)(5), 664, subd. (a)[).]"
We disagree with Gomez's interpretation of the relevant statutes. The punishment prescribed for attempted willful, deliberate, and premeditated murder is "imprisonment in the state prison for life with the possibility of parole." (§ 664, subd. (a).) This felony, as opposed to attempted murder without premeditation, "by its own terms, provides for a life sentence." (People v. Montes, supra, 31 Cal.4th at pp. 352, 361, fn. 14.) Therefore, subdivision (b)(5) of section 186.22 applied, and the trial court properly sentenced Gomez to 15 years to life on her attempted willful, deliberate, and premeditated murder convictions.
H. Imposition of Fines and Assessments Absent a Finding of Ability To Pay
Finally, Gomez contends the trial court erred in imposing a $300 restitution fine (§ 1202.4, subd. (b)(1)); a $640 court operations assessment (§ 1465.8, subd. (a)(2)), and a $480 criminal conviction assessment (Gov. Code, § 70373) absent a finding of ability to pay pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157. The People argue that Gomez's failure to object below to the fines and assessments, or to raise the issue of inability to pay, caused her to forfeit any such argument on appeal.
The Courts of Appeal are divided on the issue of forfeiture in these circumstances. (Compare People v. Johnson (2019) 35 Cal.App.5th 134, 138 [no forfeiture] and People v. Castellano (2019) 33 Cal.App.5th 485, 489 [same], with People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [forfeiture] and People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155 [same].) We find it unnecessary to weigh in on this debate because in our view Dueñas was wrongly decided. (People v. Kingston (2019) 41 Cal.App.5th 272; see also People v. Caceres (2019) 39 Cal.App.5th 917.)
Other courts have also disagreed with Dueñas. (See People v. Petri (2020) ___ Cal.App.5th ___, ___ [2020 WL 614895 at p. *5]; People v. Allen (2019) 41 Cal.App.5th 312, 326; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068; People v. Kopp (2019) 38 Cal.App.5th 47, 93-98, review granted Nov. 13, 2019, S257844.)
In Kingston, we agreed with the opinion of our colleagues in Division Two of this district in People v. Hicks, supra, 40 Cal.App.5th 320 that, contrary to the analysis in Dueñas, "due process precludes a court from imposing fines and assessments only if to do so would deny the defendant access to the courts or result in the defendant's incarceration." (People v. Kingston, supra, 41 Cal.App.5th at p. 279, citing Hicks, supra, at pp. 325-326.) Here, the "imposition of the [restitution fine] and fees in no way interfered with [Gomez's] right to present a defense at trial or to challenge the trial court's rulings on appeal . . . . And their imposition did not result in [Gomez's] incarceration." (Kingston, supra, at p. 281.) Consequently, the trial court did not violate Gomez's due process rights by imposing the restitution fine and assessments without first ascertaining her ability to pay them.
DISPOSITION
Gomez's convictions on counts 2, 4, 8, and 14, and the accompanying special findings on those counts, are reversed. In all other respects, the judgment of conviction is affirmed.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
ROTHSCHILD, P. J.
JOHNSON, J.