People v. Torres CA4/1

Filed 6/5/14 P. v. Torres CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D065280

Plaintiff and Respondent,

v. (Super. Ct. No. RIF1103836)

JOSEPH DOMINIC TORRES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Elisabeth

Sichel, Judge. Affirmed.

George L. Schraer for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina and

Sean M. Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
 I.

INTRODUCTION

A jury found Joseph Dominic Torres guilty of robbery (Pen. Code, § 211)1 (count

1) and criminal street gang activity (§ 186.22, subd. (a)) (count 2). With respect to count

1, the jury found that Torres used a deadly or dangerous weapon in the commission of the

offense (§ 12022, subd. (b)(1)), and that he committed the offense for the benefit of, at

the direction of, or in association with, a criminal street gang with the specific intent to

promote, further, or assist the criminal conduct of gang members (§ 186.22, subd. (b)).

The trial court sentenced Torres to 13 years in prison, consisting of the lower term of two

years on count 1, plus an additional consecutive one year for the deadly or dangerous

weapon enhancement (§ 12022, subd. (b)(1)), plus an additional consecutive 10 years for

the gang enhancement (§ 186.22, subd. (b)). The court stayed imposition of sentence on

count 2 pursuant to section 654.

On appeal, Torres claims that the trial court erred in denying a motion to exclude a

statement that he gave to police on the night of his arrest, on the ground that he did not

waive his Miranda2 rights prior to giving the statement. Torres also claims that the

deadly or dangerous weapon sentence enhancement must be stricken because the record

does not contain substantial evidence that the BB gun that he used to commit the robbery

constituted a "a deadly or dangerous weapon." (§ 12022, subd. (b)(1).)

1 Unless otherwise specified, all subsequent statutory references are to the Penal
Code.

2 (Miranda v. Arizona (1966) 384 U.S. 436.)
2
 We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The People's evidence

1. The charged offenses

On June 17, 2011, at approximately 10:00 p.m., Torres approached victim Andrew

Cortez in a dark alley behind an apartment complex in Corona. The complex is located

in the territory of the Corona Visioneros Locos (hereinafter CVL) criminal street gang.

Torres's friend, and fellow CVL gang member, Vincent Maciel, stood approximately

eight feet behind Torres.

Torres asked Cortez where he was from. Cortez responded that he was from Mira

Lorna, and put his hand out for a handshake. Torres slapped Cortez's hand down,

mumbled his name, and said that he was from the "Corona Visioneros." As Torres

proclaimed his gang affiliation, he took out what appeared to be a large black handgun3

and placed the gun against Cortez's ribs. Torres asked Cortez what was in his pockets.

Cortez initially denied having anything in his pockets, which caused Torres to push the

gun further into Cortez's ribs. Cortez then admitted that he had $40, which he handed to

Torres. Torres and Maciel began to walk away, and started running after they saw Cortez

take out his phone. Cortez called the police. An officer responded to the scene of the

3 The People presented evidence at trial that the gun was actually a BB gun.
3
robbery and spoke with Cortez. Cortez provided the officer with a description of the

robber and his accomplice, including the clothing that the two had been wearing.

2. Torres's arrest

At approximately 10:50 that same evening, police officers went to Maciel's

apartment and found Torres hiding underneath a blanket behind a couch. He had a $20

bill, a $5 bill, and several $1 bills in his pockets. Near Torres was a pile of clothes

similar to those worn by the robber. Officers searched a closet and found an unloaded

semiautomatic BB gun. Maciel and two documented CVL gang members were also in

the apartment.

3. Torres's police interview

Corporal Jason Waldon of the Corona Police Department interviewed Torres

shortly after his arrest.4 At the outset of the interview, Waldon asked Torres various

questions about his background, including how old he was. Torres stated that he was 15

years old. After being read his Miranda rights, Torres stated that he understood the

rights.5

During the interview, Torres admitted having committed crimes with Maciel,

including the charged robbery. Torres initially claimed that he and Maciel committed the

robbery because they "were bored," and later stated that he "needed money." Torres also

admitted using a BB gun to commit the robbery. Torres stated that if he and Maciel had

4 A second officer joined the interview while it was in progress.

5 We discuss the facts surrounding the Miranda admonishment in detail in part
III.A., post.
4
attempted to rob someone who had a gun—such as a police officer—Maciel would have

stabbed the officer. After initially denying being a member of a gang or having a gang

moniker, Torres's implicitly admitted that he was a "gangbanger."6

4. Gang testimony

Waldon also testified at trial as a gang expert. Among other topics, Waldon

testified that he believed that Torres and Maciel were active CVL gang members. In

addition, Corporal Waldon testified that in his opinion, a hypothetical robbery based on

the facts of the robbery in this case would have been committed for the benefit of, at the

direction of, or in association with, CVL.

B. The defense

Torres's mother testified that she had not seen Torres with any tattoos and denied

having seen any gang graffiti or drawings in Torres's bedroom. Torres's mother also

stated that she was not aware that Torres was socializing with people who might be gang

members.

6 Specifically, during the interview, the following colloquy occurred:
"[Torres]: [Y]ou don't have [a] mind like me.
"[Officer]: What do you mean I don't have a mind—
"[Torres]: You don't have a mind like a gangbanger.
"[Officer]: How do you know that?
"[Torres]: 'Cause obviously you don't. You're working here. If you're
doing this, you don't have a mind like us."
5
 III.

DISCUSSION

A. The trial court did not err in denying Torres's motion to exclude his statement to
the police on the ground that he did not waive his Miranda rights before giving the
statement

Torres claims that the trial court erred in denying his motion to exclude his

statement to the police on the ground that he did not waive his Miranda rights prior to

giving the statement.

1. Governing law

a. General principles of law governing Miranda claims

In People v. Williams (2010) 49 Cal.4th 405, 425 (Williams) the California

Supreme Court provided a summary of the law governing Miranda claims:

"The [United States Supreme Court] has stated in summary that to
counteract the coercive pressure inherent in custodial surroundings,
'Miranda announced that police officers must warn a suspect prior to
questioning that he has a right to remain silent, and a right to the
presence of an attorney. [Citation.] . . . Critically, however, a
suspect can waive these rights. [Citation.] To establish a valid
waiver, the State must show that the waiver was knowing,
intelligent, and voluntary under the "high standar[d] of proof for the
waiver of constitutional rights [set forth in] Johnson v. Zerbst [1938]
304 U.S. 458." ' [Citation.]

" 'The prosecution bears the burden of demonstrating the validity of
the defendant's waiver by a preponderance of the evidence.'
[Citations.] In addition, '[a]lthough there is a threshold presumption
against finding a waiver of Miranda rights [citation], ultimately the
question becomes whether the Miranda waiver was [voluntary,]
knowing [,] and intelligent under the totality of the circumstances
surrounding the interrogation.' [Citation.] On appeal, we conduct an
independent review of the trial court's legal determination and rely
upon the trial court's findings on disputed facts if supported by
substantial evidence. [Citation.]"

6
 b. A juvenile's waiver of Miranda rights

"When a juvenile's waiver is at issue, consideration must be given to factors such

as 'the juvenile's age, experience, education, background, and intelligence, and . . .

whether he has the capacity to understand the warnings given him, the nature of his Fifth

Amendment rights, and the consequences of waiving those rights.' [Citation.]" (People

v. Nelson (2012) 53 Cal.4th 367, 375 (Nelson).)

In Nelson, our Supreme Court concluded that there was "no dispute[7] that [a

juvenile] defendant was properly questioned" (Nelson, supra, 53 Cal.4th at p. 375), after

he implicitly waived his Miranda rights under the following circumstances:

" 'At the time of his interview, Nelson was 15 years old. He had two
prior arrests, the most recent resulting in a several month stay in
juvenile hall. Before Nelson was questioned, the detective advised
him they needed to go through the "formality" of a Miranda right
advisement. Nelson agreed he had heard the warning before and
specifically told the detective he understood he had the right to
remain silent. Nelson said he understood he could stop the detective
at any time if he did not understand what rights he was waiving. His
voluntary responses to the deputies' subsequent questions indicate he
understood his Miranda rights and waived them.' "

The Nelson court stated, "Although [Nelson] 'did not expressly waive his Miranda

rights, he did so implicitly by willingly answering questions after acknowledging that he

understood those rights.' [Citation.]" (Nelson, supra, 53 Cal.4th at p. 375.)

7 The Nelson court noted that the defendant conceded the validity of his waiver on
appeal. (Nelson, supra, 53 Cal.4th at p. 375.)
7
 c. Berghuis v. Thompkins (2010) 560 U.S. 370

In Berghuis v. Thompkins, supra, 560 U.S. at page 384 (Berghuis), the United

States Supreme Court held, "Where the prosecution shows that a Miranda warning was

given and that it was understood by the accused, an accused's uncoerced statement

establishes an implied waiver of the right to remain silent."

The Berghuis court acknowledged that, "Some language in Miranda could be read

to indicate that waivers are difficult to establish absent an explicit written waiver or a

formal, express oral statement." (Berghuis, supra, 560 U.S. at. p. 383.) However, the

Berghuis court explained, "The course of decisions since Miranda, informed by the

application of Miranda warnings in the whole course of law enforcement, demonstrates

that waivers can be established even absent formal or express statements of waiver that

would be expected in, say, a judicial hearing to determine if a guilty plea has been

properly entered." (Ibid.)

The Berghuis court explained that prior case law had established that courts may

find an implied waiver of Miranda rights:

"One of the first cases to decide the meaning and import of Miranda
with respect to the question of waiver was North Carolina v. Butler
[(1979) 441 U.S. 369 (Butler)]. The Butler Court, after discussing
some of the problems created by the language in Miranda,
established certain important propositions. Butler interpreted the
Miranda language concerning the 'heavy burden' to show waiver,
384 U.S., at 475, in accord with usual principles of determining
waiver, which can include waiver implied from all the
circumstances. See Butler, supra, at 373, 376. And in a later case,
the Court stated that this 'heavy burden' is not more than the burden
to establish waiver by a preponderance of the evidence. Colorado v.
Connelly [1986] 479 U.S. 157, 168.

8
 "The prosecution therefore does not need to show that a waiver of
Miranda rights was express. An 'implicit waiver' of the 'right to
remain silent' is sufficient to admit a suspect's statement into
evidence. Butler, supra, at 376. Butler made clear that a waiver of
Miranda rights may be implied through 'the defendant's silence,
coupled with an understanding of his rights and a course of conduct
indicating waiver.' 441 U.S., at 373. The Court in Butler therefore
'retreated' from the 'language and tenor of the Miranda opinion,'
which 'suggested that the Court would require that a waiver . . . be
"specifically made." ' Connecticut v. Barrett [(1987)] 479 U.S. 523,
531–532 (Brennan, J., concurring in judgment)." (Berghuis, supra,
560 U.S. at. pp. 383-384.)

The Berghuis court also emphasized that the key to finding an implied waiver of

Miranda rights where a Miranda warning has been given is evidence that the accused

understood those rights.

"If the State establishes that a Miranda warning was given and the
accused made an uncoerced statement, this showing, standing alone,
is insufficient to demonstrate 'a valid waiver' of Miranda rights.
Miranda, supra, at 475. The prosecution must make the additional
showing that the accused understood these rights." (Berghuis, supra,
560 U.S. at. p. 384.)

The Berghuis court summarized its holding by stating, "In sum, a suspect who has

received and understood the Miranda warnings, and has not invoked his Miranda rights,

waives the right to remain silent by making an uncoerced statement to the police."

(Berghuis, supra, 560 U.S. at pp. 388-389.)

Applying this law, the Berghuis court concluded that, "The record in this case

shows that Thompkins waived his right to remain silent." (Berghuis, supra, 560 U.S. at

p. 385.) In reaching this conclusion, the court reasoned in part:

"There is no basis in this case to conclude that he did not understand
his rights; and on these facts it follows that he chose not to invoke or
rely on those rights when he did speak. First, there is no contention

9
 that Thompkins did not understand his rights; and from this it
follows that he knew what he gave up when he spoke. [Citation.]
There was more than enough evidence in the record to conclude that
Thompkins understood his Miranda rights. Thompkins received a
written copy of the Miranda warnings; Detective Helgert determined
that Thompkins could read and understand English; and Thompkins
was given time to read the warnings. Thompkins, furthermore, read
aloud the fifth warning, which stated that 'you have the right to
decide at any time before or during questioning to use your right to
remain silent and your right to talk with a lawyer while you are
being questioned.' . . . He was thus aware that his right to remain
silent would not dissipate after a certain amount of time and that
police would have to honor his right to be silent and his right to
counsel during the whole course of interrogation. Those rights, the
warning made clear, could be asserted at any time. Helgert,
moreover, read the warnings aloud.

"Second, Thompkins's answer to Detective Helgert's question about
whether Thompkins prayed to God for forgiveness for shooting the
victim is a 'course of conduct indicating waiver' of the right to
remain silent. [Citation.] If Thompkins wanted to remain silent, he
could have said nothing in response to Helgert's questions, or he
could have unambiguously invoked his Miranda rights and ended
the interrogation. The fact that Thompkins made a statement about
three hours after receiving a Miranda warning does not overcome
the fact that he engaged in a course of conduct indicating waiver.
Police are not required to rewarn suspects from time to time.
Thompkins's answer to Helgert's question about praying to God for
forgiveness for shooting the victim was sufficient to show a course
of conduct indicating waiver. This is confirmed by the fact that
before then Thompkins had given sporadic answers to questions
throughout the interrogation.

"Third, there is no evidence that Thompkins's statement was
coerced." (Berghuis, supra, 560 U.S. at pp. 385-386.)

2. Factual and procedural background

Prior to trial, the People filed a trial brief and an exhibit list in which they

indicated that they intended to introduce in evidence a recorded statement that Torres

gave to the police on the night of charged offenses.

10
 During a pretrial hearing, defense counsel requested a hearing pursuant to

Evidence Code section 4028 "based upon Miranda." The court indicated that it would

attempt to hold the hearing the following day.

The following day, the court held the Evidence Code section 402 hearing for the

purpose of determining the admissibility of Torres's statement to Corporal Waldon. The

hearing began with defense counsel calling Torres as a witness.9 Torres testified that at

the time of the police interview he was 15 years old, in 11th grade, and attending summer

school. Torres explained that he was attending summer school because he was missing

credits, since he had been "moving from school to school." According to Torres, he

"would get decent grades, like Bs and Cs." Torres agreed with defense counsel that his

grade point average for the prior year was probably "a little bit higher" than a 2.0. Torres

also explained that he had had a problem focusing in school and that he had been given

medication for the problem when he was "little."

Torres testified that on the night in question he was under the influence of

marijuana and methamphetamine and that he did not remember being read his Miranda

8 Evidence Code section 402, subdivision (b) provides, "The court may hear and
determine the question of the admissibility of evidence out of the presence or hearing of
the jury; but in a criminal action, the court shall hear and determine the question of the
admissibility of a confession or admission of the defendant out of the presence and
hearing of the jury if any party so requests."

9 At the outset of the hearing, the prosecutor stated, "Your Honor, it's my
understanding that [the] defense is going to call the defendant to the stand in order to
establish an issue with regards to the Miranda warnings. I'm happy to call Officer
Waldon, but I think that it would be better if I called him second." Defense counsel
responded, "It doesn't matter to me how we go." The court then permitted defense
counsel to call Torres to the stand.
11
rights before giving a statement to the police. Torres also testified that he had never been

arrested before. However, when asked by defense counsel, "Do you know what it means

when somebody tells you that you have a right to have an attorney present?" Torres

responded, "Yeah." When defense counsel showed Torres a transcript of his interview

with the police, which contained a Miranda advisement, the following colloquy occurred:

"[Defense counsel]: You see where it says 'Yes' after that
advisement?

"[Torres]: Yeah.

"[Defense counsel]: Now . . . why did you tell the officer 'Yes' or
'Yeah'?

"[Torres]: I'm not sure. . . . I can't recall even that conversation.

"[Defense counsel]: Were you saying yeah because you understood
what he said or yeah to make him happy?

"[Torres]: Just like yeah to get the conversation over with, to get it
through."

Torres also explained that he "wasn't really paying attention to what [Corporal

Waldon] said," when Corporal Waldon was advising him of his right to right to remain

silent.

On cross-examination, Torres testified that English is his first language, and that

he grew up learning to read and write in English. Torres admitted that he understood

some of Corporal Waldon's questions during the interview, but stated that he did not

understand the Miranda admonishment.

After Torres testified, defense counsel indicated that he would next call Corporal

Waldon as a witness. The following colloquy then occurred:

12
 "[The court]: I'm a little bit confused because I thought the People
have the burden of proving that Miranda was complied with. Is that
inaccurate?

"[The prosecutor]: No. I think that's correct, your Honor. I just
didn't know what [the] defense was saying with regards to that
because he wasn't disputing that Miranda was given. He was saying
the capacity to waive was not present. And so I just—

"[The court]: I see. Okay. So you don't know. He is conceding the
issue that the Miranda warning was actually given. The issue is
whether or not the defendant had the capacity to understand what he
was doing.

"[Defense counsel]: Yes."

The court then permitted defense counsel to call Corporal Waldon as a witness.

Waldon testified that he knew that Torres was about 15 years old when he interviewed

him. Waldon was also aware that Torres had not previously been arrested. According to

Waldon, Torres appeared tired and his eyes were slightly red, but he did not appear

fidgety and his pupils looked normal.

Corporal Waldon testified that he read Torres his Miranda rights from a form, and

that he paused between reading each right. The court then viewed the first few minutes

of a video recording of Corporal Waldon's interview of Torres, during which the

following colloquy occurs:

"[Waldon]: I am going to read you your rights. If you have any
questions while we're going through this just feel free to let me know
anytime, okay? Okay?

"[Torres]: All right.

"[Waldon]: All right. You have the right to remain silent. Anything
you say can and may be used against you in a court of law. You

13
 have the right to talk to a lawyer and have him present with you
while you are being questioned. If you cannot afford to hire a
lawyer, one will be appointed to represent you before any
questioning if you wish. Do you understand each of these rights that
I explained to you? Yes or no?

"[Torres]: Yeah."10

Defense counsel asked Corporal Waldon whether "during the end of this

conversation," he had asked Torres to initial a form. Waldon explained that he had

Torres "initial [a] form acknowledging his rights I read to him prior to asking

questions."11

On cross-examination, Corporal Waldon testified that he believed Torres's

responses to his questions were clear, stating, "It seemed to me by his responses that he

understood the questions being that his answers somehow reflected the question I was

asking." Waldon also explained that when he asked Torres to initial the admonishment

form, he also asked Torres whether he had understood the rights that Waldon had read to

him. Torres responded "yeah," and Waldon indicated Torres's response on the

admonishment form.

After Corporal Waldon testified, the court admitted the video recording of the

interview in evidence.

10 The video recording of the interview is in the record on appeal and has been
transmitted to this court.

11 The admonishment form is also in the record on appeal and has been transmitted
to this court.
14
 The People also offered the written Miranda admonishment form in evidence. The

form contains standard Miranda admonishments and states, "Do you understand each of

these rights that I have explained to you?" On a line next to this question is the

handwritten notation "Yea." On the following line, the form states, "Having these rights

in mind, do you wish to talk to us now?" Next to this question are the initials, "JT." At

the bottom of the form, Torres printed and signed his name. The court reviewed the form

and asked Corporal Waldon whether Torres had initialed the form and signed it.

Corporal Waldon responded in the affirmative.

After receiving evidence, the court heard argument from counsel. Defense

counsel argued that Torres did not knowingly and intelligently waive his Miranda rights.

Counsel emphasized that Torres was just 15 years of age at the time of the interview, that

he had never been arrested before, and that he had been using drugs at the time. Counsel

argued further, "I think you have a child here who was basically acquiescing into [sic] the

officer's statement that yeah, he kind of understood the Miranda warnings even though I

don't think he actually understood them."

The prosecutor noted that Torres was in 11th grade and that English was his first

language. The prosecutor argued further:

"The officer asked him, as I explain these things to you, if there's
anything you don't understand, stop me. And then he began to read
the rights. As the Court heard, he paused for long periods between
each right. [¶] And after he read the rights, he asked him, [']Do you
understand those rights that I explained to you? Yes or no.['] And
Mr. Torres said, 'Yea[h]' and began talking to him and having a very
long conversation. At no point invoking. In fact, later in the
interview when the officer gave him the written copy of it, he . . .
had an opportunity to look at it, initial and sign, which the Court

15
 knows from the defendant sitting in court reading the first three
pages of the transcript that he can read. He's got over a 2.0 G.P.A."

After hearing argument from counsel, the trial court ruled that "the standard for

Miranda has been met." The court reasoned in part:

"I really was most impressed by watching the audio [sic]. The
defendant talked sense. He didn't ramble when he was asked a
question. He did not appear to be under the influence of
methamphetamine, at least none of the classic signs. He wasn't
twitching. There was no residue on his mouth that I could observe.
He didn't seem to have a dry mouth. "

The court also stated:

"[H]e answered every question making sense. And not only that, he
corrected the officer when the officer initially asked him, you live
over somewhere other [sic]. He said no, I live over here. So clearly
he was able to follow the questions . . . .

"It was . . . he was cold, and he did appear to be drowsy, but looking
on the tape, I mean he clearly understood what was going on. He
understood what the officer was telling him enough to the point
where he could correct the officer.

"He's obviously of at least average or better than average
intelligence. He said he's had a lot of trouble and gone to a lot of
schools, but he's still getting Bs and Cs, and he said he was only
going to summer school because he was missing credits from
moving around so much. Not because he flunked anything.

"And so I just – he wasn't on meth that night or he's taken it for so
long that . . . it takes a lot more for him to have the same impact it
would on someone else. He was tracking. He was tracking certainly
well enough to understand the nature of his rights. I can't find there
was any violation of Miranda. . . . I cannot make a finding that the
defendant did not understand the nature of his rights or what he was
being told. I find that he clearly did from my observation of the
video. That's why I wanted to see it because in these cases, just
hearing the bare words doesn't mean—if he's slurring and falling out
of his chair, that's one thing. He was sitting there. He wasn't
looking the officer in the eye, but he didn't do that at any time

16
 particularly. He was looking around and yawning and everything
else. His questions [sic] made sense."

3. Application

Torres claims that the trial court should have excluded his statement to the police

because "the record does not show either an express or implied waiver of Miranda

rights."12 We disagree.

The People presented substantial evidence that Corporal Waldon read a full and

proper Miranda admonishment to Torres, that Torres understood the admonishment, and

that Torres provided an uncoerced13 statement to Waldon immediately after being

advised of his rights. These facts strongly support a finding of waiver. (See Berghuis,

supra, 560 U.S. at pp. 388-389 ["In sum, a suspect who has received and understood the

Miranda warnings, and has not invoked his Miranda rights, waives the right to remain

silent by making an uncoerced statement to the police"]; Nelson, supra, 53 Cal.4th at p.

375 ["[15-year-old defendant's] voluntary responses to the deputies' subsequent questions

indicate he understood his Miranda rights and waived them"]; People v. Lessie (2010) 47

12 Torres acknowledges that "[a]t the hearing in the trial court, appellant did not
expressly state that he was seeking to have the pretrial statement excluded on the ground
of the lack of wavier of Miranda rights. Instead, defense counsel characterized the
Miranda issues as being the lack of understanding of the Miranda rights and the lack of
capacity to waive those rights."
We assume for purposes of this decision that Torres may raise on appeal his
contention that he did not waive his Miranda rights, notwithstanding that he pursued a
different theory of exclusion premised on Miranda in the trial court. (But see People v.
Polk (2010) 190 Cal.App.4th 1183, 1194 [defendant forfeited objection to substantive
adequacy of Miranda warnings although she had raised other objections based on
Miranda in trial court].)

13 Torres does not contend that his statement was coerced.
17
Cal.4th 1152, 1169 (Lessie) ["While [16-year-old] defendant did not expressly waive his

Miranda rights, he did so implicitly by willingly answering questions after

acknowledging that he understood those rights"].)

Although Torres does not attempt to distinguish Berghuis on appeal,14 he does

stress that he was just 15 years old at the time of the police interview and that he had

never previously been arrested.15 While Torres is correct that such circumstances must

be considered (Nelson, supra, 53 Cal.4th at p. 375), they did not require that his statement

be excluded. With respect to Torres's age, the California Supreme Court has found

implied Miranda waivers with respect to defendants of a similar age. (See ibid.; Lessie,

supra, 47 Cal.4th at p. 1169.) While Torres's lack of prior arrests may demonstrate an

unfamiliarity with Miranda rights, Torres expressly stated during the interview that he

understood his rights, and he acknowledged at the hearing that he understood the

meaning of the "right to have an attorney present."

14 Neither Torres nor the People cited Berghuis in their briefing on appeal.

15 Torres also relies on a 1981 opinion of the Connecticut Supreme Court, State v.
Wilson (1981) 183 Conn. 280, 285 (Wilson), in which the court concluded that a
defendant had not knowingly and intelligently waived his Miranda rights. The Wilson
court noted that the State presented evidence that the defendant had made an inculpatory
statement to a police detective after the detective "read[] [the defendant] the entire litany
of rights, . . . asked the defendant if he understood[,] and the defendant replied simply,
'Yes, I do.' " (Wilson, supra, at p. 285.) In light of the subsequent United States Supreme
Court decision in Berghuis, we decline to follow Wilson. (See Berghuis, supra, 560 U.S.
at p. 384 ["Where the prosecution shows that a Miranda warning was given and that it
was understood by the accused, an accused's uncoerced statement establishes an implied
waiver of the right to remain silent"].)
18
 In considering the defendant's education, background, and intelligence, the record

contains evidence that Torres was in summer school and had achieved passing grades

during the prior school year. The trial court reasonably found him to be of "at least

average or better than average intelligence." (See Lessie, supra, 47 Cal.4th at p. 1169

["Defendant was, at the time of his interrogation, 16 years old and, while no longer in

school, had completed the 10th grade and held jobs in retail stores"].) In addition, while

Torres contended in the trial court that his capacity to understand the Miranda warnings

was impaired by his drug use, there is substantial evidence in the record to support the

trial court's rejection of this contention.

We see nothing in the "totality of the circumstances surrounding the interrogation"

(Williams, supra, 49 Cal.4th at p. 425) that would undermine the conclusion that Torres

"implicitly" waived his Miranda rights "by willingly answering questions after

acknowledging that he understood those rights." (Lessie, supra, 47 Cal.4th at p. 1169.)

A review of the video recording of the interview suggests that Torres was willing to

speak with the police, was relatively articulate and responded appropriately to

questioning. Torres did not request to speak with a parent or other authority figure at any

time. (Compare with Lessie, supra, at pp. 1158, 1169 [finding 16-year-old defendant

implicitly waived Miranda rights notwithstanding the fact he asked to speak with his

father at outset of interrogation].) Finally, after speaking freely with the officers, Torres,

without hesitation, signed a waiver form at the end of the interview in which he indicated

both that he understood his Miranda rights and that, having such rights in mind, he

wished to speak with the officers. (Compare with Berghuis, supra, at p. 375 [finding

19
implied waiver despite the fact defendant was largely silent through the first two hours

and 45 minutes of the interrogation and declined to sign a form indicating that he

understood his Miranda rights].)

In short, as in Lessie, "Nothing in this background, or in the transcript of

defendant's interrogation, suggests his decision to waive his Miranda rights was other

than knowing and voluntary." (Lessie, supra, 47 Cal.4th at p. 1169.) Accordingly, we

conclude the trial court did not err in denying Torres's motion to exclude his statement to

the police on the ground that he did not knowingly and intelligently waive his Miranda

rights before giving the statement.

B. There is substantial evidence to support the jury's finding that Torres used a
deadly or dangerous weapon during the course of the robbery

Torres claims that the sentence enhancement for use of a deadly or dangerous

weapon (§ 12022, subd. (b)(1)) must be stricken because the record does not contain

substantial evidence that he used a deadly or dangerous weapon during the robbery.

Specifically, Torres claims that an unloaded BB gun is not a deadly or dangerous weapon

and that the evidence demonstrates that he used an unloaded BB gun during the robbery.

We need not consider whether an unloaded BB gun may be a deadly or dangerous

weapon, because the evidence in the record does not demonstrate that the BB gun that

Torres used was unloaded.

1. Standard of Review

In In re Bartholomew D. (2005) 131 Cal.App.4th 317, 322, the court outlined the

standard of review to be applied to a claim that the record does not contain substantial

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evidence to support a finding that the defendant used a deadly or dangerous weapon

during commission of the offense (§ 12022, subd. (b)(1)):

"When a defendant claims insufficient evidence to support a finding,
the appellate court 'must review the whole record in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.' [Citation.] We
presume the existence of every fact the trier of fact could reasonably
deduce from the evidence. [Citation.]" (In re Bartholomew D.,
supra, at p. 322.)

2. Governing law

Section 12022, subdivision (b)(1) provides in relevant part, "A person who

personally uses a deadly or dangerous weapon in the commission of a felony or attempted

felony shall be punished by an additional and consecutive term of imprisonment in the

state prison for one year . . . ."

"A BB gun or pellet gun . . . is a 'dangerous weapon' as the term is used in section

12022, subdivision (b). (In re Bartholomew D.[, supra,] 131 Cal.App.4th [at pp. 325-

326] [pellet guns have an inherent capacity for physical injury and are dangerous

weapons under enhancement statute]; People v. Montalvo (1981) 117 Cal.App.3d 790,

797 [pellet gun is 'dangerous weapon' as term used in § 12022, subd. (b)].)" (People v.

Dixon (2007) 153 Cal.App.4th 985, 1001; see also e.g. People v. Schaefer (1993) 18

Cal.App.4th 950, 951 ["a pellet gun [is] a deadly or dangerous weapon within the

meaning of Penal Code section 12022, subdivision (b)"].)

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 3. Application

Torres concedes on appeal that he used a BB gun during the commission of the

robbery. Further, in his brief, Torres "emphasizes that he is not arguing that the

prosecution must affirmatively prove that a BB gun which the defendant used during the

commission of the crime is loaded."16 However, he argues that "when the evidence

affirmatively shows that the BB gun the defendant used in the commission of the crime

[was] unloaded, and when the defendant does not use the gun as a bludgeon, the

defendant's conduct does not amount to use of a deadly and dangerous weapon with the

meaning of section 12022, subdivision (b)." (Italics added.)

In none of the cases cited above stating that "[a] BB gun or pellet gun is . . . a

'dangerous weapon' as the term is used in section 12022, [subdivision] (b)" (People v.

Dixon, supra, 153 Cal.App.4th at p. 1001) has any court suggested that a BB gun ceases

to be a dangerous weapon when it is unloaded. On the contrary, the case law suggests

that no such evidence is required. (See In re Bartholomew D., supra, 131 Cal.App.4th at

p. 327 ["A 'true' finding under section 12022 does not require that the weapon necessarily

operated"]; People v. Dixon, supra, 153 Cal.App.4th at p. 1001 ["The guns used in the

robbery were never found, and the victims, who were unfamiliar with guns, could only

say that the robbers both had what appeared to be guns"]; accord People v.

Lochtefeld (2000) 77 Cal.App.4th 533, 539 ["even an unloaded gun—a large metal

16 Similarly, in his reply brief, Torres argues, "We should presume that a BB gun is
operable and loaded and therefore capable of performing its ordinary function."
22
object—may be used as a bludgeon, and 'it is at least a "dangerous weapon" '

[citation]"].)17

Even assuming, strictly for the sake of this opinion, that Torres is correct that a

sentence enhancement under section 12022, subdivision (b)(1) is improper when the

evidence "affirmatively shows" that the defendant used an unloaded BB gun and the

defendant did not use the gun as a bludgeon, the evidence in this case does not

"affirmatively show[]" that the BB gun that Torres used was unloaded at the time he used

it to commit the robbery. The only evidence that Torres cites in his brief with respect to

this issue is evidence that that when police found the BB gun in Maciel's apartment after

the robbery, the BB gun was unloaded. While Torres asserts that "the evidence plainly

shows that the BB gun [was] unloaded," evidence that a BB gun was found unloaded

some time after its use in the commission of crime does not establish that the BB gun was

unloaded during the commission of the crime.18 The factual predicate for Torres's legal

argument thus fails.

17 With respect to the BB gun at issue in this case, during closing argument, the
prosecutor stated, "And when it's not loaded, people can use it with blunt force. You can
hit somebody with it. And I would suggest to you when you go back to the deliberation
room to hold that BB gun because it's surprisingly heavy even without the [carbon
dioxide] cartridge or BBs in it, it's still a sharp project. Yes, it's plastic but it's hard
plastic; that if it is used to hit somebody, poke them in the eye, it could cause serious
bodily injury . . . ."
Torres does not dispute that characterization on appeal, and has not transmitted the
BB gun as an exhibit to this court.

18 The exact timing of when the robbery occurred and when the officers found the
BB gun is not clear from the record. However, what is clear is that some appreciable
amount of time passed between the two events during which the BB gun could have been
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 Accordingly, we reject Torres's argument that there is not substantial evidence in

the record to support the jury's finding that Torres used a deadly or dangerous weapon

during the course of the robbery.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

unloaded. Cortez testified that he telephoned the police immediately after the robbery.
Officer Jason Gardner of the Corona Police Department testified that he received a radio
dispatch call at "about 10:30" on the night of the incident, and that he later came into
contact with Cortez. Corporal Waldon testified that he heard a radio dispatch call about
the robbery at "about 10:50." Waldon testified that he and several officers conducted a
search of the streets near Maciel's apartment before going up to the apartment. Once at
the apartment, the officers waited "two or three minutes" before knocking on the door to
the apartment.
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