Filed 3/28/22 P. v. Arellano CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078749
Plaintiff and Respondent,
(Super. Ct. No. F14900297)
v.
ALEJANDRO ARELLANO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez, Amanda D. Cary and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
INTRODUCTION
A jury convicted Alejandro Arellano (appellant) of attempted murder (Pen. Code,
§§ 664/187)1 and found true an enhancement for personal and intentional discharge of a
firearm causing great bodily injury (§ 12022.53, subd. (d)). The court sentenced
appellant to 25 years to life plus five years in state prison.
On appeal, appellant contends the trial court should have granted his motion to
exclude his custodial interview, alleging his waiver of his Miranda2 rights was not
knowing, intelligent, and voluntary because he was under the influence of
methamphetamine and other drugs. We conclude the evidence established appellant was
able to understand his rights and execute a valid waiver. Appellant also claims the trial
court was unaware of its discretion to substitute the section 12022.53, subdivision (d)
enhancement with a lesser enhancement within the same section. We agree, and remand
the matter for the trial court to exercise its discretion in accordance with People v. Tirado
(2022) 12 Cal.5th 688.
PROCEDURAL BACKGROUND
The Fresno County District Attorney’s Office filed a first amended information
charging appellant with premeditated attempted murder (§§ 187, subd. (a), 664,
subd. (a)), and alleging enhancements for personal and intentional discharge of a firearm
causing great bodily injury (§ 12022.53, subd. (d)) and personal infliction of great bodily
injury (§ 12022.7, subd. (a)). At trial, the jury found appellant guilty of attempted murder
and found true the firearm and great bodily injury enhancements but found not true the
allegation that the attempted murder was done willfully and with premeditation and
deliberation.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Miranda v. Arizona (1966) 384 U.S. 436.
2.
At sentencing, appellant asked the trial court to exercise its discretion to strike the
section 12022.53, subdivision (d) firearm enhancement pursuant to section 12022.53,
subdivision (h). The court declined to strike the enhancement. Appellant did not ask the
court to impose a lesser enhancement, and the court did not discuss it as an option.
FACTUAL BACKGROUND
On January 8, 2014, around 1:00 p.m., Luis Perez went to a parking lot behind a
market to join a group of friends to barbecue and drink beer. Appellant arrived after
Perez. Among those present at the barbecue were Trinidad Gudino, and an older man
known as Chamaco. Gudino and Perez testified at trial.
I. Testimony of Trinidad Gudino
Gudino testified that sometime after appellant arrived at the barbecue, a man
named Chava, who suffers from an unspecified mental disability, approached the group.
Gudino heard Chava tell appellant and Chamaco that Perez stole money from him.
Chamaco became angry, and appellant and Chamaco confronted Perez. Appellant was
unarmed, but Chamaco was holding a shovel. Perez denied stealing money from Chava.
Gudino then saw appellant go to his truck and retrieve a shotgun. Appellant asked Chava
to confirm who stole money from him, and Chava pointed at Perez. Gudino testified
appellant instructed Perez, who was facing away from him, to turn around because he did
not want to shoot him in the back. Perez turned, and appellant fired the shotgun once
from close range, striking Perez in the chest. After firing the shot appellant put the
shotgun in his truck and left the scene.
II. Testimony of Luis Perez
Perez described the shooting similarly to Gudino but denied speaking to appellant
or Chava prior to the shooting. He testified he argued with Chamaco over a taco, but the
argument did not involve appellant and took place before he arrived. Immediately before
the shooting, Perez heard appellant say: “Turn around because I’m going to kill you.”
3.
After the shooting Perez was transported in an ambulance to the hospital, where he
remained for more than a week and underwent two surgeries. During an interview with
police at the hospital, Perez stated that prior to the shooting he argued with appellant and
Chamaco about eating food for which he had not paid.
III. Appellant’s Arrest and Interview
Appellant was arrested inside of his residence around 4:00 p.m. the afternoon of
the shooting. During the arrest a police dog bit appellant on the arm, and he was
transported to the hospital for treatment before being taken to the Fresno Police
Department. Police located a Dodge Durango registered to appellant parked in front of
the residence. Officers searched the Durango and located a shotgun in the rear cargo
compartment.
Fresno Police Detectives Luis Carrillo and Adrian Alvarez began their interview
with appellant shortly before midnight. The interview was conducted in Spanish and was
audio and video recorded. The recording was admitted into evidence and played for the
jurors, who were also provided a transcript of the interview translated into English.
At the beginning of the interview Carrillo read appellant his Miranda rights, which
appellant acknowledged and waived by stating “yes, yes.” The details of appellant’s
Miranda waiver are discussed further below.
Appellant told the detectives he drove to the barbecue with the shotgun in the back
of his Durango. He stated nothing happened between him and Perez prior to the
shooting, but he believed Perez may have been responsible for the death or disappearance
of some of his relatives who live in Mexico. At some point during the barbecue,
Chamaco told appellant that if he did not “do it,” he would hit Perez with a shovel.
Appellant did not know why Chamaco wanted to harm Perez but appellant told Chamaco
to “confirm it.” Appellant stated he then went to his Durango and retrieved the shotgun,
which was in the rear of the truck covered in clothing. After ensuring it was loaded,
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appellant returned to the group and told Perez: “Look at my face.” When Perez turned
around appellant shot him once from about seven steps away.
Appellant stated that after the shooting he put the shotgun back in his Durango and
drove home. He left the shotgun in the truck and went to sleep. He awoke to a light
shining in his eyes, the police commanding him to put his hands up, and a police dog
biting his arm.
IV. Defense Evidence
The defense evidence at trial centered around appellant’s drug use leading up to
the shooting. In his interview with police appellant stated he smoked “two hits” of
methamphetamine around 8:00 a.m. that morning, which he characterized as “not much.”
He also stated he smoked one joint of marijuana at the barbecue and was drinking beer.
Shanna Palacios, appellant’s girlfriend, testified she began regularly using
methamphetamine with appellant in December 2013. In the four or five days leading up
to the shooting, Palacios and appellant used methamphetamine frequently and did not
sleep. They also used methamphetamine multiple times on the morning of the shooting.
When appellant used methamphetamine, he would become “paranoid” and “weird” and
say things Palacios did not understand. Several of appellant’s family members testified
appellant’s behavior changed in the months leading up to the shooting, noting he had
become quiet and reclusive and sometimes spoke incoherently.
Dr. Claudia Cerda, an expert in clinical psychology called by the defense,
described the possible effects of methamphetamine use, which may include insomnia,
paranoia, hallucinations, and loss of impulse control. Based on her examination of
appellant in 2017 and review of police reports and appellant’s recorded statement, she
opined that appellant had a “substance use disorder” that is now in remission because he
is housed in a “controlled setting.” The defense also called Dr. Luis Velosa, a
psychiatrist appointed by the trial court prior to trial to examine appellant to determine
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his competency and sanity. He similarly concluded appellant was suffering from
“polysubstance drug abuse and dependance.”
DISCUSSION
I. The Evidence Showed Appellant Made a Knowing, Intelligent, and Voluntary
Waiver of his Miranda Rights. Any Presumed Error was Harmless.
A. Background
Prior to trial, appellant moved to exclude the recording of his interview,
contending he was incapable of making a knowing, intelligent, and voluntary waiver of
his Miranda rights due to his use of methamphetamine, marijuana, and alcohol.
Appellant challenges the denial of this motion on appeal, claiming the trial court’s ruling
does not comport with the evidence.
The trial court held an evidentiary hearing on the motion pursuant to Evidence
Code section 402, and heard testimony from Detective Carrillo and Detective Alvarez,
the officers who interviewed appellant. The court also admitted the recording of the
interview and English transcript into evidence.
The interview was conducted in an interview room at the Fresno Police
Department headquarters shortly before midnight on the day of the shooting. Carrillo and
Alvarez are both fluent in Spanish, so no interpreter was needed. Although they
attempted to record the entire interview, the first 15 to 30 minutes were not recorded due
to an equipment malfunction.
Carrillo began the interview by reading appellant his Miranda rights in Spanish
from a department issued Miranda warning card. Appellant acknowledged his rights and
agreed to speak with the officers by stating, “yes, yes.”
Throughout the first part of the interview appellant spoke extensively about his
life, his relationship with his girlfriend, his family, and other matters unrelated to the
shooting. Carrillo and Alvarez allowed appellant to speak freely on these subjects with
little interruption. When asked specific questions about the shooting, appellant listened
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and generally provided responsive answers. At the end of the interview after the
detectives left the room, appellant appears to fall asleep in his chair.
Carrillo described appellant as calm but forthcoming and eager to talk. Appellant
seemed depressed and spoke at length about aspects of his life that were going downhill.
Although appellant often rambled, his statements were not random or incoherent.
Carrillo thought appellant may have “some type of disability,” but had no reason to
believe appellant was under the influence of methamphetamine or any other drug.
Alvarez testified he is trained as a drug recognition expert and has interacted with
thousands of individuals under the influence of various drugs throughout his 20-year
career. His account of the interview and appellant’s Miranda waiver mirrored Carrillo’s
testimony. He described appellant as subdued but talkative and forthcoming. Appellant
appeared to be coherent and able to understand and comprehend the questions asked.
Alvarez did not observe any symptoms that led him to believe appellant was under the
influence of drugs or alcohol.
At the conclusion of the hearing the trial court denied the motion. The court began
by observing the evidence is uncontroverted that appellant expressly waived his Miranda
rights. The court then explained that even though appellant admitted using drugs prior to
the interview, the use of intoxicating substances alone does not render a person incapable
of making a valid waiver, citing People v. Jackson (1989) 49 Cal.3d 1170, 1189. The court
found appellant’s admission to using a small amount of methamphetamine and marijuana,
the passage of time between the usage and the interview, and Carrillo’s and Alvarez’s
testimony that appellant did not appear to be under the influence, all support the conclusion
appellant was able to make a valid waiver. The court also concluded the recording of the
interview shows appellant did not ramble aimlessly and does not suggest appellant was
“coerced, improperly induced or unaware of the significance of his words.”
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B. Legal Standards
“In Miranda v. Arizona, the high court held that police must advise a criminal
suspect who is in custody of specified Fifth Amendment rights prior to questioning.
[Citation.] As we have held: ‘Under the familiar requirements of Miranda, ... a suspect
may not be subjected to custodial interrogation unless he or she knowingly and
intelligently has waived the right to remain silent, to the presence of an attorney, and to
appointed counsel in the event the suspect is indigent.’ ” (People v. Smith (2007) 40
Cal.4th 483, 501.) “Statements elicited in violation of this rule are generally inadmissible
in a criminal trial.” (People v. Mayfield (1997) 14 Cal.4th 668, 732, abrogated on other
grounds by People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)
“ ‘Miranda holds that “[t]he defendant may waive effectuation” of the rights
conveyed in the warnings “provided the waiver is made voluntarily, knowingly and
intelligently.” [Citation.] The inquiry has two distinct dimensions. [Citations.] First,
the relinquishment of the right must have been voluntary in the sense that it was the
product of a free and deliberate choice rather than intimidation, coercion, or deception.
Second, the waiver must have been made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to abandon it. Only if the
“totality of the circumstances surrounding the interrogation” reveals both an uncoerced
choice and the requisite level of comprehension may a court properly conclude that the
Miranda rights have been waived. [Citations.]’ ” (People v. Smith, supra, 40 Cal.4th at
pp. 501–502, quoting Moran v. Burbine (1986) 475 U.S. 412, 421.)
Voluntary intoxication may support a finding that a Miranda waiver was not
knowing, intelligent, and voluntary. However, to prevail on this basis the defendant must
show that the intoxication “so impaired his reasoning that he was incapable of freely and
rationally choosing to waive his rights and speak with the officers.” (People v. Frye
(1998) 18 Cal.4th 894, 988, disapproved on other grounds by People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) Accordingly, our high court has “repeatedly rejected claims of
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incapacity or incompetence to waive Miranda rights premised upon voluntary
intoxication or ingestion of drugs, where … there is nothing in the record to indicate that
the defendant did not understand his rights and the questions posed to him.” (People v.
Clark (1993) 5 Cal.4th 950, 988, disapproved on other grounds by People v. Doolin,
supra, 45 Cal.4th 390, 421, fn. 22.)
“ ‘The prosecution bears the burden of demonstrating the validity of the
defendant’s waiver by a preponderance of the evidence.’ ” (People v. Williams (2010) 49
Cal.4th 405, 425.) “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.” (Ibid.)
C. Analysis
We conclude the trial court did not err. The testimony of Carrillo and Alvarez
established Carrillo read appellant his Miranda rights from a standard police department
issued form containing all the necessary advisements, and appellant expressly waived
those rights and agreed to speak with the detectives. Their testimony also supports the
conclusion appellant was able to execute a valid waiver. They described appellant’s
demeanor as calm but not lethargic. He was eager to talk, but did not ramble aimlessly or
incoherently. Based on their observations, they did not believe appellant was under the
influence of drugs or alcohol. Alvarez’s conclusion appellant was not intoxicated is
particularly significant given his training and experience as a drug recognition expert.
After reviewing the recording and transcript of appellant’s interview, we find them
to be consistent with the detectives’ testimony. Nothing about appellant’s appearance,
demeanor, or mannerisms is unusual or suggests appellant was heavily intoxicated or
impaired. When asked specific questions by Carrillo and Alvarez, appellant’s answers
were generally responsive and coherent. For example, when Alvarez asked appellant to
help him create a diagram of the scene of the shooting, appellant pointed out where he
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parked his car, where he was standing when he shot Perez, where other people at the
barbecue were standing, and where Perez’s body fell after he fired the shot.
Appellant points to specific statements he made during the interview that he
claims demonstrate he was suffering from paranoid thoughts and hallucinations
consistent with methamphetamine use. For example, appellant notes he told the
detectives he shot Perez because he believed he may be responsible for the death or
disappearance of his family in Mexico. Appellant also stated he believed various family
members and friends are stealing from him or otherwise taking advantage of him. We
agree it is unlikely these statements are accurate, and it is possible appellant’s thinking
was impacted by his methamphetamine use. We also agree that at times appellant gave
confusing answers that were difficult to understand. However, we do not find appellant’s
mental state was so compromised that he was incapable of rational thought or
understanding the world around him. Appellant appeared able to understand the
detectives’ questions, provided responsive answers, and spoke coherently about the
shooting and other events of that day.
Considering the totality of the circumstances, we conclude appellant’s Miranda
waiver was knowing, intelligent, and voluntary. The testimony of Carrillo and Alvarez,
including their assessment of appellant’s level of intoxication and mental state, strongly
supports the conclusion appellant was capable of executing a valid waiver. Although the
waiver portion of the interview was not recorded, Carrillo and Alvarez describe appellant
as making a clear and express waiver after hearing his rights. Moreover, we find the
recorded portion of the interview similarly demonstrates appellant had the “requisite level
of comprehension” to understand his rights and freely and rationally choose to waive
those rights and speak to the detectives. (Smith, supra, 40 Cal.4th at p. 502.) Therefore,
the trial court did not err in denying appellant’s motion.
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D. Testimony and Reports of Dr. Cerda and Dr. Velosa
Appellant also attempts to rely on the reports and testimony of Dr. Cerda and
Dr. Velosa, which he claims established he was suffering from drug-induced psychosis
on the day of the shooting. These expert witnesses testified at trial but did not testify at
the Evidence Code section 402 hearing, and their reports were never admitted into
evidence. In its ruling denying the motion, the trial court noted no expert witnesses
testified at the hearing, and the evidence was limited to the testimony of Carrillo and
Alvarez and the recording of the interview. Therefore, we do not consider the trial
testimony or reports of Dr. Velosa or Dr. Cerda because our review is limited to the
evidence before the trial court at the time it made its ruling. (See People v. Hartsch
(2010) 49 Cal.4th 472, 491; People v. Gibbs (1971) 16 Cal.App.3d 758, 761.)
Even if appellant had called Dr. Velosa and Dr. Cerda as witnesses at the
evidentiary hearing, it appears extremely unlikely the outcome would have been
different. Dr. Cerda did not address appellant’s recorded statement in her report.
However, Dr. Velosa stated in his report he watched the recording of the interview and
made the following observations: Appellant’s speech was “rational[], coherent, and goal
directed. His responses to questions were clear, coherent. [Appellant] was calm,
cooperative. There were not any signs of distress or anxiety. [Appellant] also did not
exhibit any type of aggressive violent behaviors and did not exhibit any type of bizarre
behaviors or mannerisms.” While Dr. Velosa did not specifically opine on appellant’s
mental state or level of intoxication at the time of the interview, his observations of the
recorded interview are consistent with this court’s conclusion.
E. Harmless Error
Even if we were to conclude the trial court should have excluded appellant’s
interview, the error was harmless. “ ‘We review Miranda error under the “harmless
beyond a reasonable doubt” standard propounded in Chapman v. California (1967) 386
U.S. 18, 24.’ ” (People v. Saldana (2018) 19 Cal.App.5th 432, 463.) Under this
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standard, which applies to errors of constitutional dimension, reversal is required unless
the reviewing court can conclude beyond a reasonable doubt that the error did not
contribute to the verdict. (Chapman v. California, supra, 386 U.S. at p. 24.) “To say that
an error did not ‘contribute’ to the ensuing verdict is not, of course, to say that the jury
was totally unaware of that feature of the trial later held to have been erroneous.” (Yates
v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire
(1991) 502 U.S. 62, 72–73, fn. 4.) Rather, an error did not contribute to the verdict when
the record reveals the error was unimportant in relation to everything else the jury
considered on the issue in question. (Ibid.) “The inquiry, in other words, is not whether,
in a trial that occurred without the error, a guilty verdict would surely have been
rendered, but whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, italics
omitted.)
Here, appellant’s interview was unnecessary to conclusively establish the elements
of attempted murder. Appellant was identified as the shooter by Perez and Gudino, both
of whom had previously seen appellant in the same parking lot. Appellant shot Perez
from close range in the chest with a shotgun, and according to Perez, immediately before
firing the shot appellant stated he was going to kill him. Several hours after the shooting
when appellant was arrested, police located a shotgun in his truck. This evidence
conclusively established appellant was the shooter and acted with the intent to kill.
Appellant contends the admission of his statement was prejudicial because he was
unable to coherently explain to the detectives that an “altercation” took place before the
shooting, undercutting a potential attempted voluntary manslaughter defense. We
disagree. Although the trial court did instruct the jury on attempted voluntary
manslaughter based on sudden quarrel or heat of passion, and while there is some
evidence that appellant and Chamaco argued with Perez prior to the shooting, there is
nothing to suggest appellant acted in self-defense or that appellant was sufficiently
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provoked that he “reacted from passion rather than judgment.” (CALCIRM No. 603.)
Therefore, any error was harmless.
II. We Will Remand So the Trial Court May Exercise Its Sentencing Discretion
Pursuant to Section 12022.53, Subdivision (h), in Accordance with People v.
Tirado.
Appellant contends the trial court was unaware of its discretion to substitute the
section 12022.53, subdivision (d) (section 12022.53(d)) enhancement with a lesser
enhancement within the same section. We agree. In People v. Tirado, our high court
explained that the “statutory framework” of section 12022.53, as amended by Senate Bill
No. 620 (2017–2018 Reg. Sess.), “permits a court to strike the section 12022.53(d)
enhancement found true by the jury and to impose a lesser uncharged statutory
enhancement instead.” (People v. Tirado, supra, 12 Cal.5th at p. 692.) Here, the trial
court only considered whether to strike the section 12022.53(d) enhancement outright but
did not consider whether to impose a lesser enhancement. We therefore conclude this
matter should be remanded to the trial court to allow it to exercise its discretion in
accordance with Tirado. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [“[T]he
appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had been aware
that it had such discretion.’ ”].) We express no opinion on how the court should exercise
its discretion on remand.
Respondent argues appellant forfeited the claim by failing to ask the trial court to
impose a lesser enhancement. Appellant was sentenced in January 2019, months before
any published case held that section 12022.53, as amended by Senate Bill No. 620, gives
the trial court discretion to impose a lesser uncharged statutory enhancement. (See
People v. Morrison (2019) 34 Cal.App.5th 217 [filed April 11, 2019].) “ ‘ “[W]e have
excused a failure to object where to require defense counsel to raise an objection ‘would
place an unreasonable burden on defendants to anticipate unforeseen changes in the law
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and encourage fruitless objections in other situations where defendants might hope that
an established rule of evidence would be changed on appeal.’ ” ’ ” (People v. Edwards
(2013) 57 Cal.4th 658, 705.) Accordingly, appellant’s failure to request the court impose
a lesser enhancement “ ‘was excusable, since governing law at the time … afforded scant
grounds for objection.’ ” (Ibid.)
DISPOSITION
The matter is remanded for the trial court to exercise its discretion pursuant to
section 12022.53, subdivision (h) in accordance with People v. Tirado, supra, 12 Cal.5th
688. In all other respects, the judgment is affirmed.
LEVY, Acting P. J.
WE CONCUR:
PEÑA, J.
MEEHAN, J.
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