Filed 12/12/19 P. v. Petty CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL LORENZO PETTY,

Defendant and Appellant.

H045503

(Monterey County

Super. Ct. No. SS152144)

Defendant Daniel Lorenzo Petty was convicted by jury trial of first degree murder (count one; Pen. Code, § 187, subd. (a)), torture (count two; § 206), and felony unlawful driving or taking of a vehicle (count three; Veh. Code, § 10851, subd. (a)). The jury found true allegations, in connection with the murder and torture counts, of intentional discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)). The jury also found true torture (§ 190.2, subd. (a)(18)) and lying in wait (§ 190.2, subd. (a)(15)) special circumstances. The trial court sentenced defendant on the murder count to a term of life without the possibility of parole plus 25 years to life for the firearm enhancement, on the torture count to a term of 25 years to life plus 25 years to life for the firearm enhancement, and on the driving or taking a vehicle count to a consecutive three-year term.

On appeal, defendant argues: (1) the trial court prejudicially erred by admitting his confession because it was obtained after he invoked his right to silence; (2) there was insufficient evidence to support the felony conviction for driving or taking because the prosecution failed to prove the value of the vehicle exceeded $950; (3) in the alternative, the trial court committed prejudicial instructional error by failing to specify that a felony conviction for driving or taking required a showing that the value of the vehicle exceeded $950; (4) the abstract of judgment should be corrected to reflect that the sentence for torture is concurrent to the sentence for murder; and (5) the abstract should be corrected to account for actual time spent in custody.

We agree that the abstract must be corrected to show that the torture and murder terms are concurrent, and to take account of defendant’s custody credit. We also conclude that reversal is required due to prejudicial instructional error as to the driving or taking count, and that a remand is appropriate to allow the prosecution either to accept a reduction to a misdemeanor or to retry the offense as a felony. We reject defendant’s other contentions.

I. Background

On December 12, 2015, a Marina resident discovered Francisco Aguayo’s body near a hiking trail that runs along the sand dunes between the beach and highway. The hiking trail was near Dunes Drive in Marina. Aguayo had been reported missing on December 11, 2015, after he failed to return home.

An autopsy revealed numerous and significant injuries to the body, many of which had been inflicted while Aguayo was alive. There was a gunshot wound to the back of the head. The bullet did not pierce his skull, and Aguayo was alive when he was shot. In addition, Aguayo suffered numerous facial injuries, including blunt force injuries, lacerations, fractures, and a quarter-inch hole in the skull of his forehead. The hole in Aguayo’s forehead caused a laceration and contusion to his brain. Many of the facial injuries occurred while Aguayo was alive. The autopsy also revealed that Aguayo had been stabbed in the neck, while alive, and that he had been strangled, also while alive. Aguayo’s head, neck, and shoulder and his upper right arm were burned. It was unclear if he was alive when he was burned. Aguayo’s clothing had the odor of an accelerant, possibly gasoline. The pathologist opined that Aguayo died from multiple traumatic injuries, and that it took “minutes” for him to die.

Police searched Aguayo’s laptop and discovered that he had responded to several of defendant’s Craigslist ads for “m4m” sexual encounters. A search of Aguayo’s and defendant’s phone records and email accounts showed that they had communicated on November 15, November 27, and December 10. On each occasion, they negotiated a price and a place to meet for sex. In the December 10 exchange, Aguayo and defendant agreed to meet in front of Lucky’s in Marina. A video surveillance tape of the area near Lucky’s showed Aguayo, at around 11:30 a.m., driving his pickup truck into and around the parking lot and then leaving several minutes later. The video did not capture whether anyone entered or exited the truck.

Between 1:00 p.m. and 2:00 p.m. on December 10, 2015, there were at least four phone calls between Aguayo’s cell phone and a cell phone belonging to defendant’s friend, Scotty Johnson. Aguayo and Johnson had never previously communicated with each other. Cell phone and cell tower records showed that Aguayo’s phone contacted Johnson’s phone at 1:36 p.m., while Johnson’s phone was in Salinas. At 2:05 p.m., there was another call, when Johnson’s phone was in Marina. At 2:34 p.m., Johnson’s phone was in Marina, but soon moved back to Salinas. At around 10:00 p.m., Johnson’s phone moved to an area near River Road in Chualar, and then back to Salinas. The next morning, on December 11, Aguayo’s truck was found by a farm worker abandoned near River Road.

On December 21, 2015, police interviewed defendant at a police station. The interview was recorded on video. During the interview, defendant admitted killing Aguayo, and said he had done so because “wanted to see . . . how I would feel.” He said he thought it was “funny,” and he “wasn’t even angry” when he killed Aguayo. He explained, “With the back of the gun, I beat him. He begged and I beat him. He wouldn’t shut up. I zapped him in his throat and I watched his blood pour out.” Defendant said that he threw Aguayo “on the ground and he was crawling and he was crying and he was begging for his life, and I told him I’m gonna kill you, and I was laughing. And he was like why, I thought you loved me. I have money, I have a family. All I do is work. I’m like fuck your family, I don’t care. I don’t care about you.” Defendant claimed that it took Aguayo 30 minutes to die. He said he returned the next day to burn Aguayo’s body because he wanted to “smell his flesh.” He said he took Aguayo’s truck and hid it under a bridge. His plan was to “chop the car” and sell it to buy drugs.

While being transported after his interview, defendant made additional unsolicited statements that were recorded and transcribed. He reaffirmed statements made during his interview, including that Aguayo “begged” him, that he stabbed him in the throat, that he shot him behind the head, and that he repeatedly beat him. He said that Aguayo, at some point, “sounded like he was gasping for air. Then I came back because he tried to get back up. So I kicked him in the gut and he fell back over. And I started whupping him with the gun some more.” Defendant added again that he “beat the dog shit out of him with the fucking strap,” and that he “was cracking his head in.” He said he went back to see “how badly I bruised him. His fucking face was all lumped up.” Defendant said he then spit in Aguayo’s face.

At trial, defendant testified on his own behalf. In general, the defense theory was that defendant did not torture Aguayo and did not commit premeditated murder, but rather defendant killed Aguayo in response to provocation.

Defendant described the circumstances of the killing. After Aguayo picked defendant up, Aguayo asked defendant how he was doing. Defendant replied that he “was not in the mood” because he “just got in an argument with [his girlfriend].” Aguayo asked where defendant wanted to go. Defendant responded, “[i]t’s up to you.” They first drove to the airport, where they had gone before, but defendant said he did not want to have sex there because there were people in nearby cars. They eventually drove to Dunes Drive in Marina. Defendant smoked some methamphetamine, and Aguayo unzipped his pants and told defendant to “suck him up.” Defendant did so. Because joggers were nearby, defendant asked that they go elsewhere. They exited the truck and looked for a more suitable location. Aguayo asked defendant what was wrong, and defendant replied that it was a “personal” issue. Aguayo asked if it involved defendant’s girlfriend, but defendant said, “I just want to chill out.” Defendant told Aguayo to “drop it,” that it was “none of your business,” and that he did not want to talk about it. Because defendant “said it like that,” Aguayo became “upset” and said: “Well, suck me up, you little bitch.” He grabbed defendant’s head and shoulder, but defendant pushed Aguayo away. “It just escalated from there. [Defendant] just started punching him.”

By that point, defendant was “furious,” and the two were grabbing and fighting each other on the ground. They both tried to get up. Defendant pulled out his gun and shot Aguayo. Aguayo said, “You fucking — you stupid bitch,” and then “tried to go for the gun.” Defendant tried shooting Aguayo again, but the gun “clicked,” so he “tried hitting him in the face” with the gun. Defendant then took Aguayo to the ground again and punched him repeatedly. Defendant then took out his knife and “stabbed him.” That was the end of the struggle. Defendant was “shocked.” He “realized [he] just snapped,” that he “was scared,” and that he “literally didn’t know what to do.”

II. Discussion

A. Admission of Confession

Defendant challenges the admission of the confession that he made to police while being interviewed. He contends that he invoked his right to remain silent multiple times, but that the officers ignored him and continued to question him.

1. Factual Background

Detective Oliver Minnig and Sergeant Mike Bruno interrogated defendant. At the beginning of the interrogation, Minnig read the Miranda advisements, which defendant said he understood, and he began speaking with the officers.

During the initial portion of the interrogation, Minnig and Bruno established that defendant knew and had sex with Aguayo. Minnig told defendant that they had arrested him for Aguayo’s murder. Defendant denied killing Aguayo. Defendant expressed concern that Aguayo had been killed. Defendant appeared relaxed and engaged when talking with Minnig and Bruno. The video reflected that defendant was sitting up, alternating between leaning slightly forward and back as he conversed. Defendant eventually asked Minnig and Bruno to tell him “what evidence do you guys have that you guys are charging me with murder.” In response to further questioning, defendant repeated with greater insistence, “What evidence do you guys have?” About 19 minutes into the interview, defendant briefly leaned forward, and appearing frustrated, put his hands on his face and said something unintelligible into his hands. He leaned back in his chair, somewhat slouched in a reclined position, and crossed his arms. Bruno then told defendant that they knew that defendant was the last person to see Aguayo alive before he was murdered. The detectives revealed to defendant that they had read the e-mail exchanges between Aguayo and defendant, and that they knew about the calls to defendant’s friend, Johnson. Defendant denied calling Johnson, and claimed he went back to his girlfriend’s house after the December 10 sexual encounter with Aguayo. Defendant continued to lean back in his chair with his arms crossed.

At about 26 minutes into the interrogation, Bruno revealed to defendant that while defendant was in jail, they were monitoring him, and that they heard defendant admit to killing Aguayo. Minnig added that defendant had provided details that were not public about the murder, and that “only the person who was there would know [those details].” Minnig asked defendant to “help us out” and tell them what happened. Defendant responded, still leaning back in his chair, arms crossed: “I wanna go to sleep.” His only physical movement was crossing his left foot over his right foot. Bruno reminded defendant that “we were listening” to his jail conversation. Defendant responded, “That’s capital murder right there.” Bruno confirmed, “Well, it’s, it’s murder, I mean, and then that’s what we’re here [about], that [sic] what we’re here to talk to you about. We’re gonna talk to you about why did [Aguayo] die that day. What did [he] do . . . .” Defendant responded, “I wanna go to sleep. I don’t wanna talk no more.” Minnig asked again, “help us out. Help yourself out. I mean, that’s what the reality is, I mean, you gave details, like I said, those details aren’t in the news, they aren’t in the press.” Defendant again said, “I wanna go to sleep.” Minnig noted again, “I know what’s in the news and what’s in the press,” and again defendant responded, “I wanna go to sleep.” Minnig said, “Okay.” Defendant then said, “You guys fuckin’ (inaudible).” Bruno asked, “What was that?” Defendant responded, “I’m not sayin’ anything else. I wanna go to sleep.” Minnig then said, “Well . . . .” Defendant continued, “How long you think they’re gonna keep me here?” Defendant leaned forward and started pulling on his shoe. Minnig responded, “Well, it depends, I don’t know.”

Defendant then asked if he was going to “go to County [jail].” Minnig responded that he would. Minnig then said, “Well, let’s . . . ,” but defendant interrupted him to say, “You guys are not hearing nothing from me, um, so . . . .” Minnig continued, telling him, “You’re not denying anything.” Still pulling on his shoe, defendant replied, “I did, I did. I told you I don’t know the fuck you guys are talkin’ about. I didn’t murder [Aguayo]. I went back to my girlfriend’s house. You guys are high as hell, so (inaudible).” Minnig noted again, “There’s a lotta details you know” about the crime. Defendant responded, again while pulling on his shoe, “I don’t know, I love that you guys aren’t listening to me. You guys are probably listening to those other guys talking about whatever they’re talking about in there . . . .” Bruno then said that it was “pretty clear” that defendant was involved. Defendant replied, “Yeah, so, I wanna go back and sleep just ‘cause . . . .” After Bruno interjected by saying defendant’s name, defendant continued, “I don’t wanna talk to you guys.” When defendant said this, he was still leaning forward, looking at his shoes, pulling and fidgeting with them. He then stopped playing with his shoe, sat upright and leaned towards Minnig and Bruno. The detectives asked why defendant tried to burn the body. In response, defendant said, “I wonder what they’re having for lunch. Is that a brush or something, Sir?” Defendant began to reach for his shoe again. Minnig asked again why he tried to burn the body. Defendant said, “I’m gonna take a nap.” Defendant then put his head down on his arms, which were resting on the table, and closed his eyes. Bruno said, “Taking a nap is not gonna . . . bring back [Aguayo]. It’s not gonna change the fact that you’re in here for murder.” Defendant did not respond or move. Minnig then asked again why defendant went back to burn the body. Defendant kept his head down and did not move. Bruno then summarized the charges: “You’re being arrested for murder, you’re being arrested for robbery, you’re being arrested for tryin’ to destroy a dead body . . . those are your charges.” Defendant repositioned his head on his arms. Defendant then opened his eyes and watched as Bruno got up from his chair and left the room.

Minnig then got up from his chair and moved to leave. But before he could take more than a step, with his head still down, defendant said: “Hold on. What’s considered capital murder?” Minnig responded, “That’s really up to, uh, [the] DA and judges and everything. That, I have nothing to do with that.” Defendant asked, raising his head off the table, “Can I get lethal injection for [capital murder]?” Minnig replied, “Yeah,” but added that he “couldn’t even tell you the last time they executed anybody in this state.” He said “that’s not my call,” “it comes down to the judges and the DA’s and defense attorneys and all that stuff,” and “[I] can’t really give you advice on any of that stuff.” Defendant replied, “I want the lethal injection.” Minnig asked why. Defendant said, “I wonder how that (inaudible) feels.” Minnig said, “They say you just go to sleep.” “That’s what they claim, but I don’t know.” Defendant then said, smiling, “I shot him behind the head. That was funny.” Defendant laughed. As described previously, defendant proceeded to confess to murdering Aguayo.

2. Procedural Background

Defendant’s trial counsel moved to exclude defendant’s statements to the police on the ground that they were obtained in violation of Miranda. The prosecution opposed the motion and sought to admit the entire interview.

The trial court held an evidentiary hearing, at which only Minnig testified. The prosecutor asked Minnig why he continued to question defendant after defendant said, “I don’t wanna talk no more.” Defense counsel objected, arguing that the answer would elicit irrelevant information about Minnig’s subjective intent. The court overruled the objection. Minnig answered: “There was a back and forth with him. So he would first say he would go to sleep. And then he kept on asking questions. [¶] I recall, you know, from the interview — I mean, obviously now I have seen the — the video over again. But from my own recall, I just remember hanging up and ‘I want to go to sleep.’ And so I — you know, I already had my questions formulated, and I continued on asking my questions.” Minnig said he continued to interrogate defendant “because, you know, he would come back to us with questions and reengage with us. So I was, you know, thinking we were still conversating. We’re still having an active dialogue.” He concluded there was no more “active dialogue” when defendant put his head down and Minnig moved to leave. However, he continued to question defendant after he “looked at me and said, ‘Hold on.’ ”

The court reviewed the video of the interrogation. The court described defendant’s demeanor, until minute 20 of the video, as “calm,” “casual,” and “comfortable.” The conversation consisted of open-ended questions. To the court, it was “very clear during those first 15 minutes or so, that the conversation [was] actually being controlled by [defendant].” There were “no pointed questions,” and defendant was “making the decision about where the conversation [was] going.” At around 20:32, when Bruno told defendant that he was arrested for murder, the court observed that defendant’s voice became “more animated” and the conversation became “heated,” meaning “the questions [were] becoming more pointed.” From minutes 23 to 28, the court noted that defendant “does try to take over the conversation again.” He asks, several times, “what evidence do you have?” The detectives ask more questions and start providing information to defendant at around the 30-minute mark. They talk about Johnson and about the calls made from Aguayo’s phone. Then, the court noted, at around minute 36, the detectives begin to tell defendant about what they know, and at that point, he begins saying, “I just want to go to sleep” several times.

The court summarized its thoughts: “I wanted to lay this out just to show the — kind of how the inquiry and the communication progresses there. [¶] When the defendant is in control of the conversation, things are — he’s very happy with it. [¶] And when there are more pointed questions that are asked, he’s not as happy. [¶] So with that being the background of this, the law that applies to Mirandized statements — once the defendant has indicated that he will talk to officers, the law is that they can. [¶] So the defendant can re-invoke his right to an attorney or to remain silent. And in doing that, the invocation of the right to silence or to an attorney is a question of fact to be decided in light of all the circumstances. And that’s one of the reasons that I went through and described the circumstances I saw.”

The court made the following factual findings: “One is that the defendant did not by his actions or body language do anything to indicate that he wanted this to stop. He didn’t get up and go to the door. He didn’t stop talking. He didn’t stop engaging. So there was nothing by his body language that indicated that he was invoking. [¶] Two, the defendant did continue to engage each time he made a statement showing his displeasure with the conversation. So each time the defendant said something about wanting to take a nap or wanting to go to sleep, it was followed up by him continuing to engage.” “[E]ach time, they said something to him, he ultimately responded as opposed to shutting down.” “[H]e did not clearly unequivocally invoke. The officers did make attempts to leave, which was even more interesting. One officer got up. And I think that was at about Minute 38 — I’m sorry — Minute 40. The officer gets up to leave. And that’s the officer by the door.” Then, “Minnig . . . goes to get up. And the defendant, the minute he sees Minnig begin to get up, starts reengaging with him. [¶] The Court does find that the defendant was showing — in making these statements — was showing his frustration that he was not able to control the conversation when he was being asked pointed questions.” In summary, the court found that the statements were “voluntarily made,” and “there was no unequivocal, unambiguous invocation of his right to remain silent.”

3. Analysis

“A statement obtained in violation of a suspect’s Miranda rights may not be admitted to establish guilt in a criminal case. [Citation.] ‘In reviewing the trial court’s denial of a suppression motion on Miranda and involuntariness grounds, “ ‘ “we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.” ’ ” [Citations.] Where, as was the case here, an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review.’ [Citation.] We review issues concerning the suppression of such statements under federal constitutional standards. [Citation.]” (People v. Jackson (2016) 1 Cal.5th 269, 339.)

“ ‘[T]he question of ambiguity in an asserted invocation must include a consideration of the communicative aspect of the invocation—what would a listener understand to be the defendant’s meaning. The high court has explained—in the context of a postwaiver invocation—that this is an objective inquiry, identifying as ambiguous or equivocal those responses that “a reasonable officer in light of the circumstances would have understood [to signify] only that the suspect might be invoking the right to counsel.” . . . [¶] In certain situations, words that would be plain if taken literally actually may be equivocal under an objective standard, in the sense that in context it would not be clear to the reasonable listener what the defendant intends.’ [Citation.] ‘A defendant has not invoked his or her right to silence when the defendant’s statements were merely expressions of passing frustration or animosity toward the officers, or amounted only to a refusal to discuss a particular subject covered by the questioning.’ [Citation.]” (People v. Sanchez (2019) 7 Cal.5th 14, 49 (Sanchez).)

In People v. Jennings (1988) 46 Cal.3d 963 (Jennings), the court considered the following purported invocation: “ ‘I’ll tell you something right now. You’re scaring the living shit out of me. I’m not going to talk. You have got the shit scared out of me,’ and ‘I’m not saying shit to you no more, man. You, nothing personal man, but I don’t like you. You’re scaring the living shit out of me . . . . That’s it. I shut up.’ ” (Id. at p. 977.) The court held that, in context, these statements did not amount to an unambiguous invocation of the right to remain silent, explaining: “Were we to base our decision solely on the reporter’s transcript of those portions of the interview on which [the defendant] relies, his claim that he invoked his right to silence would appear meritorious. On a review of the full tape and consideration in context of the words on which [the] defendant relies a different picture emerges.” (Id. at p. 978.) The statements, the court reasoned, were a reflection of the defendant’s temper and an expression of anger toward an officer who was questioning him. The court concluded: “When [the] defendant made the statements he claims were an invocation of his rights he was addressing [that officer]. Viewing the tape, observing [the] defendant’s demeanor before, during, and after the statements, and considering the context in which [the] defendant made the statements on which he relies here, we conclude that the statements reflect only momentary frustration and animosity toward [that officer].” (Id. at p. 978.)

In People v. Martinez (2010) 47 Cal.4th 911 (Martinez), the court concluded that, in context, the statements, “ ‘I don’t want to talk anymore right now,’ ” and “ ‘That’s all I can tell you,’ ” did not amount to an unambiguous and unequivocal invocation of the right to remain silent. (Id. at pp. 949-951.) In Martinez, a detective gave Miranda advisements to the defendant, who agreed to an interview. (Martinez, at pp. 944-945.) When the defendant said, “ ‘That’s all I can tell you,’ ” the detective ended the interrogation. (Id. at p. 944.) The next morning, two other detectives met with the defendant, reminded him that he had previously waived his Miranda rights, and continued to interrogate him. (Martinez, at pp. 944-946.) During the interrogation, the defendant said, “ ‘I don’t want to talk anymore right now.’ ” In response, the detectives said that they intended to take a break, urged the defendant to “ ‘think about it,’ ” and said that they would come back and talk to him. (Id. at pp. 951-952.) The defendant replied, “ ‘Okay,’ ” and the detectives resumed their questioning after a break. (Id. at p. 952.)

In concluding that the defendant did not invoke his right to remain silent during the initial interrogation, the court determined that the defendant’s remark, “ ‘That’s all I can tell you,’ ” was reasonably viewed as merely meaning, “ ‘That’s my story, and I will stick with it.’ ” (Martinez, supra, 47 Cal.4th at pp. 949-950.) The court concluded that the defendant’s statement during the second interview, “ ‘I don’t want to talk anymore,’ ” also did not amount to a clear invocation of his right to silence. (Id. at pp. 951-952.) The court reasoned that the context in which the statement is made matters. This statement came “during the course of an interrogation,” rather than at the beginning of the interrogation or contemporaneous to the initial Miranda advisements. (Martinez, at p. 951.) The court also observed that the detectives employed “ ‘good police practice’ ” aimed at clarifying the defendant’s statement by proposing a break and encouraging him to “ ‘think about it.’ ” (Id. at pp. 951-952.) The court reasoned that the “[d]efendant could have responded negatively and explained that he would not be interested in talking further, even after a break. He did not. Instead, by saying, ‘Okay,’ he in effect agreed to allow the detectives to return for more questioning.” (Id. at p. 952.)

In People v. Thomas (2012) 211 Cal.App.4th 987 (Thomas), the court held that the defendant’s statement, “I ain’t talking no more and we can leave it at that,” was not an unambiguous invocation of his right to remain silent. (Id. at p. 1006.) Rather, in context, “it was merely an expression of momentary frustration both with the detectives’ failure to accept [the defendant’s] repeated insistence that he was not present during the shootings and with Deputy Ramirez’s immediately preceding statement that [the defendant] was ‘hiding something.’ ” (Ibid.) The court explained that the transcript of the interview showed that the defendant “repeatedly expressed frustration during the interview.” (Ibid.) “When viewed in conjunction with his earlier expressions of frustration during the interview,” the purported invocation “was another expression of momentary frustration and, at most, was an ambiguous invocation of the right to remain silent.” (Id. at p. 1007.)

Here, as in Jennings, Martinez, and Thomas, defendant’s statements did not amount to an unambiguous and unequivocal invocation of his right to remain silent. In context, and considering defendant’s demeanor and behavior before, during, and after the statements, we conclude that a reasonable officer would have concluded that the statements reflected defendant’s fatigue or frustration with the course of the questioning and the revelation that officers had listened to him previously discuss details of the murder.

Defendant contends that the detectives “ignored” repeated unambiguous invocations of the right to remain silent. Not so. Defendant’s statement—“I wanna go to sleep. I don’t wanna talk no more”—could reasonably have been interpreted as either fatigue with the fact that his denials had been ineffective or frustration with the revelation that the police knew much more about the murder than defendant initially thought. A request for a break from interrogation, whether due to fatigue or frustration, is not the functional equivalent of an unambiguous invocation of the right to remain silent. (Sanchez, supra, 7 Cal.5th at p. 49; Thomas, supra, 211 Cal.App.4th at p. 1006; Jennings, supra, 46 Cal.3d at pp. 978-979.) Adding to the ambiguity, this statement followed two previous statements where defendant stated that he wanted to sleep. A reasonable officer would have understood defendant’s subsequent statement, “I don’t wanna talk no more,” in context, not as an invocation of the right to remain silent, but rather as an additional expression of frustration or fatigue.

Defendant’s subsequent comments made clear that his prior ambiguous statement did not amount to an unambiguous invocation of the right to remain silent. After defendant stated that he wanted to sleep and not talk anymore, Minnig followed up by asking defendant to “help us out.” Defendant responded, “I wanna go to sleep.” Minnig followed up again, and defendant again responded, “I wanna go to sleep.” Minnig then said, “Okay.” Defendant then continued the conversation, saying, “You guys fuckin’ (inaudible).” Bruno asked, “What was that?” Defendant said, “I’m not sayin’ anything else. I wanna go to sleep.” Minnig then said, “Well . . . .” Again, rather than ceasing the conversation, defendant continued it by asking, “How long you think they’re gonna keep me here?” As in Martinez, defendant “could have responded negatively and explained that he would not be interested in talking further,” but “[h]e did not.” (Martinez, supra, 47 Cal.4th at p. 952.) Instead, immediately after making his statement, “I’m not sayin’ anything else,” defendant continued to talk to police, “in effect agree[ing] to allow the detectives to [continue] questioning.” (Ibid.) A reasonable officer would have understood defendant’s continued questions as confirmation that he did not mean to invoke the right to remain silent. (Sanchez, supra, 7 Cal.5th at p. 49.)

The rest of defendant’s purported invocations were similarly ambiguous. After continuing to engage the detectives in conversation, defendant said, “You guys are not hearing nothing from me, um, so . . . .” Minnig reminded defendant that he was “not denying anything.” Defendant responded, “I did, I did. I told you I don’t know the fuck you guys are talkin’ about. I didn’t murder [Aguayo].” In context, his statement, “You guys are not hearing nothing from me,” appeared to reflect defendant’s frustration that the detectives were not “hearing” that he had denied involvement in Aguayo’s murder. (Cf. Martinez, supra, 47 Cal.4th at pp. 949-952 [statement, “ ‘That’s all I can tell you,’ ” was reasonably seen as meaning, “ ‘That’s my story and I’ll stick with it.’ ”].) It was certainly not an unambiguous invocation of the right to remain silent. Later, defendant said, “I wanna go back and sleep just ‘cause . . . I don’t wanna talk to you guys.” Like defendant’s previous statements that expressed a desire to sleep, this too was ambiguous. A reasonable officer could have interpreted this is as a statement of fatigue or frustration, especially given that defendant’s prior ambiguous invocations of “I wanna go to sleep” resulted in defendant reinitiating conversation.

The video of defendant’s interrogation shows that defendant’s demeanor and body position remained the same for the eight to nine minutes prior to when he first indicated he wanted to sleep. His arms remained crossed, and he remained leaning back in his chair, with no apparent change in his body position or demeanor. (Cf. People v. Villasenor (2015) 242 Cal.App.4th 42, 66 [observing that the defendant’s “demeanor changed dramatically when confronted with the evidence against him,” and that his demeanor “became that of a young man who had decided to end the interrogation”] (Villasenor).) He remained in this position throughout every purported invocation of his right to remain silent, until he put his head down. The video also shows that Minnig and Bruno never raised their voices and remained seated for most of the interview, until Bruno got up to leave and Minnig moved to leave.

Defendant asserts, citing Villasenor, that his “post-invocation question about whether he would go to county jail ‘may not be used to cast retrospective doubt on the clarity of the initial request itself.’ ” First, for the reasons already discussed, we disagree that there was anything approaching “clarity” with respect to defendant’s “initial request.” Standing alone and without reference to subsequent statements, defendant’s initial invocation was objectively ambiguous. Thus, we are not using defendant’s later statements to “cast retrospective doubt” on the “clarity of the initial request,” because the initial request was not objectively clear. Second, Villasenor does not support defendant’s position. The full quote from Villasenor, which is taken from Smith v. Illinois (1984) 469 U.S. 91, does not reference post-invocation questions made by a detainee, but rather post-invocation responses to questions posed by officers. (Villasenor, supra, 242 Cal.App.4th at p. 65 [“ ‘[A]n accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.’ ”].) Here, defendant continued to make unsolicited comments and ask questions in the absence of pending questions, which in combination with his initial ambiguous invocation, further confused the meaning of his statements.

In “the context of a postwaiver invocation,” the inquiry is objective, “identifying as ambiguous or equivocal those responses that ‘a reasonable officer in light of the circumstances would have understood [to signify] only that the suspect might be invoking the right to counsel.’ ” (People v. Williams (2010) 49 Cal.4th 405, 428.) As part of this objective inquiry, a reviewing court may look at a defendant’s conduct “before, during, and after the statements” (Jennings, supra, 46 Cal.3d at pp. 978-979), to determine what “ ‘ “a reasonable officer in light of the circumstances would have understood” ’ ” the statements to mean. (Sanchez, supra, 7 Cal.5th at p. 49.) Here, defendant twice reinitiated conversation, on his own accord, after purported invocations of the right to remain silent. Defendant’s own initiation of further conversation after purported invocations was inconsistent with an invocation of the right to remain silent.

In sum, nothing in defendant’s behavior, demeanor, or statements communicated an unambiguous and unequivocal desire to invoke his right to remain silent. Defendant repeatedly reengaged Minnig and Bruno in conversation, of his own accord, even after he purportedly invoked his right to remain silent. Understood in context, defendant’s statements would not have been understood by a reasonable listener as an attempt to invoke the right to remain silent. Thus, the trial court did not err in denying defendant’s suppression motion.

B. Unlawful Driving or Taking of a Vehicle

Defendant contends that his conviction for driving or taking a vehicle must be reversed for insufficient evidence because the prosecution did not prove the value of the truck exceeded $950. Defendant alternatively contends that the conviction must be reversed for instructional error, because the jury instructions failed to specify that the prosecution must prove the value of the vehicle was greater than $950. The Attorney General concedes that remand is warranted.

1. Background

Aguayo’s truck was a model year 2000 Chevy Silverado. Pictures of the truck’s exterior and interior were introduced into evidence. On December 11, 2015, a farm worker found the truck parked by River Road and reported it to authorities because the truck “was in really good condition.” On December 12, a California Highway Patrol (CHP) officer located the Silverado in a field near the river bed by River Road and Chualar River Road. When the CHP officer found the truck, it was “actually stuck in the mud about a foot down.” The mud was “very close” to the bottom axle of the truck, “if not touching the bottom axle.”

In his videotaped confession, defendant stated that he was “high that day” and “didn’t feel like driving,” so he called Johnson and told him “that [he] just wanted to see if [Johnson] can drive [the] truck for me back to Salinas . . . .” Defendant claimed that he drove the truck to Chualar and took the bus back to Salinas. He did not directly say who drove the truck to Salinas. In another part of the interview, defendant said that Johnson “didn’t come,” so he “drove the truck.” He explained, “I tried callin’ my other friend, too, ‘cause I didn’t know how to drive, I drove the truck.” He said he hoped to hide the truck under the bridge and sell it later for drugs.

At trial, defendant testified that he “took the keys” to Aguayo’s truck and headed back to the truck. He went into the truck and looked for Aguayo’s phone. Because he did not “know how to drive,” he called his friend, Johnson. Johnson came to Marina and saw defendant covered in blood, and asked “What the fuck happened?” Defendant replied, “I just want to get the fuck out of here.” The two headed over to Johnson’s house in Salinas, where defendant changed clothes. While there, they talked “about . . . what to do with the car or with his truck.” Johnson “called a couple of his friends,” who came over. Defendant could not recall their names. They “decided to go drop it off later on in the night in Chualar.” Although defendant did not “know how to drive,” he “did go with them” to Chualar to drop off the truck. When asked by the prosecutor if he had wanted to “destroy evidence,” defendant replied, “I wanted to get rid of the car, yes.”

As to the driving or taking offense, the trial court instructed the jury: “To prove that the defendant is guilty of this crime, the People must prove that one, that [sic] the defendant took or drove someone else’s vehicle without the owner’s consent; and two, when the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time.”

During closing arguments, the prosecutor argued that to convict for “unlawful taking of the vehicle,” the prosecution must prove that defendant “took a vehicle without the owner’s consent.” “And when the defendant did so, he intended to deprive the owner of ownership of the vehicle for any period of time. [¶] That’s not his car. That’s Francisco Aguayo’s car or the person that would inherit it from him. He had no right to take it. And when he hid it, his intent was to get rid of it.” The prosecutor observed that the truck was “gone for a day or two, and it got stuck [in the mud].” Thus, according to the prosecutor, the evidence showed defendant “was trying to get rid of that vehicle so that no one would have it,” and that the rightful owner would be “deprived of that vehicle.”

During deliberations, the jury sent a note: “Please define the word ‘took’ in Count 3, Item 1. If a person facilitated the taking of the vehicle, but did not drive it, is that considered taking?” The court discussed the question with the parties and sent the following response: “Words and phrases not specifically defined in these instructions are to be applied using their ordinary everyday meanings. Please refer to this instruction together with all of the instructions already provided as a whole.”

2. Proposition 47

On November 4, 2014, California voters approved Proposition 47, and it became effective the next day on November 5, 2014. (§ 1170.18.) “Proposition 47 [made] certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Pursuant to section 490.2, subdivision (a), “Proposition 47 reclassified a variety of grand theft crimes to petty theft offenses when the value of the money, labor, real or personal property taken did not exceed $950.” (People v. Gutierrez (2018) 20 Cal.App.5th 847, 854 (Gutierrez).) “Following passage of Proposition 47, Courts of Appeal disagreed whether [section 490.2] applied to vehicle theft under Vehicle Code section 10851 . . . .” (Ibid.) In 2017, in People v. Page (2017) 3 Cal.5th 1175 (Page), the California Supreme Court resolved the issue, holding that “[b]y its terms, Proposition 47’s new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense.” (Page, at p. 1183, italics added.)

3. Analysis

Vehicle Code section 10851, subdivision (a) “ ‘proscribes a wide range of conduct.’ ” (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza).) “A person can violate section 10851 by ‘[u]nlawfully taking a vehicle with the intent to permanently deprive the owner of possession.’ [Citation.]” (Gutierrez, supra, 20 Cal.App.5th at p. 854.) “Taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and a defendant convicted of violating section 10851 with such an intent has suffered a theft conviction.” (Ibid.) “Section 10851 can also be violated ‘when the driving occurs or continues after the theft is complete’ (referred to by the Supreme Court as ‘posttheft driving’) or by ‘ “driving [a vehicle] with the intent only to temporarily deprive its owner of possession (i.e. joyriding).” ’ [Citation.]” (Ibid.) “[P]osttheft driving and joyriding are not forms of theft; and a conviction on one of these bases is not a theft conviction.” (Ibid.)

Defendant makes two claims with respect to the driving or taking conviction. His first claim is that there was insufficient evidence because the prosecution never proved the value of the truck. We disagree. There was more than sufficient evidence that defendant drove or used the vehicle without the owner’s permission and that he intended to at least temporarily deprive the owner of possession of the vehicle. This evidence was sufficient to support a conviction based on a joyriding theory. Since this theory, unlike a theft theory, does not require proof of the vehicle’s value, the real issue in this case is whether the trial court’s instructions were prejudicially erroneous. (Gutierrez, supra, 20 Cal.App.5th at pp. 857-858; People v. Bussey (2018) 24 Cal.App.5th 1056, 1062-1063 (Bussey), review granted Sept. 12, 2018, S250152; People v. Jackson (2018) 26 Cal.App.5th 371, 378, fn. 7 (Jackson).)

We agree with the parties that instructional error occurred. The error in this case was that the jury instructions failed to differentiate between the theft and nontheft theories by which Vehicle Code section 10851 may be violated. The trial court’s instructions “allowed the jury to convict [defendant] of [the theft form of] a felony violation of [Vehicle Code] section 10851” in the absence of proof of the value of the vehicle. (Gutierrez, supra, 20 Cal.App.5th at p. 857.) This was “a legally incorrect theory.” (Ibid.) The instructions also allowed the jury to convict defendant “for a nontheft taking or driving offense—a legally correct [theory].” (Ibid.)

“When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground.” (People v. Chiu (2014) 59 Cal.4th 155, 167 (Chiu).) “Unlike with other types of instructional error, prejudice is presumed with this type of error.” (Jackson, supra, 26 Cal.App.5th at p. 378.) This presumption is rebutted only if the record permits the conclusion “beyond a reasonable doubt that the jury based its verdict on [a] legally valid theory . . . .” (Chiu, at p. 167.) In some cases, the evidence will leave no reasonable doubt that the jury made the necessary findings under a legally valid theory. Thus, an instruction on a legally invalid theory is harmless “ ‘if it is impossible, upon the evidence, to have found what the verdict did find’ ” without also making the findings necessary under a legally correct theory. (People v. Chun (2009) 45 Cal.4th 1172, 1204.)

On this record, we cannot say beyond a reasonable doubt that the jury based its verdict on a legally valid ground. To be sure, there was strong evidence establishing that defendant engaged in posttheft driving, which was a legally valid ground. Based on defendant’s uncontroverted trial testimony, after taking Aguayo’s truck, defendant and Johnson went to Salinas, where defendant changed his clothes and conferred with Johnson as well as Johnson’s friends about what to do with the truck. They then decided to drive the truck to Chualar to get rid of it. Cell phone data confirmed this timeline, and established that the gap in time between arriving in Salinas and leaving for Chualar was substantial, approximately seven hours.

“[A] defendant who steals a vehicle and then continues to drive it after the theft is complete commits separate and distinct violations of [Vehicle Code] section 10851(a).” (Garza, supra, 35 Cal.4th at p. 880.) “One might also suggest that the taking is complete when the taker reaches a place of temporary safety.” (Ibid.; see also People v. Calistro (2017) 12 Cal.App.5th 387, 402-403 [evidence overwhelmingly supported conclusion that the defendant’s use of the vehicle was distinct from taking, where the defendant had “long since left the locus of the theft, was no longer in the process of escape,” and felt that he could “linger in the stolen car”].) Thus, applied to this case, it is entirely possible that the jury could have found both a posttheft use and a theft, based on the substantial gap in time where, in a place of temporary safety, defendant planned what to do next with the truck. Nevertheless, we cannot say beyond a reasonable doubt that every juror agreed on such a theory, given that the prosecution did not argue such a theory and in light of the jury note that suggested a focus on a taking theory.

Accordingly, we reverse the felony conviction for driving or taking a vehicle and remand the matter to allow the prosecution to accept a reduction of the conviction to a misdemeanor or to retry the offense as a felony. (Bussey, supra, 24 Cal.App.5th at pp. 1062, 1064; Gutierrez, supra, 20 Cal.App.5th at pp. 858, 862; Jackson, supra, 26 Cal.App.5th at p. 381; see also Chiu, supra, 59 Cal.4th at p. 168 [remanding murder conviction based on instructional error and allowing the prosecution to accept a reduction of the conviction or to retry the greater offense].)

C. Section 669

Defendant contends that when the trial court imposed a sentence of 25 years to life for count two, it neglected to state whether the sentence was concurrent or consecutive to the life-without-the-possibility-of-parole sentence for count one. He asserts that the abstract should be corrected to state that the sentence for count two is concurrent to count one. The Attorney General agrees.

Section 669 provides, in pertinent part: “(a) When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, . . . the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . . [¶] (b) . . . Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently.” (§ 669, subds. (a), (b).) Thus, section 669 imposes an affirmative duty on a sentencing court to determine whether the terms of imprisonment for multiple offenses are to be served concurrently or consecutively. (In re Calhoun (1976) 17 Cal.3d 75, 80-81 (Calhoun).) If the sentencing court fails to make such a designation, then the sentence is, by operation of law, concurrent. (§ 669, subd. (b); Calhoun, at pp. 80-81; People v. Downey (2000) 82 Cal.App.4th 899, 915 (Downey); People v. Caudillo (1980) 101 Cal.App.3d 122, 126-127 (Caudillo).)

In this case, the sentencing court did not indicate whether the term imposed on count two was to be served concurrently or consecutively. The court also did not state on the record any reasons for selecting a consecutive term. Instead, the court stated, “[f]or Count 2, the torture, as a result of the special circumstance of torture by — special circumstance of torture for the 187 that has been stayed, the Court will impose the sentence for torture. It is a life sentence.” The court noted that there were two enhancements for count two—section 12022.53, subdivision (d) [25 years to life], and section 12022.53, subdivision (c) [20 years to life]. The court imposed the greater sentence of 25 years to life and stayed the 20 years to life sentence pursuant to section 654. The probation report did not indicate whether a concurrent or consecutive sentence was recommended for count two. Because the trial court failed to orally pronounce whether the sentence on count two was to be concurrent or consecutive, it is deemed concurrent under section 669 and the abstract of judgment must be modified accordingly. (Downey, supra, 82 Cal.App.4th at p. 915; Caudillo, supra, 101 Cal.App.3d at pp. 126-127.)

D. Custody Credit

Defendant contends that the trial court erred by denying him presentence custody credit of 717 days pursuant to section 2900.5, subdivision (a). The Attorney General concedes this point.

Section 2900.5, subdivision (a), provides in relevant part: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . . , all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment.” Section 2933.2 prohibits anyone convicted of murder from receiving work or conduct credit, but does not, by its own terms, preclude a defendant from receiving custody credit.

Defendant was arrested on December 22, 2015, and was sentenced on December 7, 2017. At sentencing, the trial court stated: “The Court will not impose any credits in this matter.” The minutes and abstract reflect that defendant received no custody credit. The probation report calculated that defendant was entitled to 717 days of custody credit and no conduct or work credit.

Defendant was entitled to presentence custody credit. The trial court erred by denying defendant custody credit. “A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered.” (People v. Taylor (2004) 119 Cal.App.4th 628, 646.) We agree with the parties that defendant was in actual custody for a total of 717 days before he was sentenced. The abstract of judgment must be corrected on remand.

III. Disposition

The judgment is reversed. On remand, the trial court shall allow the prosecution to accept a reduction of the conviction for driving or taking to a misdemeanor or to retry the offense as a felony. When the court resentences defendant (either after a reduction or after a retrial), the sentence for count two shall be concurrent to the sentence for count one, and defendant shall be awarded the appropriate amount of presentence custody credit.

 

_______________________________

Mihara, Acting P. J.

I CONCUR:

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Grover, J.

I CONCUR IN THE JUDGMENT ONLY:

_____________________________

Danner, J.

People v. Petty

H045503