People v. White CA2/5 ( 2021 )

Filed 1/4/21 P. v. White CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B295147
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA444963)
v.
ALEX WHITE et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Charlaine Olmedo, Judge. Affirmed.
John A. Colucci, under appointment by the Court of Appeal
for Defendant and Appellant Alex White.
The Justice Firm and Joe Virgilio for Defendant and
Appellant Darron Williams.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., and Michael
Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Alex White and Darron Williams appeal from
their convictions of two counts of first degree murder, one count
of attempted murder, and one count of discharge of a firearm
from a motor vehicle. White argues the trial court erred in
denying his motions to suppress evidence of a traffic stop made a
few days before the shooting as well as statements he made to the
police when later arrested. He also argues the trial court abused
its discretion in admitting a photo of him posing with a gun. We
find no error.
Williams raises one argument on appeal: his murder
convictions must be vacated under Senate Bill No. 1437 (SB
1437), the newly amended felony murder law. Recently, our
Supreme Court in People v. Gentile (Dec. 17, 2020, S256698) __
Cal.5th __ [2020 WL 7393491], upheld the rule announced in
earlier Court of Appeal decisions that relief under SB 1437
cannot be sought on direct appeal. Instead, resentencing must
first be brought in the trial court by way of a petition under Penal
Code section 1170.95.1 We also affirm Williams’s judgment of
conviction.
FACTUAL AND PROCEDURAL BACKGROUND
On April 13, 2015, at approximately 3:20 p.m., B.B. was
standing in the yard of his mother’s house with his brother and
three friends. B.B. heard what he thought were firecrackers and
looked up to see a white SUV with two guns jutting out the
passenger-side windows. Around 20 rounds were fired: his
friends H.O. and P.K. were hit and died of their injuries. B.B.
1 All further undesignated statutory references are to the
Penal Code unless otherwise stated.
2
was not shot but did go to the hospital for a knee injury from
diving into the gutter.
At the same time, a crossing guard was working at a school
up the street from B.B.’s house. She heard gunshots and saw a
white SUV driving rapidly in her direction before making a right
turn at the intersection. She identified the SUV in a photograph
detectives provided, and said she saw three young African-
American occupants of the car.
Three weeks after the shooting, detectives arrested White
and interviewed him in a recorded session. White admitted he
was in the vehicle during the shooting. He told the detectives
that Williams was the driver, and there were one or two other
passengers. White acknowledged he was a member of the 4-8
Gangster Crip gang, and said the shooting happened in rival
gang territory. He claimed he was only catching a ride that day,
and did not participate in the shooting.
White and Williams were charged with the first degree
murder of H.O. (§ 187, subd. (a)), the first degree murder of P.K.
(§ 187, subd. (a)), the attempted murder of B.B (§§ 664/187), and
discharge of a firearm from a motor vehicle (§ 26100, subd. (c)).
The information alleged firearm enhancements (§ 12022.53),
gang enhancements (§ 186.22, subd. (b)(1)(C)), and special
circumstances as to the murder counts (§§ 190.2, subd. (a)(3)
[multiple murder] & 190.2, subd. (a)(21) [drive-by murder]).
White and Williams were jointly tried with separate juries.
At trial, White’s incriminating statements to the police were
admitted into evidence. The prosecution also presented
Williams’s cell phone records showing he was in the vicinity of
the crime scene when the shooting occurred, and surveillance
footage showing a white SUV that appeared to be a Chevy
3
Traverse traveling on the street where the shooting took place. A
firearms expert testified that 14 bullet casings were recovered
from the scene, fired from three guns.
The prosecution also presented evidence of two events that
occurred prior to the shooting. First, in 2007, Williams was
convicted of a drive-by shooting less than two blocks from the
present crime scene. Second, 11 days before the present shooting,
Officer Bryan Schilling had pulled over a white Chevy Traverse
SUV driven by Williams. White also was in the vehicle along
with three other passengers. Everyone in the SUV was a
member of the 4-8 Gangster Crips. Officer Schilling had cited
Williams for a license plate violation and White (and others) for a
seat belt violation. Officer Schilling noticed that Williams was
disabled and the vehicle was equipped with levers to allow him to
operate the controls with his hands.
A gang expert testified that Williams and White were 4-8
Gangster Crip members. A photo was introduced of White,
Williams, and others displaying gang signs; White had a pistol
tucked in his waistband. Given a hypothetical mirroring the
facts of the case, the expert opined the shooting was committed
for the benefit of, and in association with, the gang.
White’s attorney called K.V., the mother of victim B.B., to
testify. She had been sitting on her front porch when the
shooting happened. In testimony that appeared unexpected, she
identified White as the shooter.2 The prosecutor asked K.V. “how
certain” she was that White “was the one who did the shooting”?
2 White’s counsel told the court, “Her testimony is a complete
surprise to me.”
4
K.V. answered, “I’m certain.” She knew White and his family
from the neighborhood. She could not identify the driver.
The juries convicted White and Williams on all counts. The
court sentenced White to life without possibility of parole on the
two murder counts (one of which was stayed) and concurrent
terms of 25 years to life (attempted murder) and 15 years to life
(discharge of a firearm from a motor vehicle), plus a 10-year gang
enhancement. Other enhancements were stayed. Williams was
sentenced to two consecutive sentences of life without the
possibility of parole plus 39 years to life. Defendants timely
appealed.
DISCUSSION
I.
Defendant White’s Appeal
White argues the trial court erred in denying his motions to
suppress evidence of a traffic stop made prior to the shooting as
well as statements he made to the police after he was arrested.
He also argues the trial court abused its discretion in admitting a
photo of him posing with a gun.
A. The Motion to Suppress Evidence of the Traffic
Stop
White contends the trial court erred in admitting evidence
of a traffic stop that occurred several days prior to the shooting.
We report the circumstances of the detention in detail in order to
address White’s arguments that (1) there was insufficient
evidence of a violation of the Vehicle Code to justify a traffic stop;
and (2) the officers admitted that the detention was really to
investigate defendants’ gang association.
5
1) The Traffic Stop
On April 2, 2015, 11 days prior to the shooting, Officers
Schilling and Garcia were “working gangs” and patrolling the
neighborhood on “Hood Day,” a celebration by a local gang.
Throughout the day, the officers observed a gathering of gang
members. At 11:06 p.m., the officers were in their car, idling on
the side of the road when Williams drove past them going in the
opposite direction. The officers’ car did a U-turn and pulled
Williams over. A video camera in the police car was activated
and connected with microphones in Officers Schilling’s and
Garcia’s belts to record the subsequent events.
Officers Schilling and Garcia exited their car and
approached Williams’s car. White was a passenger, as were three
other men, including Devonte Parker. Williams rolled down his
window and asked, “How come I got pulled over?” Officer
Schilling responded, “The old license plate light.” Officer Garcia
asked for ID:
“[Officer Garcia]: You got your ID on you? Anybody in the
back got ID on them? Yes? No? Maybe so? . . . . I’m being calm
as fuck with you guys right now. All right? We can either do it
just chill, or we can do it all with all the bullshit. . . .
“[Officer Schilling]: Hey, Louis, get the three in the back’s
ID. They’re all gonna get fucken cited up.
“[¶] . . . [¶]
“[Officer Garcia]: . . . Well, the guy -- the -- they -- this
guy in the middle he has ID. The other two guys or everyone else
is playing, fucken, like assholes. We’re just gonna fucken pull
everybody out one at a time.”
Officer Schilling made a call to other officers for assistance.
Two additional officers arrived. Each of the four officers took one
6
passenger out of the car. Officer Schilling asked another officer
about Williams: “See the guy in the wheelchair?” An unidentified
officer responded, “[Officer] Fernie said he seemed nervous, dude,
like shaking.” The sound of laughter followed this remark.
As Officer Garcia questioned a passenger about his tattoos
and gang affiliations, the passenger protested: “You’re making it
hard for us, man. We just trying to get home.” Officer Garcia
responded:
“[Officer Garcia]: Man, we cut you guys so much fucken
slack today. . . . You saw me fucken circle that motherfucker like
four, five, man, like 10 times.
“[Passenger]: Well, we outta there though.
“[Officer Garcia]: I didn’t do shit. Well, obviously, we’re
gonna contact you eventually, right?
“[Passenger]: (unintelligible sound)
“[Officer Garcia]: We let you -- we let you have your party.
We let you have your party, right?
“[Passenger]: Right.
“[Officer Garcia]: And so you gotta let us do our thing.
“[Passenger]: That’s what we doing though. Like, ya’ll see
we outta there. Y’all could’ve been going –
“[Officer Garcia]: You gotta let us do our thing. We – we
let you guys go for a long time.”
“[Officer Schilling]: Yeah, that is bad.
“[Parker]: Well, I gave you my name, Officer.
“[Officer Schilling]: You been arrested? . . .
“[Parker]: Yes, I have before.
“[Officer Schilling]: Okay. So you have? Here, man, turn
around. Put your . . . hands behind your back. . . . Now, you’re
going to have to get him to come off, because, otherwise, I’m
7
gonna take you to the station. . . . Face the wall. . . . I’m gonna
find you now. We’re gonna stay out here all night, man. . . . And
if I find you under some other name – . . . I’m gonna book you on
an open. . . . Right now if I find you, I’ll take you – I’ll take you
down and I’ll get you fingerprinted.”
After finding Parker in the police database under a
different spelling than what Parker had given, Officer Schilling
asked Parker about his gang affiliation and his activities that
day.
When the officers’ questioning had continued for about 40
minutes, Officer Schilling asked Officer Garcia, “Want to cite
him? . . . Are you gonna cite him?”
“[Officer Garcia]: Yeah.
“[Officer Schilling]: All three of them?
“[Officer Garcia]: Yeah.”
Each of the four officers wrote out a ticket. Officer
Schilling also continued to question Parker, asking him about a
prior conviction, his tattoos, and whether he was able to outrun a
police dog. Finally, Officer Schilling told Parker, “All right, man.
I’m done clowning you for today. It was too easy.” Another
passenger asked Officer Schilling, “We the only car y’all pull over
tonight?”
“[Officer Schilling]: No.
“[Unidentified Officer]: No.
“[Officer Schilling]: They’re been about – a lot more.
“[Unidentified Officer]: We had – we had a good –
“[Unidentified Male]: I’m talking about out of – I’m talking
about from where y’all came from . . . to where – to where we
came from.
8
“[Officer Schilling]: Man, I was there all day. Didn’t you
see me drive up and down that street all day?
“[Unidentified Male]: Y’all was waiting just to – y’all
probably. . . .
“[Unidentified Male]: Man.
“[Officer Schilling]: He’s all, duh. . . .
“[Unidentified Male]: But why y’all can’t . . . .
“[Officer Schilling]: Well, tomorrow, of course, we’re gonna
come . . . . Fortunately, I’ll see you guys tomorrow. We’ll try it
again tomorrow and see if it goes all day tomorrow.”
The officers issued Williams a traffic ticket for a violation of
Vehicle Code section 24601 (license plate light), and three tickets
to the backseat passengers for violating Vehicle Code section
27315 (not wearing a seat belt). Fifty-four minutes had elapsed
since the officers pulled Williams over.
The prosecution opposed the motion, arguing that Officer
Schilling had an “objectively reasonable belief that [Williams’s]
burned-out license plate lamp violated” the Vehicle Code. The
prosecution also argued that the detention was not prolonged “in
any meaningful way” because ten minutes before the end of the
stop, one officer indicated he was still “writing” out a ticket for
passenger Parker.
2) The Hearing
At the hearing on the motion to suppress, the prosecution
submitted the dashcam video into evidence. The video showed
that the license plate had lights located on the right and left
sides, and that the left-side light was not functioning. Officer
Schilling testified he stopped Williams’s car on the date in
question because “one of the license plate lights was not
9
working,” and he knew this was a violation of Vehicle Code
section 24601 (section 24601).
Section 24601 provides that “Either the taillamp or a
separate lamp shall be so constructed and placed as to illuminate
with a white light the rear license plate during darkness and
render it clearly legible from a distance of 50 feet to the rear.
When the rear license plate is illuminated by a lamp other than a
required taillamp, the two lamps shall be turned on or off only by
the same control switch at all times.”3
Officer Schilling acknowledged the stop lasted 54 minutes,
but said “as soon as we cited everybody, they were free to go. As
soon as we found Mr. Parker in the computer, everybody was free
to leave at that time.” “We only spoke with the occupants of the
car until the last ticket was signed. Once the last ticket was
signed they were free to leave.”
The defense pointed to still photos from the dashcam video
showing the license plate was illuminated by a functioning tail
lamp, and argued there was no violation of section 24601. The
prosecutor acknowledged the license plate was illuminated by one
taillamp, but argued that any broken taillight was a violation of
section 24601. The prosecution also argued the detention was not
prolonged because the officers were “conducting their own
conversations with the other passengers in order to determine
their identification and to eventually cite them for the seat[]belt
violation.”
3 The parties and the trial court also discussed a second
statute, Vehicle Code section 24252, which provides in pertinent
part: “All lighting equipment of a required type installed on a
vehicle shall at all times be maintained in good working order.”
(Veh. Code, § 24252, subd. (a).)
10
The trial court denied the suppression motion. The court
was of the view that section 24601 does not require two lights,
and focused instead on the statute’s requirement that a rear
license plate be both illuminated and legible from a distance. The
court found that the license plate was illuminated by one lamp
but that there was an absence of evidence as to whether the plate
was legible: “[T]he plate was illuminated . . . the officer said he
could see the plate. But there wasn’t further questioning from
either side whether the plate itself was legible. [¶] . . . [¶] I find
nothing in the record to say that from that distance, even with a
burnt-out light, the lettering on the plate was still clearly legible
to the officer.” The video footage, the court found, was not
“accurate” because of the “reflective” nature of the plate which
made it “hard to view . . . what was necessarily visible . . . .”
Finally, the court concluded the stop was not unlawfully
prolonged because writing “tickets can take a while . . . with four
individuals.”
White’s counsel later moved for reconsideration of the
court’s ruling, which the trial court denied.
3) The Traffic Stop Did Not Violate the
Fourth Amendment
White argues the trial court erred in denying the motion to
suppress because the prosecution did not meet its burden of
showing Officer Schilling had a reasonable suspicion of a Vehicle
Code violation. The trial court, White contends, inverted the
burden of proof when it ruled against him on the ground that
White had failed to show substantial evidence that the license
plate was legible. In White’s view, Officer Schilling was
mistaken in concluding that section 24601 required that both
license plate lights be operational. Lastly, White argues “it
11
would not serve the principles of the Fourth Amendment to allow
police officers to declare reliance on the mistaken reading of a
statute and then to beg forgiveness based upon a reasonableness
argument while all the while the real reason for the stop was
otherwise illegal.”
Under the Fourth Amendment, law enforcement must
obtain a warrant before conducting a search or seizure unless an
exception to the warrant requirement applies. (See, e.g., People
v. Williams (1999) 20 Cal.4th 119, 125–126.) “When a police
officer makes a traffic stop, the driver of the car is seized within
the meaning of the Fourth Amendment.” (Brendlin v.
California (2007) 551 U.S. 249, 251.) Where a defendant
challenges the lawfulness of a search or seizure, “the People are
obligated to produce proof sufficient to show, by a preponderance
of the evidence,” that one of the exceptions to the warrant
requirement is applicable. (People v. Romeo (2015) 240
Cal.App.4th 931, 939.)
One exception is that a warrant is not required for a brief
investigatory stop supported by reasonable suspicion of a crime.
(See, e.g., Cornell v. City and County of San Francisco (2017) 17
Cal.App.5th 766, 779–780 [“A ‘brief, investigatory stop’ is
justified where an officer has ‘reasonable, articulable suspicion
that criminal activity is afoot,’ implicating the suspect.”].) “[T]o
justify this type of seizure, officers need only ‘reasonable
suspicion’ — that is, ‘a particularized and objective basis for
suspecting the particular person stopped’ of breaking the law.
[Citation.]” (Heien v. North Carolina (2014) 574 U.S. 54, 60
(Heien).)
That a police officer makes a mistake about the law or the
true facts does not automatically render the suspicion
12
unreasonable. (Heien, supra, 574 U.S. at p. 66.) However, “[t]he
Fourth Amendment tolerates only reasonable mistakes, and those
mistakes—whether of fact or of law—must be objectively
reasonable. We do not examine the subjective understanding of
the particular officer involved. [Citation.]” (Ibid.; see People v.
Campuzano (2015) 237 Cal.App.4th Supp. 14, 16 [“an objectively
reasonable mistake of law can give rise to a reasonable suspicion
under the Fourth Amendment”].)
In reviewing the trial court’s denial of a motion to suppress,
we defer to the trial court’s factual findings where supported by
substantial evidence. (See People v. Woods (1999) 21 Cal.4th 668,
673.) We review independently whether the search or seizure
was legal under the Fourth Amendment requirement of
reasonableness. (People v. Camacho (2000) 23 Cal.4th 824, 830–
831.)
Here, the trial court upheld the warrantless seizure of the
occupants of the car based on a finding of insufficient evidence
the license plate was legible as required by section 24601. We
agree with White that the manner in which the trial court
expressed its ruling erroneously placed the burden of proof on the
moving party when, in fact, the prosecution bore that burden.
The lack of critical evidence, if there was any, inured to the
detriment of the prosecution. (See Romeo, supra, 240
Cal.App.4th at p. 939.)
On appeal “we consider the correctness of the trial court’s
ruling itself, not the correctness of the trial court’s reasons for
reaching its decision. [Citation.]” (People v. Letner and Tobin
(2010) 50 Cal.4th 99, 145.)
White offers that the correct interpretation of section 24601
is that only one license plate light needs to be functional if the
13
rear plate is illuminated and is legible from 50 feet. However, for
present purposes the authoritative interpretation of the statute is
not the test. Instead, we ask whether any misunderstanding of
section 24601 by Officer Schilling was objectively reasonable
under the facts of the case and thus supported the stop and
detention. “The question . . . is not whether [defendant’s] vehicle
was in fact in full compliance with the law at the time of the stop,
but whether [the officer] had ‘ “articulable suspicion” ’ it was not.
[Citations.]” (People v. Saunders (2006) 38 Cal.4th 1129, 1136.)
“ ‘ “[R]easonableness,” with respect to this necessary element,
does not demand that the government be factually correct in its
assessment.’ ” (Ibid.)
The trial court found the broken license plate lamp
rendered the license plate less visible and legible than “if both
[lights] had been working.” While there was still some
illumination, and the prosecution did not present evidence the
plate was illegible from a distance of 50 feet, we also do not “call
upon the officers to be scientists” and measure the extent of
illumination from a specific distance. (People v. Niebauer (1989)
214 Cal.App.3d 1278, 1292.) Williams’s license plate was
designed to be illuminated from both sides, and that the plate
lacked illumination from one side was an objectively reasonable
basis for suspecting that the plate was not “clearly legible” in the
darkness at a distance of 50 feet in violation of section 24601.
We also observe that section 24601 not only requires a
license plate to be illuminated and legible, but also includes the
provision that, “When the rear license plate is illuminated by a
lamp other than a required taillamp, the two lamps shall be
turned on or off only by the same control switch at all times.”
(Emphasis added.) This reference to “two lamps” being “turned
14
on” at the same time could be construed to suggest that when a
license plate is designed to be illuminated by two lamps, both
lamps must be functional. It is true that other parts of the
statute suggest that one license plate light may be permitted and
the “two lamps” may be referring to one taillamp and one license
plate light. The statute reasonably could be read either way.
Finally, White acknowledges that an officer’s “ ‘subjective
intentions play no role in ordinary probable-cause Fourth
Amendment analysis.’ ” Yet, he argues that the dashcam video
establishes that the officers “had decided to stop the vehicle prior
to observing the license plate light.” White points to the officers’
comments captured on the dashcam video that they had been
watching these men all day, and waiting for them. Specifically,
when one of the passengers protested that the officers were
giving them a hard time, Officer Garcia said he had “circled” the
passengers’ gathering “like 10 times” that day, and “obviously,
we’re gonna contact you eventually.” As Officer Garcia put it, the
officers had “let” the passengers “have” their party, and thus,
these men were now obligated to “let” the officers “do [their]
thing.” When one of the passengers asked if the officers had
pulled over other cars coming from the passengers’ gathering,
Officer Schilling said they had. Officer Schilling volunteered, “I
was there all day. Didn’t you see me drive up and down that
street all day?” Connecting the dots, the passenger responded,
“Y’all was waiting just to . . . .” “Duh,” Officer Schilling replied.
While we agree that these statements indicate the officers
pulled Williams’s car over primarily to investigate the gang ties
of the occupants, the United States Supreme Court has “made
clear that Fourth Amendment challenges based upon a claim that
a seizure or search was ‘pretextual’ are without merit. (See
15
Whren v. United States (1996) 517 U.S. 806, 813.)” (People v.
Letner and Tobin, supra, 50 Cal.4th at p. 144 [that an officer may
have had a “grudge” against the defendants did not make the
stop illegal].) “We think these cases foreclose any argument that
the constitutional reasonableness of traffic stops depends on the
actual motivations of the individual officers involved.” (Whren v.
United States, supra, 517 U.S. at p. 813.)4
B. White’s Motion to Suppress His Statements to
the Police
1) The Interrogation
On May 7, 2015, three weeks after the shooting, Detective
Jose Calzadillas and his partner interviewed White at the
station. Detective Calzadillas advised White of his Miranda
rights and White said he understood them, and talked to
Detective Calzadillas at length. White acknowledged he was a 4-
8 Gangster Crips gang member, and that he was in the car
during the April 13th shooting. He was equivocal as to whether
there were three or four people in the car. He said a man called
Tiny Manson was driving—Williams’s moniker was “Little
Manson”—and identified a picture of the car. Eventually, White
asked to see his mother, and the detectives let her speak with
him. White then asked Detective Calzadillas for a lawyer. The
detective ignored the request,5 and kept questioning White for
approximately another half an hour.
4 Neither White nor the Attorney General discuss
“pretextual stop,” presumably because of the authorities we cite
in the text.
5 “[Defendant White]: Can I get a lawyer, man?
“[Detective Calzadillas]: You want a lawyer?
“[Defendant White]: Yeah, man.”
16
The following day, on Friday, May 8, 2015, Detective
Calzadillas met with White again. The detective said, “your mom
got a hold of the detective and said you want to talk to us again?”
White responded in the affirmative. Detective Calzadillas asked
if White understood that “everything [they] talked about
yesterday still stands in effect [–] That you[r] rights and all that
stuff stands . . . .” White asked if he could “have a lawyer . . . for
my thing. . . . I’m not talking about for today.” The detective
responded, “Oh, yeah, if you wanted to have the lawyer later on
the road, it’s fine. But do you want to talk to us now without
one?” White responded, “Uh, yeah, it’s all right.”
White proceeded to talk with Detective Calzadillas. White
said there were four people in the car, and admitted that
Williams was driving the car. Detective Calzadillas then let
White speak with detective Stacey Symkowiak, who knew White
and his family. Detective Symkowiak encouraged White to
cooperate with the investigation. White said to her at one point,
“I need somebody here. . . . My attorney, or somebody.”
Detective Symkowiak told him, “You don’t have an attorney yet,”
that counsel would not be assigned to him until he went to court
“on Monday,” and “If you think that’s gonna be your lifeline,
you’re fooling yourself.” She told him, “The only chance you have
“[Detective Calzadillas]: I’m telling you right now, you’re
going to jail for murder. You have that right. But I’m telling you
right now, since you’re not saying anything, I – based off my
investigation, you’re going to jail for murder. Is that how you
want to leave it?
“[Defendant White]: Man.
“[Detective Calzadillas: Is that how you want to leave it?
“[Defendant White: Man, like – why y’all – can y’all talk to
somebody else since I’m not the only one here?”
17
right now is that . . . you may not have played as bad of a part as
they did, and your chance, your opportunity is to tell” the
detectives.
White then spoke with Detective Calzadillas again, and
said again there were three or four people in the car. White
continued to assert that another passenger in the car had fired
the shots.
2) The Motion to Suppress
White moved pretrial to suppress his statements to the
detectives for violating his right to counsel. The trial court
granted the motion in part. The court found that White had
implicitly waived his right to counsel at the beginning of his
May 7 interview because Detective Calzadillas advised him of his
Miranda rights and White indicated he understood them and
began talking. However, the court found that after White’s
mother talked with him, White invoked his right to counsel by
asking for a lawyer. The court suppressed the rest of White’s
statements that day. The court further found that the following
day, when White asked to speak with the detectives, White again
implicitly waived his rights and freely talked with the detectives
by initiating a new conversation.
3) The Admissibility of White’s Statements
after Speaking with Detective Symkowiak
White contends that the trial court erred in failing to
suppress the statements he made after his conversation with
Detective Symkowiak because he had asserted his right to
counsel. His argument turns on his statement to the detective
that he needed “somebody here . . . [m]y attorney or somebody.”
He claims Detective Symkowiak “nullified” his right to counsel by
badgering him to talk to Detective Calzadillas, and telling White
18
he could not have counsel until he went to court on Monday,
three days later.6 We conclude the statements were properly
admitted.
“If a defendant waives his right to counsel after receiving
Miranda warnings, police officers are free to question him.
[Citation]. If, post-waiver, a defendant requests counsel, the
officers must cease further questioning until a lawyer has been
made available or the defendant reinitiates. [Citation.]
However, the request for counsel must be articulated
‘unambiguously’ and ‘sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to
be a request for an attorney.’ [Citation] If a defendant’s
reference to an attorney is ambiguous or equivocal in that ‘a
reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to
counsel, [precedent does] not require the cessation of
6 Respondent argues White forfeited this argument because
he did not argue before the trial court that he had invoked his
right to counsel during his conversation with Detective
Symkowiak. Even if White forfeited the claim due to his
counsel’s failure to specifically argue that his statements to
Detective Symkowiak invoked his right to counsel, because the
issue appears to be one of law based on undisputed facts we
exercise our discretion to reach the merits of his claim. (People v.
Williams (1998) 17 Cal.4th 148, 161, fn. 6 [“An appellate court is
generally not prohibited from reaching a question that has not
been preserved for review by a party.”]; cf. People v. Linton (2013)
56 Cal.4th 1146, 1166 [finding forfeiture where “no opportunity
was presented to the trial court to resolve any material factual
disputes and make necessary factual findings”].)
19
questioning.’ [Citation.]” (People v. Shamblin (2015) 236
Cal.App.4th 1, 19.)
“In reviewing a trial court’s Miranda ruling, we accept the
court’s resolution of disputed facts and inferences and its
evaluations of credibility, if supported by substantial evidence,
and we independently determine, from the undisputed facts and
facts properly found by the trial court, whether the challenged
statement was illegally obtained. [Citation.]” (People v. Bacon
(2010) 50 Cal.4th 1082, 1105.) Where a defendant’s statements
to the police are undisputed, “we engage in a de novo review of
the legal question of whether the statement at issue was
[admissible].” (Ibid.)
Here, White’s statements—“I need somebody here. . . . My
attorney, or somebody.”—were equivocal as they referred to
needing either an attorney “or” some other person. (See People v.
Frederickson (2020) 8 Cal.5th 963, 1011 [a defendant did not
unequivocally invoke his right to counsel when he asked, “ ‘Hey,
when am I going to get a chance to call my lawyer?’ ”].) This
conveyed to a reasonable officer that White might want to invoke
his right to counsel, not that he was unambiguously expressing
his desire to terminate the conversation. (See Bacon, supra, 50
Cal.4th at pp. 1104–1105.) In the context of the exchange, White
was not asking for a lawyer at that moment, but was talking with
Detective Symkowiak about how to proceed with his
interrogation by Detective Calzadillas.
Detective Symkowiak was not questioning White about the
crime; she was urging him to cooperate: she counseled White to
tell Detective Calzadillas “the truth” and to not “play these
games.” She ostensibly had interrupted White’s interrogation to
advise White to cooperate because White’s family had been
20
“calling” her and “begging” her to help him. White indicated
familiarity with Detective Symkowiak by addressing her by her
first name, and asking her to explain why the police would charge
him with murder.
In this context, a reasonable officer could have concluded
that White did not indicate that he wanted to stop his
conversation with detectives immediately and consult counsel.
We conclude the trial court did not err in admitting the
statements White made after he spoke with Detective
Symkowiak.
C. The Admission of a Photo Showing White with a
Gun
White argues the trial court abused its discretion in
admitting a photo showing him making gang signs while posing
with a handgun in his waistband. The prosecution pointed to the
photo when questioning a defense witness, and asked
hypothetically if the photo showed that the person with a gun
was a “shooter for the gang.” The witness responded, “He could
be.” White now argues this evidence was impermissible
character evidence that had no relevance other than to show he
was the sort of person who carries a gun.
Evidence of prior weapon possession may be admissible
when relevant to prove some fact (e.g., motive, opportunity,
preparation, knowledge or identity) other than a defendant’s
disposition to possess weapons or to commit a crime. (Evid. Code,
§ 1101, subd. (b).) However, such evidence should not be
admitted if its probative value is substantially outweighed by the
probability of undue prejudice, confusion of issues or misleading
the jury. (Evid. Code, § 352; People v. Davis (2009) 46 Cal.4th
539, 602.) “ ‘We review for abuse of discretion a trial court’s
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rulings on relevance and admission or exclusion of evidence
under Evidence Code sections 1101 and 352.’ ” (Davis, supra, at
p. 602.)
We conclude the photo of White with the gun was
admissible under Evidence Code section 1101, subdivision (b).
White’s motive and intent in shooting and murdering two people
were relevant to the prosecution’s theory that White was a gang
member who committed the crime as an attack on a rival gang.
(See People v. Nguyen (2015) 61 Cal.4th 1015, 1073 [evidence that
the defendant “possessed numerous firearms had ‘tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action’ [], namely, that
he was a gang member at war with a rival gang”].) Nor was the
evidence of a tucked-in pistol unduly prejudicial in comparison to
evidence of the violent drive-by shooting. The trial court did not
abuse its discretion in concluding the photo’s probative value was
not substantially outweighed by its prejudicial effect.
D. Cumulative Error
White contends his convictions must be reversed for
cumulative error. Because we have no found error, the claim of
cumulative error is without merit.” (See, e.g., People v. Reed
(2018) 4 Cal.5th 989, 1018.)
II.
Defendant Williams’s Appeal
A. Williams Was Required File a Petition Under
Section 1170.95 to Seek Relief Under SB 1437
With only slight deviation, Williams raises only a single
argument in his opening brief—he was entitled to be resentenced
under SB 1437. He does not join in the arguments of defendant
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White and accordingly we do not consider those arguments in
Williams’s appeal.
“Senate Bill 1437 was enacted to ‘amend the felony murder
rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed
on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.’ (Stats.
2018, ch. 1015, § 1, subd. (f).) Substantively, Senate Bill No. 1437
accomplishes this by amending [Penal Code] section 188, which
defines malice, and [Penal Code] section 189, which defines the
degrees of murder, and as now amended, addresses felony
murder liability. Senate Bill No. 1437 also adds the
aforementioned section 1170.95, which allows those ‘convicted of
felony murder or murder under a natural and probable
consequences theory . . . [to] file a petition with the court that
sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts. . . .’ (§ 1170.95, subd. (a).)” (People v. Martinez (2019) 31
Cal.App.5th 719, 723 (Martinez).)
Williams argues his murder convictions must be vacated
under SB 1437 because it was undisputed he was not the shooter,
and the jury did not make findings that he was a major
participant in the crimes or that he acted with reckless
indifference to human life.7 The striking flaw in this argument is
7 Williams also argues we should reverse his firearm
enhancement because of a “change” in the law, but he does not
identify what change he is referring to or cite to any authority.
We observe that White’s trial counsel informed the court of its
discretion under Senate Bill No. 620 to impose a lesser firearm
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that SB 1437 relief must be pursued first in the trial court by
way of a petition for resentencing under section 1170.95.
(Martinez, supra, 31 Cal.App.5th at p. 729 [“we hold the section
1170.95 petition procedure is the avenue by which defendants
with nonfinal sentences of the type specified in section 1170.95,
subdivision (a) must pursue relief . . . [¶] . . . [¶] [A] defendant
retains the option of seeking to stay his or her pending appeal to
pursue relief under Senate Bill 1437 in the trial court.”].) Our
Supreme Court recently upheld Martinez and the other Court of
Appeal decisions that have held SB 1437 relief is not available on
direct appeal.8 (People v. Gentile, supra, __ Cal.5th __ [2020 WL
7393491].) Williams’s present effort to raise the issue on appeal
fails. Accordingly, we affirm his convictions.
enhancement, and the court recognized that it had “the discretion
to strike or stay” the enhancement under section 12022.53,
subdivision (d). The trial court chose not to do so.
8 The Supreme Court’s opinion in Gentile was filed several
months after briefing in this appeal was complete. Gentile cites
approvingly and quotes from Martinez. During briefing, counsel
for Williams was aware that Martinez had held that SB 1437
relief was not available on direct appeal. On April 8, 2019,
counsel filed a “Petition for Stay of Appeal Pending Outcome of
Petition to Vacate Convictions Based on California Penal Code
section 1170.95 and People v. Martinez.” Counsel stated in his
petition to stay the appeal that “there is no direct right of appeal
from a conviction of first or second degree murder under the
change in the California felony murder rule” and noted that the
Court of Appeal had “recently addressed the issue of direct
appealability in the case People v. Martinez[, supra,] 31
Cal.App.5th [at p.] 719.”
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DISPOSITION
The judgments against appellants White and Williams are
affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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