P. v. Chi

Filed 6/22/07 P. v. Chi CA6

Opinion following remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant was convicted by jury trial of aggravated assault (Pen. Code, 245, subd. (a)(1)), and the jury found true allegations that he had personally used a dangerous or deadly weapon (Pen. Code, 667, 1192.7, subd. (c)(23)) and personally inflicted great bodily injury (Pen. Code, 12022.7, subd. (a)) on the victim of the assault. The jury also found true an allegation that defendant had committed the assault while out of custody on bail (Pen. Code, 12022.1). On appeal, defendant claims that the trial court prejudicially erred in denying his motion to exclude his statements to the police. He also asserts that the courts instruction of the jury with the group beating portion of CALJIC 17.20 was prejudicial error. We conclude that the the court did not err in denying his motion, and that the trial court did not prejudicially err in instructing the jury with the group beating portion of CALJIC 17.20. Consequently, we affirm the judgment.

I. The Prosecutions Case At Trial

On May 11, 2001, Kien To and a group of his friends went to the Thien Thanh Caf.[1] Tos friends Hoang and Vu saw defendant with another male and a female at another table.[2] Hoang believed that defendant and/or the other male had previously assaulted him, and he threw a glass of coffee at their table. After the incident, a friend told To that defendants name was Nhan.

On the evening of June 22, 2001, To, his girlfriend and his friend Tin Nguyen went the Quynh Lam Caf. The inside of the Quynh Lam Caf was pretty dark and dimly lit but not so dim that a person could not recognize another person from 15 feet away. As To pulled out a chair to sit down at a table, he saw defendant, who was about 15 feet away, stand up and throw a glass of coffee at him. The glass hit To in the forehead. To noticed that defendant was with several other people including Tuan. Defendants companions also threw glasses toward Tos table, but none of these glasses hit To. To left the caf, and the police were summoned.

When the police arrived, they found To with a bloody face and a hysterical Nguyen who kept yelling, They attacked us, they attacked us, they attacked us. To, who did not speak English well, told the police that he had been hit by a glass, but he was uncooperative and told them he did not know any of the people who had thrown the cups at him. To also said he had never seen his attackers before and would not recognize them if he saw them again. To suffered deep cuts to his head, including one on his forehead, kind of in the shape of a cup, that required 23 stitches. To also had a black eye, bruising, and some other small cuts. Medical personnel reported that the wounds appeared to have been caused by a glass bottle.

On June 27, To told the police that the person who had hit him with a cup was named Nhan. On July 2, To identified defendant in a photo lineup as the person who had hit him with a glass. Defendant was arrested on July 17 and interviewed by San Jose Police Officers Shawny Williams and Jason Ta. Most of the interview was conducted in English, but some of it was conducted in Vietnamese. Defendant told Williams and Ta that he had been at the Thien Thanh Caf on May 11, and To had been with some people who assaulted defendant. Defendant was injured by a cup thrown by Tos companions. Defendant also told Williams and Ta that he wanted to take revenge for that incident if he saw those individuals again. Ta falsely told defendant that the police had a videotape of the June 22 incident. Defendant admitted that he had been at the Quynh Lam Caf on June 22 with his friends Meo and Tuan, and he told them that he had thrown five or six cups during that incident after his friends said that To and his male companion are the guys. Defendant repeatedly insisted that he had not thrown the first cup.

II. Procedural Background

Defendant was charged by information with aggravated assault (Pen. Code, 245, subd. (a)(1)), and it was further alleged that he had personally used a dangerous or deadly weapon (Pen. Code, 667, 1192.7, subd. (c)(23)) and personally inflicted great bodily injury (Pen. Code, 12022.7, subd. (a)) on To. The information also alleged that defendant had committed the assault while out of custody on bail (Pen. Code, 12022.1).

Defendant made an in limine motion to suppress the statements he made to the police during the July 17 interview on the grounds that the statements were involuntary and he had not waived his constitutional rights. After an Evidence Code section 402 hearing, the court denied the motion. It expressly found that defendant had been properly advised of his rights and had acknowledged them before being interrogated. The jury found defendant guilty and found the allegations true. Defendant was committed to state prison for a term of six years, composed of the three-year midterm for the aggravated assault count and a three-year term for the personal infliction of great bodily injury enhancement. He filed a timely notice of appeal.

On appeal, this court concluded that the trial court had prejudicially erred in instructing the jury with the group beating portion of CALJIC 17.20. The California Supreme Court granted review, and it subsequently transferred the case back to this court with directions to reconsider the matter in light of the California Supreme Courts intervening decision in People v. Modiri (2006) 39 Cal.4th 481. We now reiterate our prior opinion on defendants challenge to the admission of his statements, and we address defendants instructional error contention in light of Modiri.

III. Discussion

A. Admission of Statements

Defendant claims that the trial court prejudicially erred in admitting his statements during the July 17 interview because he had not validly waived his Miranda[3] rights.

1. Background

At the hearing on defendants motion to suppress the statements, Williams testified that the July 17 interview took place after defendants arrest for a probation violation. Williams asserted that defendant never had any difficulty understanding what Williams was asking him in English, and had no difficulty communicating with Williams in English. Williams did not understand Vietnamese, but Ta spoke Vietnamese.

An audiotape and transcript of the July 17 interview were introduced at the hearing. The transcript reflects that the interview began with Williams advising defendant of his constitutional rights. Williams first told defendant what I wanna talk to you about involves that, that coffee shop. Defendant said Yeah. Williams said: Okay? But let me explain your rights to you before I ask you about it. You have the right to remain silent, do you understand? You speak English, right? Defendant replied Not very much, but . . . . Williams then said Do you understand what Im saying though? Defendant said Yeah.[4] Williams said: Okay. Anything you say can and will be used against you in a court of law. Do you understand? You have the right to talk to a lawyer and have one present with you while youre being questioned. Do you understand? Defendant said Yeah. Williams said: If you cant afford to hire a lawyer, one will be appointed to represent you at no expense. Do you understand? Defendant said Yeah. Williams said Do, okay, do you understand each of those rights? Okay, you, thats a yes? Youre nodding your head. Defendant said Yeah. Williams said: Okay. I know that youre a victim, okay? and then questioned defendant extensively about the May 11 incident. Defendant responded to all of Williamss questions and told Williams that he and a female friend had been struck and injured by cups or bottles during the May 11 incident. During this interchange, defendant responded appropriately to Williamss questions in English. Ta also spoke to defendant in Vietnamese about the May 11 incident.

Eventually, Williams and Ta asked defendant about the June 22 incident. Much of this interchange was between Ta and defendant in Vietnamese. Defendant told the officers that there had been a fight and cups were thrown. Ta told defendant, in English, I need you to be honest about the fight, right? Who was involved in the fight? I already know who was in the fight. You know why because theres a camera. Defendant responded Yeah. Ta said: Its all on tape. Everythings on tape. Defendant responded, in Vietnamese, I know. Ta then said But on the tape you see who throws the first cup. You see where the cup come from and you see theres four cups thrown. Defendant fairly swiftly admitted that he had thrown five or six cups, but he repeatedly insisted that he had not thrown the first cup. He claimed that someone behind him, possibly one of his friends, had thrown the first cup. Defendant maintained that the subjects of the assault had thrown cups back at him and his friends. Defendant admitted that he had wanted revenge against To for the earlier incident.

At the conclusion of the hearing, defendants trial counsel asked the court to exclude the statements because my client was not given proper Miranda warnings and we have some other problem as well. The court excluded the tape and transcript of the interview, but it allowed the prosecution to adduce testimony regarding defendants admissions during the interview. The court expressly found that defendant had been properly advised of his rights and had acknowledged them. Williams and Ta testified at trial about defendants admissions during the interview.

2. Analysis

A waiver may be express or implied, and the prosecution bears the burden of proving, by a preponderance of the evidence, that a knowing and voluntary waiver occurred. (People v. Cortes (1999) 71 Cal.App.4th 62, 69; People v. Whitson (1998) 17 Cal.4th 229, 250.) In determining whether a defendant waived his rights, the court must consider the totality of the circumstances surrounding the interrogation. (Cortes, at p. 69.) First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. (Cortes, at pp. 69-70, internal quotation marks omitted.) On appeal, we accept the trial courts resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. (Cortes, at p. 70.) Once the defendant has been informed of his rights, and indicates that he understands those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them. (People v. Johnson (1969) 70 Cal.2d 541, 558.)

Defendant claims on appeal that the prosecution failed to prove that he was aware of the nature of his rights and the consequences of waiving them. He points to his statement that he did not understand very much English, Tas false statement that he had a videotape of the June 22 incident, and the fact that the advisements occurred at the beginning of a lengthy interview that was at first concerned solely with an incident in which defendant was an alleged victim. Defendants implied waiver of his rights, evidenced by his willingness to answer questions about both incidents, occurred prior to Tas false claim, so Tas deception could not have influenced defendants decision to waive his rights. While defendant stated at the outset of the interview that he did not know very much English, the transcript of the interview unambiguously displays defendants ability to understand and communicate in English. Although it is true that the discussion of the June 22 incident did not occur until after a lengthy discussion of the May 11 incident, the record supports the trial courts finding that defendant, who had earlier acknowledged his understanding of his rights, remained aware of those rights and nevertheless chose to speak with the officers about the June 22 incident. We conclude that the totality of the circumstances indicates that defendant understood the nature and consequences of his rights when he made the statements to Williams and Ta that were admitted at trial. The trial court did not err in admitting this evidence.

B. The Group Beating Theory In CALJIC 17.20

Defendant contends that the trial court prejudicially erred in instructing the jury with the group beating theory contained in CALJIC 17.20 as to the personal infliction of great bodily injury allegation. He claims that this theory is unconstitutional. In People v. Modiri, supra, 39 Cal.4th 481, the California Supreme Court upheld the validity of the group beating theory contained in CALJIC 17.20. Consequently, we are compelled to reject defendants challenge to the validity of the group beating theory. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant also contends that the trial court prejudicially erred in instructing the jury on the group beating theory because this theory was not supported by substantial evidence. When a defendant claims that the jury was instructed on two theories, one of which was not supported by the evidence, reversal is generally not required. If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)

The record before us contains no affirmative indication that the jurys verdict actually rested on the group beating theory, and there is substantial evidence that defendant personally threw the glass that actually caused To great bodily injury, a valid basis for the jurys verdict. Hence, even if the trial court erred in instructing the jury on the group beating theory, reversal is not required.

IV. Disposition

The judgment is affirmed.

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Mihara, J.

WE CONCUR:

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Elia, Acting P.J.

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Duffy, J.

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[1] To was 17 years old at the time of trial, eight months after the incident.

[2] Defendant was 23 years old at the time of the incident.

[3]Miranda v. Arizona (1966) 384 U.S. 436.

[4] At trial, defendant was provided with a Vietnamese interpreter.