P. v. Maeda

Filed 4/3/09 P. v. Maeda CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

Following the denial of his motion to suppress (Pen. Code, 1538.5)[1], a jury found defendant Mitchell Masaaki Maeda guilty of first degree murder ( 187, subd. (a)), first degree robbery ( 211, 212, subd. (a)), and automobile theft (Veh. Code, 10851, subd. (a)). The jury found defendant not guilty of burglary ( 459) and found not true special circumstance allegations that the murder took place during the commission or attempted commission of a robbery and a burglary ( 190.2, subd. (a)(17)(A), (G)). In a bifurcated proceeding, the trial court found true allegations defendant served two prior prison terms. ( 667.5, subd. (b).)

The trial court sentenced defendant to an aggregate term of 28 years and four months to life in state prison, consisting of 25 years to life for the murder, a consecutive 16 months for the automobile theft, plus one year for each of the two prior prison term enhancements.[2]

Defendant appeals, contending the trial court prejudicially erred in denying his motion to suppress a statement he made to a police detective. Alternatively, he claims there is insufficient evidence to support his robbery conviction. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The victim Alan Lowell was found dead in his home on October 11, 2005. He was 85 years old.

Lowell lived next door to defendants mother in the Hollywood Park neighborhood of Sacramento and was defendants neighbor while defendant was growing up. Defendant had known Lowell for 30 years and referred to Lowell as his stepfather. Over the years, Lowell gave defendant money and allowed defendant to stay with him.

Defendant was released from prison on October 4, 2005. He told his parole officer that he could be contacted at Lowells home, and that Lowell would support him, some kind of part-time job. Shortly thereafter, he asked Lowell for money. Lowell initially refused, but defendant begged, and Lowell paid for a hotel for defendant for one night. The next day, defendant again asked Lowell for money. Lowell refused and told defendant he could not stay at Lowells home.

On the afternoon of October 9, 2005, Lowell drove Veronica Ramos, the mother of defendants six children, to the grocery store. He dropped her off at her home at about 6:30 p.m. That was the last time Ramos saw Lowell alive. When Lowell failed to pick up Ramos the following morning as previously agreed, Ramos daughter telephoned Lowells home. Defendant answered and told her she had the wrong number.

At approximately 9:00 p.m. on October 9, 2005, defendant told his former girlfriend, Lacy Edgar, that he got in a fight with someone and did something stupid. He arrived at Edgars apartment a couple of hours later driving Lowells car. That same night, defendant telephoned Lacey Harris and another friend, told them he had a gas card, and asked if they or anyone they knew wanted to purchase gasoline from him in cash for half-price.

On the morning of October 11, 2005, defendant was stopped by Sacramento County Sheriffs deputies after he failed to stop at a red light. He was driving Lowells car. After learning defendant was on parole, one of the deputies searched him and found three credit cards bearing Lowells name in his pocket. Defendant was arrested for car theft and taken to jail. Defendant told one of the deputies the car belonged to his elderly neighbor, Al, whom he had known for 30 years. He explained that he had taken Lowells car and credit cards from Harris at a Raleys grocery store on Freeport and that Harris was hitting him because she did not want him to take the vehicle. He said he had the car for about half of a day and could not explain why he had not returned it to Lowell. Harris denied going to that Raleys with [defendant] and hav[ing] a fist fight in the parking lot.

Later that morning, sheriffs deputies attempted to contact Lowell at his home. When he failed to answer his telephone or his front door, they forced their way into his home and found him dead on the kitchen floor with some type [of] electrical cord around his neck. His left pants pocket was turned inside-out, and his car keys and wallet could not be found. Drawers had been removed from a dresser, mattresses were ajar, and a lock had been cut off a closet door. The closet contained checkbook boxes and files, and some of the checkbook boxes were open.

At around noon that same day, Sacramento Police Detective Eric Schnieder transported defendant from jail to a police station for an interview. During the interview, defendant admitted choking Lowell with a brown string and his right hand. He also said he may have stepped or stood on Lowell. He denied choking Lowell with a white cord; he said he just put it on there. He said [i]t wasnt for no purpose, no financial gain or nothing. He also stated that he wasnt there to take nothing, but admitted taking Lowells keys and wallet after he choked him.

An autopsy revealed that there were two separate cords around Lowells neck: a white electrical cord and brown nylon cord. Both were wrapped tightly around his neck and knotted in the front. The pathologist listed the cause of death as asphyxia by strangulation . . . and not by ligature strangulation because theres these other injuries, which included a cracked cricoid cartilage and fractured laryngeal cartilage. It would take pressure to break those. And you dont usually see that with ligatures.

Defendants DNA matched DNA found near the knots on both of the cords. The brown cord wrapped around Lowells neck was consistent with the cord from a patio umbrella located in the backyard and appeared to have been separated from it.

Defendant moved to suppress his statement to Schnieder. The trial court denied the motion, and a videotape of the interview was played for the jury.

DISCUSSION

I.

Defendant contends the trial court committed reversible err[or] by denying [his] motion to suppress his statement to Detective [Schnieder], which was taken after his invocation of his right to counsel and later under circumstances which rendered any waiver involuntary as obtained by coercion in violation of his federal and state constitutional rights

. . . . As we shall explain, we need not decide whether the trial court erred in denying defendants motion to suppress because any error in admitting the statement was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 711].)

A.

Murder

Defendant was convicted of first degree murder. Murder is the unlawful killing of a human being . . . with malice aforethought. ( 187, subd. (a).) [M]alice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. ( 188.) A killing that is willful, deliberate, and premeditated . . . is murder of the first degree. ( 189.) To prove the killing was deliberate and premeditated, it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act. (Ibid.)

Even without defendants statement to Schnieder, there was overwhelming evidence defendant killed Lowell. Defendant had a motive to kill Lowell since Lowell had recently refused to give defendant any more money or allow defendant to stay in his home. Defendant was driving Lowells car and had Lowells credit cards hours after Lowell was last seen alive. His DNA was found on both of the cords wrapped around Lowells neck, including the area immediately next to the knots. That defendant had been in Lowells home on prior occasions fails to explain how his DNA came to be in those unique places.

There was also overwhelming evidence the killing was deliberate and premeditated. The pathologist testified that while an assailant need only apply pressure on the neck for less than 30 seconds to render a victim unconscious, the assailant must continue to apply pressure for several minutes in order to kill the victim. Thus, defendant had ample opportunity to consider the deadly consequences of his actions. (See, e.g., People v. Davis (1995) 10 Cal.4th 463, 510 [strangulation of sexual assault victim for up to five minutes suggested deliberate plan to kill her].) However, instead of easing the pressure on Lowells neck, defendant used multiple means of strangulation the application of two ligatures, as well as direct pressure, such as with a hand or a foot, sufficient to break the cricoid and laryngeal cartilage. Moreover, [l]igature strangulation is in its nature a deliberate act. (People v. Bonillas (1989) 48 Cal.3d 757, 792.) Evidence that one of the ligatures was obtained outside Lowells home also suggested the murder was premeditated.

While we appreciate the impact a confession may have on a jury (see Arizona v. Fulminante (1991) 499 U.S. 279, 292 [113 L.Ed.2d 302, 319-320]), having reviewed the entire record in this case, we are convinced beyond a reasonable doubt that the jury would have found defendant guilty of first degree murder even if his statement to Schnieder had not been admitted. Accordingly, any error in admitting the statement was harmless as to his murder conviction.

B.

Robbery

Defendant was also convicted of first degree robbery. Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ( 211.) [E]very robbery which is perpetrated in an inhabited dwelling house . . . is robbery of the first degree. ( 212.5, subd. (a).) If the defendant does not harbor the intent to take property from the possessor at the time he applies force or fear, the taking is only a theft, not a robbery. (People v. Davis (2005)36 Cal.4th 510, 562.)

During the interview with Schnieder, defendant admitted removing Lowells keys and wallet from his pocket after he choked him. Even without defendants statement to Schnieder, there was overwhelming evidence defendant took Lowells car keys and wallet from Lowell. When deputies discovered Lowells body, his front pocket was turned inside out and his keys, wallet, and car were missing. Defendant was driving Lowells car and had Lowells credit cards hours after Lowell was last seen alive, and possessed them when he was arrested two days later.

During the interview with Schnieder, defendant did not state that he intended to take any property from Lowell at the time he choked him, or at any point prior to Lowells death. To the contrary, he denied having any such intent, telling Schnieder he wasnt there to take nothing. Thus, the admission of defendants statement to Schnieder did not add anything in terms of defendants intent.

Under these circumstances, we are convinced beyond a reasonable doubt that the jury would have found defendant guilty of first degree robbery even if his statement to Schnieder had not been admitted. Accordingly, any error in admitting the statement was harmless as to his robbery conviction.

C.

Automobile Theft

Defendant was also convicted of violating Vehicle Code section 10851, subdivision (a), which provides in pertinent part: Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, . . . is guilty of a public offense . . . .

The evidence defendant intended to deprive Lowell of his car permanently was overwhelming. As previously discussed, there was overwhelming evidence defendant killed Lowell prior to taking his car. Such evidence strongly suggests defendant did not intend to return the car to Lowell. Evidence defendant possessed the car continuously from the night of October 9, 2005, until his arrest on the morning of October 11, 2005, and made no attempt to return the car during that time bolsters such an inference. Only by unreasonably rejecting the evidence could a jury have reached the conclusion that defendant did not intend to deprive Lowell of his car.

On this record we are convinced beyond a reasonable doubt that the jury would have found defendant guilty of auto theft even if his statement to Schnieder had not been admitted. Accordingly, any error in admitting the statement was harmless as to his automobile theft conviction.

II.

Defendant next contends the evidence was insufficient as a matter of law to support his robbery conviction. Citing his statement to Schnieder that he did not kill Lowell for financial gain and took Lowells wallet and keys after choking him, as well as the jurys not true finding on the robbery special circumstance allegation, defendant argues there is no evidence he formed the intent to steal Lowells property prior to or in the course of choking him. We disagree.

When considering a claim that challenges the sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. (People v. Johnson (1993) 6 Cal.4th 1, 38.) In this process, we view the evidence in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value --such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hawkins (1995) 10 Cal.4th 920, 955, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.) We will not reverse a conviction for insufficiency of the evidence unless it clearly appear[s] that upon no hypothesis whatever is there sufficient substantial evidence to support [the verdict]. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

Our Supreme Courts decision in People v Turner (1990) 50 Cal.3d 668 is instructive on the issue of defendants intent. There, the victims cousin found the victim dead in the victims home. (Id.at p. 680.) The cousin also noticed numerous missing items, including two stereo sets, a tape cassette player, miniature speakers, wall statues, clothing, and the upstairs bedroom television set. (Ibid.) In addition, a cabinet in the patio had been pried open. (Ibid.) The defendant was later found driving the victims car, and the victims wallet and television were found inside. (Id. at pp. 681-682.) The defendant admitted killing the victim, but claimed the incident was provoked by [the victims] sudden, violent sexual advances. (Id.at p. 682.) The jury found defendant guilty of first degree murder and robbery, and found true an allegation the defendant committed the murder while engaged in a robbery. (Id.at p. 679.)

On appeal, the defendant claimed there was insufficient evidence for a robbery conviction, for a first degree felony-murder conviction based on robbery, and for a robbery-murder special circumstance, because there [wa]s no indication he formed an intent to steal from [the victim] before attacking and killing the victim. (Turner, supra, 50 Cal.3d at pp. 687-688, fn. omitted.) The court rejected his claim, finding that when one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery. (Id. at p. 688.) Since property was taken, and nobody else was present, the jury could infer that defendant killed to prevent [the victim] from summoning help or later identifying defendant as the robber. (Ibid.) The signs of prying and forced entry, and the amount and nature of the property stolen, also buttress the inference that defendant had a preexisting intent to rob. (Id.at p. 689.) A jury could deem it doubtful that after committing a sudden, unexpected, and gruesome homicide against a friendly acquaintance, one would remain and, for the first time, decide to force open doors and cabinets, and strip the house of valuable clothing and electronic equipment. (Ibid.)

Here, as in Turner, defendant took substantial property from the victim, including his car and his credit cards. Accordingly, it was reasonable to presume the killing was for purposes of robbery. (Turner, supra, 50 Cal.3d at p. 688; see also People v. Kipp (2001) 26 Cal.4th 1100, 1128; People v. Kelly (1992) 1 Cal.4th 495, 529.) In addition, the signs that defendant forced open a locked closet buttressed the inference that he had a preexisting intent to rob because the jury could deem it doubtful that after committing a sudden, unexpected, and gruesome homicide against a friendly acquaintance, one would remain and, for the first time, decide to force open doors . . . . (Turner, supra, 50 Cal.3d at p. 689.) Moreover, days earlier Lowell had refused to give defendant any more money or to allow him to stay in his home. As a result, the jury could reasonably infer that defendant had the preexisting intent to take by force that which he could no longer obtain freely from Lowell.

That such an inference is inconsistent with the jurys not true finding as to the special allegation that defendant committed the murder during a robbery is of no consequence. The law generally accepts inconsistent verdicts as an occasionally inevitable, if not entirely satisfying, consequence of a criminal justice system that gives defendants the benefit of a reasonable doubt as to guilt, and juries the power to acquit whatever the evidence. (People v. Palmer (2001) 24 Cal.4th 856, 860.) [I]f a not true finding of an enhancement allegation is inconsistent with a conviction of a substantive offense, effect is given to both. (People v. Santamaria (1994) 8 Cal.4th 903, 911; see also People v. Panah (2005) 35 Cal.4th 395, 489-490.) As the United States Supreme Court has recognized, inconsistencies often are a product of jury lenity. (Unites States v. Powell (1984) 469 U.S. 57, 65 [83 L.Ed.2d 461, 469].)

Accordingly, there was ample evidence defendant formed the intent to steal prior to killing Lowell.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

SIMS , J.

ROBIE , J.

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[1] Further undesignated references are to the Penal Code.

[2] Defendants sentence for the robbery was stayed pursuant to section 654.