P. v. Raymond

Filed 4/25/07 P. v. Raymond CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven C. Suzukawa, Judge. Affirmed.

Michael John Shultz, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Adrian Tigmo, Deputy Attorney General, for Plaintiff and Respondent.

__________________________________

Ana Raymond appeals from the judgment entered following a jury trial in which she was convicted of attempted carjacking with a finding that she used a deadly weapon in the commission of the offense, assault with a deadly weapon, and dissuading a witness by force or threat. She contends the trial court erred in rejecting her argument that, after initially waiving Miranda,^[1]she invoked her right to remain silent when she failed to respond to a specific question, thereby precluding any comment on her silence. Defendant further contends that imposition of an upper term sentence violated Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham). We affirm.

FACTS

Between 4:00 and 5:00 a.m. on October 8, 2005, Jose Miranda was delivering newspapers to a newsstand in Compton when defendant approached from the direction of a Jack-in-the-Box restaurant across the street, holding a metal pipe in her hand. Miranda asked defendant if she was lost. Defendant did not answer. Instead, she got into the drivers seat of Mirandas van, which was idling nearby. Seeing this, Miranda got into the passenger seat of the van and struggled with defendant for the keys. Defendant shifted the van into drive, but it was not working properly and did not move. Miranda gained control of the keys and defendant picked up a knife that Miranda kept between the front seats of the van. Miranda also grabbed for the knife and struggled with defendant for control. At one point during the struggle, the knife came five to six inches away from Mirandas stomach, but he was not injured. Miranda was successful in taking the knife from defendant, following which he and defendant got out of the van.

Defendant next proceeded to use her metal pipe to smash the windows of the van. Miranda walked away and flagged down Los Angeles County Sheriffs Deputies Patrick Neal and Alfonzo Rodriguez, who were passing by in their patrol car. Miranda accompanied the deputies, who soon located defendant not far from the Jack-in-the-Box. As the deputies approached, defendant seem agitated and started yelling at Miranda in Spanish, which the deputies did not understand. The deputies told defendant what Miranda had reported, and defendant responded that the accusations were false. Defendant was then transported back to the Jack-in-the-Box. There, she was arrested and waived her Miranda rights, admitting that she broke the windows of Mirandas van. As defendant was being transferred from one patrol car to another, she continued to yell at Miranda, including threatening that if Miranda came to court, her home boys would kill him.

Testifying in her own behalf, defendant said she lived in a nearby apartment with her three children and had come to the Jack-in-the-Box to apply for a job at its 6:00 a.m. opening time. She saw Miranda at the newsstand and he asked defendant how she was. Because the area was known for prostitution, defendant thought that Miranda was propositioning her. Defendant responded that she was looking for a job. Miranda asked her to help him deliver newspapers and gave her $20.00 in advance to do so. At Mirandas instruction, she went to the drivers side of the van to retrieve some papers. Miranda then reached in from the passengers side, fondled defendants breasts, and tried to grab her. Defendant, who was three months pregnant at the time, took a knife that was in the van to protect herself. She then fled from the van and Miranda followed, screaming and calling her a whore. Defendant further testified that because she was angry, she picked up a pole that was on the ground and smashed the windows of the van. Defendant denied having threatened Miranda while sitting in the patrol car.

ISSUES

1. Miranda Rulings

a. Background

In defendants opening statement at trial, counsel asserted that Miranda had tried to rape defendant.

Three sheriffs deputies who were at the scene testified in the prosecutions case-in-chief. The first deputy to testify, Joseph Sumner, had been called to assist and provide Spanish translation. On direct examination the prosecutor asked if Sumner had heard defendant say anything about rape or being attacked by Miranda. Sumner responded in the negative.

Deputy Neal testified next and was asked on cross-examination what course of action he would take if he suspected that defendant had been sexually assaulted. Neal responded that he would have done a sexual assault investigation, but that defendant never said anything to indicate that was warranted. Defense counsel next asked, When you arrested her, you told her she had the right to remain silent? Neal responded that Deputy Rodriguez had advised her per Miranda. Counsel then asked, The fact that she said nothing doesnt mean that it didnt happen, right? The prosecutor objected to the question as calling for speculation, and the objection was sustained.

Deputy Rodriguez was the third police witness and testified on direct examination that he advised defendant of her Miranda rights. Defendant responded that she understood the rights and was willing to talk. Defendant told Rodriguez that the only thing that she did was break [Mirandas] windows. She said she didnt do anything else. The direct examination continued:

Q. Did you ask [defendant] why she had broken [Mirandas] windows?

A. Yes. She said he had told her something, and it made her mad.

Q. Did you ask her what it was that he told her?

A. I did, and I got no reply.

Q. As you were there and detained her . . . did you see any injuries at all?

A. No.

Q. Did [defendant] mention anything to you about Mr. Miranda trying to attack her or rape her?

At that point defense counsel objected on grounds of post-arrest silence and a sidebar conference was called.

At sidebar, defense counsel argued that defendant had invoked her Miranda rights by not answering Rodriguezs question about what Miranda had said that made her mad, and that any reference to defendants failure to accuse Miranda of rape or assault therefore violated Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 2240] (Doyle). The court overruled defendants objection, stating: Whatever Doyle rules, it would have to suggest the deputy would have to be clairvoyant. The fact she didnt say something means she was invoking Miranda, that is not fair. She has to say, I am standing on my right to remain silent. I do not wish to speak any longer, or something like that. Merely not volunteering information is not invocation.

When proceedings resumed before the jury, Rodriguez was asked if, while speaking to defendant, defendant had said anything about being attacked, raped, or molested by Miranda. Rodriguez responded in the negative.

During the defense case, defendant testified on direct examination that Deputy Neal had previously arrested her, ultimately leading to her having entered a guilty plea to joyriding. She did not tell the deputies what happened when she was arrested in this case because she did not trust them, and didnt feel anything [she] said would even matter to the point that [Neal] had arrested me before, so I just kept silent.

During defense counsels closing argument, the following ensued:

[Defense Counsel]: And then she tells you and the People are going to argue: Why didnt she say something to the Sheriffs deputy. Why didnt she say, You dont understand; you know, He tried to pull me into the van. He was going to rape me. He was going to hurt me. I didnt know what he was going to do with me. [] Ladies and gentlemen, she was read her rights; and one of the rights is you have the right to remain silent; and when you exercise the right to remain silent, it means just that, you cannot use that against the defendant.

[The Prosecutor]: I would object. That misstates the law.

The Court: Sustained. No. You can discuss it out of the presence of the jury.

[Defense Counsel]: She invoked her right to remain silent by saying nothing.

[The Prosecutor]: Again, your Honor, objection.

The Court: Sustained. There is no evidence that the defendant ever invoked her Miranda rights.

[Defense Counsel]: She said nothing. You decide what that means, but she got on the stand, and she told you she did not trust Deputy Neal. Thats what she said. At that point when youre under arrest and you had a prior contact with that deputy, its not a comfortable relationship anymore. It is adversarial.

During the prosecutors rebuttal, in the context of questioning defendants credibility about looking for a job and staying around to smash the windows of Mirandas car rather than trying to get away from him, the prosecutor suggested to the jurors, Ask yourself: Do I believe the story she is trying to sell, this story that she didnt give out at the time? She wouldnt tell the deputies what had happened. She said she wasnt even raped, this rape guilt trauma.

b. Discussion

Defendant contends that her constitutional rights under Doyle, supra, 426 U.S. 610, and Wainwright v. Greenfield (1986) 474 U.S. 284 [106 S.Ct. 634] were violated when the trial court overruled her objection to the prosecutors questions to Deputy Neal about defendants failure to mention that she had been sexually assaulted, sustained the prosecutors objection to defense counsels argument that defendant was exercising her right to remain silent, and stated in front of the jury that there was no evidence of defendant invoking her Miranda rights. Because the trial court was correct in ruling that defendant did not invoke her Miranda rights, we reject defendants contention.

Doyle holds that the prosecution violates due process if it uses the postarrest silence of a suspect who was given Miranda warnings to impeach an exculpatory explanation subsequently offered at trial. (People v. Evans (1994) 25 Cal.App.4th 358, 367.) Wainwright v. Greenfield, supra, 474 U.S. 284, applies Doyle to use of post-Miranda silence on substantive issues.

People v.Evans, supra, 25 Cal.App.4th 358, on which defendant relies, involved a charged sexual assault. The defendant invoked his Miranda rights when questioned by the police and later testified at trial on cross-examination that the interrogating officer appeared angry when he did so. The prosecutor then asked if defendant told the officer that he had done nothing wrong. (Evans, at p. 367.) The Evans court concluded that this question constituted Doyle error. (Evans, at p. 369.)

Here, in contrast to Evans, defendant waived her Miranda rights and did not thereafter explicitly invoke them. Thus, defendants reliance on Evans is misplaced. Defendant nevertheless claims an implied invocation when she did not reply to Deputy Rodriguezs question about what Miranda had told her to make her mad. Defendants position is not supported by law.

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to cut off questioning, that he wishes to remain silent, the interrogation must cease. (Miranda, supra, 384 U.S. at pp. 473474, fn. omitted.) [N]o particular form of words or conduct is necessary on the part of a suspect in order to invoke his or her right to remain silent [citation] . . . . (People v. Crittenden (1994) 9 Cal.4th 83, 129.) A suspects invocation of Fifth Amendment rights under Miranda is governed by an objective standard. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1124, citing Davis v. United States (1994) 512 U.S. 452 [114 S.Ct. 2350].) Whether a defendant invoked Miranda rights is a factual question to be decided in light of all the circumstances. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.)

We agree with the trial court that that the deputies would have to be clairvoyant to interpret defendants failure to respond to the question of what she was mad about as an invocation of Miranda. In People v. Silva (1988) 45 Cal.3d 604, 629, the defendant waived his Miranda rights and spoke with detectives, declining only to talk about some aspects of the incident being investigated. The Supreme Court concluded that Miranda had not been invoked, noting that [a] defendant may indicate an unwillingness to discuss certain subjects without manifesting a desire to terminate an interrogation already in progress. [Citation.] (People v. Silva, supra, 45 Cal.3d at pp. 629630; accord, People v. Hurd (1998) 62 Cal.4th 1084, 10901091.) United States v. Branson (9th Cir. 1985) 756 F.2d 752, 753, on which defendant also relies, involved the distinguishable situation of a defendant convicted of passing counterfeit United States currency who had refused to answer questions about the source of the currency when first approached by Secret Service agents and continued to maintain his silence when he was later arrested and given his Miranda rights.

Based on the foregoing, defendants claims of error regarding her failure to invoke Miranda must be rejected.

2. Sentencing

The probation officers report considered by the trial court at sentencing indicated that defendant had been convicted of theft in 2003 and sentenced to 90 days in jail. She had also been convicted of vehicle theft (which defendant admitted during her testimony) in 2005 and placed on probation, for which defendant failed to report and was deemed to have deserted. The court, which recognized that Cunningham was then pending before the United States Supreme Court, sentenced defendant as follows:

I will find the following circumstances in aggravation: [] Number one, the defendants prior convictions are becoming of increasing seriousness. [] Number two, the defendants prior performance on probation was unsatisfactory. [] Number three, at the time the crime was committed, the defendant was under a grant of formal probation. [] Number four, the defendant threatened the witness/victim in this particular case. [] I find no circumstances in mitigation. [] Based on the fact that the defendant was on probation and her record is becoming more serious, I think the high term is warranted.

Defendant was then sentenced to the high term of 4 years 6 months for attempted carjacking with a 3-year enhancement for weapon use. A concurrent sentence was imposed for dissuading a witness and sentence for assault was stayed under Penal Code section 654.

Defendant contends that the trial courts imposition of the upper term violated her right to a jury determination of aggravating factors beyond a reasonable doubt under Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531], and Cunningham, supra, 127 S.Ct. 856. We disagree.

Cunningham held that Californias Determinate Sentencing Law violates a defendants right to a jury trial to the extent it permits a trial court to impose an upper term sentence based on facts found by the court under the preponderance-of-the-evidence standard rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. at pp. 868871, disapproving People v. Black (2005) 35 Cal.4th 1238, 1244.) Nevertheless, the United States Supreme Court has made clear these requirements do not apply to an increased sentence based on the fact of a prior conviction. (Apprendi, supra, 530 U.S. at p. 490, relying on Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219] (Almendarez-Torres).) The prior conviction exception to the Apprendi rule has been construed broadly to apply factors based on a defendants recidivism. (See People v. Earley (2004) 122 Cal.App.4th 542, 549550; People v. Thomas (2001) 91 Cal.App.4th 212, 221222.)

The trial court here imposed the upper term sentence based on factors arising from defendants recidivism and her conviction of threatening Miranda in an attempt to dissuade him from testifying. The court found no factors in mitigation. Accordingly, there was no Cunningham violation.^[2]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

ROTHSCHILD, J.

JACKSON, J.^*

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^[1]Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602] (Miranda).

^[2]On February 7, 2007, the Supreme Court ordered supplemental briefing in People v. Towne (review granted July 14, 2004, S125677) on issues including whether Cunningham and Almendarez-Torres permit an upper term sentence based on the aggravating factors of defendants prior convictions being numerous and of increasing seriousness, the defendant having served a prior prison term, the defendant being on parole at the time of the offense, and the defendant having performed unsatisfactorily on probation or parole.

^*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.