P. v. Orosco

Filed 6/22/07 P. v. Orosco 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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A jury acquitted defendant Luis Cardenas Orosco of first degree murder (Pen. Code, 187, subd. (a))^[1]but found him guilty of the lesser included offense of second degree murder ( 189), five counts of attempted murder ( 187, subd. (a), 664), and one count of first degree burglary ( 459). The jury also found true allegations that defendant used a dangerous and deadly weapon in the commission of the murder and attempted murders ( 12022, subd. (b)(1)) and personally inflicted great bodily injury in the commission of the attempted murders ( 12022.7, subd. (a)).

Sentenced to 43 years to life in prison, defendant appeals, contending the trial court erred in denying his motion to suppress his statement to law enforcement following his arrest. After reviewing the record, including a transcript of the interview, we conclude the trial court properly denied defendants motion. Accordingly, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of the underlying offenses are immaterial to our determination of this appeal. The facts surrounding defendants statement to law enforcement, however, are material and are given below.

On August 7, 2004, defendant was taken into custody near the scene of the crimes and transported to the Sacramento County Sheriffs Department for questioning. Defendant was questioned by Detective Dan Cabral, who speaks both English and Spanish. Cabral was asked to interview defendant by Sergeant Craig Hill, who had some difficulty understanding [defendant] and wanted to make sure . . . that somebody was available to [defendant] if, in fact, [defendant] wanted to speak in Spanish.

Before questioning defendant about the crimes, Cabral conversed with defendant in English. He asked defendant if he wanted some water, and defendant said, Please, water. When Cabral noted that defendant had already been given some water, defendant stated, No. I need more, man. Cabral told defendant that he would get defendant a new cup, and defendant said, Thanks, man. Cabral asked defendant if defendant understood English pretty good, and defendant said, Yeah. Cabral told defendant that [i]f theres something you dont understand, let me know so I -- we can make it clear so you understand me, and defendant responded, Okay. Cabral then explained, I do speak Spanish. However, I understand better than I can speak it. Defendant responded, I understand, man. Defendant then asked Cabral, You the lawyer? Something? Cabral said, No, and explained he was a detective. Cabral then asked defendant whether he understood that he was under arrest, and defendant responded, Uh-huh.

After this initial colloquy, Cabral advised defendant of his Miranda^[2] rights by reading from a standard form in English. When Cabral finished, he asked defendant: Do you understand each of these rights that I have explained to you? According to the transcript of the interview, there was [n]o [a]udible [r]esponse. Cabral then asked defendant, Yes or no, and defendant responded, Yes. Cabral then asked defendant: Having these rights in mind, do you wish to talk to me? Again, the transcript reads, [n]o [a]udible [r]esponse. Cabral then asked, Thats yes or no, and defendant replied, Yeah. Yes.

Shortly thereafter, defendant and Cabral began conversing primarily in Spanish. During the interview, defendant made inculpatory statements admitting he had assaulted each of the victims.

Defendant moved to suppress his statement to Cabral on the ground it was obtained involuntarily and in violation of his Miranda rights. He claimed he could not have knowingly and intelligently waived his right to remain silent because he was not advised of his Miranda rights in his native language; he did not sign a written Miranda waiver; and he did not appear to understand his Miranda rights.

The trial court held an evidentiary hearing on defendants suppression motion. Detective Cabral testified that defendant [d]efinitely appeared to understand him when he communicated to [defendant] in English, including when he read defendant his Miranda rights. Cabral explained that had defendant appeared not to have understood his rights, Cabral would have read him his rights in Spanish.

Three Sacramento County Sheriffs deputies, each of whom had prior contact with defendant, also testified. Deputy Daniel Davis, who did not speak Spanish, testified that in 1999 he responded to a suspicious circumstances call and encountered defendant. Davis asked defendant in English what he was doing there, and defendant explained in English that his car had broken down and he was fixing it. Defendant later admitted that he was changing his transmission fluid and allowing it to run into the storm drain. Davis read defendant his Miranda rights in English, and defendant indicated he understood those rights and agreed to waive them. According to Davis, defendant had a thick accent and [h]is speech was very deliberate; however, defendant didnt have any problem communicating with [Davis] whatsoever.

Deputy Jeffrey Farley, who also did not speak Spanish, testified that in 2002 he detained defendant on suspicion of attempting to pass a forged check. Farley advised defendant of his Miranda rights in English, and thereafter, defendant agreed to speak to him. Defendant explained in English that he received two checks from a third party and was to cash them, give the proceeds from one of the checks to the third party, and keep the proceeds from the other check for himself. Defendant provided a physical description of the third party and gave Farley a couple of places to look for her. At the jail, defendant was given a Miranda sheet written in English. When defendant explained that he could not read English, Farley turned the sheet over so that defendant could read it in Spanish.

Deputy Earl Helfrich, who spoke both English and Spanish, testified that in 2003 he responded to a report of an intoxicated man and encountered defendant. Helfrich advised defendant of his Miranda rights in Spanish, and defendant indicated he understood his rights and agreed to speak to Helfrich. Helfrich took a statement from defendant but could not recall whether the two conversed in English, Spanish, or both.

The trial court denied defendants motion to suppress. The court determined his statements were freely and voluntarily given and should be admitted. Although defendant speaks mostly Spanish, he clearly understood the admonitions and questions put to him in both Spanish and English by Detective Cabral and others. Defendant understood and voluntarily waived his Miranda rights.

A redacted videotape of the interview was played for the jury.

DISCUSSION

Defendant contends the trial court erred in denying his motion to suppress his statement to police, after [he] was given his Miranda rights in English, while his interview was conducted largely in Spanish. We are not persuaded.

To be valid, a waiver of Miranda rights must be voluntarily, knowingly, and intelligently made. (People v. Combs (2004) 34 Cal.4th 821, 845.) Whether there has been a valid waiver depends on the totality of the circumstances, including the background, experience, and conduct of the defendant. (People v. Michaels (2002) 28 Cal.4th 486, 512.) The defendants age and any language difficulties are also factors in applying the totality test. (U.S. v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 751-752 (Bernard S.).)

We review de novo the trial courts ruling on a motion to suppress a statement under Miranda. (People v. Guerra (2006) 37 Cal.4th 1067, 1092.) In doing so, however, we accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. [Citation.] (Id. at pp. 1092-1093.)

Here, the relevant considerations support the trial courts finding that defendants ability to speak and comprehend English was sufficient to enable him to both understand his Miranda rights and to knowingly and intelligently waive those rights. At the time of the interview, defendant was 36 years old and had been in the United States at least intermittently since 1992. He had experience with the American criminal justice system. He had been questioned by law enforcement at least three times prior to his arrest in this case, and in each instance he was advised of his Miranda rights in English, Spanish, or both; indicated that he understood his rights; and agreed to waive them. Deputy Farleys testimony that defendant indicated he could not read the Miranda sheet written in English suggests that defendant would have asked for clarification if he did not understand his rights when Deputy Davis, Deputy Farley, or Detective Cabral read them to him in English. Moreover, while neither Deputy Davis nor Deputy Farley spoke Spanish, both were able to communicate with defendant in English.

The transcript of the interview also supports the trial courts finding that defendant understood and voluntarily waived his Miranda rights. Before Detective Cabral advised defendant of his Miranda rights, he asked defendant several questions in English that defendant answered appropriately. In particular, Cabral asked defendant if he understood English pretty good, and defendant assured him that he did. After defendant demonstrated his ability to understand and communicate in English, Cabral advised him of his Miranda rights. When asked whether he understood those rights, defendant indicated that he did. Cabral then asked whether defendant wanted to speak with him, and defendant again indicated that he did.

We reject defendants assertion that Detective Cabral form[ed] the impression that [defendant] could not understand English, because Cabral began relying upon his Spanish only a few questions after [defendants] rights were given in English. When asked why he switched over to Spanish, Cabral explained that defendant began responding in Spanish and appeared to be more comfortable conversing in Spanish. Cabrals explanation is supported by the transcript of the interview, which shows that he began questioning defendant primarily in Spanish only after defendant began responding primarily in Spanish. That defendant was more comfortable speaking Spanish does not mean he did not understand English. Indeed, while the interview was conducted primarily in Spanish, at points Cabral reverted to English and defendant responded appropriately in both English and Spanish. For example, when asked how many times he hit Steve with the bat, defendant responded, Maybe three. When asked whether he hit Elena [a]ll in the head, he responded, No, I think only here. When asked which girl did you hit like that, he responded, Maybe . . . Elenas girl. Moreover, when Cabral reverted back to English, he asked defendant, Do you understand me in English, and defendant responded, Uh-huh.

That defendant had some difficulty with English does not preclude a finding that his ability to speak and comprehend English was sufficient to understand his rights and to validly waive them. (Bernard S., supra, 795 F.2d at p. 752; see also Campaneria v. Reid (2d Cir. 1989) 891 F.2d 1014, 1020 [the defendants limited proficiency in English did not prevent him from making a knowing and intelligent waiver of his constitutional rights].) Although defendant sometimes spoke in broken English with an accent and appeared to be more comfortable speaking Spanish, the record amply supports the trial courts finding that his command of English was sufficient for him to have understood the Miranda warnings given to him.

Defendants reliance on the decision of the Ninth Circuit Court of Appeals in U.S. v. Garibay (9th Cir. 1998) 143 F.3d 534 is misplaced. There, the court reversed the trial courts finding that the defendant made a knowing and intelligent waiver of his Miranda rights because, among other things, the defendant was a person of low intelligence, with no experience in the criminal justice system, whose native language was Spanish, and who produced independent evidence of his inability to understand English. (See id. at pp. 538-539.) As defendant concedes, the facts of this case are not as overwhelming as [those in] the Garibay case. Indeed, defendant is a person with experience in the criminal justice system, whose native language is Spanish but who speaks responsively and intelligently in English, and who produced no independent evidence of an inability to understand and speak English. Nor is there any indication in the record that he does not possess at least average intelligence.

The trial courts finding that defendants command of English was sufficient to enable him to understand and voluntarily waive his Miranda rights is supported by substantial evidence. Accordingly, the trial court did not err in denying defendants suppression motion.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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^[1] All further statutory references are to the Penal Code.

^[2]Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].