P. v. Hason

Filed 4/4/06 P. v. Hason CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Omar Hason appeals the judgment following his jury trial conviction for unlawfully taking and driving a vehicle (Veh. Code, § 10852, subd. (a)) and carjacking (Pen. Code^[1], § 215, subd. (a)). The jury also found true the allegation that Hason personally used a firearm in the commission of a felony, in violation of sections 12022.53, subdivision (d), and 1203.06, subdivision (a)(1). He was sentenced to 13 years in state prison. He contends the trial court committed reversible error by denying his motion to suppress his confession because it was obtained in violation of his Miranda^[2] rights. We affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 1:00 p.m. on November 2, 2003, a black man approached Shahin Souroudi as she sat in her Lexus SUV and asked her for an address. When Souroudi began to roll up her window, the man pulled out a gun, aimed it at her head, and told her to get out of the car. Souroudi exited the vehicle, leaving her purse and keys behind. Three days later, Hason, who is black, was apprehended while driving Souroudi's SUV. The police also arrested his passenger, Larance Hill. An inventory search revealed a gun inside a coat pocket in the back seat, as well as a backpack containing documents bearing Hason's name.

After Hason was advised of his Miranda rights, he agreed to speak to the police. He first claimed that the SUV belonged to his girlfriend, although he claimed he did not know her last name. The detective who questioned Hason subsequently told him that he had been identified in a photographic lineup as the person who had taken the SUV, although no such identification had been made. Hason initially thought the detectives were joking, but eventually admitted that he had committed the crime and recounted the details.

That same evening, Souroudi was shown a six-pack photographic lineup but was unable to identify Hason as the perpetrator. The following day, she was shown two more six-pack lineups, one containing Hason's photograph and the other containing Hill's, but she was unable to identify either of them as the perpetrator.

DISCUSSION

Hason's sole contention on appeal is that the trial court erred in denying his motion to suppress his confession on the ground that it was not preceded by a knowing and intelligent waiver of his Miranda rights. At the hearing on that motion, the prosecution offered a tape recording of the admonitions Hason was given by Detective James Jarvis. The tape reflects Hason was advised (1) that he had the right to remain silent; (2) that anything he said could be used against him in court; (3) that he had the right to the presence of an attorney before and during questioning; and (4) that an attorney would be appointed for that purpose if he could not afford one. After each right was recited, Hason stated that he understood those rights. According to Detective Jarvis, after he read the admonitions he asked Hason if "he had a problem talking" to him, to which Hason replied "No." Hason then proceeded to talk freely with the detective. The trial court found that "in its totality" Hason was fully informed of his rights and that he had impliedly waived those rights by agreeing to speak to the detective after the admonishments.

Before subjecting a suspect to custodial interrogation, the police must advise him that he has the right to remain silent, that any statement made can be used against him at trial and that he has the right to have an attorney present. (People v. Waidla (2000) 22 Cal.4th 690, 726-727.) Such statements are admissible only if the suspect has been advised of these rights and has knowingly, voluntarily and intelligently waived them. (Ibid.) The prosecution has the burden of proving a Miranda waiver by a preponderance of the evidence. (People v. Whitson (1998) 17 Cal.4th 229, 248.) We will not disturb a trial court's finding that such a waiver occurred if it is supported by substantial evidence. (People v. Salinas (1982) 131 Cal.App.3d 925, 933; see also People v. Nitschmann (1995) 35 Cal.App.4th 677, 683 ["'"[T]he trial court's ruling on a Miranda issue may not be set aside by us unless it is 'palpably erroneous.' A ruling palpably erroneous is one lacking support of substantial evidence. [Citation.]"'"].)

Substantial evidence supports the trial court's finding that Hason waived his Miranda rights prior to his confession. A valid Miranda waiver may be express or implied (see People v. Whitson, supra, 17 Cal.4th at p. 246), and a defendant's willingness to answer questions after acknowledging an understanding of his rights constitutes an implied waiver of those rights (People v. Medina (1995) 11 Cal.4th 694, 752). Further questioning is prohibited only if the defendant unambiguously refuses to talk or requests an attorney. (Davis v. United States (1994) 512 U.S. 452, 458-460; see also People v. Johnson (1969) 70 Cal.2d 541, 558 ["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"].) After being advised of his rights, Hason told the detective he "[didn't] have a problem" talking. Although he complains that he "never expressed a willingness, other than continuing on with answering the detectives' questions, to waive or give up his rights under Miranda," his decision to continue speaking after the admonitions constitutes an implied waiver of those rights. (Medina, supra, at p. 752.) Indeed, Hason's statement "I don't have a problem" talking is sufficient to support a finding that he expressly waived his Miranda rights. (See Connecticut v. Barrett (1987) 479 U.S. 523, 533-534 (conc. opn. of Brennan, J.) [concluding that a defendant who stated he "had no problem in talking about the incident" after Miranda warnings "expressly waived his right to silence"].)

We also reject Hason's claim that his "youthfulness, lack of sophistication, and absence of maturity" undermine any presumption that he knowingly and intelligently waived his Miranda rights. "[W]e have never 'embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness.' [Citations.]" (Connecticut v. Barrett, supra, 479 U.S. at p. 530.) The record reflects Hason's understanding of his rights, and the totality of the circumstances supports the conclusion that he intended to waive those rights by continuing to speak without requesting an attorney.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Michael K. Kellogg, Judge

Superior Court County of Los Angeles

______________________________

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Adrian N. Tigmo, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] Further statutory references are to the Penal Code, unless otherwise noted.

^[2] Miranda v. Arizona (1966) 384 U.S. 436.