P. v. Smith

Filed 5/9/06  P. v. Smith CA6]

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                                    H028226

                        Plaintiff and Respondent,                           (Santa Cruz County

                                                                                                 Superior Court

            v.                                                                                 No. F07346)

DAMIAN SETH SMITH,

                        Defendant and Appellant.

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            On May 30, 2003, defendant Damian Seth Smith was charged by indictment of murdering and robbing Don Paul Kovakovich (Pen. Code, §§ 187, subd. (a), 211), and of unlawfully taking his vehicle (Veh. Code, § 10851, subd. (a)).  An additional allegation, a special circumstance of murder while engaged in the commission of a robbery (Pen. Code, § 190.2, subd. (a)(17)), was dismissed at the end of the trial.  On November 3, 2004, a jury found defendant guilty of murder in the first degree, petty theft, a lesser included offense of robbery, and of taking a vehicle.  The trial court sentenced defendant to 25 years to life and imposed a $50,000 restitution fine.  

            On appeal, defendant contends that because police interrogators deliberately delayed advising him of his Miranda[1] rights, the admission of his confession at trial violated his Fifth Amendment privilege against self-incrimination.  Defendant also contends the trial court erred in imposing a restitution fine in excess of the statutory maximum.  We conclude defendant's confession was properly admitted, but agree that the restitution fine exceeds the statutory maximum.  We therefore modify the judgment to reflect a restitution fine of $10,000 and affirm the judgment in all other respects. 

I.                                    Factual Background

A.      General Facts

            Defendant met the victim, Don Paul Kovakovich, in downtown Santa Cruz in March 2003.  Defendant had recently moved from Florida, was low on money, and did not have a place to stay.  Kovakovich offered to let defendant stay with him.  Even though defendant was uncomfortable with Kovakovich's sexual advances, he began living with Kovakovich.

            On the afternoon of April 19, 2003, defendant helped Kovakovich, who was behind on his rent, move out of his house.  Kovakovich's landlord heard Kovakovich tell defendant in an angry tone, â€