Opinion
C077223
09-05-2017
THE PEOPLE, Plaintiff and Respondent, v. JESUS LOPEZ-RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF130002967)
A jury found defendant Jesus Lopez-Ramirez guilty of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); undesignated statutory references are to the Penal Code) and three counts of arson of an uninhabited structure or forest land (§ 451, subd. (c)). The trial court suspended imposition of sentence and placed him on probation for a term of four years with various conditions, including the condition he serve 360 days in county jail.
On appeal, defendant contends his robbery conviction is not supported by substantial evidence. Defendant further contends the trial court prejudicially erred in denying his motion to suppress. We affirm the judgment.
FACTS AND PROCEEDINGS
In light of the issues raised on appeal, we only recite those facts necessary to the resolution of this appeal.
Defendant was a regular customer of Holland Market in Clarksburg. The store's manager, Harpeet Gill, knew defendant and his family. On the evening of July 29, 2013, defendant entered Holland Market and asked Gill if he could buy some beer. Because defendant appeared intoxicated, Gill refused to sell defendant beer and told him to leave. Defendant, however, did not leave. Instead, he went to the back of the store, picked up three 24-ounce cans of beer, and took them to the counter. When Gill told defendant he could not purchase the beer, defendant took the beer and left the store without paying for it. Gill explained that he attempted to grab the beer from defendant before he left the store but was unsuccessful.
Prior to defendant leaving Holland Market, a store employee named Gabriel Garcia Marin asked defendant to leave the beer and come back another day. In response, defendant warned Marin "not to get closer," and said, "look, I don't care, I'm taking it." Marin, who was scared about what might happen if he tried to take the beer away from defendant, followed defendant outside and asked him where he was going with the beer. According to Marin, he "was telling [defendant] to leave the beer." At that point, defendant, who was about 15 feet away, pulled out a knife with a five-inch blade and told Marin that if he got any closer he would hit him with the knife and stab him. After seeing the knife, Marin became scared and went back inside the store and told Gill to call the police. Marin explained that he took his cell phone with him when he followed defendant outside, and that although he threatened to call the police after he saw the knife, he did not do so because he was "really scared and didn't know what to do."
Later that evening, several fires were set near South River Road within walking distance from Holland Market. While a police officer was at defendant's residence, a PG&E employee informed him that he had seen a white male wearing dark clothing setting fires on the south side of South River Road. The description of the man provided by the PG&E employee was consistent with the surveillance video of defendant at Holland Market and the description provided by another individual (Mark Warmus) who had called 911 and reported that a man was setting fires near the levee on South River Road. At trial, Warmus identified defendant as the person who set the fires.
The day after the fires were set, a police officer went to defendant's residence. Defendant smelled of alcohol and was taken into custody. A search of defendant's trailer revealed a lighter and a knife with a six-inch blade.
Later that day, defendant was interrogated by Detective Dean Nyland of the Yolo County Sheriff's Department. The interrogation was recorded and played for the jury. At the beginning of the interrogation, defendant indicated that he speaks "good English" and understood what Detective Nyland was saying. After defendant was read his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), he acknowledged that he understood what Detective Nyland had said. He then told Detective Nyland that he had been drinking the previous day and went to the store near his house to get beer. He admitted that he took some beer from the store without paying for it after the store manager refused to sell it to him. He also admitted that he pulled out a knife to scare away a store employee who had followed him outside and threatened to call the cops. He further admitted that he went for a walk on the levee near his house and started two or three fires with a lighter.
Because defendant appeared to be more fluent in Spanish than English, Detective Nyland arranged for a Spanish-speaking colleague, Detective Hernan Ovedio, to question defendant in Spanish to ensure that he understood what he had been asked during the interrogation. Detective Ovedio testified that defendant told him that he fully understood everything he had discussed with Detective Nyland. In addition, defendant confirmed that the knife and lighter found inside the trailer belonged to him, and that he had the knife with him the previous day. In response to Detective Ovedio's inquiry as to why he pulled out a knife, defendant said, "I just fucked it up." According to Detective Ovedio, defendant understood the questions he had asked.
Defendant testified on his own behalf. He claimed to remember very little about the events prior to his arrest. He acknowledged that he was "very drunk" when he entered Holland Market but denied having a knife. He also claimed that he could not recall if he had started any fires. According to defendant, he admitted to starting a fire and possessing a knife because the officer interrogating him claimed he had videos.
Captane Thomson, a psychiatrist, testified that he interviewed defendant at the Yolo County Jail with the aid of a Spanish-speaking interpreter to determine if there was a basis for defendant to plead not guilty by reason of insanity. During the interview, Dr. Thomson found that defendant had cognitive difficulties and concluded that he was suffering from Borderline Intellectual Disability. Dr. Thomson noted that defendant's I.Q. had been measured at 78, and he placed in the bottom 10th percentile of intelligence in another nonverbal test. Dr. Thomson opined that defendant "is functioning just above the level of mental retardation."
On August 1, 2013, defendant was charged by complaint with one count of second degree robbery (§§ 211, 212.5, subd. (c)) and three counts of arson of an uninhabited structure or forest land (§ 451, subd. (c)). It was also alleged that defendant personally used a deadly or dangerous weapon in committing the robbery. (§ 12022, subd. (b)(1).) After defense counsel declared a doubt as to defendant's competency under section 1368, the trial court ordered he be examined to determine if he was competent to stand trial. On September 12, 2013, the trial court issued an order of confinement after finding defendant mentally incompetent to stand trial.
On January 30, 2014, the Medical Director of the Napa County State Hospital certified that defendant was mentally competent to stand trial following treatment and further evaluation. On February 10, 2014, the trial court found defendant competent and criminal proceedings were reinstated.
On April 7, 2014, defendant was charged by information with one count of second degree robbery (§§ 211, 212.5, subd. (c)) and four counts of arson of an uninhabited structure or forest land (§ 451, subd. (c)). The information also alleged that defendant personally used a deadly or dangerous weapon in committing the robbery. (§ 12022, subd. (b)(1).) Defendant pleaded not guilty to the charges and denied the special allegation.
On May 19, 2014, defendant entered a plea of not guilty by reason of insanity. Pursuant to section 1027, the trial court appointed a psychiatrist and a psychologist to examine defendant's mental condition. Following the issuance of their reports, defendant withdrew his not guilty by reason of insanity plea.
On July 3, 2014, defendant filed a motion to suppress the statements he made to Detective Nyland on the ground that he lacked the mental capacity to knowingly and voluntarily waive his Miranda rights. The prosecutor filed a written opposition to the motion. After reviewing the recording of the interrogation and the psychological reports addressing the question of whether defendant was legally insane at the time the charged offenses were committed, the trial court denied the motion. In so ruling, the trial court found that defendant had implicitly waived his Miranda rights by continuing to speak with Detective Nyland after receiving his Miranda rights advisement and indicating he understood what Detective Nyland had said. The trial court concluded that the waiver was voluntary based on defendant's answers to Detective Nyland's questions and his repeated confirmation that he understood what Detective Nyland was saying. While the trial court acknowledged that the psychological reports indicated that defendant "has some intellectual difficulties," it found nothing in the reports supporting the conclusion that those difficulties vitiated defendant's understanding of his rights or his willingness to respond to the questions posed by Detective Nyland.
On July 17, 2014, a jury found defendant not guilty on one of the arson counts and guilty on the remaining counts. The jury also found untrue the allegation that defendant personally used a deadly or dangerous weapon during the commission of the robbery. The trial court suspended imposition of sentence and placed defendant on formal probation for a term of four years with various conditions, including the condition he serve 360 days in county jail.
Defendant filed a timely notice of appeal.
DISCUSSION
I
The Sufficiency of the Evidence of Robbery
Defendant challenges the sufficiency of the evidence to support his robbery conviction. According to defendant, the evidence presented at trial was insufficient to establish he stole the beer from Holland Market by force or fear. We disagree.
A. The Standard of Review
" ' "To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." ' [Citations.] ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' [Citations.] The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]" (People v. Valdez (2004) 32 Cal.4th 73, 104.)
B. 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.) The requisite force or fear does not need to occur at the time of the initial taking of the property. (People v. McKinnon (2011) 52 Cal.4th 610, 686; People v. Gomez (2008) 43 Cal.4th 249, 256.) If the defendant uses force or fear to escape or otherwise retain possession of the property, he is guilty of robbery. (See McKinnon, at p. 686; Gomez, at pp. 256-257.) Whether the defendant used force or fear to accomplish the taking is a question for the trier of fact. (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707.)
"Generally, 'the force by means of which robbery may be committed is either actual or constructive. The former includes all violence inflicted directly on the persons robbed; the latter encompasses all . . . means by which the person robbed is put in fear sufficient to suspend the free exercise of . . . will or prevent resistance to the taking.' [Citation.] This 'constructive force' means 'force, not actual or direct, exerted upon the person robbed, by operating upon [a] fear of injury . . . .' [Citation.] . . . '[F]orce' has no technical meaning which must be explained to jurors. [Citation.] Included within the common meaning of 'force' is 'such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death.' [Citation.]" (People v. Wright (1996) 52 Cal.App.4th 203, 210-211.) " '[F]orce' is not an element of robbery independent of 'fear'; there is an equivalency between the two. ' "[T]he coercive effect of fear induced by threats . . . is in itself a form of force, so that either factor may normally be considered as attended by the other." ' [Citation.]" (Id. at p. 211.)
" 'The element of fear for purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his property.' [Citations.] It is not necessary that there be direct proof of fear; fear may be inferred from the circumstances in which the property is taken. [Citation.] [¶] If there is evidence from which fear may be inferred, the victim need not explicitly testify that he or she was afraid. [Citation.] Moreover, the jury may infer fear ' "from the circumstances despite even superficially contrary testimony of the victim." ' [Citations.] [¶] The requisite fear need not be the result of an express threat or the use of a weapon. [Citations.] Resistance by the victim is not a required element of robbery [citation], and the victim's fear need not be extreme to constitute robbery [citation]. All that is necessary is that the record show ' " 'conduct, words, or circumstances reasonably calculated to produce fear . . . .' " ' [Citation.] [¶] Intimidation of the victim equates with fear. [Citation.] An unlawful demand can convey an implied threat of harm for failure to comply, thus supporting an inference of the requisite fear. [Citation.]" (People v. Morehead (2011) 191 Cal.App.4th 765, 774-775.)
Here, sufficient evidence supports the force or fear element. There was evidence that the store manager of Holland Market refused to sell beer to defendant because he was intoxicated. There was also evidence that defendant insisted on taking the beer and warned a store employee (Marin) to stay away from him before leaving the store without paying for the beer. When Marin followed defendant outside and asked him where he was going with the beer and threatened to call the police, defendant pulled out a knife and threatened to hit and stab Marin with the knife if Marin came any closer to him. Marin testified that at this point he was really scared and went back inside the store and told the manager to call the police. When defendant was interrogated, he admitted that he took beer from Holland Market without paying for it. He further admitted that he pulled out a knife to scare away the store employee who came outside and threatened to call the police. Under these circumstances, a jury could reasonably conclude that defendant took the beer from Holland Market by means of force and fear. (See People v. Estes (1983) 147 Cal.App.3d 23, 26-28 [defendant properly found guilty of robbery where he stole an item from a store, was confronted by store security outside the store, and swung a knife and threatened to kill the guard].)
II
The Motion to Suppress Defendant's Statement to Law Enforcement
Defendant contends the trial court prejudicially erred in denying his motion to suppress. According to defendant, he did not knowingly and intelligently waive his Miranda rights when he was interrogated by Detective Nyland.
The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." This privilege protects an accused from being compelled to testify against himself or to provide evidence of a testimonial or communicative nature. (Schmerber v. California (1966) 384 U.S. 757, 773 [16 L.Ed.2d 908, 921].)
"Under California law, issues relating to the suppression of statements made during a custodial interrogation must be reviewed under federal constitutional standards." (People v. Nelson (2012) 53 Cal.4th 367, 374 (Nelson).) Miranda provides that a suspect in custody "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." (Miranda, supra, 384 U.S. at p. 479.) After the warnings have been given, if the suspect indicates in any manner that he wishes to remain silent or consult with an attorney, the interrogation must cease (until an attorney is present if the suspect invokes his right to counsel). (Id. at pp. 473-474.) Otherwise, " 'any statement obtained from him during interrogation thereafter may not be admitted against him at his trial' [citation], at least during the prosecution's case-in-chief." (People v. Lessie (2010) 47 Cal.4th 1152, 1162.)
A suspect may waive his rights expressly or impliedly. (Nelson, supra, 53 Cal.4th at p. 375.) "A suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights." (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218-219.)
"To establish a valid waiver of Miranda rights, the prosecution must show by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary." (Nelson, supra, 53 Cal.4th at pp. 374-375.) " '[T]he determination whether statements obtained during [a] custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forego his rights to remain silent and to have the assistance of counsel. [Citation.]' " (People v. Whitson (1998) 17 Cal.4th 229, 246-247.) The "court analyzing the question must consider two distinct components: 'First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.] [¶] . . . [¶] . . . Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.' " (Whitson, at p. 247.)
"Where, as was the case here, an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review." (People v. Duff (2014) 58 Cal.4th 527, 551.) "While we must review the record and make an independent determination of the question, we . . . may 'give great weight to the considered conclusions' of a lower court that has previously reviewed the same evidence." (People v. Jennings (1988) 46 Cal.3d 963, 979.)
An examination of the totality of the circumstances leads us to conclude that defendant made a knowing, intelligent, and voluntary waiver of his Miranda rights. At the beginning of the interrogation, defendant indicated that he speaks "good English" and acknowledged that he understood what Detective Nyland was saying to him. He was read his Miranda rights and said he understood them. After this, he proceeded to answer the detective's questions about the robbery and fires, thereby impliedly waiving his right to remain silent. (Berghuis v. Thompkins (2010) 560 U.S. 370, 388-389 [176 L.Ed.2d 1098, 1115] ["a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police"].) Defendant was not worn down with lengthy questioning and was not subjected to improper interrogation tactics, trickery, threats, or promises. The interrogation lasted less than 40 minutes and Detective Nyland did not behave in a coercive or threatening manner. There is no indication that Detective Nyland took advantage of defendant's cognitive deficiencies to convince him to waive his Miranda rights. Following the interrogation, defendant spoke with a Spanish-speaking detective and confirmed that he fully understood everything he had discussed with Detective Nyland. At no point during the interrogation did defendant indicate any confusion or lack of comprehension about his rights. Defendant responded appropriately to all of the questions. He did not ask to end the interrogation or request an attorney.
The fact that defendant has a low I.Q. does not render his statements inadmissible under the circumstances of this case. It is well-established that a confession is not inadmissible as a matter of law merely because the accused was of subnormal intelligence. Intelligence is only one of many factors to be considered in assessing the validity of the Miranda waiver. (In re Norman H. (1976) 64 Cal.App.3d 997, 1001.) In Norman H., the court upheld a Miranda waiver made by a 15-year-old boy with an I.Q. of 47. The court concluded the minor had the capacity to understand the waiver, explaining: "A confession of a crime is not inadmissible merely because the accused was of subnormal intelligence, although subnormal intelligence is a factor that may be considered with others in determining voluntariness." (Id. at pp. 1001, 1002.) It continued, "Neither a low I.Q. nor any particular age of minority is a proper basis to assume lack of understanding, incompetency, or other inability to voluntarily waive the right to remain silent under some presumption that the Miranda explanation was not understood." (Id. at p. 1003.) To conclude otherwise would misconstrue and improperly extend the knowing element of the Miranda waiver. (Ibid.) Having reviewed the videotape of defendant's interrogation and the psychological reports considered by the trial court, we discern no error in the trial court's determination that defendant's waiver of his Miranda rights was knowing, intelligent, and voluntary.
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: NICHOLSON, Acting P. J. BUTZ, J.