Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 064897
ROBIE, J.
A jury acquitted defendant Alejandro Quinones Barragan of two counts of attempted murder and one count of arson but found him guilty of arson of an inhabited structure, possession of methamphetamine, and possession of controlled substance paraphernalia. Defendant was sentenced to five years eight months in state prison. Defendant appeals, claiming the trial court erroneously denied his motion pursuant to Miranda and erred in imposing restitution and court security fees.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
BACKGROUND
The facts of the underlying offenses are immaterial to our determination of this appeal. The facts surrounding defendant’s statement to police, however, are material and are given below.
In August 2006, Sergeant Frank Joseph Ritter, who does not speak Spanish, contacted defendant on the telephone. Speaking English, Ritter introduced himself, said he was conducting a police investigation, told defendant he would like to speak with him, and asked for directions to defendant’s home. In response, defendant gave Ritter his address along with directions.
Ritter arrived at defendant’s home shortly thereafter and found defendant standing in the driveway, still on the phone with Ritter. Ritter got out of his car and defendant walked into his garage apartment. Ritter knocked on the apartment door and called out to defendant, who responded in English.
Inside defendant’s apartment, Ritter asked defendant whether he had anything illegal on him; appearing nervous, defendant reached for his pocket. Ritter searched defendant’s pocket and found what he believed was a controlled substance. He asked defendant if it was heroin, and, in English, defendant said, “[N]o, it’s methamphetamine.”
Ritter told defendant he was under arrest and introduced him to Officer John Perez, telling defendant that Officer Perez would take defendant to the police station. At the police station, Ritter escorted defendant to the interview room where they continued speaking to each other in English. Defendant said the handcuffs were too tight, and Ritter agreed to remove them, provided defendant would agree not to run. Defendant agreed and the handcuffs were removed.
As the handcuffs were removed, Ritter noticed a cut on defendant’s knee and the following exchange took place:
“Q: [W]hen did that happen? That cut on your knee?
“A: Uh -- that’s you guys fault. You guys (unclear) me.
“Q: You fell down or what?
“A: Huh?
“Q: Did you fall down?
“A: No. I was at my house ([u]nclear) some (unclear) glass was over there.”
Ritter then read defendant his Miranda rights from a card issued by the police department:
“Q: Okay. [R]ight now you’re just under arrest for the methamphetamine and the pipe, okay? But because you’re under arrest I gotta read you your rights. I need you to say yes or no when I ask you a question. Okay? You have the right to remain silent? Do you understand that right, Alex? I need -- I’m sorry, I need a yes or a no?
Apparently defendant nodded in the affirmative and Ritter had to ask for a verbal response.
“A: Yes.
“Q: Okay. Anything you say may be used against you in court. Do you understand that right?
“A: Yes.
“Q: You have the right to the presence of an attorney before and during questioning. Do you understand that right?
“A: Yes.
“Q: If you cannot afford to hire an attorney, one will be provided for you free of charge before any questioning if you like. Do you understand that?
“A: Yes.”
Ritter then proceeded with the interview.
Throughout the interview, Ritter continued speaking to defendant in English, believing defendant understood him. Defendant’s responses to Ritter were appropriate and in English and he interacted appropriately with Ritter, following commands and direction. During the interview, defendant admitted setting fire to the victims’ home, explaining that he did not believe the home was inhabited at the time.
The prosecution moved to have defendant’s statements admitted at trial. Defendant moved to have his statements suppressed. Defendant argued his admission 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, his Mexican culture prevented him from understanding that he was free to remain silent, and he was under the influence of methamphetamine.
The trial court held an evidentiary hearing on both motions. Sergeant Ritter testified that defendant appeared to understand him when he communicated to defendant in English, including when he read defendant his Miranda rights. Ritter explained that he is trained to bring in an interpreter if he believes a suspect is unable to understand English.
The trial court granted the prosecution’s motion to admit the statement and denied defendant’s motion to suppress the same. The court determined “that the waiver was knowing[], intelligent[] and voluntary . . . that [defendant] understands English sufficiently to make a knowingly, intelligent and voluntary waiver of his Miranda rights. The Court is convinced he does understand and comprehends what is being said to him.”
DISCUSSION
I
The Miranda Motion
Defendant contends the trial court erred in denying his motion to suppress his statement to police because his Miranda rights “were recited without any explanation of what each provided. Because of [defendant]’s limited English and limited exposure to the criminal justice system . . . .” 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 defendant’s age and “any language difficulties” are also factors in applying the totality test. (United States v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 751-752.)
We review de novo the trial court’s 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 court’s 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 court’s finding that defendant’s 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 38 years old and had been in the United States since 1986 or 1987. Contrary to defendant’s claim, he had significant experience with the criminal justice system, having already had six convictions at the time he was arrested for the current offenses. Moreover, Sergeant Ritter was able to communicate with defendant in English both before and after defendant’s arrest. Defendant was even able to give Ritter directions to defendant’s home over the telephone.
Defendant nevertheless argues the transcript of the interview supports his claim by saying, “the interrogation was full of misunderstandings . . . .” Yet, in a 15-page transcript, defendant cites to only two such “misunderstandings”: (1) defendant’s struggle to differentiate between rubbing alcohol and an alcoholic beverage when explaining that he used alcohol to start the fire; and (2) defendant’s apparent confusion with how he injured his knee. When read in context, these “misunderstandings,” as defendant characterizes them, do not amount to anything more than evidence that defendant was not a native English speaker and may have some difficulty speaking English.
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. (United States v. Bernard S., supra, 795 F.2d at p. 752; see also Campaneria v. Reid (2d Cir. 1989) 891 F.2d 1014, 1020 [the defendant’s limited proficiency in English did not prevent him from making a knowing and intelligent waiver of his constitutional rights ].) Although defendant spoke in broken English and with an Hispanic accent, the record amply supports the trial court’s finding that his command of English was sufficient for him to have understood the Miranda warnings given to him.
Defendant’s 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 court’s 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. (Id. at pp. 538-539.) Defendant here 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 evidence in the record that defendant does not possess at least average intelligence.
The trial court’s finding that defendant’s 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 defendant’s suppression motion.
Buried in his claim that he should have been given his Miranda rights in Spanish, defendant alludes to alternate bases for reversing the trial court’s denial of his motion to suppress: (1) “the rights were recited without any explanation of what each provided”; (2) “[a]t no time were [defendant]’s Miranda rights actually explained to him”; (3) defendant was never “actually asked if he was waiving those rights”; and (4) defendant never signed a written waiver of his Miranda rights.
If defendant intended these arguments to be made separate and apart from his claim that he could not make a knowing and intelligent waiver of his Miranda rights because they were not given to him in Spanish, he has forfeited those arguments by burying them in his brief and failing to support them with any analysis and/or relevant authority. (People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [any argument not set forth under a separate argument heading that is raised in a perfunctory fashion without any supporting analysis and authority may be forfeited].)
II
The Restitution Order
Defendant also claims the trial court erred in ordering defendant to pay $51,052.62 in restitution to the California Department of Corrections because: (1) the victims were reimbursed for their losses by their insurance companies; and (2) the California Department of Corrections was not a direct victim. Defendant’s claims are frivolous.
It is well established that victims are entitled to restitution of the full amount of the losses resulting from the defendant’s conduct, regardless of any amount reimbursed to the victims by their insurance companies or similar third parties. (People v. Birkett (1999) 21 Cal.4th 226, 246.) It is, therefore, irrelevant to the court’s ruling that the victims here received reimbursement from their insurance companies.
Defendant also mischaracterizes the trial court’s order for reimbursement as one compelling him to pay restitution to the Department of Corrections as a direct victim of defendant’s crimes. What the court actually said was: “I am going to order a restitution amount of $51,052.62 to be collected by the Department of Corrections. The amount is $51,052.62. That is the restitution amount to be collected by the department.” (Italics added.) Moreover, the minutes from the sentencing hearing indicate only that the restitution amount is to be “collected,” and the abstract of judgment indicates the restitution is to be paid to the victims, though it fails to identify the victims by name.
The California Constitution requires defendant to pay restitution to his victims. (Cal. Const., art. I, § 28, subd. (b).) That restitution must be collected by someone. Because defendant is going to prison, it is more than reasonable to order the Department of Corrections and Rehabilitation to collect that restitution and see that the victims are paid. There is no error.
We do note that the abstract of judgment should be amended to specifically identify the victim or victims to whom the restitution shall be paid once it is collected by the Department of Corrections and Rehabilitation. Accordingly, we will remand the matter and direct the trial court to clarify its order of restitution by identifying the victim or victims to whom the restitution is to be paid and amend the abstract of judgment accordingly.
III
The Court Security Fee
Defendant notes the abstract of judgment states he is subject to a $40 fee pursuant to “A.B. 1759.” He argues that no such fine exists, and that if the court intended the fine to be a Penal Code section 1465.8 court security fee, it should be stricken because the court did not order the fee on the record. Again, we find defendant’s claim to be frivolous.
First, the reference to “A.B. 1759,” is an obvious mistake. Although “A.B. 1759” was the assembly bill that ultimately became Penal Code section 1465.8 (See Historical and Statutory Notes to § 1465.8), the fine is imposed pursuant to the Penal Code.
Second, it is irrelevant that the trial court failed to impose the court security fee on the record. Penal Code section 1465.8, subdivision (a)(1), provides for the imposition of a $20 court security fee on every conviction for a criminal offense. The statute unambiguously requires a fee to be imposed for each of defendant’s convictions. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.)
Since the fee is mandatory and applies to each conviction, the court’s error can be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354.) Where a trial court fails to impose a statutorily mandated fine or fee, it renders an unauthorized sentence, which an appellate court is empowered to correct even if the People made no objection to the trial court. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1256.)
We will direct the trial court to amend the abstract of judgment, removing the reference to “A.B. 1759” and properly identify the $40 fee as a Penal Code section 1465.8 court security fee.
DISPOSITION
The court is hereby directed to identify the victim or victims to whom restitution is to be paid and amend the sentencing minutes accordingly. The court is further directed to amend the abstract of judgment as follows: (1) include the names of the victim or victims to whom restitution is to be paid; and (2) remove the reference to “A.B. 1759,” replacing it with Penal Code section 1465.8, subdivision (a)(1). The trial court is further directed to deliver a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: NICHOLSON , Acting P. J., MORRISON , J.