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People v. Bates

California Court of Appeals, Second District, Fifth Division
Feb 7, 2011
No. B223341 (Cal. Ct. App. Feb. 7, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of the County No. BA332778 of Los Angeles, Kathleen Kennedy, Judge.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.


MOSK, J.

INTRODUCTION

A jury found defendant and appellant Deveron Lamarr Bates (defendant) guilty of murder and attempted robbery. On appeal, his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) requesting that this court independently review the entire record to determine if there are any issues which if resolved in defendant’s favor, would require reversal or modification of the judgment. In response to our notice to him that he could brief any grounds of appeal, contentions, or arguments he wanted us to consider, defendant submitted a supplemental brief contending, inter alia, that the trial court violated his Miranda rights by admitting into evidence his statement to the investigating detectives.

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

Based on our consideration of his submission and independent review of the record, we hold that the trial court did not violate defendant’s Miranda rights because his statement to the detectives was made knowingly and voluntarily and that there are no other arguable issues on appeal. We therefore affirm the judgment.

FACTUAL BACKGROUND

On March 4, 2006, at approximately 1:15 a.m., Oscar Iglesias heard what sounded like a female screaming from a location across the street from his North Figueroa Street apartment. From his kitchen window, he saw a shorter man “being held by a taller man behind him.” The taller man had the shorter man in a “head lock.” The smaller man had a small valise or backpack. The taller man was approximately five-feet seven-inches tall and was dressed all in black. The shorter man was under five-feet four-inches tall and appeared to be Hispanic.

Iglesias initially thought the taller man also looked Hispanic, but when Iglesias went to the gate of his residence at the sidewalk, he saw the taller man was a “mulato.” The taller man was trying to take a small black package or backpack away from the shorter man. At some point, the taller man “dropped” the shorter man and ran toward the gas station at Avenue 45. At that point, Iglesias called 911. Iglesias then observed an Astro van chasing the taller man through a parking lot. The van went “around [and] around [the taller man] in circles.” The driver of the van told the taller man to “stop. Leave him alone. Stop-stop. Leave him alone.”

After the taller man had run past him southbound on Figueroa, Iglesias crossed the street to determine if he could be of assistance. He observed a short male Hispanic on his back with a “silhouette of blood... around him.” As paramedics arrived, Iglesias saw that the victim was conscious, but he was “white” and “had lost a lot of blood.”

On March 4, 2006, at approximately 1:15 a.m., Felix Hernandez was driving his Chevrolet Astro van in the vicinity of Figueroa Street and Avenue 45. As he proceeded on Figueroa, he saw a man emerge from behind a doughnut shop located across Avenue 45 from a gas station. The gas station on the corner of Avenue 45 directly across from where the man emerged was well-lighted. Hernandez identified defendant at trial as the man he saw emerge from the doughnut shop. Defendant approached the victim who was walking and carrying a black bag on his shoulder. Defendant had his right hand in his pocket and was “jogging” toward the victim. Hernandez observed defendant looking from side to side as he approached the victim. Defendant came up behind the victim and put him in a choke hold with his left arm. Defendant had something in his right hand that he placed near the victim’s head or neck.

Hernandez made a u-turn in the driveway of the gas station and went back to where defendant and the victim were located. Hernandez observed defendant dragging the victim using the choke hold, and the victim was “trying to get out of the choke hold, but couldn’t.” Hernandez saw defendant stabbing the victim with his right hand using what looked like a kitchen knife. Hernandez tried to reach the victim’s location by turning into a parking lot, but a short wall blocked his path. As Hernandez exited his vehicle to confront defendant, he made eye contact with him for about eight seconds. Hernandez could see defendant trying to take the victim’s bag. Defendant stabbed the victim about ten times on the victim’s right side and back. Hernandez warned defendant that he had called the police and that he would shoot defendant, even though he did not have either a cell phone or a gun.

Hernandez then returned to his vehicle, made a u-turn, and entered a driveway near the doughnut shop. He saw defendant pull the bag away from the victim and begin to run. Hernandez’s van almost hit defendant who ran right in front of it. Defendant was trying to run to Figueroa. Hernandez tried to run over defendant at a driveway, but defendant jumped between two cars. Hernandez was about 15 feet from defendant, and he told defendant he was going to kill him. Defendant asked Hernandez to let him go and threw down the bag in the driveway.

Defendant ran across the street to an alley behind the gas station. By the time Hernandez reached the alley, defendant was gone. Hernandez returned to the victim who was bloody, lying face up, and taking deep breaths. The victim was bleeding from his right side. The paramedics arrived and when they rolled the victim over, Hernandez saw a knife blade protruding from the victim’s back.

Hernandez was shown a first set of six-pack line-up photographs, but could not identify anyone as the assailant. In a second set that he reviewed about three months after the assault, he identified a suspect who, it was later determined, was not involved. About a year and eight months after the assault, the police showed Hernandez a third set of six-pack line-up photographs. Hernandez identified defendant as the assailant, and also identified him in court at the preliminary hearing.

On March 4, 2006, at approximately 1:15 a.m., Jennifer Parsons was driving with defendant, her boyfriend at the time, as they returned to her mother’s house. She and defendant were using crack cocaine frequently in 2006, and they had used some earlier that night. She was driving her mother’s Toyota Camry northbound on the 110 freeway coming from South Central Los Angeles. When she exited the freeway at Avenue 43, the car was sputtering, as if running out of gas. Parson’s told defendant that they needed to stop at a gas station, but that she did not have any money. She was familiar with the area and knew there was a gas station on Avenue 45. She also knew the attendant because she went to that station frequently. When she arrived, the gas station was open and lighted, but there were no other patrons around. Parsons advised defendant that she was going to ask the gas station attendant to give her “a couple of dollars worth of gas so that [they could] at least get to [her] mom’s house” which was five minutes away.

Parsons exited her car and went to the window to speak with the attendant while defendant remained inside the car. Parsons asked the attendant to give her two dollars but he refused, so she went back to the car. She told defendant that the attendant refused her request and that they needed “to see if [they] could find anybody to ask for some change....” She then informed defendant that she would return to the attendant and explain that she lived only five minutes away and could return immediately to repay him if he loaned her two dollars.

While Parsons spoke to the attendant a second time, she heard the car door slam and assumed that defendant had exited the car. She spoke with the attendant for approximately five minutes and was successful in convincing him to give her two dollars worth of gas. Parsons returned to her car, but defendant was gone. She pumped two dollars worth of gas and expected defendant to return by the time she finished because she wanted to go home. As she finished, she saw defendant run across Avenue 45 and into the alley behind the gas station out of her view. She then saw defendant again running along the “next street up” from her location near some railroad tracks. She also saw a minivan driving on Avenue 45, stopping and starting, as if the driver was looking for someone.

Parsons drove from the gas station towards the railroad tracks to the location where she had last seen defendant, but did not see him, so she returned to the gas station. At the gas station, Parsons saw defendant run toward the car and “jump” in the back seat. Defendant was breathing hard and looked exhausted. She asked him what was wrong, but he did not respond. She repeated her inquiry “a couple” of times, but then defendant became angry “like he didn’t want to answer, so [she] didn’t push the issue anymore.” They left the gas station and, at Avenue 43, Parsons heard sirens and saw an ambulance pass by. Parsons then drove them to her mother’s house.

The coroner’s report of the autopsy of the victim indicated that he received two wounds, one on the front right shoulder close to the neck, and the other “over the back of the right shoulder.” The wound to the front right shoulder was fatal. Both wounds were inflicted by a knife.

After Hernandez identified defendant as the assailant from the third set of six-pack line-up photographs, detectives interviewed defendant. According to defendant, he and Parsons were using rock cocaine on March 4, 2006, but he was not under the influence. He remembered Parsons trying to convince a gas station attendant to give her some gas money at a station on Avenue 45. While they were at the station, he saw an ambulance and the police arrive at the parking lot of the Albertson’s grocery store nearby. Defendant initially claimed that he remained in the car at the gas station the entire time he and Parsons were there. He also observed a Hispanic male in an Astro van driving around the vicinity as if he was looking for or chasing somebody, and then pulling into the Albertson’s parking lot where the police and the ambulance had stopped.

The facts concerning the detective’s advisement of defendant’s Miranda rights are discussed in detail post.

When one of the interviewing detectives informed defendant that the male Hispanic in the Astro van had identified defendant as the person involved in the incident in the parking lot, he changed his story. According to defendant, he asked a man for change in the Albertson’s parking lot, but the man refused to give him money. When defendant reached for the man’s pocket, they struggled and defendant pushed him to the ground. Then the Astro van appeared and chased defendant, but he was able to elude the van and drive away with Parsons who was waiting for him.

After further questioning, defendant admitted to pulling out a knife during the struggle in the parking lot. According to defendant, he swung the knife in an effort to cut the strap of the bag the victim was carrying. He was trying to scare the victim, but when he swung the knife, the blade broke. Defendant denied stabbing the victim, but after the detectives told him that the victim had been stabbed during the altercation, defendant claimed that the stabbing must have been an accident.

PROCEDURAL BACKGROUND

In an amended information the Los Angeles County District Attorney charged defendant in count 1 with murder in violation of Penal Code section 187, subdivision (a) and in count 2 with attempted robbery in violation of sections 664 and 211. As to count 1, the District Attorney alleged as a special circumstance that defendant attempted to commit a robbery in the course of committing the murder within the meaning of section 190.2, subdivision (a)(17). The District Attorney further alleged as to both counts, that defendant personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1). And the District Attorney alleged that defendant had suffered two prior serious felony convictions and had served two prior prison terms within the meaning of sections 1170.12, subdivisions (a) through (d), 667, subdivisions (a)(1) and (b) through (i), and section 667.5, subdivision (b).

All further statutory references are to the Penal Code.

Following trial, the jury found defendant guilty on both counts and found the special circumstance and weapons use allegations to be true. Defendant waived jury trial on the prior conviction allegations and the trial court found one of the strike conviction allegations, one of the serious felony conviction allegations, and one of the prior prison term allegations to be true.

The trial court sentenced defendant on count 1 to life in prison without the possibility of parol, plus a one-year sentence for the weapon use enhancement. On count 2, the trial court imposed and stayed a high-term sentence of three years, doubled to six years under the “Three Strikes” Law, plus a one-year term based on the weapons use enhancement.

DISCUSSION

As noted above, appointed counsel filed an opening brief in accordance with Wende, supra, 25 Cal.3d 436. We gave notice to defendant that his appointed counsel had not found any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted us to consider. In response to our letter, defendant submitted a typewritten brief and attached several handwritten pages. In the typewritten portion of his brief, defendant contends that the trial court erred in denying his motion to suppress the tape and the transcript of his interview with police because he did not voluntarily waive his Miranda rights.

Defendant also attached copies of several pages from an unidentified treatise on criminal law, the significance of which defendant does not explain.

Prior to interviewing defendant, Los Angeles Police Department Detective Governo engaged in the following exchange with defendant: “[Detective] Governo: Ok. Um. Before I talk to you about, um, ah, why we’re here, I’m gonna read you your rights. [¶] [Defendant]: Ok. [¶] [Detective] Governo: It’s about something unrelated to that just so you know. Ok? [¶] [Defendant]: Ok. [¶] [Detective] Governo: Alright. You have the right to remain silent. Do you understand? [¶] [Defendant]: Yes. [¶] [Detective] Governo: Anything you say may be used against you in court. You understand that? [¶] [Defendant]: Yes. [¶] [Detective] Governo: You have the right to the presence of an attorney before and during any questioning. You understand that? [¶] [Defendant]: Yes. [¶] [Detective] Governo: Ok. If you cannot afford an attorney one will be appointed for you free of charge before any questioning. Do you understand that? [¶] [Defendant]: Yes I do. [¶] [Detective] Governo: Ok. What I want to talk to you about um Mr. Bates is an incident that occurred back in March of 2006 so over a year ago. [¶] [Defendant]: Ok. [¶] [Detective] Governo: Kinda, so kinda take your maybe, your mind to that, that time frame. [¶] [Defendant]: Ok.”

Defendant contends that although the detective read his Miranda rights and he indicated that he understood those rights, the detective failed to ask defendant if he knowingly and voluntarily waived those rights. According to defendant, that failure to obtain defendant’s express waiver prior to questioning him constituted a violation of his Miranda rights warranting a reversal of his conviction.

In reviewing defendant’s claim that his Miranda rights were violated, “we apply an independent standard of review, doing so ‘in light of the record in its entirety, including “all the surrounding circumstances-both the characteristics of the accused and the details of the [encounter]”....’ [Citations.]” (People v. Neal (2003) 31 Cal.4th 63, 80.) “‘[W]e must accept the trial court’s resolution of disputed facts and inferences, as well as its evaluation of the credibility of witnesses where supported by substantial evidence. [Citations.] Miranda makes clear that in order for defendant’s statements to be admissible against him, he must have knowingly and intelligently waived his rights to remain silent, and to the presence and assistance of counsel. [Citation.] [¶] ‘It is further settled, however, that a suspect who desires to waive his Miranda rights and submit to interrogation by law enforcement authorities need not do so with any particular words or phrases. A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision. [Citation.] We have recognized that a valid waiver of Miranda rights may be express or implied. [Citations.] 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. [Citations.] In contrast, an unambiguous request for counsel or refusal to talk bars further questioning. [Citation.] [¶] ‘Although there is a threshold presumption against finding a waiver of Miranda rights [citation], ultimately the question becomes whether the Miranda waiver was knowing and intelligent under the totality of the circumstances surrounding the interrogation. [Citations.]’ (People v. Cruz (2008) 44 Cal.4th 636, 667-668 [80 Cal.Rptr.3d 126, 187 P.3d 970].)” (People v. Hawthorne (2009) 46 Cal.4th 67, 86, italics added.)

Here, the record shows that when Detective Governo read defendant his Miranda rights, defendant confirmed that he understood each of them. The record also establishes that when Detective Governo began questioning defendant, he answered voluntarily without making any objection or protest, much less specifically requesting to speak to a lawyer or asserting his right to remain silent. He therefore implicitly waived his rights under Miranda.

Defendant’s typewritten brief also contends that his appointed counsel in the present appeal provided ineffective assistance by not raising on appeal the voluntariness of his statement to the detectives. Because we have concluded that the voluntariness issue raised in defendant’s typewritten brief has no merit, defendant’s claim of ineffective assistance of appellate counsel has no merit.

In the handwritten pages attached to defendant’s typewritten brief, defendant sets forth a number of boilerplate legal propositions with some citations to authority, but makes no attempt to tie any of those propositions to an assertion of error by the trial court. Moreover, there is no meaningful analysis or argument in those pages and no citation to either the reporter’s or clerk’s transcript.

California Rules of Court, rule 8.204(1)(B) & (C) requires parties to an appeal to “support each point by argument, and, if possible, by citation to authority” and to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” “When an appellant’s brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 406-407.)

This rule applies to both civil and criminal appeals. (Cal. Rules of Court, rule 8.360(a).)

The legal propositions in the handwritten pages attached to defendant’s brief are unaccompanied by any attempt to comply with the foregoing requirements. Thus, any issues that those pages purport to raise are deemed forfeited.

In addition to considering defendant’s submission, we examined the entire record to determine if there are any other arguable issues on appeal. Based on that independent review, we have determined there are no arguable issues on appeal. We are therefore satisfied that defendant’s appointed counsel has fully satisfied his responsibilities under Wende, supra, 25 Cal.3d 436.

DISPOSITION

The judgment is affirmed.

We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.


Summaries of

People v. Bates

California Court of Appeals, Second District, Fifth Division
Feb 7, 2011
No. B223341 (Cal. Ct. App. Feb. 7, 2011)
Case details for

People v. Bates

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DEVERON LAMARR BATES, Defendant…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Feb 7, 2011

Citations

No. B223341 (Cal. Ct. App. Feb. 7, 2011)

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