Opinion
H036520
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MARCUS DEJONG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC779769)
On November 5, 2010, defendant Robert Marcus DeJong pleaded guilty to one count of second degree murder (Pen. Code, § 187). On January 11, 2011, in accordance with the plea agreement, the trial court dismissed a gang enhancement allegation and sentenced DeJong to a term of 15 years to life in prison, with credit for time served of 1205 days.
Further unspecified statutory references are to the Penal Code.
We appointed counsel to represent DeJong in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified DeJong of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and we have received no written argument from DeJong.
I. DISCUSSION
By information dated March 27, 2009, DeJong, Christopher Lee, Kosal Khek and Vinh Ly were charged with one count of murder. (§ 187.) The amended information further alleged that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).)
On September 6, 2007, DeJong drove Khek to a shopping center where Khek stabbed Anthony Nguyen twice in the abdomen, killing him. Evidence at the preliminary hearing suggested that Khek and another person named Lee had planned the attack via instant messages.
After DeJong was identified as a possible witness, police asked him to come to the police station for questioning. DeJong voluntarily went to the station as asked, where he was advised of his Miranda rights before he was questioned. DeJong admitted driving Khek to the mall where Nguyen was stabbed, but said Khek told him he only wanted to hurt Nguyen, not kill him.
Miranda v. Arizona (1966) 384 U.S. 436.
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DeJong also said he and the other defendants had planned that Khek would jump Nguyen or stab him in the stomach, believing such a wound would not be fatal. Codefendant Ly told police that when Khek asked if he should stab Nguyen, he and DeJong said Khek should, "but not too seriously."
Khek exited the car and told DeJong to wait for him at the rear of the shopping center. When Khek got back in the car, he said, "I got him three times." Other evidence was presented at the preliminary hearing showing that DeJong and the other codefendants were members of a small gang called Viet Society, or VS, and the attack on Nguyen was carried out in connection with that gang's activities. A police officer opined that DeJong was an active participant in VS at the time of the murder, but admitted that witnesses had advised him DeJong was not a member of the gang.
The People presented evidence at the preliminary hearing that DeJong and other defendants had exchanged instant messages relating to buying drugs and guns. Instant messages between the other defendants, not including DeJong, appeared to plan the attack on Nguyen. All of the defendants, including DeJong, moved to suppress the evidence of these instant messages as the fruits of an illegal search and seizure of computers owned by defendants Lee and Khek. It was stipulated the messages which they were seeking to suppress came from a computer taken from Lee's residence, and it was conceded that the defendants had standing to challenge the search as each defendant had a reasonable expectation of privacy in the messages he had sent.
After hearing evidence that Lee was on searchable probation at the time of the search and seizure, and that the officers who searched his home and seized his computer were aware of Lee's status, the trial court denied the motion to suppress. The court also ruled the seizure and search of computers from Khek's home was legal.
On June 4, 2010, the court severed DeJong and Ly for a separate trial from Khek and Lee.
On November 5, 2010, following an advisement of his rights to a jury trial, to question witnesses, present a defense, and to testify on his own behalf, as well as an advisement of the potential sentence, credit and parole, DeJong pleaded guilty to one count of second degree murder, pursuant to an agreement that the gang enhancement allegation would be stricken and he would be sentenced to a term of 15 years to life. DeJong's counsel concurred in the plea and stipulated to there being a factual basis for the plea based on the preliminary hearing transcript and the police reports attached to the information.
At DeJong's January 11, 2011 sentencing hearing, the trial court found the plea agreement to be "more than appropriate for your conduct, your choices, and what occurred." DeJong was sentenced to 15 years to life in prison and the court struck the gang enhancement allegation. The trial court found DeJong lacked the present ability to reimburse the county and did not order attorney fees. DeJong was awarded 1205 days of custody credits and zero days of conduct credits.
As to restitution, DeJong stipulated to joint and several liability for $28,956.13 in restitution to Nguyen's family, and $7,500 to the Victim Restitution Board, both of which were ordered by the court. The court further ordered a $200 restitution fund fine and suspended the revocation fine.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.
II. DISPOSITION
The judgment is affirmed.
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Premo, Acting P.J.
WE CONCUR:
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Elia, J.
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Mihara, J.