Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC135556.
STEIN, Acting P. J.
David A. Johnson appeals his conviction of one count of continuous sexual abuse of a child (Pen. Code, § 288.5). The jury also found true an allegation that defendant had served a prior prison term (Pen. Code, § 667.5). The court sentenced defendant to the aggravated term of 16 years, and a consecutive one-year term for the prior prison term enhancement.
Defendant contends that the court erred by: (1) denying his motion to suppress admissions he made in a police interview after waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436); (2) admitting evidence of defendant’s violent acts and association with the Hell’s Angels; and (3) imposing the upper term based upon aggravating sentencing factors not found by a jury.
We shall find no error and affirm the judgment.
DISCUSSION
I.
Motion to Suppress
Defendant first contends that the court erred by denying his pretrial motion to suppress statements he made in an interview with the police on the ground that his waiver of his Miranda rights and subsequent admissions were involuntary.
We shall summarize the facts only as relevant to the issues on appeal. Detective Collins and Detective Mackenzie interviewed defendant while he was already in custody on an unrelated issue. During this interview, defendant made several damaging admissions, including that, when the victim, Jane Doe, was 12 years old, he had masturbated in front of her four to six times, and had touched her breast four to seven times. He stated that when that happened, he would say to himself, “[W]hoa, Dave,” and would tell Jane that what they were doing was not right. He would also say to himself: “I wish she wasn’t my daughter, and I wish she was over 18.” He stated that he hated himself for what he had done, and expressed a desire to be in therapy, but he also felt that Jane had deliberately exposed herself to him.
At the hearing on the motion to suppress, Detective Collins testified that he and Detective Mackenzie met defendant in an interview room at the Contra Costa County jail. Collins identified himself and Mackenzie as police officers and told defendant they wanted to interview him. Collins did not say why they wanted to interview him, but did say that he needed to read defendant his Miranda rights. Collins read defendant his Miranda rights from a department-issued card. He asked defendant whether he understood those rights and wrote down his response, which was, “Yeah.” Collins also asked whether, having those rights in mind, he nonetheless wished to talk, and again defendant responded, “Yeah.” Defendant then answered all questions without objection or expression of any misunderstanding of his rights.
Defendant testified that Detectives Collins and Mackenzie told him they were investigating a friend of his, Mr. Martinez, who had also molested Jane Doe. He acknowledged that Collins read him his Miranda rights, and that defendant stated he was willing to waive those rights and talk. Nevertheless, he did not really understand these rights, due to a lack of education. He “may have mentioned . . . [d]o I need an attorney?” He concluded he did not, because he was told he was not in any trouble, and they were just investigating. He also testified that he “thought” Collins informed him they already interviewed Jane’s mother.
On cross-examination, defendant admitted that he understood his right to remain silent and to an attorney, and that an attorney would be appointed if he could not afford one. Although he initially testified he could not understand the warning that anything he said could and would be used against him, he later admitted that he did understand these words, and that he had received the same warning in similar words in another case where he pleaded guilty to a felony. He also acknowledged that Detective Collins did not threaten him.
In rebuttal, Detective Collins testified that defendant never asked whether he needed a lawyer. The court found defendant was advised of his Miranda rights, and that the waiver of Miranda rights and the subsequent admissions were voluntary.
Defendant argues that his waiver and subsequent admissions were coerced, based upon what he characterizes as the “uncontradicted fact” that Detective Collins deliberately led him to believe the interview was about Martinez, and failed to record the interrogation or to obtain a written waiver. He further contends he did not knowingly and intelligently waive his Miranda rights because he did not fully understand them and was confused about whether he needed an attorney. (See People v. Kelly (1990) 51 Cal.3d 931, 950.) He relies upon these same factors to argue that, even if he voluntarily waived his Miranda rights, his incriminating admissions were involuntary and the admission of these statements violated his state and federal due process rights. (See People v. Boyette (2002) 29 Cal.4th 381, 411-412.)
We, as the reviewing court, must independently determine whether the waiver was voluntary in the sense that it was “the product of a free and deliberate choice rather than intimidation, coercion or deception,” and was “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” (Moran v. Burbine (1986) 475 U.S. 412, 421.) We also must independently determine, under the totality of the circumstances, whether the subsequent admissions were coerced. (People v. Boyette, supra, 29 Cal 4th at p. 411.) “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.’ ” (People v. Guerra (2006) 37 Cal.4th 1067, 1092-1093; People v. Boyette, supra, at p. 411.) We shall find that defendant was advised of, and understood, his Miranda rights, and that no police coercion induced the waiver or the subsequent admissions, and no other circumstances rendered the waiver or subsequent admissions involuntary.
The record simply does not support defendant’s assertion the evidence was uncontradicted that Collins told defendant he was only investigating Martinez. The evidence was in conflict concerning what Collins told defendant: Defendant testified that Collins told him he was investigating Martinez, but Collins testified that he did not tell defendant why he wanted to interview him, and told him only that because he was in custody he was going to read him his rights. To the extent the facts are in conflict, we, as the reviewing court, accept the version supporting the court’s ruling. (See People v. Guerra, supra, 37 Cal.4th at p. 1093.) Collins’s testimony constitutes substantial evidence that Collins did not misrepresent the purpose of the interview before reading defendant his Miranda rights and obtaining his waiver.
In any event, “a criminal defendant’s Miranda waiver is voluntary even if police fail to inform the defendant of all the crimes about which he might be questioned.” (People v. Boyette, supra, 29 Cal.4th at p. 411.)
Although obtaining a written waiver and recording an interview may be good practices, neither is required to prove compliance with Miranda or that subsequent admissions were voluntary. (North Carolina v. Butler (1979) 441 U.S. 369, 371, 375, fn. 5; People v. Whitson (1998) 17 Cal.4th 229, 249-250; People v. Gurule (2002) 28 Cal.4th 557, 603). Defendant’s own testimony establishes that, despite his lack of education, he did understand his Miranda rights and the consequences of waiving them. Although he initially generally asserted that he had trouble understanding these rights, under more specific questioning he admitted he understood his right to remain silent and to an attorney, and that an attorney would be appointed if he could not afford one. Similarly, although he initially testified he could not understand the warning that anything he said could and would be used against him, he later admitted that he did understand these words, and that he had received the same warning in similar words in another case where he pleaded guilty to a felony. Finally, despite his uncertainty about whether he should invoke his right to counsel, he acknowledged that he did not believe he was in trouble, and did in fact agree to waive these rights and talk to the police.
The court also apparently credited Collins’s testimony that defendant did not ask whether he needed a lawyer.
No other factors, such as the length or location of the interrogation, or the use of overbearing “softening-up” techniques, suggest that the waiver or subsequent admissions were involuntarily made. Defendant was an adult with prior experience with the criminal justice system. There were no promises of leniency or other inducements to confess, or impermissible psychological manipulation. The interview was conducted in a regular interview room, and it lasted approximately 75 minutes. We conclude that defendant voluntarily knowingly and intelligently waived his Miranda rights, and that his subsequent admissions were voluntary.
II.
Admission of Evidence of Defendant’s Violent Acts and Association with Hell’s Angels
Defendant next contends the court abused its discretion by allowing Jane to testify that she had seen or heard about defendant committing several violent acts, that her mother had told her defendant belonged to the Hell’s Angels, and that defendant had been in and out of custody.
The evidence was as follows: Jane testified that she was frightened of defendant because of his appearance and his bad reputation. Jane’s mother had told her he was a violent person and that he was connected to the Hell’s Angels. She also told Jane that defendant had spent time in and out of custody, which scared Jane because she knew that jails and prisons are “very tough.” Jane once saw defendant jump on her mother and try to strangle her, and another time she overheard her mother screaming at defendant to get away from her and called the police. She had also seen defendant push over her baby sister, who was strapped into a car seat, and leave her hanging upside down. Jane’s mother told her about another time when defendant threw the baby on the couch.
Defendant contends this was character evidence that should have been excluded because it was not relevant to any disputed issue, and served no purpose other than to prove his bad character. The record does not support defendant’s assertion that this evidence was improperly admitted to show his bad character. To the contrary, the court admitted the evidence solely to prove that Jane feared defendant, and to explain her delay in reporting his conduct. (See People v. Gallego (1990) 52 Cal.3d 115, 174.) The court also gave a limiting instruction before the introduction of this testimony cautioning the jury that the information related to Jane by her mother was not offered for the truth of the matter. The court further advised the jury that all of this evidence was admitted for the limited purpose of showing its effect on Jane, and that the jury could not consider it as evidence that defendant is “a bad person” or for any other purpose. It is assumed that a jury can and will follow such an instruction. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Defendant contends that even if the evidence was admissible for this limited purpose, the court abused its discretion by refusing his request to exclude it pursuant to Evidence Code section 352. The court enjoys broad discretion “in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) After holding an Evidence Code section 402 hearing, and considering all of defendant’s arguments, the court ruled that that the “potential for prejudicial effect pales in comparison to what appears to me to be the probative value” and admitted the evidence subject to a limiting instruction. Defendant argues this was an abuse of discretion because he did not specifically challenge Jane’s credibility on the ground that she delayed in reporting the sexual abuse, and therefore evidence explaining Jane’s delay related only to a marginal issue that was not in dispute. He further reasons that, since Jane’s delay in reporting the abuse was not a key issue, the potential prejudice of learning that Jane was aware of his violent acts, association with the Hell’s Angels and periods in custody, outweighed the marginal probative value. To the contrary, Jane’s delay in reporting the molestation, and her credibility in general, was one of the critical disputed issues in the case, because the defense was that she fabricated the abuse in response to suggestive interviewing techniques, and as a means to get placed out of the home with her grandmother. The court was within its discretion to conclude that any potential prejudice could be minimized by giving a limiting instruction, and therefore that the probative value of this evidence outweighed any potential prejudice.
III.
Cunningham Error
Defendant finally contends that a remand for resentencing is necessary because the court’s decision to impose the upper term based upon aggravating factors not found by a jury violated his federal Sixth Amendment right to a jury trial and due process. (See Cunningham v. California (2007) __U.S. __ [127 S.Ct. 856].) At sentencing, the court found the following aggravating factors: (1) Defendant had numerous convictions as an adult, including three prior felony convictions; (2) Jane was particularly vulnerable and defendant abused a position of trust; (3) defendant was on parole at the time of the offense, and (4) his performance on probation and parole had been unsatisfactory. In mitigation, the court found that defendant was an alcoholic, but stated that this factor was entitled to little weight because defendant had made no effort to address the problem. It imposed the upper term for continuous sexual abuse of a child and a consecutive one-year term for the prior prison term enhancement
While this appeal was pending, the California Supreme Court, in People v. Black (2007) 41 Cal.4th 799 (Black II), held “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
“The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction.” (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) The latter exception was recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224 (the Almendarez-Torres exception).) Therefore, if the trial court has found at least one aggravating factor that falls within either of these exceptions, the federal Constitution does not preclude it from imposing an upper term sentence based on that and other aggravating factors that do not fall within these exceptions. (Black II, supra, 41 Cal.4th at pp. 813, 818-819.)
Here, at least one of the aggravating factors on which the trial court relied was within the Almendarez-Torres exception., i.e., that defendant’s prior convictions were numerous. In Black II, supra, 41 Cal.4th at pp. 818-819, the court rejected the argument that this factor falls outside the Almendarez-Torres exception because it entails factfinding beyond the bare fact of the prior conviction. The court reasoned that, like the fact of the prior convictions, the determination whether the convictions are numerous or of increasing seriousness requires only a consideration of the number, dates, and offenses, and the range of punishment for each offense. (Id. at p. 820.) The trial court’s finding that defendant’s prior convictions were numerous is amply supported by the record, which reflects that defendant had three prior felony convictions and several misdemeanor convictions. (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous].)
Black II, supra, 41 Cal.4th 799, holds the existence of only one aggravating factor properly found by the court suffices to avoid any violation of defendant’s Sixth Amendment rights. Therefore it is not necessary to reach the question whether the court’s findings that he was on probation or parole when he committed the offense, or that his performance on probation was unsatisfactory, also fall within the Almendarez-Torres exception.
We conclude, pursuant to the Almendarez-Torres exception, the court properly found defendant’s criminal record established the aggravating factor defined by California Rules of Court, rule 4.421(b)(2). This factor rendered him eligible for the upper term. Therefore, in accordance with our Supreme Court’s holding in Black II, supra, 41 Cal.4th 799, defendant was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial was not violated by the imposition of the upper term.
Conclusion
The judgment is affirmed.
We concur: SWAGER, J., MARGULIES, J.