Opinion
A150515
11-16-2018
THE PEOPLE, Plaintiff and Respondent, v. SHOZABURO NAKAMURA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR171042)
Shozaburo Nakamura appeals his conviction, following a jury trial, of the first degree murder of his ex-wife, Eiko Nakamura (Pen. Code, §§ 187, 189). He contends the trial court erred in denying his motion to suppress pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), in refusing to issue certain jury instructions, and in denying probation. We affirm.
For convenience, we will refer to Eiko Nakamura by her first name. No disrespect is intended. All undesignated statutory references are to the Penal Code.
BACKGROUND
It was undisputed at trial that appellant killed Eiko. The prosecution's theory was the killing was premeditated and deliberate; appellant contended the killing was committed in the heat of passion.
Prosecution Case
Robert Sutton first met the Nakamuras in 1986 or 1987, when they were still married. At some point, the Nakamuras divorced and appellant moved out, but around 2009 or 2010 he moved back in with Eiko. Sutton and Eiko were good friends and Eiko frequently complained about appellant after he moved back in with her. When Sutton asked Eiko if appellant hurt her, she said he was too much of a coward.
On May 30, 2014, Sutton had dinner with Eiko. Eiko told Sutton a real estate agent was coming to her house the following morning, and Sutton's understanding was she was selling her home because of financial troubles. Sutton called Eiko the next day but she did not answer or return his calls, which was unusual. The following morning, June 1, he went to her house and appellant answered the door. Appellant told Sutton Eiko was out of town, but Sutton did not believe him and called the police for a welfare check. Appellant told the responding officers the same story. The officers observed that appellant had a weak-to-moderate odor of alcohol and showed signs of being under the influence of alcohol.
Appellant eventually invited the officers into the house. As he led the officers inside, appellant said, "I want to let you know, sir, I violently murdered my wife. She's in the bathroom behind a locked door and you're going to have to kick the door open." The officers found Eiko under a blanket in the bathroom, with a plastic bag over her head. There was a large amount of blood in the plastic bag and her body was cold to the touch. The officers handcuffed appellant and took him to the living room, where he spoke, unprompted, to officers. Among other things, appellant said, "I kill my wife brutally." Appellant did not appear to have difficulty understanding English or following directions.
The officers recorded some of appellant's statement and the recording was played for the jury with an accompanying transcript.
At the police station, appellant was placed in a recorded interview room. While alone in the room, appellant spoke to himself in English. Among other things, appellant said, "I violently kill my wife. . . . I saw the one stone, very big. . . . Didn't die. . . . Crack her skull I know that. Didn't die. . . . Then I stab her. It's not - I went to kitchen first. . . . I stab her neck many times til all dead." He said he killed her not for "the money. Maybe three days I drink free. I . . . smoke free. That's why I kill her."
Recordings of appellant's statements while in the interview room were played for the jury and transcripts were provided to the jury.
Napa Police Detective Andrew Hess entered the room and told appellant they were trying to find a Japanese interpreter. Appellant told Hess he did not need an interpreter because he spoke and wrote fluent English. The police were unable to find a translator and attempted to provide him with a Japanese version of Miranda warnings, but when appellant read them he told Hess the Japanese was wrong. Hess then read appellant his Miranda rights in English and appellant waived them and spoke to Hess for more than two hours.
Additional background facts about the Miranda warnings are set forth in part I.A, post.
Appellant told Hess that on the evening of May 30, 2014, Eiko told appellant a realtor was coming the following morning. The next morning, when appellant protested that he would be left homeless if she sold the house, Eiko laughed at him. They argued and Eiko pointed a knife at appellant. Appellant threatened to kill her if she came any closer, but she laughed and said he was too much of a coward. Appellant then took a stone and hit her twice on the back of her head, knocking her to the ground near the bathroom. Although she lay on the floor, she was still moving, and appellant retrieved a knife from the kitchen and stabbed her repeatedly. He first tried to stab her in the heart through her back but he hit a bone, so he stabbed her in the throat. After she died, he put her body in the bathroom and covered her face with a plastic bag and towel. He cleaned up the house, put the rock he hit Eiko with and the clothes he was wearing in garbage bags, and cleaned the knife he stabbed her with and put it back in the kitchen drawer. Appellant was sober during the killing. However, after killing Eiko, he bought alcohol, cigarettes, food, and a propane tank he intended to use to kill himself. During the interview, appellant called Eiko "a Gorgon, a medusa," "two-face[d]," "a liar," "stupid," and "a slut," who "destroyed [his] life." He told Hess he did not need a lawyer because he was "guilty. Hundred percent."
Appellant told Hess that Eiko had previously hit him many times and would point a knife at him once or twice a month.
The People also presented a transcript of appellant's arraignment, where appellant told the court, "I am one hundred percent guilty. I have no defense."
After the custodial interview ended, police inspected appellant's person and found no injuries attributable to a fight with Eiko. Appellant's blood alcohol level shortly after the custodial interview, and about five or six hours after he spoke to police at Eiko's house, was .01 percent. Eiko's autopsy revealed blunt force injuries on the back of her head, consistent with being struck from behind by a large rock; bruising on her face consistent with a fall to the ground; and 25 stab wounds—4 to her back and 21 to her neck. The blunt force injuries would not have been fatal by themselves if treated, but the stab wounds were fatal. Crime scene evidence from Eiko's house was consistent with appellant's confession.
Defense Case
Appellant testified in his own defense. He was born in 1942 in Japan; his father was physically abusive and his mother was emotionally distant. Appellant inherited money when his father died. He married Eiko in 1971 and the couple lived in San Francisco for 16 years. Appellant bought Eiko a beauty salon with his inheritance money and, after they moved to Napa in 1987, they opened a restaurant and bought a house with his inheritance money. During the marriage, appellant and Eiko argued about appellant's drinking and Eiko's gambling. Eiko was verbally and physically abusive. About once a week, she would hit and kick appellant, pour alcohol and food on him, or "stick a knife and scissor at me." Appellant never reported these incidents to the police because doing so would cause him "shame" as "a Japanese man." They divorced in 1994 and Eiko became the sole owner of the restaurant and their Napa house. Eiko continued to gamble and frequently asked appellant for money. In the years following the divorce, he sent her approximately $500,000. In 2008, Eiko asked appellant to move back in with her so that he could sell the house he was then living in and give her the proceeds. They soon began arguing again, having physical arguments once per week. In 2011, appellant's inheritance money ran out and his only income was $500 per month in social security.
In the early morning hours of May 31, 2014, Eiko told appellant she was $500,000 in debt and was selling the Napa house and moving to a motor home. When appellant told her he had nowhere else to live and would become homeless, she laughed and mocked him. Appellant was very angry but was not then thinking about killing Eiko. Eiko got a large knife, waved it around, and told appellant to get out or she would kill him. She took out other knives and threw several at appellant. He told her about a friend who committed suicide after becoming destitute, but she just laughed. Eiko began swinging the big knife again and appellant warned her, "if the knife touches me I'm gonna kill you."
Eiko laughed, mocked appellant, and placed the knife "right at [his] throat" until it touched him. Appellant then "blew up" and "grabbed a rock . . . and hit her twice." He did not remember the incident well and did not remember what happened after he hit her with the rock. His next memory was sitting on the floor in the hallway looking at her dead body. Appellant cleaned the house, covered Eiko's head with a plastic bag and covered her body, dragged her into the bathroom, changed his clothes, and decided to kill himself. He bought propane, alcohol, food, and cigarettes, intending to kill himself. When he returned home, he drank whiskey until he got sick and then fell asleep. He was awoken by Sutton's knock at the door. Appellant generally remembered talking to the police that morning but did not remember what he said, as he was "heavily drunk." He did not remember being placed in an interview room, talking to himself while in the room, or making statements to Detective Hess.
An expert on forensic toxicology testified that if an Asian male of appellant's height and weight had not consumed alcohol or eaten since 9:45 a.m. (the time responding officers arrived at Eiko's house) and had a blood alcohol level of .01 percent at 3:21 p.m. (as appellant did on June 1, 2014), he would probably be "moderately" intoxicated and suffering from slowed mental processes at 12:55 p.m. (when appellant's custodial interrogation began). At 9:45 a.m., he would likely have slurred speech, trouble walking, and even slower mental functioning.
Richard Zaslove testified that he loaned Eiko money around 2008 or 2009, after she told him she had financial troubles. They opened a restaurant together in 2011, but Zaslove bought Eiko out in 2013 because she needed the money. Eiko worked as a hostess at the restaurant from 2011 until she was killed. Zaslove knew Eiko was considering selling her home to help her financial situation, and was expecting to hear from her on May 31, 2014, about meeting with a realtor. Zaslove's wife testified that she worked with Eiko at the restaurant on May 30, 2014. Eiko did not express any fear of going home that night and never expressed any fear of appellant.
Verdict and Sentence
The jury convicted appellant of the charged crime, first degree murder (§§ 187, subd. (a), 189), and found true an enhancement that he personally used a deadly weapon (§ 12022, subd. (b)(1)). The trial court sentenced appellant to a prison term of 25 years to life for the murder count, and a consecutive one-year prison term for the weapon enhancement.
A second count, elder abuse resulting in death (§ 368, subd. (b)(1)), was dismissed before trial on the prosecutor's motion.
DISCUSSION
I. Adequacy of Miranda Warnings
A. Additional Background
During in limine motions, appellant sought to exclude his statements during the custodial interrogation, arguing the defective Japanese Miranda warnings were not cured by the subsequent English warnings because Hess never told appellant to disregard the Japanese version and appellant was intoxicated at the time.
Appellant conceded the admissibility of his statements to police in Eiko's home, his statements to himself at the police station before the custodial interrogation began, and his statement at the arraignment.
At the evidentiary hearing, one of the officers responding to Eiko's house on the morning of June 1, 2014, testified appellant had slurred speech and alcohol on his breath. Detective Hess testified the only sign of intoxication he observed was red eyes, and he saw nothing indicating appellant's ability to understand was impaired by alcohol. Appellant presented expert testimony that alcohol intoxication slows mental processing and makes functions like communicating in a nonnative language more difficult.
Hess also testified that when appellant was alone and spoke to himself before the custodial interrogation began, he spoke almost entirely in English. When the police were unable to find a Japanese interpreter, they used "a Google search" to obtain a Japanese version of Miranda warnings. At the hearing, appellant submitted the following English translation of this Japanese document: "Miranda rights, rights of a citizen of which s/he must be advised at the time of arrest (a right to silence, a right to be represented by an attorney, a right to be represented by a public defender); words that are recited to a person who is put in detention."
The trial court reviewed the recordings of appellant's statements when he was alone before the custodial interrogation, as well as the entire custodial interrogation. When reviewing the Japanese translation provided by Detective Hess, appellant repeatedly stated the translation was wrong and did not make sense: "this Japanese is wrong"; "This is, uh, very Japanese wrong - wrong sentence, wrong word"; "This is - this doesn't make sense"; "this Japanese that one is completely, uh wrong." Hess then read appellant his rights in English, and appellant confirmed after each warning that he understood. Appellant told Hess he did not need an interpreter, asserting, "My English, I think, 99% perfect."
The People also submitted letters in English in appellant's handwriting after he was in jail; appellant presented testimony from his cellmate that the cellmate frequently helped him draft letters.
The trial court found the statements admissible. The court found that, while the video revealed appellant "has a heavy accent" and "sort of flipflops words[,] . . . neither of those . . . suggest that he didn't understand English." Similarly, the court observed that appellant "rambles" both before and during the interview, but "I don't think that's a language issue. I just think that some people are like that." The court noted appellant's preinterview "monologue" was "almost entirely in English," appellant "was comfortable in English and was responding in English," and appellant told Hess more than once he would let Hess know if he did not understand a word. When presented with the Japanese warnings, appellant "pointed out to Sergeant Hess that not so much that this is not accurate in terms of the correct Miranda advisement, but that this doesn't make any sense. This doesn't work and it doesn't make sense." The court concluded that, although the Japanese warnings were defective, Hess then provided appellant with English warnings and appellant "was capable of understanding and waiving those rights."
B. Analysis
"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda v. Arizona, supra, 384 U.S. 436, we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we ' "give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.' [Citations.] . . . [T]he voluntariness of defendant's waiver and confession must be established by a preponderance of the evidence." (People v. Wash (1993) 6 Cal.4th 215, 235-236 (Wash).)
Appellant contends his English language skills were not sufficient to establish an understanding of the English Miranda warnings. He notes that, when Hess said he would read appellant his "Miranda rights," appellant did not know what Hess was referring to. We fail to see how this relates to his ability to understand the English language. Appellant also points to his "incomplete" sentences, use of improper tenses, and "rambling and disconnected" speech. We agree with the trial court that these do not undermine other evidence of appellant's ability to understand English. Appellant also argues Detective Hess's conduct—attempting to Mirandize appellant in Japanese and repeating each English warning twice—indicates Hess believed appellant did not sufficiently understand English. Hess testified at the evidentiary hearing that he believed appellant understood English and, specifically, understood the English Miranda warnings, and the trial court implicitly credited this testimony. Appellant points to his expert's testimony that a moderate blood alcohol level would likely make it more difficult for a person to understand a nonnative language. Again, Hess testified that, based on his observations of appellant during the custodial interrogation, appellant's ability to understand was not impaired by alcohol, and the trial court implicitly credited this testimony.
We note that, although appellant was not familiar with the term "Miranda," when he began reading the Japanese version he appeared to recognize the rights themselves, saying, "oh, I know this," and "yes I know my rights."
Appellant points to Hess's statement, prior to reading the English warnings, that "these are my rights" (italics added), and argues this statement, in conjunction with the Japanese version's identification of the rights as "rights of a citizen," would lead appellant to believe Miranda rights only apply to United States citizens. But when Hess read appellant the specific rights, he prefaced each one with, "You have a right" (italics added), clarifying any possible confusion. Appellant also argues Hess did not tell appellant to disregard the Japanese version and said the English rights were "similar to" the Japanese version. As the trial court noted, appellant himself said the Japanese version "doesn't make sense." And Hess reviewed in English each right individually with appellant, identifying each as "you[r]" right, and confirming after each that appellant understood.
Appellant relies on U.S. v. San Juan-Cruz (9th Cir. 2002) 314 F.3d 384 and U.S. v. Botello-Rosales (9th Cir. 2013) 728 F.3d 865, which both found inadequate Miranda warnings. In the former, the defendant first "was told that if he wished to have the assistance of an attorney, the Government would not pay for his attorney's fees," and then was properly advised. (San Juan-Cruz, at pp. 387-388.) In the latter, the defendant was first given Miranda warnings in English, then given Spanish warnings in which he was effectively told "that the right to appointed counsel is contingent on the approval of a request or on the lawyer's availability, rather than the government's absolute obligation." (Botello-Rosales, at p. 867.) These cases are distinguishable because neither involved a defendant who himself identified the defective set of warnings as nonsensical. And it was the English warnings that Detective Hess reviewed individually with appellant, confirming he understood each one. (See People v. Wader (1993) 5 Cal.4th 610, 637-638 [warnings adequate where the defendant was first correctly advised of his Miranda rights, then orally misadvised 15 to 20 minutes later, then signed an admonition card which correctly stated his rights].)
Appellant argues his comments about the Japanese version indicate he meant the translation was wrong, not the validity of the warnings. This does not alter our analysis: notably, appellant said the Japanese version "doesn't make sense," suggesting he generally disregarded it.
Finally, appellant argues the English warnings were inadequate because Hess did not sufficiently advise appellant of his right to consult with a lawyer before questioning. Assuming the challenge is not forfeited, we reject it. Hess told appellant: "You have the right to talk to a lawyer and have him present with you while you're being questioned"; "So if I'm questioning you have the right to have a lawyer present with ya"; and "you have right to have an attorney, a lawyer present with you . . . [¶] . . . [¶] During any questioning." However, Hess also told appellant: "If you cannot afford to hire a lawyer, one will be appointed to represent you - represent you before any questionings." (Italics added.) Miranda warnings "need not be presented in any particular formulation or 'talismanic incantation.' [Citation.] The essential inquiry is simply whether the warnings reasonably ' "[c]onvey to [a suspect] his rights as required by Miranda." ' " (Wash, supra, 6 Cal.4th at pp. 236-237.) Appellant was told he had the right to an attorney appointed before any questioning; the right was thus reasonably conveyed. That Hess stated this right only once while repeating three times appellant's right to an attorney during questioning does not alter this conclusion. (See id. at p. 237 [warning that only advised the defendant of his right to an attorney before questioning " 'reasonably conveyed' his right to have an attorney present during questioning"]; People v. Kelly (1990) 51 Cal.3d 931, 948 [advisement that " 'You have the right to talk to a lawyer and have him present while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any question if you wish,' " reasonably conveyed that the defendant's "right to counsel attached before any questioning commenced"].)
II. Jury Instructions
A. Pinpoint Instruction
Appellant argues the trial court erred in refusing to issue the following pinpoint instruction, requested below: "Even if the defendant intended to kill the victim at the moment he inflicted the fatal wounds, it is voluntary manslaughter when the killing is done in a sudden passion, caused by sufficient provocation." (Citation omitted.) Defense counsel argued the standard instruction on voluntary manslaughter (CALCRIM No. 570) did not make clear that an intentional killing can be voluntary manslaughter. The trial court expressed concern that CALCRIM No. 570 "does not distinguish between an intentional killing or unintentional killing" and the proposed pinpoint instruction "inject[s] that issue when the instruction is very clear that this . . . can reduce a murder to manslaughter, but murder can be an intentional killing or unintentional killing, depending on the circumstance." The court reasoned CALCRIM No. 570 "says a killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant kills someone because of a sudden quarrel or in a heat of passion. I really think that adequately covers it." The court refused the instruction but noted defense counsel could argue the point in closing.
Defense counsel did so, arguing appellant "committed an intentional killing. The issue you have to decide now is whether it was murder or manslaughter." She continued later, "it's important for you to understand that heat of passion and voluntary manslaughter is an intentional killing. This is not a question of intent, but a heat of passion." --------
" ' "[I]n appropriate circumstances" a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case . . . .' " (People v. Moon (2005) 37 Cal.4th 1, 30.) However, "a trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing . . . ." (Ibid.) The jury was instructed, pursuant to CALCRIM No. 520, that murder requires either an intent to kill or an intentional dangerous act in conscious disregard of life. The jury was also instructed, pursuant to CALCRIM No. 570: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." These instructions adequately encompassed the concept that an intentional killing could be voluntary manslaughter if committed in the heat of passion. The trial court did not err in finding appellant's proposed pinpoint instruction duplicative and potentially confusing. (See Moon, at p. 31 [where requested pinpoint instruction states concepts that " '[i]n a general way, . . . are the concepts incorporated in the pattern instruction,' " trial court did not err in refusing instruction].)
B. Imperfect Self-Defense
Appellant challenges the trial court's refusal to instruct on imperfect self-defense. At the hearing, the trial court relied both on the lack of evidence that appellant believed he was in imminent danger, and that after appellant hit Eiko with a rock she was on the ground and posed no danger.
" 'Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.' [Citation.] ' "[T]he trial court must instruct on this doctrine, whether or not instructions are requested by counsel, whenever there is evidence substantial enough to merit consideration by the jury that under this doctrine the defendant is guilty of voluntary manslaughter." ' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1066.) The evidence was that after appellant struck Eiko with a rock, she fell to the ground; he then went to the kitchen, retrieved a knife, and stabbed her multiple times with it, causing her death. There is no substantial evidence supporting a fear of imminent danger once appellant struck Eiko with the rock. Appellant points to evidence that the entire assault could have been completed in 30 to 40 seconds, but cites no authority supporting either a "cooling off period" or a "continuous course of conduct" in imperfect self-defense. Where an initial assault removes any possible belief that the victim will imminently harm the defendant, a subsequent assault cannot be imperfect self-defense. (Ibid. ["there was insufficient evidence that defendant had either a reasonable or unreasonable belief that harm was imminent when he followed the wounded victim into the arcade and shot him several times as he lay on the floor"].)
III. Probation
Pursuant to section 1203, subdivision (e)(2), the jury's true finding on the weapon enhancement rendered appellant presumptively ineligible for probation. The parties below argued whether unusual circumstances overcame this presumption. The trial court found they did not: "[I]n looking at the facts of this case, the level of violence, the stab wounds, the other evidence with regard to the way the offense was carried out, and then in considering the defendant's background, his age, lack of a prior record, things of that nature that have been appropriately raised by the Defense, I don't find that there are unusual circumstances." On appeal, appellant argues this finding was an abuse of discretion.
California Rules of Court, rule 4.413 identifies factors which may overcome the presumption of ineligibility, including "[t]he defendant participated in the crime under circumstances of great provocation . . . not amounting to a defense, and the defendant has no recent record of committing crimes of violence," and "[t]he defendant is youthful or aged, and has no significant record of prior criminal offenses." (Cal. Rules of Court, rule 4.413(c)(2)(A) & (C).) Appellant argues the crime was committed under extreme provocation, arising from appellant's decades-long frustration with Eiko. He also points to his age and lack of prior criminal record or history of violence.
"Under rule 4.413, the existence of any of the listed facts does not necessarily establish an unusual case; rather, those facts merely 'may indicate the existence of an unusual case.' (Rule 4.413(c), italics added.) This language indicates the provision 'is permissive, not mandatory.' [Citation.] '[T]he trial court may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions.' [Citation.] [¶] 'The standard for reviewing a trial court's finding that a case may or may not be unusual is abuse of discretion.' [Citation.] The trial judge's discretion in determining whether to grant probation is broad. [Citation.] '[A] " 'decision will not be reversed merely because reasonable people might disagree.' " ' " (People v. Stuart (2007) 156 Cal.App.4th 165, 178-179.) That some of the listed factors were present did not require the trial court to find this was an unusual case. In light of all the circumstances, appellant has not shown an abuse of discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.