Opinion
F059993 Super. Ct. No. F08906366
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. PECH SOK, Defendant and Appellant.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary Orozco and W. Kent Hamlin, Judges.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
On October 1, 2008, appellant Pech Sok went to his stepdaughter's apartment, where Boeun Say, his wife of less than two years, was staying. Appellant found Boeun Say in the kitchen and started arguing with her. He repeatedly asked her to come home with him, but she refused. After several minutes of arguing, appellant pulled out a knife and stabbed Boeun Say twice in the chest, inflicting a fatal wound to her heart. Boeun Say's young granddaughter, who witnessed the stabbing from the living room, went onto the balcony and called for help. Appellant was quickly restrained by other members of Boeun Say's family and taken into police custody. The next morning, appellant was interviewed by a police detective with the assistance of a Cambodian-speaking police officer. Appellant confessed in Cambodian to stabbing and killing Boeun Say and explained his reasons for doing so, which centered on her refusal to return to his home, the belief she was cheating on him, and the shame he felt of having a wife cheat on him at his age. Among other things, appellant told police it had been his "plan" to kill Boeun Say and then himself, but her children ran in and held him down before he could stab himself.
In September 2009, a jury found appellant competent to stand trial. In March 2010, he was convicted, in a separate jury trial, of first degree murder with a finding that he personally used a knife in the commission of the offense (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1)). The trial court sentenced appellant to prison for 25 years to life for the murder, plus one year for the knife-use enhancement.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, appellant raises several claims of error concerning the issue of his competency to stand trial. He also contends the trial court erred in denying his pretrial motion to suppress his confession because the police officer's Cambodian translation of the standard Miranda warnings was inadequate. Appellant further contends that during closing rebuttal, the prosecutor improperly commented on his failure to testify at trial. Finally, appellant contends the judgment must be reversed because of alleged irregularities in the manner in which the trial court took the verdict and polled the jury. We reject appellant's contentions and affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436, 471 (Miranda).
DISCUSSION
Appellant has not challenged the sufficiency of the evidence supporting his conviction and we have not found any error requiring a prejudice analysis. Therefore, a detailed recitation of trial testimony is unnecessary.
I. Claims Concerning Appellant's Competency to Stand Trial
Appellant contends: (1) the trial court was unauthorized under the relevant language in section 1369 to appoint a third expert, a psychiatrist, to evaluate him after the first two court-appointed psychologists concluded appellant was not competent to stand trial; (2) assuming the court did have the statutory authority to appoint a third expert, it abused its discretion in doing so; (3) insufficient evidence supports the jury's finding that appellant was competent to stand trial; and (4) the trial court erred in refusing defense counsel's pretrial request to appoint doctors to reevaluate appellant's competency.
Appellant raises this contention in his supplemental opening brief.
A. Procedural Background
On October 8, 2008, the district attorney filed a complaint charging appellant with the instant offense.
On February 18, 2009, the trial court suspended criminal proceedings and appointed two psychologists, Dr. Laura Geiger and Dr. Harold Seymour, to examine appellant and determine whether he was competent to stand trial. (§§ 1368, 1369, subd. (a).)
Having only the minute order in the record, we do not know the circumstances triggering the court's action. The minute order generally states that "[a] doubt has arisen as to the mental competence of the defendant."
On April 1, 2009, the court received the psychologists' reports. Both concluded that appellant was not competent to stand trial.
On April 29, 2009, the trial court, over defense counsel's objection, appointed a psychiatrist, Dr. Julian Smith, to examine appellant. The following relevant discussion occurred at the hearing:
"THE COURT: The court did meet with both counsel in chambers at their request. I indicated to counsel that given the somewhat unusual circumstances in this case, that I believe it would be appropriate for a psychiatrist, as opposed to a psychologist, to do the 1368 evaluation, given that there appear not only mental health issues, but perhaps physical issues that need to be addressed by a medical doctor in assessing the defendant's competency to participate in the proceedings. The court indicated I would be appointing psychiatrist Dr. Julian Smith to do the 1368 evaluation, and then we'll put it over for the report, to be provided to the court and counsel -- that we have the report by May 27, with a hearing date of May 28. [¶] ... [¶]
"[DEFENSE COUNSEL]: I would object to the court appointing an additional doctor. 1368 provides for two doctors or psychologists to be appointed. There is no split opinion, so I don't think the court has the authority to appoint a third without grounds.
"THE COURT: And I believe the court does have grounds, given the two reports in this case. I'll point out, there do appear to be medical as well as psychological issues, and I believe the court, in order to make a valid and well-informed assessment of the defendant's competency, needs an expert who's a psychiatrist as opposed to just a psychologist."
In a report dated May 22, 2009, Dr. Smith concluded that appellant did not suffer from a mental disorder rendering him incompetent to stand trial.
The competency trial commenced on September 1, 2009. Dr. Geiger testified for the defense that she examined appellant on March 9, 2009, with the assistance of Cambodian interpreter, Rithy Lim. Dr. Geiger also reviewed appellant's police interviews and jail medical records.
In preparing her report on appellant, Dr. Geiger "ended up diagnosing him with an amnestic disorder, which is a milder form of a memory impairment." Dr. Geiger acknowledged her findings "weren't conclusive" and suggested she would need to obtain more information through further testing to make a definitive diagnosis. However, Dr. Geiger was of the opinion that appellant was not competent to stand trial due to his apparent memory problems, which were reflected in how he expressed himself during the examination.
Dr. Geiger explained that, in discussing his family background, appellant "seemed to have a number of memory gaps." "[A]t one point he said he had five children, and then he ... described just a few minutes later that four children had died, but two were alive." Dr. Geiger tried to administer a standard competency test to appellant but was unable to complete it "because he seemed to have so much difficulty with his memory, was clearly unable to respond to a number of the questions." Dr. Geiger concluded that with the diagnosis of amnestic disorder, "there was a very low probability that he would be able to become trial competent."
Dr. Seymour testified for the defense that he examined appellant on March 19, 2009. Like Dr. Geiger, he was assisted by interpreter Lim. Dr. Seymour also reviewed appellant's police interviews, jail medical records, and the reports prepared by Dr. Geiger and Dr. Smith. Dr. Seymour concluded that appellant suffered from posttraumatic stress disorder (PTSD) and dissociative amnesia, which rendered him incompetent to stand trial.
Dr. Seymour testified the psychiatric records included in appellant's jail medical records supported his conclusion, explaining:
"The psychiatrist identified symptoms consistent with mood, sleep, and adjustment difficulties, many of which are consistent with the diagnosis that I offered. The psychiatrist also raised some questions early on about the presence of memory difficulties, possibly even dementia."
When Dr. Seymour asked appellant about general background information, appellant knew he was accused of killing his wife and was able to provide some details about what happened but could not recall the stabbing itself. Dr. Seymour explained:
"[Appellant] was able to talk about the fact that they had been having a conflict over the fact that she wouldn't stay with him, he was upset, he had some concern that maybe she was going out on him with somebody else. He remembered going to where she was, he remembered them arguing and it getting kind of heated, and he said he didn't remember much after that."
Respecting the PTSD diagnosis, Dr. Seymour testified that appellant "described being in Southeast Asia ... during the communist rule, and being tortured and beaten a number of times to the point of unconsciousness" and appellant "stated that subsequent to those episodes, he's always had difficulty with his memory." Appellant did not volunteer the information about being beaten until Dr. Seymour specifically asked him at the interpreter's suggestion. Dr. Seymour opined that the beatings appellant suffered were "the initiation of [PTSD]-type symptoms."
Dr. Seymour opined that appellant's memory gaps were consistent with dissociative amnesia, and explained that dissociation is a common symptom of PTSD. Dr. Seymour further testified:
"The ... difficulty with this one is teasing out to what extent the memory issues are organic and to what extent they're psychological, and so I think there's some combination of both. My suspicion is he does have some kind of ongoing long-term general memory difficulties, but I also think that the loss of some recollection of specifics about the crime, alleged crime, is consistent with maybe a dissociative kind of response."
Dr. Seymour further testified that appellant's psychiatric records indicated that he had preexisting mental health issues predating the current crime by about a decade. The records reflected that appellant was treated in an emergency psychiatric facility in 1998, and was diagnosed with schizophreniform disorder, which occurs at the early stages of schizophrenia. Appellant apparently experienced hallucinations or delusions. A diagnosis of depressive disorder with psychotic features was also considered.
Dr. Smith testified for the prosecution that he examined appellant on May 18, 2009, with the help of an interpreter. Dr. Smith also reviewed the reports of Dr. Geiger and Dr. Seymour, appellant's police interviews and jail medical records, and police reports from the case. Dr. Smith opined that appellant did not have a mental disorder rendering him incompetent to stand trial.
Dr. Smith confirmed that he evaluated appellant for PTSD and psychotic disorders. Dr. Smith ruled out a diagnosis of PTSD because appellant endorsed only one or two symptoms, not the "full gamut of symptoms that would have classified him as ... suffering from [PTSD]." Dr. Smith further observed that appellant did not endorse symptoms consistent with any type of psychotic disorder.
Dr. Smith noticed that, during his interview of appellant, appellant would often answer questions with "I don't know" and then later provide information he previously claimed he did not know. Dr. Smith explained:
"One of the striking things about the interview was that when he was directly asked about things such as his age, his telephone number, his name, so forth, he was not able to provide answers for that. When I asked questions about whether he was married, whether he had children, again, there was either a denial that he was married, or confusion that he didn't know whether he had children. These were upon direct examination or direct questioning of those specific things. However, later on, or at different points in the interview when I asked other questions, such as, 'where were you living at the time that you were arrested,' he would then state, his children. If I asked about his medical history, he would say, 'well, my wife visited me in the hospital, or she took care of me,' something to that effect ..., but ... those are the types of things that he would say, after he had previously told me that he had never been married or I think the words he used, 'he had always been alone' is what he said. And in terms of having children, again, he stated that he didn't know whether he had children, and then later on he gave a history that his
children had been killed in the war, and then even later on, said that two of his children had visited him in jail, and so that was something that stood out."
In reviewing appellant's police interviews, Dr. Smith observed that appellant provided "a full history regarding his age, children, references to his wife. All sorts of details were provided that . when he met with me, he claimed that he did not know." In light of this and the cognitive tests he administered to appellant, Dr. Smith did not believe appellant was suffering from "a true memory loss."
Dr. Smith disagreed with Dr. Seymour's diagnosis of dissociative amnesia. Dr. Smith explained that "[d]issociative amnesia is a state where a person will forget events during a very kind of circumscribed period of time, and typically that is associated with trauma, so if there's some type of trauma, they may forget the events that occurred during that time." Dr. Smith observed in Dr. Seymour's report that appellant had reported being tortured by the communists. However, Dr. Smith opined that appellant's reported memory of being tortured did not appear to support a diagnosis of dissociative amnesia based on a traumatic event because dissociative amnesia is a type of memory loss that results in the person being unable to recall directly the traumatic event. Dr. Smith also disagreed with Dr. Geiger's diagnostic impression that appellant was suffering from amnestic disorder.
Dr. Smith testified that the amount of time he spent evaluating appellant (about an hour and 45 minutes) was sufficient for him to diagnose whether appellant was suffering from a mental disorder. The only mental disorder Dr. Smith was able to diagnose in appellant "was alcohol abuse disorder."
The prosecution also called Fresno Police Officer Danny Kim. Officer Kim was born in Cambodia and spoke Cambodian as his first language. He acted as a translator for Detective Raul Hernandez, when Detective Hernandez interviewed appellant regarding the homicide of appellant's wife. During the interview, appellant provided personal information including his name and date of birth in 1940, his address and apartment number, and his telephone number. He also talked about his children and identified them by name.
During the interview, appellant provided a fair amount of detail regarding the killing of his wife, who appellant identified as Boeun Say. Appellant admitted he killed his wife, stabbing her with a knife he always carried around his waist area. When asked why he stabbed his wife, appellant said he went to his wife to ask her to come back home with him. When she refused and said she did not want to be with him anymore, appellant asked her why, if that was the case, she did not tell him "the right thing so we can get rid of paperwork and not be married anymore." Right before stabbing his wife, appellant said, "I don't want anybody to get you, I rather just kill you."
Appellant also reported that it had been his intention to kill himself after he killed his wife, explaining he was embarrassed about his wife cheating on him. Officer Kim confirmed that in the local Cambodian community, it was a stigma for a man of appellant's age to have his wife cheat on him, and that in such a close community, everyone would find out about it.
Officer Kim asked appellant if he had mental problems in the past. In response, appellant stated his only medical problem was a liver problem, and that he had been in a coma for nine days and nine nights.
The prosecution also called two correctional officers who testified regarding appellant's behavior and demeanor in jail.
On September 2, 2009, the jury returned a verdict finding appellant competent to stand trial.
B. Appointment of Third Expert
Appellant contends the trial court had no statutory authority to appoint a third expert (Dr. Smith) to examine him after the first two court-appointed experts (Dr. Geiger and Dr. Seymour) submitted reports finding him incompetent to stand trial.
Section 1369 sets forth the procedures to be followed after counsel or the court, pursuant to section 1368, forms a doubt as to whether the defendant is competent to stand trial. (See People v. Bell (2010) 181 Cal.App.4th 1071, 1079-1080.) Section 1369 provides, in part:
"A trial by court or jury of the question of mental competence shall proceed in the following order: [¶] (a) The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution...."
The parties on appeal agree that this case falls under the first sentence in section 1369, subdivision (a); i.e., "The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant." (Italics added.) Appellant contends that under the plain language of this provision, a trial court can appoint no more than two experts because the singular term "expert" is used rather than the plural term "experts." In other words, the court must appoint one psychiatrist or licensed psychologist and may appoint one additional expert but no more. However, "Section 7 provides that, as to words used in the Penal Code, 'the singular number includes the plural, and the plural the singular; 'The rule of construction enunciated in section 7 is no mere rubric -- it is the law.' [Citation.]" (People v. Catelli (1991) 227 Cal.App.3d 1434, 1451.) Thus, we must interpret the phrase "any other expert" in section 1369, subdivision (a) to be consistent with "any other experts" to the extent it is practicable. (Catelli, supra, at p. 1451.)
Interpreting the statute in light of section 7, as we must, it is reasonable to construe "any other expert" in the first sentence of section 1369, subdivision (a) as allowing a trial court to appoint as many additional experts as it deems appropriate in a particular case. This interpretation finds support in the Advisory Committee Comment to California Rules of Court, rule 4.130, which states, in pertinent part:
"Once mental competency proceedings under Penal Code section 1367 et seq. have been initiated, the court is to appoint at least one expert to examine the defendant under (d). Under no circumstances is the court obligated to appoint more than two experts. (Pen. Code, § 1369(a).)" (Advisory Com. com, 23 Pt. 1B West's Ann. Codes, Rules (2011 ed.) foll. rule 4.130, p. 193, italics added.)Advice that a court is not obligated to appoint more than two experts would be unnecessary if the contested language in section 1369, subdivision (a) was understood as restricting a court's appointment to two experts.
We are also unpersuaded by appellant's argument that, assuming the trial court had discretion to appoint a third expert, it abused its discretion in doing so. The crux of appellant's argument is that the appointment must have been pretextual because there was no reason to appoint an additional expert since the first two experts were in agreement that appellant was not competent to stand trial. The record, however, supports the trial court's stated reason for appointing a psychiatrist to evaluate appellant. The psychologists' reports both contained references to possible organic causes of appellant's apparent memory loss, upon which their findings of incompetency were largely based. In light of this information, the trial court reasonably concluded that it would be useful to obtain the additional opinion of a psychiatrist with a medical degree. There is no indication the court had reason to believe, in advance, that the particular psychiatrist it appointed would reach a different conclusion concerning appellant's competency than the two psychologists who initially evaluated him. We therefore reject appellant's unfounded assertion the court appointed the psychiatrist merely to obtain "an opinion on which a jury could base a finding that appellant was competent."
Dr. Geiger noted, for example, that appellant was possibly suffering from Alzheimer's-type dementia but further diagnostic testing was required for a diagnosis, and Dr. Seymour noted that appellant reported being "repeatedly tortured by the communists in Cambodia" and being "beaten on 3-4 occasions to the point where he became unconscious" and "since that time he has had persistent memory problems."
C. Sufficiency of Evidence Supporting Jury's Competency Finding
Next, appellant contends there is insufficient evidence to support the jury's finding that he was competent to stand trial.
A defendant is mentally incompetent to stand trial when he suffers a mental disorder or developmental disability rendering him "unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) "A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence." (People v. Lawley (2002) 27 Cal.4th 102, 131 (Lawley).)
A "reviewing court determines whether substantial evidence, viewed in the light most favorable to the verdict, supports the [jury's] finding. [Citation.] 'Evidence is substantial if it is reasonable, credible and of solid value.' [Citation.]" (Lawley, supra, 27 Cal.4th at p. 131.) When faced with two opposite and conflicting evaluations of a defendant's competency, "the [jury] properly could assess the weight and persuasiveness of those findings and conclusions" and pick whichever one was more persuasive. (Id. at p. 132.)
Appellant contends Dr. Smith's opinion that appellant did not suffer any mental disorder rendering him incompetent to stand trial does not constitute substantial evidence to support the jury's competency finding because the psychiatrist failed to conduct additional psychological tests, failed to obtain records concerning appellant's current medications and prior hospitalizations, and failed to inquire into appellant's experience of being beaten and tortured when he lived in Cambodia.
Appellant's critique of Dr. Smith's testimony is unpersuasive. Although Dr. Smith testified further testing would provide more information, he had no less confidence in his opinion because the testing was not done. Dr. Smith testified that he had sufficient time to examine appellant to determine whether he was suffering from a mental disorder. Dr. Smith explained, in detail, his reasons for rejecting Dr. Geiger's and Dr. Seymour's diagnoses of PTSD, dissociative amnesia, and amnestic disorder. As Dr. Smith's testimony established that appellant did not endorse sufficient symptoms to support even a tentative diagnosis of a mental disorder, we reject appellant's suggestion his opinion was deficient because he failed to conduct additional psychological tests or investigation into appellant's medical and personal histories where such investigation was not indicated due to the absence of symptoms. In short, the jury was entitled to believe Dr. Smith's reasoned expert opinion that appellant did not suffer a mental disorder rendering him incompetent to stand trial, and to reject the contrary opinions of Dr. Geiger and Dr. Seymour.
D. Refusal to Appoint Doctors to Reevaluate Appellant
Appellant contends the trial court abused its discretion when it denied defense counsel's pretrial request to appoint doctors to reevaluate appellant pursuant to section 1368 based on counsel's observations concerning appellant's fading memory.
On February 4, 2010, the trial court denied counsel's request, explaining:
"[O]nce a defendant has been found competent to stand trial, a second competency hearing is required only if the evidence disclose[s] a substantial change of circumstances, or new evidence is presented casting serious doubt on the validity of the prior finding of the defendant's competence. That showing has not been made in this case, so the request to, once again, suspend proceedings pursuant to [section] 1368 is denied."
Appellant now contends the trial court abused its discretion because it applied the wrong legal standard. We disagree. "When a competency hearing has already been held and the defendant has been found to be competent to stand trial, 'a trial court is not required to conduct another competency hearing unless "it 'is presented with a substantial change of circumstances or with new evidence'" that gives rise to a "serious doubt" about the validity of the competency finding. [Citation.]' [Citation.]" (People v. Kaplan (2007) 149 Cal.App.4th 372, 383-384.) This is the standard the trial court correctly used to evaluate defense counsel's request to appoint doctors to reevaluate appellant's competency to stand trial.
Appellant does not contend, and the record does not indicate, that defense counsel made the required showing for a new competency hearing. Instead, appellant contends the trial court, on its own motion, should have appointed experts pursuant to Evidence Code section 730. Evidence Code section 730 does not appear to be applicable here since the issue of a defendant's trial competency is one that is litigated separately from issues that might arise at trial. In any event, appellant has failed to present any case law or persuasive argument supporting his claim the trial court abused its discretion by failing to appoint experts to reevaluate his competency under Evidence Code section 730, when such evaluation was not warranted under the statutes specifically pertaining to competency proceedings. As appellant has not persuaded us he was entitled to a new competency evaluation, indigent or otherwise, we also reject his related equal protection claim.
Evidence Code section 730 provides: "When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court."
II. Miranda Error
Appellant claims the trial court erred in denying his motion to suppress his police confession because it was taken in violation of Miranda, supra, 384 U.S. 436.
A. Procedural Background
Before trial, appellant moved to suppress his confession on the ground it was taken in violation of Miranda. At the suppression hearing, the trial court received an English translation of appellant's police interview, which shows Officer Kim translated the warnings and appellant answered in Cambodian as follows:
"[DETECTIVE HERNANDEZ]: Okay, okay. I'm going to talk to you, like I said, while you're in custody. But before I do that I need to advise you of your rights, okay.
"[OFFICER KIM]: He'll talk to you about the reason why you got arrested. Before he asks you, he'll read you your rights because in America people have rights. So listen to him.
"[APPELLANT]: Yes.
"[DETECTIVE HERNANDEZ]: You have the right to remain silent.
"[OFFICER KIM]: About this incident, if you don't want to talk about it it[']s okay.
"[APPELLANT]: Yes.
"[DETECTIVE HERNANDEZ]: Anything you say can and will be used against you in a court of law.
"[OFFICER KIM]: The story that you tell us today can be shown to the court.
"[APPELLANT]: Yes.
"[DETECTIVE HERNANDEZ]: You have the right to talk to a lawyer and have him present with you while you're being questioned.
"[OFFICER KIM]: If you want to have an attorney to be with you, you can.
"[APPELLANT]: Yes.
"[DETECTIVE HERNANDEZ]: If you cannot afford to hire a lawyer one will be appointed to represent you before any questions if you wish.
"[OFFICER KIM]: If you don't have any money to pay for an attorney they'll get one to speak with you.
"[APPELLANT]: I don't have any money to pay.
"[OFFICER KIM]: Wait.
"[DETECTIVE HERNANDEZ]: You can decide any time to exercise these rights and not answer any questions or make any statements.
"[OFFICER KIM]: For instance, while you're answering and if you want to stop answering, you have the right to that.
"[DETECTIVE HERNANDEZ]: Do you understand each of these rights that I explained to you?
"[OFFICER KIM]: Do you understand what I just said?
"[APPELLANT]: Yes, yes. [¶] ... [¶]
"[DETECTIVE HERNANDEZ]: [D]o you wish to talk to me?
"[OFFICER KIM]: Do you want to talk about the incident that happened last night? Do you want to talk?
"[APPELLANT]: Sure it's OK."
At the suppression hearing, Officer Kim testified both about appellant's police interview and as an expert on the Cambodian language and culture. Officer Kim testified, inter alia, that he was born in Cambodia, spoke Cambodian on a daily basis in his personal life, and was a "city certified interpreter for the Cambodian language." Officer Kim was also active in the local Cambodian community, including the Cambodian Reconciliation Committee.
Officer Kim explained that people from the Cambodian countryside were generally poor, uneducated, and lacked knowledge of the court system and legal terms. Based on appellant's demeanor and manner of talking, Officer Kim opined that appellant was from such a background. Consequently, in translating the Miranda warnings, Officer Kim tried to use "simple term[s]" he thought appellant would be able to understand. Officer Kim believed all his Cambodian translations would have conveyed to appellant the meaning of what Detective Hernandez was saying.
In denying appellant's suppression motion, the trial court reasoned, in part:
"I think both counsel are right, that Miranda, it's -- it's not a -- warning that has to be given verbatim ... nor does it have to be given in English; it has to be given in the language that best communicates to the suspect.... And that's key, because what I heard here was that -- . and counsel did remind the court, and that is for the defense, of who this officer was, his background, his respect in the community -- I have to make a credibility assessment here too -- and Officer Kim made it a point that based on all the circumstances and what he was saying and how he said it, that he was going to communicate these rights to Mr. Sok, and it wasn't a verbatim reading of any card, but it was who was this person, what are the circumstances, I'm going to make sure I interpret in a fashion that communicates these rights to Mr. Sok. While he may have said, 'I don't have any money,' that's why I questioned Officer Kim as to whether or not at that time . he understood the defendant understood that advisement, and his testimony was, 'yeah, he did,' and if he felt he didn't understand, he would have followed up. Instead, he just told him to 'wait', because ... Detective Hernandez was beginning to give another advisement, and that commentary was going to interfere with him listening to [Detective] Hernandez and making sure he gave the advisement and translated it in the most effective way for Mr. Sok. [^] Based on all those circumstances, as to the constitutional sufficiency of the advisement, was it adequate, the court finds that it was adequate, it was -- and not in any sense deceptive."
B. Applicable Legal Principles
In People v. Samayoa (1997) 15 Cal.4th 795, 829-830, the California Supreme Court summarized the legal principles applicable to appellant's claim as follows:
"In reviewing the trial court's rulings related to this claim, we accept its resolution of disputed facts and inferences, and its evaluations of credibility, if substantially supported [citation], but we independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged confessions were obtained illegally. [Citation.]
"'"[U]nder the familiar requirements of Miranda, ... a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent."' [Citations.] This court has observed 'that no particular form of words or conduct is necessary on the part of a suspect in order to invoke his or her right to remain silent' [citation], and the suspect may invoke this right by any words or conduct reasonably inconsistent with a present willingness to discuss the case freely and completely [citation]. [¶] ... [¶]
"As the United States Supreme Court has observed, the prophylactic Miranda warnings are '"not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected"' [citation], and the warnings therefore need not be given in the exact form described in that decision [citation]. Thus, a reviewing court need not examine a Miranda warning for accuracy as if construing a legal document, but rather simply must determine whether the warnings reasonably would convey to a suspect his or her rights as required by Miranda. [Citations.]"
C. Analysis
In challenging the adequacy of the warnings he received through Officer Kim's translation, appellant seems to suggest that only an exact, literal interpretation of each of the standard warnings read by Detective Hernandez would satisfy Miranda. We disagree with appellant's analysis and conclude Officer Kim's statements, as a whole, adequately conveyed to appellant his rights under Miranda.
As noted above, the United States Supreme Court has "never insisted that Miranda warnings be given in the exact form described in that decision." (Duckworth v. Eagan (1989) 492 U.S. 195, 202, fn. omitted.) The warnings given in this case "touched all of the bases required by Miranda" (Duckworth, at p. 203) and "did not 'entirely omi[t],' ... any information Miranda required them to impart" (Florida v. Powell (2010) ___ U.S. ___, 130 S.Ct. 1195, 1204 (Powell)). Thus, the present case is distinguishable from the cases on which appellant relies. (See, e.g., United States v. Fox (2nd Cir. 1968) 403 F.2d 97, 100 ["Nothing at all was said to [the defendant] about his right to have an attorney appointed prior to questioning if he could not afford one, as Miranda requires"]; United States v. Tillman (6th Cir. 1992) 963 F.2d 137, 141 ["Defendant was never told any statements that he would make could be used against him"]; and People v. Bradford (2008) 169 Cal.App.4th 843, 854 ["[I]t was not even hinted to defendant that his statements might later be used against him; the issue was not mentioned at all."].)
Appellant complains Officer Kim's translations of the warnings concerning his right to remain silent were inadequate because they did not expressly advise him that he had the right to remain silent and that anything he said could be used against him in court. However, the totality of the officer's statements expressed the same message. The officer began by advising appellant that before Detective Hernandez talked to him about why he was arrested, the detective would read appellant his rights. Officer Kim added emphasis to this statement by explaining "in America People have rights" and admonishing appellant "so listen." After this prefatory statement, which essentially urged appellant to focus on the rights he was about to hear, Officer Kim advised appellant if he did not want to talk about the incident it was okay, and that the story he told the officers could be shown to the court. These statements, in combination with the later statement advising appellant that "while you're answering and if you want to stop answering, you have the right to that," effectively informed appellant that he had the right (not merely the option) not to answer any questions or say anything to the police if he chose not to.
Furthermore, although Officer Kim did not specifically state that anything appellant told the officers could be used against him in court, Officer Kim, who testified as an expert on Cambodian culture and language, explained that he effectively communicated the same thing to appellant by telling him the story he told the police could be shown to the court. The trial court credited Officer Kim's testimony and appellant presented no evidence to support the contrary interpretation he offers on appeal; namely, that the translation permitted appellant "to suppose that the story he told might be used solely in his behalf."
Another issue litigated at the suppression hearing was whether Officer Kim advised appellant the story he told can be shown to the court or whether the officer actually said it cannot be shown to the court. Cambodian interpreter Rithy Lim testified he listened to the audio-recording of the interview and it sounded like Officer Kim said "cannot" in Cambodian rather than "can." Officer Kim disagreed with the defense expert, and testified that he said "ning aach," which means "can." He explained the word for "cannot" ("min aach") sounds similar to the word for "can," but when he listened to the recording of the interview, he heard himself say the first word starting with an "n." He further explained that if he had said "cannot" in Cambodian, he would have said the sentence differently, ending it with "baan teh" to stress that it was negative. The court ultimately found in favor of Officer Kim's interpretation. Officer Kim's testimony provides substantial support for the trial court's finding that he used the Cambodian word for can rather than cannot. Under the applicable standard of review, we must accept the court's factual finding and therefore decline appellant's invitation to review the audio-recording of the police interview to determine whether Officer Kim's explanation was credible. We also note that, except for the dispute over whether the Cambodian word for can or cannot was used, the parties below stipulated that the English translation of the police interview was accurate.
We similarly reject appellant's claim that he was inadequately advised of his right to counsel because Officer Kim did not specifically "say whether appellant might speak with an attorney before or during the questioning or only after the questioning was over." Officer Kim informed appellant that he could have an attorney with him if he wanted one and that, if he did not have money to pay for an attorney, they would get an attorney to speak with him. The officer did not limit the presence of the attorney to before or during questioning. Thus, the officer's statements effectively "communicated to [appellant] that his right to an attorney began immediately and continued forward in time without qualification." (United States v. Frankson (4th Cir. 1996) 83 F.3d 79, 82, [general statement about right to counsel sufficient to satisfy Miranda];see also United States v. Caldwell (8th Cir. 1992) 954 F.2d 496, 498 [same].)
Our conclusion is unaltered by Powell, supra, ___ U.S. ___; 130 S.Ct. 1195, a recent decision appellant cites in his reply brief. In Powell, law enforcement officers informed the defendant that he had "'the right to talk to a lawyer before answering any of [their] questions'" and "'the right to use any of [his] rights at any time [he] want[ed] during th[e] interview.'" (Id. at pp. 1204-1205.) The Supreme Court determined that the first statement communicated that the defendant could consult with a lawyer before answering any particular question, and the second statement confirmed that he could exercise that right while the interrogation was underway. (Id. at p. 1205.) The Court held that, in combination, the two warnings reasonably conveyed the defendant's right to have an attorney present, not only at the outset of the interrogation but at all times. (Ibid.)
Powell is not directly on point because the warnings given there were worded differently than the warnings at issue here. However, Powell is instructive because it teaches that the failure to explicitly inform a defendant the right to counsel applies both before and during questioning can be cured if the totality of the Miranda warnings reasonably convey this message, as we conclude it did in this case.
We also reject appellant's suggestion that the warnings concerning counsel were somehow inadequate because when appellant commented that he did "not have any money to pay," Officer Kim told appellant to "[w]ait" but failed to return to elaborate further on the right to appointed counsel. However, Miranda did not require further elaboration once the right was adequately conveyed, as we have concluded that it was. Moreover, as the trial court observed in its ruling, Officer Kim was examined at length on this issue and explained that he told appellant to wait because appellant and Detective Hernandez were starting to talk over each other. In Officer Kim's opinion, appellant did not seem confused about the advisement but was simply making a general statement of fact when he said he had no money to pay.
Appellant does not claim his comment about not having money constituted an invocation of his Miranda rights and we therefore do not address this issue.
After arguing that the Miranda warnings were inadequate, appellant briefly suggests he did not validly waive his rights because he "gave no express waiver of any rights ...." Appellant argues that Officer Kim's question, "Do you understand what I just said," was ambiguous because he did not specifically ask appellant whether he understood the rights he had just been read. Because the question was ambiguous, appellant claims his "yes" response was also ambiguous and, therefore, there was no showing he made a knowing and intelligent waiver of his rights. We disagree.
Even assuming appellant's affirmative response did not constitute an express waiver of his Miranda rights, the totality of the circumstances supports a finding that appellant impliedly waived his rights. (Fare v. Michael C. (1979) 442 U.S. 707, 724-725 [court must consider "the totality of the circumstances surrounding the interrogation" when determining whether defendant waived rights].) After appellant indicated he understood what Officer Kim had just said, Officer Kim asked appellant, "Do you want to talk about the incident that happened last night? Do you want to talk?" Appellant responded, "Sure it's OK." Officer Kim then asked appellant, "Do you know why they detain you?" Appellant promptly replied, "Because I stabbed my wife, I stabbed my wife and killed her. That's why they arrested me." Appellant subsequently answered the officer's questions, and the interview transcript contains no sign of confusion, hesitation or reluctance to speak on appellant's part. (See People v. Sully (1991) 53 Cal.3d 1195, 1233 [the defendant impliedly waived his Miranda rights when, after having been given those rights, he stated he understood them and proceeded to give a tape-recorded statement to a detective]; People v. Whitson (1998) 17 Cal.4th 229, 250 [decisions of the United States Supreme Court and of the California Supreme court have held that an express waiver of Miranda is not required where a defendant's actions make clear that a waiver is intended]; People v. Cortes (1999) 71 Cal.App.4th 62, 70 [implied waiver established when evidence showed that, after officer advised the defendant of his rights and the defendant said he understood them, the defendant gave taped interview].)
The case appellant cites to support his argument that he did not validly waive his rights is simply inapposite and does not merit detailed discussion. (See People v. Diaz (1983) 140 Cal.App.3d 813, 819, 820-821 ["Appellant's response [when asked if he understood his rights], 'No, the only thing I have to tell you is the same thing I already told you before ... then if you want to get me an attorney hardly reflects a comprehension of one's Miranda rights."].)
For all these reasons, we reject appellant's claim of Miranda error.
III. Griffin Error
Appellant contends the prosecutor argued improperly concerning his failure to testify. (Griffin v. California (1965) 380 U.S. 609 (Griffin) [Fifth Amendment forbids prosecutor from commenting on accused's silence].) Directing a jury's attention to a defendant's failure to testify at trial runs the risk of inviting the jury to consider the defendant's silence as evidence of guilt. (Id. at pp. 614-615.) When considering a claim of Griffin error, we must determine whether there is a reasonable likelihood that the jury construed the prosecutor's argument as a comment on the defendant's failure to testify at trial. (People v. Clair (1992) 2 Cal.4th 629, 663.)
The comments to which appellant objects occurred during closing rebuttal argument. The prosecutor began by stating:
"The Constitution of the United States says that you have a right to a trial. It says you cannot be compelled to testify against yourself. It says that the Government has to do certain things before you can be found guilty. You can waive those rights, and you can tell your side of the story if you're arrested. You can come to court and you can plead guilty, but if you don't want to do that, the Constitution says that you have the right to a jury trial. Just because you exercise your Constitutional right does not mean that you didn't commit first degree murder. Just because we're here, just because I was required to call witnesses and do my job does not mean that Pech Sok is not guilty of first degree murder...." (Italics added.)After reviewing the evidence against appellant, the prosecutor concluded:
"Ladies and gentlemen, just because he exercised his Constitutional right to have you sit here and decide the facts of this case, does not mean he's not guilty of first degree murder. What you got to hear is that he is guilty of first degree murder. The evidence here supports only one conclusion, it's the only reasonable conclusion. Remember, it's reasonable doubt, it's not beyond all doubt. What's reasonable here? You got to hear the evidence that he killed her, how he did it, and you got to hear why he did it. He had a plan. Ladies and gentleman, find him guilty of first degree murder. Thank you." (Italics added.)
Appellant contends the italicized language constituted Griffin error because it "reminded the jury that appellant had not taken the stand at trial" and "invited the jury to consider appellant's silence in court as evidence of guilt which appellant did not wish to acknowledge." Assuming, without deciding, the claim has not been waived by appellant's failure to object to the prosecutor's comments below, we find no Griffin error occurred.
Although the prosecutor was entering risky territory when he referred to the right not to "be compelled to testify against yourself," viewed in context, the jury would not have reasonably understood this reference or any other part of the prosecutor's contested argument as a comment on appellant's failure to testify. Rather, the essential thrust of the prosecutor's argument was that the jury should not consider the mere fact that appellant exercised his right to a jury trial as evidence he did not commit the charged crime. The larger portion of the prosecutor's rebuttal focused on the evidence presented at trial and the argument that the evidence established appellant's guilt beyond a reasonable doubt. The prosecutor did not refer to appellant's failure to testify during trial in his own defense or otherwise suggest the jury could consider appellant's silence at trial as evidence of his guilt. Therefore, although we think the better practice would have been for the prosecutor to refrain from unnecessary commentary on the defendant's exercise of particular constitutional rights, the comments here did not amount to Griffin error.
IV. Taking the Verdict and Polling Jurors
Finally, appellant contends the judgment must be reversed because "there is no assurance that all twelve jurors assented to the verdict of murder in this case." This is so, appellant argues, because the trial court "improperly conflated the command of section 1149 (ask jurors collectively whether they reached an agreement) with the command of section 1163 (ask whether each individual juror assents to the particular verdict reached)" Assuming, without deciding, appellant did not waive his claim by failing to raise it below, we find the contention unpersuasive.
Section 1149 provides: "When the jury appear they must be asked by the Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same."
Section 1163 provides: "When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation."
In this case, when the jury was brought into the courtroom, the trial court asked the foreperson if a unanimous verdict had been reached. After being given an affirmative response, the court had the court clerk read the verdict. At the end, the court asked the jury, "is the verdict as read by the Clerk each of your verdicts?" The jurors responded with a unanimous affirmation of the verdict. The court then asked each juror individually whether the verdict read by the court clerk was his or her individual verdict and each answered in the affirmative.
The clerk read the verdict as follows: "We the jury in the above-entitled action find the defendant Pech Sok guilty of first degree murder in violation of Penal Code section 187(a) as charged in Count 1 of the information filed here in. We further find that ... the allegation that the defendant personally used a deadly weapon, a knife, in the commission of the above offense has been proved. Signed, March 10th 2010. Signed by the foreperson."
No specific request by counsel for jury polling appears on the record. Rather, the court appears to have acted on its own initiative, announcing its intention to poll jurors immediately after they unanimously affirmed the verdict of first degree murder.
Appellant claims that, after the trial court asked the foreperson if the jury had reached a unanimous verdict and the foreperson answered in the affirmative, section 1149 mandated that the trial court ask the jury the same question without specifying what the verdict was. According to appellant, by first having the clerk read the verdict and then asking the jury collectively to acknowledge whether this was their verdict, the court erroneously conflated sections 1149 and 1163. Appellant "deduces that section 1149 is intended to detect whether the fore[person] is mistaken in saying that an agreement was reached in the jury room." Appellant further theorizes that "[j]urors can be spoken to collectively in a section 1149 inquiry because it takes less courage for a juror to say there has been no agreement than it does for a juror to say that he, personally, disagreed with his fellow jurors." Appellant cites us to no cases supporting his unique interpretation of section 1149.
Although appellant cites People v. Masajo (1996) 41 Cal.App.4th 1335 (Masajo), that case does not support appellant's claim the court erred under section 1149 by asking the jury collectively whether the verdict read by the clerk was their verdict. Masajo involved the interpretation of section 1163, which "requires that, once the court initiates a poll at the request of a party, the jurors 'must be severally asked' if the verdict is theirs. [Citation.]" (Masajo, supra, 41 Cal.App.4th at p. 1339, fn. omitted.) The Masajo court found the trial court's accomplishment of the requested polling by a show of hands rather than individual polling was harmless error because there was no indication of non-unanimity or coercion. (Id. at pp. 1339-1340.) In contrast, the jury polling in this case was correctly accomplished by asking each juror individually about the authenticity of the verdict.
Apart from the apparent lack of supporting authority, the plain language of section 1149, unchanged since its enactment in 1872, is contrary to appellant's argument. Section 1149 contains no express provision requiring the trial court to ask the jury collectively whether they have reached an agreement after the foreperson has provided an affirmative answer to the same question. Moreover, the cases we have found by independent research contradict appellant's argument, reflecting that courts have consistently interpreted the second part of section 1149 to concern the individual polling of jurors. (See People v. Wiley (1931) 111 Cal.App. 622, 625 (Wiley) ["If demanded by either party, the verdict must be declared by each member of the jury as provided by section 1149 of the Penal Code. This is what is commonly termed polling the jury."]; see also People v. Mestas (1967) 253 Cal.App.2d 780, 786 (Mestas).)
There is nothing in the relevant statutes or case law prohibiting a trial court from doing what it did in this case. Section 1147 states: "When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge...." If the full jury appears, the verdict should be "'received and read by the clerk, acknowledged by the jury, and recorded ....'" (People v. Hendricks (1987) 43 Cal.3d 584, 597, italics added.) Jury acknowledgment of the verdict in open court is essential to the validity of the verdict. (People v. Thornton (1984) 155 Cal.App.3d 845, 858.) If the jury merely returns a written verdict, but fails to unanimously endorse the verdict in open court, the verdict cannot normally be sustained based solely on the written form. (Ibid.; see People v. Green (1995) 31 Cal.App.4th 1001, 1009; Mestas, supra, 253 Cal.App.2d 780, 786.)
Acknowledgment of the verdict in open court may be performed by the foreperson on behalf of the entire jury. (Wiley, supra, 111 Cal.App. 622 at p. 625; Stalcup v. Superior Court (1972) 24 Cal.App.3d 932, 936, disapproved on other grounds in People v. Dixon (1979) 24 Cal.3d 43, 53.) As a matter of common practice, the verdict is frequently acknowledged by both the foreperson and by the jury collectively, as was done in this case. (See, e.g., Thornton, supra, 155 Cal.App.3d at p 849; People v. Defer (1947) 81 Cal.App.2d 732, 733-734.) Not only did the court not err in asking the jury collectively whether the verdict read by the clerk was theirs, the jury's unanimous affirmation of the verdict in open court satisfied the acknowledgement requirement for a valid verdict.
We also reject appellant's claim that the subsequent polling of the jury was unreliable. In support of his claim, appellant points out that the trial court omitted the specific reference to "first degree murder" when rereading the verdict before polling the jury. He asserts "[t]he lay jurors were unlikely to know that section 187(a) refers to murder." The record belies appellant's assertion since the first juror polled specifically responded, "I agree with that. First degree murder with a knife," (italics added) after the court asked, "[i]s that verdict as returned and read by the clerk and as just read by me your individual verdict in this case ...." The other 11 jurors subsequently answered "yes," when asked if this was also their individual verdict.
In this regard, the trial court stated: "The verdict as read by the Clerk and as returned by the jury reads as follow[s]. We the jury in the above-entitled action find the Defendant Pech Sok guilty of Penal Code section 187(a) as charged in Count 1 of the information filed herein...." (Italics added.)
--------
Nor are we persuaded by appellant's claim that the the trial court improperly handled the receipt of a verdict form, which appeared to have been filled out and then voided. After polling the jury, the court questioned the foreperson, in the presence of the other jurors, as follows:
"THE COURT: Okay. I will just confirm for the record that there is a verdict form that was returned that appears to have been completed. It is scratched out and the word 'Void' is written across it, and [foreperson] I assume that was in error, that the jury had completed the form and has decided that was not the form that reflected their verdict.
"[THE FOREPERSON]: My mistake, sir.
"THE COURT: I see. So I -- I will make the record that as returned to me, it has the word 'Void' across it, [the foreperson] has confirmed and other jurors have confirmed by their polling that that verdict was not their
verdict, but, in fact, the verdict returned and read is the verdict upon which all agree. Okay. I'll be having a final instruction for you folks here...."
After the jury was discharged, the court made the following statements regarding the voided verdict form:
"Back on the record. The form that was completed and that [the foreperson] confirmed, was completed in error, was the guilty form as to the voluntary manslaughter charge. He had crossed out his entries there including his signature, written 'Void' across that, and I'm satisfied, based on the polling of the jury, that it was his mistake in filling out the wrong form, not the jurors' indecision as to their verdict. We confirmed with all 12 that their verdict was, in fact, first degree murder...."
Appellant argues the trial court should have disclosed to the attorneys the existence of the voided verdict form before the court polled the jury. By waiting until after the jury was discharged to disclose that the voided form had been the guilty form for voluntary manslaughter, appellant claims the court deprived him his Sixth Amendment right to effective assistance of counsel during a critical stage of the proceedings. This is so, he argues, because "his trial attorney had no opportunity to demand additional polling to ascertain whether or not the jurors rejected the verdict of voluntary manslaughter."
Appellant cites no authority supporting his argument that the court had a duty to disclose the voided form earlier. In any event, the jury's oral confirmation of the verdict of first degree murder, both collectively and individually, constituted the valid verdict and demonstrated the jury's rejection of voluntary manslaughter, thereby obviating the need for additional polling. We therefore reject the argument appellant offers in support of his Sixth Amendment claim.
DISPOSITION
The judgment is affirmed.
_________
HILL, P. J.
WE CONCUR:
_________
WISEMAN, J.
______
DAWSON, J.