Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 2007040605, Kevin G. DeNoce, Judge.
Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Kyle Martin Rubin appeals from the judgment following his conviction by jury of three counts of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, subd. (a)/664; counts 1-3); three counts of first degree burglary (§ 459; counts 4-6); and one count of attempted first degree burglary (§ 459/664; count 7). The jury also found true allegations that he personally used a knife in each attempted murder (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury on the count 2 attempted murder victim. The trial court imposed a total sentence of 31 years eight months to life. Appellant contends that the trial court admitted his custodial statements in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and it violated section 654 by imposing the count 4 and 5 burglary sentences. We modify the judgment to stay execution of sentences for counts 4 and 5, but otherwise affirm.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Appellant's family lived on Blackhawk Drive in Newbury Park. The attempted murders and other crimes described below occurred on the same block, or within a few blocks of their home.
Burglary of Taylor-Bowser Residence (Count 4) and Attempted Murder of Timothy Bowser (Count 1)
In October 2007, Timothy Bowser, his fiancée, Tracy Taylor, and her daughter lived at 459 Blackhawk Drive, across the street from appellant's family. Taylor knew appellant as the son of her good friend, Tozi Rubin. Because Taylor's daughter was not home on the night of October 24, she left the exterior garage door and the interior door between their house and the garage unlocked.
Bowser awoke in the early morning hours of October 25 and felt pressure on his right shoulder blade. He assumed that one of the family's several cats had landed on his back. When he saw a man walking in the bedroom, Bowser yelled. Taylor awoke, recognized appellant, and said his name. After appellant left the bedroom, Taylor heard him bump into a kitchen chair. She and Bowser chased him from the house, and he ran away.
After appellant left, Taylor called Mrs. Rubin and told her about the intrusion. She told Taylor to call 911. While speaking with the 911 operator, Taylor saw a knife in the downstairs hallway. She found another knife in the bedroom hallway. The blade on one of the knives was slightly bent.
Later that morning, Bowser realized that he was injured. There was blood on the back of his shirt. His wound was not significant but he felt a burning pain in his shoulder for about a week.
Burglary of Atchison Residence (Count 6)
Jill Atchison lived at 468 Blackhawk Drive, a few houses away from appellant's family. She locked her doors before she went to bed on October 24, 2007. Atchison awoke during the early morning hours of October 25, when her dog was barking.
On October 25, Atchison noticed that her side gate was closed, although she usually leaves it open. Deputy Sheriff Daniel Blank investigated at her residence on October 25 and found a methamphetamine pipe and lighter in her garage. Atchison had never seen them before.
Attempted Burglary of Berg Residence (Count 7)
Tricia Berg, her husband, and their two small children lived at 542 Knollwood Drive, in Newbury Park. At about 3:00 a.m. on October 25, 2007, Berg awoke when she heard a noise in their home. She checked upstairs and found that her family was asleep. She heard a noise downstairs and screamed for her husband. They did not find anyone in their home. The following day Berg found an open living room window and a screen lying on the ground. Appellant's fingerprint matched a fingerprint on the bottom of Berg's window.
Burglary of Stone Residence (Count 5) and Attempted Murders of M. Stone and Kelley Stone (Counts 2 and 3)
Kelley Stone, Peter Stone, and their three children lived at 383 Danville Avenue in Newbury Park, within a few blocks of the other victims' homes. Because their home was hot on the night of October 24, 2007, they left their back sliding door open.
Late on October 24, or very early on October 25, Kelley awoke when she heard their eight-year-old daughter, M., moaning. Kelley initially thought that M. was having a nightmare, and she called out to her. Kelley then got up, walked down the hallway, and entered M.'s bedroom. She did not see anyone but M. in her moon-lit room. Kelley approached M.'s bed and felt someone approach her from behind and put a knife against her neck. She reached up, grabbed the knife, pulled herself down to the floor, and started screaming for Peter. She struggled briefly with the attacker, until he ran from M.'s room. Kelley's neck and hands were cut during the attack.
Peter awoke to the sound of Kelley's screams, and ran toward M.'s room. He saw an intruder standing outside her room. Peter chased the intruder (appellant) as he ran downstairs. Peter caught appellant, threw him to the floor, pinned him and held him while he struggled, wiggled violently, screamed obscenities, laughed bizarrely, and acted irrational. Appellant said, "I have the devil in me, " and "Kill me please." Peter continued holding appellant and Kelley called the 911 operator.
Kelley checked on her childreN.M. was having difficulty breathing and there was blood on her neck. Kelley and her son gave M. first aid while they waited for the paramedics.
Peter was still holding appellant when Ventura County Sheriff deputies arrived. Appellant said that he had used acid and smoked methamphetamine. He also asked what he had done that night. The deputies arrested him and took him to the Thousand Oaks police station.
The knife that appellant used to attack M. and Kelley was a knife from the Stone's kitchen. Kelley usually kept that knife in a block on the kitchen counter.
M.'s neck had a 5-centimeter stab wound in her throat, a 1.5-centimeter laceration on her trachea, and lacerations on her jugular vein and thyroid. Her injuries required surgery. At the time of trial, M. still had a large, visible scar on her neck. Kelley's neck wound did not require sutures.
Appellant's Custodial Statements
At about 8:00 a.m. on October 25, 2007, Ventura County Sheriff Detective Alan Devers and Sergeant Steve Sagely interrogated appellant. He made a variety of statements. At some points he said he could not remember what he had done. He also said that he had entered the victims' homes and cut them with knives, and that if he did that, he must have wanted to kill them. He stated that he was high on LSD and methamphetamine when he entered their homes, and that he was still high during the interview. During the interview, appellant stated that he had wanted to kill himself and "just wanted to go out with a bang." He added, "I was hating life. I was hating myself. I was hating everything and I wanted the world to feel a little bit of hate, a little hate how I was feeling. [¶]...[¶] I wanted to destroy something beautiful basically. Let's put it that way."
Appellant described how he had waited several minutes inside the Taylor-Bowser home before attacking Bowser, and finally said, "fuck it, " entered their bedroom and stabbed Bowser in the back. In speaking about the Stone crimes, he admitted that he hid in the bathroom until Kelley entered M.'s room and then grabbed Kelley from behind.
Appellant provided a urine sample in the morning, after his October 25 interview. It tested positive for LSD. The results of a test performed later that day showed that appellant's blood contained methamphetamine, amphetamine, a cocaine metabolite and a marijuana metabolite.
Defense Evidence
Appellant called Dr. Ronald Siegel, a psychopharmacologist, to testify regarding the nature and effects of LSD and methamphetamine. Dr. Siegel reviewed the police reports, the audiotape and videotape of appellant's interrogation, and interviewed appellant. Dr. Siegel concluded that during the crimes, appellant was under the combined influence of LSD and methamphetamine, and probably suffering from hallucinations and impaired cognitive functioning. Dr. Siegel admitted that not everyone who uses hallucinogenic drugs becomes violent, and that a person who is under the influence of narcotics may still understand what he is doing.
Appellant also called Deputy Blanck who testified that he investigated Atchison's residence on October 25. He found a glass pipe used for smoking methamphetamine in her garage.
DISCUSSION
Miranda
Appellant contends that the trial court committed reversible error by admitting his custodial statements in violation of Miranda. We disagree.
"'... [A] suspect who desires to waive his Miranda rights and submit to interrogation by law enforcement authorities need not do so with any particular words or phrases. A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision....'" (People v. Hawthorne (2009) 46 Cal.4th 67, 86.) A valid waiver may be express or implied, and a suspect's expressed willingness to answer questions after acknowledging an understanding of his Miranda rights has itself been held sufficient to constitute an implied waiver of such rights. (Ibid.) The question is whether the Miranda waiver was knowing and intelligent under the totality of the circumstances. (Ibid.; see Berghuis v. Thompkins (2010) 560 U.S. --, -- [130 S.Ct. 2250, 2261, 176 L.Ed.2d 1098].) On review, we accept the trial court's determination of disputed facts supported by substantial evidence, and independently decide whether the challenged statements were obtained in violation of Miranda. (People v. Davis (2009) 46 Cal.4th 539, 586.)
Sheriff deputies arrested appellant at approximately 4:00 a.m. on October 25, 2007. He appeared confused and was fidgety. He asked, "What did I do?" He said that he had taken two or three hits of acid and had smoked methamphetamine. Deputy Sheriff Richard LaSecla transported appellant to the police station in Thousand Oaks. They arrived at the station between 4:30 and 5:30 a.m. Deputies placed appellant in a small, windowless interview room and handcuffed him to a chair with his hands behind his back. Appellant remained there for several hours before his interrogation, except when deputies escorted him to change his clothing and use the restroom.
Detective Devers and Sergeant Sagely entered the interview room at about 8:00 a.m. They wore dress shirts and slacks, not uniforms. Devers began by asking appellant how he was doing. Appellant replied, "I don't feel too well. Devers started to respond, "You don't feel too well. All right, ... what I would like to do, I'd like to talk to you a little bit and then--" but appellant interjected, "What the hell did I do?" Devers then continued, "-- get you out of here and get you up to the hospital and get you checked out. Okay?" Appellant again asked, "What the hell did I do?"
Devers then asked appellant if he had ever had his rights read to him before. Appellant said that he had. After appellant provided his name, birth date, telephone number, and street address, Devers separately advised him of each Miranda right, asked appellant if he understood, and awaited his answer before proceeding to advise him of another right. Appellant answered, "Yeah, " each time that Devers asked if he understood.
After appellant said that he understood his rights, Devers asked, "Can you kind of tell me what occurred tonight?" Appellant started speaking with Devers and Sagely and answering their questions. He said that he "took hits of acid" and smoked "Crystal Meth" that night. He said, "I just kept smoking until I couldn't walk. I was trying to OD myself, " and that he ingested an "eight ball [an eighth of an ounce]" of methamphetamine.
Appellant remained handcuffed to the chair throughout the interrogation. He often moaned, cried or whimpered, and twisted or fidgeted. He rattled his handcuffs continuously but did not say that they were too tight or painful. He said that he could not look at Devers and Sagely without seeing them moving. He told them that the walls were breathing, everything was floating, and he was "tripping" and "freaking out." Appellant moaned and cried and said, "I don't feel right. I can't keep still. My body feels like it's racing. [¶]...[¶] I just want to go to the hospital to see a doctor. I don't know, men's psych ward or something right now. I need... to go to bed right now. I don't like it. I really don't like this. I don't know if this is a big dream or joke."
Devers continued questioning appellant. After a while, appellant said, "everything is so blurry right now. Everything does not make sense." Later, while discussing his struggle with Peter Stone, appellant said Stone had dislocated appellant's shoulder and that it still felt like it was out of place. Appellant did not complain that it hurt.
During the Miranda hearing, Dr. Dea Boehme, the supervising forensic scientist of the toxicology section at the Ventura County Sheriff's Crime Lab, testified that the effects of methamphetamine vary based on several factors, including the dose, the user's history of abuse, and tolerance. Dr. Boehme testified that the level of methamphetamine in appellant's blood (279 nanograms per milliliter) was fairly typical of the level found among recreational users but exceeded the upper end of the therapeutic range (70 nanograms per milliliter) for that drug. Methamphetamine can cause confusion, agitation, hyperactivity, and hallucinations. LSD can cause hallucinations also, but LSD users generally recognize that the hallucination is not real. LSD use can cause inappropriate laughter. LSD and other drugs, including methamphetamine can cause labile emotions, crying, or sudden whimpering for no apparent reason. After considering the evidence, the trial court ruled that appellant made a valid, implied waiver of his Miranda rights, and his statements were voluntary.
Exercising our independent review and considering the totality of the circumstances surrounding appellant's interrogation, we conclude that appellant made a valid, implied waiver of his Miranda rights. The interrogation lasted no more than an hour, and appellant was given an opportunity to use the restroom before the interrogation. After Devers first asked appellant how he was doing, he replied, "I don't feel too well." After Devers acknowledged that appellant did not feel too well, and said he wanted to talk to him and then get him to the hospital to be checked out, appellant kept asking, "What the hell did I do?" He did not then say he was not well enough to speak with Devers, or needed to see a doctor.
Devers explained appellant's rights to him in a simple and straightforward manner and gave him an opportunity to invoke them. Appellant acknowledged that he understood his rights, and there is no evidence to the contrary. At no point did appellant say that he wanted to remain silent, that he did not want to talk with the detective, or that he wanted an attorney.
Although appellant had ingested LSD and methamphetamine, his answers were often specific and indicated his understanding of the questions and the subject matter. For example, he corrected Devers when he called appellant's street Blackwood rather than Blackhawk. He also provided specific facts about several topics, including the location of a methamphetamine pipe he left in Berg's garage, the way he hid in the bathroom until Kelley entered M.'s bedroom, then grabbed her, and how much methamphetamine he took.
Shortly after Devers asked appellant how he thought he got blood on himself, appellant said, "I have no memory, " "everything [was] moving, " "the walls [were] breathing, " he was "freaking out" and "tripping out, " and that he "just want[ed] to go to a hospital to see a doctor, a men's psych ward, " and "go to bed right now." He added, "I don't like it. I really don't like this. I don't know if this is a big dream or joke." Devers then asked if appellant had ever been to mental health. Appellant explained that he had been in a mental health ward at "UCLA, " when he was 12 years old, after a fall that injured his head, and caused seizures and other complications. Appellant spoke about various medications he had taken, and described which illegal substances he had used. He continued answering Devers's questions, and talked about his activities on October 25, and his wish to kill himself. Neither the audio nor the video record of the interview portrays Devers as intimidating or threatening. "Based on the totality of the circumstances surrounding the interrogation, we find that [appellant's] willingness to answer questions after expressly affirming his understanding of his Miranda rights constituted a valid implied waiver of them. [Citation.]" (People v. Hawthorne, supra, 46 Cal.4th at pp. 87-88.)
Section 654 Violation
Appellant contends that section 654 bars punishment for the count 4 and 5 burglaries. We agree.
Background
The prosecution alleged a section 12022, subdivision (b)(1) weapon use enhancement as to each attempted murder count (1, 2, and 3), and a section 12022.7, subdivision (a) great bodily injury enhancement as to the count 2 attempted murder. It alleged a section 667.5, subdivision (c)(21) violent injury enhancement as to each burglary and attempted burglary offenses, but no weapon use or great bodily injury enhancement. The verdict forms for the count 4 and 5 burglary offenses each contain a guilty verdict with just one finding by the jury - "the allegation that during the commission of the above offense, a person, other than the defendant, was present in the residence to be TRUE."
During the sentencing hearing, the prosecution cited People v. Centers (1999) 73 Cal.App.4th 84, in arguing that section 654 did not bar punishment for the count 4 and 5 burglaries. It asserted that under the prosecution theory, the "burglaries were committed... with the intent to kill, ... but there were multiple victims in each of these situations. [Appellant's] actual victim in the Bowser home was Tim Bowser, but Tracy Taylor was also a victim of that violent crime, of [the count 4 Bowser-Taylor] burglary... and that was a special finding that the jury found and that this Court can rely on when handing down consecutive sentences. [¶] [Taylor] need not be named on the pleading as Centers covered.... And because of the... multiple-victim exception to [section] 654, I believe that consecutive sentences on each of the residential burglaries is justified...." It relied on the same theory in arguing that section 654 did not prohibit punishment for the count 5 Stone burglary: "every other occupant in that home was a victim of the violent act of burglarizing an inhabited dwelling. The fact that he only ended up attempting to murder M. Stone and Kelley Stone [counts 2 and 3] is of no moment when looking at consecutive sentences there."
The court made the following comments in imposing consecutive terms for the count 4 and 5 burglaries: "As to Count 4, the defendant... is sentenced to state prison... for a subordinate and consecutive term of 16 months, which is one-third the mid-term. [¶] The court has imposed the consecutive sentence by reason of the separate nature of the offenses committed and the fact that the offenses were committed at different locations, involved separate acts of violence and were not contemporaneous. [¶] As to Count 5, the defendant... is sentenced to state prison... for a subordinate consecutive term of 16 months, which is one-third the mid-term. [¶] The court has imposed the consecutive sentence by reason of the separate nature of the offense committed, the fact that the offenses were committed at different locations and involved separate acts of violence and were not contemporaneous." During the same hearing, the court imposed a concurrent sentence of two years for a section 530.5, subdivision (a) identity theft offense, in People v. Rubin, Ventura County Superior Court, Case No. 2007013265.
Appellant's 32-year-8 month-to-life sentence includes: (1) an aggregate indeterminate sentence of 27 years to life (7 years to life, plus a 1-year weapon use enhancement for the counts 1, 2, and 3 attempted murders, and a 3-year great bodily injury enhancement for the count 2 attempted murder) in Case No. 2007400605; and (2) an aggregate determinate sentence of 4 years, 8 months (a consecutive 1-year-8-month-term for each of the counts 4, 5 and 6 burglaries; and a consecutive 8-month-term for the count 7 attempted burglary) in Case No. 2007400605; and (3) a concurrent 2-year-term for the identity theft in Case No. 2007013265. The two cases involve crimes that occurred on different dates and which have no common victims.
Analysis
Subdivision (a) of section 654 provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 applies not only to a single act, but also to an indivisible course of conduct committed pursuant to the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives, ' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.) "The defendant's intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. [Citation.]" (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
"[O]rdinarily, if the defendant commits both burglary and the underlying intended felony, Penal Code section 654 will permit punishment for one or the other but not for both. [Citations.]" (People v. Centers, supra, 73 Cal.App.4th at pp. 98-99.) Thus, a defendant who enters a residence in order to commit an assault has a single intent and objective and may not receive punishment for both the burglary and the assault. But under the multiple victim exception to section 654, "'... "even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim." [Citations.]'...." (Id. at p. 99.) The court held that "burglary is a violent crime for purposes of the 'multiple victim' exception when the jury finds that, in the commission of the burglary, the defendant personally used a firearm." (Id. at p. 88; see also People v. Robinson (1988) 198 Cal.App.3d 674, 681 [§ 654 does not preclude separate punishment for a burglary in addition to underlying assaults because "the burglary was a crime of violence, " where the jury found true allegations that in committing the burglary, the defendant inflicted great bodily injury on the victims]; and People v. Miller (1977) 18 Cal.3d 873, 886, overruled on another ground in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, fn. 8 [§ 654 did not bar punishment for burglary and robbery under the multiple victim exception where the jury expressly found that the defendant inflicted great bodily injury on a security guard during the burglary].)
As did the prosecutor below, respondent cites Centers in arguing that the trial court properly declined to stay the count 4 and 5 burglary sentences because the multiple victim exception applied, on the theory that appellant's acts injured more than one victim. We disagree. Here, contrary to Centers, and similar cases, the jury made no finding "that in the commission of the burglary, " appellant used a weapon, or inflicted great bodily injury, or any finding that would support the multiple victim exception. Accordingly, this case does not fall within the holding of Centers. Respondent cites no persuasive authority that treats burglary as a crime of violence for purposes of the multiple victim exception to section 654, with no finding by the trier of fact to support that exception.
DISPOSITION
We modify the judgment to stay execution of sentence for counts 4 and 5 (§459), pursuant to section 654. The trial court is directed to amend the abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.