From Casetext: Smarter Legal Research

People v. Sorto

California Court of Appeals, Second District, Third Division
Apr 22, 2009
No. B203627 (Cal. Ct. App. Apr. 22, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. VA090994 Dewey Lawes Falcone, Judge.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.


ALDRICH, J.

INTRODUCTION

A jury convicted defendant and appellant Eddie Sorto of, among other things, two counts of murder. Defendant, who was 15 years old at the time of the murders, gave recorded statements to detectives in which he confessed to the murders. On appeal, he contends that his waiver of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), was not voluntary, knowing and intelligent. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. August 19, 2005.

On August 19, 2005, around 10:00 p.m., Jesus Morales was walking on Atlantic Boulevard with Santana Gonzalez. They had no weapons. Three men approached, and one man asked Santana where he was from. The man also said “ ‘Varrio.’ ” Santana replied he was from 18th Street. The man pulled out a gun and shot Santana. Morales identified defendant as the shooter from a photographic six-pack and at the preliminary hearing. Morales recognized defendant from prior encounters. Santana died, having suffered three gunshot wounds, one to the left eye, one to the right thigh, and one to the left foot.

Morales was unavailable at trial. His prior testimony at the preliminary hearing was therefore read to the jury.

That same night, also around 10:00 p.m., Ivy Ponce was driving her car on Atlantic Boulevard. As she passed a used car lot she saw three or four guys chasing another man. They caught up to the man and shot him. The shooter was young, between 18 and 25 years old. Bullets struck Ponce’s car.

B. The August 25, 2005 shooting.

About a week later, around 3:00 p.m., on August 25, 2005, Lisa R. was at a flower shop because she’d heard a fight would take place there after school. She saw defendant shoot Jean Vidal, who was unarmed. Fatally injured, Vidal told Sergeant Enrique Gonzalez, who arrived at the scene, that it was “Kansas.” The sergeant did not see a weapon on the ground near Vidal. Six expended nine-millimeter casings were recovered. Vidal died as a result of multiple gunshot wounds, two to the chest and one to the abdomen.

Lisa R. was unavailable at trial. Her testimony at the preliminary hearing was read to the jury.

Alexander Delgado was also at the flower shop when the shooting occurred. People from the Kansas Street gang were in the parking lot. Delgado’s friend, Vidal, was also there. Vidal’s moniker was Downer. Delgado heard gunshots. Delgado’s truck was hit, and a bullet pierced his shirt. He could not identify the shooter, but he described him as dark-skinned, kind of bald, 16 to 17 years old, about 5 feet 7 inches tall, and about 135 pounds.

Delgado gave a recorded statement to the police. But at trial he claimed not to remember most of the events from the day of the shooting.

Emma Casas and Elvia Castro were driving into the parking lot of the flower shop when they heard gunshots. Bullets hit their car.

Jose Gonzalez was walking home. A large group of people were in a parking lot of a flower shop. Jose heard gunshots, and then people ran everywhere. During a recorded interview with Detective Richard Graves, Jose said Youngster from Kansas shoot Vidal. He identified defendant as the shooter from a photographic six-pack. At the preliminary hearing, he said defendant killed his “ ‘home boy’ ” and yelled “ ‘Kansas Street’ ” after the shooting.

At trial, Jose claimed not to remember anything about the incident or his statement to detectives.

Antonio Brink was driving in the area of Atlantic and Florence. He stopped near a flower shop. Two Hispanic men were arguing, and one shot the other twice. The shooter turned away, fired the gun two more times, and ran across the street with two men who it appeared had been looking around.

C. Gang evidence.

In August 2005, Kansas Street gang had 30 to 40 members. Its primary activities in August 2005 were narcotics sales and assaults with deadly weapons. At that time, Kansas Street was at war with the 18th Street gang. Santana Gonzalez, who was killed on August 19, 2005, was a self-admitted member of the 18th Street gang. Based on hypotheticals modeled on the murders of Santana Gonzalez on August 19, 2005 and of Jean Vidal on August 25, 2005, the gang expert said it was his opinion the crimes were committed for the benefit of or in association with or in the furtherance of the Kansas Street gang.

II. Procedural background.

Trial was by jury. On June 6, 2007, the jury found defendant guilty of: count 1, the special circumstance first degree murder of Santana Gonzalez (Pen. Code, § 187, subd. (a), § 190.2, subd. (a)(3) & (2)); count 2, the simple assault of Jesus Morales (§ 240); count 4, the special circumstance second degree murder of Jean Vidal (§ 187, subd. (a), § 190.2, subd. (a)(3)); and count 7, shooting at an occupied motor vehicle (§ 246).

All further undesignated statutory references are to the Penal Code.

The jury also found true the following allegations: count 1, gun use enhancements (§ 12022.53, subds. (b), (c), (d)); count 4, a special circumstance (§ 190.2, subd. (a)(22)), a gang enhancement (§ 186.22, subd. (b)(1)(C)), gun use enhancements (§ 12022.53, subds. (b), (c), (d)); and count 7, a gang enhancement (§ 186.22, subd. (b)(1)(C)) and a gun use enhancement (§ 12022.53, subd. (d)).

The jury found defendant not guilty of: count 2, assault with a firearm on Jesus Morales; count 3, shooting at an occupied vehicle; and count 5, the attempted murder of Alexander Delgado and of an attempted voluntary manslaughter of Delgado.

The trial court sentenced defendant on October 22, 2007 as follows: count 1, 25 years to life plus a consecutive 25 years to life for the gun-use enhancement; count 4, 15 years to life plus 25 years to life for the gun-use enhancement plus 10 years for the gang enhancement; count 7, 15 years to life plus 25 years to life for the gun-use enhancement. The court imposed a concurrent sentence on count 2 and stayed the remaining sentences on the enhancements.

DISCUSSION

I. Defendant’s confession was not obtained in violation of Miranda.

A. Additional facts.

At the time of the shootings, defendant was 15 years old. According to defendant, he had been arrested before for battery and for taking a screwdriver to school to steal a bike. On August 26, 2005, just after noon, Detectives Steve Lankford and Richard Graves went to Bell High School, where defendant was enrolled. While still at school, the detectives, who were recording the conversation, asked defendant preliminary questions about, for example, his address and family. Detective Graves then advised defendant: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer before be [sic] talk to you and to have him present while we talk to you. If you can’t afford to hire a lawyer one will be appointed to you to represent for any questions free of charge. You understand [e]very thing I just told you?” Defendant replied, “Yeah,” and the detective said it was “[j]ust like on TV, right? We’re gonna talk. Alright? I don’t wanna (unintelligible) tricks here. You’re in trouble. Okay?” Defendant again replied, “Yeah.” Detective Graves asked defendant if he had a problem going to the police station to talk. Defendant agreed to go.

It is unclear whether Detective Baltazar was also present at the school.

While en route to the station, Detective Lankford said he knew that defendant was a member of the Kansas Street gang. Defendant agreed and said his name was Youngster. The detective told defendant not to say anything more. At the station, Detectives Graves and Lankford interviewed defendant. Detective Graves said, “Eddie, we got out of the car, you finally said you’re gonna tell the truth....” Defendant said he is known as Youngster from Kansas Street. He confessed to shooting Vidal. He said that Vidal had a gun and, thinking Vidal was going to shoot him, defendant shot Vidal. Defendant ran away and threw his gun into the riverbed.

This conversation in the police car was not recorded.

It is again unclear whether Detective Baltazar was present during the interview at the station.

Later that day, apparently around 4:15, p.m., Detective David Carver, who was investigating Santana Gonzalez’s murder, joined the interview. Detective Graves asked defendant if he remembered “what I talked to you about at the school? Okay, [that] still applies, everything’s the same, nothing changed, right? Do you wanna talk to us?” Defendant did not respond to the question. But he again admitted he is a member of the Kansas gang and is known as Youngster. He initially denied shooting Santana Gonzalez. Then, after talking to Detective Graves privately, defendant said, “I shot him.” He recounted asking Santana where he was from, and Santana saying he was from 18th Street. Defendant then shot him and said “Varrio Kansas.”

In addition to Detective Carver, also present were Detectives Graves, Dixon and Lankford. It is unclear whether Detective Baltazar was present. In any event, Detectives Graves and Carver took the lead in questioning defendant.

Before trial, defendant moved under Miranda to suppress these statements on the ground he did not make a knowing, intelligent and voluntary waiver of his Miranda rights. The trial court held a hearing under Evidence Code section 402. The defense called Dr. Robert Fairbanks, a psychotherapist. Dr. Fairbanks saw defendant twice. The first time the doctor saw defendant he tested him. Defendant scored low on the Weschler Adult Intelligence Scale III. Based on test results, the doctor was concerned about defendant’s ability to understand English. The Wide Range Achievement test showed that defendant could pronounce words at a 10th grade level, but he did not understand them. His score on a Personality Assessment Screener test showed that defendant is withdrawn, feels alienated and rejected by peers, and has mild anger. Defendant received a “strikingly low” score, in the lowest one percentile, on the Aggression Questionnaire.

Dr. Fairbanks tested defendant the second time he saw him. On the complete Wechsler Adult Intelligence Scale, defendant scored in the lowest 2 percent of the population on all subtests, except one. Defendant scored in the mild retarded range on the Adaptive Behavior Inventory Test. He scored just slightly above the lowest two percentile on the Comprehensive Trailmaking test, and, based on that score, the doctor could not rule out neurological damage. The doctor tried to administer the Million Adolescent Clinical Inventory test to defendant, but he was unable to because defendant didn’t understand it.

Retardation by definition is the lowest 2 percent of the population. Defendant’s verbal IQ is 64; his performance IQ is 74; and his full scale IQ is 65, which is in the mild retarded range. His mental age is 11 or 12. The doctor’s overall finding is defendant is mildly mentally retarded.

Dr. Fairbanks asked defendant if anybody had talked to him about his rights. Defendant said he was aware of his rights and that people had talked to him about it. He claimed to have looked up Miranda in the Penal Code and researched it. He recited that the first right is to keep silent and the second right is to an attorney. Defendant said he understood each right. When the doctor asked defendant what the right to remain silent meant, defendant answered he could keep silent and not answer the police. Defendant said he understood he could tell the police he was not going to talk. Defendant also explained that if he did say anything, they could take it to court. As to the right to an attorney, defendant said it meant he could have a lawyer with him during questioning, although he also said he didn’t know when was the first time he could have a lawyer. Defendant explained that if he didn’t have money, “they will give me an attorney.”

At the time the doctor interviewed defendant, the doctor thought that defendant understood his rights. The doctor, however, took no position regarding whether defendant understood his rights in August 2005 when detectives read him those rights, although he thought it was unlikely.

In addition to hearing Dr. Fairbanks’s testimony, the trial court listened to the tapes of the detectives’ August 26, 2005 interview of defendant. The trial court found, based on a totality of circumstances, that defendant was “duly Mirandized before he gave any interviews on August 26th, that defendant had the capacity to understand the meaning of his Miranda rights, and the effect of the waiver of those rights and that his statements were free and voluntary and not under the exercise of any undue influence.”

B. Under the totality of the circumstances, defendant’s waiver of his Miranda rights was knowing, intelligent and voluntary.

A custodial interrogation must be preceded by Miranda warnings and by the suspect’s waiver of the rights embodied in those warnings. (Miranda, supra, 384 U.S. at pp. 478-479.) A suspect in custody must therefore be warned he or she has the right to remain silent and to have an attorney present and any statement may be used against him or her. A waiver of these rights must be knowing, intelligent and voluntary, and generally cannot be presumed from a silent record. (Moran v. Burbine (1986) 475 U.S. 412, 421; People v. Combs (2004) 34 Cal.4th 821, 845.) “A confession is involuntary if it is ‘not “ ‘the product of a rational intellect and a free will’ ” ’ (Mincey v. Arizona (1978) 437 U.S. 385, 398), such that the defendant’s ‘will was overborne at the time he confessed.’ (Lynumn v. Illinois (1963) 372 U.S. 528, 534.)... Whether a statement is voluntary depends upon the totality of the circumstances surrounding the interrogation. (People v. Neal (2003) 31 Cal.4th 63, 79.)” (People v. Smith (2007) 40 Cal.4th 483, 501.)

“A minor may waive his constitutional right against self-incrimination. The admissibility of a confession depends upon the totality of the circumstances which existed at the time the confession was obtained. (People v. Lara (1967) 67 Cal.2d 365, 389....) Included in the totality of circumstances standard are such factors as age, intelligence, education and ability to comprehend the meaning and effect of a confession. (Id. at p. 383.)” (In re John S. (1988) 199 Cal.App.3d 441, 445; see also Fare v. Michael C. (1979) 442 U.S. 707, 725; People v. Lewis (2001) 26 Cal.4th 334, 383.)

We accept “the trial court’s resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported, but independently determine from undisputed facts and facts found by the trial court whether the challenged statement was legally obtained.” (People v. Smith, supra, 40 Cal.4th at p. 502.) “In order to introduce a defendant’s statement into evidence, the People must prove by a preponderance of the evidence that the statement was voluntary. [Citation.] If a statement is found to be involuntary, the statement and other evidence derived from it are inadmissible for any purpose.” (People v. Vasila (1995) 38 Cal.App.4th 865, 873.)

Defendant here contends he did not voluntarily, knowingly and intelligently waive his Miranda rights for three reasons.

Coercion is not one of the three reasons.

First, the detectives who questioned defendant did not determine whether he understood his Miranda rights. After defendant was advised of his rights, the detective asked him, “You understand [e]very thing I just told you?” This, defendant argues, was inadequate because it is different than asking if defendant understood his Miranda rights: Understanding what he “ ‘was told’ ” is not the same as understanding his Miranda rights.

It is the same. Defendant was asked if he understood what the detective told him about his rights. Defendant indicated he understood. It is wholly unclear what specific turn of phrase the detective was supposed to use when asking defendant if he understood his Miranda rights. Defendant implies that something more—what specifically we are not told—is required where there is evidence the defendant lacks an ability to understand the meaning of words. That may be the case in some situations. But it isn’t in a situation where the record does not show any obvious indicia the suspect lacks the intelligence to understand what is being said. There is no evidence in this record that defendant displayed such outward signs that would alert his interrogators he could not understand what they were saying.

Defendant, however, adds that the detective’s other poor phrasing contributed to his misunderstanding that if he invoked his rights he would still be interrogated. After defendant indicated he understood what he had been told about his Miranda rights, ­the detective said it was “[j]ust like on TV, right? We’re gonna talk. Alright? I don’t wanna (unintelligible) tricks here. You’re in trouble. Okay?” Defendant again replied, “Yeah.” Defendant finds the reference to TV “troublesome because on ‘TV’ a confession always ensues.” We do not find the reference to TV to be troublesome. Placed in context, the detective was trying to reiterate that defendant had rights, just as they are portrayed on “TV” and that if defendant waived them, then he and the officers would have a talk. Indeed, the officer warned defendant again that he was “ ‘in trouble’ ”—which should have served as a reminder that defendant’s situation was serious and he might need counsel.

Third, defendant contends his waiver of his Miranda rights was not voluntary, intelligent and knowing because he was not readvised of those rights when he arrived at the police station and when the last interview began around 4:15 in the afternoon. But “a Miranda readvisement is not necessary before a custodial interrogation is resumed, so long as a proper warning has been given, and ‘the subsequent interrogation is “reasonably contemporaneous” with the prior knowing and intelligent waiver.’ [Citations.]” (People v. Smith, supra, 40 Cal.4th at p. 504.) Factors to determine whether readvisement is necessary before a subsequent interrogation is held after an earlier valid Miranda waiver are: “1) the amount of time that has passed since the initial waiver; 2) any change in the identity of the interrogator or location of the interrogation; 3) an official reminder of the prior advisement; 4) the suspect’s sophistication or past experience with law enforcement; and 5) further indicia that the defendant subjectively understands and waives his rights. [Citation.]” (Ibid.)

In People v. Smith, supra, 40 Cal.4th at pages 504-505, 12 hours passed between the defendant’s first and second interrogations. Defendant remained in custody between interrogations and the same officers conducted both interrogations in the same office. Before the second interrogation began, defendant was asked if he wanted to hear his Miranda rights again. Defendant declined, stating he remembered them but still wanted to talk to the officers. Defendant was familiar with the criminal justice system based on a prior incarceration and a prior arrest. There was also no evidence that the officers should have suspected defendant was mentally impaired or otherwise incapable of remembering the prior advisement. Based on these facts, Smith held that the detective was not required to readvise the defendant of his Miranda rights before the second interrogation.

Smith cites People v. Mickle (1991) 54 Cal.3d 140. There, defendant was given and waived his Miranda rights. He was then interviewed three consecutive times over a four-hour period. (Mickle, at p. 169.) The same two officers conducted two of the interviews, but a different officer conducted the third. Thirty six hours later, defendant was reinterrogated at a hospital. (Id. at p. 171.) Mickle found that readvisement was unnecessary before the reinterrogation, because the defendant was still in custody, was interviewed by the same officers, was reminded of his prior waiver, was familiar with the justice system, and there was nothing to indicate he was mentally impaired or otherwise incapable of remembering the prior advisement. (Ibid; see also People v. Stallworth (2007) 164 Cal.App.4th 1079, 1089-1090.)

Here, too, the detectives were not required to readvise defendant of his Miranda rights. The interrogations were reasonably contemporaneous, taking place over an approximate four-to-six hour period. Detectives first advised defendant of his Miranda rights at school. Not more than 20-to-30 minutes later, the interrogation began at the police station. The final interrogation took place, also at the station, around 4:15, just four hours after defendant has been given his Miranda rights. Before that final interrogation took place, Detective Graves asked defendant if he remembered “what I talked to you about at the school? Okay, [that] still applies, everything’s the same, nothing changed, right? Do you wanna talk to us?” Although defendant did not respond, he continued to talk to the detectives. Nothing in the record indicates that the detectives should have suspected defendant was mentally impaired or otherwise incapable of remembering the advisement. Also, Detective Graves was the first officer to interrogate defendant and he participated in Detective Carter’s later interrogation. Therefore, although other officers were present during the interrogation process, Detectives Graves and Carter were the primary interrogators.

Defendant’s final reason why his waiver was not voluntary, intelligent and knowing is his age and low IQ. Defendant was 15 at the time he committed the murders and the time of the interrogation. Youth alone, however, does not render a person incapable of understanding and waiving Miranda rights. (People v. Lewis, supra, 26 Cal.4th at p. 384 [14-year old defendant’s waiver of his Miranda rights was voluntary, knowing and intelligent]; People v. Lara, supra, 67 Cal.2d at p. 389.) Defendant, however, argues that low intelligence accompanied his youth. A confessor’s mental subnormality does not require the exclusion of a confession. (Lewis, at p. 384; Lara, at pp. 385-386.) It is simply one fact, albeit one of significant weight, to be considered with all others bearing on the question of voluntariness. (Lara, at p. 386.) Here, defendant has a full scale IQ of 65, which is in the mild retarded range. Although defendant can read at an age appropriate level, Dr. Fairbanks found that defendant lacks the ability to comprehend the meaning of words. He therefore concluded that it is unlikely defendant understood his Miranda rights when they were read to him on August 26, 2005.

Other circumstances testified to by the doctor, however, show that defendant did have the ability to understand the meaning of words. In fact, defendant was able to accurately recite his Miranda rights to the doctor. And when the doctor asked defendant follow-up questions about those rights, defendant was able to explain their meaning. For example, he told the doctor that remaining silent meant he did not have to answer questions, but that if he did say anything, it could be used in court. Defendant also explained that if he did not have money for an attorney, he would be given an attorney. The substance of the statements defendant gave to detectives also shows that defendant had the requisite intelligence to understand and to waive his rights. Defendant appeared to understand the questions asked of him and he gave cogent answers.

The totality of the circumstances therefore show that defendant understood his Miranda rights, and that his waiver of them was voluntary, knowing and intelligent.

II. Defendant’s due process rights were not violated by the trial court’s refusal to allow cross-examination about his Miranda rights.

Defendant next contends the trial court, in violation of his due process rights, wrongly precluded his trial counsel from cross-examining Detective Lankford about Miranda. We disagree.

A criminal defendant has the right to confront and to cross-examine witnesses against him or her. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) “ ‘ “[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” ’ ” (People v. Perez (2000) 82 Cal.App.4th 760, 765, citing United States v. Owens (1988) 484 U.S. 554, 559.)

No violation of defendant’s confrontation rights occurred. Detective Steven Lankford interviewed defendant on August 26, 2005. The interview was recorded and played for the jury. After an Evidence Code section 402 hearing at which the defense called an expert, Dr. Fairbanks, and the trial court read the transcript from the August 26 interview, the trial court found that defendant had been given his Miranda rights and had knowingly, intelligently and voluntarily waived them.

Despite this prior finding, defense counsel asked Detective Lankford on cross-examination at trial whether defendant was ever asked if he understood his rights and waived them. The prosecutor’s objection was sustained, and the trial court stated that the line of questioning was not relevant for the jury and “[t]he court has already made a determination.” When defense counsel later indicated she would play the tape of defendant’s interrogation, the prosecutor objected to any “intimat[ion] about the Miranda rights” because the court had already ruled on the Miranda issue. The court told defense counsel she could “argue what’s in the recording[,] [but] [y]ou can’t argue that he didn’t understand what was being related to him. I’ve ruled on that already.” Defense counsel responded that the prosecutor had opened the door by stating that defendant had been admonished, but the court disagreed.

The trial court’s ruling was correct. Whether defendant’s August 26, 2005 statement was admissible was the proper subject of the Evidence Code section 402 hearing. Whether defendant understood his Miranda rights was therefore not relevant at trial. Defendant, however, suggests it is somehow relevant to the validity of his confession. That is a separate issue, and one that the court’s ruling did not preclude defense counsel from addressing. Defense counsel was not precluded from inquiring into the circumstances of the confession. The court correctly noted that defense counsel could argue about what was in the recording. But whether defendant understood his Miranda rights was irrelevant, because it had already been determined he did understand them.

DISPOSITION

The judgment is affirmed.

We concur: CROSKEY, Acting P. J. KITCHING, J.


Summaries of

People v. Sorto

California Court of Appeals, Second District, Third Division
Apr 22, 2009
No. B203627 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Sorto

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EDDIE SORTO, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Apr 22, 2009

Citations

No. B203627 (Cal. Ct. App. Apr. 22, 2009)