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People v. Tsaiyang Su

California Court of Appeals, Second District, Third Division
Jul 25, 2008
No. B196193 (Cal. Ct. App. Jul. 25, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RANDY TSAIYANG SU, Defendant and Appellant. B196193 California Court of Appeal, Second District, Third Division July 25, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. PA050551 Shari K Silver, Judge.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

KITCHING, J.

Randy Tsaiyang Su appeals from the judgment entered following his convictions by jury for false imprisonment by violence or menace (Pen. Code, § 236) as a lesser offense of count 1 - kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)), two counts of forcible rape (Pen. Code, § 261, subd. (a)(2), counts 2 & 3) while engaged in tying or binding (Pen. Code, § 667.61, subd. (e)(6)), attempted rape (Pen. Code, §§ 664, 261, subd. (a)(2)) as a lesser offense of count 4 - forcible rape (Pen. Code, § 261, subd. (a)(2)), and two counts of battery (Pen. Code, § 242) as lesser offenses of count 6 - penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)) and count 7 - forcible oral copulation (Pen. Code, 288a, subd. (c)(2)), respectively. The court sentenced Su to prison for life with the possibility of parole with a minimum parole eligibility term of 15 years, plus nine years eight months. Appellant claims trial and sentencing errors occurred. We modify the judgment and, as modified, affirm it.

FACTUAL SUMMARY

1. People’s Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that prior to January 5, 2005, 15-year-old M.T. had a website on Myspace.com. On January 5, 2005, appellant sent M.T. an email asking if she was interested in modeling. M.T. replied yes and asked for information about cost and parental consent. During the next week, appellant and M.T. exchanged emails about modeling and, during those communications, she told her age to appellant. Appellant told M.T. that he would take photographs of her in Costa Mesa, and he would send a driver to pick her up. The two agreed that the modeling shoot would occur on January 13, 2005.

On January 13, 2005, appellant came to M.T.’s home. She entered the car he was driving and he drove away, eventually onto Interstate 5. He later exited at the Balboa exit, and subsequently drove M.T. uphill to a drainage ditch and stopped the car. Appellant told M.T. that she was under arrest. He unbuttoned her jeans and tried to take them off. He also tried to tie her with a belt. While the two struggled, he handcuffed her hands under her legs. M.T. fell out the car during the struggle, and he removed her jeans. Appellant then threw M.T. into the driver’s seat of the car.

Appellant entered the car and, using force, began kissing and licking M.T.’s breasts and kissing her ear. He later removed her underwear and, using force, orally copulated her vagina. Appellant threw M.T. in the back seat, kissed and licked her breasts, then raped her four or five times. Each penetration lasted only a few seconds because M.T. resisted.

M.T.’s right hand came out of the handcuffs, and appellant handcuffed it tighter. He then digitally penetrated her vagina. Appellant’s cell phone rang and he left the car and spoke on the phone for a few minutes. Appellant then reentered the car and raped M.T. twice. Again, each penetration lasted only a few seconds because M.T. resisted. Appellant masturbated and unsuccessfully tried to force M.T. to masturbate him. He subsequently drove M.T. to a Burger King restaurant and let her go.

About 4:30 p.m. on January 13, 2005, a sexual assault nurse at a hospital examined M.T. The nurse testified as follows. M.T. had encircling scratches on her wrists. She had a bruise on her knee, and abrasions on her back, hip, thigh, and elbow. An examination of M.T.’s vaginal area revealed acute redness on the fossa navicularis, which could have been consistent with the history of sexual assault given by M.T. M.T.’s vagina and cervix appeared to be normal, and her vagina was not injured. The nurse took swabs, including a swab from one of M.T.’s ears, and a swab from her left breast.

On January 25, 2005, Los Angeles County Sheriff’s Detective Sean Van Leeuwen interviewed appellant at the sheriff’s station, and appellant told him the following. Appellant met the victim (hereafter, M.T.) on the Internet and told her that he was a photographer. He had contacted other women online about modeling to trick them into having sex with them. M.T. told appellant during their online communications, and on the day of the offenses, that she was 15 years old.

On the day of the incident, appellant brought the handcuffs to handcuff M.T., perhaps so he could rape her. He brought gloves so he would not leave fingerprints. He drove to M.T.’s home and told her that his name was Kenneth and that he was the driver.

After M.T. entered the car, appellant drove on the freeway, but later exited to find a place to park where there was not much traffic. Appellant wanted to have sex with M.T. Appellant drove and later stopped on a road that was like a gutter. He subsequently handcuffed M.T., told her that she was under arrest, and moved her to the backseat.

Appellant pulled M.T.’s pants down. He asked her if she wanted to have sex, and she replied no. Appellant touched her breasts. Appellant may have licked M.T.’s ear, but did not lick her breasts or vagina. Appellant may have touched her vagina with his finger.

Appellant twice tried to have intercourse with M.T. He received a phone call on his cell phone and left the car to answer the phone. He later returned to the car and twice tried to rape M.T. Appellant subsequently began masturbating. He asked M.T. to help him masturbate, but she refused. After the incident, appellant dropped M.T. off at a Burger King. The next day, appellant emailed M.T., apologized for the actions of his driver, and indicated that police had caught his driver.

On January 25, 2005, a deputy testified that he searched appellant’s home and seized his personal computer. One of the computer files contained a pornographic video depicting a rape. The file, which had been accessed multiple times, was last accessed on December 26, 2004.

On January 26, 2005, detectives interviewed appellant again and appellant told them, inter alia, as follows. Appellant had bought the handcuffs a few days earlier for use with his girlfriend. Appellant later thought that he could use the handcuffs to bind M.T. Appellant bought the gloves before he went to M.T.’s home. He initially bought them so he could act like a driver, but later thought about using the gloves so that he would not leave fingerprints. Appellant initially did not want to have sex with M.T., but later forced himself to do it when he saw her. He twice attempted intercourse with her.

A criminalist testified that evidence of saliva was found on swabs taken from M.T.’s left breast, right ear, anal area, and external genitalia. The swabs taken from her left breast and right ear contained DNA consistent with appellant’s DNA. Appellant’s DNA was not found on the swabs taken from M.T.’s external genitalia.

2. Defense Evidence.

In defense, Lynne Ticson, a pediatrician specializing in sexual assault, suggested M.T.’s medical report did not make sense when it indicated her clothing was clean and intact, but there were scratches on M.T. Ticson would have expected to find a perpetrator’s DNA on a swab taken from M.T.’s vagina if there had been oral contact with it. A perpetrator’s DNA might be found on a swab taken from a victim’s vagina if the perpetrator had achieved penetration four or five times. The redness in M.T.’s vagina could have been normal, and was not necessarily indicative of sexual assault or sexual activity. Appellant’s father and sister testified that appellant had a reputation for nonviolence and honesty.

CONTENTIONS

Appellant claims (1) the trial court erred by receiving propensity evidence, (2) Penal Code section 654 barred punishment for appellant’s conviction for false imprisonment by violence or menace, (3) appellant’s two confessions were obtained without valid Miranda advisements, (4) the trial court committed Cunningham error by imposing the upper term on count 3, and by imposing consecutive terms on his convictions for false imprisonment by violence or menace, forcible rape (count 3), and attempted rape, and (5) appellant is entitled to additional precommitment credit.

DISCUSSION

1. The Video Evidence Was Admissible.

a. Pertinent Facts.

Prior to trial, appellant filed a motion to exclude, under Evidence Code section 352, evidence of a pornographic video file recovered from his computer. The video, described in further detail below, depicted men raping a woman in an isolated location.

At the hearing on the motion, the court described the video as depicting the following. Two men in the woods abducted a young female. They forced her to orally copulate them, then one of them orally copulated her. One of the men had vaginal or anal intercourse with the female from behind. She was kissed, and one of the men orally copulated her. Missionary-style intercourse occurred, and one of the men ejaculated on the young female’s face. One of the men had vaginal or anal intercourse with the young female from behind, then proceeded to ejaculate on her buttocks and lower back area.

The court indicated as follows. The video was very relevant. The events depicted took place in a wooded, isolated area. In the present case, there was an abduction into the hills. The woman depicted in the video was forced to perform, and performed upon, against her will. Although the woman was probably an actress, the tape, for five minutes, depicted her as a complete object and victim, in the context of control and domination by men through sexual violence.

Appellant argued the video was excludable under Evidence Code section 352. Apparently referring to the instant video, appellant indicated it was prejudicial to introduce evidence of a violent rape when the current charge was rape. Appellant also argued as follows. In the present case, appellant did not have intercourse with M.T. from behind her, he did not ejaculate on her face or buttocks, and she did not orally copulate him. The video depicted two men with a woman in a wooded area. There was no similarity between the acts in the video and those in the present case. The video did not provide evidence of a motive or overall scheme on appellant’s part.

Other videos, also the subject of the motion to exclude and argument, were excluded by the trial court.

The prosecutor represented that the video was last accessed on December 26, 2004, and appellant began communicating with M.T. on January 5, 2005. The prosecutor argued appellant watched the video and made plans based on it.

The court indicated that kidnapping, rape, and the abduction of a girl under 16 years old were at issue in the instant case and in the video; therefore, the video added no stigma not already present in the instant case. The court commented that in terms of the kidnapping, abduction, force, and violence, the video’s relevancy far outweighed any prejudice. The court also commented that since the People’s theory was that appellant planned the abduction as a result of viewing the video, the video was relevant to the issues of intent, plan, and motive.

Later, during trial, the video was shown to the jury during the People’s case-in-chief. The court indicated to the jury that the video was presented on the issues of motive and intent, and the court would give further instructions concerning the video later. The People rested subject to the admission in evidence of exhibits.

Ticson, a pediatrician, was the first defense witness and, during a break in her testimony, the court and parties discussed the video exhibit. Appellant incorporated by reference his previous objections. He also argued as follows. Appellant’s defense was not about motive, intent, or identity. His defense was that he committed attempted rape, and perhaps false imprisonment, but not kidnapping. The issue was whether he had committed kidnapping, oral copulation, and digital penetration. His motive and intent were never at issue; therefore, the video had no probative value and was extremely prejudicial.

The court observed that appellant did not choose the issues in the case, and the People had to prove it beyond a reasonable doubt. Appellant acknowledged that if, during closing argument, he emphasized or limited the issues, the People were not bound by that action, and the People had to prove every element beyond a reasonable doubt.

The court indicated as follows. The video, which was on appellant’s computer, was distressing, but so was M.T.’s testimony. The video’s depiction of two men taking an Asian female, and what was done to her, was sufficiently similar to what occurred in the present case involving appellant and M.T., both of whom were Asians. The court concluded the video was not prejudicial for purposes of Evidence Code section 352, because there was really no difference between the nature of the contents of the video and the nature of the present case, and the video was not excludable under that section. The court denied appellant’s objection and admitted the video in evidence. During its final charge to the jury, the court gave a limiting instruction concerning the video. We will provide additional facts where pertinent below.

The court instructed pursuant to CALCRIM No. 375, inter alia, as follows. The People had presented evidence that on December 26, 2004, appellant viewed the rape video. If the jury decided that appellant did so, the jury could, but was not required to, consider that evidence for the limited purpose of deciding whether appellant (1) acted with intent to kidnap with intent to rape as to count 1, (2) had a motive to commit the alleged offenses, or (3) had a plan to commit the alleged offenses. In evaluating the evidence, the jury was to consider the similarity or lack of similarity between the uncharged acts and the charged offenses. The jury was not to consider the evidence for any purpose other than intent, motive and common plan, and was not to conclude from this evidence that appellant had a bad character or was disposed to commit crime. If the jury concluded that appellant committed the acts, that conclusion was only one factor to consider along with all of the other evidence, it was not sufficient by itself to prove that appellant was guilty of the charged offenses, and the People still had to prove each element of every charge beyond a reasonable doubt.

b. Analysis.

Appellant claims the trial court erred by admitting into evidence the video because it was irrelevant and excludable under Evidence Code sections 352 and 1101, and its admission into evidence violated his right to due process. We disagree.

An appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including a ruling concerning relevance, Evidence Code section 352, or Evidence Code section 1101. (People v. Waidla (2000) 22 Cal.4th 690, 717, 723-725; People v. Memro (1995) 11 Cal.4th 786, 864 .) In the present case, the video on appellant’s computer was relevant to show that appellant viewed the video, which fact in turn was relevant to the issues of appellant’s intent and motive to commit the charged crimes, matters placed in issue by his not guilty plea. (Cf. People v. Memro, supra, at pp. 864-865; People v. Daniels (1991) 52 Cal.3d 815, 857-858; Evid. Code, § 210.) Since the evidence was relevant to those issues, it was not inadmissible propensity evidence under Evidence Code section 1101. (People v. Memro, supra, at p. 864.)

Evidence Code section 1101, provides, in relevant part, “(a) Except as provided in this section . . . evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, . . . intent, preparation, [or] plan, . . .) other than his or her disposition to commit such an act.” (Italics added.)

In the video and the present case, multiple sex acts occurred and the victim was raped and orally copulated in an isolated location. The kind of sex acts depicted in the video were essentially no more inflammatory than those in the present case. The victim depicted in the video and the victim in the present case were young Asian females. Less than a month elapsed from the time that the video was last accessed to the time of the present offenses. Less than two weeks elapsed from the time the video was last accessed to the time that, according to the prosecutor, appellant first began communicating with M.T. Moreover, the tendency of the video to prove motive and intent was strong. When the video was played to the jury, the court told the jury that the video was presented on the issues of motive and intent.

We believe the trial court understood and fulfilled its responsibilities under Evidence Code section 352, and the trial court did not err by failing to exclude the video under that section. (Cf. People v. Williams (1997) 16 Cal.4th 153, 213; People v. Memro, supra, 11 Cal.4th at p. 865.) The trial court did not err by admitting in evidence the video, and the application of ordinary rules of evidence here did not violate appellant’s right to due process. (Cf. People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Mincey (1992) 2 Cal.4th 408, 440.)

Appellant argues he conceded motive and intent to rape M.T.; therefore, admission of the video to prove those issues was error. We disagree. Appellant’s not guilty plea put the elements of the crime in issue for the purpose of deciding the admissibility of evidence, unless appellant took action narrowing the prosecution’s burden of proof. (Cf People v. Daniels, supra, 52 Cal.3d at pp. 857-858.)

Appellant has failed to demonstrate from the record that, prior to the admission in evidence of the video, he had narrowed the prosecution’s burden of proof on the elements or on the issues of motive or intent. Ticson was the first defense witness, and it was during a break in her testimony that appellant argued to the court that his defense was not about motive or intent, and that they were not at issue. However, appellant refers to nothing from Ticson’s testimony that reflects that appellant’s defense was not about motive or intent, and that they were not at issue.

Moreover, notwithstanding appellant’s argument that motive and intent were not at issue, they were put in issue by his not guilty plea. The fact that appellant’s defense strategy may have been to concede lesser crimes did not cause his motive and intent as to the greater crimes to be not at issue. The jury already had seen the video by the time appellant objected to the introduction into evidence of the video on the ground that his defense was not about motive or intent, and that motive and intent were not at issue; appellant never objected to the earlier playing of the video on that ground. The general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state’s case of its persuasiveness and forcefulness. (People v. Garceau (1993) 6 Cal.4th 140, 182.)

People v. Bonin (1989) 47 Cal.3d 808, cited by appellant, does not compel a contrary conclusion. (People v. Hall (1980) 28 Cal.3d 143, 152-153.)

Finally, there was strong evidence of appellant’s guilt. The court gave a limiting instruction regarding the video evidence during the court’s final charge to the jury. Significantly, faced with the prospect of convictions on the greater offenses, appellant conceded during jury argument that he was guilty in this case of false imprisonment, two attempted rapes, and two batteries. The claimed evidentiary error was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)

2. Penal Code Section 654 Barred Punishment for Appellant’s Conviction for False Imprisonment by Violence or Menace.

Respondent concedes Penal Code section 654 barred punishment for appellant’s conviction for false imprisonment by violence or menace. We accept the concession since, as respondent observes, appellant falsely imprisoned M.T. to commit the sexual offenses. (Cf. People v. Latimer (1993) 5 Cal.4th 1203, 1216-1217.)

3. Appellant’s Two Statements Were Not Obtained In Violation of Miranda.

a. Pertinent Facts.

(1) The Evidence Presented at the Hearing.

Prior to trial, appellant moved to suppress his two statements to detectives on the ground the detectives obtained the statements in violation of Miranda. At the hearing on the motion, Van Leeuwen testified as follows. Appellant was arrested at his Cypress home on January 25, 2005, and placed in the back seat of a patrol car. Van Leeuwen had been told that appellant was asking questions about why he had been detained. Van Leeuwen asked appellant if appellant wanted to talk with Van Leeuwen. Appellant said he wanted to know why he had been arrested and why he was in the patrol car. Van Leeuwen replied that he would be happy to talk to appellant, but Van Leeuwen needed to advise appellant of his rights because appellant was in custody. About 8:30 a.m., Van Leeuwen advised appellant as to each of his Miranda rights and asked appellant if he understood them. Appellant replied yes, and he appeared to understand them. Van Leeuwen asked appellant if he wanted to talk about the case, and appellant replied no. The conversation ended.

Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

There is no dispute as to the adequacy of this Miranda advisement.

Los Angeles County Sheriff’s Detective David Campbell transported appellant to the sheriff’s station. About 10:30 a.m., Campbell told Van Leeuwen that appellant told Campbell in the patrol car that appellant wanted to speak to Van Leeuwen.

About 10 minutes later, Van Leeuwen and Los Angeles County Sheriff’s Detective Charles Ansberry met appellant in an interrogation room. Van Leeuwen did not at that time re-advise appellant of his Miranda rights. Van Leeuwen and appellant discussed the incident with M.T. for about 1 hour and 46 minutes, during which time appellant made incriminating statements.

About 10:00 a.m. on January 26, 2005, Van Leeuwen met with appellant again. Van Leeuwen re-advised appellant of his Miranda rights, and appellant said he understood them and wished to speak to Van Leeuwen. Appellant initialed and signed a form which indicated he understood each of his rights and wanted to speak to Van Leeuwen. Van Leeuwen discussed the incident again for about 1 hour and 18 minutes, during which time appellant made incriminating statements.

Campbell testified as follows. On January 25, 2005, Campbell and about 10 or more officers arrived at appellant’s home. Campbell and other officers went inside the home. When Campbell first saw appellant, appellant was exiting his bedroom and wearing a robe. Campbell handcuffed appellant in a hallway. About 7:30 a.m., appellant was arrested and Campbell placed him in the rear seat of Campbell’s patrol car. Campbell waited with appellant while other detectives executed a search warrant. During that period, appellant asked how long he would be in custody for the crime he perpetrated. Campbell then assisted in the towing of the suspect vehicle, a process that took about 30 minutes.

Van Leeuwen and Ansberry then entered the patrol car, and Van Leeuwen advised appellant of his Miranda rights. Appellant answered yes to each of Van Leeuwen’s questions, but said he did not want to talk about the incident. Van Leeuwen told appellant to let Van Leeuwen know if appellant changed his mind and wanted to talk to them about the case. Campbell began transporting appellant to the sheriff’s station.

En route to the station, Campbell and appellant conversed about unrelated general matters. Appellant then asked if the detective with the black vest was in charge of appellant’s arrest. Campbell identified that detective as Van Leeuwen, and Campbell told appellant that Van Leeuwen was the investigating officer. Appellant said Campbell was nice to appellant, appellant liked Campbell, and appellant wanted to talk to Van Leeuwen, the officer who had advised appellant of his rights. Campbell replied that he would tell Van Leeuwen that appellant wanted to talk with Van Leeuwen. Campbell also said that if Van Leeuwen or Ansberry were not nice to appellant, and appellant felt comfortable with Campbell, then appellant could tell Campbell what had happened. Appellant said he wanted Van Leeuwen and Ansberry to be nice when they spoke with appellant.

Campbell also testified as follows. Appellant said that Campbell was nice to appellant, appellant liked Campbell, and appellant wanted to tell the truth about what had happened. Campbell said that if appellant wanted, Campbell would tell Van Leeuwen and Ansberry that appellant wished to speak with them, and appellant’s condition was that appellant wanted them to be nice. Campbell told appellant that if Van Leeuwen and Ansberry were not nice, Campbell would be more than happy to speak with appellant about it. Appellant said he wanted to be honest and tell them what had happened.

Appellant also asked how the victim was doing and whether she would be present at the station. Campbell said the victim would not be present at the station and he did not know her condition.

Upon arrival at the station, Campbell parked his patrol car and completed some paperwork. Appellant said he wanted to tell the truth and speak to Van Leeuwen and Ansberry about the case. Campbell took appellant inside the station and began booking him. At 9:40 a.m., Campbell booked appellant. Van Leeuwen and Ansberry arrived at the station about 9:55 a.m., and Campbell told the detectives that appellant wanted to speak to them.

(2) The Court’s Ruling.

After the presentation of evidence at the hearing, the trial court indicated as follows. Van Leeuwen and Campbell were extremely credible witnesses. Van Leeuwen properly advised appellant of his Miranda rights when appellant was arrested, appellant indicated he understood each of them, appellant invoked his right not to talk with the detectives, and Van Leeuwen honored that invocation.

The court also indicated as follows. One or two hours after the invocation, appellant initiated the conversation with Campbell and indicated that appellant wished to tell the truth and speak to the detectives if they would be nice to him. Nothing in the record indicated appellant’s state was anything other than calm. Appellant was concerned about, inter alia, the length of his potential incarceration. Appellant understood each of his rights, and freely and voluntarily decided to speak to law enforcement a short time after initially invoking his Miranda rights.

The court further indicated the following. Based upon the evidence, appellant continued to understand his rights and made a voluntary decision to speak to law enforcement. No case authority indicated that, in such circumstances, detectives had to re-advise appellant of his Miranda rights before detectives took his first statement. The next day, Van Leeuwen, out of an abundance of caution, readvised appellant of his rights and wanted to follow up with questions, and appellant waived his rights. Neither statement was obtained in violation of Miranda, and both were admissible.

b. Analysis.

Appellant claims his two incriminating statements to Van Leeuwen were obtained without valid Miranda advisements. For the reasons below, we disagree.

The prosecution must prove by a preponderance of the evidence that a defendant voluntarily, knowingly, and intelligently waived his or her Miranda rights. (People v. Whitson (1998) 17 Cal.4th 229, 248.) A valid waiver may be either express or implied from the actions and words of the defendant. (Id. at pp. 246, 250.) A reviewing court accepts the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. (Id. at p. 248.) From the undisputed facts and those facts properly found by the trial court, the reviewing court independently determines whether the challenged statements were illegally obtained. (Ibid.)

Appellant concedes Van Leeuwen advised appellant of, and appellant invoked, his Miranda rights when he was in the patrol car following his arrest. Appellant argues his first incriminating statement was inadmissible because, after his invocation, he was not re-advised of, and did not waive, his Miranda rights. We reject the argument.

Suspects who invoke the rights to counsel and to remain silent may not be subjected to further interrogation until counsel is made available or the accused initiates further communication. (People v. Davis (2005) 36 Cal.4th 510, 554.) “Ideally, the Miranda warnings should be repeated before reinitiating the interrogation of a suspect who has invoked the right to remain silent, but the failure to do so is not fatal if the ‘totality of the circumstances’ shows the suspect’s waiver remains voluntary, knowing and intelligent. [Fn. omitted.] Our Supreme Court has identified factors the trial court should consider in determining whether readvisement is necessary. These include ‘the amount of time that has passed since the waiver, any change in the identity of the interrogator or the location of the interview, any official reminder of the prior advisement, the suspect’s sophistication or past experience with law enforcement, and any indicia that he subjectively understands and waives his rights. [Fn. omitted.] Any misconduct by the police in reinstituting the interrogation of course must also be taken into consideration. [Fn. omitted.]” (Cf. People v. Riva (2003) 112 Cal.App.4th 981, 993-994, fn. 42.)

In the present case, questioning ceased in the patrol car once appellant invoked his Miranda rights. Questioning did not resume until about two hours later. There is no dispute that, in the interim, appellant initiated further communication about his case when he requested to talk with the detectives about it, and detectives responded to his request. A period of two hours from the time of the invocation to the time of the first incriminating statement was not so short as to constitute harassment of appellant, nor so long that appellant might have forgotten the initial Miranda advisement. Appellant concedes that only a brief period elapsed from the time of his initial Miranda advisement to the time of his first incriminating statement.

The same detective, Van Leeuwen, advised appellant of his Miranda rights before appellant invoked them, and conducted the interrogation which led to appellant’s first incriminating statement. That interrogation was conducted in jail, but appellant was presumably aware that that would be the case when he requested to talk with detectives while en route to jail. No evidence was presented at the hearing that appellant was not as sophisticated as the ordinary citizen. Appellant expressed no confusion as to his rights as given during the initial advisement, and there was no evidence of police misconduct. We agree with the trial court that, under the totality of the circumstances, appellant’s first incriminating statement was voluntary and made after a knowing and intelligent waiver of his Miranda rights. (Cf. People v. Riva, supra, 112 Cal.App.4th at p. 994.)

There is no dispute that on January 26, 2005, appellant was readvised of, and waived, his Miranda rights, except to the extent appellant claims the readvisement was deficient. He argues the readvisement was deficient because his first incriminating statement was constitutionally infirm with the result that, during the readvisement, he should have been told that his first incriminating statement was inadmissible and that he still had meaningful constitutional rights worth invoking if he chose to do so. We reject appellant’s claim since we reject his premise that his first incriminating statement was constitutionally infirm.

Appellant’s reliance upon Missouri v. Seibert (2004) 542 U.S. 600 [159 L.Ed.2d 643] (Seibert), is misplaced. “There, a police protocol for custodial interrogation called for giving no Miranda warnings until interrogation had yielded a confession even though that confession would be inadmissible under Miranda. The officer then gave the Miranda warnings and led the suspect to provide the same confession a second time. In that limited context, the United States Supreme Court held a confession repeated after a warning inadmissible. (Seibert, supra, 542 U.S. at p. 604 [124 S.Ct. at p. 2605].)” (In re Kenneth S. (2005) 133 Cal.App.4th 54, 65-66.) There was no evidence of any such protocol in the present case. Appellant was advised of his Miranda rights prior to his first incriminating statement. This is true even though, after that advisement, but before the first incriminating statement, he invoked his rights, initiated further communications, and was interrogated without a readvisement. Seibert is therefore distinguishable. (Cf. In re Kenneth S., supra, at p. 66.)

4. No Reversible Cunningham Error Occurred.

a. Pertinent Facts.

During sentencing, the prosecutor argued that the trial court should impose the upper term on, inter alia, count 3 (forcible rape), because (1) M.T. was particularly vulnerable, (2) the manner in which the crime was carried out indicated planning, sophistication, or professionalism, and (3) appellant took advantage of a position of trust or confidence to commit the crime. The court commented on the aggravating and mitigating factors concerning, inter alia, count 3. The court found the following aggravating factors: (1) the manner in which appellant committed the crimes indicated extreme planning, sophistication, and criminal, deceitful professionalism, (2) M.T. was vulnerable since, at the time, she was 15 years old, (3) appellant, in his frequent communications with M.T., facilitated a sense of trust and confidence, and (4) appellant’s computer sophistication as a criminal predator by using deceit and violence posed an extreme and serious danger to society.

The court found as the sole mitigating factor the fact that appellant lacked a criminal record. The court concluded that each aggravating factor, individually and collectively, outweighed the mitigating factor. The court commented that if an appellate court determined that one or more of the aggravating factors was invalid, the trial court would find a single factor outweighed the mitigating factor.

Appellant’s sentence included life with the possibility of parole, with a minimum parole eligibility term of 15 years for the forcible rape (count 2), a consecutive upper term of eight years for forcible rape (count 3), a consecutive term of one year for the attempted rape (a lesser offense of count 4), and a consecutive term of eight months for false imprisonment by violence or menace (a lesser offense of count 1).

b. Analysis.

Appellant claims the trial court committed Cunningham error when the court imposed the upper term on count 3, and consecutive sentences on his convictions for forcible rape (count 3), attempted rape, and false imprisonment by violence or menace. We conclude otherwise.

Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856].

“In Cunningham [v. California, supra, 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856,]], the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely), concluded that California’s [determinate sentence law] does not comply with a defendant’s right to a jury trial. ‘[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ (Cunningham, supra, 549 U.S. at pp. ___-___ [127 S.Ct. at pp. 863-864].)” (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).)

The Sandoval court later observed, “Apprendi stated, ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ (Apprendi, supra, 530 U.S. at p. 490, italics added.)” (Sandoval, supra, 41 Cal.4th at p. 835.)

In Blakely, the high court concluded that “ ‘the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ ([Blakely, supra, 542 U.S.] at p. 303.)” (Sandoval, supra, 41 Cal.4th p. 836.)

In People v. Black (2007) 41 Cal.4th 799 (Black), our Supreme Court stated: “[W]e agree with the Attorney General’s contention that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.) The court also stated, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)

Black also stated, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black, supra, 41 Cal.4th at p. 816.)

Sandoval concluded that the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]) applies to Cunningham error. (Sandoval, supra, 41 Cal.4th at p. 838.) In applying that standard “we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Ibid., italics added.) “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839, italics added.) We determine this issue in view of the jury’s verdict (id. at p. 841) and in view of “the state of the evidence” (ibid.) actually presented to the jury.

We have recited the pertinent facts concerning the offenses. We conclude any Cunningham error which occurred when the trial court imposed the upper term on count 3, was harmless beyond a reasonable doubt, because the jury unquestionably would have found true, had the issues been submitted to the jury, that M.T. was a particularly vulnerable victim (cf. People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694; Cal. Rules of Court, rule 4.421(a)(3)), appellant took advantage of a position of trust or confidence to commit the offenses (cf. People v. Dancer, supra, at pp. 1694-1695; rule 4.421(a)(11)), and the manner in which the offenses were carried out indicated extreme planning, sophistication, and criminal, deceitful professionalism (cf. People v. Dancer, supra, at pp. 1695-1696; see rule 4.421(a)(8)).

The court did not violate appellant’s right to a jury trial and proof beyond a reasonable doubt when imposing consecutive sentences for appellant’s convictions for forcible rape (count 3) and attempted rape, since those rights are not violated by the imposition of consecutive sentences. (Black, supra, 41 Cal.4th at p. 823.) There is no need to reach this issue as it relates to appellant’s conviction for false imprisonment by violence or menace, since we will stay punishment on that conviction pursuant to Penal Code section 654.

5. Appellant Is Not Entitled to Additional Precommitment Credit.

Appellant was arrested on January 25, 2005, and remained in custody until the court sentenced him on January 12, 2007, a total of 718 days, inclusive. The trial court awarded appellant 830 days of precommitment credit, consisting of 722 days of custody credit pursuant to Penal Code section 2900.5, subdivision (a), and, pursuant to Penal Code sections 2933.1 and 4019, 108 days of conduct credit.

Appellant claims he is entitled to a total of 840 days precommitment credit, consisting of 722 days of custody credit, plus 118 days of conduct credit. We disagree. He is entitled to 825 days of precommitment credit, consisting of 718 days of custody credit and 107 days of conduct credit. (Cf. People v. Ramos (1996) 50 Cal.App.4th 810, 817; People v. Bravo (1990) 219 Cal.App.3d 729, 731; People v. Smith (1989) 211 Cal.App.3d 523, 527.)

DISPOSITION

The judgment is modified by staying execution of sentence on appellant’s conviction for false imprisonment by violence or menace, pending completion of his sentence on his remaining convictions, such stay then to become permanent, and by reducing appellant’s total precommitment credit award to 825 days, consisting of 718 days pursuant to Penal Code section 2900.5, subdivision (a), and 107 days of conduct credit pursuant to Penal Code sections 2933.1, subdivision (c) and 4019. As so modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modifications.

We concur: KLEIN, P. J., ALDRICH, J.


Summaries of

People v. Tsaiyang Su

California Court of Appeals, Second District, Third Division
Jul 25, 2008
No. B196193 (Cal. Ct. App. Jul. 25, 2008)
Case details for

People v. Tsaiyang Su

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RANDY TSAIYANG SU, Defendant and…

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

Date published: Jul 25, 2008

Citations

No. B196193 (Cal. Ct. App. Jul. 25, 2008)