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The People v. Reachhetra Pheng

December 28, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
REACHHETRA PHENG, DEFENDANT AND APPELLANT.



(Super. Ct. No. SF095149A)

The opinion of the court was delivered by: Hull, J.

P. v. Pheng

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Reachhetra Pheng of the second degree murder of Nath Sok, a lesser included offense of murder, and found, as a special circumstance, that he committed the offense while an active member of a criminal street gang, and that a principal discharged a firearm causing great bodily injury or death. The jury convicted defendant of assault with a firearm, a lesser to the charged offense of shooting from a motor vehicle, and found that he personally used a firearm. The jury also convicted defendant of negligent discharge of a firearm, a lesser to the charged offense of shooting at an inhabited dwelling. The jury found that the foregoing offenses were committed for the benefit of a criminal street gang. The jury convicted defendant of conspiracy to commit murder and street terrorism. The jury acquitted defendant of the attempted murder of Savoeun Yin and shooting from a vehicle at Yin.

Sentenced to state prison for 40 years to life, defendant appeals. He contends (1) the trial court erroneously denied his motion to exclude his admissions and confession, (2) he was denied due process in being tried as an adult rather than as a juvenile, and (3) the abstract of judgment requires correction to reflect custody credits toward his indeterminate term and to delete an administrative surcharge not orally imposed by the trial court. The People concede the abstract of judgment requires correction. We will accept the concession. We reject defendant's other contentions.

FACTS AND PROCEEDINGS

On February 21, 2005, the 15-year-old defendant, a validated member of the Tiny Rascal Gang (TRG), a Southeast Asian street gang in Stockton, and other TRG members were in two vehicles, a van and a car, cruising and looking for an enemy. They drove past Nath Sok who was riding his bicycle near Astor and Bedlow Drives, territory of a rival gang the Asian Street Walkers (ASW). Sok was a documented Loc Town Crips gang member and an associate of ASW. Defendant and his cohorts made a U-turn. Someone in the van spoke to Sok who responded. Eight or nine TRG members, including defendant, got out of their vehicles and approached Sok. Defendant, armed with a .40 caliber Glock, fired several shots. Four shots hit Sok, two of which were fatal. Bullets also hit a house, entering the bedroom. The TRG members calmly got into their cars and drove off.

Defendant testified at trial and claimed that he had been in the van and that someone else, not him, shot Sok. Defendant claimed he was not armed, did not fire a weapon, and did not know that anyone was going to be shot.

DISCUSSION

I

Defendant's Statements to Law Enforcement Officers

Defendant first contends that the trial court erroneously denied his motion to exclude his statements to law enforcement. He claims his statements were obtained in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) and were involuntary. We reject defendant's contention.

Miranda held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (Miranda, supra, 384 U.S. at p. 444 [16 L.Ed.2d at p. 706]; People v. Sims (1993) 5 Cal.4th 405, 440.) The suspect must be given warnings that he has the right to remain silent, that anything he says can be used against him, and that he has the right to counsel. (Miranda, supra, 384 U.S. at pp. 444-445 [16 L.Ed.2d at pp. 706-707].)

In determining the validity of a waiver of Fifth Amendment rights as set forth in Miranda, we consider whether the waiver was voluntary, that is, "'the product of a free and deliberate choice rather than intimidation, coercion, or deception,'" and whether the defendant waived his or her rights knowing the nature of his rights and the consequences of waiving the same. (People v. Whitson (1998) 17 Cal.4th 229, 247 (Whitson).) In making this determination, we consider the totality of the circumstances, which includes the defendant's background, experience, and conduct. (Id. at p. 246.) In reviewing the trial court's determination on a Miranda claim, we accept the trial court's findings of fact and credibility determinations which are supported by substantial evidence. Based on those findings, determinations and the undisputed facts, we independently determine whether the defendant's statements were obtained in violation of Miranda. (Whitson, at p. 248.)

A defendant's statements may not be introduced at trial unless the prosecution proves by a preponderance of the evidence that the statements were voluntary. (People v. Williams (1997) 16 Cal.4th 635, 659.) A statement which is the product of police coercion is involuntary. (Ibid.) On appeal, we review the trial court's factual findings on the circumstances of the interrogation under the deferential substantial evidence standard but independently review the trial court's conclusion on the ultimate issue of voluntariness. (Id. at pp. 659-660.)

Prior to trial, defendant filed a motion in limine. Subject to a hearing on admissibility, he made a nonspecific motion to exclude his statements to law enforcement, citing Miranda and the due process clauses of the federal and state constitutions. At the hearing on his motion, defense counsel argued that defendant did not expressly waive his rights under Miranda, his waiver was affected by the fact that he was an unsophisticated minor without the presence of either his parents or his attorney, and that his statements were induced by the detective's threat to put him in jail rather than juvenile hall.

With respect to the threat of jail, the prosecutor claimed that defense counsel's argument was based on his assumption that defendant's associate to whom the detective had referred was in jail. The prosecutor stated that defendant's associate was in juvenile hall. The prosecutor disputed that the minor was inexperienced, noting his street smarts and gang involvement.

The court denied defendant's motion to exclude, finding the Miranda warnings had been given and there was an implied waiver. The court also commented that there was a difference between "street smarts and sophistication," a 15-year-old's cognitive judgment versus that of an adult's. The court did not find "sufficient issues to override any voluntariness."

We have reviewed the written transcript and the recordings of defendant's interview with law enforcement officers. We conclude that defendant's statements were not obtained in violation ...


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