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The People v. Reachhetra Pheng

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 of Miranda and that his statements were voluntary.

About 8:00 p.m. on February 23, 2005, defendant and several others were stopped for a traffic violation. They were taken to the police department for interviews. Defendant's interview began at 4:33 a.m. on February 24, 2005. Detectives Reyes and Seraypheap entered the room and introduced themselves to defendant. Detective Seraypheap obtained the correct spelling of defendant's name, his birthday, address, telephone number, school (One Ethics), and grade (freshman). The following discourse took place thereafter:

"Det. Seraypheap: Yeah. Hey I want to talk to you about the reason why you were brought here. I talked to your girlfriend, I talked to .

"[Defendant]: Yeah.

"Det. Seraypheap: Everybody involved in this thing okay and uh, because you are [a] juvenile I call[ed] your mom and your dad.

"[Defendant]: Uh huh.

"Det. Seraypheap: Okay for let [sic] them know where you are at and all that. Took care of that and before I begin talking to you because you're a juvenile I have to read you your rights.

"[Defendant]: Alright.

"Det. Seraypheap: Okay, cuz you're not eighteen, you're not an adult that's reasonable okay. 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 and have him or her present with you while you are being questioned. If you cannot afford a lawyer one will be appointed to represent you before any questioning if you wish. Do you understand each of these right[s] explained to you?

"[Defendant]: Yeah. Yeah."

Defendant thereafter answered questions.

An express waiver of Miranda is not required. An implied waiver may be found by the defendant's willingness to answer questions after confirming that he understands his rights under Miranda. (North Carolina v. Butler (1979) 441 U.S. 369, 373 [60 L.Ed.2d 286, 292]; People v. Cruz (2008) 44 Cal.4th 636, 667; Whitson, supra, 17 Cal.4th at pp. 247-248.)

Here, the trial court found an implied waiver. We agree. Detective Seraypheap advised defendant of his rights under Miranda. Defendant confirmed that he understood his rights. Thereafter, defendant spoke to the officers about the shootings. During the entire interview, he never invoked his right to remain silent. He never asked the detectives for the presence of an attorney. Further, nothing suggests that any of his statements were other than voluntary. Although defendant was only 15 years of age, he told the officer that he had been arrested for stealing, that he had been a gang member for two years, and that he was a freshman in high school. The officers were interviewing several people who had been arrested after a traffic stop the night before. Defendant's interview began at 4:33 a.m. and ended at 1:11 p.m. during which there had been several breaks and defendant had been given food to eat.

Defendant contends for the first time on appeal that he was tricked into believing a recitation of his rights was just a formality. He claims Detective Seraypheap "deliberately downplayed the relevance of the warnings, lying to [defendant] and suggesting that the warnings were just a formality he had to go through" because defendant was a juvenile.

As the People respond, defendant did not raise this point in the trial court. Generally, on questions relating to the admissibility of evidence, a timely and specific objection on the ground sought to be raised on appeal is required. (People v. Alvarez (1996) 14 Cal.4th 155, 186.) Here, the trial court was never called upon to make a specific finding of fact on whether defendant was tricked into waiving his rights under Miranda. Defendant has forfeited this claim.

In any event, we reject this claim. Defendant and several others had been arrested and taken to the police department where he sat in an interview room. When the detective advised defendant of his rights, the detective stated that he had contacted defendant's parents because he was in custody. The brief statement that the detective was advising defendant of his rights because he was a juvenile never described the Miranda warnings as a mere formality or a technicality or anything else which would convey to defendant that the warnings were not important. (See People v. Musselwhite (1998) 17 Cal.4th 1216, 1237-1238.) Further, during the interview, defendant was likely aware that he was a suspect in the shootings because he referred to the "JC and Bedlow" shootings before the detective did. "JC" referred to the Jill Circle shooting of Savoeun Yin; "Bedlow" referred to Astor and Bedlow Drives shooting of Nath Sok. Defendant was taking the interview seriously as evidenced by the fact that he told several lies at the beginning of the interview about not even being present at the shootings.

Defendant also contends for the first time on appeal that his statement was not voluntary because Detective Seraypheap had threatened him with first degree murder if he failed to admit certain facts and made implied promises of leniency if he admitted certain facts.

As with the previous claim, defendant did not raise this particular point in the trial court and it is thus forfeited. In any event, we reject his claim.

Early in the interview, defendant professed ignorance as to why he and the others had been pulled over. The detective informed defendant that he and the others "were involved in a shooting." Defendant denied being involved. The detective said that defendant was "not being a man." Defendant stated, "Okay, what shooting? Oh you talking about the JC and Bedlow shooting." The detective responded affirmatively. Defendant denied being present and denied being involved. The detective did not believe defendant saying, "Try again." Defendant said, "Try again okay um, let me see I was not there. I went home right after I seen my girlfriend after the party that day and that's it. I went home after that party." The detective informed defendant that "no matter what happen[s] tonight . . . . [¶] You're going to be charged with first degree murder you know that right?" Defendant again denied being present. The following discourse ensued:

"Det. Seraypheap: What, what, what I just tell you is going to happen to you after we're done talking.

"[Defendant]: Be honest yeah.

"Det. Seraypheap: What's going, what's going to happen to you after we're done talking.

"[Defendant]: You said you're going to charge me with, with first-degree murder.

"Det. Seraypheap: That's right unless you speak up.

"[Defendant]: I am speaking up.

"Det. Seraypheap: Not yet. Okay you can sit here and deny it all you want okay your other, your other friends did exact same thing alright."

Defendant repeatedly denied any involvement.

Detective Seraypheap went over some names with defendant. The detective then told defendant about another shooting case in which Ratanak Kak and Mao Hin had been involved but were not charged with murder because they admitted being in the car but claimed they did not know Sarun Chun would shoot out of the car at a person on the corner of the street. The detective then stated that defendant's friends who had been interviewed about the shootings at hand had stated defendant was present and one had said defendant was the shooter and another said defendant was not. The detective asked defendant whether he was the shooter saying, "don't tell me you were not inside the car okay cuz you're just hurting yourself." Defendant asked for "one more chance to come out clean . . . ." Defendant then admitted that he was present in the car, but that he did not shoot. Defendant also stated that he was scared. The detective then told defendant that Hin and Kak were charged with first degree murder and that they faced the death penalty, adding that he was not implying that that would happen to defendant. Defendant reiterated that he had been in the car and gave details about others and the shootings but denied having a gun. During this part of the interview, Detective Seraypheap informed defendant that one of his friends had put a .380 gun in defendant's hand and that one of the bullets that killed the victim came from a .380.

Later, after at least three breaks and being confronted with accusations from others that defendant was more involved than he had admitted, defendant admitted that he fired two shots from a Glock towards the victim. Defendant made this admission after the detective stated that it was a .380 that killed the victim.

The record does not support defendant's claim that he believed he would avoid first degree murder charges by admitting certain facts. The detective's statement that defendant would be charged with first degree murder unless he spoke up could not, standing alone, reasonably have been taken by defendant as a promise of leniency. The detective's example of Hin, Kak and Chun, who were involved in various degrees in another shooting, was intertwined with the detective's statements to defendant that accusations of other suspects had placed defendant at the scene of the shooting and one suspect accused defendant of being the shooter. Rather than the detective's statement about the other shooting case, the accusations from defendant's friends apparently prompted him to admit his presence and continue to deny his role as the shooter. The detective's statements about the .380 being the gun that killed the victim apparently prompted defendant to admit that he shot the Glock, not the .380. There is no indication that the detective's now-challenged statements, which were not further explored, motivated defendant to confess. (See People v. Carrington (2009) 47 Cal.4th 145, 170-171; People v. Holloway (2004) 33 Cal.4th 96, 115-116.)

In support of his claim that the totality of the circumstances demonstrate that his confession was not voluntary, defendant cites Haley v. Ohio (1948) 332 U.S. 596 [92 L.Ed. 224] (Haley), and the findings of several studies concerning the percentage of minors who understand their rights. Defendant claims that he was a juvenile who was psychologically coerced into confessing. We disagree.

Haley found that a 15-year-old's confession after questioning from midnight to 5:00 a.m. by five or six officers working in relays was not voluntary. He was not advised of his right to remain silent or the right to an attorney until after he confessed. After his confession, he was not allowed to see an attorney for three days and his mother for five days. (Haley, supra, 332 U.S. at pp. 597-601 [92 L.Ed. at pp. 227-229].)

The cited studies do not lend support to defendant's claim that he did not understand his rights and Haley is distinguishable. Here defendant was read his Miranda rights before questioning. Defendant's questioning was video taped. There is no evidence that defendant was not allowed to see his mother or an attorney after he confessed. We have reviewed the recordings and reject defendant's interpretation of Detective Seraypheap's interview technique as being psychologically coercive.

We also reject defendant's claim that his repeated requests to call his mother indicated that he intended to invoke his right to remain silent. Again, defendant's failure to raise this issue below forfeits review on appeal.

In any event, we reject defendant's argument that Detective Seraypheap "deliberate[ly] refuse[ed] to let [defendant] call his mother."

The record reflects that the minor asked to call his mother four times. At 5:30 a.m., the detectives left the interview room. At 7:42 a.m., defendant knocked on the door. When an unidentified officer answered, defendant asked to sit outside the room. The unidentified officer responded that there was nowhere for him to sit outside the room. Defendant also asked to call his mother. The officer believed that the detective had called defendant's mother but would try to get defendant a phone. Defendant asked again to sit outside the room. The officer said that it could not be done. Defendant had asked to sit outside the room at 6:12 a.m., 7:19 a.m., and 7:33, claiming he did not "feel right." At 8:06 a.m., defendant made his second request to call his mother. At 8:10, he wanted to sit outside the room. At 8:11 a.m., he asked for the third time to call his mother. He was told he could call her when he got to juvenile hall. At 9:48 a.m., he asked to sit outside the room but was told no. And at 10:16 a.m., he made his fourth request to call his mother. All requests occurred when defendant was alone in the room. He was upset about being in the room alone. He wanted to get out of the room and sit in a chair next to the door of the interrogation room. At 10:28 a.m., Detective Seraypheap returned to the room. Defendant did not ask to call his mother. After talking to defendant about the bogus names he had given, the detective referred to defendant's mother, but defendant did not ask to talk to her (10:37 a.m.). When the detective left, defendant wanted to call Jason (10:38 a.m.). Defendant identified Jason as someone who would know the real names of the other men in the van and car (10:33-10:35 a.m.). Defendant later stated that Jason "keep[s] in touch with a lot of the homies." Defendant later also asked to call, not his mother, but instead "50," presumably a gang member.

Although defendant asked an unidentified officer four separate times whether he could call his mother, when Detective Seraypheap stepped back into the interview room, defendant did not ask the detective whether he could make a call to his mother. In context, defendant's requests to the unidentified officer were tied to his requests to leave the interview room and sit in the hallway or someplace other than the interview room.

Based on the totality of the circumstances (People v. Hector (2000) 83 Cal.App.4th 228, 230), we construe defendant's requests to call his mother as an attempt to get out of the interrogation room and did not indicate defendant intended to invoke his right to remain silent.

We conclude that no Miranda violation occurred and that defendant's statements were otherwise voluntary.

II

Welfare and Institutions Code Section 707

Defendant contends that Welfare and Institutions Code section 707, subdivision (d)(2)(A), which authorizes prosecution of a juvenile in adult court for certain offenses including murder, violates his due process rights. He acknowledges that his argument has been rejected but raises the issue to preserve it for further review. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 562-567 (Manduley).) Bound by Manduley (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we reject defendant's claim.

III

The Abstract of Judgment

Finally, defendant contends that the abstract of judgment requires correction to reflect 545 actual days of custody credit the trial court awarded. The abstract for the determinate term which was stayed reflects the credit while the abstract for the indeterminate term fails to reflect the credit. The People concede. We accept the concession.

Defendant also argues the abstract reflects an administrative surcharge which the trial court did not orally impose. The People concede that the surcharge must be stricken from the abstract. We accept this concession as well.

Finally, we note that the recent amendments to Penal Code section 4019 do not apply to defendant because he was convicted in this case of violent and serious felonies. (Pen. Code, §§ 1192.7, subd. (c)(1), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment for the indeterminate term which reflects 545 actual days of presentence custody credit and to strike reference to the administrative surcharge. The trial court is directed to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

We concur: BLEASE, Acting P. J. BUTZ, J.

20101228

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