APPEAL from a judgment of the Superior Court of Sacramento County, Cheryl Chun Meegan, Judge. (Super. Ct. No. 07F11789)
The opinion of the court was delivered by: Butz , Acting P. J.
opinion on remand Reposted 12/10/12 to provide correct docket number on page 1 in the caption; there are no changes to opinion text CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part and reversed in part.
A jury convicted defendant Jimmy Siackasorn of first degree special-circumstance murder. Pursuant to Penal Code section 190.5, subdivision (b) (section 190.5(b)),*fn2 the trial judge sentenced defendant, who was 16 years old at the time of the offense, to life without the possibility of parole (LWOP). In a previous opinion, we affirmed.*fn3
After we filed our opinion, the United States Supreme Court decided Miller, supra, 567 U.S. ___ [183 L.Ed.2d 407]. Miller held that the federal Constitution's Eighth Amendment ban on "cruel and unusual punishment" prohibits mandatory LWOP sentences for those under the age of 18 at the time of their offenses. (Miller, at p. ___ [183 L.Ed.2d at pp. 414-415]) In light of Miller, our state Supreme Court granted review and transferred this matter to us to reconsider our decision.
We have now reconsidered. We affirm the judgment of conviction, by readopting our prior nonpublished opinion. However, in the new, published part VII. of this opinion, we reverse the judgment of sentence; we remand for the trial court to resentence defendant in light of Miller and, as we shall explain, without considering an LWOP sentence as the presumptive sentencing choice. (See Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 709, fn. 12; Cal. Rules of Court, rule 8.528(c) [if the state Supreme Court grants review on limited issues, the remaining issues will be decided by the original Court of Appeal opinion, or upon subsequent action by the Court of Appeal as directed by the Supreme Court].)
Although section 190.5(b) does not mandate an LWOP sentence, it has been interpreted, in California appellate court decisions issued before Miller, as making LWOP the "generally mandatory," "presumptive" penalty choice (as opposed to 25 years to life). We do not believe such a presumptive punishment constitutionally squares with Miller. As we see it, in light of Miller, section 190.5(b) provides a sentencing judge with equal discretion to impose a sentence of LWOP or a sentence of 25 years to life; neither sentence being the preferred one.
A jury convicted defendant, who was tried as an adult, of first degree murder of a police officer. (§ 187, subd. (a).) The jury found true allegations that defendant intentionally and knowingly killed the officer while the officer was performing his duties, and that defendant intentionally and personally discharged a firearm causing the death. (§ 190.2, subd. (a)(7), former § 12022.53, subd. (d).) The jury found not true an allegation that the murder was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
Defendant committed the offense about five weeks shy of his 17th birthday. Sentenced to a prison term of LWOP, plus a consecutive sentence of 25 years to life for the firearm finding, defendant appeals. He raises evidentiary admissibility and sufficiency issues--and an instructional contention--regarding the first degree murder elements of premeditation and deliberation. He also claims his sentence is unconstitutionally cruel and unusual because an LWOP sentence for a juvenile is categorically prohibited under the Eighth Amendment. Finally, he asks that we review the sealed record of his Pitchess*fn4 motion concerning any discoverable information in the slain officer's personnel file.
In light of the Supreme Court's remand, the parties have filed supplemental letter briefs. As alluded to above, we reject defendant's contentions and shall affirm the judgment of conviction. However, we reverse the judgment of sentence and remand for the trial court to resentence defendant in light of Miller and without considering an LWOP sentence as the presumptive sentencing choice.
Defendant concedes that he shot and killed Deputy Sheriff Vu Nguyen on the afternoon of December 19, 2007. Aside from the constitutionality of defendant's sentence, the basic issues on appeal involve the evidence of (1) defendant's premeditation and deliberation, and (2) his knowledge that Nguyen was a police officer.
On that December afternoon, Detective Nguyen and his partner in the Sacramento County Sheriff's Gang Suppression Unit, Detective Ed Yee, were ascertaining gang information while traveling in an unmarked, but well-known gang unit car (silver Nissan Maxima), when they noticed a young Asian male in front of Lucky Chanthalangsy's (Lucky) house, a known hangout for the Tiny Raskal Gang (TRG). The officers decided to contact the person.*fn6
When the officers and the person spotted one another, the person started to walk away from them, and eventually sprinted away after Detective Yee drove into an oncoming traffic lane in pursuit. Detective Nguyen jumped out of the vehicle and chased the person on foot near Lucky's house, while Detective Yee continued the pursuit in the car.
Detective Yee saw Detective Nguyen jump a backyard fence and then lost contact with him. During this pursuit, Yee heard faint sounds, which he later concluded had been gunshots.
After not receiving a response from Detective Nguyen, Detective Yee got out of the car and climbed over some fences and onto a chicken coop, where he found Nguyen lying on his back. Nguyen had been shot three times--in the neck, in the abdomen, and in the lower back. All three injuries were potentially fatal. Nguyen's finger was on the trigger of his gun, but the gun had not been fired.
Lucky's father witnessed the foot chase and the shooting. He had told law enforcement that the victim did not have time to get his gun before being shot, but at trial he stated that it looked like the victim was reaching for his gun when a shot sounded and the victim fell down.
Defendant ran up to a couple after the shooting and asked them, without success, if they would give him a ride to the light rail station because he "just shot a cop."
Evidence involving defendant's state of mind and knowledge also included the following. It was commonly known in the area in which defendant was spotted that gang-unit police personnel drove silver or gray Nissan Maximas; this personnel was commonly referred to by gang members as "task force" or simply "task"; and defendant admitted that he was a TRG member. It was clear to Detective Yee that the person he pursued on the afternoon of the shooting had recognized Yee's car as a law enforcement vehicle. Shortly after the shooting, defendant told his cousin (a TRG member) that he had "bust[ed] on task," meaning he had shot a cop; defendant told another TRG member that he had shot a cop. On the day of the shooting, defendant had an outstanding warrant. There was evidence that Detective Nguyen, at the time of the shooting, had his police badge on a chain around his neck.
Additional evidence involving defendant's state of mind and knowledge included (1) incriminating statements that defendant made to a police photographer following a post-shooting police interview; (2) defendant's prior misconduct and accompanying threats to probation officers and to custodial staff while in juvenile custody; and (3) expert and lay opinion testimony on the TRG mindset concerning police officers. Since defendant claims the trial court erroneously admitted these three items of evidence, we will discuss them in detail when we discuss these issues.
I. The Trial Court Properly Admitted Certain Statements That Defendant Made to a Police Photographer*fn7
On December 20, 2007, at around 2:10 a.m., after being arrested around midnight and left alone shackled to an interview table at the police station for about 50 minutes, defendant was interviewed by Detective Clark*fn8 and Detective Stanley Swisher. The interview was recorded and transcribed.
Defendant was read and confirmed he understood his Miranda*fn9 rights, and expressed his willingness to talk.
Detectives Clark and Swisher continued to interrogate defendant until 3:53 a.m. Toward the end of that phase of the interrogation, defendant stated twice within a short period of time that he did not want to talk any more.
At this point, Detective Swisher said "okay" and the detectives left the interview room, but just two minutes later, they returned and resumed the questioning. Shortly thereafter, defendant confessed.
Detectives Clark and Swisher concluded the interrogation at about 4:10 a.m., leaving the room after telling defendant that someone would be coming in to take pictures of him.
About three minutes later, a police photographer, Deputy Sam Bates, entered the interview room with Detective John Linke (who had not participated in defendant's questioning, and who was not involved in the photographing or in eliciting any statements from defendant during the photographing).
As the police photographer asked defendant to position himself for a photograph, defendant blurted out, "That cop deserved it though." The photographer responded, "Excuse me?" and defendant repeated his statement. The photographer told defendant that he would be best served to say nothing. Defendant replied, "What are you going to beat my ass or something?" After more positioning and photographs, defendant added, "Lucky I didn't see you on the street. Would have shot your ass, too."
Not long thereafter, as the photographing proceeded, defendant stated, "Oh, that's the same cop that beat up the homie before anyways so he--he deserve what he got." Defendant also boasted of the violent acts he would commit while incarcerated.*fn10
After these statements, Detective Swisher, one of the two detectives who had previously questioned defendant, returned to the interview room and again questioned defendant. The trial court also excluded these questions and answers.
Defendant contends that his statements to the police photographer that were admitted into evidence were both involuntary and the tainted product of his coerced confession, and thus should have been suppressed. We disagree.
Because defendant's statements to the photographer were admitted for all purposes in the prosecution's case-in-chief, the statements must have been voluntarily made and not obtained in violation of Miranda. (See Harris v. New York (1971) 401 U.S. 222, 223-225 [28 L.Ed.2d 1, 3-5].)
We determine the legal issue of the voluntariness of a statement or a Miranda violation independently of the trial court, based on all the supported surrounding circumstances found by the trial court. (People v. Davis (2009) 46 Cal.4th 539, 586; see Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226 [36 L.Ed.2d 854, 862].) At trial, the prosecution is required to prove voluntariness and compliance with Miranda by a preponderance of the evidence. (People v. Markham (1989) 49 Cal.3d 63, 67, ...