(Super. Ct. No. 08F04720)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In the early morning hours of June 7, 2008, defendant James Washington and an acquaintance, Frank Abella, killed a mentally and physically handicapped man as he sat outside a 7-Eleven store sipping coffee. Tried separately, defendant was convicted of murder (Pen. Code, § 187, subd. (a); further undesignated section references are to the Penal Code), robbery (§ 211), and torture (§ 206). The jury also found defendant used a deadly weapon in connection with the murder and torture (§ 12022, subd. (b)(1)) and the murder occurred during the commission of the robbery (§ 190.2, subd. (a)(17)(A)). Defendant was sentenced for the murder to life without the possibility of parole (LWOP), while sentence on the other offenses was stayed with the exception of a one-year enhancement.
Defendant appeals contending: (1) his pretrial statements to police were admitted in evidence in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda); (2) there is insufficient evidence to support the robbery conviction or the finding that the killing occurred during the commission of a robbery; (3) the trial court erred in refusing to instruct on lesser included offenses to first degree murder; (4) the LWOP sentence amounts to cruel and unusual punishment; and (5) the abstract of judgment incorrectly reflects the term imposed on the torture conviction.
We agree the abstract of judgment must be corrected to reflect the proper term imposed on the torture charge. In all other respects, we affirm the judgment.
During the early morning hours of June 7, 2008, defendant and Abella were hanging out together at an apartment complex in Rancho Cordova where Abella's mother lived. At the time, defendant was dating Abella's sister, E.G, who was also present.
At approximately 2:40 a.m., defendant and Abella walked to a nearby 7-Eleven store. The events that occurred thereafter were captured in large part on surveillance cameras mounted at the 7-Eleven and at an adjacent check-cashing store.
At approximately 2:50 a.m., defendant and Abella left the 7-Eleven and approached 50-year-old William Deer, who was sitting on a curb outside the check-cashing store drinking coffee he had just purchased at the 7-Eleven. Deer was both mentally and physically handicapped due to a motorcycle accident more than 20 years earlier.
Earlier that evening, Deer's mother had dropped him off at a bus stop in Sacramento so he could visit friends in Rancho Cordova. At the time, Deer wore a fanny pack around his waist in which he carried various personal items, including a cell phone charger, a toothbrush, cigarettes, and money. He also carried with him a cell phone. Deer was wearing the fanny pack in the 7-Eleven approximately 30 minutes before he was approached by defendant and Abella.
What transpired during the initial encounter with Deer is not altogether clear. However, what is clear is that, at some point, defendant and Abella beat, kicked and stomped on Deer and then ran from the scene.
Approximately 30 minutes later, defendant returned to the area with E.G. By that time, defendant had changed his shirt. The two approached Deer, who was still lying where defendant and Abella had left him following the beating. E.G. could see that Deer was hurt but he was still alive. Defendant and E.G. departed.
Seven minutes later, defendant and Abella returned to where they had left Deer. Less than a minute later, they again ran from the scene.
Defendant and Abella returned a third time approximately 30 minutes later, this time with a BB gun. They shot Deer 19 times in the face and abdomen and then fled the scene.
Police were eventually dispatched to the 7-Eleven and found Deer still alive. They did not find a fanny pack or cell phone in the area; nor did they find any identification for the victim. Deer was taken to the hospital, where he later died. The cause of death was determined to be multiple blunt force head injuries plus multiple BB pellet injuries.
Five days later, defendant and Abella were arrested. They were charged with murder, robbery and torture and were tried separately. Defendant was ultimately convicted and sentenced as previously indicated.
The People request that we augment the record to include copies of exhibits relied upon by the trial court in ruling on defendant's motion to suppress and certain items of evidence presented at trial. We deny the request. The indicated items are unnecessary for our determination of the issues presented in this appeal.
Admission of Defendant's Pretrial Statements
Defendant was arrested on June 12, 2008, and participated in a taped interview with Detective Stanley Swisher without the assistance of counsel. During the interview, defendant admitted he and Abella beat the victim and took his fanny pack. However, defendant placed most of the blame on Abella.
Defendant filed a motion to suppress the taped interview, arguing he has limited intelligence and did not understand the Miranda warnings read to him at the beginning. The court denied the motion but later ordered portions of the interview redacted. The remaining portions of the interview were thereafter played to the jury.
Defendant contends the trial court erred in denying his suppression motion. He argues the Miranda rights read to him "were both confused and confusing." Defendant further asserts he never acknowledged he understood his right to remain silent and his acknowledgement that he had the right to counsel was more a willingness to agree to the assertions of the detective than an understanding of his rights. Defendant argues "his cognitive abilities were insufficient to permit him to understand and waive his Miranda rights." Defendant presented expert evidence that his mental capacity was in the mildly retarded range and that heavy drug and alcohol use during his adolescence "may have caused a brain impairment."
The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." This privilege protects an accused from being compelled to testify against himself or to provide evidence of a testimonial or communicative nature. (Schmerber v. California (1966) 384 U.S. 757, 761 [16 L.Ed.2d 908, 914].) In recognition of this Fifth Amendment protection, Miranda prohibits custodial interrogation unless the suspect "knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent." (People v. Sims (1993) 5 Cal.4th 405, 440.)
A Miranda waiver must be knowing, intelligent and voluntary. (Colorado v. Spring (1987) 479 U.S. 564, 573 [93 L.Ed.2d 954, 965].) There are two distinct dimensions to this requirement: " ‛[F]irst the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of ...