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The People v. Rachael Anne Porteous

March 18, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RACHAEL ANNE PORTEOUS, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. CM029144, CM029772)

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

P. v. Porteous

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In Case No. CM029144, defendant Rachael Anne Porteous entered a negotiated plea of no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a)). (Further undesignated section references are to the Penal Code.)

In Case No. CM029772, a jury convicted defendant of first degree murder (§ 187) and found she used a deadly weapon in the commission of the offense (§ 12022, subd. (b)(1)). The trial court thereafter found defendant committed the murder while released on bail (§ 12022.1) and suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). In a separate trial, the jury found defendant sane at the time of the offense.

Defendant was sentenced on the assault conviction to the upper term of four years. For the murder, defendant received an indeterminate term of 25 years to life, doubled to 50 years to life under the three strikes law, plus aggregate enhancements of eight years.

She appeals contending, in case No. CM029772: (1) the trial court erred in denying her motion to suppress statements made to police following her arrest that were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda); (2) the court improperly diluted the meaning of "deliberation" in clarifying the jury instruction on first degree murder; (3) the court improperly admitted testimony in the sanity trial regarding statements she made to a psychologist after her arrest that were both involuntary and elicited in violation of Miranda; (4) the jury was not properly instructed on the legal standard for insanity; and (5) the victim restitution order is ambiguous and must be clarified. In case No. CM029144, defendant contends (6) certain fines and fees imposed by the court are improper.

The People concede points (5) and (6) and agree the abstracts of judgment must be amended.

We agree with defendant that the trial court improperly diluted the meaning of "deliberation" in case No. CM029772, for purposes of first degree murder. And because we find such error was not harmless under the circumstances, we shall reverse defendant's first degree murder conviction. As for the sanity verdict, we find any possible evidentiary or instructional errors were harmless under the circumstances.

FACTS AND PROCEEDINGS

Case No. CM029144

On July 10, 2008, defendant was under the influence of methamphetamine and arrived at a home on B Street in Oroville. During an altercation between defendant and another person, defendant got in her car, accelerated it toward the other person, and hit the person and his car with her car.

Case No. CM029772

On the evening of October 20, 2008, defendant arrived at the home of her mother, Theresa S. Residing with Theresa at the time were her daughter and defendant's sister, Alicia S., Alicia's boyfriend, Bryan H., and three of defendant's children, including J.G.

At approximately 10:00 p.m. that evening, Alicia and Bryan went to bed. At or around 11:50 p.m., J.G. departed for work. At the time, defendant was in the living room of the residence and Theresa was in her bedroom upstairs.

At approximately 2:00 a.m. the next morning, Alicia and Bryan got up to use the bathroom. Alicia saw lights coming from upstairs and went to investigate. She found defendant in Theresa's bedroom walking around the bed. She also saw blood on the bed. Alicia grabbed defendant, shook her and asked what she had done. Defendant said she did not do anything. Alicia then saw Theresa lying on the floor half in and half out of a closet with blood on her.

Alicia screamed and ran to her mother. Theresa was still alive and told Alicia to get defendant out of the room and that defendant was trying to kill her. Bryan, who had come to the room in response to Alicia's scream, called 911 and gave the phone to Alicia. Alicia spoke to the operator and then she and Bryan forced defendant out of the room. During the 911 call, defendant could be heard saying, "Mom you know, I didn't do that."

Theresa had received 10 stab wounds, nine on her back and one on her neck. One of the back wounds penetrated Theresa's chest wall, fractured a rib and entered her lung. She later died from loss of blood due to the stab wounds.

Responding officers found a wooden sword with blood on it against the wall in the closet of Theresa's bedroom. Theresa told the officers her daughter had stabbed her. The sword was one of several owned by J.G., who used them for martial arts training. J.G. had previously shown defendant how to use them.

At approximately 5:00 a.m. the morning of the killing, the police found defendant nearby. She had a "vacant" look and appeared to be "spaced out." Defendant was taken to the police station, read her Miranda rights and interviewed. During the interview, defendant admitted stabbing her mother, explaining that she "had to." Defendant said she was tired of seeing her mother in pain. Defendant also said she had been thinking about killing her mother for days.

Defendant was charged with first degree murder and entered pleas of not guilty and not guilty by reason of insanity. Trial was bifurcated and, in the guilt phase, the jury returned a verdict of guilty. Following a sanity trial, the jury found defendant sane at the time of the offense. Defendant was thereafter sentenced as previously indicated.

DISCUSSION

I

Motion to Suppress Defendant's Statements to Police

Defendant contends the trial court erred in denying her motion to suppress statements she made to police in an interview following her arrest. She argues the statements were obtained without a knowing and voluntary waiver of her Miranda rights and after she invoked her right to remain silent.

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 an 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: " ‛First 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" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.' " (Ibid., quoting Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410, 421].)

Where a defendant challenges her statements as coerced, we view the totality of the circumstances surrounding the statements to determine independently whether the prosecution has met its burden and proved that the statements were voluntary. (Arizona v. Fulminate (1991) 499 U.S. 279, 285-286 [113 L.Ed.2d 302, 315]; People v. Thompson (1990) 50 Cal.3d 134, 166, disapproved on other grounds as stated in Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829.) In making that determination, we consider factors such as the length of the interrogation, its location, its continuity, and the defendant's sophistication, education, physical condition and emotional state. (People v. Williams (1997) 16 Cal.4th 635, 660; In re Shawn D. (1993) 20 Cal.App.4th 200, 209.) "[A]ny factual findings by the trial court as to the circumstances surrounding an admission or confession, including ' "the characteristics of the accused and the details of the interrogation" [citation],' are subject to review under the deferential substantial evidence standard. [Citation.]" (Williams, at p. 660.)

Defendant was arrested on the morning of the offense and was interviewed at the police station by Detective Jason Barkley at approximately 6:13 a.m. The police attempted to create a video recording of the interview, but this failed due to technical difficulties. Barkley himself recorded the first part of the interview, which included his explanation to defendant of her Miranda rights. That recording is in the appellate record. The People have provided the following transcription of the relevant portion of that recording, which defendant does not contest:

"[Barkley]: Okay. How about I read you your rights and you tell me if you understand those?

"[Appellant]: Okay.

"[Barkley]: Okay. You have the right to remain silent. Anything you say may be used against you in court. Do you understand that?

"[Appellant]: Like I can be in trouble?

"[Barkley]: Well what it means is that, um, you don't necessarily have to talk to me. That um, but if you do choose to talk to me it could--it could what you say, it could go to court.

"[Appellant]: (Unintelligible).

"[Barkley]: Does that make sense?

"[Appellant]: Yeah.

"[Barkley]: You sure?

"[Appellant]: Mm-hmm.

"[Barkley]: Huh?

"[Appellant]: I understand.

"[Barkley]: Okay. Um, is there any part of the . . .

"(Unintelligible).

"[Barkley]: Well we're going to talk about that. Um, can you--can you tell me back what--what I just said? Um . . .

"[Appellant]: I have the right to remain silent.

"[Barkley]: Okay. What does that mean to you?

"[Appellant]: (Unintelligible).

"[Barkley]: Okay. And if you do ...


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