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People v. Rascon

California Court of Appeals, Second District, First Division

April 3, 2017

THE PEOPLE, Plaintiff and Respondent,
ALICE RASCON, Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA133796 Raul Anthony Sahagun, Judge. Affirmed as modified.

          Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Jason Tran, and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.

          ROTHSCHILD, P. J.

         Alice Rascon appeals from the judgment entered on her convictions for drug, firearm, and ammunition possession. She contends the trial court admitted a confession taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) in that the police interrogated her in a way calculated to undermine her ability to make a free and rational choice about speaking. Rascon also contends insufficient evidence supported two firearm enhancements, and a sentence on one count should have been stayed because it constituted multiple punishment for a single act. She further contends that she is entitled to have her sentence for felony possession for sale of marijuana reduced to a misdemeanor. We agree that sentence on one of the counts should have been stayed, and otherwise affirm.


         On April 11, 2012, Los Angeles County Sheriff's deputies executed a search warrant at Rascon's residence in Whittier. They found Rascon in the kitchen, informed her that she was the suspect named in the warrant, and detained her in a patrol car. While Rascon was seated in the car, Detective William Campbell asked her what bedroom she lived in and she said the north bedroom. Detective Campbell then asked if she had anything illegal in the house. Rascon responded “yes.”

         Detective Campbell then left Rascon alone in the patrol car and participated in the search. The search recovered five bags of methamphetamines and 11 bags of marijuana from an unlocked safe in a closet, as well as numerous unused plastic baggies and three digital scales from the closet. The deputies also found ammunition and two operable, loaded handguns in an unlocked desk drawer in an office in the house. The office also contained a monitor displaying a live video feed from two exterior cameras surveilling the front approach to the house. Mail addressed to Rascon was found in the sole bedroom in the house.

         After the search, Detective Campbell returned to Rascon in the patrol car, informed her she was under arrest, and gave her a Miranda advisement. Rascon waived her Miranda rights by signing a preprinted form. In addition to circling answers on the form indicating the waiver, Rascon wrote, “I show[ed] the detectives where the meth was in the closet.”

         Detective Campbell asked Rascon who resided in the house. Rascon replied that she lived there with William Kennedy, her boyfriend. Detective Campbell asked whether she owned the drugs the deputies found. She admitted the drugs belonged to her, and stated Kennedy had nothing to do with them. Rascon refused to reply to a question about the scales and unused baggies, but when asked about a cellular phone found in the house, she said it belonged to her. Finally, when Detective Campbell asked about the guns deputies found, Rascon said, “I showed you where the meth and the handguns were.”

         Rascon was charged with possession of methamphetamines while armed, possession of methamphetamines and marijuana for sale, possession of ammunition, and possession of firearms by a felon, and it was alleged she was personally armed with a firearm while in possession of methamphetamines for sale and had suffered three prior narcotics convictions and served multiple prior prison terms. (Health & Saf. Code, §§ 11359, 11370.1, subd. (a), 11378; Pen. Code, §§ 667.5, subd. (b), 11370.2, subd. (c), 12022, subd. (c), 29800, subd. (a)(1), 30305, subd. (a)(1).)

         A jury convicted Rascon on all counts and found true the allegation that she was armed with a firearm while in possession of methamphetamines. In a bifurcated trial, the trial court found Rascon had suffered prior narcotics convictions, but the court struck the prior prison term allegations without rendering a verdict on them. The court sentenced Rascon to three years in prison for methamphetamine possession plus five consecutive years for the firearm enhancement. The court struck the remaining enhancement allegations. The court imposed concurrent terms for the marijuana and armed methamphetamine possession convictions and imposed and stayed execution of sentence for the ammunition and felon/firearm possession convictions pursuant to Penal Code section 654, subdivision (a), which prohibits multiple punishment for a single act. The court imposed various fines and fees and awarded Rascon 259 days of presentence custody credit.

         Rascon timely appealed.


         I. There Was No Miranda Violation

         “The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant's involuntary confession.” (People v. Massie (1998) 19 Cal.4th 550, 576.) “[A]ny statement obtained from a criminal suspect by a law enforcement officer during custodial interrogation is potentially involuntary because such questioning may be coercive.” (People v. Neal (2003) 31 Cal.4th 63, 79.) Thus, in Miranda, “the United States Supreme Court laid down its now familiar rule” (ibid.) that “ ‘a suspect [may] not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel.' ” (People v. Dykes (2009) 46 Cal.4th 731, 751.) “In general, if a custodial suspect, having heard and understood a full explanation of his or her Miranda rights, then makes an uncompelled and uncoerced decision to talk, he or she has thereby knowingly, voluntarily, and intelligently waived them.” (People v. Cunningham (2015) 61 Cal.4th 609, 642; see also (Oregon v. Elstad (1985) 470 U.S. 298, 308 (Elstad) [Once a suspect receives the Miranda advisements, he “is free to exercise his own volition in deciding whether or not to make a statement to the authorities.”].)

         A suspect who makes an incriminating statement in response “to unwarned yet uncoercive questioning” may later waive his rights and confess after being “given the requisite Miranda warnings.” (Elstad, supra, 470 U.S. at p. 318.) In such “midstream Miranda cases” (People v. Camino (2010) 188 Cal.App.4th 1359, 1363 (Camino)), “the unwarned admission must be suppressed, ” but “the admissibility of any subsequent statement” will depend upon “whether it is knowingly and voluntarily made.” (Elstad, supra, 470 U.S. at p. 309.) In Elstad, the Supreme Court held that in such cases, “[t]he relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative.” (Id. at p. 318.)

         In Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), the police deliberately used a two-step questioning technique whereby they withheld a Miranda advisement until a suspect confessed, then advised the suspect pursuant to Miranda, then led the suspect to cover the same ground until a second confession is obtained. (Seibert, supra, 542 U.S. at pp. 605-606 (plur. opn. of Souter, J.).) Police admitted the tactic was designed to undermine the Miranda warning by inducing a suspect “to conclude that the right not to respond did not exist when the earlier incriminating statements were made.” (Id. at p. 620 (conc. opn. of Kennedy, J.).) Justice Souter, writing for a four-justice plurality, concluded that a second confession obtained in such circumstances is inadmissible because the “midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement.” (Id. at p. 604 (plur. opn. of Souter, J.).) “By any objective measure... it is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content. After all, the reason that question-first is catching on is as ...

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