P. v. Raymond 4/25/07 CA2/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B189046

Case Date: 07/12/2007

Preview:Filed 4/25/07 P. v. Raymond CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. ANA MARIA RAYMOND, Defendant and Appellant.

B189046 (Los Angeles County Super. Ct. No. TA081540)

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven C. Suzukawa, Judge. Affirmed. Michael John Shultz, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Adrian Tigmo, Deputy Attorney General, for Plaintiff and Respondent. __________________________________

Ana Raymond appeals from the judgment entered following a jury trial in which she was convicted of attempted carjacking with a finding that she used a deadly weapon in the commission of the offense, assault with a deadly weapon, and dissuading a witness by force or threat. She contends the trial court erred in rejecting her argument that, after initially waiving Miranda,1 she invoked her right to remain silent when she failed to respond to a specific question, thereby precluding any comment on her silence. Defendant further contends that imposition of an upper term sentence violated Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham). We affirm. FACTS Between 4:00 and 5:00 a.m. on October 8, 2005, Jose Miranda was delivering newspapers to a newsstand in Compton when defendant approached from the direction of a Jack-in-the-Box restaurant across the street, holding a metal pipe in her hand. Miranda asked defendant if she was lost. Defendant did not answer. Instead, she got into the driver's seat of Miranda's van, which was idling nearby. Seeing this, Miranda got into the passenger seat of the van and struggled with defendant for the keys. Defendant shifted the van into "drive," but it was not working properly and did not move. Miranda gained control of the keys and defendant picked up a knife that Miranda kept between the front seats of the van. Miranda also grabbed for the knife and struggled with defendant for control. At one point during the struggle, the knife came five to six inches away from Miranda's stomach, but he was not injured. Miranda was successful in taking the knife from defendant, following which he and defendant got out of the van. Defendant next proceeded to use her metal pipe to smash the windows of the van. Miranda walked away and flagged down Los Angeles County Sheriff's Deputies Patrick Neal and Alfonzo Rodriguez, who were passing by in their patrol car. Miranda accompanied the deputies, who soon located defendant not far from the Jack-in-the-Box.
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Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602] (Miranda).

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As the deputies approached, defendant seem agitated and started yelling at Miranda in Spanish, which the deputies did not understand. The deputies told defendant what Miranda had reported, and defendant responded that the accusations were false. Defendant was then transported back to the Jack-in-the-Box. There, she was arrested and waived her Miranda rights, admitting that she broke the windows of Miranda's van. As defendant was being transferred from one patrol car to another, she continued to yell at Miranda, including threatening that if Miranda came to court, her home boys would kill him. Testifying in her own behalf, defendant said she lived in a nearby apartment with her three children and had come to the Jack-in-the-Box to apply for a job at its 6:00 a.m. opening time. She saw Miranda at the newsstand and he asked defendant how she was. Because the area was known for prostitution, defendant thought that Miranda was propositioning her. Defendant responded that she was looking for a job. Miranda asked her to help him deliver newspapers and gave her $20.00 in advance to do so. At Miranda's instruction, she went to the driver's side of the van to retrieve some papers. Miranda then reached in from the passenger's side, fondled defendant's breasts, and tried to grab her. Defendant, who was three months pregnant at the time, took a knife that was in the van to protect herself. She then fled from the van and Miranda followed, screaming and calling her a "whore." Defendant further testified that because she was angry, she picked up a pole that was on the ground and smashed the windows of the van. Defendant denied having threatened Miranda while sitting in the patrol car. ISSUES 1. Miranda Rulings a. Background

In defendant's opening statement at trial, counsel asserted that Miranda had tried to rape defendant. Three sheriff's deputies who were at the scene testified in the prosecution's casein-chief. The first deputy to testify, Joseph Sumner, had been called to assist and provide Spanish translation. On direct examination the prosecutor asked if Sumner had heard 3

defendant say anything about rape or being attacked by Miranda. Sumner responded in the negative. Deputy Neal testified next and was asked on cross-examination what course of action he would take if he suspected that defendant had been sexually assaulted. Neal responded that he "would have done a sexual assault investigation," but that defendant never said anything to indicate that was warranted. Defense counsel next asked, "When you arrested her, you told her she had the right to remain silent?" Neal responded that Deputy Rodriguez had "advised her per Miranda." Counsel then asked, "The fact that she said nothing doesn't mean that it didn't happen, right?" The prosecutor objected to the question as calling for speculation, and the objection was sustained. Deputy Rodriguez was the third police witness and testified on direct examination that he advised defendant of her Miranda rights. Defendant responded that she understood the rights and was willing to talk. Defendant told Rodriguez that "the only thing that she did was break [Miranda's] windows. She said she didn't do anything else." The direct examination continued: "Q. "A. "Q. "A. "Q. "A. "Q. Did you ask [defendant] why she had broken [Miranda's] windows? Yes. She said he had told her something, and it made her mad. Did you ask her what it was that he told her? I did, and I got no reply. As you were there and detained her . . . did you see any injuries at all? No. Did [defendant] mention anything to you about Mr. Miranda trying to

attack her or rape her?" At that point defense counsel objected on grounds of "post-arrest silence" and a sidebar conference was called. At sidebar, defense counsel argued that defendant had invoked her Miranda rights by not answering Rodriguez's question about what Miranda had said that made her mad, and that any reference to defendant's failure to accuse Miranda of rape or assault therefore violated Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 2240] (Doyle). The court 4

overruled defendant's objection, stating: "Whatever Doyle rules, it would have to suggest the deputy would have to be clairvoyant. The fact she didn't say something means she was invoking Miranda, that is not fair. She has to say, `I am standing on my right to remain silent. I do not wish to speak any longer,' or something like that. Merely not volunteering information is not invocation." When proceedings resumed before the jury, Rodriguez was asked if, while speaking to defendant, defendant had said anything about being attacked, raped, or molested by Miranda. Rodriguez responded in the negative. During the defense case, defendant testified on direct examination that Deputy Neal had previously arrested her, ultimately leading to her having entered a guilty plea to joyriding. She did not tell the deputies what happened when she was arrested in this case because she did not trust them, and "didn't feel anything [she] said would even matter to the point that [Neal] had arrested me before, so I just kept silent." During defense counsel's closing argument, the following ensued: "[Defense Counsel]: And then she tells you -- and the People are going to argue: Why didn't she say something to the Sheriff's deputy. Why didn't she say, `You don't understand'; you know, `He tried to pull me into the van. He was going to rape me. He was going to hurt me. I didn't know what he was going to do with me.' [

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