P. v. Vaughn 10/5/04 CA2/4

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State: California

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

Docket No: B165489

Case Date: 10/05/2004

Preview:Filed 10/5/04

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. WALLACE W. VAUGHN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed. Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
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B165489 (Los Angeles County Super. Ct. No. NA049682)

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts B and C of the Factual and Procedural Background and parts A, B, C, and D of the Discussion.

Appellant Wallace W. Vaughn contends on appeal that the trial court erred in admitting into evidence his taped confessions to several crimes because the confessions were obtained after he invoked his right to remain silent. Appellant further argues that substantial evidence of intent to kill does not support the jury's findings on two of the attempted murder charges; that the trial court should have enunciated reasons on the record for imposition of consecutive sentences; and, in a supplemental brief, that the sentence in this matter was the result of improper factual findings by the court in violation of recent United States Supreme Court authority. We address appellant's claim of sentencing error in the published portion of this opinion. His other claims are treated in the unpublished portion. We conclude that his contentions have no merit, and we affirm. FACTUAL AND PROCEDURAL BACKGROUND A. Information Appellant was accused in a 13-count information of two counts of murder with special circumstances and eleven counts of attempted murder. Count one charged the murder of Jesus Bicuna on July 21, 2001. Counts two through four charged the "willful, deliberate, premeditated" attempted murder of Juan Espinoza, Francisco Espinoza, and Fidela Acevedo, respectively, on July 21, 2001. Count five charged the murder of Fernando Rubio on May 28, 2000. Counts six through eight charged the "willful, deliberate, premeditated" attempted murder of Henry Cifuentes, Fidel Rosales, and Copitzy Rodriguez, respectively, on May 28, 2000. Counts nine through thirteen charged the "willful, deliberate, premeditated" attempted murder of Enrique Anaya, Criscencio Jaramillo, Rigoberto Bernal, Manuel Contreras, and Vicente Molina, respectively, on May 29, 2000. Appellant pled not guilty to all charges.
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B. Motion to Suppress Appellant moved to suppress statements he made to the Long Beach Police Department on July 25 and 26, 2001, on the ground that the statements were taken in violation of his Miranda rights.1 1. Appellant's Declaration In a declaration filed in support of the motion, appellant set forth the following facts. He was arrested on July 25, 2001. After being left alone in an interview room for 20 to 30 minutes, Detectives Richard Conant and Mark McGuire entered. Detective Conant told appellant he had to fill out papers so they could talk. Appellant replied "I have nothing to say" and "I'm not filling out any papers, can I go now." Detective Conant informed him he had been arrested for murder. Appellant told the detectives: "I didn't kill anybody and I'm not talking to you." Detective Conant said he was going to get the death penalty. The detectives left the room. When they returned, appellant "agreed to talk because I was afraid I would get the death penalty if I did not talk and Detective Conant had said I was going to get the death penalty but he could help me if I agreed to talk." The next morning, appellant was told the detectives wanted to talk to him again. He said he "did not want to talk to anyone anymore." He claimed to have not been fed or given a mattress to sleep on and denied having been given any sort of form to sign. He claimed to have agreed to "everything [he] thought they wanted [him] to agree with" because he was "tired, sleepy and hungry and just wanted to get the interview over with."

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Miranda v. Arizona (1966) 384 U.S. 436.

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2. Hearing a. The Detectives' Testimony A hearing was held on appellant's motion to suppress. Detective Conant testified that he interviewed appellant in connection with the death of Jesus Bicuna on July 25, 2001, at around 1:30 p.m. Detective McGuire was also present. They had with them an advisement of rights form, a probable cause declaration form, and a booking form. They advised appellant of his Miranda rights. Appellant refused to talk to the detectives, and that was written on the rights form. The detectives left. Detective Conant returned after a few minutes to fill out the probable cause form. Appellant asked him what he was doing. Detective Conant told him, and read what had been written on the form--that appellant was placed under arrest after he was positively identified by a six-pack of photographs as the person who had shot Bicuna and three others. Appellant asked what the charges were, and was told he was being charged with murder. Appellant asked for details about the shooting, but Detective Conant told appellant that he would have to waive his Miranda rights to discuss the case. Detective Conant did tell appellant about the range of penalties for murder in response to another question from appellant, and got a copy of the Penal Code so that appellant could read about the subject himself. Appellant again asked about his case, and was told he would have to waive his rights to discuss it. At that point, appellant agreed to waive his right to remain silent. The detectives interviewed appellant and tape-recorded his statement approximately two hours after the interview began. They did not tell appellant what to say or give him details about the crime so he could recite them on the tape. They did not tell appellant he would get the death penalty if he did not talk to them. On the first tape, appellant agreed that he had initially refused to talk, but
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then "decided that [he] wanted to talk to [the detectives] before [he was] taken down and . . . booked." Detective Michael Edwards testified that he and Detective Hector Nieves interviewed appellant on July 26, 2001. They reminded him he had been read his rights the day before. He agreed to talk to them. They started speaking to him at around 10:30 a.m., and began taping at around 1:50 p.m. At some point, appellant told the detectives he had been threatened that he would get the death penalty if he confessed to more than one murder. They talked to him about how the decision is made to seek the death penalty, but did not make him any promises. The detectives told appellant they were aware that a Toyota van was used in the shootings, that there were three shootings, the addresses where the shootings occurred, that there were three people involved, that an assault-type rifle was used, and that some casings had been recovered. On the second tape, appellant stated he remembered being read his rights the day before and remembered agreeing to talk and waive his rights. Appellant further stated on the tape that he had been treated fairly, and supplied with drinks and bathroom breaks. b. Appellant's Testimony Appellant testified that he was arrested at around 11:00 a.m. and taken to an interview room where he was joined by Detectives Conant and McGuire. He asked what he was there for, and Detective Conant said he had to fill out some papers before they could talk to him. Appellant told the detectives he did not want to talk to them. Detective Conant started to fill out some papers, and acted like he was angry at appellant. He said "We have you now. You can't get away from us. . . . [Y]ou're gonna get the death penalty, you little mother fucker." Both detectives left the room. Detective Conant returned and started filling out papers. Appellant asked him what he was filling out. Detective Conant said he could not
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tell him unless he agreed to talk to the detectives. Appellant asked about the death penalty, and Detective Conant gave him a book. Detective Conant told appellant they would help him, and if he cooperated and talked to them, he would not get the death penalty. Appellant agreed to talk to them. The next day, appellant was told to talk to Detectives Edwards and Nieves or he would be thrown in "the hole." He did not want to talk to them, but he did not tell them that. Instead, he told the jailer he did not want to talk to them.2 The detectives told him his rights had been waived and that they could talk to him without going through the procedures that he went through the day before. Appellant claimed not to understand that he could have an appointed attorney with him during questioning by police or that things he said to police could be used in court against him. 3. Court's Ruling The court denied the motion to suppress. The court "did not find [appellant] credible when he claimed he did not understand the plain language in the waiver forms." The court found that the detectives "scrupulously honor[ed]" appellant's invocation of his right to remain silent, and that Detective Conant's actions in reentering the interview room to fill out forms was not the equivalent of interrogation or conduct designed to elicit comments from appellant. The court further found that appellant had not been threatened with the death penalty in order to induce him to talk or promised consideration if he cooperated. The court ruled that the form used to give appellant his Miranda rights was adequate. The court concluded that there was no requirement that appellant be re-Mirandized prior to questioning on the 26th.
Appellant did not testify that he had been deprived of sleep or sustenance as set forth in his declaration.
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C. Evidence at Trial 1. Appellant's Taped Confessions The tapes were played to the jury. On the tape dated July 25, 2001, describing the July 2001 shootings, appellant said that he had a 44 caliber gun and was driving with a friend in a Blue Cutlass, and spotted a "Mexican guy with [a] bumble-bee on his neck" on the curb in front of a house. Appellant believed he recognized the man as having shot his (appellant's) cousin. Appellant jumped out of the car and fired two shots. The man ran, and appellant chased and shot at him. Appellant claimed to have been trying to paralyze the victim rather than kill him and to not wanting anybody innocent to be wounded. As appellant and his companion drove away, they saw the police behind them. Appellant jumped out. As he ran, the gun in his waistband slid out onto the ground. On the tape dated July 26, 2001, appellant was interviewed concerning the May 2000 shootings. Appellant testified he had been drinking and smoking PCP with some acquaintances. They got into a van and told appellant they were "fixin' to . . . hunt . . . this `bald head' down," by which they meant someone of Mexican descent. When the group spotted the victim riding in a car, appellant recognized him as someone who had pulled a gun on appellant in the past. Appellant grabbed a gun belonging to someone else in the van and opened fire out the window. He fired both at the car and at people standing nearby. The van door was opened momentarily and some casings fell out. The driver of the van took them to another location where there was a party going on. The people at the party were older Hispanics. Another member of the group shot at the house. Someone shot back. They drove off, and a few moments later, shot a Hispanic man parking a dark colored Honda on Eighth Street. Appellant did not fire the shot, but encouraged his companion to "hurry up" and do it. Appellant identified the van from a
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photograph of a grayish Toyota van with a brown stripe down the side shown to him by the detectives. He was also shown photographs of some of the victims and identified them as people who had been at the party or who had yelled at or shot at the van and its occupants. 2. First May 2000 Shooting (Counts Six Through Eight) Henry Cifuentes, a former Eastside Longos gang member, testified that he was shot in May 2000 while riding in a car with his girlfriend and two friends, Fernando Rubio and Fidel Rosales. Fidel Rosales testified to being shot, and hearing a total of between six and eight gunshots. Neither saw the assailant. Eva Cornejo, a nearby resident, saw a van drive past her window and observed gunshots coming from it. Copitzy Rodriquez, Cifuentes' girlfriend, testified that she was driving at the time of the incident. She heard shots. She saw a white van. She saw the other occupants of the car lying on the ground after the shooter or shooters left. A detective for the Long Beach Police Department searched the area and found an "S and B 762 caliber shell casing." Kham Vin testified that his van was stolen in May 2000. He did not own a gun and had never fired a gun from his van. Bullet casings, bullet fragments and fingerprints were found inside his van when it was impounded by the police. A ballistics expert testified that the shells were designed to be fired from an assaulttype rifle, and were fired by the same gun as the shell found on the ground near the first May 2000 shooting and shells found in the area of the second May 2000 shooting (discussed below).

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3. Second May 2000 Shooting (Counts Nine Through Twelve) Enrique Anaya testified to being shot while standing in front of his house in May 2000. Criscencio Jaramillo, Rigoberto Bernal, and Manuel Contreras were with him.3 He heard from six to eight shots, but did not see where they were coming from. Jaramillo testified that he was also shot that day. He did not see the assailant. Detective Victor Feria was called to the scene and observed wounds on Anaya, Jaramillo, Contreras, and Bernal. He picked up eight 762 caliber casings at the scene. 4. Third May 2000 Shooting (Count Thirteen) Vicente Molina was shot in May 2000, while parking a car. A small van pulled up alongside him containing a single Black man. A gun was sticking out the window. One shot was fired. The bullet passed through his head, but he survived. 5. July 2001 Shooting (Counts One Through Four) Juan Espinoza testified that he was shot in front of the apartment house where his nephew's baptism party was being held. He was standing with his uncle, Juan Carlos Espinoza, and "Francisco Javier."4 Juan Espinoza heard someone yell "[l]ook out, careful" and saw a Black man pointing a gun. He identified appellant as the man he saw. He had previously identified appellant out of a photographic
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Anaya testified that Bernal's first name was "Dagoberto" and could not remember Manual Contreras's last name. The full name of Francisco Espinoza, the victim named in count three, is "Francisco Javier Espinoza."
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six-pack and at a prior hearing. After being shot once, Juan Espinoza ran and appellant chased him and shot him again. Francisco Espinoza testified that he was struck three times while standing in front of the apartment house with "Juan" and "Jesus." He heard about five shots. Just before the shooting, he saw a dark car containing two Black men pull up. One of the men got out and began shooting. The witness identified appellant as the shooter. Fidela Acevedo was leaving the party with her father, Jesus Bicuna, and her mother when the shooting started. She did not see the man who was doing the shooting. She was struck with a bullet. Her father was shot and killed. Guillermo Cruz, who lived near the house where the party was taking place, heard gunshots and saw a Buick with a dark vinyl top stopped in the middle of the street. He observed an occupant of the vehicle get out and shoot a young man in the face. He could not identify the shooter other than as a dark man. Long Beach Police Officer Robert Bernsen received a call describing a light blue Buick Regal leaving the scene of a shooting. He and his partner saw a vehicle matching that description. There were two Black male occupants. The officer called for back up, and when it arrived, signaled the vehicle to stop by activating the patrol car's siren and lights. The Buick stopped, the passenger jumped out, and then the Buick started to pull away. Officer Bernsen and his partner followed the vehicle, and ultimately arrested the driver. The driver was identified as Santawn Miller. Fingerprints lifted from the Buick matched appellant's. Sergeant Joel Cook heard the description of the Buick Regal and the report that a vehicle matching that description had been spotted. He drove to the area where the car was stopped. He saw a Black male run past his car. The sergeant repeatedly ordered him to stop, but the man did not comply. The sergeant retraced the suspect's route and discovered a semi-automatic pistol on the sidewalk. He
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was later shown a photographic six-pack and identified appellant as the man he had seen that night. Officer Ronald Burgess was called to the scene and discovered three .44 Magnum shell casings and a copper-jacketed slug. A police criminalist later determined that the shell casings collected from the scene of the shooting were fired from the gun found by Sergeant Cook. D. Verdict and Sentencing The jury found appellant guilty on counts one through eight and thirteen, and acquitted him on counts nine through twelve. With respect to the murder charges (counts one and five), appellant was found guilty of murder in the first degree. The jury further specifically found the special circumstances that appellant committed multiple murders of the first or second degree, and that the murder charged in count five was perpetrated by means of discharging a firearm from a vehicle. With respect to the attempted murder charges, the jury found true that the attempt was committed willfully, deliberately, and with premeditation with respect to counts two, six, seven, eight, and thirteen, and not true with respect to counts three and four. The jury further found that appellant personally used a firearm in committing the offenses. During the sentencing hearing, the prosecution asked that all sentences be consecutive. Defense counsel asked that the sentencing for counts one, two, three, and four be concurrent because they all arose from the same incident, and asked that the sentencing for counts six, seven, and eight be concurrent for the same reason.5
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Counsel did not include count five with that group, because counsel believed it should be combined with count one for a single life without possibility of parole sentence.
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The court sentenced appellant to life without possibility of parole plus 25 years to life for counts one and five; life with the possibility of parole plus 25 years to life for counts two, six, and seven; the upper term of nine years plus 25 years to life for count three; one-third the mid-term (two years, four months) plus 25 years to life for count four; life with the possibility of parole plus 20 years for count eight; and life with the possibility of parole plus one year for count thirteen. The court stated that count three could be the high term of nine years because "the circumstances in aggravation greatly outweigh[] those in mitigation for the violence and the number of victims and injuries shown here." DISCUSSION A. July 25 Taped Confession Appellant contends that the police failed to scrupulously honor his invocation of his right to remain silent, and that the taped confessions should therefore have been suppressed. Appellant alleges that his rights were "circumvented by a ploy used by Detective Conant to provoke further conversation that would lead ultimately to a waiver." Specifically, appellant states that Detective Conant's "gratuitous act of doing routine paperwork on appellant's case in the close quarters of that interview room was not, by any reasonable measure, consistent with the letter or spirit of Miranda, which requires not only that express interrogation cease upon a clear invocation of the right to silence, but requires the `complete shutdown of any interrogation, persuasions, or other operations which might have the effect of pressuring [the accused] to change his mind.'" (Quoting People v. Sunday (1969) 275 Cal.App.2d 473, 479-480.) "In Miranda v. Arizona, supra, 384 U.S. 436, the United States Supreme Court promulgated standards to safeguard the right against compelled selfincrimination guaranteed by the Fifth and Fourteenth Amendments. Before a
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person in custody may be questioned by police, he must be informed that he has the right to remain silent, that any statement he makes may be used against him, and that he has the right to the presence of an attorney, either retained or appointed. [Citation.] `Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.' . . . [

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