People v. Diaz

• Decision Date: 15 March 1983
• Docket Number: Cr. 5957
• Citation: 140 Cal.App.3d 813,189 Cal.Rptr. 784
• Parties: The PEOPLE, Plaintiff and Respondent, v. Victor Balderas DIAZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 784

189 Cal.Rptr. 784

140 Cal.App.3d 813

The PEOPLE, Plaintiff and Respondent, v. Victor Balderas DIAZ, Defendant and Appellant.

Cr. 5957.

Court of Appeal, Fifth District, California.

March 15, 1983.

[140 Cal.App.3d 816] Deborah A. Vollmer, Bakersfield, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Edmund D. McMurray, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

MARTIN, Associate Justice.

This is an appeal from a conviction for voluntary manslaughter (Pen.Code, § 192).

THE FACTS

Sometime between October and November 1979, Pablo and Ruth Aguirre rented a house to the decedent, Adolfo Landa. The rent for the premises was to be due on the 10th day of each month. At the time the rental agreement was made, Landa was accompanied by appellant. Although Landa paid the rent, the Aguirres knew that appellant also resided on the premises.

Guadalupe Ornelas, a neighbor of appellant and Landa, would see them come and go in an automobile. She also observed visits from other Mexican males who appeared to be anywhere from 30 to 40 years old.

On March 6 or 7, 1980, Mrs. Aguirre found a note on her door. The note had Landa's name on it and stated that he had departed to Los Angeles because of an emergency, but would return to pay the rent. The March rent was never paid.

Sometime after March 10, Pablo Aguirre had a conversation with appellant. Appellant informed Aguirre that Landa had gone to San Bernardino. Appellant conceded that he had left the earlier note on Aguirre's door.

Landa had, in fact, taken a trip to an irrigation canal about 12 to 15 miles from his residence. His body was recovered from the canal on the morning of March 9, 1980.

An autopsy was performed on March 10. Landa had sustained injuries to his head, neck, chest and arm. Landa had been shot in the chest with a .22 caliber bullet. He also had six inches of a large metal file embedded in his body. The cause of death was judged to be the gunshot wound and multiple traumatic injuries.

On January 19, 1981, appellant was arrested on an outstanding traffic citation. On January 20, appellant was interviewed. Deputy Sheriff Salas conducted the interrogation in Spanish. Appellant first denied knowing Landa, but quickly conceded that he knew why he was being questioned. Appellant stated that Landa was a homosexual and had made sexual advances toward him. Upon being spurned, Landa charged appellant with a knife. Appellant was able to stun Landa by hitting him in the head with a coke bottle. Nevertheless, Landa again charged, this time with a metal file. In the ensuing struggle, Landa was stabbed in the neck. Somehow, a smaller file also became embedded in Landa's arm.

Believing Landa to be dead, appellant left the house in order to wash the blood from the bed sheets. When he returned, he found that Landa's body had moved from the bed to the floor. The next morning, appellant drove the body to a canal and dumped it.

Appellant presented no evidence. In closing argument, defense counsel urged that there was insufficient evidence to establish that appellant had delivered the fatal blow. In particular, there was no evidence that appellant had shot Landa. Pointing to the evidence that other men occasionally visited the house, counsel offered the hypothesis that someone had come in and finished off Landa during the time appellant was washing his bed sheets.

I

Prior to trial, a hearing was held on the issue of whether appellant's admission ¹ should be suppressed pursuant to the principles enunciated in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Deputy Sheriff Salas, who had interrogated appellant, testified at the hearing. Salas explained that he had spoken Spanish his entire life and, for that reason, had been enlisted by Sergeants Suorez and Davis to question appellant.

At the beginning of the interrogation, appellant was read his Miranda rights in Spanish. Those rights were contained on a card entitled, "Department of California Highway Patrol Miranda Warning." ²

After reading the Miranda warnings, Salas asked appellant if he understood his rights. Appellant responded in the affirmative and Salas asked appellant, "if he wanted to talk to us, answer questions that investigators would ask." Again, appellant responded in the affirmative. ³ Thereafter, appellant was interrogated for an hour and made the statements which were later admitted into evidence at trial. These statements were not tape recorded.

Subsequent to the hour-long interrogation, appellant was moved to a different room for the purpose of taking a tape-recorded statement. A statement was then taken. The tape recording was played at the hearing before the trial court, and Salas was questioned as to his translation of the tape.

The tape commenced with Salas' reading of the Highway Patrol's Spanish Miranda card. ⁴ Salas then asked appellant if he understood his rights. Appellant responded, "no." According to Salas' translation, appellant modified his negative response by stating, "the only thing I have to tell you is the same thing I already told you before ... then if you want to get me an attorney ...." ⁵ Salas testified that appellant's use of "no" was not intended to be interpreted in a negative sense.

Rudy Ventura, a court-certified interpreter, also attempted to interpret the tape. His translation of appellant's response was similar to that of Salas. According to Ventura, appellant stated, "no. I can tell you the same. Then if you want to get, get me a lawyer." ⁶ Based on this translation, Ventura could not tell if appellant understood his Miranda rights.

Lopez Sierra, another court-certified interpreter, also testified. He agreed with the other witnesses that appellant began his statement with "no." As to the rest of the statement, Sierra was simply guessing as to what was said. Sierra, like Ventura could not tell whether or not appellant had understood his rights.

Based on this testimony, the trial court excluded the tape-recorded statement because "there is a total and complete ambiguity as to the defendant's remark in the tape and the court is not going to find that there was a waiver." However, the court held that appellant's earlier unrecorded statement would be admitted into evidence.

On appeal, appellant raises two separate contentions as to why his first statement should have been excluded. He first urges that the Spanish Miranda warnings were defective, since the word "conseguir" did not convey the information that he could receive an appointed attorney if he was indigent. Secondly, appellant contends the record does not reflect a knowing and intelligent waiver of his Miranda rights. We will address these issues in reverse order.

A

Appellant contends that he did not make a knowing and intelligent waiver of his rights. At trial, "a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. [Citation.]" (Miranda, supra, 384 U.S. at p. 475, 86 S.Ct. at p. 1628.)

"On appeal, the question of the voluntariness of a confession is based upon a review of the totality of circumstances surrounding the statements. (Fare v. Michael C., supra, 442 U.S. 707, 724-725 [99 S.Ct. 2560, 2571-2572, 61 L.Ed.2d 197, 212]; People v. Sanchez (1969) 70 Cal.2d 562, 576 [75 Cal.Rptr. 642, 451 P.2d 74], cert. dism. (1969) 394 U.S. 1025 [89 S.Ct. 1646, 23 L.Ed.2d 743]; In re Cameron (1968) 68 Cal.2d 487, 498 [67 Cal.Rptr. 529, 439 P.2d 633].) The record must contain evidence from which the trial judge could have found beyond a reasonable doubt that the statement at issue was the product of a knowing and intelligent waiver of defendant's Miranda rights. (People v. Braeseke (1979) 25 Cal.3d 691, 701 [159 Cal.Rptr. 684, 602 P.2d 384], judgment vacated cause remanded (1980) 446 U.S. 932 [100 S.Ct. 2147, 64 L.Ed.2d 784], reiterated (1980) 28 Cal.3d 86 [168 Cal.Rptr. 603, 618 P.2d 149], cert. den. (1981) 451 U.S. 1021 [101 S.Ct. 3015, 69 L.Ed.2d 395]; cf. People v. Jimenez (1978) 21 Cal.3d 595, 608 [147 Cal.Rptr. 172, 580 P.2d 672].) A reviewing court must examine the uncontradicted facts in the record to determine independently whether the trial court's finding of intelligent waiver was properly made. As to conflicting testimony, the reviewing court must accept that version of events which is most favorable to the People, to the extent that it is supported by the record. (Id., at p. 609 [147 Cal.Rptr. 172, 580 P.2d 672].)" (People v. Prysock (1982) 127 Cal.App.3d 972, 988-989, 180 Cal.Rptr. 15.)

Preliminarily, it should be noted that this court must independently assess whether appellant knowingly and intelligently waived his rights. This degree of appellate scrutiny is required, since the facts in the record are essentially uncontradicted. (People v. Jimenez (1978) 21 Cal.3d 595, 609, 147 Cal.Rptr. 172, 580 P.2d 672.) Once such an assessment is made, it is apparent that the trial court erred in admitting appellant's unrecorded admission.

As noted above, this court must examine the totality of the circumstances in determining whether appellant made a knowing and intelligent waiver of his rights. (Fare v. Michael C. (1979) 442 U.S. 707, 724-725, 99 S.Ct. 2560, 2571-2572, 61 L.Ed.2d 197.) The totality of the evidence presented before the trial court reveals that appellant first made an unrecorded statement to the police. Deputy Sheriff Salas testified that appellant made a knowing and intelligent waiver of his rights before making this statement. However, approximately one hour later appellant did not subsequently understand his rights at the time the tape recorder was turned on.

Deputy Sheriff Salas and interpreters Sierra and Ventura all...