People v. Riva

• Decision Date: 22 October 2003
• Docket Number: No. B157868.,B157868.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robbie James RIVA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

5 Cal.Rptr.3d 649

112 Cal.App.4th 981

The PEOPLE, Plaintiff and Respondent, v. Robbie James RIVA, Defendant and Appellant.

No. B157868.

Court of Appeal, Second District, Division 7.

October 22, 2003.

Review Denied February 4, 2004.

Emry J. Allen, under appointment by the Court of Appeal, Sacramento, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

JOHNSON, Acting P.J.

This appeal raises two issues of first impression. (1) Following a mistrial in a criminal case, may a new judge assigned to the case overrule the previous judge's pretrial ruling on the defendant's motion to suppress statements to the police on Miranda grounds? We conclude that although the practice should not be encouraged, the new judge can overrule the previous judge's order so long as certain due process requirements are met as they were in this case. (2) Does the requirement of Penal Code section 12022.53, subdivision (j) that "the existence of any fact required under [subdivision (d) ] shall be alleged in the information" require the allegation of the enhancement be included in each count to which the prosecution seeks to have it imposed? Again we hold that although the better practice is to allege the enhancement with respect to every count on which the prosecution seeks to invoke it, the failure to do so is not fatal so long as the defendant has fair notice of his potential punishment, which he did in this case.

We further conclude the trial court did not err in admitting hearsay evidence under the "spontaneous declaration" exception; failure to instruct the jury on the "actual knowledge" requirement for assault was harmless error, and 30 years to life is not cruel and unusual punishment for the crime of shooting at an occupied vehicle and causing great bodily injury.

FACTS AND PROCEEDINGS BELOW

Viewed in accordance with the usual rules on appeal,¹ the evidence established defendant Robbie James Riva fired a gun from inside his car at the occupants of another car at an intersection in Long Beach. The bullets missed the occupants of the other car, but one of them struck and injured a pedestrian, Marlene Lindsey, as she and her grandchildren were walking home from the market. The occupants of the other car pulled over to where Ms. Lindsey was lying on the ground and the driver exclaimed "He was trying to shoot us, but we ducked."

Following his arrest and Miranda warnings Riva admitted shooting at the occupants of the car. Other evidence tied Riva to the shooting. His car and clothing matched an eyewitness description of the car and clothing of the shooter. A bullet casing found in Riva's car matched the caliber of the bullet which struck Ms. Lindsey.

Riva's first trial ended in a mistrial. In the second trial the jury convicted Riva of attempted voluntary manslaughter, assault with a deadly weapon, and discharging a firearm at an occupied vehicle. The jury also found that in committing these crimes Riva personally used a firearm within the meaning of Penal Code sections 12022.5, subdivision (a) and 12022.53, subdivision, (b) personally and intentionally discharged a firearm proximately causing great bodily injury within the meaning of Penal Code section 12022.53, subdivision (d), and personally inflicted great bodily injury on a victim not an accomplice to the crimes within the meaning of Penal Code section 12022.7, subdivision (a).

The trial court imposed and stayed sentences on the attempted manslaughter and assault convictions. On the conviction for shooting at an occupied vehicle the court sentenced Riva to the midterm of five years plus a consecutive indeterminate term of 25 years to life on the firearm enhancement under Penal Code section 12022.53, subdivision (d).

DISCUSSION

I. RIVA'S INTERROGATIONS WERE CONDUCTED IN CONFORMITY WITH THE REQUIREMENTS OF MIRANDA.

A. Factual Background

Before each trial began Riva moved to exclude his statements to the Long Beach police on the ground they were obtained in violation of the requirements set out in Miranda v. Arizona.² The first trial judge assigned to the case, Judge Comparet-Cassani, conducted a hearing on the motion under Evidence Code section 402. Officer Nydell of the Long Beach police, the only witness, testified as follows.

The initial interrogation took place a short time after the shooting, when Nydell took Riva into custody on the campus of Long Beach City College where Riva attended classes. At the arrest scene Nydell advised Riva of his Miranda rights and Riva stated he understood them. Nydell did not specifically ask Riva whether he waived those rights and Riva did not specifically state he did.

After giving the Miranda warnings, Nydell told Riva he was under arrest for a shooting in which a woman had been injured. Riva asked how the woman was doing and Nydell responded she was "doing okay." In response to questions from Nydell, Riva admitted owning a red Chevrolet Blazer which was currently parked at the home of a friend. Riva made other admissions and statements, which were subsequently introduced at trial.

The questioning ended when Riva told Nydell: "I don't want to say anything else right now." Asked on cross-examination whether he ended the interrogation because Riva said he would not talk anymore, Nydell responded: "That's how it works."

Approximately an hour after the first interrogation ended Nydell approached Riva in the booking area of the Long Beach jail and asked Riva if he was willing to speak with him. Nydell did not remind Riva of the Miranda warnings he had previously given him, did not repeat the warnings and did not obtain a specific waiver from Riva of the right to counsel or the right to remain silent. Riva stated he would speak with Nydell, but not in the booking room. After they moved out of the booking area, Riva made additional statements to Nydell about the shooting.

Riva did not ask to speak to an attorney at any time during the first or second interrogation.

Judge Comparet-Cassani, who presided over the first trial, found Riva impliedly waived his right to remain silent with respect to the statements he made to Nydell on the college campus. She further ruled, however, once Riva invoked his right to silence by stating "I don't want to say anything else right now" Nydell violated Miranda by initiating further questioning at the jail without readvising Riva of his rights and obtaining a new waiver. Therefore, she held, the statements made during the on-campus interrogation were admissible but the statements made at the jail were not.

Riva's first trial ended in a mistrial when a new alibi witness came forward and the prosecution discovered a police report existed which had not been turned over to the defense.

The case was reassigned to Judge Garner for retrial. Riva again moved to exclude all his statements to the police and argued in the alternative Judge Garner was bound by Judge Comparet-Cassani's ruling excluding the statements made at the jail.

After reviewing the transcript of Nydell's testimony at the first hearing and considering argument by counsel, Judge Garner ruled he was not bound by Judge Comparet-Cassani's decisions at the first hearing. He agreed with her finding Riva impliedly waived his right to remain silent with respect to the first interrogation but disagreed with her ruling Nydell violated Riva's right to remain silent by approaching him at the jail and asking him if he was willing to talk. Judge Garner concluded Nydell could reasonably interpret Riva's statement, "I don't want to say anything else right now," to mean, "don't talk to me anymore now, but I may be ready later." Therefore, Nydell acted reasonably in asking Riva an hour later if he was ready to talk some more. Accordingly, Judge Garner allowed the prosecution to introduce evidence of the statements Riva made in both interrogations.

B. Riva Waived His Right To Remain Silent As to the First Interrogation.

We apply a de novo standard of review to a trial court's denial of a motion to suppress under Miranda insofar as the trial court's underlying decision entails a measurement of undisputed facts against the law.³ Employing this standard of review we agree with the finding by both trial judges Riva voluntarily, knowingly and intelligently waived his right to remain silent with respect to the first interrogation which took place on the college campus.

Although Nydell did not obtain an express waiver of Riva's Miranda rights, decisions of the United States Supreme Court have held an express waiver is not required where the defendant's conduct makes clear a waiver is intended.⁴ The question is not whether the proper form was used but whether the defendant voluntarily, knowingly and intelligently waived his Fifth and Sixth Amendment rights as delineated in Miranda.⁵ This question is answered by reviewing "the totality of the circumstances" surrounding the interrogation.⁶ If this review shows the defendant chose to speak with police after he was informed of his rights, understood the information he was given and was not tricked or coerced into surrendering those rights, a valid waiver will be implied.⁷

In the case before us, it is undisputed Nydell adequately advised Riva of his rights. Riva stated he understood these rights and there is no factual basis for concluding otherwise. On the contrary, the evidence showed Riva was 18 years of age at the time of his arrest. He had a job, a drivers license and attended college. He had previously been arrested as a juvenile. The interrogation took place in the early evening, at approximately 6:00 p.m. There is no indication Riva was tired, under the influence of drugs or alcohol, or distracted when told his rights.

On the issue of voluntariness, we find no suggestion in the record Riva was...