People v. Sabdala, F007888
| Citation | 206 Cal.App.3d 403,253 Cal.Rptr. 603 |
| Decision Date | 02 December 1988 |
| Docket Number | No. F007888,F007888 |
| Court | California Court of Appeals |
| Parties | Previously published at 206 Cal.App.3d 403 206 Cal.App.3d 403 The PEOPLE, Plaintiff and Respondent, v. Medearro A. SABDALA, Defendant and Appellant. |
I
In a second amended information, which reflected the consolidation of two cases, defendant Medearro A. Sabdala was charged with assault with intent to commit rape (Pen.Code, § 220); 1 assault with a deadly weapon ( § 245 subd. (a)(1)); sexual battery ( § 243.4); battery ( §§ 242, 243 subd. (d)); rape ( § 261 subd. (1)); and, sodomy ( § 286 subd. (c)). The information also contained several enhancement allegations. All but the second alleged that defendant personally used a deadly weapon ( § 12022 subd. (b)); all but the sodomy count contained allegations of infliction of great bodily injury ( §§ 12022.7 and 12022.8); and, the first, second and fourth charges also included an allegation that the victim of the great bodily injury was over 60 years old ( § 1203.09 subd. (a)). Defendant pleaded not guilty and denied all the allegations.
After numerous proceedings, not relevant to this appeal, defendant's jury trial began on September 8, 1986. The jury found defendant guilty of all charges and found all the allegations true. Defendant received a 24-year term in state prison. Defendant's timely appeal followed. We affirm.
Early in the evening of November 3, 1985, a 78-year-old woman was preparing for her bath. She had on only her robe, slip and brassiere. As she entered the living room she saw a man sitting in a chair. They spoke and he asked her if he could spend the night. She answered no and asked him to leave.
The man grabbed her cane and struck her over the head repeatedly until the cane broke. He then pushed her into a chair and forced her legs apart. At trial she could not remember what happened next, until he went to the bathroom and she fled to a neighbor's.
The victim was bleeding profusely; ultimately it took over 100 surgical staples to close the three gashes in her scalp which extended from her forehead to her neck. At trial she identified defendant as her assailant.
After the victim had made her way to the neighbor's, the authorities were contacted. Because of statements made to the authorities and the attending physician, when the victim was taken to the hospital she was given a gynecological examination and, using a rape kit, swab samples were obtained from the vaginal and rectal cavities.
The victim also was able to give the authorities a description of her attacker and indicated that a friend Ernesto Lopez might know where he lived. She knew her assailant by the nickname of "Pueblo" or "Puebla." The assailant's description was broadcast to others in law enforcement. Deputy Knoll, who was investigating the crime, contacted Mr. Lopez who offered to show him where the suspect lived. As Knoll and Lopez were driving to the area, Knoll received a message that a suspect had been detained.
Deputy Williams, after hearing the assailant's description and being referred to a particular area of town, saw defendant walking across a vacant parking lot. He matched the description. When Williams stopped to talk to him he saw defendant had blood on his shirt. Williams notified Knoll who arrived with Lopez in a few minutes. Lopez identified defendant as the man known as "Pueblo."
Defendant was arrested and taken in the patrol car. Knoll, after defendant waived his Miranda rights, spoke with defendant about the crime. Defendant denied he had been near the woman's house, said he had been at the Guadalajara Club with friends the past three hours. He told Knoll the blood on his shirt was from a nosebleed he had had that afternoon caused by chemicals in his workplace.
Defendant's bloody clothing and a sample of blood found on his forehead were taken by the authorities. All of the serological and rape kit evidence was analyzed by Kern County criminalist Bernadetta Rickard using electrophoresis multisystem analysis. Electrophoretic multisystem analysis identifies not only the traditional blood types, but several other genetic markers appearing in the specimen.
The relevant data obtained here was that defendant had type O blood, with his PGM being 1-; defendant was a nonsecretor. The victim also had type O blood, but her PGM was 1+. The blood found on defendant's shirt and forehead was type O, PGM 1+; it could not have come from defendant but was consistent with the victim's blood. The semen found in the victim's vagina was of an insufficient quantity to test. The semen found in the rectum showed it came from a nonsecretor with a PGM of 1-, consistent with defendant having been the donor.
The prosecution also presented evidence of the frequency of these various blood types and secretor status in the population in general. Only 20 percent of the population is nonsecretor; the PGM 1- appears in only 7.8 percent of the Mexican-American population. Thus, only approximately 1.6 percent of the Mexican-American population could have been the donor-assailant; "so roughly 1 out of 50 people or 1 out of 75 people." Similarly, evidence was presented that anywhere from 4.4 percent to 3.1 percent of the Mexican-American population could have been the donor of the blood found on defendant.
The defendant testified. He denied having assaulted the victim. He claimed he did not know the victim. He had been drinking all day with friends, having spent the three hours prior to his arrest at the Guadalajara Club. He said that after leaving the club he stumbled and hit his face, causing a nosebleed. The blood on his shirt and forehead was his own. He did not remember telling the police that the nosebleed was caused by chemicals at work.
II-III **
IV
Whether the Trial Court Improperly Determined Defendant's Waiver of His Miranda Rights was Voluntary, Knowing and Intelligent.
Defendant contends the trial court improperly found his statements to the authorities, after his arrest, followed a knowing and intelligent waiver of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) Defendant challenged admission of his statements, contending he was drunk and could not understand English sufficiently. The court held a hearing and after testimony by the officer and the defendant, the court ruled: "Okay, he got a proper Miranda warning and he understood it...." When asked by defense counsel whether it was applying the preponderance of the evidence standard or the beyond the reasonable doubt standard, the court indicated it was applying the preponderance of the evidence test. Defendant contends the trial court applied an improper standard of review and that he was prejudiced thereby.
In 1978, the California Supreme Court in People v. Jimenez (1978) 21 Cal.3d 595, 605, 147 Cal.Rptr. 172, 580 P.2d 672, adopted "as a judicially declared rule of criminal procedure" the requirement that the People prove beyond a reasonable doubt at trial that any confession or admission was voluntary. The court adopted this standard of proof in face of the United States Supreme Court's earlier holding that the federal Constitution required no more than that the prosecution prove the voluntariness of a confession by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618.) We can only conclude here that the trial court believed that the 1982 addition to the California Constitution of article I, section 28, subdivision (d), by way of Proposition 8 required application of the lesser, federally-approved standard.
Article I, section 28, subdivision (d), of the California Constitution provides:
In In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744 the California Supreme Court held that Proposition 8 abrogated California's vicarious exclusionary rule, which permitted standing to challenge a search by third parties, and required application of the federal rule denying such standing. The court stated:
"Implicit in the limitation on the courts' power to exclude relevant evidence to the enumerated statutory exceptions is a limitation on the power of the court to create nonstatutory exclusionary rules, whether denominated rules of procedure, rules of evidence, or substantive rules, for the exclusion of unlawfully seized evidence if those rules afford greater protection to a criminal defendant than does the Fourth Amendment." (Id. at pp. 888-889, 210 Cal.Rptr. 631, 694 P.2d 744, fn. omitted.)
Since Lance W., several cases have found the applicability of federal, rather than contrary, California rules relating the admissibility of evidence.
We are called upon here to decide whether Proposition 8 similarly has abrogated the Jimenez rule requiring a greater degree of proof of voluntariness than the federal standard. We recognize that the court in People v. Azure (1986) 178 Cal.App.3d 591, 224 Cal.Rptr. 158 found that ...
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People v. Sabdala
...774 P.2d 146 PEOPLE, Respondent, v. Medearro A. SABDALA. Supreme Court of California, In Bank. Feb. 16, 1989. Prior report: Cal.App., 253 Cal.Rptr. 603. Appellant's petition for review Submission of additional briefing, otherwise required by rule 29.3, California Rules of Court, is hereby d......
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