Opinion
C074070
12-04-2017
THE PEOPLE, Plaintiff and Respondent, v. AARON LAMAR SUGGS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F00316)
A jury convicted defendant Aaron Lamar Suggs of forcible sexual penetration, forcible oral copulation, and rape by force or fear. The jury also found true several enhancement allegations, triggering the "One Strike" sentencing scheme. The trial court sentenced defendant to 125 years to life plus 20 years in prison and imposed various fines and fees, including a fine for sexual battery.
Defendant now contends (1) the trial court erred in admitting evidence of defendant's police interview, (2) the trial was unfair because a juror fell asleep, (3) the trial court committed instructional error and there is insufficient evidence to support imposition of the One Strike sentence enhancement, (4) his consecutive sentences were not mandatory because the sex crimes did not occur on separate occasions, (5) the sexual battery fine was unauthorized, and (6) the 125-year-to-life sentence is cruel and unusual punishment.
We will modify the judgment to strike the $600 sexual battery fine and affirm the judgment as modified.
BACKGROUND
Defendant used pliers and a screwdriver to remove the window screen from the victim's apartment. He said he was surprised when a woman wearing only a towel ordered him out. He wrapped his arms tightly around the screaming victim, dragged her into the bathroom, and tied her hands behind her back. While he was tying her hands and gagging her, defendant pressed something hard against her head, saying he had a gun and would shoot her. After searching for valuables, he obtained a serrated knife from the kitchen, put it to the victim's neck, and sexually assaulted her. He admitted pushing her back down on the bed and tying her hands again with a wire or cord after she freed one hand and tried to hit or push him. At some point, defendant took the victim into the living room and filled her backpack with small but valuable items, intending to sell them. She later identified the objects he took.
That same day, police identified and arrested defendant based on the fingerprints they found at the crime scene. Defendant was carrying the victim's backpack; in it was clothing matching the victim's description of what her attacker wore along with most of her missing property.
During his custodial interrogation, defendant denied being at the crime scene, denied stealing property, and denied sexual contact with the victim. But at trial he admitted he had been in the victim's apartment and had taken her property. He also admitted grabbing, tying, and hurting her, although he continued to insist sexual assault was something he "could never do."
A first jury found defendant guilty of burglary and robbery (Penal Code, §§ 459, 211), but it deadlocked on the sexual assault charges. A second jury found defendant guilty of three counts of forcible sexual penetration by foreign object (§ 289), one count of forcible oral copulation (§ 288a), and one count of rape by force or fear (§ 261), additionally finding true several enhancement allegations that triggered the One Strike sentencing scheme (§ 667.61). The trial court sentenced defendant to 25 years to life for each of the sex convictions and stayed sentences for the burglary and robbery convictions, resulting in an aggregate sentence of 125 years to life plus 20 years for the enhancements. The trial court also ordered defendant to pay various fines and fees, including a $600 fine for sexual battery.
Undesignated statutory references are to the Penal Code.
Additional facts are included in the discussion.
DISCUSSION
I
Defendant contends the trial court violated his constitutional rights when it allowed the jury to hear a recording of his interrogation by police. Defendant had moved to suppress the recorded interview, arguing the police violated his constitutional rights by continuing to question him after he asked for a lawyer. The trial court denied defendant's motion, finding that he never unequivocally invoked the right to counsel.
A
During his police interview, defendant said: "Then that - that's when I need a lawyer 'cause I'm not being deceptive." The detective asked, "You want a lawyer, is that what you're asking?" Defendant answered, "I'm in here and you're like fucking interrogating me like I'm lying to you." The detective explained that defendant's fingerprints were on the victim's window screen, to which defendant said "No" several times before exclaiming, "I don't fucking rape people." The detective asked again, "You want a lawyer? Is that what you want?" Defendant responded, "I have a girlfriend. I have a girlfriend so I don't need to rape nobody." When the detective reminded defendant that the police had his fingerprints, defendant responded, "[Y]ou get my lawyer. You're fucking - that's crazy, bro. . . . I've been straightforward with you the whole time and respectful and now it's like you're fucking trying to fuck me." The detective again asked, "Are you asking for a lawyer?" Defendant replied, "I mean . . . do I have to need a lawyer? That's crazy." The detective said, "It's up to you. If you want a . . . [¶] . . . [¶] . . . lawyer, you need to tell me I want a lawyer." Defendant said, "What's so crazy is I'm being truthful and you're like fucking me," noting that he is bisexual and he had sex with a man that morning. Defendant insisted, "I don't fucking rape people."
Later in the interview, during questioning about defendant's possession of the victim's jewelry, defendant said, "[Y]ou can twist it up but my lawyer . . . ." The detective asked whether defendant was requesting a lawyer; defendant accused the detective of asking questions to which he already knew the answer. The detective asked defendant to explain why his fingerprints were at the home of a person who just reported burglary and rape and defendant said, "I should get a lawyer. I'm not gonna say anything." The detective said, "Are you asking for a lawyer?" Defendant said, "Yeah. 'Cause you just like turn everything I say, you know, turn it around. [¶] . . . [¶] Well fucking I wanna be real, though. I mean, I'll still talk to you, man, 'cause I'm being straightforward. I'm truthful, you know that." The detective said, "You either want a lawyer or you don't want a lawyer," and defendant said, "Yeah 'cause you could still talk to me bro. You're talking like now don't twist it up. That's one reason I . . . feel like I need to be guarded. You twisted me and my fucking words." The detective replied, "I'm just being straight with you," and defendant replied, "Okay. Let's be straight then." The detective then mentioned defendant's fingerprint again, reminding defendant that police could not have arrested him so quickly except that defendant made a mistake by not wearing gloves, adding, "I wanna know that when you went inside that house if it was your intent to rape that woman." Defendant denied rape. The detective asked defendant if he had consensual sex with the victim, and defendant replied, "If anything, I'll be the one to get raped. Fucking females rape me and want me." The detective acknowledged that defendant was a good-looking young guy and repeated his question, to which defendant replied, "Man. I need a lawyer." Again, the detective asked, "Are you asking for a lawyer?" Again, defendant exclaimed that he did not rape people, insisting, "[P]ussies free. There's so many women in this world that will just give it to me." The detective responded, "You just asked for a lawyer so I can't ask you any more questions." Defendant continued to insist he did not rape people. The detective reminded him, "[I]f you say you want a lawyer, I gotta stop," but defendant demanded to confront his accuser. The detective said he knew defendant was in the victim's house and the detective wanted to know if they had sex; defendant said, "No, my lawyer will tell you that. So I'm not gonna tell you." And the detective said, "[Y]ou want me in here or not?" and when defendant said, "No, that's crazy man," the detective said, "[W]e're done," and the interrogation stopped.
B
Evidence from a custodial interrogation can be used against a defendant only after the defendant has made a knowing and intelligent waiver of the Fifth Amendment right to remain silent and the Sixth Amendment right to the assistance of counsel. (Miranda v. Arizona (1966) 384 U.S. 436, 478-479 [16 L.Ed.2d 694, 726] (Miranda).) An involuntary statement from a criminal suspect to a law enforcement officer is inadmissible. (People v. Neal (2003) 31 Cal.4th 63, 67.) To assess voluntariness, courts must take into account the defendant's age, experience, education, background, and intelligence. (Id. at p. 84.) At any stage of the subsequent interview, questioning must cease when a defendant invokes his right to an attorney. (Id. at pp. 67-68.) An invocation of the right to counsel must be unambiguous and unequivocal. (Davis v. U.S. (1994) 512 U.S. 452, 459 [129 L.Ed.2d 362, 371]; People v. Stitely (2005) 35 Cal.4th 514, 535-536.) Even in the face of an unambiguous request for counsel, questioning may resume if "the accused himself initiates further communication, exchanges, or conversations with the police." (Edwards v. Arizona (1981) 451 U.S. 477, 485 [68 L.Ed.2d 378, 386].) But merely mentioning a lawyer is not construed as an invocation of a suspect's constitutional rights. "[A]fter a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney." (Davis v. U.S., supra, 512 U.S. at p. 461.) Clarifying questions are not required and "[i]f the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." (Id. at pp. 461-462.) When an officer does choose to give the defendant a chance to clarify whether he wants to stop the interrogation and the defendant continues protesting his innocence and talking about the crime, Miranda rights have not been invoked. (People v. Stitely, supra, 35 Cal.4th at p. 536.) On review of a claim for violation of Miranda rights, we defer to the trial court's resolution of disputed facts, but we independently determine whether the defendant's statements were obtained in violation of Miranda's rules. (People v. Farnam (2002) 28 Cal.4th 107, 178.)
Defendant admitted at trial that he had been convicted of several crimes, he had been read his rights many times, and he began the interview in this case by waiving his rights and agreeing to talk to the detective. Defendant explained that he chose not to invoke his right to remain silent because he wanted to try to talk his way out of any charges.
Nevertheless, defendant contends he asserted his right to a lawyer at least six times during the interview. But as the trial court found, he never made an unambiguous or unequivocal request for a lawyer, and he freely volunteered to continue talking each time the detective asked him if he wanted to stop. Under the circumstances the trial court did not err in admitting the evidence of the custodial interrogation. (See People v. Stitely, supra, 35 Cal.4th at p. 536 [upholding admission of entire police interview at trial].)
II
Defendant next contends his trial was constitutionally unfair because the trial court failed to discharge a juror who fell asleep.
On the fifth day of testimony in the second trial, Juror No. 3 reported that Juror No. 2 appeared to have fallen asleep. The trial court questioned Juror No. 2, who admitted he had been having trouble staying awake that day and had not heard much of the testimony of one of the detectives, but he said he did hear most of the testimony of the other witnesses that day. The trial court reminded Juror No. 2 that he could have testimony read to him in the jury room during deliberations and admonished him to stay focused and awake during the proceedings; the juror said he probably would have testimony read back and he promised he would be able to stay awake. The prosecutor requested that the juror be removed anyway, but defense counsel said he was comfortable keeping him, noting that most of the missed testimony was undisputed and, in any event, its nature was not substantial enough to warrant discharge.
When a defendant fails to object at trial, he forfeits the right to object on appeal. (People v. Holloway (2004) 33 Cal.4th 96, 124.) In addition, it was defense counsel who said he was comfortable keeping Juror No. 2 on the jury, noting that the portion of testimony missed was not substantial.
A trial court may discharge a juror if there is good cause to believe the juror is unable to perform the juror's duties. (§ 1089.) But a trial court has broad discretion to determine whether there is good cause for discharge. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) We apply the demonstrable reality test to review the exercise of this discretion, which means we give deference to factual determinations and uphold legal conclusions when they are "manifestly supported by evidence on which the court actually relied." (Id. at pp. 1052-1053.) Although juror inattentiveness may constitute misconduct, a new trial is not granted merely because a juror slept through part of the trial; there must be proof that the juror slept during material portions of the trial. (People v. Bradford (1997) 15 Cal.4th 1229, 1349.)
Here, the trial court conducted a prompt inquiry, determining exactly which testimony Juror No. 2 missed. The trial court denied the prosecutor's motion to discharge the juror, explaining that "given the volume of evidence that's been put before the jury in this trial, I think whatever portions he may have missed . . . are not so substantial that would warrant his excusal from the jury."
The only testimony Juror No. 2 said he missed was that of Detective Crosby. Detective Crosby assisted Detective Newby in responding to the sexual assault investigation. Detective Crosby was the last witness of the day on the day of the report, a Monday, and her testimony continued Tuesday morning immediately after the court's examination of Juror No. 2. We have reviewed the record and determined that, during the time Juror No. 2 slept, Detective Crosby authenticated evidence from the scene of the crime and generally described the course of the investigation. But Officer Ley had already testified in detail about the same topics and Detective Crosby and Detective Newby covered it again as the trial continued. Given the limited nature of the missed testimony and the juror's commitment to pay closer attention, the trial court and defense counsel were satisfied that discharge was not warranted. That decision is supported by the evidence on which the trial court relied.
III
Defendant claims the trial court committed instructional error and there is insufficient evidence to support imposition of the One Strike sentence enhancement.
The One Strike statute is an alternative and harsher sentencing scheme that applies when a defendant commits an enumerated sex crime under one or more statutorily specified circumstances. (People v. Mancebo (2002) 27 Cal.4th 735, 741-742.) Each of defendant's sex offenses is one of the enumerated crimes. (§ 667.61, subd. (c)(1) [rape], (c)(5) [sexual penetration], (c)(7) [oral copulation].) The statute's 25-year penalty provision applies when one of those crimes is committed under any one of the circumstances described in subdivision (d) or any two of the circumstances set out in subdivision (e). (§ 667.61, subd. (a).) The jury found multiple circumstances identified in subdivision (e) as well as one circumstance under subdivision (d).
Subdivision (d)(4) triggers a 25-year penalty when "[t]he defendant committed the present offense during the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460 [burglary of an inhabited house], with intent to commit an offense specified in subdivision (c)." (§ 667.61, subd. (d)(4).) CALCRIM No. 3178 sets forth the elements for the penalty. In addition to referring to burglary of an inhabited house, the instruction adds "or a room in an inhabited house," language that the instruction bench notes attribute to People v. Sparks (2002) 28 Cal.4th 71, 86. Defendant asserts that including the additional language allowed the jury to conclude that he formed the intent to commit sexual assault after the moment of break-in but before he entered a room within the victim's apartment but the jury should have been limited to considering his intent only at the moment of the break-in because the crime of burglary is complete upon entry.
In a related argument, he contends the only evidence about his intent at the moment of the break-in was his own testimony that he intended theft but not sexual assault. He argues there was insufficient evidence to support the jury finding under section 667.61, subdivision (d)(4), based on the victim's testimony that "the attacker's early emphasis was on obtaining cash" and his own characterization of the sex crimes as "crimes of opportunity."
Thus, defendant challenges the instructions and findings related to subdivision (d), but he does not challenge the jury's findings under subdivision (e). (§ 667.61, subds. (d), (e).)
There is authority upholding a One Strike penalty under subdivision (d)(4) of section 667.61, even though the defendant initially entered the victim's home under false pretenses and may not have formed an intent to rape until he later entered a bedroom within the home. (People v. Sparks, supra, 28 Cal.4th at p. 88.) In any event, even if defendant could succeed in his challenge under section 667.61, subdivision (d), the 25-year penalties would still be imposed because the jury also concluded defendant committed each of the sex offenses under circumstances identified under section 667.61, subdivision (e), viz., during commission of a residential burglary in violation of section 459 (the circumstance identified in § 667.61, subd. (e)(2)) and after tying and binding the victim (the circumstance identified in § 667.61, subd. (e)(5)). As for the rape and oral copulation charges, the jury further found defendant used a dangerous or deadly weapon as described in section 667.61, subdivision (e)(3). Thus, even if the instruction for subdivision (d) were wrong and the evidence was insufficient to support the jury's findings under subdivision (d), the 25-year penalties were independently required by the unchallenged jury findings under subdivision (e). (§ 667.61.) There being no possible prejudice to defendant, any error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] [harmless error standard where federal constitutional errors are alleged]; see also § 1258 [appellate courts disregard errors not affecting the substantial rights of the parties, based on Cal. Const., art. VI, § 13].)
Subdivision (d)(4) refers to punishment for sex crimes committed during a section 460 burglary "with intent to commit [the sex] offense," while subdivision (e)(2) refers to punishment for the same crimes committed during a section 459 burglary. (§ 667.61.) A burglary is in the first degree if an inhabited dwelling house or similar habitation; other burglaries are in the second degree. (§ 460.) --------
IV
Defendant further contends the consecutive sentences were not mandatory because his sex offenses did not occur on separate occasions.
Consecutive sentences are mandatory under the One Strike law if a trial court finds the offenses took place on separate occasions. (§ 667.61, subd. (i).) Assaults against the same victim occur on separate occasions if the defendant had reasonable opportunity to reflect on his or her actions between crimes and nevertheless resumed sexually assaultive behavior. (Cal. Rules of Court, rule 4.426(a)(2).) A finding of separate occasions is proven by a preponderance of the evidence. (People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1232.) Such a finding will be reversed on appeal only if "no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
Defendant argued at trial that his offenses occurred as part of a continuous course of conduct and thus the trial court had discretion to impose concurrent terms. The trial court rejected the argument, finding "there were several opportunities during what took place for [defendant] to leave and to abandon his criminal plan . . . . There were times when the victim was taken to different rooms and then returned to the bedroom, each time under [defendant]'s control and domination."
Substantial evidence supports the trial court's finding. The victim described a slow and deliberate sexual assault with various breaks and transitions. While the victim was face down on the bed, defendant rubbed her genital area with lotion and then penetrated her with his fingers. He had his fingers in her vagina for about five minutes. He stopped to penetrate her with a vibrator he found in the residence, saying, " 'I bet you're gonna like this.' " That lasted three to five minutes. Then defendant turned the victim on her back. The victim said she kicked and made noises and at some point was able to loosen the binding on her hands. She told police that when defendant saw that her hands were loose, he put a knife to her throat, said, " 'Shut up bitch or I'm going to kill you,' " retied her hands, and put a pillow over her face. While she was on her back, defendant penetrated the victim again with his fingers for a couple of minutes. For the next three to 10 minutes, while the victim remained tied up and crying, he orally copulated her and licked her breasts. Defendant stopped again to unzip his trousers, applied a condom, lifted the victim's legs to his chest, and inserted his penis into her vagina. Intercourse lasted about five minutes. He concluded by wiping her genitalia with a wet cloth. In the victim's bedroom, police collected a bottle of lotion, a vibrator, a bra with electrical cords tied to it, and a condom wrapper.
Defendant cites People v. Pena (1992) 7 Cal.App.4th 1294, People v. Irvin (1996) 43 Cal.App.4th 1063, and other cases, but each case is fact specific. In any event, we may reverse a finding supporting consecutive sentences for sexual assault crimes against a single victim only if no reasonable fact finder could have decided the defendant had an opportunity to reflect before resuming his assaultive behavior. (People v. Garza, supra, 107 Cal.App.4th at p. 1092.) Here defendant had ample opportunity to stop before each new crime, and the trial court's findings are supported by the record.
V
Defendant asserts the $600 sexual battery fine was unauthorized.
The trial court ordered defendant to pay a $600 fine pursuant to section 243.4. Section 243.4 prohibits sexual battery, but defendant points out that sexual battery was not pleaded or proved. The Attorney General agrees that the fine is unauthorized and should be stricken.
Although there was no objection to the fine, the contention is not forfeited if the fine could not have been imposed under any circumstances. (See People v. Smith (2001) 24 Cal.4th 849, 854 [appellate courts may correct obvious and easily fixable sentencing errors]; People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentences merit an exception to preservation of error requirements].) Because imposition of the $600 fine is a clear and correctable error, we will modify the judgment to strike the fine.
VI
Defendant contends his lengthy sentence violates the Eight Amendment protection against cruel and unusual punishment because it allows for no possibility of parole in his lifetime and thus is "an absurdity that serves no legitimate penal purpose." Defendant, who was 29 years old at the time of sentencing, argues that a proper sentence for the crimes in this case was a determinate sentence of four years plus a single indeterminate sentence of 25 years to life.
Arguing that we should remand for resentencing, defendant cites Coker v. Georgia (1977) 433 U.S. 584 , a case in which the United States Supreme Court held that a death sentence for rape of an adult woman was unconstitutional. That case is inapposite. He also cites concurring and dissenting opinions and a law review article, but those opinions are not controlling and they do not reflect the holdings of this court. (See People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 [noting that a lengthy sentence served a valid penological purpose by reflecting society's condemnation of the defendant's conduct and by providing a strong deterrent to others].)
In light of the controlling authority, defendant has not established that his sentence violates the constitutional prohibition against cruel and unusual punishment.
DISPOSITION
The judgment is modified to strike the $600 sexual battery fine. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting the modified judgment and to deliver a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
MAURO, J. We concur: BLEASE, Acting P. J. DUARTE, J.