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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.


B165489
(Los Angeles County
Super. Ct. No. NA049682)

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.

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 His other claims are treated in the unpublished portion.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.



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.”


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 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 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.



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