Filed 7/23/15 P. v. Henson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067419
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10905879)
                   v.

SCOTTY EDWARD HENSON,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza,
Judge.
         Michael B. McPartland, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Daniel
B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Poochigian, J. and Peña, J.
       Defendant Scotty Edward Henson was convicted by jury trial of home invasion
robbery in concert (Pen. Code, § 213, subd. (a)(1)(A);1 count 1), false imprisonment by
violence (§ 236; count 2), first degree burglary of an occupied home (§§ 459, 460,
subd. (a); count 3), and first degree burglary of another occupied home (§§ 459, 460,
subd. (a); count 4). The jury found true various firearm allegations, and the trial court
found true allegations of prior felony convictions and prior prison terms. The court
sentenced him to 71 years to life in prison pursuant to the “Three Strikes” law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)). On appeal, defendant contends the trial court
erred in denying (1) his motion to suppress evidence and (2) his motion to dismiss his
prior strike convictions. We disagree with these contentions and we affirm.
                                          FACTS
       Defendant and two other armed men broke into and entered a home in rural
Kerman in the afternoon. A mother and her two young children were at home. The men
forced the mother at gunpoint to remain in the bedroom with her children while the men
ransacked the house for valuables. Defendant pointed a shotgun at the mother. Less than
a week later, defendant participated in the burglary of another house in Fresno.
                                      DISCUSSION
I.     Motion to Suppress
       Defendant contends the trial court should have granted his motion to suppress
evidence of statements he made during a second interview because he was not readvised
of his Miranda2 rights.
       A.     Facts
       Defendant moved to suppress evidence of statements he made during two
interviews. He argued that at the first interview, he did not respond to two of the


1      All statutory references are to the Penal Code unless otherwise noted.
2      Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).


                                             2.
detective’s questions regarding his Miranda rights and, thus, he did not understand his
rights. And at the second interview, he should have been readvised of his rights because
the interview was 43 hours after the first interview, and the readvisement that was given
was inadequate. He explained that his misunderstanding of his Miranda rights was
shown by his mention at the second interview of only his right to remain silent. Finally,
he argued that he lacked education and his confession was coerced because he was
emotionally and psychologically affected by the detectives’ reference to his child and
pregnant wife.3
      At the hearing on the motion, the following evidence was presented:
      After defendant was arrested, he was taken to the sheriff’s department
headquarters. Detective Hawkins and Detective Asselin brought defendant into an
interview room to talk to him about the home invasion robbery and several burglaries.
Defendant’s wife, who was not under arrest, and their baby were in another room with a
female detective. Before the interview, Hawkins read defendant his Miranda rights from
a card. After Hawkins read each right, he asked defendant if he understood. Each time,
defendant looked at him and said, “yes.” Some of his responses were not audible on the
video recording, but Hawkins testified that defendant did answer. The interview lasted
about one hour and 30 minutes.
       After the interview, defendant was booked into the county jail. Two days later, he
was brought from jail back to the same location for a second interview by Hawkins, who
was joined this time by Sergeant Reynolds. The interview began as follows:

             “[Hawkins]: So, you remember your rights and stuff from when I
      read them to you Thursday evening. Do you want me to read them to you
      again, or?



3      At the hearing, defendant argued that hearing his child crying in the next room
created a coercive environment.


                                            3.
              “[Defendant]: I could probably read it back to you pretty much
       verbatim. Right to remain silent, at any given time I can say I’m done
       talking to you.

              “[Hawkins]: Okay, you’re correct. All right um, basically why
       we’re in here today because my Sargent [sic] and I had been talking. Um,
       we tried to give you a little bit of an opportunity to and just—just hear me
       out, okay, to tell your side of the story on everything because you know—
       ‘cause you—you been through this before Scott, you’re not—you—going
       through the court system and dealing with the judge and the court system.

              “[Defendant]: Yeah (unintelligible).”
       Hawkins testified that defendant had been arrested and through the criminal justice
system before. He had been on parole, had suffered two prior strike convictions in 1998,
and had been convicted of other crimes in 2003 and 2007. Only three months before he
was arrested in this case, he was advised of his Miranda rights by a police officer who
spoke to him in the hospital. Defendant stated that he understood the rights, and then
said, “‘I want to talk to a lawyer.’” The interview was terminated and the officer asked
no further questions.
       After hearing the evidence and reviewing the recorded interviews, the trial court,
expressly finding Hawkins’s testimony credible, found that defendant had indeed
responded affirmatively in the first interview to all of Hawkins’s questions. The court
found no evidence of any coercion. As for the second interview, the court concluded
readvisement was not necessary “given the short delay” between the initial advisement
and the second interview. The court noted it was “abundantly clear that at the outset of
the second interview … that reference was made to the prior advisements and that at that
point the defendant was willing and voluntarily willing to speak to the detectives in
regards to the second interview.”
       On appeal, defendant challenges the trial court’s denial of his suppression motion
only as to the statements he made at the second interview. He contends he did not make
a voluntary, knowing, and intelligent waiver of his Miranda rights before making



                                             4.
statements to Hawkins at the second interview because he was not readvised of his rights.
He points out it had been two days since the previous advisements; a different second
officer was present with Hawkins; the previous advisements were insufficient because
defendant was upset and crying and not likely to understand them; and his lack of
understanding was shown by his mention of only his right to remain silent, and not his
right to an attorney, when he was asked if he remembered the previous advisements.
         B.    Analysis
         The prosecution bears the burden of demonstrating the validity of a defendant’s
waiver of his Miranda rights by a preponderance of the evidence. The question is
whether the alleged waiver was voluntary, knowing, and intelligent under the totality of
the circumstances surrounding the interrogation. (People v. Williams (2010) 49 Cal.4th
405, 425.) “In considering a claim that a statement or confession is inadmissible because
it was obtained in violation of a defendant’s rights under Miranda …, supra, 384 U.S.
436, the scope of our review is well established. ‘We must accept the trial court’s
resolution of disputed facts and inferences, and its evaluations of credibility, if they are
substantially supported. [Citations.] However, we must independently determine from
the undisputed facts, and those properly found by the trial court, whether the challenged
statement was illegally obtained.’” (People v. Bradford (1997) 14 Cal.4th 1005, 1032-
1033.)
         In Miranda, supra, 384 U.S. 436, the United States Supreme Court held that prior
to any custodial interrogation, police officers must advise a criminal suspect of his right
to remain silent, to have an attorney present, and to have an appointed attorney if the
suspect is indigent, and he must be warned that any statement he does make may be used
against him. (Id. at p. 444.) A defendant’s statements obtained in noncompliance with
this rule cannot be introduced into evidence to establish his guilt. (Ibid.) However,
“[t]he defendant may waive effectuation of [his Miranda] rights, provided the waiver is
made voluntarily, knowingly and intelligently.” (Ibid.)

                                              5.
       “‘After a valid Miranda waiver, readvisement prior to continued custodial
interrogation is unnecessary “so long as a proper warning has been given, and ‘the
subsequent interrogation is “reasonably contemporaneous” with the prior knowing and
intelligent waiver.’ [Citations.]” [Citation.] The necessity for readvisement depends
upon various circumstances, including the amount of time that has elapsed since the first
waiver, changes in the identity of the interrogating officer and the location of the
interrogation, any reminder of the prior advisement, the defendant’s experience with the
criminal justice system, and “[other] indicia that the defendant subjectively underst[ood]
and waive[d] his rights.”’ [Citation.] [The Supreme Court has] permitted as ‘reasonably
contemporaneous’ the resumption of interrogation without a readvisement even a day or
two after the initial waiver.” (People v. Duff (2014) 58 Cal.4th 527, 555; see People v.
Williams, supra, 49 Cal.4th at p. 435 [no readvisement required after 40 hours and where
the defendant had experience with the criminal justice system].)
       For example, in People v. Mickle (1991) 54 Cal.3d 140 at page 171, the court
determined readvisement was unnecessary before a hospital interview occurring 36 hours
after the defendant had twice received and twice waived his Miranda rights. The court
explained: “It was clear from the circumstances that defendant was still in official
custody. He was familiar with the criminal justice system and could reasonably be
expected to know that any statements made at this time might be used against him in the
investigation and any subsequent trial. Indeed, the hospital interview was conducted by
the same two officers who had interrogated defendant and placed him under arrest at the
police station. By asking whether he ‘remembered’ them and the prior ‘conversation,’
the officers implied that they were simply tying up loose ends from the earlier
[interrogation]. Nothing in the record indicates that defendant was mentally impaired or
otherwise incapable of remembering the prior advisement and deciding to answer a few
more questions. Under these facts, no Miranda violation occurred.” (People v. Mickle,
supra, at p. 171.)

                                             6.
       Here, considering the totality of the circumstances, we agree with the trial court’s
conclusion that readvisement at the second interview was not required. The two-day
delay, in itself, did not necessitate readvisement. Hawkins was present at both
interviews, even though the other officer changed. Defendant remained in custody and
was interviewed at the same location. Nothing about the second interview would have
suggested to him that the officers were no longer seeking to obtain incriminating
evidence from him. Furthermore, the evidence supported the conclusion that defendant
did understand his rights. Although his wife and child were nearby during the first
interview, nothing suggested that their presence rendered defendant so emotional that he
was unable to understand his rights. In fact, he had a criminal record and was familiar
with the justice system. Only three months earlier, he had been advised of his rights.
And when Hawkins asked him at the second interview if he would like to hear his rights
again, defendant nonchalantly said he could probably recite them “pretty much
verbatim,” suggesting he had heard his rights often enough to know them and did not
want or need to hear them again. Under all the circumstances, we conclude the trial court
correctly concluded defendant’s ongoing waiver of his Miranda rights was voluntary,
knowing, and intelligent. The court did not err in denying the motion to suppress.
II.    Romero4 Motion
       Defendant also contends the trial court erred when it refused to dismiss one or
both of his prior strike convictions pursuant to section 1385 and Romero, supra, 13
Cal.4th 497.
       Section 1385 grants trial courts the discretion to dismiss prior strike convictions if
the dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at
pp. 529-530.) “‘A court’s discretion to strike [or vacate] prior felony conviction


4      People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).



                                             7.
allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in
strict compliance with [Penal Code] section 1385[, subdivision ](a).’” (People v.
Williams (1998) 17 Cal.4th 148, 158, last brackets added].) The Three Strikes law “was
intended to restrict courts’ discretion in sentencing repeat offenders.” (Romero, supra, at
p. 528; People v. Garcia (1999) 20 Cal.4th 490, 501 [“a primary purpose of the Three
Strikes law was to restrict judicial discretion”].) The Three Strikes law establishes “‘a
sentencing requirement to be applied in every case where the defendant has at least one
qualifying strike’” unless the sentencing court finds a reason for making an exception to
this rule. (People v. Carmony (2004) 33 Cal.4th 367, 377.) There are “stringent
standards that sentencing courts must follow in order to find such an exception.” (Ibid.)
In order to dismiss a prior strike conviction, “the court in question must consider whether,
in light of the nature and circumstances of [the defendant’s] present felonies and prior
serious and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.” (People v. Williams, supra,
17 Cal.4th at p. 161.)
       A trial court’s decision not to dismiss a prior strike conviction is reviewed under
the deferential abuse of discretion standard. (People v. Carmony, supra, 33 Cal.4th at
p. 374.) An abuse of discretion is established by demonstrating that the trial court’s
decision is “irrational or arbitrary. It is not enough to show that reasonable people might
disagree about whether to strike one or more of his prior convictions.” (People v. Myers
(1999) 69 Cal.App.4th 305, 310.) When the record shows the trial court considered
relevant factors and acted to achieve legitimate sentencing objectives, the court’s decision
will not be disturbed on appeal. (Ibid.)
       In this case, defendant moved to dismiss his two prior strike convictions for first
degree burglary and assault upon an officer with a deadly weapon. He argued that he was

                                             8.
raised by drug abusers and left home at age 12, receiving no education past the sixth
grade; he had been abusing drugs his whole life and was addicted to methamphetamine;
both of his prior strike convictions arose from a single incident that occurred when he
was 17 years old and on a methamphetamine binge; and the facts of his prior strike
convictions were less egregious than the typical residential burglary because he burgled
open garages, not actual living spaces.
       In denying the motion, the trial court stated:

       “The defendant’s criminal history truly spans two decades and is
       substantial. And additionally, the current crimes, as well as some of the
       prior crimes, involve acts of violence or serious danger to the public. [¶]
       … [¶] All right. So the Court has considered the factors in aggravation,
       specifically that the crimes involve great violence, the threat of great bodily
       harm. The manner in which the crimes were carried out indicate to the
       Court planning and sophistication. Additionally, the defendant’s prior
       convictions as an adult are of increasing seriousness. Defendant was on
       parole when the crime was committed and his prior performance on
       probation or parole was unsatisfactory. [¶] The Court finds no factors in
       mitigation relating to the crime or to the defendant.”
       Defendant’s probation report shows that his juvenile history, which began at
13 years of age, included vehicle theft and evading an officer. His first adult convictions
were the two strike convictions in 1998 for assault with a deadly weapon (a vehicle) upon
an officer and first degree burglary. In 2002, he violated parole and was returned to
prison. In 2003, he was convicted of stealing a vehicle and evading an officer, both
felonies he committed a few months after his release from prison. He was returned to
prison. In 2005, he violated parole a few months after his release from prison and was
returned to prison. In 2006, he was convicted of misdemeanor possession of marijuana.
In 2008, he violated parole and was returned to prison. In 2009, he was convicted of
misdemeanor assault.




                                             9.
       In the current case, defendant entered a house when its inhabitants were present.
He and two other men all pointed their weapons at the mother who was trying to protect
her young children. Defendant was armed with a shotgun.
       We conclude defendant has failed to establish that the trial court’s denial of the
motion to dismiss his prior strike convictions was outside the bounds of reason under the
facts and the law. We will not find an abuse of discretion unless the decision was so
irrational or arbitrary that no reasonable person could agree with it. And here it clearly
was not. The trial court considered relevant factors and acted to achieve legitimate
sentencing objectives, and we agree with the court’s conclusion that defendant falls well
within the spirit of the Three Strikes law. As the probation report notes, defendant’s prior
convictions were numerous and his prior performance on parole was unsatisfactory.
When he was out of custody, he engaged in criminal conduct and was returned to
custody. Many of his crimes involved violence or the threat of violence, and his violence
was escalating. His current crimes involved the invasion of an inhabited home where he
and his armed cohorts held a mother and her two young children at gunpoint. We see no
abuse of discretion in the trial court’s denial of defendant’s Romero motion.
                                      DISPOSITION
       The judgment is affirmed.




                                            10.
