P. v. Thao
Filed 1/24/13 P. v. Thao CA3
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
THE PEOPLE,
Plaintiff and Respondent,
v.
LUE SENG THAO,
Defendant and Appellant.
C068080
(Super. Ct. No. 08F03349)
A jury
convicted defendant Lue Seng Thao of attempted
§§ 664/187)
title="">[1],
assault with a firearm (count 1; §
245, subd. (a)(2)), and shooting at an
occupied vehicle (count 2; § 246).
As to count 3, the jury found true the allegation that defendant
personally and intentionally discharged a firearm within the meaning of section
12022.53, subdivision (c). As to count
1, the jury found true the allegation that defendant personally used a firearm
in the commission of a felony or attempted felony within the meaning of section
12022.5, subdivision (a). The jury found
gang enhancement allegations (§ 186.22, subd. (b)(1)) not true.
The trial
court sentenced defendant to a term of life with the possibility of parole plus
20 years.
Defendant
contends his confession was involuntary, and that he received
because his trial counsel failed to raise the issue.
FACTUAL AND
PROCEDURAL BACKGROUND
Prior to
the shooting incident in question, defendant had two other encounters with the
victim, Choy Saephan. In the first
encounter, defendant and his codefendant Alex Lee attacked Saephan at a Hmong
New Year celebration. During the second
incident, Saephan was traveling in his car with his girlfriend. Saephan’s girlfriend told him that defendant
was in the car behind them, and when Saephan looked in his rearview mirror, he
saw defendant reach under his seat and take out a black handgun, which he
cocked.
Just before
the incident which was the basis of the charges in question, Saephan saw
codefendant Lee at a gas station. Lee
was hiding behind a dark green van. When
Lee saw Saephan, he placed a telephone call on his cell phone. A little later, as Saephan drove down South
Avenue, the green van pulled up behind his
car. It then pulled alongside him, and
approximately 12 shots were fired.
Saephan thought one of the shots was aimed at his head, and another at
his body. The final shot went through
the trunk, and would have struck Saephan, except a metal bar kept it from going
further.
Police
discovered bullet casings and a bullet fragment at the scene of the
shooting. Six Winchester
0.380 rounds, one bullet fragment, and one spent round were recovered from the
scene. There were bullet holes on the
trunk, back end, and driver’s side rear door of Saephan’s car. Particles consistent with gunshot residue
were found on the interior front passenger’s side of the green van, which
defendant thought belonged to Lee’s mother.
Detectives
Bailey and McCoy interviewed defendant approximately a month after the
shooting. They read defendant his
rights, which he indicated he understood.
Defendant initially denied any involvement in the shooting, but
eventually admitted first that he had been present at the shooting, then that
he was the one who fired the shots.
Prior to
trial, defense counsel brought a motion to exclude defendant’s confession on
the ground he had not understood the Miranda
warning because of his limited proficiency in English. The trial court took testimony from
defendant. Defendant stated he was nine
years old when he came to the United States
from Thailand. His primary language is Hmong, although he
attended an English-speaking school in Sacramento
from the second to the twelfth grade.
Defendant was 19 years old at the time of the interview.
The trial
court found that defendant spoke to the detectives entirely in English, and
asked for the meaning of a word he did not understand. Otherwise, he appeared to understand everything
and to answer appropriately. Defendant
had a job at Taco Bell that required him to interact with the English-speaking
public. The court found the videotaped
interview showed that defendant’s understanding of English was adequate. The trial court denied defendant’s motion to
suppress his confession on the ground he had not understood the
The theory
of the defense was that defendant was guilty of shooting at an occupied
vehicle, but that he had no intent to kill.
DISCUSSION
Defendant now
claims the trial court should have excluded his confession on the ground it was
involuntary. He forfeited this
contention by failing to raise it at trial, and his trial counsel did not
render ineffective assistance by failing to raise the issue because the
confession was voluntary.
Defendant’s
only ground for claiming a Miranda
violation below was his claimed inability to understand the advisement because
of his lack of proficiency in English.
He now claims that his confession was not voluntary because the totality
of the circumstances indicates the confession was involuntary. Specifically, those circumstances are: (1) defendant was told the district attorney
would somehow go easier on him if he stopped lying; (2) the detectives made
several misrepresentations, telling defendant his DNA was on the bullet casings
and that there was a videotape showing him shooting at the victim’s car; and
(3) defendant was young and an immigrant.
“[U]nless a
defendant asserts in the trial court a specific ground for suppression of his
or her statements to police under Miranda,
that ground is forfeited on appeal, even if the defendant asserted other
arguments under the same decision.†(
1183, 1194.) Thus defendant has
forfeited the claim that his confession was involuntary by failing to object at
trial on the same ground.
Defendant
asserts he received ineffective assistance from his trial counsel because trial
counsel failed to object to his confession as involuntary. We disagree.
Failure to
advance meritless arguments does not render counsel ineffective. (People
v. Shelburne (1980) 104 Cal.App.3d 737, 744.) The circumstances of defendant’s confession,
either individually or collectively, did not render it involuntary, thus his
trial counsel did not render ineffective assistance by failing to raise this
meritless argument.
As to any
promise of leniency, the detectives repeatedly told defendant that when they
presented his statement to the district attorney, they would tell the district
attorney they thought defendant was a liar or was telling the truth. They told defendant they wanted him to “take
ownership†for what he had done. They
told him he would feel better if he got the truth off of his chest so that he
could move forward. They told him that a
judge, a district attorney, and a jury just want someone to tell the
truth. Detective McCoy told defendant,
“in my experience, when you’re dealing with a judge and D.A.s and lawyers,
they’re gonna go a lot easier on someone who tells the truth and admits to
their involvement, who basically admits responsibility for whatever they did,
as opposed to someone who tries to deceive us and lies about what
happened.†The detectives told defendant
that the jury would not think he was remorseful if he did not tell the truth.
The
detectives did not make any improper promise of leniency, but merely indicated
the advantages that would tend naturally to result from a true statement. This does not render a confession
involuntary. (People v. Ray (1996) 13 Cal.4th 313, 339-340.) The detectives’ statements were not so
coercive that they would have produced a statement that was both involuntary
and unreliable. (Ibid.)
Misrepresentations
similarly do not render a confession involuntary. “Where the deception is not of a type
reasonably likely to procure an untrue statement, a finding of involuntariness
is unwarranted.†(People v. Farnam (2002) 28 Cal.4th 107, 182.) Here, as indicated, the detectives
misrepresented to defendant that his DNA was on the bullet casings, and that an
off-duty officer had filmed the incident showing him shooting at the victim’s
car.
False
statements that incriminating evidence has been found rarely result in the
conclusion that the rational intellect and free will of the defendant has been
overcome. (People v. Farnam, supra, 28 Cal.4th 107, 182-183;
1216, 1241; People v. Thompson (1990)
50 Cal.3d 134, 166-167; People v. Watkins
(1970) 6 Cal.App.3d 119, 124-125.) The
link between the false statement and the confession must be a proximate cause
of the confession. (People v. Musselwhite, supra, at p. 1241.) There was no such proximate causation
here. In fact, the false statements
about incriminating evidence did not result in an immediate confession,
indicating defendant was able to continue to tell his story without his free
will having been overcome.
Finally,
although defendant was young he was legally an adult when he was interviewed,
and although he was an immigrant he had been in this country for 10 years. None of these circumstances, either
individually or together, is sufficient to indicate defendant’s confession was
involuntary. Consequently, his trial
counsel was not ineffective for failing to raise this argument at trial.
DISPOSITION
The
judgment is affirmed.
BLEASE , Acting
P. J.
We concur:
NICHOLSON , J.
MURRAY , J.
name="_ftn1" title="">[1] Further references to a section are to the
Penal Code.
name="_ftn2" title="">[2] Miranda
v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
