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Name: People v. Riva
Case #: B157868
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 10/22/2003
Subsequent History: None

In appellant’s first trial, statements he had made during a jail interview were held to be inadmissible. The first trial ended in a mistrial, and the case was reassigned to another judge for retrial. Appellant again moved to exclude all statements made to police and also argued that the second judge was bound by the first judge’s ruling excluding the statements. The second judge held that he was not bound by the decisions made at the first hearing, and disagreed with them. The second judge allowed the prosecution to introduce the statements, and appellant was convicted. The appellate court held that the trial court did not err when it admitted the statements. The second judge had the authority to revisit and overrule the first judge’s Miranda rulings. Since the first judge’s ruling was unsupported by California case law, the second judge had a sufficiently persuasive reason for reversing it. (Police officers resumed questioning appellant an hour after he invoked his right to remain silent by saying he did not want to talk any more “right now,” and asked him if he was willing to talk again before questioning him the second time. Under the totality of circumstances, the statements made at the second interrogation were voluntary and were made after the original Miranda warning.) The trial court did not err in admitting hearsay evidence under the “spontaneous declaration” exception where a witness’s statement that “he was trying to shoot us, but we ducked” was made a few minutes after the shooting at the scene of the offense. The requirements for excitement and spontaneity were met. The trial court’s instruction on assault, using the 1998 version of CALJIC 9.00, was erroneous, but the error was harmless. The instruction was rejected by the Supreme Court in People v. Williams because assault requires actual knowledge that the act will result in a battery. Here, however, the jury would have convicted appellant of assault even if the instruction had included the “awareness of facts” ingredient. Further, the information in this case alleged 12022.53, subd.(d) enhancements as to the voluntary manslaughter and assault, but not as to the count charging a violation of section 246, shooting at a vehicle. On appeal, appellant alleged that 12022.53, subd.(d), requires that the allegation of the enhancement be included in each count to which the prosecution seeks to have it imposed. The appellate court here rejected that argument, finding that although the better practice is to allege the enhancement with respect to every count, the failure to do so is not fatal as long as the defendant has fair notice of his potential punishment, which he did in this case.