Marlo Diano was convicted Nov. 19 of raping and murdering Oahn Tran on July 20 in the bedroom of the San Jose house Tran and Diano lived in as housemates, according to the District Attorney's Office.
Tran was found dead, lying on her bed, the night of July 21 by a group of friends who had become concerned after not hearing from her for more than 30 hours, prosecutors said. She had been asphyxiated, according to the coroner's report.
Diano, on probation at the time for a 2005 domestic violence case involving his girlfriend, was interviewed several times and said he did not really know the victim but that they had sex a week before Tran's death. Diano told investigators he used a condom, but his DNA was found when the coroner's office used a rape kit on Tran, prosecutors said.
Investigators also said they recovered Tran's cell phone and computer in Diano's possession.
Diano has maintained the sex was consensual and during the trial testified that he and Tran had sex and he lost consciousness during an argument that followed.
"His trial testimony was that they had consensual sex followed by an argument where he claims be blacked out and he came to with his hands on her neck and she was dead," prosecutor Brian Welch said.
Diano testified that Tran was on the floor when she died.
"Then he testified that he cleaned up her body to remove traces of DNA, (then) he dressed her and put her onto the bed to make it look like she had died in her sleep," Welch said. "That was the first time he gave that story, despite being interviewed by police on multiple occasions."
Prosecutors believe Diano used the explanation to elicit a manslaughter conviction from the jury instead of a heavier conviction, Welch said.
However, Diano was convicted of first-degree murder with the special circumstances of committing the murder while in the commission of rape.
Tran's father asked to give a statement today before Diano was sentenced. He stood solemnly with hands held behind his back before Judge Arthur Bocanegra and spoke through a Vietnamese interpreter.
Tran's father fought back tears and said he has suffered a big loss. His teary family members and friends sat behind him as he thanked the court for its work in bringing Diano to justice.
Bocanegra then agreed to allow Diano a brief statement, but warned him to address only the court and not the two-dozen family members of the woman he killed.
"I apologize to the family of the victim," Diano said through a Tagalog interpreter. "Her death was an accident. I really apologize. I know that's a big sin."
After Judge Bocanegra handed down the sentence, Diano's public defender Carl Beatty said he plans to file an appeal in the case today.
Beatty said various pretrial motions and the fact that Diano was not allowed a Tagalog interpreter when interviewed numerous times by police would likely be some of the issues raised in the appeal.
"He was very disappointed in the jury's verdict," Beatty said. "He admitted causing the death of the victim but has always denied sexually assaulting her."
Diano's interviews with police were recorded and taped and clearly show him speaking English well enough, according to Welch.
Welch explained that when the interviews became difficult for Diano or when he was cornered by evidence, he would request an interpreter as a way out.
