Opinion
A129154
02-17-2012
THE PEOPLE, Plaintiff and Respondent, v. PAULA BENAVIDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City and County Super. Ct. No. 202358)
Appellant was convicted of voluntary manslaughter and assault in connection with the death of a woman whose body was found in a residential hotel room appellant had been renting. Appellant contends that incriminating statements she made during a police interrogation, which were used against her at trial, were obtained in violation of her right to remain silent, and were not made voluntarily. We disagree, and affirm.
FACTS AND PROCEDURAL BACKGROUND
A. Factual Background
For some time prior to the spring of 2007, appellant had a romantic relationship with a man named Eric Jackson. During their relationship, Jackson was charged with domestic violence against appellant. Appellant obtained an emergency protective order, but the criminal case against Jackson was dismissed. For a 45-day period in the spring of 2007, Jackson served time in jail for selling methamphetamine. By the time Jackson went to jail, his relationship with appellant was winding down, and they were not living together.
When first contacted by the police regarding the homicide involved in this case, Jackson admitted knowing appellant, but denied having a romantic relationship with her. In a later interview, however, he admitted being involved with appellant for about nine months. At appellant's preliminary hearing, Jackson admitted his initial denial was a lie.
After Jackson went to jail, appellant lived for a time in room 307 at the Auburn Hotel in San Francisco (the hotel). As of late April 2007, appellant was preparing to move out of her room, because she could no longer pay the rent.
B. Discovery and Investigation of Homicide
On April 26, 2007, while appellant was still staying at the hotel, Jackson was released from jail. That evening, around 8:30 p.m., police responded to a call about trespassers at the hotel. A desk clerk told the police that appellant and Jackson were in room 307, and were not supposed to be there. The officers went to room 307 and found the door slightly ajar, with music playing and a light on inside the room. One of the officers knocked and said, "Police," but no one responded. Upon opening the door, the police found the dead body of a woman named Maureen Clark, who was clutching a wig in her hand. The room was in disarray.
Clark's autopsy revealed that she died from compressional asphyxiation, combined with blunt force head trauma and substance abuse. She had methamphetamine, cocaine, morphine, and amphetamine in her blood, which might have accelerated her death, but did not cause it. It appeared to the medical examiner that someone had sat on Clark and smothered her. Clark also had abrasions and scrapes on her face and neck; a black eye; contusions on her forehead and knuckles; and bruises on her head, breast, back, and ribs. She had petechia on her eyelids, which may be caused by strangulation, chest compression, or a heart attack. Two of her ribs were fractured and displaced, and there was a bite mark on her upper left thigh. There was no definitive evidence of sexual assault. The autopsy did not determine the time of Clark's death.
The prosecution introduced evidence that Clark had been seen alive around noon on April 26, 2007, when she made a withdrawal from a bank account. It is not disputed that Clark died sometime between then and 8:30 p.m. that evening.
Swabs were taken from various places on Clark's body, and tested for DNA. Some of the swabs, including one from the site of the bite mark and one from Clark's right thigh, had DNA on them that could have come from appellant. Only one of the swabs, taken from Clark's left thigh, revealed DNA that could have come from Jackson. Some of the DNA found on Clark's body did not come from Clark, appellant, or Jackson.
After trial, the prosecution disclosed that sperm found on Clark's breast matched the DNA of a man named Ronald Miles who admitted that he had been to the hotel and might have had sex with Clark there. Miles had previously assaulted and tried to kill one of his girlfriends. Clark had also been assaulted in the past by another man, David Hairston, with whom she had a sexual relationship. Appellant filed a motion for new trial based in part on these facts, but on appeal, she does not challenge the denial of that motion.
C. Jackson's Testimony
Jackson's version of the events leading to Clark's death was as follows. He was released from jail on April 26, 2007, and went to the hotel at about 2:00 p.m. to pick up some clothes he had left there. From the third floor of the hotel, Jackson saw appellant going down the stairs from the second floor to the first floor, and called out to her, but she did not respond. Jackson also encountered a friend of his named Eugene in the hotel bathroom. Eugene told Jackson that he had been "messin[g] with" appellant, which Jackson took to mean that Eugene and appellant were in a sexual relationship.
At appellant's trial, Jackson invoked his Fifth Amendment privilege, so his preliminary hearing testimony was read to the jury. The prosecution also introduced transcripts of two police interviews of Jackson. The first (the May 8 interview) was conducted on May 8, 2007, shortly before appellant's arrest, and the second (the May 22 interview) occurred on May 22, 2007, after appellant had been questioned.
Eugene told Jackson that his clothes were in room 307. Upon arriving at room 307, Jackson found Eugene lying on the bed. Jackson saw a pair of his shoes in the room and put them on, and while he was there, appellant arrived and told him his clothes were in one of the numerous suitcases stored in the room. Jackson started packing up his clothing, and then left the hotel. He returned later, however, and saw appellant there again.
Jackson denied beating, threatening, or assaulting appellant that day. He admitted asking appellant for money, but denied being angry at her when she did not give him any. He acknowledged that he had spoken with appellant while she was in the shower, but denied that he had broken open the shower door. Contradicting his statement during the May 8 interview, Jackson admitted at the pretrial hearing that he engaged in sexual activity with appellant while they were in room 307 together, but he contended that she initiated it, and indicated that he had not been particularly aroused by her advances.
During the May 8 interview, Jackson denied that he had ever hit appellant. In the May 22 interview, however, he admitted that he and appellant had "gotten into it . . . before," but denied beating her. During both interviews, Jackson characterized appellant as having an "anger problem."
Jackson testified that he went in and out of the hotel several times during the afternoon of April 26, 2007. According to Jackson, appellant told him that a man named Ken had hit her, giving her a black eye, because Ken owed her money. Jackson later saw appellant in the company of a white man and a petite white woman, arguing with Ken at the door of Ken's hotel room.
Clark could have met this description, as she was white, was five feet one inch tall, and weighed 111 pounds. However, Jackson was not sure whether the woman he saw in appellant's company arguing with Ken was the same woman whose body he later saw in room 307.
At about 3:00 or 4:00 p.m., Jackson went to a room on the second floor of the hotel to play cards with two men named Dave and George. About an hour later, Jackson went back upstairs to retrieve his clothing, and encountered appellant in the hallway on the third floor, crying. According to Jackson, appellant said "She dead," and when Jackson asked who was dead, appellant led him to room 307 and opened the door, at which point Jackson saw a woman's bare legs. Upon looking further into the room, Jackson could also see the woman's face. Jackson asked appellant what she had done, and appellant responded, "I killed her." Jackson asked how, and appellant said she had "beat her up." Jackson saw Dave coming, and called him over to look into the room. Jackson then left the hotel, and advised appellant to do so as well. Jackson and appellant did not see one another after that.
During the May 8 interview, Jackson at first denied seeing the victim's body in room 307, or being in the hotel when she was killed. When the police told Jackson that David had informed them otherwise, he admitted that appellant showed him the body, and that he then showed it to David. He denied, however, that he had anything to do with the woman's death, or had any knowledge about how it happened. During the May 22 interview, Jackson also denied ever being alone in room 307 with the victim, and stated that he never touched her.
By way of impeachment of Jackson, the prosecution stipulated, at the request of the defense, that he had been convicted of two felony drug offenses within the previous 10 years.
D. Arrest and Interrogation of Appellant
On May 9, 2007, a police officer approached appellant and asked for her name. Appellant initially replied, "Jessica," but when the officer confronted her with a photograph of her, bearing her true name, appellant readily admitted her real identity, and was cooperative. Appellant was then arrested and taken to the police station, where San Francisco police Inspector Lea Militello, sometimes joined by her colleague Inspector Kevin Jones, interviewed appellant for four hours, starting at around 11:00 p.m. The police made a video recording of the interview. After a pretrial hearing under Evidence Code section 402 to determine the admissibility of appellant's statements, which included a review of parts, but not all, of the video, the trial court ruled that appellant's statements during the interview were admissible. With the exception of a few portions near the beginning of the interview, and appellant's telephone call to her mother, the jury was shown the video and given the transcript.
Appellant later explained that she had registered under a false name at the hotel where the police found her because she was hiding from Jackson, but she did not have anything to hide from the police.
The video recording was admitted into evidence as an exhibit, in the form of two DVD's. The DVD's were transmitted to this court at the request of appellant's counsel. This court has considered the video recording of the entire interview, as well as the transcript, as part of its review of the record. Because the admissibility of appellant's statements during the interview is the focus of her appeal, we necessarily describe its progression in considerable detail.
At the outset of the interview, in the portions not shown to the jury, the inspectors offered appellant a soft drink, which she initially declined. She asked if she could call her mother, and was allowed a brief call, during which appellant told her mother that she was in custody for questioning, and did not know the reason. Militello told appellant, "It's okay, we just want to talk to you. It's not that big of a deal." Militello then took the phone and told appellant's mother that appellant would be permitted to call back after the inspectors were finished questioning her. During the background questioning that ensued, in a part of the transcript not given to the jury, when appellant revealed that her youngest child had been taken away from her by the father, Jones suggested to her that she had "a lot of rights," as the biological mother, and should consider going to family court to assert them.
At the beginning of the portion of the transcript given to the jury, Jones told appellant that the inspectors "want to talk to you and see if you can help us out with some information," and that they would explain why. Jones then stated that because police officers had been sent to bring appellant to the police station, the inspectors were required to advise her of her rights before questioning her. Militello read a card to appellant describing her right to remain silent and her right to counsel. Appellant stated affirmatively that she understood each of these rights, and that she was willing to talk to the inspectors.
When Jones asked appellant why she had moved to the place where she had been staying for about the last three weeks, appellant responded, "Because I heard [unintelligible] in the alley [unintelligible] dead in that room." Jones asked appellant to "tell me about what you know about that," and appellant responded "Eric did it," and began to cry.
Appellant cried, sometimes intensely, at various times during the remainder of the interview.
In a passage omitted from the transcript given to the jury, appellant added that someone had told her just that day that when Jackson saw a news story about Clark's death on television, "he threw a knife under the bed and said 'Oh my God, they know.' " Appellant then told the inspectors that Jackson had been hitting her and she had two restraining orders against him. She said she did not know who "that woman" was (apparently referring to Clark), and explained that she knew Jackson killed the woman because people at the hotel were saying "there was a girl that was dead in the room and they thought it was me, that Eric [Jackson] had sliced my throat." She added that "then everybody was blaming me, the cops were looking for me for something and I was like for what? And it scared me because I wouldn't do that to nobody," and cried again. Militello reminded her that the inspectors were investigating a homicide, and that it was important to be honest with them. She told appellant that "if you're not involved in this we will do whatever we can for you, okay. But you have to be honest with us." Appellant responded that she was being honest.
Appellant's initial version of the events leading to Clark's death was as follows.That afternoon, she left the building to go to the store, and heard Jackson call out to her from the top of the stairs, threatening to break her jaw and asking her to "come here." Appellant refused, got scared, and left the building.
The remaining portions of the interview were included in the version given to the jury, except as specifically noted.
When appellant returned, Jackson was in her room along with her boyfriend (whom she said was named Everett, not Eugene), was smoking crack and digging through bags looking for his clothes, and "had stuff thrown all over the place in there." Appellant and Jackson began to argue, and she became nervous because she was afraid Jackson would beat her up, so she left to take a shower. While she was in the shower, Jackson "busted the shower door open," and expressed anger that she had entered into a relationship with another man while he was serving a brief jail term. According to appellant, she responded by asking him "for what[,] Eric, all you do is beat me up." Jackson then asked her if she had any "dope," and when appellant said no, he told her to obtain some because he "want[ed] to get high with you for the last time." Appellant said Jackson kept pushing her around, threatened her, and would not let her into her room, so she left the building. When she returned, she "walk[ed] in my room and there's some girl dead on my floor." She and Jackson then both left the building.
When appellant finished relating this version of the story, she told the inspectors that Jackson "doesn't ever stop beating me" and would not stop. Militello responded that "he's going to stop hitting you now[,] Paula[,] because we're not going to let him hit you anymore." Appellant then began to cry again, and Militello prompted her to continue talking. Appellant responded, "I already told you, I'm not going to say it again because you guys are trying to get me all confused. I'm telling you, the dude's a fucking asshole, okay, he's a jerk, I hate his guts, and he hits me and he's trying to get me in trouble all the time and this always happens. I'm not going to take the blame for nothing that he did." Militello assured her that "Nobody's trying to make you take the blame for anything." Appellant disagreed, asserting that if questioned, the residents of the Tenderloin would tell the police that "Eric did it," because "they thought that it was me [who was] dead." In response, Militello said, "Okay. Which has to be very scary for you sweety, we understand that," and then told appellant "now we need to get back to that night, okay." Appellant reacted by saying, "Oh my God, man," and Militello assured her that she was "doing really well," and that if she wanted "to make sure that your side gets out there, that the right information . . . ," she needed "to keep talking and helping us so we can understand." Appellant expressed frustration, saying she was "tired of talking about the same thing over and over." Militello assured her that they were "about to move onto a new question."
Militello then explained that she and Jones had already investigated and obtained "an idea of the story, which is why you're here," and that they wanted "to know how it is that [she knew] the lady that was killed." Appellant said Clark had come into her room and "wanted to score some speed," and Jones encouraged her to resume telling the story from that point, which was "the really important part." Appellant said she told Clark she did not have any speed, but Clark, the people she was with, and Jackson continued to bother her even though she asked them to leave her alone. Jackson left, but Clark kept arguing with appellant and screaming at her; followed her into her room; offered her five dollars; and threatened that a man named David would "have three people hurt [appellant]" and have her killed. Appellant explained that she had never seen Clark before, did not know her, and thought she might be an undercover narcotics officer trying to set appellant up. According to appellant, her argument with Clark was interrupted when someone knocked on the door, and appellant opened it. She told Clark to "get out," and Clark left the room. Appellant was confused about what happened after that, but there were people in the hallway arguing, and people came into her room and told her Jackson was looking for her and was trying to set her up and make her "pay for putting him in jail" for hitting her.
Then appellant said she talked to "a little white guy" who lived in a room on the third floor of the hotel, apparently at a later time. Appellant said this person told her that he had seen Jackson coming out of her room; that Jackson had told him "not to say nothing"; and that people believed there was "a girl in the room with her throat sliced" and that the "girl" was appellant. Appellant went on to say she had talked to people who were surprised to see appellant alive, and when they explained why, appellant panicked and got scared, afraid she would be blamed because the incident occurred in her room.
Prompted by a question from Militello, appellant acknowledged that after Clark left appellant's room, she came back in. Appellant then averred that Clark hit her, explaining that she did not remember exactly what happened because she was drunk, angry, confused, and scared of Jackson, who kept following and harassing her. Militello then asked her when it was that she went in the room and noticed that Clark was dead. Appellant responded that after people started leaving and it got quiet, she walked back into her room, saw Clark lying on the floor, kicked her, and told her to get up. Appellant said Jackson then walked in and asked her what she had done, and she told him she had done nothing. He told her she had better leave, and they both left the building separately. Appellant explained that she did not want to call the police because it was her room and she was going to get blamed for it, even though she did not do it.
Jones asked what happened after Clark hit her, and appellant responded that she did not know. Militello asked whether appellant knew how Clark died, and appellant said she had been told that "they sliced her throat." Militello pointed out that "this is [a] part of the story that we know," and asked if appellant was aware that "there is video all throughout that hotel." When appellant said yes, Militello responded, "Okay, so that's why it's important right now for you to be as honest as you can be." Appellant then said she had "nothing else to say."
Appellant's opening brief characterizes this statement as her first invocation of her right to remain silent.
Militello urged appellant to relax, and appellant said it was "bothering" her that she was "going to get blamed for something that I didn't fucking do, [and] that this punk gets away with shit that he does to people all the time." Addressing appellant as "Sweety," Militello urged appellant to listen to her. Appellant muttered something about someone going to jail and dying in jail, apparently referring to Jackson, and Jones responded that "he's not going to unless you tell us everything that you know." Appellant responded that she had already told them everything she knew, that she would not tell them any more, and that she did not want to talk any more. Appellant also complained that Militello was "getting all red in the face and getting upset."
Appellant characterizes this statement as a second invocation of her right to remain silent.
Disregarding appellant's statement that she did not want to talk further, Jones showed her a photograph and said that he had talked to the person depicted for an hour or two the previous evening. Appellant identified the person as "Jeff the crackhead," and said he was not even there (apparently meaning that he was not there when Clark died). Jones said that Jeff said he was, and appellant repeated that this was not the case. Militello then told appellant that she and Jones had been told that appellant was "in the room with the young lady that was killed" and had been "very upset" and "hysterically crying." Militello assured appellant that she and Jones did not take this to mean that appellant had killed someone, but rather that appellant "happened upon a situation and it upset [her] greatly." Appellant confirmed that this was the case, and Militello explained that they wanted "to prevent another poor girl from being killed," not to "screw with" appellant and make her upset. Jones then chimed in, explaining that he and Militello had been told that "everyone knows that Eric knocks you around," and that they had tried to find appellant because they were worried about what might have happened to her. Militello assured appellant that if she was "feeling as though Kevin and I are attacking you, that's not what this is about[,] honey. We brought you in here because we're concerned not only for you but for some other woman that this might happen to."
After some discussion about appellant's contact with Jeff early in the morning on the day of the homicide, and Jeff's history at the hotel, Militello brought the conversation back around to the events leading up to Clark's death, summarizing what appellant had told the officers thus far. Appellant said that when she came out of her room after persuading Clark to leave, someone—she thought it was Clark—tugged on her, and then there was a lot of argument in the hallway about whether appellant had speed. Appellant said she did not know what happened after that, except that people threatened that Clark would call the police and report that appellant was selling drugs, and then everyone left. When appellant returned, however, Clark was there again, still insisting that appellant sell her speed, complaining that appellant's boyfriend had taken Clark's money, and refusing to leave her room. Appellant concluded by saying "then I don't know, Eric . . . ," and started to cry. She commented that "I'll get killed for this."
Appellant's comment does not appear in the transcript, but the quotation is based on our review of the DVD.
Militello again assured her that she and Jones would not let anything happen to appellant, "[b]ut we need you to tell us what happened and it's okay." She told appellant that they knew she had been in that room, was upset, and felt that appellant had seen "something pretty horrific," but assured her again that "it's okay. But you've got to tell us for us to help you because you don't want to get in trouble for something you didn't do," to which appellant responded, "I already told you Eric did it." Militello invited appellant to "talk about that because . . . I know you know what happened." Militello said they would put appellant in witness protection and take care of her, "[b]ut you've got to tell us what happened." Appellant then said that "Eric beat her up," and when Militello asked why, explained that Jackson wanted Clark's money. Appellant went on to say that Jackson hit her first, and then Clark, and then told everybody that "she deserved to get her ass whupped." Militello responded that "nobody deserves to get their ass whupped," and that appellant was "a better person than that," noting that appellant has children.
Appellant then remarked that Jackson had called her a snitch for calling the police because she stopped breathing due to his treatment of her, and expressed concern that Jackson would hurt someone else. Militello agreed, adding that that was why it was so important that appellant tell them everything, and speculating that appellant was "leaving stuff out because I think you're afraid," and assuring her that she had no reason to be afraid, because "if you talk to us and you tell us the entire story we are going to protect you." Appellant asked what Militello wanted appellant to tell her, and Militello said she wanted appellant to "tell us what Eric did to this girl." Appellant responded that she did not know, because she wasn't watching, but she thought he "sliced her throat," because that was what she heard from others.
Jones then asked whether appellant had seen Jackson hit Clark, and appellant said she had seen Jackson push Clark against the wall, and heard Clark yelling at Jackson, but she did not know what happened next because she was scared Jackson would hit her too, and did not want to look. She explained she believed that Jackson was angry because he wanted to get high, and because he had just been released from jail and found out that appellant had another boyfriend. She characterized Jackson as someone who would take out his anger on anyone, relating that he had once slapped her right in front of the police, but "then when he gets in front of you guys he acts like he's a big old crybaby, that he doesn't know nothing . . . ."
Militello then revealed that the police had talked to Jackson the previous day. Jones added that during his questioning, Jackson denied he was in a relationship with appellant, and had not had sex with her in a long time. Jones said that was why he and Militello wanted to talk to appellant. Appellant complained that Jackson had made her have intercourse with him on the day of Clark's death even though she was menstruating. She explained that there was no lock or doorknob on her hotel room, so she could not keep Jackson out, even though she had a restraining order against him. She complained that the hotel personnel kept letting Jackson into the hotel without telling her, and that "he could have killed me." Militello noted that he did not, and assured her that "he's not going to."
After Jones confirmed that appellant had not seen Jackson since that night, Militello turned the conversation back to the events leading to Clark's death. Appellant reiterated that after she saw Jackson push Clark up against the wall, she hid herself, and did not know what happened afterwards, or how Clark ended up dead. Jackson told appellant to "get the fuck out" of the room, and she left both the room and the building. She said that Jackson passed her while she was on the street.. Appellant told the inspectors that when she last saw Clark, she was still standing up and alive. She could not say that she saw Jackson hit Clark. Militello pointed out that the hotel room was small, not significantly bigger than the interview room; suggested again that appellant was afraid to tell the inspectors what happened; and told appellant "you've got to tell us or we can't help you." Appellant said "I have nothing else to say, let him kill me, I don't car[e]." She pointed out that when she had sought protection from him after he hurt her earlier, he had been arrested, only to be released three days later. Appellant repeated that she had "nothing else to say because no matter what I'm going to die." Militello assured her that "it matters" and that she was not going to die if Militello had anything to say about it, but appellant reiterated that she had nothing else to say, because the police did not care about anything but their job.
The words "I have nothing else to say" are not in the transcript, which substitutes "[unintelligible]." Appellant contends they are clear on the DVD, and our review of it confirms this. Appellant characterizes this statement and the two that followed it as additional invocations of her right to remain silent.
Jones then showed appellant photographs of appellant herself and of Clark's body, showing both their injuries. Militello remarked that "nobody deserves to have done to them what was done to her," and urged appellant to "be brave," because Militello would arrest Jackson and "take him off the street for the rest of his life, but you have got to tell us what happened," and "telling us you don't know isn't going to work." She also stated that "not telling us what you know . . . makes you involved in this mess." Appellant responded that she was involved anyway, and Militello replied, "You didn't kill this girl, Paula." When appellant insisted that she was involved, Militello rejoined that she was involved "because you're a witness and you're a victim because he hit you and he raped you." She urged appellant to "stop protecting" Jackson, assured appellant that she cared about her as well as Clark, and repeated that "you have to tell us what happened so that we can do our job," asking whether appellant wanted it on her conscience if, due to her silence, "some other poor woman gets the shit kicked out [of] her like this woman did." Appellant responded, "No."
Jones then noted that Clark's throat had not been slashed. Appellant asked what had happened to Clark, saying that she really did not know. She explained she thought Clark's throat had been slashed, and had heard that Jackson hid a knife under a bed at another hotel. Militello then said she believed appellant knew more than she was telling the inspectors, and reiterated that appellant must have gone back to the room after Clark was dead and then gotten upset, because "other people have told us that." Appellant continued to maintain that she did not know what Jackson did to Clark, adding that she was scared of Jackson. Militello acknowledged that they knew this, and wanted to help appellant. Appellant's response was that the police wanted her to say something that she did not know, and when Militello insisted that appellant knew more than she was saying, appellant became angry and yelled that the inspectors could not make her say something that she did not know.
Militello asked whether appellant had left the building after Jackson "did whatever he did inside the room." Appellant then acknowledged that neither she nor Jackson had left the building at that point, and that she had gone back into the room, seen Clark lying on the floor, and started crying. Militello asked her how much time passed, and appellant began crying. When she recovered, Militello elicited that Jackson remained alone in the room with Clark "for a couple of minutes" after appellant left, during which time appellant heard Clark yelling at Jackson, and Jackson telling Clark to "shut up." It was after Jackson emerged, appellant explained, that she went back in the room, saw Clark on the floor, and started crying and screaming.
At that point, Jones revealed that this version of the facts was "really not even close" to what Jackson had told him. He added that another man had told him Jackson took the man into the room and showed him Clark lying on the floor, with appellant sitting there crying. Militello characterized that as "probably not so far off, because you did go back in the room and you saw the lady on the floor and it had to upset the crap out of you . . . ." Appellant confirmed this, and Jones asked her to describe Clark's position on the floor, and explain how appellant knew Clark was dead. Appellant responded that she did not know Clark was dead, thinking Jackson had just knocked her out, until she looked again and saw that Clark's eyes were rolled back. Appellant denied that Jackson had brought another man into the room with him during that time.
After some additional discussion of events earlier in the day, and of appellant's nervousness at that time because of Jackson's presence, Jones asked appellant whether she had ever hit Clark. Appellant responded that she had not, but that Clark had pushed her, and possibly pulled on her. Jones asked whether appellant's DNA would be on Clark's body, and appellant responded that it shouldn't be, because she had only touched Clark on her shirt when she was trying to get Clark to get up. Appellant went on to say that it was when Clark failed to respond to this that she started crying, adding that when Jackson came in, he was "whiter than a ghost." Appellant insisted that she did not see Clark die, and that the only person present when that happened was Jackson.
When appellant saw Clark in her room, Clark was dressed. Jones asked appellant what Clark was wearing, and whether she was wearing a wig, explaining that the police had found a wig in the room. Appellant said Clark was not wearing a wig, and that she herself did not wear them and did not have one in her room. She recalled that Clark was wearing "acid-wash[ed] blue jeans" and a denim jacket.
At that point, the inspectors left the room for about 12 minutes, returning briefly to give appellant a canned drink. While they were gone, the video shows that appellant, who had yawned earlier, put her head down on the table, apparently to rest. By this point, it was about 1:00 a.m., and the interview had been in progress for nearly two hours. Appellant continued to yawn periodically through the remainder of the interview.
When the inspectors came back, Jones questioned appellant about photographs of about the hotel room and its contents. Appellant said she had never seen the wig shown in one of the photographs, and that Clark had been wearing acid-washed jeans and a jean jacket rather than looking the way she was shown in the pictures. She also said the furniture had been arranged differently, and the room was not in as much disarray.
Jones asked if appellant had thought there was anything wrong with Clark's face, and appellant responded that it just looked like she was asleep, and did not look the way it was depicted in a photograph Jones showed her. Jones told appellant that Clark's facial injuries happened before she died, so appellant must have seen her face looking as it was shown in the photograph, but appellant still insisted that she had not seen Clark's face looking like that. Jones then asked whether Jackson had assaulted appellant in other ways, and she replied that he had jumped her, punched her in the chest, dragged her, choked her, and slapped her.
Militello then announced that "Now's the time we're going to have the come to Jesus talk, now is the time that you need to tell Kevin and I [sic] what happened, because you're not being truthful and we know you're not." She told appellant that "[t]his is a murder," and that appellant was "in to [sic] this so deep I cannot even tell you," adding that Clark "did not deserve to die like this," and noting that she and Jones had looked at closed circuit video from all over the hotel. Appellant asked to see the video, and Militello responded by asserting that given the size of the hotel room, it was not credible for appellant to say she did not know what had happened to result in Clark getting hurt the way she did. Appellant asked what the inspectors wanted her to tell them, and Militello responded, "The truth." Appellant rejoined that since the inspectors knew what happened, they should tell her, and complained that Militello was angry and upset, so "I don't even want to talk to you anymore." She added, "Don't come at me and tell me what you want me to tell you. I'm not telling you shit. I've already told you too much." She then reiterated her demand that the inspectors show her the video and tell her what they knew. Jones told appellant they did not want her to say anything that was not true, and appellant responded by repeating that "I have nothing else to say."
Appellant characterizes this as the fifth time she asserted her right to remain silent.
Jones responded that "there's probably enough here with all this," noting that Jackson had tried to put the blame on appellant when he was interviewed, and denied that he was even in the room before Clark died. Jones said he had not believed Jackson, and told appellant "you have the opportunity now to tell us what really happened." Jones said that a point in Jackson's favor was that he "showed up" to talk to the police, but they had to go out and find appellant. Appellant disputed that Jackson had shown up, because she had heard he was arrested. Jones said Jackson might have lied about that, and appellant responded that Jackson would "lie and lie and lie and I'm going to get drilled[,] and like always I get blamed . . . and I'm tired of it." Appellant then said "I'd rather be dead."
This statement is followed by the notation "[unintelligible]" in the transcript. On the video, it appears appellant said something to the effect that she might as well kill herself.
Jones then told appellant that the people at the hotel had said she was crazy and hit people, and that he had confirmed that another woman at the hotel had called the police to complain about appellant. He repeated that Jackson had blamed appellant for Clark's death, and related that Jackson and others had said that appellant was the violent one. Appellant said she would tell the police everything if she could do so to Jackson's face, and Militello told her that was not possible.
Appellant complained again that the inspectors did not believe anything she told them, they only believed other people, and they had lied to her. Jones told her loudly to listen to him, recounted some derogatory remarks Jackson made about appellant during his interview, and reiterated that Jackson had tried to place the blame on appellant. He went on to say that "something else really funky" had happened to Clark, and when appellant said she had no idea what that might be, told appellant that Clark had been assaulted, though not sexually, and asked if Jackson had ever bitten appellant. When appellant said Jackson had not, Jones asked if appellant had ever gotten mad and bitten anyone. Appellant said she had not, and reiterated that Jackson was lying.
Militello reminded appellant that she and Jones could not force appellant to tell them what happened, but encouraged her to do so. Both inspectors pointed out how badly Clark was injured, suggesting that appellant must have been able to hear it happening, and Militello again repeated that Jackson had blamed appellant. Appellant said, "Yeah, I guess it's all me," and when Militello asked whether that was "how [she] want[ed] it to play out," responded that she did not care any more, because if she left the police station she would get hurt. Militello promised to put her in witness protection that very night, and appellant expressed skepticism about the efficacy of that plan, noting that someone she knew (a woman named Brandy) had died after witnessing something.
This could be construed as inculpatory. In context, however, it is clear appellant meant to say it was inevitable she would be blamed, rather than admitting that she had actually done anything.
After some further conversation about Jackson's having blamed appellant for Clark's death, Jones told appellant that he believed her when she said she did not know Clark. Militello added that she did not think appellant would have been in the room crying if she had killed Clark intentionally, adding, "But you just won't tell us, you won't help us help you. Come on[,] Paula[,] what happened?" Appellant responded by asking if she could have a cigarette. Jones left the room, saying he would check to see if he could find one for her. While Jones was out of the room, Militello continued to encourage appellant not to let Jackson put the blame on her, saying she did not believe Jackson and using derogatory language about him, but also telling appellant she was sure appellant knew more than she was saying. Militello said she did not want appellant to go to jail for the rest of her life for something she did not do, or did not mean to happen; urged appellant to think about her children and her mother; and told appellant that she had been worried about her.
Militello informed appellant that her intuition told her that something had gone terribly wrong in appellant's room, and asked her, "There was a big fight in that room, wasn't there Paula?" Appellant nodded in response, and Militello said, "So talk to me about it sweety, let's get it out. It's okay, I promise you it will be okay," adding that "sometimes things just happen," and "[i]t doesn't mean you mean for them to happen." She went on to tell appellant that if Jackson did not kill Clark, and what happened was that appellant "got in a fight with this woman and something went sideways you just need to tell me. What happened sweety? It's okay, it will be okay . . . you've got to trust me." She added that appellant was not a bad person, but needed help with her drug habit, and mentioned appellant's mother and children again. Appellant then repeated her request for a cigarette, but Militello denied the request, apologizing that they did not have any, and that in any event smoking was not allowed in the building.
Militello then asked appellant again what had happened, urging her not to "let Eric lay this at your feet." After appellant repeated that she would "take the blame like I always do," Militello asked her whether she had hit Clark. Appellant nodded and replied, "She hit me first," and said that Clark pulled on her and fought with her, and then Jackson came in, and began to fight with both of them. She added "I get so mad I can't think." Militello responded sympathetically, telling appellant she had "had a rough go."
The transcript omits the quoted comment, characterizing it as unintelligible. The quotation is based on our review of the video.
Appellant began to cry, saying, "I know I didn't do that to her." Militello suggested that "sometimes when you get into a fistfight you get so pissed off you don't always know what the heck happens . . . ," and asked if that was what occurred. When appellant did not respond, Militello asked what started the fight. Appellant responded that Clark had started it by refusing to leave her alone, following her to her room, pulling on her, and threatening to have her beat up. Militello asked if appellant had gotten so angry she "kind of los[t] it," and assured her that that "stuff happens" and that it would feel better to talk about it. Appellant responded that she had been "[a]sking people for help for a long time" because "something is wrong with me."
From the video, it appears appellant was referring to the injuries that could be seen in the photograph of Clark's body.
Addressing appellant again as "sweety," Militello assured her that they would "get you the help" she needed for her anger problem; reminded her that she had children and "something to live for"; and then suggested again that appellant and Clark "got in a beef and appellant "snapped" and "lost it." Appellant complained that Clark invaded her space and would not leave her alone; cried; referred again to having asked for help; and repeated that she always got blamed for everything. Militello asked what happened after appellant and Clark fought. Appellant responded that Clark told her she had "better hope God forgives you for everything that you do," and that Jackson was in the room at the time. She admitted fighting with Clark, but repeatedly denied having "done that," i.e., given Clark the injuries shown in the photograph, asking Militello how she could have "done that with my hands." Militello said it was possible, and suggested that appellant might have been so angry she did not remember what happened.
Militello then repeated her request that appellant tell her truthfully what was Jackson's involvement. Appellant responded that she and Jackson were the only ones there, and that Jackson was lying to the police. Militello agreed, and appellant reiterated that she did not "do that." Militello asked if appellant was saying that she fought with Clark but did not kill her, and appellant responded, "No, I did not." Militello asked her if Jackson killed Clark, and appellant repeated that she had not done so, adding that she did not see what Jackson did to Clark because she was scared of Jackson, who was screaming and yelling at her. Militello assured appellant she understood this, because Jackson had beaten appellant in the past. Appellant told Militello that while she was fighting with Clark, Jackson came in and said, "What are you doing, what the fuck is wrong with you, the police are going to come." Appellant said she then started going in and out of the room, trying to get away from Jackson, and heard Clark say "stop pushing me," and a thump against the wall. After hearing that, appellant returned to the room, and became scared because Clark did not respond to her efforts to get her to move.
The transcript of this part of the conversation reports appellant as saying "[unintelligible] for everything that you've ever done . . . ." Our review of the video recording indicates that what appellant said was "Eric's going to blame me for everything that he's ever done . . . ."
At that point, Militello asked appellant if she had killed Clark, and appellant responded that she did not know. Militello suggested that this was because appellant got so angry, and told her "It's okay. I can get you some help now, okay. All you know is you got—you went into a rage and you got into a fight with her and she ended up dead." Appellant did not respond to this, either verbally or by nodding or shaking her head.
In a portion of the video not given to the jury, appellant then asked if she could call her mother to "tell her goodbye," and Militello placed the call for her on Militello's own cell phone. Militello left appellant alone in the interview room to complete her conversation with her mother. During the call, appellant told her mother that the police thought that she killed Clark; that Jackson had talked to the police and blamed appellant; that appellant needed help and no one ever listened to her; and that she did not care any more whether she lived or died. Toward the end of the call, appellant cried uncontrollably, and became apprehensive about her mother's health. The video shows that after hanging up the phone, appellant put her head down on the table and cried some more, and then appeared to be resting. When Jones and Militello returned to the interview room, appellant reiterated her apprehension about her mother's health, and Militello promised her that they would "check up on" appellant's mother.
At the start of the next portion of the transcript given to the jury, Militello asked appellant whether she might have gotten so angry at Clark that she bit her. Appellant said she did not know. Militello explained that someone had bitten Clark, showed appellant a photograph, and noted that if appellant bit Clark, her DNA and teeth impressions would be there, so Militello would prefer that appellant tell her the truth. Appellant again insisted that she did not remember. Militello asked if appellant just snapped, saying "Sweety, it's okay, stuff happens . . . ." Appellant reiterated that something was wrong with her, that she needed help, and that she had gone to a self-help drop-in facility. Militello made assurances to appellant that she would get help. Appellant added that she got so depressed she wanted to die, and when Militello suggested that appellant wanted to hurt other people too, appellant responded that she did not care if anyone died. Militello asked her if that was what happened on the night of Clark's death, and appellant reiterated that she did not remember, and was being honest. She denied wanting to kill Clark, saying she just wanted to get away from her, and get both Jackson and Clark to leave her alone.
Militello said she had been told appellant looked like she had been beaten up that day, and appellant said Clark gave her a black eye. Prompted by questions from Jones, appellant described her struggle with Clark in more detail, and speculated that Jackson had "set [her] up." Appellant confirmed that only Clark, and not Jackson, hit her that day, though she reiterated that Jackson had forced himself on her sexually. Militello asked, "is what you're telling us accurate[,] Paula[,] that you don't really know—you kind of lost control and you don't remember?" Appellant confirmed this, adding that she had not started the fight, and started to cry again. Both inspectors assured her that they believed this.
Appellant continued to insist that when she saw Clark lying on the floor, Clark spoke to her and was still breathing; that she then left the room; and that Jackson went into the room after she left. When Militello told her that she and Jones were "just trying to get the final story," appellant responded that she had already told them what she did, and that Jackson was the only other person there, and added "stop asking me." She said "I don't want to keep repeating it anymore [sic]," and began to cry again. Militello again assured her that she believed her, and asked if she could remember how long Jackson was in the room with Clark while appellant was in the hallway. Appellant said it was one or two minutes, after which Jackson told her to "get the fuck out of there," adding that she really did not think she killed Clark. She acknowledged, however, that she might have bitten her. After some further discussion of Jackson's likely whereabouts and appellant's concern that he had been looking for her, the interview concluded.
E. Other Evidence Introduced at Trial
While in jail awaiting trial, appellant made a number of telephone calls. During one of these calls, appellant said that she had been charged with homicide and that "Eric told on me."
Appellant's defense at trial was that Jackson killed Clark. In support of that contention, she relied in part on an attack on Jackson's credibility. The prosecution stipulated that Jackson had incurred two felony drug convictions within the preceding 10 years. Appellant also introduced evidence substantiating what she told the inspectors during her interview about Jackson's having beaten her so badly that she went to the emergency room. In closing argument, appellant's trial counsel reminded the jury about Jackson's lies to the police, and his refusal to testify at trial.
Appellant also introduced the testimony of a friend of hers, Sheila Ollison, who was another former girlfriend of Jackson's. Jackson beat up Ollison during their relationship, and Ollison knew that he had beaten appellant. Ollison testified that Jackson came to her residence on April 26, 2007, around dusk or dinner time, wanting to purchase cocaine. Jackson appeared troubled, and had a knife in his hand. Ollison asked what was wrong, and Jackson told her, "Man, I just did something." Ollison asked what Jackson had done, and he responded, "Man, I think I just killed somebody."
F. Procedural History
On September 19, 2007, appellant was charged with voluntary manslaughter (Pen. Code, § 192, subd. (a) ) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), with an enhancement allegation of great bodily injury (§ 12022.7, subd. (a)). Appellant's trial began on June 23, 2008, and the jury began hearing evidence on June 30, 2008. On July 22, 2008, the jury returned verdicts of guilty on both charges, and a true finding on the enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
On January 23, 2009, appellant filed a motion for new trial, which resulted in extended briefing, and a hearing that extended over portions of several days. The motion was denied on June 28, 2010. On July 1, 2010, appellant was sentenced to the middle term of six years in prison on the voluntary manslaughter conviction. Sentencing was stayed under section 654 on the assault conviction and the great bodily injury enhancement. Appellant's notice of appeal was filed the following day.
Appellant does not raise any issues on appeal regarding the denial of her motion for new trial.
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DISCUSSION
Appellant argues that her conviction must be reversed because the statements she made to the police during her interrogation were improperly admitted against her at trial, on two grounds. First, appellant contends that the statements were obtained in violation of her constitutional right to remain silent; second, she contends that these statements were not made voluntarily.
A. Right to Remain Silent
As the United States Supreme Court recognized in Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), the process of in-custody interrogation of persons accused of crime contains inherently compelling pressures that might lead an accused to make statements in violation of his or her Fifth Amendment privilege against self-incrimination. For that reason, the Supreme Court in Miranda created procedural safeguards to ensure that any waiver of the privilege is made "voluntarily, knowingly and intelligently." (Id. at p. 444.) Statements obtained in violation of the Miranda procedure may not be introduced in support of the prosecution's case at trial. (Id. at pp. 444, 479.) This rule is one of federal constitutional stature (Dickerson v. United States (2000) 530 U.S. 428, 444), and so binds the California courts. (See People v. Gonzalez (2005) 34 Cal.4th 1111, 1122.) As a reviewing court, we determine independently whether there has been a violation of a defendant's rights under Miranda, based on the facts that are undisputed or that the trial court has properly found. (People v. Whitson (1998) 17 Cal.4th 229, 248.) Here, of course, the relevant facts are not subject to dispute, because the entire interrogation of appellant was videotaped, and the videotape is part of our record.
The safeguards articulated in Miranda require that "[p]rior to any questioning, the [suspect] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Miranda, supra, 436 U.S. at p. 444.) Moreover—and most relevantly, for present purposes—even if, after being given an appropriate warning, the individual being questioned initially agrees to talk to police, custodial interrogation must cease if the person later invokes the right to remain silent. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238 (Musselwhite); Hurd v. Terhune (9th Cir. 2010) 619 F.3d 1080, 1086-1088.)
Recently, in Berghuis v. Thompkins (2010) 560 U.S. _ (Berghuis), the United States Supreme Court clarified the aspect of the Miranda rule permitting suspects to invoke the right to remain silent even after initially waiving their rights, by holding that when a police interrogation is preceded by a proper advisement of the defendant's Miranda rights, the defendant does not invoke the privilege against self-incrimination by simply remaining silent during the initial portion of the questioning. In that context, Berghuis stated that in order to assert the right to remain silent, the person being questioned must unambiguously invoke the right by affirmatively expressing the desire to remain silent or not to talk with the police. (Id. at p._; 130 S.Ct. at p. 2260.)
The California Supreme Court had already adopted a similar rule in People v. Stitely (2005) 35 Cal.4th 514 (Stitely), holding that "[i]n order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect 'must unambiguously' assert his right to silence . . . ." (Id. at p. 535, italics omitted.) Thus, when "[f]aced with an ambiguous or equivocal statement, law enforcement officers are not required . . . either to ask clarifying questions or to cease questioning altogether. [Citation.]" (Ibid.; see also People v. Scott (2010) 52 Cal.4th 452, 482; People v. Rundle (2008) 43 Cal.4th 76, 114-115, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [" 'In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect "must unambiguously " assert his right to silence or counsel. [Citation.] It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights' "].)
In the present case, the officers read appellant her rights under Miranda before starting to question her, and she affirmatively agreed to waive those rights and answer the officers' questions. Later, however, on several occasions during the interrogation, appellant made statements to the effect that she had nothing more to say. Appellant argued in the trial court, and reiterates on appeal, that these statements constituted a revocation of her Miranda waiver and an invocation of her right to remain silent, and that the admissions regarding the homicide that she made afterwards were therefore inadmissible in evidence. Thus, the issue before us is whether appellant's statements were sufficiently unambiguous, under Berghuis, supra, 560 U.S. _, and Stitely, supra, 35 Cal.4th 514, to constitute an invocation of her right to cut off the police interrogation after an initial waiver of her right to remain silent.
Whether an individual's conduct or statements amount to an assertion of the privilege against self-incrimination is a question of fact, to be determined after examining the totality of the circumstances. (Musselwhite, supra, 17 Cal.4th at p. 1238.) In examining the totality of the circumstances, we must, of course, view the individual's statements in their context. (In re Joe R. (1980) 27 Cal.3d 496, 515-516.)
The context here was an interview that followed an express Miranda waiver, in which appellant answered questions at length and willingly. As noted in our summary of the interview, at several times appellant made statements to the effect that she had no more to say. The essence of each statement, however, was that she had already told the inspectors everything she knew, and was frustrated by their insistence on asking for more details, rather than that she wished to invoke her right to remain silent. Moreover, after she made each of these statements, appellant showed no apparent hesitation in answering further questions.
In this context, we agree with respondent that these statements were not requests to stop the interview, but were merely expressions of appellant's frustration and her insistence that she had already told the inspectors, truthfully, all that she knew. (See People v. Jennings (1988) 46 Cal.3d 963, 976-979; In re Joe R., supra, 27 Cal.3d at p. 516.) Accordingly, we are not persuaded that the inspectors violated appellant's Miranda rights by continuing to question her after she made the statements at issue, because they did not amount to an unambiguous invocation of her right to remain silent.
B. Voluntariness of Confessionw
Regardless of whether there has been a violation of a defendant's rights under Miranda, "[t]he Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant's involuntary confession. [Citation.]" (People v. Massie (1998) 19 Cal.4th 550, 576.) A confession is involuntary if it is "obtained by force, fear, promise of immunity or reward. . . ." (People v. Esqueda (1993) 17 Cal.App.4th 1450, 1483 (Esqueda).) Thus, in order to use a confession, the prosecution has the burden of proving by a preponderance of the evidence that the defendant gave it voluntarily, and not as the result of any form of compulsion or promise of reward. (People v. Williams (1997) 16 Cal.4th 635, 659-661.)
Conversely, "[a] confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. [Citations.]" (People v. Williams, supra, 16 Cal.4th at p. 659.) Coercive activity must be "the 'proximate cause' of the statement in question . . . . [Citation.]" (People v. Mickey (1991) 54 Cal.3d 612, 647; accord, Musselwhite, supra, 17 Cal.4th at p. 1240.)
In determining whether a confession was voluntary, "courts apply a 'totality of the circumstances' test . . . ." (People v. Massie, supra, 19 Cal.4th at p. 576, citing Withrow v. Williams (1993) 507 U.S. 680, 693-694.) "Among the factors to be considered are ' " 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; [and] its continuity,' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' " [Citation.] . . . In determining whether a confession was voluntary, "[t]he question is whether defendant's choice to confess was not 'essentially free' because his will was overborne. [Citation.]" [Citation.]' " (People v. Boyette (2002) 29 Cal.4th 381, 411.) The absence of overt physical brutality directed against the defendant is not dispositive, "for 'coercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.'. . ." (People v. Montano (1991) 226 Cal.App.3d 914, 934, quoting Blackburn v. Alabama (1960) 361 U.S. 199, 206.)
The use of deception by the police may invalidate a confession, particularly if it is used to make more plausible a promise of leniency, as, for example, where an officer misstates the law in a way that leads a defendant to believe confessing to certain conduct will absolve him or her of criminal liability. (People v. Cahill (1994) 22 Cal.App.4th 296, 315.) However, "deception does not necessarily invalidate a confession" (People v. Thompson (1990) 50 Cal.3d 134, 167, superseded on another ground by People v. Cahill (1993) 5 Cal.4th 478, 509-510, as recognized in Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829); rather, it is merely one factor to be considered. (In re Shawn D. (1993) 20 Cal.App.4th 200, 209.) "Lies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary. [Citation.] [¶] Rather, there must be a proximate causal connection between the deception or subterfuge and the confession. 'A confession is "obtained" . . . if and only if inducement and statement are linked, as it were, by "proximate" causation. . . . The requisite causal connection between promise [or deception] and confession must be more than "but for": causation-in-fact is insufficient.' [Citation.]" (Musselwhite, supra, 17 Cal.4th at p. 1240, italics omitted.) As with the overall issue of voluntariness, whether a confession was caused by police coercion is a mixed question of law and fact that is predominantly legal, and thus is reviewed independently. (People v. Mickey, supra, 54 Cal.3d at p. 649.)
A reviewing court upholds the trial court's findings as to the circumstances surrounding the confession if they are supported by substantial evidence, but exercises independent review in determining whether the confession was voluntary, given the totality of the circumstances, including those that are undisputed and those properly found by the trial court. (Esqueda, supra, 17 Cal.App.4th at p. 1465; see also People v. Thompson, supra, 50 Cal.3d at p. 166; People v. Williams, supra, 16 Cal.4th at pp. 659-661; see also Arizona v. Fulminante (1991) 499 U.S. 279, 285-286.) Thus, in the present case, we must analyze whether the influences brought to bear on appellant were such as to overbear her will to resist, thus bringing about a statement that she did not freely choose to make. (See People v. Hogan (1982) 31 Cal.3d 815, 841, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) In making this determination, we evaluate whether the police conducting the interview acted in an oppressive or coercive manner. (See Colorado v. Connelly (1986) 479 U.S. 157, 163-164.)
The interview of appellant extended over four hours, although there were two significant breaks called by the police inspectors. At the outset of the interview, in the portions not shown to the jury, the inspectors offered appellant a soft drink, which she initially declined. They also provided appellant with a box of tissues when she began to cry. At about the two hour mark, the inspectors left the room for about 12 minutes, returning briefly to give appellant a canned drink. Another break was taken later in the interview. Although the interview took place in a small interrogation room at the police station, one of the inspectors remarked without contradiction that the room used for the interview was close in size to the room appellant had been renting at the residential hotel. There is no evidence that the room was uncomfortably hot or cold. When appellant asked if she could call her mother, she was allowed a call without the officers being physically present. Later in the interview, when appellant asked for a cigarette, the inspectors replied that they did not smoke, but one left the room in a vain attempt to find one for her.
Therefore, we conclude that the conditions under which this interview occurred were not coercive. There is nothing about the length of the interrogation (three sessions over four hours' time, with two 10-12 minute breaks) that tended to prove appellant's inculpatory statements were coerced. (People v. Hill (1992) 3 Cal.4th 959, 981, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [8 hours of questioning over a 12-hour period]; People v. Magee (1963) 217 Cal.App.2d 443, 452-457 [16-year-old questioned twice by police over length of afternoon]); cf. People v. Alfieri (1979) 95 Cal.App.3d 533, 545-546 [20 hours of interrogation during 36 hours of custody for a 17-year-old suspect with low intelligence, psychiatrically diagnosed as "highly suggestible," rendered confession involuntary].)
Appellant's mental state appeared to be consistent with a conclusion that her statements were not the product of coercion. While the interview started at 11:00 p.m., the record is silent as to when appellant had last slept or for how long. Appellant did show some signs of fatigue by putting her head on the table to rest, and she continued to yawn from time to time during the interview. However, there is no evidence from the recorded interview that appellant dozed off either during the interview or during the two breaks that occurred. Appellant never expressed that she was tired or that she desired another break in the interview. Instead, appellant repeatedly cried and wept during the interview, particularly during her telephone call with her mother. She also showed flashes of anger and frustration towards the inspectors throughout.
While the inspectors on two occasions referred to appellant's mother and children in an effort to persuade her to continue to talk, if the police do not threaten, either expressly or impliedly, to arrest or punish a close relative, or promise to free a relative, in exchange for a confession, "a suspect's belief that his cooperation will benefit a relative will not invalidate an admission. [Citations.]" (People v. Steger (1976) 16 Cal.3d 539, 550; People v. Boggs (1967) 255 Cal.App.2d 693, 700-701 [confession to aid wife, who had come to police station voluntarily, found voluntary]; People v. Jackson (1971) 19 Cal.App.3d 95, 99-101 [confession because of concern over wife's health found voluntary]; United States v. McShane (9th Cir. 1972) 462 F.2d 5, 6-8 [confession because of concern over health of girlfriend, whom police had taken to station for questioning after defendant's arrest, found voluntary].) No improper threat or promise was made here relating to a relative of appellant.
Similarly, the " 'mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent [statement or admission] involuntary.' [Citation.] In terms of assessing inducements assertedly offered to a suspect, ' "[w]hen the benefit pointed out by the police . . . is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made. [Citation.]' [Citations.]" (People v. Howard (1988) 44 Cal.3d 375, 398, superseded on another ground as recognized in People v. Shoemake (1993) 16 Cal.App.4th 243, 253.)
As germane as any other factor, we are impressed by the demeanor of the inspectors during the entire interview, especially in the face of hostile, angry outbursts by appellant. Only Jones raised his voice, and then only one time during the four hours. Instead, the inspectors were polite, civil, calm, and respectful; the female inspector in particular calling appellant "sweety" or "honey" at times, obviously to soothe her when she was agitated, and to assure her that she would be "OK."
As for deception, there clearly was some. The inspectors told appellant that they only wanted to talk to her to get information, but had to inform her of her rights anyway because she had been brought to the station by the police. Militello underlined this statement at the interview's beginning by telling appellant, "It's not that big of a deal." On the other hand, Militello reminded her at the outset that the inspectors were investigating a homicide, and that it was important to be honest with them. She told appellant that "if you're not involved in this we will do whatever we can for you, okay. But you have to be honest with us."
Also, during the interview, the inspectors reinforced, in several ways, the impression that appellant was there only as a witness, not as a suspect. The inspectors told appellant outright that they had not believed Jackson when he blamed her for Clark's death. Militello repeatedly offered to protect her from Jackson if she cooperated with the police, and opined that she was not a bad person. This sympathetic treatment of appellant made it appear that the inspectors viewed her as Jackson's victim.
Finally, the inspectors took advantage of appellant's fear of Jackson by repeatedly telling her that they could not protect her from him unless she told them everything she knew, implying that she had no right to police assistance against assault or witness intimidation unless she gave up her right to remain silent. They also promised her that if she did tell them the truth, everything would be "okay," and that they would put her in witness protection and make sure she got the help she felt she needed.
As noted above, however, lies told by the police to a suspect under questioning do not render the confession involuntary per se. The court must look to see whether the deception is reasonably likely to procure an untrue confession. (People v. Farnam (2002) 28 Cal.4th 107, 182.) Similarly, police trickery, by itself, does not render a confession involuntary (People v. Thompson, supra, 50 Cal.3d at p. 167), because subterfuge is not necessarily coercive. (People v. Felix (1977) 72 Cal.App.3d 879, 885-886.) "Deception does not undermine the voluntariness of a defendant's statements to the authorities unless the deception is ' " 'of a type reasonably likely to procure an untrue statement.' " ' [Citations.] ' "The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." ' [Citation.]" (People v. Williams (2010) 49 Cal.4th 405, 443.)
There is no indication here that any deception by the inspectors coerced appellant to make the inculpatory statements she ultimately made late in the interview. Indeed, as the above narrative readily shows, appellant mightily resisted providing the officers with information about what happened, often falling back on a failure of recollection, or lack of knowledge. When she was more forthcoming late in the interview, even these statements were circuitous, often contradictory, and guarded. Certainly, there is no evidence to support a claim that police deception, including offers of help for appellant's anger management problem or drug use, or of witness protection, produced inculpatory statements that were untrue.
As to the other factors enumerated in People v. Massie, supra, 19 Cal.4th 550, unlike the suspects in a number of cases relied on by appellant, appellant was a mature woman with four children, who was familiar with the criminal justice system. Also, although appellant is by her own account a drug and alcohol abuser, there is nothing in the record to suggest that she was under the influence of any substance, or suffering from a mental disease or condition, that might materially affect her ability to make a voluntary statement to police.
In arguing that her inculpatory statements were not made voluntarily, appellant relies most heavily on Esqueda, supra, 17 Cal.App.4th 1450. In Esqueda, the defendant (Esqueda) was detained and interrogated shortly after he obtained emergency assistance for his live-in companion, who had been shot in the head. "After lengthy and unlawful pre-Miranda questioning, the police, using lies, trickery and threats, coerced a 'waiver' of Esqueda's Miranda rights." (Id. at p. 1484.) For over an hour of the eight hours of interrogation that followed, police lied to Esqueda about the victim's condition. After they finally disclosed she had died, officers made numerous other false statements including that the victim made dying declarations accusing Esqueda of the crime. (Id. at p. 1485.) During the interrogation, Esqueda was emotionally distraught, exhausted, and even physically ill. The officers exploited Esqueda's unstable condition by appealing to his sense of responsibility to his family and young children, his manhood, his religion, and his Hispanic heritage. (Id. at p. 1485.) They did not simply suggest mitigated and nonmitigated scenarios, they told Esqueda what story they wanted to hear. They said his only "way out" was if the shooting was an accident, and implied that he would not have to go to prison, and could be out with his children, if he admitted that he accidentally killed the victim. Esqueda repeatedly stated that he did not want to talk, but the detectives "used lies, accusations, exhaustion, isolation and threats to overcome [his] resistance." (Id. at p. 1486.)
Based on these facts, the Court of Appeal determined that the totality of the circumstances surrounding Esqueda's statements negated their voluntariness. " 'While no physical abuse of [Esqueda] occurred, coercion also includes "the brainwashing that comes from repeated suggestion and prolonged interrogation . . . ." [Citation.]' [Citation.] It was repeatedly suggested by the detectives Esqueda was guilty and the only question was whether the killing was premeditated. It was repeatedly suggested he could only save himself by saying it was an accident. That is what he finally did. [¶] On this evidentiary basis, this court cannot conclude by a preponderance of the evidence that Esqueda's statements and admissions were 'freely self-determined' as required by due process. The trial court therefore erred again when it determined his statements were voluntary." (Esqueda, supra, 17 Cal.App.4th at pp. 1486-1487.)
The facts of this case are nowhere near as extreme as those in Esqueda, supra, 17 Cal.App.4th 1450, and thus, that case is clearly distinguishable. Appellant's interview lasted half the time Esqueda's did, and there was no indication that appellant was exhausted (rather than merely tired) or physically ill. We have concluded that appellant's Miranda waiver was lawful and not coerced, in contrast to that of Esqueda, who was also questioned extensively before the required admonitions were even given to him. The inspectors did not lie to appellant about the facts known to them. Perhaps most importantly, appellant was never told "the story [the police] . . . wanted to hear," or that her only way to avoid prison was to admit the crime but claim it was an accident.
This case is also dissimilar from People v. McClary (1977) 20 Cal.3d 218, 229, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17, another case relied on by appellant here. In that case police repeatedly called the 16-year-old suspect a liar, and implied that unless she changed her statement and admitted the true extent of complicity she would be charged as a principal to murder and would face the death penalty. Also, unlike in this case, the police in McClary failed to respond to the defendant's requests for counsel during her first interview, which contaminated statements made in a second interview. Here, appellant never requested that she be allowed to speak with counsel.
Closer is the case of People v. Carrington (2009) 47 Cal.4th 145 (Carrington), which involved a two-and-one-half-hour interview by police. Admonitions required by Miranda were given at the outset, and the defendant agreed to speak with the officers. During the interview, the officer told the defendant that if she cooperated during the interview, the officers " 'would try to explain this whole thing with, with Los Altos P.D. as [best] we can.' He continued: 'I have no control over that. I'm in Redwood City here. Um, and, and I don't know what entailed um, in that case involving you in the burglary. I wish I could so I could explain it to you more fully. Uh, so that you know exactly where your [sic] stand is (unintelligible). I would hope that you would try to push that away so that we could get through with what we're doing right now. Can you do that for us?' Defendant replied: 'Yeah. I guess so.' "
Later during the interview, the officers confronted defendant with items recovered from a lawful search of her residence, and other evidence surrounding the crime. After the defendant denied involvement in the homicide, another officer told the defendant that " 'what happened out there at 777 California was probably an accident' and that there could be mitigating circumstances: 'What if she scared you? She confronted you. Or maybe there was someone else with you.' " The officer continued: "It's like a cancer. And what you've gotta do is to go out and purge yourself of that. You've got to get that off your shoulders. Not just for you but, for Jackie, for those three kids. You've got an incredible weight on your shoulders right now. A n incredible weight that you've been carrying around for quite some time. And it's time.' " Not long after these comments, the defendant confessed to the burglary in question. (Carrington, supra, 47 Cal.4th at pp. 169-170.)
The Supreme Court held that this confession was not involuntary. The court concluded that the officers' statements were not impermissible express or implied promises of leniency. The court went on to reject the argument that the suggestions by the interviewing officers as to what may have happened were improper: "[The suggestion] that the Gleason homicide might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime. This tactic is permissible. [Citation.] Moreover, any benefit to defendant that reasonably could be inferred from the substance of Detective Lindsay's remarks was ' " 'merely that which flows naturally from a truthful and honest course of conduct,' " because the particular circumstances of a homicide can reduce the degree of culpability, and thus minimize the gravity of the homicide or constitute mitigating factors in the ultimate decision as to the appropriate penalty. (Ibid.)" (Carrington, supra, 47 Cal.4th at p. 171.)
Here, no promises were made of a better legal result if appellant admitted to killing Clark. While there were suggestions made by the inspectors that the killing appeared to be unintentional and the result of appellant "losing it," those possible explanations were similar to those made in Carrington, which the Supreme Court found to be proper.
We have already observed that the coercive activity must be "the 'proximate cause' of the statement in question." (People v. Mickey, supra, 54 Cal.3d at p. 647; accord, Musselwhite, supra, 17 Cal.4th at p. 1240.) Thus, even if coercive conduct is in evidence, it must be the "motivating cause" of the defendant's statement in order for it to be involuntary. (People v. Johnson (1969) 70 Cal.2d 469, 478; People v. Benson (1990) 52 Cal.3d 754, 778-779.)
The Supreme Court in Carrington concluded that the challenged conduct of law enforcement did not "cause" the defendant's confession: "[D]efendant's confession was not prompted by Sergeant Sherman's comments. Defendant confessed approximately one hour after his comments were made. During the interview, defendant was confronted with incriminating evidence that had been recovered at defendant's residence as well as other information linking her to the murder of Gleason, which apparently prompted her to confess to this crime." (Carrington, supra, 47 Cal.4th at pp. 170-171.)
Similarly here there is an absence of any indication that appellant's incriminating statements were "proximately caused" by anything Militello or Jones said. In fact, the evidence is that appellant disbelieved the statements of the inspectors that she would be protected from Jackson, either by his arrest or by her inclusion into a witness protection program, noting that (1) police had failed to protect her in the past by releasing Jackson from custody after three days of confinement following his earlier assault on her; (2) another woman named Brandy who was placed in the witness protection program had died; and (3) the police did not care about anything other than their jobs. Therefore, we are satisfied that appellant's statements were voluntarily made, and were not the result of any promises of "help" made by the inspectors. Accordingly, the trial court did not err in permitting them to be introduced in evidence.
DISPOSITION
The judgment is affirmed.
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RUVOLO, P. J.
We concur:
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SEPULVEDA, J.
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RIVERA, J.