Opinion
2d Crim. No. B229533 Super. Ct. No. 1332711
10-04-2011
THE PEOPLE, Plaintiff and Respondent, v. BRIAN ROY CARNER, Defendant and Appellant.
Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found Brian Roy Carner guilty of kidnapping to commit another crime (Pen. Code, § 209, subd. (b)(1)), second degree robbery (§ 211), and false imprisonment of an elder adult (§ 368, subd. (f)). On appeal, Carner contends his confession should have been excluded as involuntary. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
On May 6, 2010, Margaret Fletcher, age 69, realized she forgot her purse at a restaurant in Santa Barbara. She parked her car in a lot at the shopping center where the restaurant is located. At about 4:00 p.m., she returned to her car with her purse. As she was opening her car door, Carner was standing behind her. He pressed what appeared to be a handgun at her waist, and told her to get in her car. Fletcher got in the driver's seat, and Carner got in the back seat.
Carner asked Fletcher for money. She gave him $100 to $150 in cash. She asked him not to hurt her. He told her he was not going to hurt her, that he was down on his luck due to methamphetamine addiction.
Carner told Fletcher to drive, and directed her to a golf course approximately five minutes away. Carner got out of the car. Fletcher drove to a friend's house and called the police.
At approximately 5:30 p.m., the police saw Carner walking on Las Positas Road. They asked if they could speak with him. They told him he matched the description of a man they were looking for. Carner was cooperative, but appeared to be under the influence of methamphetamine.
The police took Carner to the police station, where he was interviewed by Detective Shawn Hill. After waiving his Miranda rights, he admitted he robbed Fletcher at gunpoint and told her to drive to the golf course. He also told the police where they could find the gun. The gun was a replica. The red tip that identified it as a replica was covered over in black.
(Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).)
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Motion to Exclude
Carner moved to exclude his confession. Prior to giving Carner Miranda warnings, Detective Hill spoke with him. Hill said they were there because of a robbery involving a "sweet lady."
Hill told Carner: "[T]his isn't the crime of the century . . . . What happened today was out of . . . somebody being desperate. [¶] . . . [¶] So, one of the things I want to make sure before we start talking about it, like I said before, if there is any reason that you were involved that we're honest with each other because what I can tell you about California and probably Virginia too is that in the court system, people get treated differently when they lie versus when they tell the truth. I don't know if you know that. [¶] . . . [¶] [Y]ou know, when we have District Attorney[s] involved, we have judges involved, we have juries involved and people that you know make errors and are remorseful are treated different then people who lie and are not remorseful. And I think what happened today was definitely desperation and I don't think there was any real violent intent or anything like that. . . ."
The trial court found: Carner was in police custody shortly after he was detained; Carner voluntarily and knowingly waived his Miranda rights; and that his confession was not the result of coercion or promises of leniency. The trial court found also that there were encouragements made to persuade Carner to talk, but no words or actions were used to pressure him to talk.
DISCUSSION
Due process bars the admission of an involuntary statement obtained by a law enforcement officer. (People v. Neal (2003) 31 Cal.4th 63, 67.) Voluntariness does not depend on any particular fact, but on the totality of the circumstances. (Id. at p. 79.) Among the factors for the court to consider are police coercion, the length of the interrogation, its location, its continuity and the defendant's maturity, education, physical condition and mental health. (People v. Massie (1998) 19 Cal.4th 550, 576.)
People v. Boyde (1988) 46 Cal.3d 212, 238, held that a promise of leniency which is a motivating cause of the decision to confess renders the confession involuntary as a matter of law. Our Supreme Court disapproved of Boyde in People v. Williams (1997) 16 Cal.4th 635, 660-661. Williams, following United States Supreme Court precedent, makes it clear that a promise of leniency is not by itself determinative. (Ibid., citing Arizona v. Fulminante (1991) 499 U.S. 279, 285.) Instead, such a promise is only one factor in the totality of the circumstances on which the court must base its decision. (Ibid.)
The prosecution has the burden of proving to a preponderance of the evidence that the confession or admission was voluntary. (People v. Williams, supra, 16 Cal.4th at p. 659.) We review the evidence independently. (Ibid.)
Here Detective Hill told Carner: [W]hat I can tell you about California and probably Virginia too is that in the court system, people get treated differently when they lie versus when they tell the truth," and "[people who] make errors and are remorseful are treated different then people who lie and are not remorseful." These statements by Detective Hill might reasonably be construed as a promise of leniency, albeit one that is vague and indefinite.
In addition, Carner argues other factors show the confession was involuntary. Carner claims he is a 37-year-old transient with a history of methamphetamine addiction; he left school after completing the 10th grade; he has been arrested before, but has no prior felony arrests; he was in a weakened state, having recently relapsed into methamphetamine use; and he expressed suicidal thoughts.
On balance, however, the totality of the circumstances shows the confession was voluntary. At 37 years old, Carner was far from a juvenile. Although his formal education may have been limited, he appeared to be of at least normal intelligence. He understood what Detective Hill was asking, and responded appropriately. He did not appear confused. The interrogation was relatively brief. Hill's demeanor was not confrontational.
The cases on which Carner relies are based on the previous rule that any promise of leniency renders the confession involuntary as a matter of law. (See, e.g., People v. Vasila (1995) 38 Cal.App.4th 865, 873 [expressly relying on Boyde].) That was the rule stated in Boyde, which our Supreme Court expressly disapproved of in Williams. Under the appropriate test, and the totality of the circumstances, Carner's confession was voluntary.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
COFFEE, J.
George C. Eskin, Judge
Superior Court County of Santa Barbara
Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.