Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF014363, Judith C. Clark, Judge.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
A jury found defendant guilty of transportation of heroin (Health & Saf. Code, § 11352, subd. (a)) (count 1); possession of heroin with intent to sell (Health & Saf. Code, § 11351) (count 2); being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) (count 3); and unlawful possession of ammunition (Pen. Code, § 12316, subd. (b)(1)) (count 4). The jury also found true that defendant was personally armed with a firearm (Pen. Code, § 12022, subd. (c)) in the commission of counts 1 and 2. Defendant later admitted that he had sustained four prior prison terms (Pen. Code, § 667.5, subd. (b)) and nine prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)). As a result, defendant was sentenced to a total term of 32 years to life in state prison. On appeal, defendant contends, (1) the trial court erred in admitting his statements to the police, and (2) his statements to the police should have been excluded, as they were involuntary. We reject these contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On November 17, 2005, Riverside County Deputy Sheriff Sam Morovich was on patrol in Perris, California when he drove by a house and saw an unfamiliar car (Firebird) stopped at the home. The deputy was familiar with the house because he had previously made and assisted in felony arrests at that location. Defendant was sitting in the car conversing with a man standing beside the car. As the deputy drove by, he observed there was no front license plate on the car. When the vehicle drove off, the deputy turned around and followed the car. The deputy stopped the car a short distance away.
When Deputy Morovich asked defendant for his driver’s license, defendant stated his license had been suspended. After the deputy verified the suspension with dispatch, defendant was detained for driving without a license. In a patdown search of defendant, the deputy found a large amount of cash in defendant’s wallet.
After the deputy placed defendant in the back of his patrol unit, the deputy conducted an inventory search of the car and found more cash in the car, which, with the cash found in defendant’s wallet, totalled over $1,300. A loaded revolver, bullets, two pieces of heroin, four syringes, a digital scale, a glass pipe, and a bottle cap with heroine residue in it were also found in the vehicle. The car was registered to a Luis Gonzalez of Thermal, California.
Deputy Morovich showed the heroin and gun to defendant, and asked defendant where he had obtained the items. Defendant had initially, “most likely,” denied knowing the gun and drugs were in the car, but then defendant initiated the conversation by asking, “[H]ey, what if I told you where the items came from?” Deputy Morovich speculated that defendant wanted something in return for his cooperation. Defendant gave the officer the identity of the owner of the car and stated the gun and heroin belonged to the owner. Defendant was upset and claimed that he had to stay out of jail to be with his dying father. He also stated that he was selling the heroin because he needed the money to pay for his father’s funeral.
Deputy Morovich drove defendant to the police station where he read defendant his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda). Defendant waived those rights and agreed to speak with the deputy. Deputy Morovich asked defendant about the source of the gun and heroin. Defendant said the car and the heroin came from two brothers who lived in Thermal, who sold the car to him, and admitted that he was going to sell the heroin to make money for his father’s funeral. Defendant also admitted that he was a heroin user.
Defendant continued to offer information to law enforcement. Deputy Morovich contacted the Southwest Narcotics Task Force and Deputy Theodore Peterson, who was working as an undercover narcotics officer in November 2005, came to speak with defendant at the police station. After speaking with defendant, Deputy Peterson opined the information defendant provided was of no interest to his unit. Defendant appeared somber and disappointed but did not mention his dying father. Deputy Peterson opined defendant was a user and dealer of heroin based on the amount of heroin found together with the gun, scale, money, and needles.
Both deputies omitted defendant’s offer to cooperate from their reports for defendant’s safety.
Defendant testified that he had bought the Firebird from a friend in Thermal, to resell for a profit, about two weeks before his arrest. The day he was arrested a woman had called him about the car and he drove to the location of the house where he encountered a man claiming the woman was not home. He confirmed that he had been pulled over by Deputy Morovich and informed the officer that his license was suspended. He stated that he had followed the deputy’s directives and in a brief conversation, the deputy had asked him who the gun and drugs belonged to. Defendant denied owning the gun or knowing it was in the car; he also denied the heroin belonged to him.
Defendant further testified that on the drive to the police station Deputy Morovich said defendant could get a long time in prison and that defendant needed to say who owned the drugs. Defendant claimed that the deputy said the deputy could make defendant’s charges go away, “if [defendant] could tell [him] where the drugs came from, that he would allow [defendant] to be with [his] father.” Defendant explained that it was “possible” he told the deputies about the drugs, but it was so important for him not to go to jail at that time, that he “might have said anything to keep [himself] out of jail”; he might even have lied to the deputies. Defendant agreed with the prosecutor that it was a total coincidence that there was heroin in the car and he was under the influence of heroin that day. Defendant admitted that he had used drugs in the past and also admitted to having a past criminal record.
Defendant’s fiancée testified that she had seen about $1,500 in defendant’s wallet on the morning of his arrest and that defendant had visited his ailing father everyday in Perris. She believed that defendant was going to use the money for his father’s funeral.
Defendant’s father had passed away on December 8, 2005. Defendant’s fiancée admitted having previously been convicted of numerous theft-related felonies, including burglaries.
II
DISCUSSION
A. Admission of Defendant’s Statements
Defendant contends the trial court erred in failing to exclude his statements to the deputies. Specifically, he argues he was in custody and subjected to interrogation before he received his Miranda warnings, and therefore the incriminating statements he made during the initial interrogation should have been excluded at trial. He also claims the court should have excluded his post-Miranda statements at the police department because it was involuntary, coerced, and tainted by the prior Miranda violation.
First, we find defendant did not raise this Miranda objection in his moving papers below or during trial. “‘As a result, the parties had no incentive to fully litigate this theory below, and the trial court had no opportunity to resolve material factual disputes and make necessary factual findings’ [citation], such as the nature and effect of the type of small talk in which the officers engaged.” (People v. Gurule (2002) 28 Cal.4th 557, 603, quoting People v. Ray (1996) 13 Cal.4th 313.) Failure to raise an argument regarding a Miranda violation at trial forfeits the right to do so on appeal. (People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13; People v. Santana (1982) 134 Cal.App.3d 773, 785; People v. Scott (1994) 9 Cal.4th 331, 352-353.) “‘The general rule is that a defendant must make a specific objection on Miranda grounds at the trial level in order to raise a Miranda claim on appeal.’ [Citations.]” (People v. Mattson (1990) 50 Cal.3d 826, 854.) We therefore conclude the objection was not preserved for appeal. (Gurule, at p. 603.)
Second, even assuming for argument the issue was preserved and to avoid his ineffective assistance of counsel argument, we find it lacks merit.
The advisement of Miranda rights is only required when a person is subject to custodial interrogation. (People v. Mickey (1991) 54 Cal.3d 612, 648; People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) Custodial interrogation has two components. First, the person being questioned must be in custody. The second component is obviously interrogation. (Mickey, at p. 648; Mosley, at pp. 1088-1089.)
“The phrase ‘custodial interrogation’ is crucial. The adjective encompasses any situation in which ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citation.] The noun ‘refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ [Citation.]” (People v. Mickey, supra, 54 Cal.3d at p. 648; People v. Mayfield (1997) 14 Cal.4th 668, 732.)
A statement is involuntary if it is not the product of a rational intellect and free will. (Mincey v. Arizona (1978) 437 U.S. 385, 398 [98 S.Ct. 2408, 2416].) The test for determining whether a confession is voluntary is whether the defendant’s will was overborne at the time he confessed. (Lynumn v. Illinois (1963) 372 U.S. 528, 534 [83 S.Ct. 917]; People v. Maury (2003) 30 Cal.4th 342, 404.) A totality of circumstances test is applied to determine the voluntariness of a confession. (People v. Massie (1998) 19 Cal.4th 550, 576.) “Among the factors to be considered are ‘“the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.”’ [Citation.]” (Id. at p. 576.)
The standard as to what amounts to interrogation is “whether ‘under all the circumstances involved in a given case, the questions are “reasonably likely to elicit an incriminating response from the suspect.”’ [Citation.] This is an objective standard.” (People v. Wader (1993) 5 Cal.4th 610, 637.) “[N]ot all conversation between an officer and a suspect constitutes interrogation.” (People v. Clark, supra, 5 Cal.4th at p. 985.) For example, voluntary statements are not subject to the requirements of Miranda. (People v. Ray, supra, 13 Cal.4th at p. 337.)
Assuming for the sake of argument that defendant’s pre-Miranda statements should have been excluded, this is necessarily not the case for his post-Miranda statements at the police station. The parties agree that this issue is guided by Oregon v. Elstad (1985) 470 U.S. 298 [105 S.Ct. 1285, 84 L.Ed.2d 222] (Elstad). In Elstad, a police interview yielded incriminating statements in a situation where the police should have first advised the suspect of the Miranda warnings. Later, the police complied with Miranda and the defendant made further incriminating statements. (Elstad, at pp. 301-303.) The United States Supreme Court held that law enforcement’s initial failure to administer Miranda warnings did not taint the later statements the defendant made after proper advisement and waiver of his Miranda rights. Elstad specifically declined to exclude the latter statements as being the tainted fruit of the first non-Mirandized admission. (Elstad, at pp. 305-308.) The court rejected the argument that the initial failure to administer the Miranda warnings, “unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period.” (Elstad, at p. 309.)
Consequently, Elstad held the admissibility of any subsequent Mirandized statement turns solely on the issue of “whether it is knowingly and voluntarily made.” (Elstad, supra, 470 U.S. at p. 309.) In that regard, “the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative.” (Id. at p. 318.)
“We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case[-]in[-]chief. No further purpose is served by imputing ‘taint’ to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” (Elstad, supra, 470 U.S. at p. 318.)
In other words, “[w]here a prior custodial statement, though obtained without Miranda warnings, was otherwise uncoerced, any taint upon a second statement is dissipated by a determination that the second statement was itself voluntary and obtained without a Miranda violation. [Citation.]” (People v. Storm (2002) 28 Cal.4th 1007, 1030 (Storm).) Moreover, “a later statement obtained in compliance with Miranda, and without coercive methods of interrogation, is not to be presumed involuntary simply because the suspect has already incriminated himself.” (Storm, at p. 1030.) “‘[After] an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.’ [Citation]” (Elstad, supra, 470 U.S. at p. 311.)
Here, as in Elstad, defendant’s prior statements concerning the gun and heroin, though obtained without Miranda warnings, were otherwise uncoerced. The record shows that the questioning as to these items consisted of the sole question of whether defendant knew where these items came from. Deputy Morovich asked defendant about the source of the gun and heroin. Defendant said the car and the heroin came from two brothers who lived in Thermal, who sold the car to him, and admitted that he was going to sell the heroin to make money for his father’s funeral. Defendant also admitted that he was a heroin user, and asked about providing information to the deputy to get him out of custody. Furthermore, defendant was given his Miranda warnings prior to making these statements, and the record reasonably supports the conclusion that he made a rational and intelligent choice to waive his rights. (Elstad, supra, 470 U.S. at p. 314.) Contrary to defendant’s claim that he simply had no choice but to say the drugs were his, the record indicates that he freely waived his rights and voluntarily confessed to being a heroin user and having knowledge of the gun and heroin. Therefore, the court properly admitted the statements.
Defendant’s reliance on Missouri v. Seibert (2004) 542 U.S. 600 [124 S.Ct. 2601, 159 L.Ed.2d 643] (Seibert) is misplaced, since Seibert is distinguishable. In Seibert, the police woke the defendant up at 3:00 a.m., arrested her for murder, and took her to the police station for questioning. The police intentionally withheld the Miranda warnings and questioned the defendant for 30 to 40 minutes, until she confessed. Then they gave her Miranda warnings and continued the interrogation, confronted her with her prewarning statements, and essentially repeated the same questions until she confessed again. (Seibert, at pp. 604-606.) The Supreme Court found that the police used a “strategy adapted to undermine the Miranda warnings.” (Siebert, at p. 616.) The Court noted, “The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill.” (Ibid.) Furthermore, the same officer who conducted the first unwarned interview conducted the latter interview, and “said nothing to counter the probable misimpression that the advice that anything [the defendant] said could be used against her also applied to the details of the inculpatory statement previously elicited.” (Ibid.) Moreover, “[t]he impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given.” (Ibid.) The Court concluded that these circumstances challenged “the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.” (Seibert, at p. 617.)
Here, unlike Seibert, there was no deliberate strategy to undermine Miranda. Rather, the circumstances indicate, “a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine [defendant’s] ability to exercise his free will.” (Elstad, supra, 470 U.S. at p. 309.) Furthermore, the police asked the initial single question of whether he knew who the drugs and gun belonged to, in order to gather information, at the time of investigating the scene. The post-Miranda questioning was not designed to get defendant to repeat the same statement made before, as in Seibert. The police simply questioned defendant about what they found during their search of the car. The police properly gave defendant his Miranda warnings before he admitted wanting to sell the heroin to pay for his father’s funeral and repeating his statement about the possibility of providing information in return for avoiding jail. We conclude that the court properly admitted defendant’s post-Miranda statement.
B. Whether Defendant’s Statements Were Voluntary
In a related claim, defendant contends his statement that he was going to sell the heroin was involuntary and thus inherently unreliable and inadmissible. He argues that his statement was involuntary because he was emotionally fragile over his father’s illness and would say anything to be released; the deputies promised to make the charges “‘go away’” if he provided inculpatory information; and the promise of release or a reduced sentence “coaxed” him into saying he knew the heroin was in the car.
“An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution [citation] as well as article I, sections 7 and 15 of the California Constitution [citation].” (People v. Weaver (2001) 26 Cal.4th 876, 920.) Where a defendant claims his confession was involuntary, the People have the burden to show, by a preponderance of the evidence, that the statements were made voluntarily. (People v. Jones (1998) 17 Cal.4th 279, 296.) Under both state and federal law, the courts apply a totality of circumstances test to determine voluntariness. (People v. Haley (2004) 34 Cal.4th 283, 298; People v. Bradford (1997) 14 Cal.4th 1005, 1041.)
“A finding of coercive police activity is a prerequisite for a finding that a confession was involuntary under the due process clauses of the federal or state Constitution. [Citations.]” (People v. Clark, supra, 5 Cal.4th at p. 988.) Police are prohibited from using only those psychological ploys that, under all the circumstances, “‘are so coercive that they tend to produce a statement that is both involuntary and unreliable.’” (People v. Jones, supra, 17 Cal.4th at p. 298, quoting People v. Ray, supra, 13 Cal.4th at p. 340.) Further, “where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary . . . .” (People v. Boyde (1988) 46 Cal.3d 212, 238.)
“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.]” (People v. Massie, supra, 19 Cal.4th 550, 576.)
On appeal, “‘the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to [the] voluntariness of the confession is subject to independent review.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 471.)
Here, the record clearly shows that defendant’s statements were voluntary. There was no evidence of force, threats, or promises by the deputies. Defendant himself volunteered that his father was ill and that he would do anything to avoid custody, including helping the police by providing information about the heroin. Defendant had substantial prior experience with the criminal justice system and there was no evidence to suggest that he was physically vulnerable or impaired. In addition, the interrogation was brief in duration. Though defendant was upset about his father’s illness, that was a preexisting circumstance that was neither caused by nor exploited by the deputies here. In addition, although defendant describes the deputies’ statements as an offer to “‘make the charges go away,’” according to Deputy Morovich it was defendant who had initiated the possibility of cooperation, going so far as to give the deputy the name of another deputy defendant had worked for as an informant in the past. Deputy Peterson was contacted to give defendant an opportunity to provide information that might have helped defendant. There was no evidence that the deputies had induced defendant’s admissions through coercive tactics, as defendant suggests. Rather, defendant voluntarily provided information in an effort to help himself out of his dilemma. Based on the totality of the circumstances, defendant’s statement was voluntarily made.
III
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., KING J.