Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FV1023867. Eric M. Nakata, Judge.
Jerome P. Wallingford, 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 Steve Oetting, Eric A. Swenson, and Donald Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ramirez, P.J.
I. INTRODUCTION
Around 1:00 a.m. on March 21, 2006, defendant Shamar Lavette Thornton and an accomplice robbed a 7-Eleven store, taking $62 from the store’s cash registers at gunpoint. They then took the only store clerk, William Edward Gould, into a dark storage room where defendant shot Gould several times, killing him. Defendant was only 20 years old at the time of the crimes and was tried separately.
A jury found defendant guilty as charged of the first degree murder of Gould, robbery, and possessing a firearm as a felon in counts 1, 2, and 3, respectively. (Pen. Code, §§ 187, subd. (a), 211, 12021, subd. (a)(1).) The jury also found true a special circumstance allegation that the murder occurred during the commission of a robbery (Pen. Code, § 190.2, subd (a)(17)), and that defendant personally discharged a firearm, causing death, in the murder and the robbery (Pen. Code, § 12022.53, subd. (d)). For the murder and personal discharge enhancement in count 1, defendant was sentenced to life without parole plus 25 years to life.
Additional terms were imposed but stayed on defendant’s robbery and firearm possession convictions in counts 2 and 3, respectively, and for the additional personal discharge enhancement on count 2.
Defendant appeals, claiming that various statements he made during a four-phase station house interview on March 25, 2006, shortly after he was arrested for the crimes, were admitted in violation of Miranda and its progeny. He first claims the trial court erroneously allowed the prosecution to present evidence of statements he made during the first phase of the interrogation, before he was Mirandized. His pre-Miranda statements consisted of him telling the officers he was not involved in the crimes, though people had been telling him he looked like one of the suspects. Video and still photographs of the two suspects had been taken from the store’s surveillance cameras and were televised prior to defendant’s arrest.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Second, defendant claims that subsequent statements he made confessing his involvement in the crimes during the third and fourth phases of the interrogation were also erroneously admitted because the officers failed to ensure, at the beginning of the third phase, that he still understood the Miranda admonitions given to him during the first phase. During the second phase, defendant submitted to a polygraph examination and, immediately after the examination concluded, confessed his involvement in the crimes to the polygraph examiner. The third and fourth phases commenced immediately after the polygraph phase. As an alternative to his second claim, defendant argues the statements he made during the third and fourth phases were inadmissible based on the principles established in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert).
We conclude defendant’s pre-Miranda statements during the first phase were erroneously admitted but harmless beyond a reasonable doubt in light of defendant’s third and fourth phase statements confessing his involvement in the crimes, which were properly admitted. Accordingly, we affirm the judgment.
II. BACKGROUND
A. The Robbery Homicide
At 1:30 a.m. on Tuesday, March 21, 2006, sheriff’s deputies responded to a dispatch regarding a problem at a 7-Eleven store located at the corner of Highway 18 and Apple Valley Road. Two persons outside the store told the deputies they were unable to find the store clerk. Upon entering the store, the deputies saw a broom lying on the floor near a pile of debris, as though someone had been sweeping. Deputy Brian Roper entered a back storage room and used his flashlight to illuminate the area. There, he saw an unconscious man lying on the floor in the corner wearing a standard 7-Eleven uniform shirt. Paramedics pronounced the store clerk, later identified as 32-year-old William Edward Gould, dead at the scene.
The cause of death was extensive internal hemorrhaging due to multiple gunshot wounds to the chest and abdomen. An autopsy performed on March 22 indicated the victim had sustained 10 bullet strikes; nine primary entrance wounds and one graze wound to two fingers on his left hand. Ten 9-millimeter bullet casings were found at the scene.
“No sale” receipts were found attached to the two store cash registers, indicating the cash drawers had been opened at 12:54 a.m. and 12:55 a.m. with no purchases being made. A total of $62 was missing from both registers. The store had eight surveillance cameras. The case agent directed officers from the sheriff’s department’s “high tech crimes detail” to obtain and process the surveillance videos taken by the surveillance cameras. The surveillance videos showed two men forcing Gould to open the cash registers at gunpoint, then taking him back to the storage room.
On Thursday, March 23, the high tech crimes detail released to the media a video clip and still photographs depicting the two suspects. At a televised press conference on March 24, the sheriff sought assistance from the public in identifying the suspects. Following the press conference, detectives received leads pointing to defendant.
B. Defendant’s Four-Phase Interrogation/Overview
During the early morning hours on Saturday, March 25, police went to defendant’s house, arrested him, and took him to the homicide division of the sheriff’s office in San Bernardino for an interrogation. The interrogation took place in four phases over a period of approximately five hours. The prosecution made a motion in limine to admit various statements defendant made during the first, third, and fourth phases of the interrogation. During the hearing on the motion, the first phase was referred to as the “pre-poly[graph]” phase and included statements defendant made to the officers both before and after he was advised of his Miranda rights.
The first phase commenced shortly after 6:00 a.m., concluded around 7:00 a.m., and was conducted by Sergeant Donald Lupear and Detective Michael Gilliam. A CD and transcript of a redacted portion of the first phase was admitted into evidence at trial. The admitted portions of the first phase consisted of defendant’s pre- and post-Miranda statements denying his involvement in the crimes and saying that people had been telling him he resembled one of the suspects in the video and still photographs shown on television. The excluded portions consisted of the officers’ statements to defendant that his accomplice, Jerome Sessions, had identified him as being involved in the crimes, references to gangs, and references to defendant taking a polygraph examination.
The second phase consisted of the polygraph examination and other statements defendant made to the polygraph examiner, retired San Bernardino County Sheriff’s Detective Wayne Smith, immediately after the examination concluded. No portion of the second phase was admitted into evidence at trial, but a DVD of the second phase was presented during the prosecution’s motions in limine to admit defendant’s first, third, and fourth phase statements. The second phase commenced around 8:00 a.m. and concluded around 9:30 a.m. After the polygraph examination concluded, Smith told defendant he had not been truthful and needed to tell the truth. Defendant then confessed to Smith that he was present during the robbery and was the person who shot Gould.
No transcript of the polygraph examination was prepared.
Shortly after the second phase concluded, Sergeant Lupear took defendant from the polygraph examination room to another nearby room and conducted the third phase of the interrogation, during which defendant again confessed he was the shooter. During the fourth phase, which took place immediately after the third, defendant and Sessions were questioned together. Defendant again confessed he was the shooter and provided additional details concerning the crimes. DVDs and transcripts of the third and fourth phases were admitted into evidence at trial.
1. The First Phase
Detective Gilliam began the first phase of the interrogation by asking defendant his name, age, and address. He then asked defendant whether he knew why officers had come to his house that morning. Defendant responded, “Yes sir.” Detective Gilliam then asked, “And what is that for?” Defendant explained he had been “watchin[g] the news, ” and embarked on a rather lengthy explanation why he knew the officers had come to his house that morning.
Defendant explained that “everybody... in [his] neighborhood” and members of his family, including his nieces and girlfriend, were telling him he looked like one of the suspects in the video shown on television, though his nieces said the suspect was shorter and his girlfriend said the suspect had a different walk. Some people had asked him why he did not “run.” His response was he had no reason to run because he was not the suspect. He mentioned that his girlfriend told him she saw a man at a liquor store who looked like him and had a hat like his. She thought the man was defendant, but it was not. The man was driving a red car. Defendant’s girlfriend had almost gotten into a fight with someone over whether defendant was involved in the crimes. Defendant’s uncle had called him and was “really drilling [him]” about whether he was one of the suspects. Two men had also come to defendant’s house and “tried to rough [him] up” because they knew the victim and thought defendant was one of the suspects.
After defendant finished talking about how people were saying he looked like one of the suspects but he was not, Detective Gilliam told defendant, “we’re gonna be up front with [you] as far as the information that we’ve got and everything. Then there’ll be a time for, for question and answer.” The detective then told defendant they had compared a photograph of him with a photograph of the suspect in a “facial recognition computer” and the photographs matched. The detective continued: “So that’s why we feel real confident when we come over and see you, ” but it was dark in the back room of the 7-Eleven store and for that reason the officers did not know which of the two suspects shot Gould. That, the detective said, was what their “problem” was-ascertaining which of the two suspects shot Gould. The detective thus implied the officers knew defendant was one of the suspects when they arrested him that morning. The detective also emphasized that the shooting was “altogether something different” than the robbery.
No photographic comparison had been performed, however.
Detective Gilliam then told defendant that, before the officers could ask him any questions, they had to read him his rights, and they were “goin[g] through all this” because they wanted him to understand “where [they were] comin[g] from” and the “information” they had. After giving defendant water and a jacket, Sergeant Lupear read defendant his Miranda rights. Defendant acknowledged he understood them and was willing to speak to the officers.
Shortly before defendant was advised of and waived his Miranda rights during the first phase, Detective Gilliam told him the officers had obtained “information” about him from his friend Jerome Sessions, who was under arrest, and who had given the officers defendant’s name. In response, defendant said he and Sessions “had a confrontation” a couple of years earlier concerning “[m]ostly little gang stuff” and that he and Sessions did not “hang out.” The jury did not hear this portion of the interrogation.
After defendant waived his Miranda rights, Sergeant Lupear asked him to “just go through to the end and tell us what really happened.” Defendant continued to say he was at home at the time of the robbery and people had been telling him he looked like one of the suspects. Detective Gilliam told defendant they were “beyond that point” because the computer had matched defendant’s face with the face of one of the suspects, and they did not arrest defendant that morning because “he said or she said.” In response, defendant continued to insist he was at home during the robbery and had no reason to lie.
The jury heard that the first phase of the interrogation concluded with defendant being advised to get some rest and being offered a blanket. The jury did not hear that Detective Gilliam suggested defendant take a polygraph examination in which he would be asked whether he was present during the robbery. Defendant agreed to take the polygraph examination and did so after the first phase concluded.
2. The Second Phase/Polygraph Examination
As indicated, the second phase of the interrogation consisted of a polygraph examination and other statements defendant made in the polygraph examination room. The second phase took place in a room located about 40 feet away from the room in which the first phase was conducted.
At the outset of the polygraph examination, Smith told defendant, “I’m not a cop. I’m hired by the County of San Bernardino to administer polygraphs.” Throughout the polygraph examination, defendant denied any involvement in the robbery murder. Then, immediately after the examination concluded, Smith told defendant he was not being honest and needed to tell the truth. Defendant promptly admitted to Smith that he was present in the 7-Eleven store when the shooting occurred. Smith continued to question defendant for approximately 15 minutes. During that time, defendant admitted he was the shooter and possessed the gun used in the crimes.
3. The Third Phase
The third, or “post-poly[graph], ” phase of the interrogation took place very shortly after the polygraph examination concluded. Sergeant Lupear, who had been monitoring the polygraph examination through a two-way mirror, took defendant to another room at the sheriff’s station and questioned him.
At the beginning of the third phase, Sergeant Lupear asked defendant whether he recalled the rights the sergeant had read to him earlier and whether he was still willing to speak to the sergeant. Defendant said he did recall his rights and was still willing to speak to the sergeant.
During the third phase, defendant admitted to Sergeant Lupear that he initiated the robbery and was the shooter. He said he and Sessions went to the 7-Eleven store planning to buy something. He was “stressed out” because his girlfriend needed money. He had a nine-millimeter handgun in his left pocket. He decided to rob the store when he realized the clerk was sweeping the floor and was off guard. Sessions was surprised when defendant pulled out the gun. Several times during the interview, defendant indicated Sessions was hesitant during the incident. Sessions stood back as if he did not want to participate.
Defendant pointed the gun at the clerk. The clerk put his hands up and said, “I’ll give you all the money, just don’t hurt me.” Defendant directed the clerk to open the cash register drawers. After removing what little cash was in the registers, defendant asked the clerk about the safe, and the clerk replied there was no safe. Defendant thought the safe was in the back room. After taking the clerk into the back room, defendant asked three times, “where’s the safe.” Again the clerk said there was no safe. Defendant raised the gun with both hands and fired four to five shots. Sessions was standing between defendant and the clerk, and defendant thought he may have accidentally shot Sessions while firing at the clerk.
Sessions walked ahead of defendant as they left the store, and he and defendant immediately split up. Defendant was still in possession of the gun. He threw the gun away as he walked across a field. Defendant had a two- to three-hour walk home. He shed his clothing along the way. When he arrived at his home he was wearing only boxer shorts and socks. He crawled in through a window and got into bed with his girlfriend.
The next day, defendant’s girlfriend questioned him after seeing the video and still photographs of the robbery murder suspects on television news. She hit defendant in the chest and asked him how he could do something so stupid. Defendant said he knew he was “fucked” when he saw the news. The officers then told defendant about surveillance videos from another store indicating he had purchased a pair of gloves shortly before the robbery. Defendant said he frequently purchased gloves, and did not purchase the gloves for use in the robbery murder. He was not thinking that far ahead.
4. The Fourth Phase
Shortly after the third phase concluded, detectives interviewed defendant and Sessions together in order to sort out inconsistencies between their separate accounts of the incident. Both Sessions and defendant said they committed the robbery in order to obtain money. Defendant was under pressure to acquire money to help his girlfriend move, and Sessions owed money on his car. Sessions admitted they used his vehicle to drive to the scene. Both Sessions and defendant denied purchasing the gloves for the purpose of committing a robbery.
During the fourth phase, defendant said he had not walked home from the store. He was dropped off in his neighborhood. He disassembled the gun and threw the parts of it in different directions in a field at the end of his street. He discarded his clothing in a trash can on his street.
III. DISCUSSION
Defendant first claims the pre-Miranda statements he made during the first phase were erroneously admitted because the officers reasonably should have known he made the statements in response to questions likely to elicit incriminating responses from him. (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301.) Second, he claims his third and fourth phase statements were also erroneously admitted because the officers failed to ensure he continued to understand his Miranda rights at the time the third phase commenced. (Oregon v. Elstad (1985) 470 U.S. 298 (Elstad).) Alternatively, he claims his third and fourth phase statements should have been excluded pursuant to the principles announced in Seibert. We conclude defendant’s pre-Miranda statements were admitted in violation of Miranda and its progeny but were harmless beyond a reasonable doubt in light of defendant’s third and fourth phase statements, which were properly admitted.
A. Defendant’s Pre-Miranda Statements Were Erroneously Admitted
The requirements of Miranda are well established. In order to assure protection of the Fifth Amendment privilege against self-incrimination, a criminal defendant may not be subjected to an “inherently coercive” custodial interrogation unless he has been advised of and has knowingly and intelligently waived his rights to silence, to the presence of an attorney, and to appointed counsel if he is indigent. (People v. Davis (2005) 36 Cal.4th 510, 551-552; Miranda, supra, 384 U.S. at pp. 444-445.) Once a suspect has invoked these rights, he may not be subjected to further interrogation until counsel has been made available to him, or unless he initiates further communication, exchanges, or conversations with the police. (People v. Cunningham (2001) 25 Cal.4th 926, 992; Edwards v. Arizona (1981) 451 U.S. 477, 484-485.) Statements made in violation of Miranda are inadmissible to establish guilt. (People v. Davis, supra, at p. 552; U.S. v. Patane (2004) 542 U.S. 630, 641-642.)
As defendant argues, the admissibility of his pre-Miranda statements turned on whether Detective Gilliam’s initial inquiries of and statements to defendant during the first phase-beginning with the detective’s question whether defendant knew why the police had come to his house that morning-amounted to an interrogation for purposes of Miranda. An interrogation for purposes of Miranda refers not only to express questioning but to its “functional equivalent, ” that is, to any words or actions by law enforcement officers that the officers should know are reasonably likely to elicit an “incriminating response” from the suspect. (Rhode Island v. Innis, supra, 446 U.S. at pp. 300-301.) An incriminating response means any response, whether inculpatory or exculpatory, that the prosecution may seek to introduce at trial. (Id. at p. 301, fn. 5.) The latter part of the definition of interrogation-words or actions the officers should know are reasonably likely to elicit an incriminating response-focuses primarily upon the perceptions of the suspect rather than the intent of the police. (Id. at p. 301.)
We agree the detective’s pre-Miranda question and statements to defendant amounted to an interrogation. Detective Gilliam and Sergeant Lupear, the officers who conducted the first phase of the interrogation, should have known that the detective’s pre-Miranda question and statements to defendant were reasonably likely to elicit incriminating responses from him. As defendant argues, the detective’s initial question-whether defendant knew why the police had come to his house that morning-subtly invited defendant to comment on the robbery murder and his involvement or lack of involvement in the crimes. To be sure, defendant responded to the question by explaining at great length that people in his neighborhood, his family members, and his girlfriend were saying he resembled one of the suspects, though some were also saying the suspect was shorter and walked differently, and his girlfriend had recently seen someone who looked like him and had a hat like his. Defendant insisted he was not involved in the crimes but was at home at the time.
Thereafter, Detective Gilliam effectively told defendant the officers knew he was one of the suspects and now only wanted to know who shot Gould in the back room of the store. The detective told defendant (1) a computer had matched his facial structure to that of one of the suspects, (2) Sessions has provided the officers with “information” concerning defendant, and (3) the shooting was “altogether different” than the robbery. Though defendant said essentially nothing in response to these statements, all of his pre-Miranda statements were inadmissible because they were made in response to custodial interrogation or its functional equivalent.
The People argue, however, and we agree, that the admission of defendant’s pre-Miranda statements was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) We address this question below, after we address defendant’s additional claim that the statements he made during the third and fourth phases of the interrogation were also erroneously admitted. We conclude they were properly admitted and, in light of their admission, defendant’s pre-Miranda statements were harmless beyond a reasonable doubt.
B. Defendant’s Third and Fourth Phase Statements Were Properly Admitted
Defendant next claims his third and fourth phase statements, in which he confessed his involvement in the crimes, were erroneously admitted because the officers failed to ensure he still understood his Miranda rights at the time the third phase commenced. In other words, he claims his third and fourth phase confessions were presumptively involuntary because he did not understand his Miranda rights when he made them.
Though the trial court expressly found, and defendant concedes, he knowingly and intelligently waived his Miranda rights during the first phase and that his Miranda waiver applied throughout the remainder of the first phase, defendant argues that “circumstances changed dramatically” when the second phase, or polygraph examination, began. He observes that, before the polygraph examination began, the examiner, Wayne Smith, told him he was “not a cop” but a civilian hired to administer the polygraph. Smith never mentioned or alluded to defendant’s Miranda rights, but presented defendant with a polygraph consent form. The consent form neither mentioned nor alluded to defendant’s Miranda rights. By signing the consent form, defendant acknowledged he was voluntarily submitting to the examination, authorizing the release of the results of the examination to interested parties, releasing various parties from liability in connection with the examination, and could stop the examination and leave the room at any time. Both defendant and Smith signed the consent form.
The polygraph consent form was admitted into evidence at the hearing on the prosecution’s motion in limine, and stated: “I, Shamar L. Thornton, do hereby voluntarily, without duress, coercion, promise of reward or immunity, submit to a polygraph examination (lie detector) having the technique of polygraph testing explained to my satisfaction. I hereby release the County of San Bernardino, the Sheriff’s Department and Examiner administering this examination from any and all claims resulting from, or arising out of, this examination and I further authorize the release of the results of said examination and the information obtained to those parties having an interest in this examination. I understand that I could not be forced to take this test by anyone and I have the right, at any time, to leave the examination room. To the best of my knowledge, I have no physical or mental condition, which would prevent me from taking this examination.”
Following the polygraph examination and defendant’s confession to Smith that he was the shooter, Sergeant Lupear took defendant to another room in the sheriff’s station for further questioning. There, Sergeant Lupear began the third phase of the interrogation with the following: “What you said to Mr. Smith in there, you’re doing the right thing, okay? Before I talk to you, because I want to make sure that you understand everything, okay? And you obviously do, you’re a very smart person. I don’t even know what time it is. Let me read these again. Remember? I’m not going to read the whole thing, but you remember what I read to you earlier, okay? So you remember those?” Defendant responded, “Yeah.” The sergeant than asked, “And you understand your rights? Are you still willing to talk to me and tell me the truth now?” Defendant replied, “Yes.”
This discussion occurred at 9:23 a.m., approximately three hours after Sergeant Lupear first advised defendant of his Miranda rights during the first phase and defendant waived those rights. At the hearing on the prosecution’s motion to admit defendant’s third and fourth phase statements, the defense argued, as it argues on this appeal, that a complete Miranda admonition should have been given at the beginning of the third phase in view of the three-hour lapse of time since the original Miranda admonition and waiver and in view of defendant’s understanding that the Miranda waiver was not in effect after the first phase. In testifying at the hearing on the motion, defendant claimed he did not believe his Miranda rights applied during the second phase.
In ruling that defendant’s third and fourth phase statements were admissible, the trial court reasoned that the entire four-phase interrogation was “almost a continuous interview” with no “significant break in the action which would necessitate a further advisal.” The court also pointed out that at the beginning of the third phase, defendant had been “shuffled” back to Sergeant Lupear, the same person who originally advised him of his Miranda rights. Given that defendant knowingly and intelligently waived his Miranda rights during the first phase, coupled with the lack of any “significant break” between the end of the first phase and beginning of the third and fourth phases, the court ruled the officers were not required to obtain another Miranda waiver from defendant before continuing to question him.
Defendant argues the court failed to consider that he may have been confused about what rights he was waiving at the beginning of the third phase, in view of the intervening polygraph examination, the polygraph consent form he signed, and the failure of the consent form to mention he had the right to the presence of an attorney during questioning. The consent form, defendant argues, conflicted with the original Miranda admonition because it did not include a waiver of the right to counsel, a critical component of the Miranda admonition. In addition, defendant argues that Smith’s statement he was “not a cop” compounded his confusion concerning whether his original Miranda waiver still applied during the polygraph phase and during the third and fourth phases of the interrogation. Given the totality of these circumstances, defendant argues his third and fourth phase statements should have been excluded. We disagree.
When, as here, a subsequent interrogation is “reasonably contemporaneous” with a defendant’s prior knowing and intelligent waiver of his Miranda rights, a readvisement of Miranda rights is unnecessary. (People v. San Nicolas (2004) 34 Cal.4th 614, 640.) In determining whether a subsequent interrogation is “reasonably contemporaneous” with a prior Miranda waiver, “[t]he courts examine the totality of the circumstances, including the amount of time that has passed since the waiver, any change in the identity of the interrogator or the location of the interview, any official reminder of the prior advisement, the suspect’s sophistication or past experience with law enforcement, and any indicia that he subjectively understands and waives his rights.” (People v. Mickle (1991) 54 Cal.3d 140, 170-171 [readvisement unnecessary when defendant twice received and twice waived his Miranda rights 36 hours before interrogation resumed]; People v. Lewis (2001) 26 Cal.4th 334, 386-387 [readvisement unnecessary given five-hour lapse of time since prior interrogation, coupled with other circumstances indicating defendant continued to understand his prior Miranda waiver].)
In reviewing alleged Miranda violations, we accept the trial court’s resolution of disputed facts and its credibility determinations if supported by substantial evidence. We independently determine whether the challenged statements were lawfully obtained based on the undisputed facts and the facts properly found by the trial court. (People v. Storm (2002) 28 Cal.4th 1007, 1022-1023.) In view of the totality of the circumstances here, including the undisputed facts and the facts properly found by the trial court, defendant reasonably should have known he had the rights to remain silent and to the presence of an attorney during the polygraph phase and during the third and fourth phases of the interrogation.
First, in ruling that no further Miranda advisement or waiver was necessary at the beginning of the third phase, the trial court effectively determined that defendant understood he had the rights to remain silent and to the presence of an attorney at all times after he was first admonished of and waived his Miranda rights during the first phase. Substantial evidence supports this determination. At the beginning of the third phase, Sergeant Lupear specifically referred defendant to the sergeant’s earlier Miranda admonition and asked him if he recalled the admonition. Defendant said he did and was still willing to speak with the sergeant. Thus, defendant could not have confused the sergeant’s first phase Miranda admonition with the polygraph consent form.
In addition, when the third phase commenced around 9:23 a.m., only three hours had elapsed since defendant knowingly and intelligently waived his Miranda rights during the first phase. The third phase was conducted by Sergeant Lupear, the same officer who advised defendant of his Miranda rights and obtained his Miranda waiver during the first phase.
The trial court also effectively discredited defendant’s testimony that he did not understand he had the rights to remain silent or to the presence of an attorney during the polygraph phase or the third and fourth phases of the interrogation. The court said: “The defendant is not allowed to set up his own standard.... [A]fter three years... in custody he has realized that he shouldn’t have talked. Well, most of the time when folks talk to the homicide people they realize at a certain point later in time [they] shouldn’t have said anything.... [¶]... I think that [defendant] wanted to tell his side of the story.”
Indeed, it is evident from the record that defendant was continually willing, both during and at all times after the first phase, to waive his rights to remain silent and to the presence of an attorney during questioning and to speak with both Smith and the officers. Defendant appeared alert during all phases of the interrogation. He was also interested, at least initially, in persuading both Smith and the officers that he was not involved in the crimes.
The court also implicitly found that the polygraph consent form did not confuse defendant’s understanding of his Miranda rights, and substantial evidence supports this determination. The consent form plainly stated that defendant had the right to leave the polygraph examination room at any time. Though the consent form did not state that defendant had the right to an attorney during the polygraph examination or thereafter, defendant reasonably should have known he could obtain an attorney if he desired one once he stopped the polygraph examination.
In sum, given the totality of the relevant circumstances, defendant could not have reasonably believed he no longer had the right to remain silent during the polygraph phase or third and fourth phases of the interrogation. Nor could he have confused his first phase Miranda admonition and waiver with the polygraph consent form.
C. Defendant’s Third and Fourth Phase Confessions Were Not Required to be Excluded Under the Controlling Rule of Seibert
As an alternative or “backup” argument to his claim that his third and fourth phase confessions were presumptively involuntary in view of the totality of the circumstances, defendant claims his third and fourth phase statements were inadmissible pursuant to the principles articulated in Seibert. Specifically, defendant argues his third and fourth phase statements were inadmissible because they were the product of a two-step interrogation technique held impermissible in Seibert. We disagree.
1. The Controlling Rule of Seibert
In Seibert, the defendant was awakened and arrested around 3:00 a.m., taken to the police station, and left alone in an interview room for 15 to 20 minutes. (Seibert, supra, 542 U.S. at p. 604.) An officer then questioned the defendant for 30 to 40 minutes without advising her of her Miranda rights, and obtained her confession to a murder. (Seibert, supra, at pp. 604-605.) After giving the defendant a 20-minute break, the interrogating officer returned to the same room where he had been interrogating the defendant, Mirandized her, and obtained a signed waiver of her Miranda rights. The officer then obtained the same confession from the defendant, in part by reminding her of her earlier confession. (Seibert, supra, at p. 605.) In a pretrial hearing to exclude the defendant’s pre- and post-Miranda confessions, the interrogating officer admitted he made a “conscious decision” to withhold Miranda warnings until after the defendant confessed. (Seibert, supra, at pp. 605-606.) This was part of an interrogation technique the officer had been taught: “[Q]uestion first, then give the warnings, and then repeat the question ‘until I get the answer that she’s already provided once.’” (Id. at p. 606.)
In a plurality opinion authored by Justice Souter and joined by Justices Stevens, Ginsburg, and Bryer, the plurality identified the following as the relevant inquiry: “The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.” (Seibert, supra, 542 U.S. at pp. 611-612, fn. omitted.)
In a concurring opinion, Justice Kennedy disagreed with the plurality’s identified inquiry on the ground it cut too broadly. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. Kennedy, J.).) Instead, he articulated the following test: “The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. [Citations.] Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient. No curative steps were taken in this case, however, so the postwarning statements are inadmissible and the conviction cannot stand.” (Ibid.)
Justice Kennedy’s concurring opinion, rather than the four-justice plurality opinion authored by Justice Souter, states the controlling rule of Seibert. (People v. Rios (2009) 179 Cal.App.4th 491, 504-505; U.S. v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158.) Simply stated, the controlling rule of Siebert is that the rule of Elstad applies except when a deliberate two-step interrogation strategy similar to the one employed in Seibert has been employed. (Seibert, supra, 541 U.S. at p. 622 (conc. opn. Kennedy, J.).)
In Elstad, two officers went to the 18-year-old defendant’s home with a warrant to arrest him for burglarizing the neighboring home of his friend’s parents, Mr. and Mrs. Gross. (Elstad, supra, 470 U.S. at p. 300.) A witness to the burglary had contacted the sheriff’s office and implicated the defendant. (Ibid.) The defendant’s mother answered the door and showed the officers to the defendant’s room, where he lay on his bed, dressed in shorts, and listening to his stereo. The officers asked the defendant to get dressed and accompany them to the living room. While one of the officers went into the kitchen with the defendant’s mother and told her they had a warrant for her son’s arrest, the other officer stayed in the living room with the defendant. (Id. at pp. 300-301.) In the living room, the officer asked the defendant whether he knew why the officers were there to talk with him. The defendant said he had no idea. The officer then asked the defendant whether he knew a person by the name of Gross. The defendant said he did and that he had heard there was a robbery at the Gross house. At that point, the officer told the defendant he felt he was involved in the burglary, and the defendant said, “Yes, I was there.” (Id. at p. 301.)
The defendant was then taken to the sheriff’s station and, approximately one hour later, the same two officers who had arrested defendant at his home advised him of his Miranda rights. (Elstad, supra, 470 U.S. at p. 301.) The defendant waived his rights and again confessed to the burglary. His confession was typed up and the defendant and the officers signed the confession. (Ibid.) At trial, the defendant’s pre-Miranda statement, “I was there, ” was excluded from evidence, but his post-Miranda confession to the burglary was admitted. (Elstad, supra, at p. 302.)
The high court held the defendant’s post-Miranda statements were properly admitted. (Elstad, supra, 470 U.S. at p. 318.) After rejecting the defendant’s claim that the fruit-of-the-poisonous-tree doctrine applied to procedural Miranda violations (Elstad, supra, at pp. 305-309), the high court reasoned that the defendant’s initial inculpatory statement, though obtained in violation of Miranda, was nevertheless voluntary (Elstad, supra, at p. 318). The court further reasoned: “The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, 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.” (Ibid.)
2. Analysis
Defendant argues his third and fourth phase statements were inadmissible even under the narrower principles articulated by Justice Kennedy in his concurring opinion in Seibert. That is, defendant argues that even if Seibert applies only when law enforcement officers deliberately violate Miranda in an effort to circumvent its Fifth Amendment safeguards, the interrogation procedure in this case was deliberately designed to circumvent his Miranda rights.
As evidence of the officers’ intent to circumvent Miranda, defendant points to his polygraph phase confession to the polygraph examiner, Wayne Smith. He argues that after Sergeant Lupear and Detective Gilliam were unable to obtain a confession from him during the first phase, both before and after he was advised of and waived his Miranda rights, the officers then “called in” Wayne Smith who “effectively ‘de-Mirandized’” him by telling him he was “not a cop” and by failing to include a right to counsel admonition in the polygraph consent form. Then, during the third and fourth phases, defendant again confessed his involvement in the crimes to Sergeant Lupear and Detective Gilliam. Defendant essentially argues that, given these circumstances, none of his confessions were voluntarily given.
At the suppression hearing, defendant testified he did not understand he had the rights to remain silent or to consult with an attorney during the polygraph phase.
Notably, defendant did not claim in the trial court that his third and fourth phase statements were inadmissible as having been taken in violation of Seibert, and the court did not specifically address that claim. Significantly, however, defendant did not confess his involvement in the crimes before he was Mirandized. Instead, he first confessed to Smith and later confessed to Sergeant Lupear after he was Mirandized and after he had knowingly and intelligently waived his Miranda rights. Thus, the rule of Elstad, not Seibert, controls. (Seibert, supra, 541 U.S. at p. 622 (conc. opn. of Kennedy, J.).)
And, regarding Elstad, the trial court effectively found that defendant’s polygraph phase confession and his third and fourth phase confessions were voluntarily given, and substantial evidence supports these determinations. As the trial court found, there was no significant break in the entire four-phrase interrogation, and defendant’s knowing and intelligent Miranda waiver during the first phase stayed in effect during the remaining phases of the interrogation, including the polygraph phase, and it was therefore unnecessary for the officers to again advise defendant of his Miranda rights at the beginning of the third phase. For these reasons, defendant’s third and fourth phase statements were properly admitted.
D. The Erroneous Admission of Defendant’s Pre-Miranda Statements Was Harmless Beyond a Reasonable Doubt
Given that defendant’s third and fourth phase statements admitting he robbed the 7-Eleven store, shot Gould three to four times, and possessed the handgun used in the robbery murder were properly admitted, the erroneous admission of defendant’s pre-Miranda statements to Detective Gilliam and Sergeant Lupear was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Johnson (1993) 6 Cal.4th 1, 32-33, overruled on another ground in People v. Rogers (2006) 39 Cal.4th 826, 879.) The only pre-Miranda statements the jury heard consisted of defendant’s statements that various people, including his family members and girlfriend, were telling him he resembled one of the suspects shown on television. These pre-Miranda statements were utterly “unimportant in relation to everything else the jury considered” on the question of the charges and enhancement allegations, including defendant’s third and fourth phase statements confessing his involvement in the crimes. (Yates v. Evatt (1991) 500 U.S. 391, 403 [“To say that an error did not contribute to the verdict is... to find that error unimportant in relation to everything else the jury considered on the issue....”].)
IV. DISPOSITION
The judgment is affirmed.
We concur: McKinster, J.; Miller, J.