Opinion
G052713
02-15-2017
THE PEOPLE, Plaintiff and Respondent, v. TOR ERNEST ANDERSON, Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13WF3818) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Tor Ernest Anderson of committing sexual offenses against a child and possessing child pornography. In this appeal, Anderson contends that the trial court improperly admitted statements he made to the police in two separate interviews, thereby violating his constitutional right against self-incrimination. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); Missouri v. Seibert (2004) 542 U.S. 600 (Seibert).) We find no error and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On August 3, 2013, eight-year-old D.V. spent the night at the home of 59-year-old Anderson and his sister, who was confined to a wheelchair. That day, D.V.'s mother had gotten engaged, so D.V. wanted her mother to spend some time alone with her fiancée. That night, D.V. stayed in Anderson's bedroom.
D.V. told Anderson that she was curious as to how his sister got in and out of her bed from the wheelchair. Anderson promised D.V. that if she kissed his penis, then she would get to see how that happened. D.V. said that she did not want to kiss his penis, but Anderson made her do it anyway. Anderson also touched D.V.'s vagina and kissed her, licking his tongue against hers. Afterwards, they went to bed. Anderson slept naked in his own bed, while D.V. slept in her sleeping bag on the floor. D.V. woke up during the night and saw Anderson's penis "sticking out of the bed" from "under the sheets."
Anderson's Statements to the Police
On December 11, 2013, at about 8:30 a.m., Huntington Beach Police Department Detective Ryan Reilly and about five other detectives went to Anderson's home. The detectives were in plain clothes, but their vests or windbreakers may have had some identifiable police markings. Reilly had a gun holstered at his side, but he could not remember if it was concealed. Reilly had obtained a search warrant for Anderson's home and he also had an arrest warrant.
Anderson's sister answered the front door and led Reilly and at least one other detective to Anderson's bedroom. Reilly identified himself and asked if he could speak with Anderson outside of the home. Anderson agreed to go outside. Reilly said that he wanted to separate Anderson from his family and speak to him alone due to the sensitive nature of the discussion.
Reilly walked outside with Anderson to an area around the side of the home. Reilly and Anderson were alone. Although there were two other detectives outside, they were located more towards the front of the house. Reilly asked Anderson if he would speak with him in his vehicle. The car was an unmarked Ford Fusion and had nothing about it indicating that it was a police vehicle. The other plain clothes detectives who had gone to the home were also in unmarked cars.
Anderson agreed to get in the car. Reilly sat in the driver's seat and Anderson sat in the front passenger's seat. The doors were closed, but Anderson was not restrained. Reilly activated a tape recorder and placed it in the "ma[p] pocket" of the door. At the start of the interview, Reilly told Anderson: "You're not under arrest, but I'm here because of privacy sake and it's cold outside." Five or six minutes into the conversation, Reilly looked down and noticed that the recorder had stopped working. Reilly did not know how long the conversation had continued without being recorded, but he estimated that it was no more than a minute. Reilly left the car, got a second recorder from a fellow detective, returned to the car, and continued with the interview. When the interview resumed, Reilly asked Anderson: "Do you got to [go to] the bathroom serious?" Anderson responded: "Well, I can hold it a while longer."
During the interview, Anderson said that D.V.'s mother had asked him to babysit D.V. Anderson said that he slept in the nude and that he kept a plastic bottle near the bed so he wouldn't have to go the bathroom to urinate during the night. Anderson said that D.V. had a "crush on me" and she kissed him "out of the blue" on the lips. Anderson said that "when she kissed me I sort of kissed back." Anderson said that D.V. asked to see his penis. Anderson said that he let D.V. pull aside the leg of his shorts and look at his penis. Anderson said that D.V. then gave his penis "a little squeeze" and giggled. Anderson denied that D.V. had kissed his penis.
The interview in the car lasted about 30 minutes. At its conclusion, Reilly told Anderson to have a seat outside on the steps. Anderson said: "Well I'm going to go." Reilly responded: "Okay. Hang tight first, just have a seat give me a couple minutes. " Anderson was thereafter arrested and transported to the police station. At the police station, Reilly read Anderson each of his "Miranda rights." After Anderson said that he understood each of his rights, Reilly and another officer continued to ask him questions. Anderson provided more details concerning his encounter with D.V. and he also admitted that he had downloaded pornography that included some underage youngsters.
Trial Court Proceedings
On June 16, 2014, the district attorney filed an information charging Anderson with two counts of lewd conduct with a child under the age of 14, one count of oral copulation or sexual penetration with a child 10 years of age or younger, and one count of possessing child pornography. (Pen. Code, §§ 288, subd. (a), 288.7, subd. (b), 311.11, subd. (b).) The information further alleged that Anderson had substantial sexual contact with a child under 14 years of age. (Pen. Code, § 1203.066, subd. (a)(8).)
About a year later, a jury trial began. Anderson filed a pretrial motion in limine. As to the first interview in the car, Anderson claimed that he was subjected to a custodial interrogation without Miranda warnings. (Miranda, supra, 384 U.S. 436.) As to the second interview at the police station following his arrest, Anderson claimed that the police deliberately engaged in a two-step interrogation procedure designed to undermine the Miranda warnings that had been given. (Seibert, supra, 542 U.S. 600.) The trial court ruled that Anderson's statements in the initial interview were admissible because he was not in custody in the car. The court did not rule as to the admissibility of the statements Anderson made in the second interview. During the trial, the jury listened to an audio recording of the initial interview. Just prior to it being played, Anderson's counsel renewed her objection to its admissibility "pursuant to the 402 motion." Without objection, the jury also listened to and watched a video recording of the second interview at the police station.
The jury found Anderson guilty of all four counts and found the sentencing allegation to be true. The trial court imposed an aggregate sentence of 15 years to life.
II
DISCUSSION
"No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." (U.S. Const., 5th Amend., italics added.) "The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion." (Oregon v. Elstad (1985) 470 U.S. 298, 306-307.) "Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda." (Id. at p. 307.) A. Anderson's initial interrogation was not custodial.
Anderson argues that he was subjected to a custodial interrogation during the initial interview that occurred in the car. We disagree.
Generally, an officer must warn a suspect of his or her colloquial "Miranda rights" only when the suspect is subjected to a "'custodial interrogation.'" (People v. Mickey (1991) 54 Cal.3d 612, 648; People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) The test for when a suspect is in custody is objective; the question is whether there was a formal arrest or a restraint on the freedom of the suspect's movement to the degree associated with a formal arrest. (People v. Stansbury (1995) 9 Cal.4th 824, 830.) The analysis is "whether a reasonable person in defendant's position would have felt he or she was in custody." (Id. at p. 830.) The United States Supreme Court has instructed that "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." (Berkemer v. McCarty (1984) 468 U.S. 420, 442, fn. omitted.)
An appellate court's determination of whether a suspect was in custody for Miranda purposes is a mixed question of fact and law. (See People v. Cromer (2001) 24 Cal.4th 889, 894-895.) Mixed questions of fact and law that implicate constitutional rights are subject to independent review, but reviewing courts apply a deferential standard of review to the trial court's factual findings. (Ibid.)
"Courts have identified a variety of relevant circumstances [to determine custody]. Among them are whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom; whether there were restrictions on the person's freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation." (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
"Although the circumstances of each case must certainly influence a determination . . . , the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." (California v. Beheler (1983) 463 U.S. 1121, 1125.)
Here, before making its ruling, the trial court reviewed the relevant facts: "We have officers go into the defendant's house. They're not in uniform. They're in unmarked patrol cars. Defendant's sister lets the officers in. Defendant voluntarily opens the door, and now it's one on one with Detective Reilly. [¶] Detective Reilly asked if he could talk to him. Defendant says, 'Yes.' They go outside. And, again, it's one on one. It's not, like five on one. No one's surrounded. Guns aren't drawn. No one's barking out orders. There's no hostile environment. [¶] It sounds like a casual chat between two guys. And once they're outside, it's cold out . . . . [¶] They end up in an unmarked patrol car, a Ford Fusion. There's no cage in the back. It was done for privacy. It's just the investigator and the defendant. [¶] Investigator Reilly is not in uniform. His gun isn't brandished."
The trial court then further characterized the conversation that took place in the car: "And I think it was a good idea for the court to hear the demeanor of both parties because at no time did the court feel in any way that either side was getting hostile with the other[.] [F]ree flowing conversation. No one was being aggressive with each other. No one was barking at each other. It sounded like a pretty cordial conversation based on my impression of it."
The trial court then considered several of the various factors that courts routinely weigh when determining whether a suspect is in custody or not. (People v. Forster (1994) 29 Cal.App. 4th 1746.) The court considered that the length of the interrogation at about 30 minutes was "not too long." The court considered that because it was cold outside, it would have been more comfortable inside of the car, so that the location of the interrogation was "not too coercive." The court considered it important that the ratio of officers to was one on one: Reilly and Anderson. The court found that the demeanor of Reilly was "pleasant," and that he only "got a couple of questions out" and that Anderson actually "did a lot of talking, did a lot of explaining." The court considered it important that Reilly told Anderson "right out of the gate he wasn't under arrest . . . ."
The trial court continued that: "Another interesting thing I considered was that the tape -- there was a malfunction with the tape. Well, the officer gets out of the car to go get another tape [recorder]." The court opined that Anderson "could have just opened up the door, either walked into the house to use the bathroom, got outside to check what was going on in the house." The court said: "It could be suggested that the defendant was free to leave at that point." The court also found it important that at the end of the interview Anderson said, "Well, I'm going to go." The court found this to be "circumstantial evidence that [Anderson] always thought he was free to go." The court concluded that: "I cannot agree with the defense position that the defendant was in legal custody at the time that this conversation took place."
Based on our independent review of the record, we are largely in agreement with the trial court's analysis. We recognize that some of the Miranda custody factors tend toward an opposite finding; for example, Reilly apparently arrested Anderson immediately after the interview in the car. But much like the trial court, we find it particularly significant that Reilly told Anderson at the beginning of their encounter that he was not under arrest. And although Reilly did not tell Anderson that he was also "free to leave," Anderson's statement at the end of the interview ("I'm going to go") indicates that Anderson was under the impression that he was, in fact, free to leave. Considering the totality of the circumstances, including the non-combative nature of the interview and the other relevant factors identified by the trial court, we find that Anderson was not in custody or its functional equivalent while he was being questioned in the car. In sum, this was not the type of coercive interrogation situation that Miranda warnings were designed to alleviate.
Thus, Anderson's unwarned statements that he made while he was in the car were properly admitted against him at trial. B. The holding of Seibert is inapplicable under these facts.
At the police station, Reilly recited the Miranda warnings and confirmed that Anderson understood them. Anderson then spoke to Reilly. In this appeal, Anderson argues that his second set of statements were elicited as part of a deliberate two-step technique that violated his constitution right against self-incrimination based on the United States Supreme Court's holding in Seibert, supra, 542 U.S. 600. We disagree.
It should be noted that Anderson forfeited this "Seibert claim" for purposes of this appeal. Although in his written pretrial motion in limine he sought to exclude the statements he made at the police station, his counsel did not seek a ruling from the trial court regarding those statements. (See People v. Lewis (2008) 43 Cal.4th 415, 481 ["Failure to press for a ruling on a motion to exclude evidence forfeits appellate review of the claim because such failure deprives the trial court of the opportunity to correct potential error in the first instance"], disapproved on another ground by People v. Black (2014) 58 Cal.4th 912, 919-920; see also People v. Morris (1991) 53 Cal.3d 152, 195 [defendant forfeited appellate challenge to admission of testimony by failing "to press for" a ruling "until he obtained one"], overruled on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Nevertheless, we will review the merits of Anderson's forfeited Seibert claim, thereby forestalling any potential future ineffective assistance of counsel claims. (See People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [court addressed forfeited issue thereby forestalling claim of ineffectual counsel]; see also 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Reversible Error, § 43, p. 574 ["The fact that a party, by failing to raise an issue below, may forfeit the right to raise the issue on appeal does not mean that an appellate court is precluded from considering the issue"].)
Police officers cannot employ a deliberate two-step interview process intentionally designed to weaken the protections of Miranda. (Seibert, supra, 542 U.S. 600.) In Seibert, officers arrested the defendant and took her to the police station. Without Miranda warnings, the police questioned the defendant for 30 to 40 minutes, during which time she made incriminating statements. (Id. at pp. 604-605.) After a 20-minute break, the officers read the defendant her Miranda rights and obtained a written waiver. (Id. at p. 605.) The officers then asked the defendant essentially the same questions to extract the same unwarned admissions she had previously made. (Ibid.) At the suppression hearing, the officer testified that "he made a 'conscious decision' to [initially] withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question 'until I get the answer that she's already provided once.'" (Id. at pp. 605-606.)
The United States Supreme Court invalidated this two-step approach in which police officers would deliberately obtain a confession from a person during a custodial interrogation without Miranda warnings, then obtain the same statements after Miranda warnings had been given. (Seibert, supra, 542 U.S. at pp. 613-614.) Rejecting the state's contention that the defendant's waiver in the second interview removed the taint of the earlier Miranda violation, the court held that the "midstream recitation of warnings after an interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement." (Id. at p. 604.) However, when there is no evidence that the police have deliberately used this two-step approach to circumvent Miranda, the Seibert holding does not apply. (See People v. Rios (2009) 179 Cal.App.4th 491, 504-505; see also In re Kenneth S. (2005) 133 Cal.App.4th 54, 66 ["Unlike in Seibert, here there was no evidence of any protocol used in eliciting respondent's confession"].)
First of all, the facts of this case look very little like Seibert. Unlike the interrogating officer in Seibert, Reilly never stated that he deliberately engaged in a two-step process designed to circumvent Miranda. Circumstantial evidence also supports that conclusion. Unlike the interrogating officer in Seibert, who arrested the suspect and consciously withheld warnings during the unwarned part of his interrogation, Reilly specifically informed Anderson that he was not under arrest.
But more importantly, we have already concluded that Anderson was not in custody or its functional equivalent during the first unwarned interview that took place in the car. Thus, lacking a threshold violation of Miranda during an unwarned portion of a custodial interrogation—which was central to the Supreme Court's rationale—the holding of Seibert is simply inapplicable to the facts of this case. (See Seibert, supra, 542 U.S. at p. 612, italics added ["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"]; see also United States v. Thompson (7th Cir.2007) 496 F.3d 807, 811 ["In this case, Miranda warnings before the first confession were not required because [the defendant's] first interview was not custodial; Seibert therefore does not apply"]; United States v. Stuemke (S.D.Ohio 2006) 493 F.Supp.2d 990, 995-996 ["[Miranda] warnings must be given before subjecting a suspect to a custodial interrogation. Nothing in Seibert remotely suggests that the Supreme Court altered the Miranda rule to require the warnings also be given before interrogating a suspect who the officers know is not in custody"].)
Thus, the trial court properly admitted Anderson's statements at the police station because Reilly complied with the requirements of Miranda. There is no indication that Reilly deliberately sought to undermine Anderson's constitutional rights.
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.