Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC774169
McAdams, J.
Defendant Dean Ciccarelli was convicted in a jury trial of one count of knowing possession of child pornography (Pen. Code, § 311.11, subd. (a)), one count of oral copulation of a minor under the age of 16 (§ 288a, subd. (b)(2)), and one count of sodomy on a minor under the age of 16 (§ 286, subd. (b)(2)). The jury found true enhancement allegations under the Three Strikes Law (§§ 667, subds. (b)-(i); 1170.12) that defendant had a prior felony conviction for oral copulation of a minor. The court sentenced defendant to six years eight months in prison.
All further statutory references are to the Penal Code, unless otherwise stated.
The sentence included four years (the middle term) on the child pornography count, one year four months (one third the midterm) on the oral copulation count, and one year four months (one third the midterm) on the sodomy count. The court ordered the sentences to run consecutively and did not impose any time based on the true finding on the enhancement allegation.
On appeal, defendant contends that the court erred prejudicially when it failed to give a unanimity instruction on the child pornography count and that the court violated his constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) when it admitted evidence regarding defendant’s statement to police that the victim had given him the photographs. We find no error and affirm the judgment.
FACTS
Prosecution Case
Discovery of Photographs
On July 30, 2007, Santa Clara County Sheriff’s deputies stopped 18-year-old S.F. (Victim) at the Santa Clara County Fairgrounds for driving a pickup truck with expired registration tags. The truck had been reported stolen from Santa Barbara two weeks before. Defendant and Victim worked for the carnival operator at the fairgrounds.
While Deputy Frank Thrall was inventorying the contents of the pickup truck, defendant approached and asked whether he could retrieve his belongings, a backpack and a sleeping bag, from the truck. Deputy Thrall asked defendant whether he could look through the backpack and defendant gave his consent. Upon searching the backpack, Deputy Thrall found seven photographs of a nude male who bore a “very strong resemblance” to Victim.
Deputy Thrall asked defendant about the photographs and defendant said they were of his friend Ralph. Defendant said he met Victim the day before and was amazed at the resemblance Victim bore to Ralph. When Deputy Thrall asked defendant about the photos a second time, defendant said they were of his friend Herbert and had been taken 20 years before.
Deputy Thrall talked to Victim. Victim told the deputy that he had a sexual relationship with defendant, that they engaged in oral sex, that defendant sodomized him, and that the sexual conduct had occurred 30 to 35 times before Victim turned 18. Defendant was arrested.
Description of Photographs
At trial, it was undisputed that the person in the photos was Victim. Victim testified that the photos were taken between his 14th and 15th birthdays at the Motel 6 in Carpinteria, California. The date August 19, 2004, is imprinted on the back of the photos. At that time, Victim was 15 years old.
Four of the photographs depict Victim in the nude, lying on the motel room bed (Exhibits 2, 5, 6, 7). Three of the nude photographs (Exhibits 2, 6, 7) depict Victim’s genitalia. In one of the photographs (Exhibit 7), his penis appears to be erect or semi-erect. In two of the nude photographs (Exhibits 2 & 6), Victim’s eyes are closed, suggesting that he was asleep. The fourth nude photograph (Exhibit 5) depicts Victim lying face down on the bed with his buttocks exposed. In three of the nude photographs (Exhibits 2, 5, 6), there are stains on the sheets.
The other three photos in the group include photographs of: Victim and defendant standing outside the motel room door (Exhibit 3); Victim smoking a cigarette while talking on the phone (Exhibit 4); and Victim’s upper chest and face (Exhibit 1). Victim is not wearing a shirt in Exhibit 1 or Exhibit 3. In Exhibit 3, his pants are low on his hips and appear to be partially unzipped or unbuttoned, exposing his boxer shorts. Victim is fully clothed in Exhibit 4, but has a red mark that appears to be a hickey on the left side of his neck.
Initially, Victim was a hostile witness. His response to almost every question was “I don’t know,” “I don’t recall,” or “I don’t remember.” After the court provided him with counsel and the prosecution offered him use immunity with regard to the theft of the pickup truck, Victim began responding to questions.
Victim was 14 years old when he met defendant at the public library in Santa Barbara. Victim was not getting along with his parents, was not going to school, and was living on the street. Victim was in and out of juvenile hall; he lived on the street for a month or two, then went back into custody.
Victim looked older than he was. He had been able to grow a beard since age 11. Most people on the street took him for an adult. By age 14, he was able to go to bars and buy liquor at liquor stores. He gambled in Las Vegas when he was a minor. Victim told people that he was an adult to protect himself and so he could continue living on the street.
When Victim first met defendant at the library, he told defendant he was 19 years old. Nothing of a sexual nature occurred the first time Victim met defendant. Thereafter, Victim saw defendant around town “off and on.” When he was 14 years old, Victim went with defendant to “the Office,” a park in Summerland (a beach community south of Santa Barbara) where homeless people hang out. There, defendant orally copulated Victim’s penis.
After the incident at “the Office,” defendant rented a room at the Motel 6 in Carpinteria for a few days, which is where the photographs at Exhibits 1 through 7 were taken. While at the motel, defendant and Victim engaged in sexual activity, including mutual oral copulation and anal intercourse. At the motel, Victim and defendant “partied with a bunch of people,” all of whom had access to the room. Victim was drinking and using drugs. Victim testified that he was asleep when the photographs were taken and that he did not know who took the photos.
In October or November 2004, when Victim was 15 years old, Victim and defendant travelled to San Jose to visit defendant’s friend Zhou Yi, whom everyone called “Joey.” While in San Jose, Victim engaged in sexual activity with defendant, including oral copulation and anal intercourse.
During that visit, Joey took defendant and Victim to San Francisco for the day. In San Francisco, defendant took Victim to a “little shack” where Victim obtained a false identification card. At that time, Victim was using an alias to avoid the police. Victim used his alias on the false identification card and a false date of birth, so that it would appear that he was over 18. Defendant suggested Victim get the false identification card.
Victim testified that he discussed his age with defendant and that defendant knew he was under 18. But Victim could not recall when he told defendant he was a minor. Victim testified that he was self-conscious about the fact that he looked much older than he was, that defendant was his friend, and that he talked to defendant about the problem of looking older than he was.
In February 2005, Victim was taken into custody. He remained in custody until September 2006; first at juvenile hall, then at the California Youth Authority (CYA). While Victim was in custody, Victim and defendant wrote letters to one another; defendant’s letters were addressed to juvenile hall and CYA.
Initially, Victim testified that at the time of their July 2007 arrest, he knew defendant had the photos, but he (Victim) did not know where the photos were. Later, he testified that Joey had the photos and gave them to Victim the day before the arrest and that he (Victim) put them in defendant’s backpack.
Victim told the jury that he felt bad testifying against defendant, that defendant was his friend, that defendant had taken care of him, and that he did not want to see defendant get into trouble.
Testimony of Detective Hickman
Detective Anthony Hickman interviewed Victim twice as part of his investigation. Victim’s testimony at trial was consistent with his statements to Detective Hickman. Victim told Detective Hickman that he was unsure of his own sexuality and that he went along with defendant voluntarily because defendant bought him food and other things.
Testimony of Zhou Yi (Joey)
Joey had known defendant for 10 years; they were roommates for five years. Although he had seen the photos before, Joey denied storing them at his house. According to Joey, defendant and Victim visited him during the summer of 2007; they showered and did laundry at his house. While they were doing the laundry, the photos fell out of one of their bags. Joey picked up the photos, put them in an envelope, and put the envelope on the floor. He does not know what happened to them after that.
Defense Case
Defendant testified. Assuming Victim was 14 years old when he met defendant as Victim testified, defendant was 45 or 46 years old when he met Victim. Victim said he was 19 years old and had a City College pass or identification card. At the time of trial, defendant had been homeless for 15 years and out on the street for 20 years. Defendant admitted prior convictions for oral copulation of a minor in 1985, annoying a child in 1991, check forgery in 1993, and petty theft in 2005.
Defendant admitted that he orally copulated Victim’s penis at “the Office” and that he orally copulated and sodomized Victim on numerous occasions in 2004 and 2005. His defense was that he did not know Victim was a minor prior to February 2005 when the police officer who arrested Victim told defendant that Victim was a minor. Defendant thought Victim was an adult because of the way Victim looked and acted. However, he also admitted going with Victim when he obtained the fake identification card in San Francisco. Defendant thought Victim wanted the fake identification card to hide his identity, not to hide the fact that he was a minor.
After Victim was incarcerated in 2005, defendant did not have sex with him again until after Victim turned 18. Defendant admitted writing letters to Victim two or three times a week while Victim was in custody in juvenile hall and CYA. Defendant testified that he loved Victim very much and believed Victim loved him, too. Defendant told the jury that Victim was more than his boyfriend, that Victim accepted his past, and that they could talk about anything.
Defendant did not know who took the photos at the Motel 6. It is possible that he took them. He purchased a disposable camera and left it on the table in the room. After Christmas 2004, either defendant or Victim mailed the photos to Joey. Defendant testified that he did not know the photos were in his backpack. If he had known, he would not have consented to the search. Defendant denied telling Detective Hickman that he got the photos from Victim; he told the detective that Victim must have put them in his backpack.
Defendant testified that he had a sexual relationship with Joey 10 to 12 years before trial.
DISCUSSION
Unanimity Instruction
Defendant contends that the trial court violated his rights under the state and federal constitutions when it failed to instruct the jury with CALCRIM No. 3500 regarding juror unanimity on the possession of child pornography count. He argues that his conviction violates his right to juror unanimity “because the jurors were not instructed that they needed to agree on which of the photos, if any, constituted pornography” and contends that this is an issue of first impression in California. He also asserts that the jury could have found that none of the items were pornographic if they had been given a unanimity instruction.
Procedural Background
The court instructed the jury with CALCRIM No. 3501 regarding juror unanimity with regard to the oral copulation and sodomy counts, but it did not instruct the jury that the unanimity requirement applied to the possession of child pornography count. Defendant did not request a unanimity instruction on that count or object to the instruction as given.
Standard of Review
Errors in jury instructions are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)
Whether the Photos Were Pornographic
We begin with the threshold question whether the photographs were pornographic. Defendant contends that not one of the photos is pornographic because Victim testified that he was asleep when they were taken and consequently the photos do not depict the minor “engaging in or simulating sexual conduct” as required by section 311.11, subdivision (a). Defendant argues that some of the jurors may have believed that the photos of Victim lying on the bed merely show Victim asleep and do not depict sexual conduct, while others may have disbelieved Victim’s testimony that he was asleep and decided that the sleeping photos are actually posed pornography. He argues that the jurors may have concluded that Victim was sleeping in some of the photos, but awake in others and that if all twelve jurors did not agree that any particular photo was pornographic then he should have been acquitted. These arguments ignore the requirements and definitions in sections 311.4 and 311.11.
Subdivision (a) of section 311.11 provides in relevant part: “Every person who knowingly possesses or controls any... photograph,... the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony....” Subdivision (c) of section 311.11 provides: “It is not necessary to prove that the matter is obscene in order to establish a violation of this section.”
Section 311.4, subdivision (d) defines “sexual conduct” as “any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.” (Italics added.)
People v. Kongs (1994) 30 Cal.App.4th 1741, establishes six factors a trier of fact should consider in determining whether a photograph is intended to sexually stimulate the viewer by exhibiting a child’s genital, pubic or rectal areas. They include: “1) whether the focal point is on the child’s genitalia...; [¶] 2) whether the setting is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; [¶] 3) whether the child is in an unnatural pose, or in inappropriate attire, considering the age of the child; [¶] 4) whether the child is fully or partially clothed, or nude; [¶] 5) whether the child’s conduct suggests sexual coyness or a willingness to engage in sexual activity; [¶] 6) whether the conduct is intended or designed to elicit a sexual response in the viewer.” (Id. at p. 1755.) The six factors are not equally important and a photograph need not satisfy each of the six factors for the photograph to show sexual conduct. The Kongs court stated, “With the exception of factor No. 6 [conduct intended to elicit sexual response], a trier of fact need not find that all of the first five factors are present to conclude that there was a prohibited exhibition of the genitals...: the determination must be made based on the overall content of the visual depiction and the context of the child’s conduct, taking into account the child’s age.” (Ibid.)
Applying the Kongs factors, we conclude that a trier of fact could find at least four of the photographs (Exs. 2, 5, 6, 7) depict Victim exhibiting his “genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer.” (§ 311.4, subd. (d).) In each of these four photos, Victim is completely nude, except that he is wearing a single sock in two of the photos. He is lying on a motel room bed, a place that is associated with sexual activity. In each of these four photos, the photographer has placed Victim’s genitals or buttocks at or near the center of the photograph, thereby focusing the viewer’s attention on those areas. In Exhibits 2, 5, and 6, the sheets are stained. This is particularly suggestive in Exhibit 5, the photo of Victim lying face down on the bed with his buttocks exposed. Although Victim appears to be asleep, the bed covers in Exhibit 6 appear to have been arranged to expose and focus on his genitals. Finally, there is no doubt that Exhibit 7 depicts Victim’s genitals for the purpose of sexually stimulating the viewer. In that photo, Victim is lying on the bed on his back; the photo depicts only the area between his waistline and his knees and the clear focus of the photo is his semi-erect or erect penis. Each of these four photos “depicts a person under the age of 18 years personally engaging in... sexual conduct” because they include the “exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer.” (§§ 311.11, subd. (a), 311.4, subd. (d).) We therefore conclude that a trier of fact could find that at least four of the seven photographs were pornographic for the purpose of section 311.11 and reject defendant’s contention that a properly instructed jury could find that these photographs were not pornographic.
We also conclude that the content of the three remaining photos is not pornographic. Exhibit 1 depicts Victim’s upper chest and face. He is awake, facing the camera. Victim is wearing pants in Exhibit 3 and fully clothed in Exhibit 4. While his pants are partially undone exposing his boxer shorts in Exhibit 3 and he has what appears to be a hickey on his neck in Exhibit 4, nothing else about these photos is sexually suggestive, and those two factors alone are insufficient to meet the test from Kongs.
We turn next to the questions whether a unanimity instruction was required because the seven photographs at issue included four different pornographic photographs or because some of the photographs (Exs. 2, 5, 6, & 7) were pornographic and others (Exs. 1, 3, & 4) were not pornographic.
Whether Unanimity Instruction Was Required
In a criminal case, a jury verdict must be unanimous and the jury must agree unanimously that the defendant is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) “Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.] For example, in People v. Diedrich [(1982)] 31 Cal.3d 263, the defendant was convicted of a single count of bribery, but the evidence showed two discrete bribes. [The California Supreme Court] found the absence of a unanimity instruction reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. (Id. at pp. 280-283.) ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ ” (Russo, supra, 25 Cal.4th at p. 1132.)
“On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. (See generally People v. Jenkins (2000) 22 Cal.4th 900, 1024-1026....) The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. (... § 459.) If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction.” (Russo, supra, 25 Cal.4th at pp. 1132-1133.)
“The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a ‘particular crime’ (People v. Diedrich, supra, 31 Cal.3d at p. 281); it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed [the defendant] guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Russo, supra, 25 Cal.4th at pp. 1134-1135.)
The question thus becomes whether the evidence here suggested multiple discrete crimes, i.e., seven discrete acts of possessing child pornography, or merely possible uncertainty with regard to how the defendant is guilty of a single act of possessing child pornography. (Russo, supra, 25 Cal.4th at p. 1135.)
Case law instructs that defendant’s act of possessing each of the seven photos at issue could not have been charged as separate violations of section 311.11, subdivision (a). In People v. Hertzig (2007) 156 Cal.App.4th 398, the court held that the defendant, who was charged with and convicted of 10 separate counts of possession of child pornography, was subject to a single conviction for possessing multiple images of child pornography on his computer. Although the material at issue consisted of 30 separate videos involving different child victims, the court concluded that the “act proscribed by section 311.11 is the act of possession child pornography, not the act of abusing or exploiting children” and that the defendant violated the statute “by the solitary act of possessing the proscribed property.” (Id. at p. 403.) We agree with Hertzig and conclude that the evidence at issue here does not suggest multiple discrete crimes, but merely the possibility that the jury may divide or be uncertain as to the exact way defendant was guilty of the single crime of possessing child pornography. We therefore hold that the trial court did not err because it was not required to give a unanimity instruction on the possession of child pornography count.
Alleged Miranda Violation
Defendant contends that the court erred when it denied his motion to suppress evidence that, during the booking process, defendant told Detective Hickman that Victim gave him the photos. Defendant asserts that the statement was elicited from him improperly after he invoked his Miranda rights.
Factual and Procedural Background
Defendant raised the Miranda issue at trial and the court conducted an Evidence Code section 402 hearing regarding the admissibility of defendant’s statement that Victim had given him the photos. Detective Hickman was the sole witness at that hearing and testified as follows.
After defendant was arrested, he was taken to the sheriff’s department headquarters for questioning. The parties stipulated that he was in custody at that time. Defendant was placed in an interview room with Detective Hickman and Deputy Thrall. Defendant was seated in a chair, at a table, with his hands cuffed behind his back. Detective Hickman advised defendant of his Miranda rights. Defendant said that he did not want to talk to the officers and that he wanted to talk to an attorney.
While still in the interview room, Deputy Thrall started to fill out the booking form and asked defendant for his name, date of birth and other background information. There was a discussion regarding defendant’s ability to answer such questions. Detective Hickman explained that the officers had the right to ask for background information and that it was not interrogation.
The booking form included a space to list the charges. Detective Hickman could not recall whether Deputy Thrall or defendant asked him what the charges were. He believes it was a combination of both. Detective Hickman told defendant what the charges were in “a matter-of-fact tone,” not an accusatory tone. When Detective Hickman told defendant that he was being charged with possession of child pornography, defendant stated that “he didn’t know anything about the photos.”
Detective Hickman’s testimony before the jury was slightly different. Detective Hickman told the jury that as he was explaining the charges to defendant, defendant asked, “What photos?” and that Deputy Thrall responded, “I showed you the photos.” Defendant stated that the officers had only shown him one photo. In response, Deputy Thrall laid the photos on the table and showed them to defendant one by one.
The photos were in a bag. Deputy Thrall, who was seated opposite defendant, pulled the photos out and showed them to defendant one by one. According to Detective Hickman, this had nothing to do with the booking process.
Defendant said the photos were of his nephew. Detective Hickman told defendant they were not allowed to talk to him about that because he had asked for an attorney. Defendant started to laugh and said that he was going to “take this case to the box” because Victim had given him those photos. Detective Hickman understood the phrase “take this to the box” to mean that defendant would take the case to a jury trial.
The court held that defendant’s comment that he did not know anything about the photos was inadmissible “because it may have been suggested by the officers.” The court also stated that “if the defense wants to waive that issue and go into those statements that is their choice.”
But the court held that defendant’s statements that he was “taking this to the box” and that Victim gave him the photos were admissible. The court concluded that that was no Miranda violation with regard to these statements because after defendant said the photos were of his nephew, Detective Hickman told defendant that they could not talk to him about that because he had invoked his Miranda rights. The court explained that defendant “then spontaneously made a statement at the end that I am taking this to the box, the victim gave me the photographs.” The court stated, “That’s the choice that the defendant made, knowing his rights, evoking his rights, and implicitly waiving his rights.”
Detective Hickman told the jury that after he advised defendant that he was being booked for possession of child pornography, Deputy Thrall showed defendant the photos and that, in response, defendant laughed, said he was taking the case to the box, and said Victim gave him the photos.
Requirements under Miranda
“Under the familiar requirements of Miranda, designed to assure protection of the federal Constitution’s Fifth Amendment privilege against self-incrimination under ‘inherently coercive’ circumstances, a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent. ([Miranda, supra,] 384 U.S. at pp. 444-445, 473-474....) Once having invoked these rights, the accused ‘is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’ [Citation.] The initiation of further dialogue by the accused, however, does not in itself justify reinterrogation. (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1044....) ‘[E]ven if a conversation taking place after the accused has “expressed his desire to deal with the police only through counsel,” is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.’ (Ibid.)” (People v. Sims (1993) 5 Cal.4th 405, 440 (Sims), abrogated on other grounds by People v. Storm (2002) 28 Cal.4th 1007, 1031-1032.)
Statements obtained in violation of Miranda are inadmissible to establish guilt. (People v. Boyer (1989) 48 Cal.3d 247, 271.)
“[I]nterrogation (as well as reinterrogation following an invocation of rights) that requires a preceding admonition and waiver of Miranda rights encompasses both express questioning and its ‘functional equivalent.’ [Citation.] ‘That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect....’ ” (Sims, supra, 5 Cal.4th at p. 440, citing Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 (Innis).)
“In deciding whether police conduct was ‘reasonably likely’ to elicit an incriminating response from the suspect, we consider primarily the perceptions of the suspect rather than the intent of the police.” (People v. Davis (2005) 36 Cal.4th 510, 554.) The standard is an objective one and depends on the totality of the circumstances. (Innis, supra, 446 U.S. at pp. 301-302.)
Standard of Review
“An appellate court applies the independent or de novo standard of review, which by its nature is nondeferential, to a trial court’s granting or denial of a motion to suppress a statement under Miranda insofar as the trial court’s underlying decision entails a measurement of the facts against the law. [Citations.] As for each of the subordinate determinations, it employs the test appropriate thereto. That is to say, it examines independently the resolution of a pure question of law; it scrutinizes for substantial evidence the resolution of a pure question of fact; it examines independently the resolution of a mixed question of law and fact that is predominantly legal; and it scrutinizes for substantial evidence the resolution of a mixed question of law and fact that is predominantly factual.” (People v. Waidla (2000) 22 Cal.4th 690, 730 (Waidla).) In this case, the facts regarding defendant’s statements to the police were undisputed. We therefore apply the de novo standard of review.
Analysis
Defendant contends that the court erred in finding that he implicitly waived his Miranda rights. He asserts that after he asked a clarifying question (“What photos?”), Deputy Thrall committed the functional equivalent of interrogation by displaying the photos to him because displaying the photographs was reasonably likely to elicit an incriminating response. Defendant argues that his question did not reinitiate communication, express a desire to reopen a generalized discussion regarding the investigation, or justify reinterrogation. He argues that even if his question reinitiated communication with the officers, the officers violated his Miranda rights because they did not obtain a waiver after defendant indicated he wanted to talk further. He asserts that Detective Hickman’s statement that the officers could not talk to him was vague and fell short of a proper readvisement of his rights and a waiver.
The Attorney General contends that defendant volunteered the statements after Detective Hickman told defendant they could not speak to him; he argues that the police erected a stop sign that defendant chose to ignore.
We review the statements made by defendant and the law enforcement officers after defendant invoked his right to remain silent and his right to counsel.
First, Deputy Thrall asked defendant for background information to complete the booking form. Deputy Hickman was correct when he stated that the officers had the right to ask for background information such as defendant’s name and date of birth. The routine gathering of background or “booking” information on a suspect ordinarily does not constitute interrogation for the purpose of Miranda. (United States v. Disla (9th Cir. 1986) 805 F.2d 1340, 1347; People v. Hall (1988) 199 Cal.App.3d 914, 921.)
Second, Detective Hickman did not violate defendant’s rights under Miranda when he told him what the charges were. Advising a suspect that he or she is under arrest for a specific offense is not the functional equivalent of questioning. (People v. Celestine (1992) 9 Cal.App.4th 1370, 1374, citing Innes, supra, 446 U.S. 291 and other cases as examples.)
Thereafter, defendant either stated that he did not know anything about the photos or asked “what photos?” In response, Deputy Thrall showed the photos to defendant one by one. Defendant said the photos were of his nephew. The court ruled that statements defendant made after Deputy Thrall showed him the photos but before Detective Hickman reminded him that he had invoked his rights were inadmissible “because [they] may have been suggested by the officers.”
The court did not specifically rule on the admissibility of defendant’s statement that the photos were of his nephew. But since the court held that only the statements that defendant made after Detective Hickman stated that the officers could not talk to him were admissible, we conclude, by implication, that the court also found that defendant’s statement that the photos were of his nephew was inadmissible.
Defendant asserts that asking the question “What photos?” did not reinitiate communication. We disagree. Sims is illustrative. The defendant in Sims was arrested in Nevada on suspicion of committing murders in California and South Carolina. On the day of his arrest, after invoking his rights under Miranda, the defendant asked the officer investigating the California murder what was going to happen next, with a reference to extradition. Instead of responding to the question regarding extradition, the officer discussed the investigation and confronted the defendant with three pieces of evidence that linked him to the crime. In response, the defendant confessed. The court noted that the defendant’s question did not refer to the crimes or indicate a willingness to discuss the investigation and concluded that the defendant had not reinitiated a discussion of the case. The court held that the officer’s response “far exceed[ed]” the scope of any answer legitimately responding to a question regarding extradition, that it served no legitimate purpose incident to the defendant’s arrest or custody, and that it was the functional equivalent of interrogation. (Sims, supra, 5 Cal.4th at pp. 442-443.)
In contrast to the circumstances in Sims, defendant’s question “What photos?” or the statement that he did not know anything about the photos related to the charges and indicated a willingness to discuss the investigation. We conclude that when defendant asked about the photos, he initiated further communication with the officers.
The question in this case becomes whether defendant waived his right to remain silent and his right to counsel after Detective Hickman reminded him that he had invoked those rights. “An express or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.... The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” (North Carolina v. Butler (1979) 441 U.S. 369, 373 (Butler).)
“The inquiry has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” (Moran v. Burbine (1986) 475 U.S. 412, 421.) “Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” (Id. at pp. 422-423; see also, People v. Sully (1991) 53 Cal.3d 1195, 1233 [where a suspect is informed of his rights and expressly affirms understanding those rights, then willingly answers questions and makes statements to police officers, he has impliedly waived his Miranda rights].)
“[T]he question of waiver must be determined on the ‘particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ” (Butler, supra, 441 U.S. at pp. 374-375; see also, e.g., In re Shawn D. (1993) 20 Cal.App.4th 200, 209 [relevant factors include the suspect’s age, sophistication, prior experience with the criminal justice system, and emotional state].)
In this case, the facts and circumstances surrounding the case weigh in favor of finding that defendant impliedly waived his Miranda rights after Detective Hickman told him the officers could not talk to him about the case because he had requested counsel. At the time of his arrest, defendant was 49 years old. He had extensive prior experience with the criminal justice system. In addition to the four prior felony convictions that defendant testified to (oral copulation of a minor in 1985, annoying a child in 1991, check forgery in 1993, and petty theft in 2005), defendant was arrested on eight other occasions between 1978 and 2006 for a variety of offenses, including possession of a controlled substance, being under the influence of a controlled substance, possession of a controlled substance for sale, misdemeanor drunk driving, driving on a suspended license, buying or selling articles with the identification removed, reckless driving, petty theft, burglary, trespass, and disorderly conduct.
There was no evidence that defendant was under the influence of drugs or alcohol, emotionally distraught, or otherwise unable to understand what Detective Hickman told him. There was no evidence of intimidation, coercion or deception when defendant made the statements at issue. The officers made no threats, promises or inducements to talk. It was undisputed that Detective Hickman used a matter-of-fact tone when he explained the charges. The statements at issue were not made in response to any questions by the detective. As soon as defendant made a comment about the substance or content of the photos (stating that it was his nephew), the detective told defendant that the officers could not talk to him further because he had invoked his rights to remain silent and to counsel, thereby reminding him of those rights.
Citing Sims, supra, 5 Cal.4th at pages 441 and 446, defendant argues Detective Hickman’s statement that the officers were not allowed to talk to defendant about the photos because defendant had asked for an attorney “falls far short of the readvisement of Miranda rights and waiver that the California Supreme Court found sufficient to justify reinterrogation” in Sims.
The court in Sims discussed the United States Supreme Court decision in Oregon v. Bradshaw (1983) 462 U.S. 1039 (Bradshaw). Following his arrest, the defendant in Bradshaw was read the Miranda warnings and invoked his right to have counsel present before engaging in any further conversation with the police. While being transported to the jail, the defendant asked a police officer, “ ‘Well, what is going to happen to me now?’ ” (Id. at p. 1042.) In reviewing whether the defendant’s subsequent confession was elicited in violation of his Miranda rights, the high court held that, although the defendant’s question initiated further conversation regarding the investigation, defendant’s limited inquiry in itself did not “suffice[] to show a waiver of the previously asserted right to counsel.” (Id. at p. 1045.) The court explained that even though the accused reinitiated the conversation, where reinterrogation follows, “the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” (Id. at p. 1044.) The court concluded that since the prosecution had presented evidence that the police officer (1) warned the defendant that he did not have to talk to the officer, (2) reiterated the Miranda admonition, and (3) procured a written waiver from the defendant before the defendant confessed, the prosecution had met its burden of establishing that defendant’s confession was not the product of a Miranda violation. (Id. at p. 1046.)
Although the Bradshaw court concluded that the prosecution had met its burden of demonstrating waiver in that case, the court did not hold that the steps taken by the officer there are required to find a waiver in every case. As we noted previously, an express or oral waiver is not inevitably required. (Butler, supra, 441 U.S. at p. 373.)
We acknowledge that the trial court found that some of the statements that defendant made were inadmissible because they may have been suggested by the officer’s display of the photos. However, we perceive no taint from those previous statements that invalidates defendant’s subsequent waiver. (See Sims, supra, 5 Cal.4th at p. 445 [no court has held that “ ‘ “making a confession under circumstances [that] preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed” ’ ”].)
Under the totality of the circumstances, we agree with the trial court’s finding that defendant impliedly waived his right to remain silent when he uttered the statements at issue. We therefore conclude that the court did not err in its ruling on the motion to suppress.
Disposition
The judgment is affirmed.
I CONCUR: Duffy, J.
Mihara, Acting P. J., Concurring in the Judgment.
While I also believe that the trial court did not err in failing to give a unanimity instruction that applied to the possession count, I am not able to join in the majority opinion’s analysis of this issue. I conclude that the trial court did not err because the evidence before the jury provided no basis upon which the jurors could have reached a unanimous verdict on the possession count without unanimously agreeing that exhibit 7 satisfied all of the elements of the possession count.
I. FACTUAL BACKGROUND
Steven Doe was born in 1989. Steven was 14 years old when he met defendant, and defendant knew Steven was a minor. When Steven was 14 or 15 years old, defendant orally copulated Steven. In August 2004, when Steven was 15 years old, defendant rented a motel room at a Motel 6 in Carpenteria. At the motel, defendant and Steven engaged in mutual oral copulation and anal intercourse. Seven photographs of Steven were taken at the Motel 6.
Two of the photographs show Steven with a bare chest, but neither his genitals nor his pubic or rectal areas are displayed. One photograph shows Steven fully dressed. The remaining four photographs show Steven nude on a bed. Three of these four photographs depict Steven’s penis, while the fourth shows his buttocks. In two of the three photographs showing Steven’s penis, it is erect. One of the photographs showing Steven’s erect penis is a close-up of his penis (exhibit 7), and I will refer to this photograph as the erect penis photograph. Steven’s face is not visible in the buttocks or erect penis photographs, but his face is shown in the other two nude photographs, and his eyes appear to be closed. Steven was aware that defendant possessed the seven photographs.
While still 15 years old, Steven took a trip to San Jose with defendant. In San Jose, Steven and defendant engaged in oral copulation and anal intercourse. Steven was subsequently incarcerated at juvenile hall and the California Youth Authority (CYA). Defendant sent letters to Steven during his incarceration.
On July 30, 2007, Steven was detained while driving a stolen truck. Santa Clara County Deputy Sheriff Frank Joseph Thrall, Jr., was assisting in the detention by making an inventory of the contents of the truck. While Thrall was working on the inventory, defendant approached and asked Thrall if he could retrieve his backpack and bedroll from the truck. Both a red backpack and a black backpack were in the truck, and defendant identified the red backpack as belonging to him. Thrall asked if he could “look through” the backpack, and defendant gave his consent.
Thrall found the seven photographs inside the red backpack. Thrall noticed that one of the photographs “depicted a nude male with an erection” who appeared to be a minor and strongly resembled Steven. Thrall asked defendant who was depicted in the photographs, and defendant said it was his friend “Ralph.” Defendant said he was “amazed at the resemblance that Ralph had to” Steven. Defendant told Thrall that he had known Steven for only one day. The officer continued his investigation, and he then asked defendant again who was depicted in the photographs. This time, defendant said the photographs were of a friend named “Herbert.” Steven told Thrall that he had met defendant when he was 14 years old, and they had engaged in oral sex and anal intercourse many times while Steven was a minor.
Defendant was arrested. During the booking process, defendant was informed of the charges and shown the seven photographs. After seeing the photographs, defendant began laughing and said “he was going to take this to the box.” He also said that Steven had given the photographs to him.
II. Procedural Background
Defendant was charged by information with possession of information depicting a minor engaging in sexual conduct (Pen. Code, § 311.11, subd. (a)), oral copulation of a minor under age 16 (Pen. Code, § 288a, subd. (b)(2)), and sodomy on a minor under age 16 by a person over age 21 (Pen. Code, § 286, subd. (b)(2)). It was further alleged that defendant had suffered a strike prior conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12).
At trial, Steven testified on cross-examination that he was asleep when the photographs were taken at the motel. He claimed that he was “presenting” himself as an adult to defendant at the time the photographs were taken. Steven also testified that he had never seen “those naked photographs” until July 29, 2007, when they were given to him by defendant’s friend Joey. Steven claimed that he put the photographs into defendant’s backpack by mistake that day. Defendant was arrested the next day. On redirect, Steven admitted that he was awake in some of the seven photographs.
Yi Zhou, who goes by the name Joey, testified that he had never possessed the seven photographs. He had seen the photographs lying on the floor in his home when Steven and defendant visited him in July 2007. Joey picked up the photographs, put them in an envelope, and placed them back on the floor.
Defendant testified at trial that Steven had told him he was 19 years old when they met in 2004, and defendant believed him. Defendant was in his 40’s at the time. Defendant claimed that he “absolutely had no idea” Steven was a minor until 2005 when they were arrested in a stolen car and defendant learned Steven was a juvenile. Defendant admitted that he had orally copulated Steven and engaged in anal intercourse with him in 2004. He also admitted that he and Steven had stayed at the Motel 6 and had sexual relations there. Defendant testified that he was unsure who had taken the seven photographs, but he conceded that the photographs had been taken with his camera and that it was “quite possible” that he had taken them. Defendant claimed that either he or Steven had mailed the seven photographs to Joey. He testified that it was a “total shock” to him to learn that the photographs were in his backpack, and he assumed that Steven had put them there. Defendant asserted that Joey had lied about not having possessed the photographs.
Defendant asserted that he ceased having sexual relations with Steven when he learned that Steven was a minor. However, he had engaged in oral copulation with Steven once in July 2007, after Steven turned 18. Defendant admitted that he had suffered a prior conviction for orally copulating a minor in 1985 and a prior conviction for annoying or molesting a child in 1991. The 1985 offense involved defendant orally copulating a boy he knew to be a minor after paying the boy $10. The 1991 offense involved defendant offering to orally copulate a boy he knew to be a minor.
The trial court instructed the jury on the elements of the possession count: “The defendant is charged in Count 1 with possessing or controlling matter depicting a person under 18 engaging in or simulating sexual conduct, in violation of Penal Code section 311.11. [¶] To prove that defendant is guilty of this crime, the People must prove: [¶] (1) The defendant knowingly possessed or controlled any matter which involves the use of a person under the age of 18 years; [¶] and [¶] (2) The defendant knew the matter depicted a person under the age of 18 years; [¶] and [¶] (3) The person in the matter personally engaged in or simulated sexual conduct. [¶] Sexual conduct includes actual or simulated sexual intercourse or exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer. [¶] The defendant is not guilty of this crime if he reasonably and actually believed that the other person was age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that Steven Doe was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.”
While the jury was instructed on the need for unanimity as to the oral copulation and sodomy counts, the unanimity instruction did not extend to the possession count. “In Counts 2 and 3 [the oral copulation and sodomy counts], the People have presented evidence of more than one act to prove that the defendant committed these offenses. For each count, you must not find the defendant guilty unless: [¶] (1) For each count, you all agree that the People proved that the defendant committed at least one of those acts and you all agree on which act he committed for each offense; [¶] or [¶] (2) For each count, you all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged, which in this case is one for each count.”
The only defense offered by defendant’s trial counsel in his closing argument was that defendant had reasonably believed that Steven was an adult.
At the end of the sentencing hearing, the trial court offered defendant this final bit of advice: “Mr. Ciccarelli, good luck. And in the future check the I.D. of people you are having sex with.”
The jury deliberated for about three hours before returning guilty verdicts on all three counts and finding the strike prior allegation true. Defendant was sentenced to six years and eight months in prison, with the possession count serving as the principal term. He filed a timely notice of appeal.
Although the jury found the strike prior allegation true, the trial court neither imposed doubled terms nor struck the strike.
III. Unanimity Instruction Was Not Required
Defendant contends that the possession conviction must be reversed because the jury was not instructed “that they needed to agree on which of the photos constituted pornography.”
The jury was instructed that a required element of the possession count was that the person depicted “personally engaged in or simulated sexual conduct,” and the jury was told that “sexual conduct includes actual or simulated sexual intercourse or exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer.” Under these instructions, the jury could not possibly have based a guilty verdict on a photograph that did not show Steven’s genitals, or his pubic or rectal area. Three of the seven photographs did not show Steven’s genitals, or his pubic or rectal area. Clearly, the jury could not have disagreed about whether those three photographs satisfied this element. Three of the four remaining photographs showed Steven’s genitals, while one showed his buttocks. Two of the three photographs showing Steven’s genitals also show his face, and his eyes appear to be closed. In the remaining photograph of his genitals, a close-up of his erect penis, his face is not visible. His face is also not visible in the photograph of his buttocks.
Defendant contends that there was a need for a unanimity instruction because the jurors could have disagreed about which of these four photographs showed Steven “personally engag[ing] in or simulat[ing] sexual conduct.” He posits that the jurors might have disagreed with each other about (1) whether Steven was sleeping in any of these four photographs (and therefore not engaged in sexual conduct) and (2) whether the depictions in the photographs actually showed Steven engaged in sexual conduct. Defendant contends that the jurors therefore could have individually based their conclusions on different photographs.
“A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” (People v. Maury (2003) 30 Cal.4th 342, 423.) Here, the evidence provided no basis upon which some of the jurors could have premised a conclusion that the photograph depicting Steven’s erect penis did not satisfy the “sexual conduct” element, but one of the other photographs did satisfy that element. The sole defense offered by defendant as to all the photographs was his asserted lack of knowledge that Steven was a minor when the photographs were taken. This defense did not distinguish between the erect penis photograph and the other photographs, and the jury’s verdicts on the other counts established that it rejected this defense.
No other defense with any evidentiary basis could have provided a foundation for a lack of juror unanimity. Steven’s testimony that he was asleep when the photographs were taken, combined with the fact that his eyes were closed in two of the photographs, could have supported a defense that Steven was not engaged in sexual conduct in the photographs. However, if a juror believed that Steven was asleep when all four nude photographs were taken, a guilty verdict would have been impossible. If a juror, on the other hand, believed that Steven was asleep in only the two photographs in which his eyes were closed, or was awake in all four photographs, there still would have been no disagreement about whether Steven was awake in the erect penis photograph.
The only way that the jurors could have failed to be unanimous would have been if some jurors could have premised their verdict on the buttocks photograph while rejecting the erect penis photograph as a basis for their verdict, while other jurors premised their verdict on the erect penis photograph while rejecting the buttocks photograph as a basis for their verdict. The evidence provided no basis whatsoever to support such a circumstance. While the jurors could have disagreed with each other about whether the photograph of Steven’s buttocks exhibited his rectal area (and therefore depicted sexual conduct), the evidence at trial provided no basis for a juror to conclude that Steven was asleep in the erect penis photograph (and therefore not engaged in sexual conduct), but awake in the buttocks photograph. Steven’s face is not visible in either photograph, and there was no testimony distinguishing between the individual nude photographs in terms of whether Steven was asleep or awake. No rational juror could have concluded that Steven was asleep in both the erect penis and buttocks photographs and yet found the sexual conduct element satisfied, and any juror who concluded that Steven was awake in both photographs would necessarily have concluded that the erect penis photograph satisfied the sexual conduct element.
Because the evidence provided no basis upon which the jurors could have reached a unanimous verdict without unanimously agreeing that the erect penis photograph satisfied all elements of the possession offense, the trial court did not err in failing to give a unanimity instruction that applied to the possession offense