Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF023807 Mark E. Petersen, Judge.
J. Courtney Shevelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Quisteen Shum and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant, Keith Dean, of murder, which was committed during a robbery (Pen. Code, §§ 187, subd. (a) & 190.2, subd. (a)(17)) and attempted robbery (§§ 664 & 211). He was sentenced to prison for life without the possibility of parole and appeals, claiming the trial court erred in denying his motion to suppress his statements made during an interrogation and imposing a parole revocation restitution fine. We reject his first contention and agree with his second. Therefore, we will reverse the fine and direct the trial court to omit mention of it in the abstract of judgment and minutes of the sentencing hearing and to correct an error in the abstract of judgment. Otherwise, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
On November 22, 2007, defendant and three companions were inside a convenience store while roommates—the murder victim (hereinafter, the first victim) and the attempted robbery victim (hereinafter the second victim)—were purchasing a case of beer. At one point, defendant stood very close to the first victim, who handed the second victim the money for the beer, and defendant left the store soon after the victims left without purchasing anything and headed in the same direction they did. A short time later, as the victims were walking, two men jumped out of nearby bushes. The second victim dropped or had the case of beer knocked from his hands and was able to outrun his pursuer. Defendant accosted the first victim, hitting him hard in the face, then demanded his money, and hit him again after the victim fell to the ground and attempted to get back up. Defendant removed $50 from the first victim’s pants pocket as the latter lay in the street. The first victim died on the spot from cardiovascular disease and other medical conditions, but the attack was deemed by the autopsy pathologist to be a substantial factor in contributing to his death.
1. Motion to Suppress
Although in his written motion to suppress, defendant appeared initially to appreciate the difference between inadmissibility of a statement because it violates Miranda and because it is involuntary, defendant quickly muddied the waters in his moving papers by asserting, “Whether [the suspect] is in custody is based on the totality of the circumstances surrounding the interrogation. [Citation.] Circumstances include; the site of the interrogation, whether the suspect has been formally arrested, whether the objective indicia of arrest are present, absent formal arrest—the length of the detention, the ratio of officers to the suspect and the demeanor of officers[, ] including the nature of the questioning. [Citation.]... [¶] Here, although law enforcement did their best to make it appear as though [defendant] was not in custody, we cannot ignore the powerfully coercive influences that were brought to bear upon [defendant] once he entered the police-dominated atmosphere of the Sheriff’s station. When you add other factors such as [defendant’s] youth [(he was 18)], his lack of criminal history or experience, the length of his detention, the form and nature of the questioning, the seriousness of the allegations, and the number of officers that were present, it is clear that a reasonable person in the same situation would not have felt free to terminate the interrogation and leave.” Defendant then separately argued that his statements were involuntary, asserting that he was subjected to “aggressive interrogation by two investigators” who, “[t]aking advantage of his youth and lack of experience, ... pressured him into making involuntary... statements.”
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
In their response to defendant’s motion, the People asserted in their trial brief that defendant was not in custody for purposes of Miranda based on the objective factors listed by the defendant, which it applied as follows, “[Defendant] voluntarily agreed to come to the police station to be interviewed by [the d]etective.... The defendant was given a ride to the station by the detectives and was told he would be given a ride back at the conclusion of the interview. The defendant was never handcuffed, placed in a cell or told he was under arrest.... [B]efore he was asked any questions regarding the events of November 22, 2007, he was told: [¶] “‘And just so you know, you’re not in any trouble, you’re not going to jail, and you’re not under arrest. You’re good to go home as soon as we’re done. We’ll give you a ride back....’ [¶] And at the conclusion of the... interview, the detectives gave the defendant a ride to his home and dropped him off.”
At the hearing on the motion, defendant asserted that he was in custody for purposes of Miranda considering his youth, the “form and nature” of the questions (the interviewers became more accusatory and aggressive, refused to accept his denials of involvement and they lied and told him that he had been identified by witnesses), the seriousness of the allegations, that he was in a police-dominated atmosphere, he had no criminal history or experience, he was questioned for a little over one hour (and left alone in the interrogation room for almost an additional hour) and he had not been told before going to the station that he did not have to go. Defendant repeated the additional assertion he had made in his moving papers that his statements were the result of psychological coercion.
The People argued that defendant was not in custody because, in addition to the points they made in their trial brief, defendant had voluntarily come to the station, he was never handcuffed and he never asked to leave. The trial court established that defendant had never been locked in the interview room or told that he could not leave.
Following defendant’s lead in mixing the issue of whether he was in custody with the issue whether his statements were voluntary, the trial court said, “... I would like to... listen to the tape[s] [of the interview]... because I want to look at issues of the tenor of the conversation, the aggressiveness, if any, of the conversation, coercion, if any.... [R]ight now it appears to be a voluntary statement but I want to listen to it.... [I]t appears on the face of it, generally having voluntarily gone down, returned, not asking to leave, not locked in a room and told he couldn’t leave, all those factors indicate... that this is a voluntary statement for which he was not in custody and for which Miranda would not be required.” After listening to the tapes, the trial court said, “I actually watched the DVD that shows on video the defendant speaking with law enforcement and I followed along with the two transcripts I had been provided. The ruling essentially is that I find that the statement is a voluntary statement. It was made under circumstances which would indicate its voluntariness. [¶] I looked at the totality of the circumstances. I looked at what the defendant was told by the officers. I looked at the fact that he was indeed allowed to return home following the interview. I looked at the nature of the questioning by the officers and the answers given by the defendant. I looked at whether or not any special requests had been made by the defendant during the course of the statement. I looked at the nature and circumstances of how the questioning was conducted and just looked at all the circumstances, the length of the interview, et cetera. And again I just find it was a voluntary statement so the motion to suppress would be denied.”
Defendant here asserts that the trial court erred in concluding that he was not in custody for purposes of Miranda because he was shown two fabricated photo lineups with his picture circled and the interviewer “falsely and repeatedly claimed he [had been] identified by two witnesses as involved in the attack on [the victims] and aggressively pressured... with accusations he was either present or knew what happened or was one of the ‘animals’ who executed the attack.” Our task is to independently decide whether, under the facts as found by the trial court, and supported by substantial evidence, a reasonable person would have felt he or she was in custody at the time of the interrogation. (People v. Ochoa (1998) 19 Cal.4th 353, 401.)
Citing People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162, defendant offers up a laundry list of factors we should consider in determining this, i.e., “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.”
The main thrust of defendant’s argument is that the things that were said to him during the interview would have made a reasonable person believe that he was in custody. Defendant was in an interview room that had two doors. He sat next to the head of a rectangular table against a wall. The interviewer who questioned him up to the time he admitted he had hit the first victim began the interview seated at the foot of the table. The other interviewer asked no questions and stayed seated, taking notes during this portion of the interview. Defendant did not look at him. Defendant first said he went to the convenience store where he happened to meet his sister’s boyfriend, then went home. Then defendant said that he walked to the store and the boyfriend drove his car there. When asked why he walked and the boyfriend drove, because it was such a short distance, defendant said he had gone to the store with another friend, Coakley. Then defendant added that his little brother went with him and Coakley and met the boyfriend, who had gone separately in his car, then they returned to defendant’s house. After being shown still photos from the surveillance video taken inside the store, defendant added that yet another friend was with him inside the store and had come with Coakley. Defendant was told that it was important that he remember what happened when he left the store because the interviewer had something to show him which would tell defendant that the interviewer would know if defendant was being truthful. Defendant repeated that he had returned home with his brother, Coakley and his other friend. The interviewer told defendant that this contradicted the surveillance videotape, which showed the boyfriend’s car leaving the store and going towards defendant’s house, but Coakley’s car going in the other direction. He also said that the boyfriend and defendant’s sister had already told him that defendant had not come home right away. Defendant offered an explanation for this, which involved a person he had not yet mentioned as being with them in Coakley’s car. When confronted with this fact, defendant said, “Oh, my bad.” As the interviewer’s questions became more pointed, he did not change his tone and neither did defendant. Defendant was then shown two fake photo lineups with his picture in each circled and was told that two witnesses who did not know defendant had identified him as being on the street just down from the store that night. The interviewer told defendant it was important that defendant be honest. He asked defendant who in Coakley’s car got out on the street where the crimes occurred and waited for the two Hispanic men who were leaving the store. Defendant claimed he knew nothing about these men and the interviewer said he did. The interviewer asked defendant if it was he who was outside the car “[a]nd I’ll tell you where they identified you in a minute.” Defendant asked if he had been identified standing outside the car and he was told he had been. Defendant admitted that he was outside the car, and claimed that they then took home the friend that he had just recently mentioned for the first time. The interviewer told defendant to tell him “what happened on the street two blocks over from [the convenience store] when you guys stopped and got out of the car and stood behind those bushes and waited for those guys to walk up.” Defendant denied knowledge of this. Defendant denied knowing anything about a fight with two Hispanic men. These men were identified as “one... who fell down in the middle of the street, throwin[g] up on himself and the other one who ran away and who identified you as one of the guys who assaulted him.” This identification of defendant as a perpetrator by the second victim was never again mentioned by either interviewer and was ignored as soon as it had been made. Defendant responded that he wasn’t there and the interviewer said, “Okay, if you weren’t it’s very important that you tell me who was.” Defendant was reminded that he had been identified as one of the people who was in the car. The interviewer told defendant it was important that defendant tell him what defendant’s involvement was—that if defendant stayed in the car, and had no idea what was going on, he understood. It was during the questions concerning whether defendant was in the car (and had done nothing) or on the street (and was involved in the crimes) that the interviewer moved from the foot of the table to within a couple of feet of defendant, but he remained in his chair and his tone did not change. When defendant asserted that he didn’t do anything, he was again reminded that he had been identified. Defendant was asked if he had gotten out of the car and had beaten someone or if he was in the car and was “at the wrong place at the wrong time.” Defendant said he was in the car and he denied chasing or fighting the Hispanic men, but he also denied being in the car while someone else committed the crimes. The interviewer told him he couldn’t have it both ways. He added, “I need to know from you which one it was. Are you an animal that goes and attacks people walking down the street? [¶]... [¶] Or were you just in the wrong place at the wrong time?” When defendant said he was not there, the interviewer told him that they had already gone beyond that and knew that defendant had been there. He reminded defendant that he was in the surveillance video from the store and had been identified by two people. He told defendant to tell him whether he had a part in it or not. He defendant that if he said he didn’t do anything, someone else would pick him out from the store surveillance video. Defendant responded that this person could say whatever he wanted but defendant didn’t do anything. The interviewer said, “[T]hen you were just in the car and watched it happen?” Defendant responded, “No.” Defendant was asked who did it and defendant said he did not know. The interviewer told defendant he knew this was not true and when defendant’s companions that night talked to the police, they would point to defendant because they would not want to take the blame. Defendant asked the interviewer if he knew that defendant was there, why was he questioning him. The interviewer responded that he needed to know what part defendant played. He repeated that if defendant told him that he sat in the car and did not know what was going to happen, the interviewer could accept that. Again, defendant was asked whether he was one of the people in the car who didn’t have anything to do with it or if he was one of the perpetrators. Defendant said he was there, and that he did it, that he hit one of the Hispanic men. This occurred about 26 minutes after the interview began. Defendant’s demeanor and tone had not changed. He went on to say he hit this man only once, but hard, in the face, and for no reason, and he denied that he wanted to take or did take his money or his beer. He then said he had been hiding behind the bush before he hit the man because he was intoxicated. He denied knowing who chased the other man and that anyone yelled, “Give me the money.” He acknowledged knowing that the man he hit had died, as he had heard it “on the streets.” Defendant then admitted that he hit the man because he needed money and he had taken $50 from the man’s pants pocket. He also admitted telling the man to give him the money, seeing the other victim run off, and “tussling” with the man who died. He denied that he told his companions in the car what he was going to do when they dropped him off just before he hid in the bushes, waiting for the victims to approach. He denied that they had picked him up after the crimes. He said that the next day, he told his companions that he had had them drop him off so he could go to a girl’s house. He said he felt terrible about what had happened to the first victim. He said he would be willing to write the first victim’s family a letter of apology in the future. He asked the interviewer to explain things to his mother. The interviewer responded that defendant would be going home and he could tell his mother himself. After a one hour break, during which defendant was left alone in the room, the detectives returned and reiterated that they would take defendant home and check out his story that others were not involved in the crimes. Defendant denied sharing the $50 he had taken from the first victim with anyone and denied that he had taken a cell phone. He said he had hit the first victim twice—once, initially, in the face, and again, after the victim got up from the ground after the first punch. Defendant was told that witnesses had heard someone say, “‘Get back in, get in the car’” before hearing the sound of a car taking off, so the police knew the car was still there when the crimes were committed. Defendant was told that the police knew that defendant got back in the car after the crimes. Defendant admitted that, at the store, he saw that the first victim had money in his pocket and, at that point, he planned to take it from him. He never admitted that anyone else in the car had been involved.
However, defendant backtracked during a long series of questions that followed whether he was outside or inside the car during the crimes, which culminated in him saying for the first time that he had hit the first victim.
Defendant here contends that any reasonable person would have believed he was not free to go after the repeated references to the fake identifications of him by eyewitnesses. We disagree. Until defendant first admitted that he had committed the crimes, the questions asked had consistently been whether defendant was the perpetrator or whether he had done nothing, but had just been in the wrong place at the wrong time. This would suggest to any reasonable person that the police had not, in fact, decided that defendant was guilty and the door was still open for defendant to claim that he was an innocent bystander to the crimes. Defendant’s questions just before making his initial admission—that if the detectives knew he was there, why were they questioning him—and his comment—that despite anyone identifying him as being there, he didn’t do anything—suggests that defendant was not overwhelmed by their authority. The same was indicated in defendant’s request to the interviewer that the latter speak to defendant’s mother about defendant’s involvement in the crimes. Finally, the fake photo lineups were used to establish only that defendant was there, not that he committed the crimes, and they followed his denials of being present and after his claim that he went straight home had been proven untrue. Despite the fact that defendant was told that the witnesses who identified him in the photo lineups put him outside the car, he was repeatedly given the option of claiming that, in fact, he remained in the car while another person or persons from the car committed the crimes. After reviewing the interview ourselves, we are convinced that defendant’s body language and demeanor suggest that he did not feel he could not leave.
Defendant here forthrightly concedes, “A... number of the factors listed in Aguilera as relevant to whether a reasonable man in [defendant’s] circumstances would have felt he was not free to terminate the questioning and leave favor the conclusion that [the]... interrogation was custodial. Others favor the opposite conclusion.” However, we believe that the weight of the factors favor the conclusion that there was no custody at the moment defendant began admitting his involvement. Defendant, himself, lists some of them—“[he] voluntarily agreed to the interview [and at the sheriff’s station]; [one of the interrogators] told [defendant] at the beginning that he was not in trouble and not under arrest and would go home; the length of the interview from the beginning until [defendant] confessed was relatively short, about 26 and one-half minutes; there were just two officers, albeit large men, and only one conducted the first part of the questioning; and [defendant] was not arrested at the end of the interrogation and was taken home.”
Defendant cites no authority holding that “once a [defendant] is confronted with evidence that he is the perpetrator of the crime... [and]... is never told after... that he is free to leave[, ]”all other indicia of the absence of custody is overborne. Moreover, as already stated, while defendant was told that eyewitnesses put him on the street, he was never told that anyone saw him commit the crimes. Additionally, the thrust of the questioning, during which these identifications were mentioned, and before defendant made his admission that he had hit the first victim, was whether defendant was the perpetrator or an innocent bystander who was in the wrong place at the wrong time. Under these circumstances, we cannot agree with defendant that a reasonable person would not have felt free to leave.
Instructive is People v. Moore (2011) 51 Cal.4th 386. Therein, the California Supreme Court held, “... [T]he sheriff’s station interview did not, in its entirety, constitute custodial interrogation.... [D]efendant... was asked–and freely agreed—to come to the station to give a statement.... On arriving at the station, defendant asked whether, and was again assured, he was there only to give a statement. Once in the interview room at the station, [one of the interviewers] expressly told defendant he was not under arrest and was free to leave. Defendant said he understood. Defendant was not handcuffed or otherwise restrained, and there was no evidence the interview room door was locked against his leaving. The interview was fairly long—one hour 45 minutes—but not, as a whole, particularly intense or confrontational.... For a substantial period, while defendant filled in his previous statements with details, the questioning did not convey any suspicion of defendant or skepticism about his statements. [¶] After a while, to be sure, the detectives interjected some more accusatory and skeptical questions, with [one of the interviewers] asking defendant straight out, ‘Did you burglarize the [murder victim’s] house?’ and, later, urging him to begin being ‘honest with me.’ The detectives’ questions... conveyed their suspicion of defendant’s possible involvement. But Miranda warnings are not required ‘simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.’ (Oregon v. Mathiason (1977) 429 U.S. 492, 495 [50 L.Ed.2d 714, 97 S.Ct. 711], italics added.) While the nature of the police questioning is relevant to the custody question, police expressions of suspicion, with no other evidence of a restraint on the person’s freedom of movement, are not necessarily sufficient to convert voluntary presence at an interview into custody. (See id. at pp. 493-495 [no custody where defendant agreed to interview at police station, was told in interview that the police suspected him of a burglary and told (falsely) his fingerprints had been found at the scene, but was allowed to leave at conclusion of interview].) At least until defendant first asked to be taken home and his request was not granted, a reasonable person in defendant’s circumstances would have believed, despite indications of police skepticism, that he was not under arrest and was free to terminate the interview and leave if he chose to do so.” (Id. at pp. 402, 403, italics added.)
2. Parole Revocation Restitution Fine
The sentencing court imposed, then suspended, a parole revocation restitution fine in the amount of $2,000 under section 1202.45. The suspension was to remain “unless... defendant’s parole is revoked.” Defendant here contends that because he was sentenced to life without the possibility of parole, such a fine is improper under People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183 (Oganesyan). Oganesyan held that where a defendant receives a term of life without the possibility of parole and 15 years to life with the possibility of parole, the parole revocation restitution fine does not apply because, inter alia, “the language of section 1202.45 indicates that the overall sentence is the indicator of whether the... fine is to be imposed [and the section states]... that it is applicable to a ‘person... whose sentence includes a period of parole.’” (Id. at p. 1185.) In People v. Brasure (2008) 42 Cal.4th 1037, 1075, the California Supreme Court held that the fine applies where the defendant received both the death sentence and an unstayed determinate term. The court distingued Oganesyan on the basis that no determinate term was imposed—rather, a sentence of life without the possibility of parole and an indeterminate life sentence was. Defendant points out that while he was sentenced to a determinate term for the robbery, the trial court stayed that term pursuant to section 654. Therefore, like the defendant in Oganesyan, “[a]t present, defendant’s ‘sentence’ does not allow for parole.” (Oganesya, supra, 70 Cal.App.4th at p. 1185; Accord, People v. Carr (2010) 190 Cal.App.4th 475, 482, fn. 6). Accordingly, the fine should not have been imposed.
Disposition
The parole revocation restitution fine is reversed and the trial court is directed to amend the abstract of judgment and the minutes of the sentencing hearing to omit any reference to it. The trial court is further directed to amend the abstract to show that the term for attempted robbery (count 2) was stayed pursuant to section 654. In all other respects, the judgment is affirmed.
We concur: RICHLI J., KING J.