Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC469460
McAdams, J.
A jury convicted defendant Tenace Knight of four counts of second degree robbery (Pen. Code, §§ 211 - 212.5, subd. (c)), one count of attempted second degree robbery (§§ 211 - 212.5, subd. (c), 664), and one count each of reckless driving while fleeing a peace officer (Veh. Code, § 2800.2, subd. (a)), vehicle theft (Ven. Code, § 10851, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury also found true allegations that defendant had personally used a handgun (§ 12022.53, subd. (b)) to commit the robberies and the attempted robbery. In a bifurcated proceeding, defendant admitted allegations that he had one strike prior (§§ 667, subd. (b)-(i); 1107.12), one prison prior (§ 667.5, subd. (b)), and one serious felony prior (§§ 667, subd. (a), 1192.7). After denying defendant’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the court sentenced defendant to 44 years four months in prison.
All further statutory references are to the Penal Code, unless otherwise stated.
On appeal, defendant contends the court erred prejudicially when it denied his motion pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent himself, when it admitted evidence of his taped confession to police in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436, and when it imposed consecutive sentences on three of the robbery counts, the reckless driving count, and the assault with a firearm count (counts 1, 2, 3, 6, and 8). We find no error and affirm the judgment.
Facts
Vehicle Theft
On October 9, 2004, Nicole Osby drove her 1998 gold Chrysler Cyrus to her mother’s house. She locked the car and left it in her mother’s carport while she and her mother went out of town. When she returned the next evening, the car was gone. About a week later, the police located the car. It was “totaled.” Osby did not know defendant and did not give him permission to drive her car.
Robbery of David Huante
On the morning of October 13, 2004, 61-year-old David Huante was walking near a convalescent hospital in San Jose when he noticed defendant drive by in a car. Defendant, who was 22 years old, pulled into a church driveway and watched Huante walk by. Defendant drove around the block, parked the car, got out, and started following Huante. Huante thought defendant “looked very suspicious” and decided to walk back toward the convalescent hospital. Defendant followed Huante. Defendant got in front of Huante, grabbed him by the shirt, pulled out a “shining silverish” gun, and said, “Give me your wallet. I’m going to shoot you.” Huante yelled for help. Defendant hit Huante in the face with the gun twice, took Huante’s wallet from his left front pants pocket, and left in a hurry.
Assault with Firearm on Dr. Daniel Tse
Dr. Daniel Tse, a physician at the convalescent hospital, was in the hospital parking lot between 10:15 and 10:30 a.m. and heard Huante yell for help. Dr. Tse turned, jogged toward Huante, and saw defendant strike Huante, who was on the ground. Dr. Tse yelled “Stop, stop.” Huante heard someone say, “Let him go.” Defendant turned toward Dr. Tse and waved a “shiny” gun at him. Dr. Tse ducked behind some cars, ran into the convalescent hospital lobby, and asked the receptionist to call 911. Dr. Tse and a colleague, Phillip Greene, went to the front of the building and started yelling that they had called 911. After Dr. Tse and Greene yelled a few times, defendant fled in a brown or gold mid-sized sedan, “probably a Chrysler.”
Huante, who was “bleeding pretty bad[ly],” sustained lacerations to his left eyebrow, left forehead, back of the head, and the inside of his mouth. Some of the lacerations were stapled; others were sutured. The left side of Huante’s face, including his left eye and his lip, were “pretty badly swollen, bruised.”
Robbery of Anita Hadzic
That same day, around 11:30 a.m., defendant approached Anita Hadzic outside the door to her apartment in Santa Clara and asked her for directions to Highway 101. As Hadzic explained how to get to the freeway, defendant moved closer to her, which made her nervous. Defendant then pulled a “silver color[ed]” gun from the waistband of his pants. He pointed it at Hadzic’s head, pushed it into her ribs, and told her to give him her purse. Hadzic handed him her purse and defendant ran off.
Robbery of Pei Jen Ying
About 30 minutes after defendant robbed Hadzic, Pei Jen Ying was driving to her home in Santa Clara to have lunch. As she got close to home, she noticed the gold-colored car that defendant was driving following closely behind her. Ying parked in front of her house. Defendant parked next to Ying; walked up to Ying’s car; opened her front, passenger door; leaned inside the car; and asked for directions to Highway 101. Defendant grabbed Ying’s purse, which was on the front passenger seat, pointed a silver-colored gun at her, and asked her repeatedly for her ATM number (her code number to operate the automatic teller machine). She did not give him the code. Defendant took $100 in cash from the purse, threw the purse onto the seat, and fled in the gold-colored car.
Robbery of Srikanta Shivanna and Attempted Robbery of Vanitha Shirwan
Around noon on the same day, Srikanta Shivanna and his wife, Vanitha Shirwan, drove to Santa Clara to visit a prospective daycare provider for their one-year-old son. Their son was in the car with them. They pulled into the driveway of the daycare provider’s home. Defendant, who was driving a brown, four-door sedan, parked right behind them. Defendant approached Shirwan, who had stepped out of the car, and asked her for directions to Highway 101. She told him she did not know; defendant then approached Shivanna and asked him for directions. Shivanna said he did not know, either. Defendant responded, “Why are you lying?” Defendant pointed a “short, chrome-plated handgun” at Shivanna and asked for his wallet. Shivanna gave defendant his wallet, which had approximately $200 inside. Defendant then asked Shirwan for her purse. She told him she did not have a purse and defendant fled in the sedan.
Evasion and Apprehension
Santa Clara Police Officer Charles Collins was on patrol on October 13, 2004, monitoring radio transmissions regarding a gold-colored sedan and a suspect that had been involved in three separate robberies that day. Officer Collins noticed defendant approach in a gold-colored Chrysler. Defendant, who met the description of the suspect, slumped back in his seat, accelerated, and ran a stop sign. Officer Collins activated his lights and siren and gave chase. Defendant ran a red light, sped, and crashed into a raised concrete divider at the driveway entrance to the parking lot of a commercial property. Defendant exited the car and ran through the parking lot. Defendant ignored Officer Collins’s orders to stop, jumped over a fence, and ran across an expressway, onto another commercial property. Other officers subsequently located defendant and arrested him.
Physical and Forensic Evidence; Defendant’s Statement to Police
The gold-colored Chrysler that defendant was driving belonged to Osby. When defendant abandoned it, it was still running, but there were no keys in the ignition. A police officer testified that it is possible to “hot-wire” and start a car using a screwdriver.
The officers found a gun, a screwdriver, and gloves in the area where defendant was apprehended. There were blood stains on the athletic shoes and clothing that defendant was wearing when apprehended and on a pair of black sweatpants recovered from his sister’s home. Human blood was also recovered from the gun. A supervisor in the DNA unit of the Santa Clara County Crime Lab testified that the blood on the gun, athletic shoes, black sweatpants, a sweatshirt, and one of the gloves matched Huante’s blood to a 99.9 percent degree of scientific certainty. The blood on the other articles of clothing was defendant’s blood.
The police interviewed defendant after his arrest. The prosecutor played the tape for the jury. In the interview, defendant admitted that he had “asked” Huante for money, hit him on the head with a gun, and pushed him to the ground. He also admitted robbing Hadzic, Ying, and Shivanna and evading police.
Discussion
I. Self-Representation
Defendant contends the trial court deprived him of his right to conduct his own defense pursuant to Faretta, supra, 422 U.S. 806 because it conditioned that right on defendant being ready to proceed to trial. He argues that the error was reversible per se or alternatively that it was an abuse of discretion. The Attorney General argues that the court properly denied defendant’s Faretta motion because it was untimely and that even if the court erred, any error was harmless.
A. Factual and Procedural Background
Before making his Faretta motion, defendant made three separate requests to remove his attorney, Jaime Alvarez of the Public Defender’s Office, pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We review those requests to the extent they provide background for the defendant’s Faretta motion.
On March 17, 2006, approximately one month before the preliminary hearing, defendant made a motion to remove Alvarez on the grounds that he had only seen his attorney twice in 17 months, that the attorney had not given him “fuller details about what’s going on,” and that he did not feel that defense counsel was representing him “100 percent.” Alvarez told the court that he had visited defendant after the case was assigned to him; that he had taken 10 weeks of paternity leave, during which time the case was assigned to another attorney who visited defendant; and that after the case was reassigned to him (Alvarez), he met with defendant. He stated that he had not stopped working on the case, but had not been able to visit defendant as much as he would have liked because of his recent assignment to drug court and serving four weeks of jury duty. Alvarez told the court that since his drug court assignment had “calmed down” and his jury service was over, he would visit defendant on March 22 and March 29, 2006. The court denied defendant’s Marsden motion.
On April 21, 2006, at the start of the preliminary hearing, defendant made another motion to remove Alvarez. He told the court Alvarez had not reviewed his case adequately and had only visited him four times. Defendant complained that he did not have a defense and that Alvarez was not showing him 100 percent of his work. Alvarez acknowledged defendant’s anxiety and frustration over this case, given the amount of custody time he was facing. Alvarez told the court he had given defendant all of the discovery that he had received and that he was prepared to move forward with the case competently. The court denied the Marsden motion.
The case was set for trial on June 19, 2006. After receiving the prosecution’s witness list, defendant requested a continuance to July 24, 2006, to interview some of the witnesses. The court granted the request. Defendant’s subsequent motion to continue the trial because of defense counsel’s scheduling conflicts was denied. The case was called for trial on July 24, 2006, remained on standby for one week, and was continued to September 11, 2006. The matter was called on September 11, 2006, placed on standby, and trailed until it was assigned to a courtroom on October 4, 2006.
On October 4, 2006, the first day of trial, defendant made another Marsden motion. When the court questioned defendant about the motion, defendant complained that Alvarez had no confidence in winning the case. He argued that Alvarez should have filed a motion to suppress the evidence found at his sister’s house, that Alvarez should have interviewed the witnesses who testified at the preliminary hearing, and that Alvarez was late in giving him the discovery packet. Alvarez advised the court that his investigator had been on the case since January 2005 and had interviewed most of the witnesses who were scheduled to testify, except those that had refused to speak with him. Alvarez told the court that he had advised defendant that the prosecution had a very, very strong case, that there was no legal basis for the motions that defendant had requested, and that he had advised defendant of the maximum and minimum amount of prison time he faced. The court denied the Marsden motion.
In response, defendant told the court that he wanted to exercise his constitutional right of self-representation. The court asked defendant whether he was ready to proceed to trial that day and defendant responded in the affirmative. The court had defendant fill out a form regarding his request to represent himself. The court advised defendant that he had a right to counsel and asked whether defendant was willing to give up that right. Defendant responded, “Yes. With outrage, yes.” The court continued: “You understand that if you are allowed to represent yourself, you will be going up against an experienced prosecuting attorney who will try the case and neither he [n]or the court will assist you or provide you any special treatment. You understand this?” Defendant responded, “Yes. So you are saying I can’t have co-counsel?”
After further discussion, the court stated, “Now, you indicated that you are ready to proceed today, we will start with in limine motions today. We are going to finish the in limine motions tomorrow, then we will start picking a jury on Tuesday, then you will not get any delays to begin the trial. You understand what [sic] we are going to start proceedings immediately?” Defendant responded, “We can’t put it off for like a week or so?” The court said “No” and explained that the case had been assigned to the judge for trial, that both sides were ready and that a police officer was waiting to begin an Evidence Code section 402 hearing. The court advised defendant that if he was not ready to proceed, the court would not allow him to represent himself. Defendant responded, “Why is it so hard for me to fire Mr. Alvarez?” He complained that he did not have a full discovery packet and stated that he was not prepared to go forward. The judge told defendant a second time that he would allow him to represent himself if he was ready to go to trial. Defendant stated that he was not prepared and the court denied the Faretta motion.
B. General Principles
A criminal defendant has a federal constitutional right to self-representation, as recognized in Faretta, supra, 422 U.S. 806. In Faretta, the United States Supreme Court “held that an accused has a Sixth Amendment right to conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol.” (McKaskle v. Wiggins (1984) 465 U.S. 168, 173.)
To properly “ ‘invoke the constitutionally mandated unconditional right of self-representation’ ” in a criminal trial, the defendant must unequivocally assert “ ‘that right within a reasonable time prior to the commencement of trial.’ ” (People v. Wright (1990) 52 Cal.3d 367, 409, citing People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham).) The purpose of the timeliness requirement is to enable the trial court to investigate the reasons for the motion and to weed out Faretta requests that are intended only to unjustifiably delay and obstruct the orderly administration of justice. (Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Burton (1989) 48 Cal.3d 843, 852; People v. Mayfield (1997) 14 Cal.4th 668, 809.) “For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request.” (Windham, supra, 19 Cal.3d at p. 128, fn. 5.) If the request is made just prior to trial, the court also should consider whether “defense counsel has himself indicated that he is not ready for trial and needs further time for preparation.” (Ibid.) “When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court’s discretion.” (People v. Bradford (1997) 15 Cal.4th 1229, 1365.)
California courts have declined to establish a bright-line rule for determining when a motion is timely. (See People v. Clark (1992) 3 Cal.4th 41, 99.) Rather, our state’s courts consider the issue of timeliness on a case-by-case basis.
That said, we observe that motions filed on or after the scheduled trial date are routinely deemed untimely. (See, e.g., People v. Burton, supra, 48 Cal.3d at p. 853 [motion untimely when made after case called for trial and transferred to trial department]; People v. Moore (1988) 47 Cal.3d 63, 78-81 [motion untimely when made on scheduled trial date]; People v. Horton (1995) 11 Cal.4th 1068, 1110-1111 [motion untimely when made on day of trial before proceedings commenced]; People v. Perez (1992) 4 Cal.App.4th 893, 903-904 [motion untimely when made during first day of trial]; People v. Hall (1978) 87 Cal.App.3d 125, 132-133 [motion untimely when made just before jury selection]; see also cases listed in People v. Ruiz (1983) 142 Cal.App.3d 780, 790, fn. 5.)
Likewise, motions brought close in time to the scheduled trial date – on the “eve of trial” – generally are considered untimely. (See, e.g., People v. Ruiz, supra, 142 Cal.App.3d at p. 789 [motion untimely when made six days before trial, after parties announced they were ready]; People v. Clark, supra, 3 Cal.4th at p. 98 [motion untimely when made during pretrial motions in case where trial date was being continued on day-to-day basis]; People v. Hill (1983) 148 Cal.App.3d 744, 750, 755-756 [motion untimely when made five days before trial; dicta].)
By contrast, there are cases in which Faretta motions made on or near the scheduled trial date have been found timely, particularly when no continuance is sought. (See, e.g., People v. Nicholson (1994) 24 Cal.App.4th 584, 592 [motion timely when made prior to jury selection]; People v. Herrera (1980) 104 Cal.App.3d 167, 175 [same]; People v. Tyner (1977) 76 Cal.App.3d 352, 355 [motion timely when made prior to impaneling the jury].)
C. Standard of Review
When the Faretta request is timely and otherwise proper, the trial court’s refusal to grant it constitutes reversible error per se. (People v. Joseph (1983) 34 Cal.3d 936, 946-948; People v. Skaggs (1996) 44 Cal.App.4th 1, 5.) When the Faretta request is untimely, the court’s refusal to grant it is tested for an abuse of discretion. (People v. Burton, supra, 48 Cal.3d at p. 852.)
D. Analysis: Timeliness
As we explained, a proper and timely Faretta motion is constitutionally mandated, while an untimely motion rests within the trial court’s discretion. (People v. Windham, supra, 19 Cal.3d at pp. 127-128.) Thus, the first question we must decide is whether defendant’s motion was timely.
Defendant relies on the following language from Windham: “Our imposition of a ‘reasonable time’ requirement should not be and, indeed, must not be used as a means of limiting a defendant’s constitutional right of self-representation. We intend only that a defendant should not be allowed to misuse the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice.” (Windham, supra, 19 Cal.3d at p. 128, fn. 5, italics added.) The court then gave examples of situations “in which a request for self-representation in close proximity to trial can be justified” and concluded by stating, “When the lateness of the request and even the necessity of a continuance can be reasonably justified the request should be granted. When, on the other hand, a defendant merely seeks to delay the orderly processes of justice, a trial court is not required to grant a request for self-representation without any ability to test the request by a reasonable standard.” (Ibid.)
Defendant argues that his request for a continuance can be reasonably justified because he had been dissatisfied with his attorney for more than six months, he made his Faretta motion only after his third Marsden motion had been denied, and his request for a continuance was reasonable because his attorney had not provided him with a discovery packet.
In our view, defendant’s request was not timely. Defendant made his Faretta motion on the first day of trial, after the trial date had been continued twice, after the case had been trailing on the master trial calendar for over three weeks, and after it was assigned to a trial department. The fact that defendant had been unhappy with his counsel for over six months underscores the lateness of the request. In addition, although defense counsel was prepared to go forward, defendant requested a one-week continuance. Defendant stated that he was unprepared because he did not have his discovery packet. But the record of the April 21, 2006 Marsden hearing indicates that defendant had been provided with discovery by his counsel. Defendant made another Marsden motion on October 10, 2006. At that time, defense counsel told the court that defendant did not have his discovery packet anymore because he had been required to change cells so many times and that counsel was in the process of copying it again. For these reasons, we conclude that defendant has not shown reasonable cause for the lateness of his request and that his Faretta motion was untimely.
Defendant’s reliance on People v. Maddox (1967) 67 Cal.2d 647 is misplaced. The defendant in Maddox made repeated requests to represent himself. He made his first request just four days after the appointment of counsel and his second request 18 days before trial. In both instances, he filed writ petitions contesting the trial court’s denial of his requests; his writ petitions were denied. (Id. at p. 649.) On the first day of trial, the court granted the defendant’s request to represent himself, but denied his request for a continuance to subpoena witnesses and otherwise prepare for trial. (Id. at pp. 649-650.) The California Supreme Court concluded that the trial court erred when it denied the defendant’s first request to represent himself and that the defendant was entitled to a continuance to prepare for trial. (Id. at pp. 652-654.) The instant case is factually distinguishable since it does not involve a timely request for self-representation. Moreover, unlike the attorney in Maddox, who had focused his energies on securing the defendant’s right of self-representation and had not prepared for trial, defense counsel in this case was prepared to go to trial. (Id. at pp. 649, 654.)
Since the motion was untimely, defendant’s right to self-representation no longer enjoyed constitutional stature, but was committed to the trial court’s discretion. We therefore turn to defendant’s alternative argument that the trial court abused its discretion when it denied the motion.
Before doing so, however, we address the Attorney General’s argument that in addition to being untimely, defendant’s request to represent himself was equivocal. As noted previously, to be effective, a request for self-representation must be both timely and unequivocal. (Windham, supra, 19 Cal.3d at pp. 127-28.) Although defendant made some comments that might be considered equivocal, he filled out and signed a form in which he asked to proceed in pro per. When questioned by the trial court, he stated that he understood the form and signed it. He also responded to the court’s questions relating to self-representation. In view of the entire record, we cannot say that defendant’s request to represent himself was equivocal.
D. Analysis: Abuse of Discretion
As noted previously, if the defendant fails to make a Faretta motion within a reasonable time prior to trial, the request is addressed to the sound discretion of the trial court. (People v. Burton, supra, 48 Cal.3d at p. 852.)
In exercising its discretion in such cases, the trial court generally should consider such factors as “the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (People v. Windham, supra, 19 Cal.3d at p. 128; accord, People v. Burton, supra, 48 Cal.3d at p. 853.)
In ruling on the motion in this case, the trial court considered defendant’s reasons for making the request and the quality of defense counsel’s representation. At the hearing of the third Marsden motion, the court questioned defendant about each of the points raised in his written motion, including assertions that defense counsel had failed to file motions, failed to subpoena witnesses, failed to investigate the case and did not believe he could win the case. Defendant could not name any witnesses his counsel had failed to subpoena and said defense counsel should have interviewed the witnesses who testified at the preliminary hearing. Defense counsel Alvarez told the court that his investigator had been working on the case since January 2005 and that he had interviewed most of the witnesses who were going to testify and some witnesses who were not going to testify. Alvarez told the court that he had advised defendant that he thought the prosecution had a very strong case, that they had discussed defendant’s minimum and maximum exposure and the prosecutor’s willingness to negotiate one or two of the charges, and that there was no legal basis for the motions defendant had requested. The court told defendant that Alvarez “is a very experienced, professional lawyer and . . . is giving you his candid opinion of what he thinks the strength of the case is” and is telling you “that the probability is high that you could be convicted of these charges.”
Although there were no prior substitutions of counsel, defense counsel advised the court of defendant’s previous requests to remove counsel. As for the stage of the proceedings, defendant made his Faretta motion on the first day of trial, after the case had been trailing for over three weeks and after the matter had been assigned to a trial department. Moreover, this was the third trial date in the case. There was also evidence that granting the motion would disrupt or delay the proceedings. Defendant advised the court that he was not ready to proceed without counsel and requested a one-week continuance. A police officer was waiting to testify at an Evidence Code section 402 hearing regarding the circumstances surrounding defendant’s statements to the police, which defense counsel hoped to suppress, and the district attorney had “39 of [his] 40 witnesses under subpoena and ready to go.” The prosecutor also stated that he had handled the case since the beginning, that he needed to complete the trial by the end of October because he was taking a two-month leave of absence, and that any further delays would be detrimental to the People’s right to a fair trial.
The situation here is identical to the situation in People v. Burton, supra, 48 Cal.3d 843. The defendant in Burton “did not invoke his right to self-representation until after the case had been called for trial, both counsel had answered ready, and the case had been transferred to a trial department for pretrial motions and jury trial. Voir dire began the next day; the jury was impaneled three court days later. Defense counsel had represented defendant for six months, since the preliminary hearing, and defendant had had several court appearances in which he could have invoked his right to represent himself.” (Id. at p. 853.) The court held that under those circumstances, the motion for self-representation was directed to the sound discretion of the trial court and that the court did not abuse its discretion in denying the motion. (Id. at pp. 853-854.) We have come to the same conclusion here. Moreover, like the defendant in B`urton, defendant had several opportunities before the case was called for trial to move to represent himself and failed to state any cause for the delay in his request. (Id. at p. 854.)
In light of these factors, we conclude the court did not abuse its discretion when it denied defendant’s untimely Faretta motion.
II. Admission of Taped Confession/Alleged Miranda Violation
Defendant contends the trial court erred when it admitted his recorded statement to the police because the prosecution failed to demonstrate that his statement was voluntary and that he had waived his Miranda rights.
A. Factual and Procedural Background
Immediately after it denied defendant’s Faretta motion and prior to jury selection, the court conducted an Evidence Code section 402 hearing regarding the admissibility of defendant’s recorded statement to the police, which contained certain admissions. At the hearing, Detective Brian Gilbert of the Santa Clara Police Department, testified that after defendant was arrested and booked, he escorted defendant to an interview room at the police station. Sergeant Ahid Kazem made an audio/video recording of the activities in the interview room. Both Detective Gilbert and Sergeant Kazem were present for the initial portion of the interview. Defendant started to speak. Detective Gilbert interrupted defendant and told him he would have to read him his Miranda rights before he could speak to him. The detective read defendant each of the four Miranda rights, one by one, from a standard form used by the police department. After reading defendant each of his rights, the detective asked defendant whether he understood that right. In each case, defendant said, “Yeah.” Detective Gilbert did not ask defendant whether he waived his rights and began to question defendant about the case. Detective Gilbert testified that his standard procedure is to advise suspects of their Miranda rights, ask them whether they understand each right, and then rely on an implied waiver, unless there are circumstances that suggest that the suspect is not able to understand his rights.
Approximately two hours after Detective Gilbert started the interview, two officers from the San Jose Police Department entered the interview room and began questioning defendant about the incidents that occurred in San Jose.
At the hearing on the admissibility of the statement, defendant argued that the implied waiver of his Miranda rights was not legally sufficient based on the totality of the circumstances. The court subsequently ruled that defendant’s statement to the police officers was admissible, “subject to any portions that the Court may strike pursuant to [Evidence Code section] 352 or sanitize.” The court stated: “And based on the evidence presented, the motion filed by the prosecution, comments by counsel, the Court finds that the defendant received a full advisement of his Miranda rights. He clearly understood his rights and freely submitted to questioning. Furthermore, he was willing to discuss the case with law enforcement.”
B. Legal Principles
“A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity.” (People v. Williams (1997) 16 Cal.4th 635, 659.)
“The litmus test of a valid waiver or confession is voluntariness. ‘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.’ ” (People v. Kelly (1990) 51 Cal.3d 931, 950.) “In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ ” (People v. Massie (1998) 19 Cal.4th 550, 576.)
“No single event or word or phrase necessarily determines whether a statement was voluntary.” (People v. Kelly, supra, 51 Cal.3d at p. 950.) “In deciding the question of voluntariness, the United States Supreme Court has directed courts to consider ‘the totality of circumstances.’ [Citations.] Relevant are ‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’ ” (People v. Williams, supra, 16 Cal.4th at p. 660.)
Criminal defendants may waive their Miranda rights, so long as the waiver itself is voluntary. (People v. Whitson (1998) 17 Cal.4th 229.) The waiver may be explicit or implied. (Id. at p. 245.) A valid Miranda waiver may be implied when the defendant is fully informed of his constitutional rights, acknowledges that he understands his rights, but proceeds to talk to the police anyway. (See Whitson, at pp. 247-248 and cases cited therein.) The prosecution bears the burden of proving the voluntariness of the Miranda waiver or confession by a preponderance of the evidence. (Whitson, at p. 248.)
There are two distinct components of the inquiry: “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, fn. omitted; see also, People v. Johnson (1969) 70 Cal.2d 541, 558 [once the defendant has been informed of his rights, and indicates that he understands those rights, his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights but chooses not to exercise them], disapproved on another point in People v. DeVaughn (1977) 18 Cal.3d 889, 899, fn. 8.)
“On appeal, we review independently the trial court’s determination on the ultimate legal issue of voluntariness. [Citation.] But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including ‘ “the characteristics of the accused and the details of the interrogation” [citation],’ are subject to review under the deferential substantial evidence standard.” (People v. Williams, supra, 16 Cal.4th at pp. 659-660; see also, e.g., People v. Whitson, supra, 17 Cal.4th at p. 248 [despite independent review standard, reviewing court gives “great weight” to legal conclusions reached by trial court that previously analyzed the same evidence].)
C. Analysis
Viewing the totality of the circumstances after a careful and independent review of defendant’s interview, we conclude that defendant’s Miranda waiver and the statements were voluntary and were not motivated by police tactics or psychological coercion. Detective Gilbert introduced himself to defendant at the location where defendant was arrested and told him that he would be investigating the case and that he would be talking to defendant at the police station. Detective Gilbert did not drive defendant to the police station. There was no evidence that any of the officers who had contact with defendant at the scene, including Detective Gilbert, or the officer who transported defendant to the police station discussed the incidents with him. After he was booked, defendant was placed in a holding cell until he was interviewed by Detective Gilbert and Sergeant Kazem. Defendant was arrested at 2:06 p.m. and the interview began at 5:50 p.m.; it ended at approximately 9:40 p.m. Defendant did not request counsel before being interviewed by the officers or during the interview. The officers did not discuss the incident facts with defendant before starting the recording device. At the beginning of the interview, defendant tried to initiate a conversation with the officers, asking how much time he was facing; Detective Gilbert interrupted him to administer the Miranda warnings. Detective Gilbert testified that neither he nor Sergeant Kazem did anything to threaten defendant while reading him his Miranda rights. Our review of the interview transcript confirms that was the case. Defendant was not handcuffed and the officers were not holding a weapon on him. The officers did not promise defendant anything other than that they would talk to him after reading him his rights.
Before interviewing defendant, the detective knew that defendant was on parole and had had contact with the criminal justice system before. Defendant spoke English and did not appear to be under the influence of drugs or alcohol. The interview started in the early evening and although it lasted almost four hours, there was nothing indicating that defendant felt coerced during the interview or that he could not continue. During the interview, defendant did not at any time suggest that he wanted to end the interview; the officers decided when to end the interview.
For these reasons, we conclude the trial court did not err when it admitted defendant’s statements to the police.
Alleged Sentencing Error
Defendant contends that the imposition of consecutive sentences on counts 1, 2, 3, 6, and 8 and of consecutive section 12022.53, subdivision (b) enhancements on counts 1, 2 and 3 violated his constitutional right to a jury trial. Defendant acknowledges that after he was sentenced, the California Supreme Court ruled in People v. Black (2007) 41 Cal.4th 799 that a jury trial is not required on factors that justify the imposition of consecutive sentences and that this court is bound by the California Supreme Court’s decision in Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He makes the argument nonetheless, to preserve the issue for further review.
Since it is settled law that jury fact finding is not required for imposition of consecutive sentences, defendant’s claim fails.
Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Duffy, J.