Opinion
F083560
02-01-2024
THE PEOPLE, Plaintiff and Respondent, v. JIM THOMAS LANGSTON, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF165964B John D. Oglesby, Judge.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FRANSON, J.
INTRODUCTION
Defendant Jim Thomas Langston appeals his 2021 conviction for two first degree murders with special circumstances, two robberies, active gang participation and various enhancements, including firearms. His primary argument challenges the admission of his pretrial statements to investigating detectives while in custody without being given his Miranda rights and the admissibility of these statements made as a result of a two-part interrogation.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
During Langston's first interview, the detectives who questioned him did not provide Miranda warnings until over two hours into the interview, elicited a confession of his involvement in the underlying crimes in that prewarning period and then, after the warnings, reinterrogated him about the same facts. During both the pre-and postwarning portions of the first interview, Langston admitted cashing a check at the convenience store immediately before the robbery along with his involvement as a getaway driver in the underlying offense.
After a large portion of the prewarning first interview statements and the entirety of the postwarning first interview statements were admitted at trial, a jury convicted defendant of the premeditated first degree murders of Heriberto Aceves and Juan Aceves (Pen. Code, §§ 187, subd. (a), 189, counts 1 &2), and found true all enhancements and allegations. Subsequently, Langston was sentenced to two indeterminate terms of life without the possibility of parole, plus 50 years to life.
All further references are to the Penal Code, unless otherwise indicated.
As we discuss further below, Langston was also convicted and sentenced to additional offenses and enhancements.
On appeal, Langston contends the trial court prejudicially erred when it concluded defendant was not in custody when he was initially questioned by detectives without Miranda warnings and that the balance of the first interview should be excluded because the detectives utilized a "two-step interrogation technique," which, as the United States Supreme Court stated in Missouri v. Seibert (2004) 542 U.S. 600, 616-617 (Seibert) makes both the unwarned and warned statements inadmissible. We agree and conclude Langston was prejudiced by the admission of the first interview at trial.
Langston raises other claims as set forth in part IV. of the Discussion, but we do not reach the merits of those claims.
STATEMENT OF CASE
On August 9, 2021, the Kern County District Attorney filed a first amended information charging Langston with two counts of premeditated first degree murder (§§ 187, subd. (a), 189, count 1 (Heriberto Aceves) &count 2 (Juan Aceves)) with the special circumstances he committed multiple murders (§ 190.2, subd. (a)(3)), he was engaged in the commission or attempted commission of a robbery and burglary (§ 190.2, subd. (a)(17)(A) &(G)), and that he was an active participant in a criminal street gang and the murder was committed in furtherance of the gang (§ 190.2, subd. (a)(22)); two counts of robbery (§ 212.5, subd. (c), counts 3 &4); active participation in a gang (§ 186.22, subd. (a), count 5); possession of a firearm by a felon (§ 29800, subd. (a)(1), count 7); and unlawfully carrying a loaded firearm, to wit, a handgun, in public (§ 25850, subd. (c)(3), count 8). As to counts 1, 2, 3, 4, the information alleged a firearm enhancement (§ 12022.53, subd. (d)), and as to counts 1, 2, 4, 3, 4, and 7, the information alleged a gang enhancement (§ 186.22, subd. (b)(1)).
Prior to the jury trial, the People dismissed count 5 (§ 186.22, subd. (a)), count 7 (§ 29800, subd. (a)(1)), and count 8 (§ 25850, subd. (c)(3)) in the furtherance ofjustice. During the trial, the People dismissed both the multiple murder special circumstances (§ 190.2, subd. (a)(3)), and the gang special circumstances (§ 190.2, subd. (a)(22)), as alleged in counts 1 & 2.
The People originally pursued the death penalty against Langston, however, on November 21, 2017, the People withdrew the death penalty.
On September 21, 2021, a jury convicted Langston on all remaining counts and found true all remaining enhancements and allegations. Subsequently, as to count 1, the trial court sentenced Langston to an indeterminate term of life without the possibility of parole, plus a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), and a 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)), but stayed the 10-year term pursuant to section 654. As to count 2, the trial court sentenced Langston to an indeterminate term of life without the possibility of parole, plus a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), to be served consecutive to count 1, and a 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)), but stayed the 10-year term pursuant to section 654. As to count 3, the trial court imposed the upper term of five years, plus a term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)) and a 10-year term of the gang enhancement (§ 186.22, subd. (b)(1)), but stayed this sentence pursuant to section 654. As to count 4, the trial court imposed the upper term of five years, plus a term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), and a 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)), but stayed this sentence pursuant to section 654. Langston timely appealed.
We note there is a discrepancy between the reporter's transcript and the August 30, 2021, minute order. The minute order states the People dismissed the section 186.22 gang enhancement, as to counts 1 & 2. However, the reporter's transcript indicates the trial court sentenced defendant to a 10-year term, on the gang enhancement for count 1 & 2.
SUMMARY OF FACTS
I. The Prosecution Case-in-Chief
Heriberto and his two sons Juan and Jesus ran the Quality Gas, gas station and market, on the southwest corner of Main Street and Panama Road in Lamont, southwest of Bakersfield. Rigoberto, a friend of Jesus, also worked at Quality Gas.
Main Street is also referred to as Weedpatch Highway.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names or initials. No disrespect is intended.
A. The Robbery/Murders and Subsequent Getaway
The underlying facts of the robbery and murders are from both testimony and surveillance footage admitted during the trial.
On Friday morning, October 14, 2016, Langston picked up his paycheck for $137 at Tasteful Selections, his place of employment, on Di Giorgio Road, in Arvin. At approximately 9:30 a.m., Langston entered the Quality Gas market and was observed on surveillance footage cashing his payroll check and then leaving. Langston wore a black hat with a white cursive "W."
Shortly after leaving the store, Langston saw a dark colored Saturn Ion with three occupants following him and he eventually stopped. Langston stopped and the group asked him if he would drive them to Quality Gas in exchange for $200. The three individuals were later identified as codefendant Darnell Hammond, "Tiny," and "Baby Goo." Langston later told officers the three individuals threatened him and were armed. He admitted he was asked to "[b]asically" be their getaway driver. He agreed to drive the three to Quality Gas. Langston also told officers he left his Nissan parked on Collision Avenue, about four blocks north of Quality Gas, and drove the three suspects in the Saturn Ion to Quality Gas.
Detective Richard Anderson testified "Baby Goo" or "Big Dirt" was Myron Givan. Law enforcement believed Givan was the heavy-set suspect seen in the surveillance footage. We will refer to "Baby Goo" as Givan throughout this opinion.
It was stipulated by both the prosecution and defense "the tan Saturn Ion and the black Nissan Altima ... are believed to be the vehicles used in the commission of the crimes ... on October 14th, 2016," and "[t]he black Nissan Altima belongs to Jim Thomas Langston's girlfriend," and that Langston's "DNA was not located in the tan Saturn Ion, but it was located near the seat belt locking mechanism in the black Nissan Altima. It is unknown when Mr. Langston's DNA was transferred to the black Nissan Altima."
Surveillance footage showed the Saturn stop in front of the Quality Gas market front door, facing north towards Panama Street, with three masked men exiting and entering the store. The suspect referred to as "Tiny" was armed with a Mac-11 assault pistol, wearing a black glove and a white glove, and black and white Nike shoes. Hammond was armed with a black nine-millimeter handgun and wore white gloves, white Nike shoes, and a "New York Yankees" beanie. Givan, the third suspect, was not armed. Langston remained in the Saturn throughout the extent of the robbery and ensuing homicides.
Upon entering the market, Hammond and Givan headed to the back of the counter where Juan was located, and Tiny pointed his firearm at Heriberto, who was standing in front of the counter, and demanded money. During this exchange, Heriberto pulled out a handgun, but was shot by Tiny. Heriberto fell to the ground and was also shot by Hammond. Hammond then turned towards Juan, who was on the floor behind the counter, and shot him as well. Rigoberto fell to the ground and stayed there until the men left.
Hammond, the suspect with the two white gloves, wore a dark facemask with a small design near his chin, dark Nike brand shoes with a white logo, and a black sweatshirt with a white undershirt.
Tiny then ran out of the store and got into the Saturn, which sped off. Hammond and Givan then left on foot. However, Hammond returned to pick up cash trays from inside the market. Langston eventually picked up Givan and drove him and Tiny to Collision Street to switch cars. Surveillance footage showed the Saturn driving west on Collision and then south on Main away from Quality Gas.
Moments later, Hammond exited the market and was seen by witnesses running away from Quality Gas, armed with a pistol and carrying two cash trays. He was left behind. Deputies later found Hammond hiding inside a shed at a residence on Lana Street, about five blocks from the shooting. He was unarmed, wore a white tank top with dark colored pants, and was "squatting on his hands and knees." He was not wearing shoes, but deputies did locate a pair of Nike shoes next to him. Deputies also located over a thousand dollars "in a rolled up mesh - piece of mesh" inside the shed. One of the $100 bills had either "a blood stain or a blood drop." Hammond was arrested. He was later interviewed, but told law enforcement he did not know Langston.
Criminalist G. Sugimoto analyzed the blood and testified that it was highly probable the DNA found on the bill belonged to Juan.
During a subsequent interview, Langston admitted that after the robbery he drove the Saturn north to Collision Street and parked behind his Nissan, where he left it parked earlier. The three men got into the Nissan and drove back towards Quality Gas, on Main Street, trying to find Hammond. Unable to locate Hammond, Langston then drove east with Givan and Tiny to South H and Panama Road, in Bakersfield, about five miles away.
B. Police Investigation
Law enforcement arrived at the scene shortly after the shootings and began to search the inside of the market. Deputies located both Heriberto and Juan's bodies.They also found a payroll check payable to Langston for $137 and two pistols. The first pistol, a nine-millimeter caliber semi-automatic Sig Sauer, was found next to Heriberto's body. It was believed this nine-millimeter pistol was the firearm used by Heriberto to defend himself. The second pistol, a .25-caliber Beretta handgun, was located in a holster inside an office next to the checkout area. Deputies also located three spent bullets and 17 shell casings from the scene. Behind the store, deputies located a dark blue beanie with a New York Yankees' logo.
Both Heriberto and Juan died from multiple gunshot wounds.
Deputies also searched the surrounding area and located two white gloves, one of which had a cash tray discarded next to it. The gloves were stained and spotted with blood; the blood contained Juan's DNA. Further, both gloves were tested for DNA, and it was highly probable the gloves contained Hammond's DNA.
On October 19, 2016, at approximately 6:20 p.m., the Bakersfield Police Department detained Langston at the request of Kern County Sheriff's detectives. He was then brought to the Kern County Sheriff's headquarters for questioning regarding the murders, as well as pursuant to a search warrant to obtain a buccal swab sample.
The same warrant authorized the search of both Langston's residence and the Nissan Altima.
We will provide a more exhaustive explanation regarding Langston's first interview in our discussion regarding the alleged Miranda and Seibert violations.
After arriving at the Kern County Sheriff's Department headquarters, Langston remained handcuffed inside the headquarters' interview room for approximately 30 minutes before meeting with Detective Richard Anderson and his partner Detective John Coleman. Anderson and Coleman then proceeded to interview Langston. Before questioning, Anderson asked Langston if he wanted the handcuffs removed, to which Langston agreed. Anderson told Langston he was free to leave at anytime. Langston made admissions both before and after the Miranda advisements were provided.
The entirety of the video interview was premarked and admitted at the Evidence Code section 402 hearing as People's exhibit No. 3. The corresponding transcript was marked as People's exhibit No. 3A.
1. Prewarning Statements
Initially, Langston denied being involved in the robbery and told detectives he was fishing with his son on the day of the offense. However, he subsequently admitted he cashed a check at the convenience store the day of the robbery.
Langston then admitted he gave two men a ride after he cashed the check. He stated that "once [he] cashed [his] check" these guys told him, "Can I get ride? You know, I give you $200 bucks." Langston stated he "needed $200 dollars ... and they showed [him] the money." Although Anderson kept pressing Langston, he continued to deny being involved in the murders and reiterated that all he intended to do was provide these individuals a ride in his car for some money. For example, Langston told Anderson, "That's what I did - I gave the fools a ride. That's it. I didn't go - kill nobody - no nothing like." He admitted he knew the two individuals in the car with the nicknames of "Tiny" and "Baby Goo," and also admitted he knew the codefendant Hammond. However, Anderson did not believe Langston's story and repeatedly told him to be "100% honest" and "100% truthful" with him. At one point, Anderson told Langston, "How many more lifelines do we need to give you to be 100% honest?"
Additionally, before providing Langston with Miranda warnings, Anderson informed him about the felony murder rule and told Langston, "Do I gotta explain something to you?" "It's called the felony murder r[ule]." "If I can prove that you drove that car you might as well pulled the trigger [Langston]." Anderson also confronted him with evidence when he told him, "There's a reason why you're sweating man." "The Saturn, you guys parked it right next to a damn camera." "Tell us how it went down." "We've got you on film. We got the camera. We got you - the guys getting in your car. You're driving them away." Further, Anderson told Langston he "wrote a search warrant on [his] house" and if they find "[o]ne tin[y] drop of blood" "in [his] car" "[he's] done."
During the middle of the interview, after approximately 90 minutes of questioning, Anderson and Coleman left Langston alone in the room for approximately 30 minutes. Subsequently, Anderson returned and continued to question Langston for another eight minutes before providing him with Miranda warnings. During these eight minutes, Anderson told Langston, "Well when you - you give people a ride who just committed a murder - that's accessory to murder" and that Langston needed to tell the truth because "[i]n court [he'll] be six months now - a year from now - your attorney's gonna be like why didn't you just tell 'em the truth."
2. Postwarning Statements
After nearly 100 minutes of questioning, Anderson provided Langston with his Miranda rights. Anderson again asked Langston, "How'd you get wrapped up in this?" and Langston replied, "That's what I'm trying to figure out." "All I did is fucking give 'em a ride sir. I swear that's all I give 'em is a ride." Anderson then asked, "And where were you standing when they asked you this?" Langston replied, "So once they came ... they like pulled over and [said] 'Hey, you wanna make $200 bucks.' I knew the guy - I seen the guy before, you feel me. I knew they called him the (Little Goo), you feel me." Detective Anderson again reminded Langston, "We have the camera" "the brown car" "[y]our cars behind it." Langston replied, "I didn't know what they was gonna do. Didn't, you feel me." "So, they gonna charge me for murder for doing that, I don't." Anderson responded, "When you - when you, here's the thing. When you're a getaway driver that's what you can be charged with. With murder." Langston was then arrested. At the two-hour, 22-minute mark, Anderson left Langston alone in the interview room.
Approximately seven minutes later, Coleman returned with a DNA testing kit. Langston provided a DNA sample, along with a left and right thumb print. Coleman then began asking him questions, such as, "What are the nicknames? The nicknames." Langston replied, "(Goo) and (Tiny). I don't know no - their real names." During the next 14 minutes of the interview, Coleman and Langston went back and forth regarding the underlying offenses, and Langston told Coleman seven separate times he gave them a ride to make $200. Coleman then left Langston alone in the interview room. Approximately 10 minutes later, Coleman returned with pictures of potential suspects for Langston to identify. Langston did not identify anyone in the pictures. Coleman ended the questioning at the three-hour, 17-minute mark.
D. Langston's Second Interview
Langston does not challenge the admission of his second interview.
On October 21, 2016, Anderson interviewed Langston a second time at the jail and readvised him of his Miranda rights. Langston again identified the two participants as "Tiny" and "Baby Goo." Langston reiterated he did not know the other participants.
During this interview, Langston explained that one of the group members told him, "So I was, like, fuck, what am I gonna do" and "[h]e's like, 'Well you gonna drive us then' ... 'You fucking try to take off, we - I'm gonna kill your fuckin' family.'" They proceeded to the gas station and the men were not wearing masks, just "somethin' on their head when [they] pulled in the store." Langston explained, "Once I dropped 'em off they jumped out of the car and they wa - I just ran a stop." Langston then drove the pair away and traveled east down Panama Road to Carnation Street, where they parked behind Langston's Nissan. They then got into the Nissan.
Langston told Anderson he only participated in the robbery because he feared the other participants would kill his family. Further, he did not believe the other participants were going to kill anyone at the convenience store. After Langston heard about the murders, he did not come forward because he feared for his family's safety.
DISCUSSION
I. Langston Was in Miranda Custody Throughout the Entire First Interview.
We rely on the entirety of the video interview (People's exhibit No. 3) to determine whether Langston was in custody for purposes of Miranda, and to determine whether a Seibert error occurred in this case.
Langston contends the trial court prejudicially erred in admitting his first interview statements because he was subjected to a custodial interrogation, as defined in Miranda, after being transported in handcuffs in a patrol vehicle to the Kern County Sherriff's Department headquarters. Further, Langston contends the detective improperly employed a "two-step interrogation technique," which the United States Supreme Court in Seibert found violated Miranda. As to both contentions, we agree and therefore reverse the judgment of conviction.
A. Additional Factual Background
1. Evidentiary Hearings
In September 2017, the trial court held a pretrial suppression hearing related to a search warrant of Jessica B.'s apartment issued on October 19, 2016. During this hearing, Langston's initial detention and first interview were discussed.
Jessica B. testified she lived with Langston at the apartment at or near the time of the alleged offenses.
Anderson was the lead detective and was assisted by Kern County Deputy Daniel Perez and Bakersfield Police Officer Jesse Perez in the homicide investigation. Both Deputy Perez and Officer Perez were assigned to their respective gang units. They all worked as a team and constantly exchanged information.
Based on surveillance videos inside the convenience store and other retail establishments in the area and other evidence, Anderson and law enforcement strongly suspected Langston was involved as the getaway driver in the offenses prior to being taken to the headquarters in handcuffs and interviewed. This suspicion was based on the following: (1) surveillance footage showing Langston driving the Nissan from Tasteful Selections in Arvin, where he picked up his paycheck the morning of the robberies; (2) surveillance footage showing Langston cashing a payroll check minutes before the robberies; (3) Langston's name and address on the payroll check; (4) DMV records and photographs confirming his identity on the surveillance footage showing him cashing the payroll check before the robberies; (5) surveillance footage showing Langston driving the Nissan shortly before the robberies; (6) surveillance footage showing the Saturn being driven southbound on Weedpatch Highway shortly before the robberies; (7) surveillance footage showing the Saturn pulling up in front of Quality Gas with the suspects getting out and entering the market; (8) surveillance footage showing both the Nissan and Saturn traveling on Collision Street and then south on Weedpatch Highway after the robberies, back towards Quality Gas; (9) the abandoned Saturn near Collison Street and Weedpatch Highway; (10) Langston's membership with the Country Boy Crips; and (11) surveillance of Jessica B.'s apartment where Langston was observed "coming in and out of a dark colored Nissan Altima" - the suspected getaway vehicle.
Subsequently, on October 19, 2016, while Deputy Perez was completing his warrant affidavit for both a search of Jessica B.'s apartment and a DNA swab for Langston, Detective Anderson ordered Langston to be picked up for "questioning." At the same time, Officer Perez was working with the violent criminal apprehension team (VCAT), which was tasked with locating Langston. Langston had previously "been lost at the area of New Stine and Ming Avenue on two different occasions." Officer Perez was advised the "sheriff's department had obtained probable cause to search [Langston's] residence as well as obtain his DNA from his person."
The search warrant was signed off by a judge at 7:02 p.m. - approximately 30 minutes before Langston's first interview.
At approximately 6:20 p.m., Officer Perez, while in full police uniform and driving a marked patrol vehicle on Ming Avenue, spotted Langston riding an electronic board on the sidewalk without a helmet. Officer Ferguson and Officer Martinez arrived on scene to assist. "To avoid suspicion, [officers] advised [Langston] he was stopped for a vehicle code violation which would be an infraction." Officer Perez, along with the other two officers, patted Langston down for weapons, placed him in handcuffs, and "told him that sheriff's investigators wanted to speak to him about an incident, and [that] he would be transported to the sheriff's department." Officer Perez notified his supervisor that Langston "was in custody." Langston was placed in the back of the patrol vehicle in handcuffs and transported at 6:43 p.m., to the sheriff's department headquarters. Officer Perez testified that once Langston was placed in the patrol vehicle, "[h]e wasn't free to leave from [his] custody." At or around 7:00 p.m., Langston arrived at the sheriff's department headquarters. The total time elapsed "[f]rom the initial time of the stop to the time he was at the sheriff's department ... [was] maybe 30-40 minutes."
2. Pretrial Motions Regarding Langston's First Interview.
The People filed a motion in limine requesting that a recording of Langston's first interview with detectives be played during the trial. In April 2021, defense counsel filed a motion in limine moving to suppress his statements to law enforcement on the ground he was subjected to a custodial interrogation without being advised of his Miranda rights.
At a later Evidence Code section 402 hearing on the motion in limine, Anderson, six-foot, four-inches tall, weighing approximately 300 pounds, testified regarding Langston's first interview. Anderson stated he initially did not read Langston his Miranda rights because "[h]e wasn't under arrest" and that Langston was not a suspect or witness at the point he began to interview him. Before questioning began, Anderson took off Langston's handcuffs and told him he was free to leave. However, he later acknowledged Langston "was a suspect" and that he was asking questions to prove up his theory of the murders. Later, because Langston's "story or basically what occurred that day had changed multiple times ... [Anderson] was comfortable with basically believing he was a suspect in this [case] and no longer a witness ... [and he eventually] read him his Miranda rights."
3. The Trial Court's Ruling
After hearing argument at the Evidence Code section 402 hearing, the trial court excluded the portion of the first interview between Langston's admission that he had cashed the check at the store and the Miranda advisement approximately two hours into the interview. The remainder of the interview was deemed admissible, including the postwarning statements. Specifically, the trial court stated the following:
"With Mr. Langston, I want to comment first on the [Stansbury v. California (1994) 511 U.S. 318 (Stansbury)] case, which I think is the foundation of the -- one part of ... Mr. Langston's argument....
"The Stansbury case, factually I found interesting because in that case the defendant was brought in for questioning because he was one of the two people last seen talking to a child in the evening when the child was recovered having been, I believe sexually abused and murdered the next day. So he and another individual were last seen talking to the child and he worked in a -- I think a Good Humor truck, and was contacted by police.
"The body of the child was recovered the following day, when the body was seen being dumped by an individual driving I believe an older, American, turquoise colored vehicle. The defendant was contacted and was asked -- at home and was asked if he would voluntarily come down to the police station. He said he would to be interviewed -- because he had seen the girl. He admitted that -- and to discuss it with law enforcement.
"He was given a ride un-handcuffed and was driven in the front seat of an unmarked patrol car. He was taken into the jail, but that was just because that was where the interview room was located, but was not handcuffed in the process. And it was made clear to him that he was simply there to give a statement.
"There were two officers in the interview room. The defendant was asked to tell the police what had happened the night before and reciting the details of the evening he did admit to going out after midnight driving an older, American, turquoise colored vehicle. At that point, the police obviously were interested. The defendant then went on to admit that he previously suffered convictions for child abuse, as well as other criminal convictions. At which point, the defendant without provocation invoked [his Miranda rights]. In other words, the police obviously didn't say anything to him to provoke it, from the record. I don't know whether by facial expressions of the officers there was some trigger to the defendant as to why all of a sudden he decided to invoke. But I think the officers might have been somewhat surprised by what they heard. [¶] ...[¶]
"The -- but the interview is interesting because as we start out [Langston] is handcuffed. He's been detained at the request of the Sheriff's Department. My understanding is that he was picked up by the Bakersfield Police Department on like a traffic citation, which is not normally someone you arrest and take into custody, but he was detained for a significant period of time, probably at least a half an hour, I think, he was in the holding cell with his handcuffs behind his back.
"When Detective Anderson showed up the comment was pointed out by defense counsel, you know, you're -- we're taking off your cuffs now. Well, that's not really the kind of thing that we saw in Stansbury. In Stansbury, everyone, both the California and U.S. Supreme Court, was clear in their evaluation that at the point Stansbury said, basically, I took out a turquoise car, at that point he was in a position where he should have been advised. I'm not sure why everyone made that assumption, but they did leave that in because he invoked thereafter. That was the -- the admission to driving the turquoise car, I think, was the key point.
"But on page 22 of the interview as defense counsel has pointed out, [Langston] admits to cashing a check at the store where the robbery occurred. And then we have the comments by the detective, well, that's interesting, you know. Why are you -- you're sweating now. Why are you sweating? And then on 24 we have you -- on page 24, we have you on film. And page 25, you know, we're executing a search warrant at your house. Clearly by that time he needed to be Mirandized -- advised of his Miranda rights.
"The Court does not see this as manipulation by law enforcement, that they were trying to continue to get information out of him, such as to make it an involuntary. [Langston], like [] Hammond, is no stranger to law enforcement or to being arrested. He had been -- not only has been previously arrested but has been shot in the head and has contact with law enforcement over that as we addressed in some of our previous motions and at least some point an admitted gang member.
"So he -- once he was told, well, you're un-handcuffed for now and you're free to go, I think under the circumstances at that point the statements were not as too far removed from Stansbury as to make them involuntary or to make them violation of Miranda and the interview proceeded. But a certain point and where I'm going to draw the line, essentially after he admits to cashing the check at the store where the robbery occurred, which was just a few minutes before the robbery, based upon the background information of Detective Anderson pointed out of the ethnic populations of the area where the store was located and the ethnic population of the defendant, I would say after that [Langston] was entitled to his advisal of Miranda rights. [¶] ... [¶]
"The -- but I think at that point we look at the standards that are articulated, going back to the Stansbury case -- you know, the Stansbury case focused on the interview being brief and non accusatory. The defendant voluntarily came in. The police were conveying the impression that he was not a suspect and was not in custody and then he made some admissions.
"The factors - I think both sides have covered this, is the place of the interrogation was law enforcement headquarters. [Langston], while he wasn't formally arrested had been detained, which is -- doesn't necessarily -- detention doesn't necessarily inherently require a Miranda advisal, but I think once the detention goes on long enough it does.
"But the objective indicia of arrest, he had been taken into custody but then he was -- that was broken when the officer said, you're free to go. The length of the detention, at least at the point of admission was not particularly lengthy but it had been significant. It was -- he sat in a holding cell for 25, 30 minutes. And we had two officers to one suspect which is a factor that was looked at in Stansbury. And then the demeanors of the officer. Well, certainly at the point when you're saying, you know, you're sweating, the demeanor has changed a little bit from any sort of non-confrontational approach to a confrontational approach.
"Other factors that have been addressed in other cases, the confrontational nature of the questioning. The physical surroundings of the interrogation degree and the degree of pressure. But certainly in light of the all the factors, once the defendant made the admission of being there at the store is where it kicked in."
At trial, in compliance with the trial court's order, a redacted version of Langston's first interview video was admitted into evidence as People's exhibit No. 51.This redacted version included Langston's prewarning statements up until he told Detective Anderson, "I went to the - cash my check." The entirety of Langston's postwarning statements, including the Miranda advisements were played for the jury.
A transcript of the interview was premarked as People's exhibit No. 51A and provided to the jury.
B. Applicable Law
The Fifth Amendment to the United States Constitution provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." (U.S. Const., 5th Amend.) To safeguard a suspect's Fifth Amendment privilege against selfincrimination from the "inherently compelling pressures" of the custodial setting (Miranda, supra, 384 U.S. at p. 467), the high court adopted a set of prophylactic measures requiring law enforcement officers to advise a suspect of his right to remain silent and to have counsel present prior to any custodial interrogation (id. at pp. 444-445).
" 'A statement obtained in violation of a suspect's Miranda rights may not be admitted to establish guilt in a criminal case.' [Citation.] When evaluating the admissibility of a defendant's statements on appeal, we accept the trial court's resolution of disputed facts if supported by substantial evidence, and we independently determine from the undisputed facts and the facts properly found by the trial court whether the statements were illegally obtained." (People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 16.) "The erroneous admission of statements obtained in violation of the Fifth Amendment is reviewed under the Chapman standard [citation]. That test requires the People 'to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' [Citation.] The standard is satisfied only if '[t]here is no reasonable possibility that the verdict would have been more favorable to defendant had [the] statements not been admitted.'" (People v. Henderson (2020) 9 Cal.5th 1013, 1029.)
"It is settled that the Miranda advisements are required only when a person is subjected to 'custodial interrogation.'" (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161 (Aguilera).) It does not appear there is a dispute as to whether Langston's interview was an interrogation (Rhode Island v. Innis (1980) 446 U.S. 291, 301 [" 'Interrogation'" is the express questioning or other words and actions on the part of law enforcement that law enforcement "should know are reasonably likely to elicit an incriminating response from the suspect"]), and therefore, we only address whether the interrogation was "custodial" under Miranda.
"The test for custody does not depend on the subjective view of the interrogating officer or the person being questioned." (People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) Rather, "[c]ustody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole." (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403, fn. omitted.)
Courts have identified a variety of factors to consider in making that determination, including: "[(1)] 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; [(2)] whether the express purpose of the interview was to question the person as a witness or a suspect; [(3)] where the interview took place; [(4)] whether police informed the person that he or she was under arrest or in custody; [(5)] 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; [(6) ] whether there were restrictions on the person's freedom of movement during the interview; [(7)] how long the interrogation lasted; [(8)] how many police officers participated; [(9)] whether [the police officers] dominated and controlled the course of the interrogation; [(10)] whether they manifested a belief that the person was culpable and they had evidence to prove it; [(11)] whether the police were aggressive, confrontational, and/or accusatory; [(12)] whether the police used interrogation techniques to pressure the suspect; and [(13)] whether the person was arrested at the end of the interrogation." (Aguilera, supra, 51 Cal.App.4th at p. 1162.) "No one factor is dispositive." (Ibid.)
Ultimately, the question is" 'whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.'" (People v. Caro (2019) 7 Cal.5th 463, 491 (Caro).) Miranda's concern with custodial interrogation was the" 'inherently compelling pressures,'" specifically the "psychological pressures 'which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.'" (Marylandv. Shatzer (2010) 559 U.S. 98, 103.)
C. Analysis
As stated above, Aguilera advised that no one factor is dispositive, and courts should instead look at "the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest." (Aguilera, supra, 51 Cal.App.4th at p. 1162.) We examine each of the Aguilera factors now.
1. Police Initiated Contact with Langston
Law enforcement orchestrated a planned detainment of Langston for a "[V]ehicle Code violation." Langston was placed in handcuffs, and "told ... that sheriff's investigators wanted to speak to him about an incident, and [that] he would be transported to the sheriff's department." While still in handcuffs, he was placed in the back of a marked patrol vehicle and taken to the sheriff's department. The total time elapsed between initial contact and the moment Langston arrived at the station was 30-40 minutes.
We are not persuaded by the People's argument that "[a]lthough law enforcement initiated contact with [Langston] and transported him to the station in handcuffs, soon thereafter, he told the detectives that he did not 'have a problem talking' with them." First, because "[d]efendant was handcuffed and placed in the back of a police car .... A reasonable person in that situation would feel completely at the mercy of the police ... [and as] such a person is 'entitled to the full panoply of protections prescribed by Miranda.' " (People v. Bejasa (2012) 205 Cal.App.4th 26, 38, quoting Berkemer v. McCarty (1984) 468 U.S. 420, 440.) Second, the fact Langston told detectives he had no problem talking to detectives is irrelevant to this court's analysis because we analyze whether he felt the" 'inherently compelling pressures,'" specifically the "psychological pressures 'which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.'" (Marylandv. Shatzer, supra, 559 U.S. at p. 103.)
Although not conclusive, the subjective intent of the officer is also relevant in determining whether a custodial interrogation occurred. (People v. Tousant (2021) 64 Cal.App.5th 804, 822.) Here, the sheriff's department tasked Officer Perez with locating and taking Langston to sheriff's headquarters. Once located, rather than explaining the true purpose of the stop, Officer Perez told Langston he was stopped for a vehicle code violation. Officer Perez then placed Langston in handcuffs and informed him "that sheriff's investigators wanted to speak to him about an incident, and [that] he would be transported to the sheriff's department." Obviously, once Officer Perez placed Langston in handcuffs in his police vehicle, he was not free to leave until the sheriff's detectives were given the opportunity to ask him questions.
2. Express Purpose
The express purpose of this interview was to question Langston as a suspect. Prior to the interview, Anderson had worked with Deputy Perez to obtain a search warrant of Jessica B.'s apartment - the apartment where Langston resided and where the Nissan Altima was located. Per the search warrant affidavit, officers had probable cause to believe "[Langston] was probably involved in the robbery and murder of [Heriberto] and [Juan]" at the convenience store. Therefore, Anderson instructed Officer Perez and the rest of the VCAT team to pick up Langston for questioning. Although Anderson initially told Langston before questioning that "the reason you're here is your name came up in the investigation" and although "[y]ou're not under arrest ... your name did come up in this investigation" (italics added), Anderson's prior actions of assisting in the preparation of the search warrant and ordering Officer Perez and VCAT to locate Langston and place him in handcuffs makes it clear he intended to treat Langston as a suspect in the homicide investigation.
3. Location
The interview took place inside an interview room at the sheriff's department headquarters, which is the type of coercive environment at issue in Miranda. (Caro, supra, 7 Cal.5th at p. 491 [The question is" 'whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.' "].)
4. Whether the Police Informed Langston He was Under Arrest or Free to Leave
At the beginning of the interrogation, Anderson told Langston, "[T]he reason you're here is your name came up in the investigation ... [Y]ou're not under arrest but we needed to talk . . .. [¶] . . . [¶] . . . [Y]ou're free to leave at any time. You're not under arrest." This is the primary factor the People and the trial court relied upon in finding Langston was released from Miranda custody after being brought into the interview room. However, as we discuss below, irrespective of Anderson's initial statement informing Langston he was not under arrest and free to leave, the weight of the record clearly shows Langston was in custody when Officer Perez placed him in handcuffs and transported him in a patrol vehicle to the sheriff's headquarters and continued until he was formally arrested after his interrogation. Clearly, he was not free to leave. Langston's custodial status never changed throughout the course of the first interview.
At the outset, "[t]he mere recitation of the statement that the suspect is free to leave or terminate the interview ... does not render an interrogation non-custodial per se." (United States v. Craighead (9th Cir. 2008) 539 F.3d 1073, 1088.) "We must consider the delivery of these statements within the context of the scene as a whole." (Ibid.) This is because the Miranda test for custody "does not ask whether the suspect was told that he was free to leave; the test asks whether 'a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.'" (Ibid., italics in original.)
The trial court concluded that Anderson released Langston from custody when he "un-handcuffed" him and told him "you're free to go." Therefore, the trial court admitted all of Langston's prewarning statements, up until he told detectives he went to the store to "cash [his] check." The trial court concluded that "under the circumstances ... the statements were not as too far removed ... as to make them involuntary or to make the violation of Miranda and the interview proceeded." (Italics added.) However, even before Langston admitted to cashing the check, the detectives asked questions at the beginning of the interview that created a coercive environment, which necessitated the giving of Miranda warnings. The detectives had already asked Langston the following questions: "[A]re you on probation-parole right now?"; "[D]o you know of anyone who's been arrested on this case already?"; "[W]e arrested (Darnell Hammond). Are you familiar with a (Darnell Hammond)?"; "[T]he whole thing got caught on video."; "When was the last time you saw [Hammond]?"; "Two people were shot and killed. [¶] . . . [¶] . . . And you didn't know that, uh, (Darnell Hammond) was arrested for those homicides?"; "How [did] your name c[o]me up in this? [¶] . . . [¶] . . . Your phone number won't be on [Hammond's] cell phone or anything like that."; "When'd you get your last check from them?" Within six minutes of questioning, the detectives began questioning Langston regarding his culpability. Even though Anderson initially removed Langston's handcuffs and told him he was free to leave, any reasonable person in Langston's shoes would not have believed this to be the case.
Further, this stream of unrelenting accusations were constant throughout the entire interview - right up until Miranda advisements were provided. Langston's confessions to being involved in the robbery occurred approximately 25 minutes after questioning began. By this point, the detectives were asking a series of accusatory questions such as,
"Do I gotta explain something to you? [¶] ... [¶] ... It's called the felony murder r[ule] [¶] .. [¶] .. If I can prove that you drove that car you might as well pulled the trigger [Langston]. [¶] .. [¶] .. There's a reason why you're sweating man. [¶] . .[¶] ... The Saturn, you guys parked it right next to a damn camera.. [¶] . [¶] . Tell us how it went down. [¶] . [¶] . We've got you on film. We got the camera. We got you - the guys getting in your car. You're driving them away. [¶] . [¶] . Here - here's another thing [Langston]. We just wrote a search warrant on your house. [¶] . [¶] . And that car. One drop of blood - guess what [¶] . [¶] . because they pistol whipped those people. [¶] . [¶] . One tin[y] drop of blood [¶] . [¶] . we find in your car. [¶] . [¶] . You're done."
Langston initially denied all these accusations, by stating: "I wasn't the driver man, I wasn't in that picture. That was - them person - whoever he was with - that - that's don't have nothing to do with me." Coleman told him, "[T]he only way that you can be a witness and not a suspect [] [i]s if you tell the truth."
Based on the evidence outlined above, Langston was, objectively, a prime suspect when he was picked up by Officer Perez and later interviewed by Anderson. The trial court ruled that Miranda warnings should have been given when Langston admitted he cashed his payroll check before the robbery. Anderson was aware of this fact shortly after the robbery and it is apparently why the investigation focused on Langston, since codefendant Hammond was already in custody. Given the nature of the questioning, an objective person in Langston's position would not have felt free to leave.
We find People v. Saldana (2018) 19 Cal.App.5th 432 (Saldana) instructive. In Saldana, the defendant was a 58-year-old Mexican immigrant with no notable criminal history whom two girls had accused him of molesting them. (Id. at p. 436.) The police requested he come into the station for questioning, where the defendant was not given Miranda advisements but was told he was not under arrest" 'right now'" and was free to leave. (Id. at pp. 436-437.) The police questioned the defendant for about 40 minutes, used several interrogation techniques including manifesting a belief the defendant was guilty and indicating that all denials would fail. (Id. at p. 437.) The defendant made inculpatory admissions and was arrested a few minutes after the interview concluded, about a block from the station. (Id. at p. 461.)
The Saldana court explained, "Where ... police indicate to the defendant their resolute belief he committed the crime, the custody inquiry becomes whether a reasonable person in the defendant's situation - i.e., having been told by the police that they know he committed the crime - would think he was free to break off the interview and leave," noting "[c]ourts have concluded that, under the circumstances of the particular case, advising the suspect that he was not under arrest and was free to leave was insufficient to support a conclusion that he was not in custody for purposes of Miranda. (See, e.g., U.S. v. Hashime (4th Cir. 2013) 734 F.3d 278, 285 [telling the individual being interrogated he is free to leave' "is not 'talismanic' or sufficient in and of itself to show a lack of custody" ']; U.S. v. Cavazos (5th Cir. 2012) 668 F.3d 190, 195 [] [same].)" (Saldana, supra, 19 Cal.App.5th at p. 458.)
Similar to Saldana, "in light of the detective's repeated rejection of [Langston's] denials, a reasonable person in [Langston's] position eventually would have realized that telling the 'truth' meant admitting the detective's information was correct - and that until this 'truth' came out, the person could not leave." (Saldana, supra, 19 Cal.App.5th at p. 458; see also U.S. v. Cavazos, supra, 668 F.3d at pp. 194-195 [" 'The awareness of the person being questioned by an officer that ... the police have ample cause to arrest him, may well lead him to conclude, as a reasonable person, that he is not free to leave, and that he has been significantly deprived of his freedom.'" (Italics omitted.)].)
5. Physical Restraints, Duration, Number of Officers
Langston's handcuffs were removed before the interrogation began and only Anderson and Coleman interrogated him. These are the two primary factors in support of a finding that Langston was not in custody. With that being said, Langston was situated in the far corner of the interview room and would have had to walk past both Anderson and Coleman, who were sitting to the side of him, in order to exit the room. Also, both doors were closed - one being blocked by a chair and the other was on the other side of the room. Further, the video recording shows both Anderson and Coleman armed during the interview. (People's exhibit No. 3.) Therefore, in considering both the lack of restraint and number of officers present, facts still exist to establish Langston was in custody.
6. Nature of the Interrogation
"The remaining factors involve the nature of the interrogation: Whether police (1) dominated and controlled the interrogation; (2) manifested a belief [Langston] was culpable and they had evidence to prove it; (3) were aggressive, confrontational, and accusatory; (4) used interrogation techniques to pressure [Langston]; and (5) arrested him at the end of the interrogation." (Saldana, supra, 19 Cal.App.5th at p. 459, referring to Aguilera, supra, 51 Cal.App.4th at p. 1162.)
" 'Accusatory questioning is more likely to communicate to a reasonable person in the position of the suspect, that he is not free to leave' than would general and neutral investigative questions. Thus, on the issue of custody, courts consider highly significant whether the questioning was brief, polite, and courteous or lengthy, aggressive, confrontational, threatening, intimidating, and accusatory." (Aguilera, supra, 51 Cal.App.4th at p. 1164, italics added.)
Here, Langston's interrogation was persistent, confrontational, and accusatory. The detectives did more than just confront Langston with adverse evidence, but rather Anderson repeatedly confronted Langston with assertions of guilt, despite Langston's repeated denials. The detectives kept insisting Langston was not telling the truth: "And the only - the only way that you can be a witness and not a suspect. Is if you tell the truth." "Let's get back to 100% truth. Okay." "We wanna believe you [Langston]." "If you don't tell us the truth now [¶] . . . [¶] . . . We won't believe you." "We want you to be 100% truthful." "[Langston], can we get to the 100% truth right now." "I wanna know -I wanna know if you're telling me the truth about (Floyd) is what I wanna know." "The - the more we keep going - the more you start being. [¶] ... [¶] ... More truthful." "Yeah, but, you know, you wanna be a 100% truthful; you - you just say A to Z right away. Right." "And as we progress and we start getting a little more of the truth out - out of [you] - then we find out about (Goo) and (Tiny). But at first you didn't know who they were, remember?" "It's not - I don't wanna - I much rather like I told you - my partner. I don't do it. It's you wanna tell the truth." "In court you'll be six months from now - a year from now - your attorney's gonna be like why didn't you just tell 'em the truth." "And that's why I'm trying to find out if your gonna tell me the truth." (See United States v. Beraun-Panez (9th Cir. 1987) 812 F.2d 578, 579 [finding custodial interrogation, in part because the officers demanded to know why the defendant was lying and said they knew the truth].) An objective person in Langston's position would clearly not feel free to leave, given the nature of this interrogation.
Again, similar to Saldana, "Detective [Anderson's] insistence that [Langston] was guilty, his disbelief of [Langston's] many denials, and his use of classic interrogation techniques reflects the sort of police-dominated atmosphere that Miranda warnings were intended to counteract." (Saldana, supra, 19 Cal.App.5th at p. 460, citing to In re Elias V. (2015) 237 Cal.App.4th 568, 579-581.) "Detective [Anderson] subjected [Langston] to a classic two-pronged interrogation. First, involving tactics that suggested [Langston] should confess because no other course of action is plausible, such as confronting him with real or invented evidence, identifying contractions in his account, and refusing to credit his denials. And second, tactics suggesting [Langston] will in some way feel better or benefit if he confesses, such as appealing to less morally culpable reasons for committing the offense." (Saldana, at p. 460.)
As Saldana correctly points out, "These tactics are not unusual, nor are they unreasonable. In fact, if [Langston] had been properly Mirandized and made the same confession, it might be called good police work. But such an interrogation is associated with 'the full-blown interrogation of an arrestee, and except for a Miranda advisement, we cannot conceive how [Langston's] interrogation might have differed had he been under arrest." (Saldana, supra, 19 Cal.App.5th at p. 460.)
Lastly, "[a]lthough Detective [Anderson] maintained a professional demeanor throughout - a pleasant and conversational tone of voice does not negate the inherently coercive nature of this interrogation in the absence of Miranda warnings." (Saldana, supra, 19 Cal.App.5th at p. 460, citing to People v. Lopez (1985) 163 Cal.App.3d 602, 608, fn. 4 ["Accusatory questioning is more likely to communicate to a reasonable person in the position of the suspect [] that he is not free to leave."].)
7. Arrest
Langston was eventually provided his Miranda rights and placed under arrest - approximately two hours after the interrogation began. His eventual arrest, coupled with the detectives' knowledge of his involvement before his questioning and the nature of the questioning, supports an objective finding he was in custody during the entire questioning process. (See Oregon v. Mathiason (1977) 429 U.S. 492, 495 [finding significance in concluding a noncustodial setting when the suspect was able to "leave the police station without hinderance"]; California v. Beheler (1983) 463 U.S. 1121 [same].)
8. Custody Determination
Taking into consideration all the Aguilera factors, we hold that Langston was placed in custody when Officer Perez placed him in handcuffs and transported him to the sheriff's department headquarters in a patrol vehicle. His custody status never changed, even after his handcuffs were removed and told he was free to leave. Based on the evidence presented, the totality of the circumstances of his detention and questioning, an objectively reasonable person in his situation would not have felt free to leave. Therefore, Langston was in custody during the entire interrogation and thus, his entire prewarning statements were inadmissible.
Nonetheless, the People cite to People v. Delgado (2018) 27 Cal.App.5th 1092 (Delgado) and People v. Holloway (2004) 33 Cal.4th 96 (Holloway) in support of their position that Langston was not in custody for purposes of Miranda. However, both Delgado and Holloway are distinguishable from this case.
In Delgado, a 16-year-old defendant was arrested "under the mistaken belief there was an outstanding warrant for his arrest." (Delgado, supra, 27 Cal.App.5th at p. 1096.) "They took him in handcuffs to the station, seized his belongings including his cell phone, and left him shackled in an interrogation room for nearly an hour and half. They did not tell the second team they had arrested and shackled him. They did not Mirandize him." (Ibid.) "When the first detective in the second team found [the] defendant, he immediately unshackled him, told him he was not under arrest and was free to leave, and a ride would be arranged for him. [The] [d]efendant answered some questions, but made no inculpatory statements." (Ibid.) However, after the "defendant was left in that room again, a second detective from the second team came in and immediately demanded that [the] defendant unlock his cell phone so its contents could be retrieved" and the detective "then questioned [the] defendant at length" resulting in the defendant admitting to shooting the victims. (Id. at pp. 1096-1097.) The court concluded the initial detective "effectively freed him[,] ... [but] [g]iven the entire course of events, no reasonable person, whether adult or juvenile, would have felt free to leave at that time." (Id. at p. 1105.)
Additionally, in Holloway, the facts were as follows:
"[The] defendant was scheduled ... for drug and alcohol testing [at the parole office]. When [the] defendant arrived about 6:00 p.m., [the parole agent] handcuffed him to avoid any possible violence, then telephoned the detectives [¶] [who] told [the parole agent] they wanted to talk to [the] defendant and would leave their office for the parole office immediately.... [¶] Arriving at the parole office, the detectives were surprised to find [the] defendant in handcuffs ... [the detective] himself uncuffed [the] defendant, announcing there had been a mistake: they were there only to talk [to] the defendant, not to arrest him. [¶] ... [¶] The undisputed facts are that the detectives did not themselves arrest or physically restrain [the] defendant, that they requested he come to the station for an interview but did not demand that he accompany them, and that at the interview's outset they confirmed with him that he was being interviewed voluntarily and told him he was not under arrest or the focus of their suspicion ... [the] defendant was told he could have his friend drive him to the station if he liked and that he was promised, and given, a ride home after the interview." (Holloway, supra, 33 Cal.4th at pp. 118-120.)
The court "disagree[d] that a reasonable person in [the] defendant's circumstances ... would believe, once he had been uncuffed and the detectives had made their request for a station house interview, he was not free to go his own way. If the detectives intended to keep him in custody until he answered their questions satisfactorily, a reasonable person would assume, they would have left him handcuffed and demanded he ride to the station in their car." (Holloway, supra, 33 Cal.4th at p. 121.) Further, "[n]or was the advisement that [the] defendant was not 'per se' a focus of suspicion, that police hoped to rule him out, and that he would be told if he became a suspect, calculated to make a reasonable person think he was not free to leave." (Ibid.)
Although Langston was uncuffed and told he was free to leave, his circumstances were much different than the defendants in both Delgado and Holloway. In both Delgado and Holloway, the defendants, once unshackled or uncuffed, were told they were free to leave and that a ride home was promised after the interrogations concluded. (Delgado, supra, 27 Cal.App.5th at p. 1096; Holloway, supra, 33 Cal.4th at p. 120.) Initially, this gave both suspects the reasonable belief the interrogation would eventually end with them going home - thereby minimizing the coercive effect of their interrogations. This is much different than this case because Langston was eventually arrested and never told his interrogation would end with him going home. Accordingly, Langston was in custody for purposes of Miranda.
II. Alleged Seibert Error
Langston further contends that pursuant to Seibert, "[t]he entirety of [the] first interview should have been excluded" because "[t]his sort of deliberate use of a two-step interrogation technique - taking an unwarned statement, giving Miranda warnings, then having the suspect repeat the statements already made - makes both the unwarned and warned statements inadmissible." We agree and conclude the trial court erred by admitting the postwarning portion of the first interview.
A. Forfeiture
At the outset, the People contend Langston "failed to press the trial court for a ruling on Seibert, thereby forfeiting the argument on appeal." We disagree because the Seibert claim "relies on the same facts and legal standards the trial court itself was asked to apply" as to Langston's Miranda arguments. (People v. Ervine (2009) 47 Cal.4th 745, 783, disapproved of on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1189.)
B. Applicable Law
In midstream Miranda cases (where a defendant is interviewed before and after the giving of Miranda warnings), a defendant's postwarning inculpatory statements are generally admissible if the prewarning statements and the postwarning statements were voluntarily made. (Oregon v. Elstad (1985) 470 U.S. 298, 318 (Elstad).) But where law enforcement uses a two-step interrogation technique "in a calculated way to undermine the Miranda warning," curative measures must be taken to ensure that a reasonable person would understand the Miranda advisement and the significance of waiving Miranda rights. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).)
Elstad held a suspect who responds "to unwarned yet uncoercive questioning" may later waive his rights and confess after being "given the requisite Miranda warnings." (Elstad, supra, 470 U.S. at p. 318.) If the suspect's unwarned statement was voluntary, the "relevant inquiry is whether, in fact, the second statement was also voluntarily made." (Ibid.) "As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative." (Ibid.) Elstad did not, however, "condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect's will to invoke his rights once they are read to him." (Id. at p. 317.)
"When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession." (Elstad, supra, 470 U.S. at p. 310.)
In Seibert, an officer "testified that he made a 'conscious decision' to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question 'until I get the answer that she's already provided once.'" (Seibert, supra, 542 U.S. at pp. 605-606.) Employing this "question-first practice" (id. at p. 611), the interrogating officer left the defendant alone in an interview room at the police station for 15 to 20 minutes, then "questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating" a suggestive, accusatory remark. (Id. at pp. 604-605.) After the defendant confessed and was given a 20-minute break, the officer read her the Miranda warnings, resumed the questioning by mentioning their previous conversation, "and confronted her with her prewarning statements." (Id. at p. 605.)
A divided Supreme Court held the defendant's postwarning statements were also inadmissible. (Seibert, supra, 542 U.S. at pp. 617, 622.) Justice Souter's plurality opinion focused on whether "it would be reasonable to find that in these circumstances the warnings could function 'effectively' as Miranda requires" (id. at pp. 611-612 (plur. opn. of Souter, J.)), noting the giving of midstream Miranda warnings "without expressly excepting the statement just given, could lead to an entirely reasonable inference that what [the accused] has just said will be used, with subsequent silence being of no avail." (Id. at p. 613 (plur. opn.).) The plurality set forth several objective circumstances that bear on this determination, including "the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." (Id. at p. 615 (plur. opn.).)
Justice Kennedy's concurring opinion expressed his view that the plurality's test, which "envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations," was too broad. (Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy, J.).) Justice Kennedy noted that in Elstad, "the postwarning statements could be introduced against the accused because 'neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression' given the facts of that case." (Id. at pp. 619-620 (conc. opn. of Kennedy, J.).) With these goals in mind, Justice Kennedy observed that a deliberate two-step technique intended to violate Miranda did "not serve any legitimate objectives" and presented inherent temptations for police abuse, such as the use of a defendant's prewarning statement to obtain an incriminating postwarning statement. (Id. at pp. 620-621 (conc. opn. of Kennedy, J.).) Justice Kennedy concluded: "I would apply a narrower test applicable only in the infrequent case ... in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." (Id. at p. 622. (conc. opn. of Kennedy, J.).) "If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. [Citations.] Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient." (Ibid.)
"Justice Kennedy did not articulate how a court should determine whether an interrogator used a deliberate two-step strategy." (U.S. v. Williams (9th Cir. 2006) 435 F.3d 1148, 1158 (Williams), fn. omitted.) In Williams's view, "courts should consider whether objective evidence and any available subjective evidence, such as an officer's testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning." (Ibid., fn. omitted.) "Such objective evidence would include the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre-postwarning statements." (Id. at p. 1159.) The prosecution bears the burden of proof and must show by a preponderance of the evidence the statements were, in fact, voluntary. (People v. Krebs (2019) 8 Cal.5th 265, 299 (Krebs).) As of today, it is unclear whether the plurality approach or Justice Kennedy's concurring opinion controls. (Id. at p. 309 [California Supreme Court declined to resolve whether Kennedy's concurrence or the plurality approach controls].)
C. Analysis
Here, although the trial court excluded a small portion of the first interview where Langston made prewarning inculpatory statements, it admitted, in full, Langston's postwarning inculpatory statements. Therefore, we must determine whether the detectives utilized a two-step interrogation technique "in a calculated way to undermine the Miranda warning." (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) As we discuss in detail below, we conclude the trial court erred by admitting Langston's postwarning statements under Miranda and Seibert and conclude the entire post-Miranda first interview was inadmissible.
We previously held the prewarning portion of the first interview was inadmissible based on Langston's custody status.
We find People v. Sumagang (2021) 69 Cal.App.5th 712 (Sumagang) instructive. In Sumagang, the detective told the defendant" 'if at any time you don't feel like talking, or you wanna leave, just let me know ... and we'll end our little discussion ... [I]f you wanna leave, you know, we'll take you back if you don't feel comfortable talkin' to me. That's fine. That's up to you. So this is totally voluntary. You understand?'" (Id. at p. 723.) "The prewarning part of the interview lasted 25 minutes, followed by a two-minute break. Upon returning from the break, [the] [d]etective [] administered Miranda warnings and continued the interview for another 45 minutes." (Id. at p. 724.) The detective asked the defendant "about many of the same topics they had covered in the prewarning part of the interview." (Ibid.)
During the evidentiary hearing, "the [trial] court ruled [the statement] admissible in the prosecution's case in chief' because" 'it appear[ed] that [the] [d]etective didn't understand even that he needed to give the Miranda rights initially'" and the court did not think the detective" 'was intentionally trying to do anything like that[.]'" (Sumagang, supra, 69 Cal.App.5th at p. 724.) Therefore, the court found no deliberate violation of Miranda and Seibert. (Id. at p. 725.)
The Sumagang court disagreed and found the record does not contain substantial evidence to conclude "the detective 'did not deliberately withhold the requisite warnings as part of a calculated strategy to foil Miranda.'" (Sumagang, supra, 69 Cal.App.5th at p. 728, quoting U.S. v. Guillen (10th Cir. 2021) 995 F.3d 1095, 1121 (Guillen).) First, the detective" 'relied on the defendant's prewarning statement to obtain the postwarning statement' in a fashion that 'resembled a cross-examination.'" (Sumagang, at pp. 728, quoting Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy, J.).) Second, "the police did not use any of the 'curative measures' suggested by Justice Kennedy's concurrence." (Sumagang, at p. 729, quoting Seibert, at p. 622 (conc. opn. of Kennedy, J.).) "There was no substantial break in time or circumstances between the two parts of the interrogation, nor any other circumstance that would have 'allow[ed] the accused to distinguish the two contexts and appreciate that the interrogation ha[d] taken a new turn.'" (Sumagang, at p. 729, quoting Seibert, at p. 622 (conc. opn. of Kennedy, J.).)
Further, when considering the objective factors set forth in Seibert's plurality opinion, the court concluded these factors weighed in favor of exclusion. (Sumagang, supra, 69 Cal.App.5th at pp. 729-730.) "The prewarning statement ... provided detailed evidence about the nature of the offense." (Id. at p. 729.) "The second factor - the overlapping content of the two statements - also weigh[ed] in favor of exclusion." (Id. at p. 730.) Lastly, "the timing and setting of the first and the second parts, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first" because "[t]he setting consisted of the same room for both parts of the interview, the same interrogator conducted both parts, and the postwarning questioning started two minutes after the prewarning portion of what amounted to a continuous interaction between the detective and the suspect." (Ibid.)
Here, although the trial court found a partial violation of Miranda, "[t]he Court d[id] not see this as a manipulation by law enforcement, that they were trying to continue to get information out of [Langston], such as to make it ... involuntary" because "defendant ... is no stranger to law enforcement or to being arrested ... and at least some point an admitted gang member." Although there was no express admission by Anderson that he intended to employ a question-first tactic, his pre-interview background knowledge of the facts of the robbery, the cars involved, Langston's presence at the scene just before the robbery, his demeanor and questions asked, and the circumstances of the investigation abundantly demonstrate a deliberate strategy. In his concurrence, Justice Kennedy sought to limit application of the plurality's multi-factor test to those "infrequent" cases "in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." (Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy, J.).) Establishing the use of a deliberate two-step interrogation calculated to frustrate the Miranda rule does not demand an admission by law enforcement, and Justice Kennedy's concurrence did not say otherwise. When the circumstances show a deliberate two-step strategy was employed, the intent of the interviewing officers can be inferred. (See generally People v. Nguyen (2015) 61 Cal.4th 1015, 1055 [Evidence of a state of mind "is almost inevitably circumstantial" and thus, it can be inferred from all the facts and circumstances disclosed by the evidence].) The question for this court is to determine whether the People proved by a preponderance of the evidence that Anderson "did not deliberately withhold the requisite warnings as part of a calculated strategy to foil Miranda." (Guillen, supra, 995 F.3d at p. 1121.)
The circumstances in this case establish the use of a deliberate and calculated strategy to question first and warn later. When Anderson began interviewing Langston, he already knew most of the details about the homicides and had already connected the getaway vehicles (Saturn and Nissan) to Langston. Prior to interviewing Langston, Anderson and Deputy Perez had worked closely together to author a search warrant for Langston's DNA and the apartment where he resided. On October 19, 2016, at 7:02 p.m., the search warrant was signed off by a judge just before the start of Langston's first interview. Further, based on surveillance videos within the convenience store, they were already aware Langston had cashed a check immediately before the murders. Prior to the interview, Anderson ordered Officer Perez and the VCAT team to scour the Bakersfield area to find Langston. Langston was then located, picked up, placed in handcuffs, and transported to the sheriff's department for questioning. Although Anderson testified he initially did not read Langston his Miranda rights because "[h]e wasn't under arrest" and that Langston was not a suspect or witness at the point he began to interview him, this testimony is difficult to reconcile with all the evidence Anderson possessed linking Langston to the homicides. Accordingly, we conclude the evidence supports a finding that Anderson went into this interview with the intention to question Langston as a suspect in the homicide investigation.
If Langston truly was not a "suspect" right from the beginning, we find it hard to imagine the need for Langston to be transported in handcuffs in a patrol vehicle.
Moreover, similar to the officer in Seibert, Anderson "relied on [] defendant's prewarning statement to obtain the postwarning statement" in a fashion that "resembled a cross-examination." (Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy, J.).) During the postwarning section of the interrogation, Anderson told Langston, "One thing - I know that you know the people that you gave a ride that day, you know them. And you're not telling the truth about that. So. [¶] . . . [¶] . . . I know I don't believe you on this. You don't grow up in the country and not know this guy." Specifically, Anderson referenced "Baby Goo" - an individual Langston mentioned during his prewarning statement. Further, Anderson referenced Langston's prewarning admission as the getaway driver when he stated, "When you - when you, here's the thing. When you're a getaway driver that's what you can be charged with. With murder." As Justice Kennedy observed, "Reference to the prewarning statement was an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating." (Ibid., conc. opn. of Kennedy, J.); compare with Krebs, supra, 8 Cal.5th at p. 311 [police did not use the defendant's prewarning statement to induce him to talk after warning him].)
Further, no "[c]urative measures" were utilized by the detectives. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) There was no substantial break in time or circumstances between the two parts of the interrogation, nor any other circumstance that would have "allow[ed] the accused to distinguish the two contexts and appreciate that the interrogation ha[d] taken a new turn." (Ibid. (conc. opn. of Kennedy, J.).) "Apart from the Miranda warnings, Detective [Anderson] gave no other admonishments at the start of the postwarning interview, and Detective [Anderson] said nothing that would have informed [Langston] his prior statement still could not be used against him even if he chose to remain silent at that point." (Sumagang, supra, 69 Cal.App.5th at p. 729.) In fact, after Anderson returned from a 30-minute break, he continued to question Langston for another eight minutes before immediately proceeding to the Miranda warnings. Therefore, the fact "[n]o curative steps were taken," weighs in favor of exclusion (Seibert, at p. 622 (conc. opn. of Kennedy, J.)), and we note that Justice Kennedy referenced the use of a two-step interrogation, as we have here, served no legitimate purpose.
Additionally, weighing the objective factors as set out in Seibert's plurality guides our analysis. The first factors - the completeness and detail of the questions and answers in the prewarning interview - weighs in favor of exclusion. During the prewarning interrogation, Langston admitted to giving his coparticipants a ride in the car; admitted to cashing the check at the convenience store; and identified two of the coparticipants as "Baby Goo" and "Tiny," and mentioned he knew the codefendant Hammond. The prewarning statement thereby provided detailed evidence about the nature of the offense.
The second factor - the overlapping content of the two statements - also weighs in favor of exclusion. As noted above, similar to the statement in the prewarning portion of the interrogation, Langston admitted to being the getaway driver and cashing the check prior to the robbery.
Finally, the timing and setting of the first and the second parts, the continuity of police personnel, and the degree to which the interrogator's questions treated the second as continuous with the first further weighs in favor of exclusion. Anderson and Coleman left Langston in the interview room for 30 minutes and after returning, Anderson, without providing Miranda warnings, continued to ask and inquire about the offenses. Specifically, Anderson asked Langston about the offenses for another eight minutes before providing Langston with his Miranda warnings without a break in the interrogation. As Seibert states, "The impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given." (Seibert, supra, 542 U.S. at p. 616 (plur. opn.).)
"Viewing these factors together with Detective [Anderson's] testimony, and considering the overall setting and context of the interrogation, we conclude the detective deliberately undermined Miranda by employing the two-step interrogation tactic ... [because] [a] reasonable person in [defendant's] position at the start of the postwarning interview would not have thought he had 'a real choice about giving an admissible statement at that juncture' or that he could 'choose to stop talking even if he had talked earlier.'" (Sumagang, supra, 69 Cal.App.5th at p. 730 quoting Seibert, supra, 542 U.S. at pp. 611-612 (plur. opn.).) There was no "practical justification ... for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment." (Seibert, supra, at p. 612 (plur. opn.).) Accordingly, we conclude the two-stage interrogation violated both the standards set forth in Justice Kennedy's concurrence in Seibert, as well as Seibert's plurality opinion's approach.
III. Prejudice
" 'The beyond-a-reasonable-doubt standard of Chapman "require[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." [Citation.] "To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." [Citation.] Thus, the focus is on what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is "whether the ... verdict actually rendered in this trial was surely unattributable to the error." '" (People v. Pearson (2013) 56 Cal.4th 393, 463.)
With respect to an erroneous admission of a confession, the Chapman standard is difficult to satisfy." '[T]he defendant's own confession is probably the most probative and damaging evidence that can be admitted against him ... [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.'" (Arizona v. Fulminante (1991) 499 U.S. 279, 296.)
Here, as the People point out, independent evidence exits to establish Langston's culpability in the robbery. Specifically, video surveillance showed Langston entering the convenience store 15 minutes before the robbery and cashing a check. This check was later found and seized by law enforcement at the convenience store. Further, Langston during the second interview admitted to driving the group to the store and then switching from the tan Saturn to the black Nissan after the robbery.
With that being said, the Chapman standard requires this court to have found that the jury's"' "verdict actually rendered in this trial was surely unattributable to the error." '" (People v. Pearson, supra, 56 Cal.4th at p. 463, italics added.) We are unable to find this error harmless beyond a reasonable doubt. First, as both parties point out, Langston's two interviews contained glaring inconsistencies, which were highlighted by the prosecutor during his closing argument. (People v. Glukhoy (2022) 77 Cal.App.5th 576, 605 ["The prosecutor's argument is nevertheless a pertinent circumstance that should be considered in determining whether an error is harmless."].) Specifically, the prosecutor stated during closing argument:
"You've got to ask the question then because [Langston] told two different stories, is he a credible witness? Is his story credible? . . . [¶] . . . [¶] It brings me back to the same point I brought up with [] Hammond, who was questioned twice about what happened that day and told two very different versions of what happened. The very core of this story, Story 1 to Story 2, was significantly changed. It was completely different. If you're being honest, your story is not going to change that much from one day to the next.
The prosecutor's focus on the inconsistencies between the first and second interviews made it likely the error tainted the jury's decision. The jury was instructed that if "defendant[] made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt." (Italics added.) Again," 'the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him.'" (Arizona v. Fulminante, supra, 499 U.S. at p. 296.) Therefore, applying Chapman, it is reasonably likely the jury relied at least in part on Langston's statements during the first interview in finding him guilty of both the robberies and the murders. Accordingly, we must reverse the judgment of conviction.
IV. Other Claims
Langston raised several other claims in this appeal. He contends there is insufficient evidence to establish Langston acted as a major participant and with reckless indifference to human life, as defined by our Supreme Court in Banks / Clark, during the robbery. Langston further contends he is entitled to the retroactive benefit of recently enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.), which amended the language of section 186.22 and added section 1109, requiring bifurcation of the trial of gang enhancements and substantive gang enhancements form that of the underlying offenses upon a defendant's request, and that the trial court erred by imposing and staying the 10- year gang enhancement because he did not personally use a firearm. Finally, Langston contends the parole revocation fine imposed and suspended pursuant to section 1202.45 must be stricken and the abstract of judgment must be modified to clarify the direct victim restitution order is joint and several. Because we are reversing the entirety of the judgment, we do not reach these additional claims.
People v. Banks (2015) 61 Cal.4th 788; People v. Clark (2016) 63 Cal.4th 522.
DISPOSITION
The judgment is reversed.
WE CONCUR: DETJEN, ACTING P. J., SMITH, J.