Opinion
H050082
12-21-2023
THE PEOPLE, Plaintiff and Respondent, v. MADISON MENG MUONG, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1891966
LIE, J.Sentenced to life without parole after a jury found him guilty of multiple murders for financial gain, defendant Madison Meng Muong challenges the trial court's denial of his motion to suppress his statements to the police under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Muong argues that the Miranda warnings that he received were defective because the police did not advise him that his right to counsel included the right to "consult" with an attorney before questioning. We conclude that there was no defect in the warnings that would vitiate Muong's waiver of his Miranda rights, and that his statements were consequently admissible. We further conclude that Muong forfeited his claim that his waiver of Miranda rights was otherwise involuntary. Therefore, we affirm the judgment.
I. BACKGROUND
In October 2019, the Santa Clara County District Attorney charged Muong and Duong Jimmy Trung Luu with the murders (Pen. Code, § 187, subd. (a)) of Thao Luu and Lan Ly, and alleged that Muong personally discharged a firearm causing their deaths (Pen. Code, § 12022.53, subd. (d)). The district attorney further alleged as special circumstances that the murders were for financial gain (Pen. Code, § 190.2, subd. (a)(1)) and that the defendants committed multiple murders (Pen. Code, § 190.2, subd. (a)(3)).
At a December 2020, hearing on Miranda issues, Sergeant John Barg testified that in May 2020, he and his partner asked Muong if he would come to the San Jose Police Department for an interview. Police transported Muong, and Sergeant John Barg interviewed Muong at the station.
In the video recording of the interview, Muong confirmed that he had voluntarily come with police to the station, and Barg read Muong a Miranda advisement from what Barg testified was a department-issued card. Specifically, Barg told Muong: "You have the right to remain silent, you understand? . . . Anything you say may be used against you in court, you understand? . . . You have the right to the presence of an attorney before and during any questioning, do you understand? . . . If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want, do you understand that?" To each question, Muong answered, "Yes." Barg proceeded with the interview.
At the conclusion of the evidentiary hearing, Muong's counsel argued that Barg's omission of an express advisement of "a right to speak with an attorney, consult with an attorney before any questioning begins," rendered the interview involuntary and unlawful. Counsel also argued that there was "serious concern as to whether . . . what Mr. Muong is saying is accurate, or . . . was information that was provided to him by the sergeant and his detective partner," and Muong was merely "saying it because of what the detective and sergeant were saying to him." The trial court rejected both arguments and deemed the interview admissible.
In March 2021, at another hearing on the adequacy of the Miranda warnings, a different judge considered the video recording of the interview and heard Barg testify anew. Muong's attorney again argued that the statements made by Muong should not be admitted because Barg did not advise Muong that he had the right to consult with an attorney before questioning. Ultimately, the court found no Miranda violation and denied Muong's motion to suppress his statements from the interview with Barg.
It is not apparent from the record why there was a second hearing.
A jury found Muong guilty of both counts of first degree murder and found true all special circumstances and enhancements. The trial court sentenced Muong to life imprisonment without parole. Muong timely appealed.
II. DISCUSSION
A. Standard of Review and Legal Principles
In the seminal Miranda case, the United States Supreme Court gave "concrete constitutional guidelines for law enforcement agencies and courts to follow" when "applying the privilege against self-incrimination to in-custody interrogation." (Miranda, supra, 384 U.S. at pp. 441-442.) "Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as "Miranda rights") are: a suspect 'has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.'" (Dickerson v. United States (2000) 530 U.S. 428, 435.)
"[F]ailure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver." (Missouri v. Seibert (2004) 542 U.S. 600, 608-609, fn. omitted.)
" 'A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision.' [Citation.] 'A suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights.'" (People v. Flores (2020) 9 Cal.5th 371, 417.)
"In reviewing the trial court's denial of a suppression motion on Miranda and involuntariness grounds, '" 'we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.'"' [Citations.] Where, as was the case here, an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review." (People v. Duff (2014) 58 Cal.4th 527, 551.)
B. Adequacy of the Miranda Warnings
Muong argues that the trial court erred in failing to suppress his statement to the police because the police never told him that he had the right to "consult" with an attorney prior to questioning, only that he had the right to the "presence" of an attorney before (and during) questioning. The advisement given by Barg to Muong, however, did not deviate in any material way from that specifically required by Miranda: a defendant "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." (Miranda, supra, 384 U.S. at p. 479, italics added.)
Under Miranda, "the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires." (Miranda, supra, 384 U.S. at p. 470.) In other words, the Miranda Court asserted that "an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation." (Id. at p. 471.) But "Miranda itself indicated that no talismanic incantation was required to satisfy its strictures." (California v. Prysock (1981) 453 U.S. 355, 359.) What is required is that the admonitions "contain each of the mandatory warnings, either as the high court set them out in Miranda itself or by some"' "fully effective equivalent." '" (People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 17.) Muong received the Miranda warnings in the form included on the police department-issued card, matching those required by Miranda, and given before the start of questioning. No more was necessary.
Although the Miranda court in explaining its adoption of its prophylactic rule used the words "consult" as well as "presence," we do not read this explanatory usage as requiring an advisement as to both. The high court observed no distinction between the two in its holding, prescribing advisement of the right to the "presence" of an attorney before and during questioning, rather than the right to "consult" counsel. We take the Miranda rule on its plain terms and note that advisement of the right to the presence of counsel has the benefit of making clear that a defendant has a right to have the attorney physically at hand before and during the interrogation, not merely accessible for consultation by phone or less immediate means. The Supreme Court having discerned no need to separately specify in the warnings an independent right to "consult" the attorney present, Muong does not explain how we may now append such a requirement as a matter of law.
Since its decision in Miranda, the Supreme Court has further clarified that "[i]n determining whether police officers adequately conveyed the four [Miranda] warnings, . . . reviewing courts are not required to examine the words employed 'as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably "conve[y] to [a suspect] his rights as required by Miranda." '" (Florida v. Powell (2010) 559 U.S. 50, 60 (Powell).) In Powell, the Supreme Court noted the warnings used by the Federal Bureau of Investigation, calling them exemplary:" 'You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.'" (Id. at p. 64.) The Court stated, however, that it "decline[d] to declare its precise formulation necessary to meet Miranda's requirements" and that different words were sufficient when "they communicated the same essential message." (Ibid.)
The Ninth Circuit has also concluded that the Miranda warnings need not exactly mirror the language used in Miranda, relying instead on a "reasonable reading" of the warnings given. United States v. Loucious concerned warnings arguably less compliant with Miranda than those at issue here: the defendant "received warnings informing him he had the right to remain silent; he had the right to the presence of an attorney during questioning; and that if he could not afford an attorney, an attorney would be appointed before questioning." (United States v. Loucious (9th Cir. 2017) 847 F.3d 1146, 1147.) Unlike the advisement Barg administered to Muong, the defendant in Loucious was not explicitly advised that his "right to the presence of an attorney" applied before as well as during questioning. Like Muong, the defendant argued that "the Miranda warnings he received were constitutionally deficient because they did not tell him of his right to consult with an attorney before questioning." (Ibid.) The court concluded, "A more reasonable reading of the warnings [the defendant] received-that should he not be able to afford an attorney one would be appointed before questioning and that he had the right to the presence of an attorney during questioning-taken together conveyed that [the defendant] could consult with that attorney before questioning. It makes no sense to think that a suspect who is appointed counsel before questioning would not be permitted to consult with that attorney before questioning began. Instead, the warnings reasonably conveyed the inference that [the defendant] could consult with an attorney prior to and during questioning." (Id. at p. 1151; see also People v. Wash (1993) 6 Cal.4th 215, 236 (Wash) [finding sufficient the following language:" '[Y]ou have the right to remain silent, anything you say can and will be used against you in a court of law, you have the right to have an attorney present before any questioning if you wish one, if you cannot- if you cannot afford . . . an attorney one will be provided to you at no cost before any questioning begins. Now do you understand those rights?'" (Italics added.)].)
We discern no material difference between the warnings found constitutionally sound in Loucious and those given to Muong. A reasonable reading of the warnings given to Muong is that he had a right, both before and during questioning, to an attorney with whom he could consult. Muong contends that a reasonable interpretation of the right to the presence of an attorney is that the attorney would be limited to a passive "observer to the proceedings." But Muong's gloss on the advisement does not account for the express right to counsel before as well as during questioning: before questioning, there would be no proceedings to merely observe. And Muong can point to no authority grounded in Miranda or its progeny that would compel suppression on his theory that a reasonable person would doubt whether the right to the presence of an attorney included the right to consult that attorney, despite the right to remain silent and terminate questioning at any time, for any reason, including the unavailability of counsel. We conclude the warning given to Muong "reasonably conveyed" his right to consult with an attorney prior to questioning. (See Wash, supra, 6 Cal.4th at p. 237 [stating that the court was satisfied that the warning given the defendant" 'reasonably conveyed'" his right to have an attorney present during questioning].)
C. Voluntariness of Muong's Waiver
The record reflects that Muong, having been duly advised of his Miranda rights, agreed to submit to questioning. But Muong disputes the voluntariness of his waiver, asserting that the trial court "completely ignored the fact that the prosecution fell far short of its burden and made no mention of [Muong's] 'age, experience, education, background, and intelligence, and into whether he had the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.'" Muong does not dispute the Attorney General's observation that the reason the trial court did not address these factors was that Muong failed to raise the issue below. Instead, Muong urges that we nonetheless can and should reach its merits, given its constitutional dimension and the gravity of the case and consequences.
We acknowledge the importance of the issue in this case. But "[t]he determination whether a waiver [of Miranda rights] is voluntary is one entrusted to the trial judge, based on the totality of the facts and circumstances, including the background, experience and conduct of the accused." (People v. Michaels (2002) 28 Cal.4th 486, 512 (Michaels).) Failure to raise an objection to the voluntariness of a Miranda waiver in the trial court precludes a defendant from raising it on appeal. (Ibid.; see also People v. Ray (1996) 13 Cal.4th 313, 339 [The failure to raise the claim in the trial court means that "the parties had no incentive to fully litigate this theory below, and the trial court had no opportunity to resolve material factual disputes and make necessary factual findings. Under such circumstances, a claim of involuntariness generally will not be addressed for the first time on appeal."].) This is true even where a defendant disputed in the trial court the adequacy of the advisement, "[b]ecause such an objection does not ordinarily lead to the presentation of evidence of defendant's background, experience, and conduct- evidence essential to determining whether a waiver was voluntary." (Michaels, supra, 28 Cal.4th at p. 512.) In the trial court, Muong disputed whether his waiver was effective, given the claimed inadequacy of the Miranda advisements; what he did not dispute was whether his waiver was voluntary and intelligent, given his personal characteristics.
Even on appeal, Muong articulates no theory by which his age, experience, background, and intelligence might have undermined the trial court's implicit determination that the evidence of waiver documented in the video recording and Barg's testimony was sufficient to meet the prosecution's burden. (See People v. Williams (1997) 16 Cal.4th 153, 215 [contentions" 'perfunctorily asserted without argument in support'" are not properly before appellate court].) We therefore do not reach this argument on appeal.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: GROVER, ACTING P.J., ADAMS, J. [*]
[*] Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.