Opinion
H043381
06-20-2017
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ANTHONY MCLAUGHLIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS130548)
I. INTRODUCTION
Defendant Raymond Anthony McLaughlin appeals after a jury convicted him of first degree murder. (Pen. Code, § 187, subd. (a).) The trial court sentenced defendant to a prison term of 25 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues: (1) he never personally withdrew his plea of not guilty by reason of insanity (NGI) and thus he is entitled to a sanity trial; (2) the trial court erred by failing to find there was a reasonable doubt as to his competency to stand trial; (3) the trial court erred by failing to suppress statements he made to the police during an interview that was conducted without Miranda warnings; and (4) the trial court erred by failing to suppress statements he made to the police during a subsequent interview, despite the fact that the statements had been preceded by Miranda warnings, because the police employed an improper two-step approach that violated Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). For reasons that we will explain, we will affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
II. BACKGROUND
Defendant was convicted of the 2002 murder of his former neighbor, Alejandro Lopez. The crime went unsolved for more than a decade, until defendant confessed to the murder in 2013.
A. Discovery of Lopez's Body
Liliana Rios was Lopez's older sister. On November 1, 2002, she went over to Lopez's residence on Hawthorne Street in Salinas. When Rios arrived, she noticed Lopez's car, but there was no response when she knocked on the door. Her boyfriend looked through a window, saw something on the floor, and told Rios to call 9-1-1. The police responded, entered the residence, and told her that Lopez was dead.
According to Rios, Lopez had been selling methamphetamine for a long time prior to his death.
B. Investigation
Salinas Police Detective Bryon Gansen was dispatched to Lopez's residence as a crime scene investigator. Lopez's body was in the living room, face down, with numerous stab wounds. Chairs in the kitchen were knocked over, indicating a struggle. A bag containing about an ounce of methamphetamine was on the floor near Lopez's body. A larger amount of methamphetamine was in the freezer, and a digital scale was found in the residence.
An autopsy revealed Lopez had stab wounds in his face, chest, abdomen, and back, as well as numerous defensive stab wounds in his arm and knees. The stab wounds had perforated his heart, bowel, and liver. Toxicology reports showed that Lopez had a "low level" of methamphetamine in his system.
Detectives were unable to determine who had committed the homicide, and the case became a "cold case." Defendant was not an initial suspect.
C. Defendant's Arrest
Probation Officer Kevin Christian contacted defendant on February 13, 2013. Another probation officer, Julie Kenyon, had asked Officer Christian to pick up defendant from a hospital in Monterey and bring him to the jail, because defendant was in violation of his probation.
Officer Christian contacted defendant in a hospital room and said he was bringing defendant to see his probation officer. Defendant said, "[O]kay." Officer Christian handcuffed defendant and took defendant to his vehicle. Officer Christian then took defendant to see Officer Kenyon. Officer Kenyon informed defendant that he was in violation of his probation for failing to report and that he was going to jail. Defendant was "okay" with that news.
Officer Christian next transported defendant to jail. During the five to ten minute drive, defendant told Officer Christian, "I murdered somebody." Defendant indicated the murder had taken place 10 years earlier on Hawthorne Street in Salinas. Defendant said that he had stabbed the victim and that "it had something to do with drugs." Defendant said that the victim was Anthony or Alex Lopez.
After defendant was booked, Officer Christian told a deputy at the jail that defendant had admitted to murdering someone 10 years earlier. Officer Christian also called defendant's probation officer.
D. Defendant's First Interview
After Detective Gansen learned about defendant's statement to Officer Christian, he and a partner interviewed defendant at the jail. No Miranda advisements were given during the interview.
Detective Gansen explained that he knew defendant "had somethin' to tell Probation" and that he was here to talk with defendant "about that." He asked, "So what do you have to say?" Defendant replied, "Um, I committed murder on, uh, in 2003."
Detective Gansen asked defendant, "[H]ow did that come about?" Defendant responded, "Um, me and my neighbor were having some problems." Defendant explained that he had met Lopez after Lopez moved into one of the apartments in the building. Lopez had given and sold methamphetamine to defendant.
According to defendant, the stabbing occurred at about 2:30 a.m., after defendant had come home from a bar, where he had been drinking beer. Defendant thought Lopez was "messin' with" defendant's girlfriend, so he got a seven- or eight-inch hunting knife from his car. Defendant knocked on Lopez's door. Lopez opened the door and got out some methamphetamine, apparently assuming defendant was there to buy drugs. Defendant asked if anyone else was in the house. After Lopez said no, defendant stabbed him repeatedly, including in the heart.
Defendant indicated he had waited until Lopez was dead. He then took a paper towel, wiped the doorknob, and left Lopez's apartment. Defendant then got into his vehicle, changed his clothes, and threw the knife and his bloody clothing into the ocean. He stayed in a motel in King City that night.
Asked for a further reason for the murder, defendant explained: "He, um, he moved in into the house in front of me and he was . . . wearin' this Cooper Tires shirt and, and, you know, keep getting' me on that meth and, uh, you know he had some AK-47's in his house and it was all wrapped up with Cypress Hill . . . wrapped the whole positioning of the, of the thing . . . you know, and I thought he was gonna shoot my, my old lady, or my family with those AK's, or with the machine guns." Defendant further explained that at the time, he was "pumped up on the meth . . . and the alcohol that I was drinking and, and I just lost, I lost it, man."
Defendant later referenced Cypress Hill again, noting that he had heard the lyrics to a song called "A To The Fuckin' K" and that he had a "visual image" of an "AK" flashing and shooting at his residence. The song's lyrics included "A to the motherfuckin' C," which was significant to defendant because Lopez lived in apartment A and defendant lived in apartment C.
Defendant also explained why he had decided to talk to the police about the murder: "Because . . . it's causing too many problems with his relatives and the gang he's associated with, and, and they're, they're terrorizing people over it." Defendant clarified that he did not hear about any threats directly, but he had "been hearing 'em talk over speakers and, and satellites about it."
At the end of the interview, Detective Gansen told defendant that he had done a "really good job" and that he hoped defendant would agree to speak to the officers again if they needed further details.
E. Defendant's Second Interview
The following day, Detective Gansen interviewed defendant again, at the Salinas Police Department. Detective Gansen told defendant he wanted to continue the conversation from the day before, and he read defendant the Miranda advisements.
At the beginning of the interview, Detective Gansen asked defendant to look at some pictures of knives and identify the kind of knife he had used during the murder. Defendant replied, "I don't know. Officer Babione should know. You guys are the ones that were controlling me when I killed him, you know?" Detective Gansen informed defendant that Officer Babione had retired. In responding, defendant mentioned that the police might want him "killing drug dealers."
Detective Gansen asked defendant to explain what had happened again. Defendant told him, "It - it was all wrapped up with Cypress Hill," again mentioning the song "A to the K," the lyric "A to the mother fuckin' C," and the fact that he and Lopez lived in apartments A and C. Defendant mentioned he thought Lopez was going to kill him or his girlfriend with an "AK."
Defendant acknowledged he had gone to a bar until about 2:00 a.m. on the night of the murder and that he had been drunk when he went home. He reiterated that after arriving home, he went to Lopez's house with a knife and killed him. Defendant asserted that he had been mad because Lopez had been "feeding me dope" and because someone had been raping his girlfriend.
While responding to questions about the murder, defendant also inserted unrelated complaints: for instance, that people were "fucking with remote controls in my head" and putting "sick stuff in the food." Defendant also asserted that he had been "murdered in the street" when he was 17 years old. He claimed that in jail, "rat piss" had been put into his medication.
When Detective Gansen asked defendant what he did after the murder, defendant expressed anger that the police were going to "throw me back in that sheriff's department." Referencing Detective Gansen's first name, Byron, defendant asserted that that someone named Byron was "the motherfucker that hit me in the street."
Defendant responded to questions about the methamphetamine found in Lopez's apartment and about what Lopez was wearing. When Detective Gansen asked if defendant had taken Lopez's shirt or clothes off, defendant asserted, "I didn't kill the motherfucker for his dick." After briefly going off-topic and swearing, defendant was able to respond to questions about what he did following the murder. Defendant then asserted that "the SWAT teams are listenin' to me" and that the Navy wanted him to "hunt for snakes." Defendant later complained about "graveyard meat" being put into the food supply. However, in between such statements, defendant was able to describe details about the murder, such as how he took a paper towel and wiped down the door after Lopez had died.
During the second interview, defendant provided fingerprints and DNA samples, which were later compared to evidence from the homicide scene. No matches were found.
F. Defense Case
Grisela Mosqueda was Lopez's live-in girlfriend just before the homicide; she had moved out about two weeks earlier. She confirmed that Lopez had been dealing drugs, that he kept guns in the house, and that he associated with gang members.
Defendant testified that he was "very stressed out" around the time of the homicide. His girlfriend was pregnant and he was trying to support her and two children at the time Lopez moved in to the building. Lopez had showed him two AK-47 machine guns and had offered to sell them. Lopez had also offered crank and methamphetamine to defendant. Defendant was worried about his family's safety. He and his girlfriend had been the victims of attempted murder when they were 17 and 15 years old, respectively, and he believed he had been "stalked and threatened" ever since. He felt threatened that evening and believed he needed to use legal force to protect his family, so he "put the man down."
G. Convictions and Sentence
A jury convicted defendant of first degree murder. (§ 187, subd. (a).) The trial court sentenced defendant to a prison term of 25 years to life.
III. DISCUSSION
A. Lack of Jury Trial on NGI Plea
Defendant argues he was deprived of a trial on his NGI plea because he never personally withdrew that plea as required by section 1018. The Attorney General asserts this claim was forfeited by defendant's failure to raise it below. On the merits, the Attorney General concedes the trial court erred by failing to obtain defendant's personal withdrawal of his NGI plea. However, the Attorney General contends the error was not prejudicial.
"Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. . . ." (§ 1018.)
1. Initial Pleas
Defendant was arraigned on the information on October 3, 2013. His trial counsel indicated the plea would be "a plea of not guilty and a plea of not guilty by reason of insanity." The minute order from the hearing indicates defendant entered only one plea: "Not guilty plea entered, by reason of insanity." Thus, on January 9, 2014, defendant's trial counsel reentered the "dual plea" of both not guilty and NGI. The trial court asked defendant to confirm he wanted to enter the dual plea. Defendant replied, "Yeah. . . ."
2. Appointment of Experts
The trial court appointed Dr. Elizabeth Lee and Dr. Ashley Cohen to evaluate defendant for purposes of his NGI plea.
a. Dr. Lee's Report
Dr. Lee had interviewed defendant, reviewed the transcripts of his police interviews, and reviewed various medical records. Dr. Lee believed that defendant had "exhibited paranoid and grandiose delusions during the police interviews," but she noted that defendant had not described having committed the murder due to "command hallucinations." Defendant did tell her that he did not commit the murder: "It was someone else controlling me." However, defendant would not elaborate when Dr. Lee asked him to identify the person who had been controlling him, and he had also complained that the victim had been selling him methamphetamine at a time he was trying to quit. Defendant "appeared to have thought about what he wanted to say" prior to the interview. He told Dr. Lee he wanted to be sent to Atascadero State Hospital (ASH), advocating for that result in an "unusually organized fashion."
During the interview with Dr. Lee, defendant appeared to be trying to convince Dr. Lee that he was "more mentally ill than he really was." When asked questions about his personal history, defendant would change the subject back to his mental illness. He would also make statements "such as 'I see rats flying,' or 'rats are eating my stomach,' " but he did not appear to be responding to any internal stimuli such as hallucinations.
Defendant's mental health records showed that he was diagnosed with adjustment disorder in November 1999. In March 2000, he was diagnosed as suffering from psychotic disorder and was prescribed an antipsychotic. In August 2001 (a little over a year before the homicide), he denied having any psychotic symptoms. In January 2003, he was "actively psychotic," but his symptoms might have been due to drug use. He was subsequently diagnosed as suffering from schizophrenia, substance dependence, and antisocial personality disorder. The mental health records documented "repeated concerns" that defendant had been exaggerating his psychotic symptoms.
Dr. Lee administered a test called the Structured Interview of Reported Symptoms, 2nd Edition (SIRS-2), which reliably detects "malingered psychotic symptoms." Defendant's performance on the SIRS-2 "was in the definitely feigning range," indicating that he was exaggerating his psychotic symptoms.
Dr. Lee concluded that defendant "knew what he was doing when he killed his drug dealer," "understood the nature of his act," and was aware at the time that the homicide was "morally and legally wrong." Thus, she concluded, defendant was legally sane at the time.
b. Dr. Cohen's Report
Dr. Cohen, too, had interviewed defendant and reviewed his medical records. She had also administered a test called the Rogers Criminal Responsibility Assessment Scales.
During the interview with Dr. Cohen, defendant reported seeing flying rats, but he could not describe the rats with any detail. Defendant showed no evidence of "any type of genuine hallucinations" nor any "grossly abnormal thought processes," despite reporting that he had chronic visual hallucinations and occasional auditory hallucinations.
Defendant told Dr. Cohen he hoped she would give him a report that would help with his NGI plea and help him "get to Atascadero." Defendant did not want to talk about the homicide. When Dr. Cohen administered tests, it appeared defendant was purposely trying to score as low as possible. On the Structured Interview of Malingered Symptomatology test, defendants' scores showed an exaggeration of his cognitive deficits and psychiatric disorders.
Dr. Cohen evaluated defendant as having been legally sane at the time of the homicide. She explained that defendant "does not have serious cognitive or intellectual deficits that would render him unable to function in terms of being aware of what he is doing, or distinguishing right from wrong." She also found "no independent evidence" that defendant had an active psychotic mental disorder at the time of the homicide. She further noted that defendant had reported having been under the influence of methamphetamine and alcohol at the time of the homicide.
3. Change of Plea
At a hearing on August 12, 2014, defendant's trial counsel told the trial court that defendant was withdrawing the previously entered dual plea and "simply entering a plea of not guilty." The trial court acknowledged, "It's now [a] not guilty plea" and asked, "And anything further?" Defendant responded, "Your Honor, I need to talk to you. There is rodents and people raping me in my sleep in jail. I have evidence of a broken hair that needs to be analyzed." The trial court told defendant to "[r]eport that to the jail commander." Defendant asserted he had "rodent hair right here" and told the prosecutor to analyze it. He also threatened to "kill[] this whole courtroom."
4. Forfeiture
The Attorney General asserts that because defendant failed to object in the trial court, he may not argue on appeal that he was denied a trial on his NGI plea because he never personally withdrew that plea. The Attorney General cites, in support of this assertion, People v. Weaver (2001) 26 Cal.4th 876 (Weaver), but that case involved a claim that the defendant had not personally entered an NGI plea, not a claim that the defendant had not personally withdrawn an NGI plea. (Id. at p. 964.) Moreover, to the extent Weaver indicated that a defendant can forfeit a claimed violation of section 1018, it did so in dicta. (See Weaver, supra, at p. 964, fn. 23.)
Defendant cites People v. Lyons (1971) 18 Cal.App.3d 760 (Lyons) to support his position that he did not forfeit his claim by failing to object below. In Lyons, the defendant entered a dual plea of not guilty and NGI, but the trial court never held a sanity trial. (Id. at p. 780.) The appellate court found no forfeiture due to the defendant's failure to object in the trial court, explaining that the judgment was void. Defendant also relies on People v. Marshall (1929) 99 Cal.App. 224 (Marshall I), in which the appellate court found that the trial court was without jurisdiction to impose sentence where the defendant had not been provided with a trial on his NGI plea. (Id. at p. 227.) Those cases are also distinguishable because unlike in the present case, the trial attorneys in Lyons and Marshall did not purport to withdraw the NGI pleas on the defendants' behalf. Thus, neither case considered whether, under such circumstances, a defendant forfeits the claim that he failed to personally withdraw his NGI plea. Nevertheless, we will assume that the trial court's failure to obtain defendant's personal withdrawal of the NGI plea was not forfeited by defendant's failure to object and proceed to consider the merits of his claim.
5. Analysis
As defendant points out, he neither personally withdrew his previously-entered NGI plea nor verbally assented to his trial counsel's representation that defendant was withdrawing the NGI plea. (Cf. Weaver, supra, 26 Cal.4th at p. 964 [by obtaining defendant's verbal assent to withdrawal of NGI plea, trial court satisfied § 1018's requirement of a personal waiver].) The Attorney General concedes the trial court erred by failing to obtain defendant's personal withdrawal of the NGI plea. However, the Attorney General does not agree with defendant's claim that he is entitled to a sanity trial as a remedy for the error. The Attorney General contends that the error was not prejudicial because it is not reasonably probable that a sanity trial would have resulted in a more favorable outcome for defendant.
In asserting that harmless error review is appropriate when a trial court fails to obtain a defendant's personal assent to his or her trial counsel's withdrawal of an NGI plea, the Attorney General relies primarily on People v. Henning (2009) 178 Cal.App.4th 388 (Henning). In that case, the defendant's trial counsel informed the trial court that the defendant wanted to plead NGI. However, trial counsel believed "there was 'absolutely no basis on which to run an NGI defense.' " (Id. at p. 396.) The defendant had been evaluated by three mental health professionals and a substance abuse expert, all of whom had concluded that the defendant "suffered no mental disease or defect supporting an NGI defense" and that the defendant "had been able to appreciate the wrongfulness of his acts" at the time of the charged offense. (Ibid.) One evaluator had opined that the defendant "was malingering during his psychological testing 'in order to appear more crazy than he actually was . . . .' " (Ibid.) The trial court did not permit the defendant to enter the NGI plea.
The Henning court found that the trial court's failure to allow the defendant to enter an NGI plea over the objection of his trial counsel violated the defendant's "statutory right under section 1018 to personally enter the plea of his choice." (Henning, supra, 178 Cal.App.4th at pp. 397-398.) The appellate court further found "a trial court's erroneous denial of that right does not warrant reversal if an insanity defense is baseless." (Id. at p. 400.) In reaching this conclusion, the Henning court analogized to People v. Frierson (1985) 39 Cal.3d 803, in which the California Supreme Court held that a criminal defendant's trial attorney did not have "the authority to withhold the presentation of any defense at the guilt/special circumstance stage of a capital case, in the face of a defendant's openly expressed desire to present a defense at that stage and despite the existence of some credible evidence to support the defense." (Id. at p. 812, italics added.)
In Henning, reversal was not required despite the trial court's refusal to allow the defendant to enter an NGI plea because "the record affirmatively demonstrate[d] the lack of credible basis for an insanity defense." (Henning, supra, 178 Cal.App.4th at p. 401.) Not only was there no support for an insanity defense from the four independent experts consulted by the defense, but the circumstances of the offenses and the defendant's subsequent flight indicated "that he understood the wrongful nature of his acts." (Ibid.) The defendant had taken a number of steps to avoid being identified as the perpetrator and to evade the police, showing "intentional, strategic thinking rather than insanity." (Ibid.) Under the circumstances, it was "not reasonably probable that [the] defendant would have obtained a different result at trial if he had entered an NGI plea. [Citations.]" (Id. at p. 402.)
The Henning court contrasted the lack of evidence supporting an NGI plea with the evidence in People v. Clemons (2008) 160 Cal.App.4th 1243 (Clemons). (See Henning, supra, 178 Cal.App.4th at p. 402.) In Clemons, the appellate court found that the trial court's refusal to allow the defendant to plead NGI was not harmless because "there was evidence from which the jury might have found that [the defendant] was NGI if it had been presented with that issue." (Clemons, supra, at p. 1253.) The Clemons court noted that although there were doctors' reports in that case, they went only to the issue of the defendant's competency to stand trial, not to his sanity at the time of the offense, and nothing in the report contained evidence about his mental condition on the day of the offense. (Ibid.) Moreover, the reports did "document a history of diagnoses of and hospitalizations for mental illness," and there was evidence that defendant had engaged in "abnormal behavior at the time of the incident." (Ibid.) Thus, the Clemons court was "not convinced that the NGI defense was necessarily a 'futile line of defense.' " (Ibid.)
The circumstances of the instant case are similar to those found harmless in Henning. First, the two experts who evaluated defendant for a possible insanity defense both found no support for such a defense. (See Henning, supra, 178 Cal.App.4th at p. 401.) Dr. Lee concluded that defendant was legally sane at the time of the murder, in that he "knew what he was doing," "understood the nature of his act," and was aware at the time that the homicide was "morally and legally wrong." Dr. Cohen similarly evaluated defendant as having been legally sane at the time of the homicide, finding "no independent evidence" that defendant had an active psychotic mental disorder at the time.
Second, the circumstances of the murder and defendant's actions immediately afterwards indicated "that he understood the wrongful nature of his acts." (See Henning, supra, 178 Cal.App.4th at p. 401.) As in Henning, defendant took a number of steps to avoid being identified as the perpetrator and to evade the police, which showed "intentional, strategic thinking rather than insanity." (Ibid.) For instance, he waited until Lopez was dead, then took a paper towel, wiped the doorknob, and fled. Defendant changed his clothes and drove to the ocean, where he disposed of the knife and his bloody clothing. Defendant then stayed in a motel rather than return to his apartment, which was close to the murder scene.
We conclude the record here shows that an NGI defense "was necessarily a 'futile line of defense.' " (See Clemons, supra,160 Cal.App.4th at p. 1253.) "[T]he record affirmatively demonstrates the lack of credible basis for an insanity defense," such that it was "not reasonably probable that defendant would have obtained a different result at trial" if the trial court had not erroneously permitted trial counsel to withdraw the previously-entered NGI plea without defendant's personal assent. (See Henning, supra, 178 Cal.App.4th at pp. 401, 402.)
Defendant asserts that the trial court's error is not subject to harmless error analysis. He claims both Henning and Clemons are "far off point" because in those cases, "no insanity plea was entered at all." We disagree. In Henning, Clemons, and the present case, the defendants all claimed they were precluded from having sanity trials. Although in both Henning and Clemons, the defendants were not allowed to enter NGI pleas at all, the claimed effect of the errors—the trial court's failure to hold a sanity trial—was the same as in this case, in which defendant did not personally withdraw his NGI plea. Thus, Henning and Clemons are directly on point with respect to the question of whether failure to hold a sanity trial can be harmless error.
Defendant also claims Henning and Clemons failed to acknowledge contrary authority from the California Supreme Court, citing People v. Marshall (1930) 209 Cal. 540 (Marshall II). However, Marshall II was an appeal after a jury found the defendant sane; the court did not consider whether the failure to obtain a defendant's personal withdrawal of an NGI plea may be found harmless, nor did it consider whether the failure to hold a sanity trial may be found harmless. Further, contrary to defendant's claim, Marshall II did not specifically "ratify" the prior appellate decision in that same case (Marshall I, supra, 99 Cal.App. 224), which held that the trial court was without "jurisdiction" to sentence the defendant because there had been no trial on his NGI plea (id. at p. 228).
Defendant next asserts that the error in this case cannot be found harmless because it was a jurisdictional error. However, the instant case does not involve the type of jurisdictional error that rendered the trial court without " ' authority over the subject matter or the parties,' " so as to render the ensuing judgment void. (See People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.) Rather, to the extent the error here may be described as jurisdictional, it was an error involving an act "in excess" of the court's jurisdiction, rendering the judgment "merely voidable." (Id. at p. 661.) Because the "irregularity" in the proceedings was not "jurisdictional in the fundamental sense," it is subject to a harmless error analysis. (See People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529; see also People v. Braxton (2004) 34 Cal.4th 798, 816- 817 [error in refusing to hear a defendant's motion for a new trial subject to harmless error analysis].)
Defendant contends his position is supported by People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn) and People v. Tran (2015) 61 Cal.4th 1160 (Tran). In Blackburn, the court held that automatic reversal is required when a trial court errs in "completely denying" a mentally disordered offender (MDO) his or her statutory right to a jury trial in a proceeding to extend the MDO's commitment. (Blackburn, supra, at p. 1117.) In Tran, the court reached the same holding with respect to defendants who have been committed after being found NGI. (Tran, supra, at p. 1163.) Here, however, defendant was not "completely deprive[d]" of the right to a jury trial on the issue of his guilt. (See Blackburn, supra, at p. 1136.) Thus, Blackburn and Tran are inapposite.
Finally, defendant contends that the trial court's error was of federal constitutional dimension. Specifically, he contends the statutory right to personally withdraw his NGI plea is protected by the due process clause of the Fourteenth Amendment. He relies on Hicks v. Oklahoma (1980) 447 U.S. 343 (Hicks), but that case does not support his claim. In Hicks, the defendant had been sentenced under a state law that required the jury to impose a 40-year sentence for his offense because of his prior convictions. (Id. at pp. 344-345.) The sentencing law was subsequently found to be unconstitutional, but the appellate court declined to set aside the defendant's sentence on the basis that the jury still might have imposed a 40-year sentence. The United States Supreme Court found that the defendant had a liberty interest in having the jury exercise its statutory discretion and that the state had arbitrarily deprived him of that right "on the frail conjecture that a jury might have imposed" a 40-year sentence. (Id. at p. 346.)
Hicks is not analogous to the instant case. Defendant's punishment was not determined by a statute subsequently declared unconstitutional and then affirmed on appeal with no exercise of discretion. The state law error here—the trial court's failure to obtain defendant's personal assent when his trial counsel withdrew the NGI plea—does not deprive defendant of "normative jury discretion" but, at most, of "jury fact-finding" as to whether or not defendant was sane at the time of the offense. (See People v. Breverman (1998) 19 Cal.4th 142, 172 [no due process right under Hicks to instructions on lesser-included offenses].) As an appellate court, we may "assert and exercise our power to review the error" for prejudice without "usurp[ing]" any due process interest. (Ibid.)
In sum, we conclude that although the trial court should have obtained defendant's personal withdrawal of his previous NGI plea, the error was harmless. There was no "credible basis for an insanity defense," and thus it was "not reasonably probable that defendant would have obtained a different result at trial" if the trial court had not erroneously failed to obtain defendant's personal withdrawal of the NGI plea. (See Henning, supra, 178 Cal.App.4th at pp. 401, 402.)
B. Failure to Suspend Proceedings
Defendant contends the trial court erred by failing to find there was a reasonable doubt as to defendant's competency to stand trial in December 2013 or later in the proceedings.
1. Initial Competency Proceedings
At a pretrial conference on November 5, 2013, the trial court announced that the parties and the court were requesting defendant be evaluated for possible involuntary psychiatric hospitalization pursuant to section 4011.6. The trial court appointed Dr. Taylor Fithian to evaluate defendant.
Section 4011.6 provides in pertinent part: "In any case in which it appears to the person in charge of a county jail, city jail, or juvenile detention facility, or to any judge of a court in the county in which the jail or juvenile detention facility is located, that a person in custody in that jail or juvenile detention facility may be mentally disordered, he or she may cause the prisoner to be taken to a facility for 72-hour treatment and evaluation pursuant to Section 5150 of the Welfare and Institutions Code . . . ."
Dr. Fithian's evaluation report was filed on December 3, 2013. Dr. Fithian concluded that defendant did not meet the criteria for involuntary psychiatric hospitalization. Dr. Fithian had been part of defendant's medical staff during defendant's "numerous incarcerations," and his report detailed some of defendant's mental health history. On February 2, 2010, Dr. Fithian had diagnosed defendant with chronic paranoid schizophrenia, antisocial personality disorder, and malingering—he believed at the time that defendant was attempting to avoid a trial and prison. Two weeks later, Dr. Fithian had found defendant was not competent to stand trial. Defendant had overdosed on antipsychotic medications that he had been hoarding and was displaying psychotic symptoms. Defendant was transferred to ASH at that time. Defendant had been to ASH previously, in 2006 and 2008, and he had been hospitalized in another facility in 2003. He also had spent time in mental health crisis beds. After defendant returned to jail from ASH, he was prescribed a number of medications, but shortly thereafter he began refusing medication. Dr. Fithian did not think defendant would be trial competent unless he complied with his medications. When defendant finally agreed to take antipsychotic medication, he was "doing well."
At the hearing, defendant's trial counsel indicated he had reviewed the report and agreed that defendant did not require treatment pursuant to section 4011.6. However, he requested the court order an evaluation of defendant's competency pursuant to section 1368 and appoint doctors to evaluate defendant for his NGI plea.
Section 1368 provides in pertinent part: "(a) If, during the pendency of an action and prior to judgment, . . . a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. . . . [¶] (b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court. [¶] (c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined."
The prosecutor objected to "any kind of suspension of proceedings under [section] 1368," arguing that there was no reason to believe defendant was not competent to stand trial. The prosecutor acknowledged that there were "reasonable concerns" about defendant, pointing out that defendant had "difficult moments" when he was not taking his medication, and suggested the trial court request that Dr. Fithian "do an advisory opinion" as to defendant's competency.
The trial court asked for the defense position on the prosecutor's proposal. Defendant's trial counsel noted that because defendant had already waived time, suspension of the proceedings would not have "any real effect" on the case. The trial court responded, "Well, I'm inclined to ask him some questions if you're not going to agree that it should be referred to Dr. Fithian for an advisor[y] opinion." Defendant's trial counsel agreed, "I think we can all get to where we want to go by doing that." The trial court indicated it would refer the matter to Dr. Fithian for an advisory report and defer asking defendant any questions until after receiving the report.
Evidence Code section 730 provides the trial court with authority to appoint an expert to "render a report" when it appears to the court "that expert evidence is or may be required by the court or by any party to the action." (See also People v. Visciotti (1992) 2 Cal.4th 1, 36 [trial court's appointment of experts to render an opinion on the defendant's competence "was preliminary to consideration by counsel, let alone the judge, of whether either had a doubt as to defendant's competence"].)
Dr. Fithian's next report was filed on December 16, 2013. He had evaluated defendant on December 5, 2013 and had concluded that defendant was "trial competent on medication." Dr. Fithian had reviewed the police report from the 2002 homicide as well as the police report describing defendant's 2013 confessions. Dr. Fithian had also interviewed defendant, who was "cooperative and polite" and understood that he was being charged with murder. Defendant was able to identify his attorney, his attorney's role, and the role of the judge. He was not sure about the role of the prosecutor or the jury. He also was not sure what would happen if he was found guilty, but he understood that he was pleading NGI. Defendant "denied current auditory hallucinations but stated that he does hear voices at times." Defendant did not come across as hyperverbal, hyperactive, grandiose, or delusional.
At a hearing held on December 17, 2013, the trial court found defendant was competent to stand trial, as long as he continued to take his medication. Defendant told the trial court, "They're feeding us rotten me[a]t and putting formaldehyde in the water at the jail . . . ." The trial court replied, "Okay. I'm sure they're not putting formaldehyde in the water, but your attorney will look in to that for you; okay?"
2. Subsequent Proceedings
On January 9, 2014, defendant's trial counsel reentered the "dual plea" of both not guilty and NGI. When the trial court asked defendant to confirm he wanted to enter the dual plea, defendant replied, "Yeah. Your Honor, I need to tell you, the jail, they're drugging me in my sleep. They're putting animals on me. They're raping me. They're messing around. I want to press charges. I want a medical examination at a different hospital. . . ."
At a hearing on March 11, 2014, defendant told the trial court, "There's giant rats running around in that jail and they're sexually abusing me."
During a Marsden hearing held on June 12, 2014, defendant explained that he wanted to replace his trial counsel: "I told him that in my sleep that I'm being sexually sodomized in the jail. I'm waking up and feeling my rear end torn open, and my penis cut off. I'm feeling pain that I'm being raped and surgeries are being done on me in my sleep with my mind turned off. . . ."
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
At the August 12, 2014 hearing in which defendant's trial counsel told defendant he was withdrawing the previously entered NGI plea, defendant told the trial court, "Your Honor, I need to talk to you. There is rodents and people raping me in my sleep in jail. I have evidence of a broken hair that needs to be analyzed." When the trial court told defendant to "[r]eport that to the jail commander," defendant asserted he had "rodent hair right here" and told the prosecutor to analyze it. He also threatened to "kill[] this whole courtroom."
During a Marsden hearing held on November 13, 2014, defendant reiterated that he was "being sexually abused," and he claimed his family members and children were being raped outside the jail. He also claimed "they" had "taken the flesh out of my penis and my nuts in my sleep and are trying to do stem cell research on me without permission." Defendant expressed frustration that his trial counsel had not brought a motion for change of venue. When the trial court denied his Marsden motion, defendant responded, "That's fucking bullshit," and threatened to report the trial court to the "fucking Bar Association."
During a Marsden hearing held on January 8, 2015, defendant again repeated his claim that he was being sexually abused in his sleep while in jail. He also repeated his claim of hearing children outside the jail. He claimed that his skull had been cut open. He also repeated that he wanted his trial counsel to ask for a change of venue.
At a hearing on April 28, 2015, defendant claimed he was "being sexually assaulted every night in jail."
On October 20, 2015, defendant claimed that the jail was "serving rotten meat."
On November 5, 2015, the trial court considered defendant's Faretta motion. Defendant asserted that he was capable of representing himself at trial. He added, "The jail is -- jail's ripping me off for land grants and land deeds from the government. And they're making it clear they're doing it around the back of my cell." Defendant claimed he could sense that "military commandos and women in the military" were being kidnapped and raped around the jail.
Faretta v. California (1975) 422 U.S. 806.
On November 24, 2015, County Counsel (representing Monterey County and the Monterey County Sheriff's Office) requested the trial court consider using physical restraints on defendant during the trial. County Counsel alleged that defendant had "severe mental health issues" and that defendant had recently "head butted his attorney in court." Defendant had also assaulted a jail deputy and sent a threatening letter to the court.
On November 30, 2015, the Sheriff filed a memorandum requesting that defendant be "fully restrained" during the trial, with "belly chains as well as leg restraints." The memorandum recounted a number of recent incidents in jail. In July 2015, defendant had vandalized jail property, flooded his jail cell twice, and assaulted another inmate. In August 2015, defendant had been placed on suicide watch. In September 2015, defendant had been housed in an isolation area "due to his disruptive behavior." In November 2015, defendant had claimed there were snakes in his cell, refused to return to his cell, and claimed to be suicidal. The memorandum included reports of additional incidents, including a February 2015 incident that took place in the courtroom. Defendant had a "blank stare" during the proceedings and had lunged towards his trial counsel "using his shoulder to assault" his trial counsel.
3. Applicable Law
Under the federal constitution's due process clause as well as section 1368, "a trial court is obligated to conduct a full competency hearing if substantial evidence raises a reasonable doubt that a criminal defendant may be incompetent." (People v. Lightsey (2012) 54 Cal.4th 668, 691 (Lightsey); see People v. Rogers (2006) 39 Cal.4th 826, 847 (Rogers).) A defendant is competent to stand trial if he or she has "a ' "sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding—and . . . a rational as well as [a] factual understanding of the proceedings against him [or her]." ' [Citations.]" (People v. Blair (2005) 36 Cal.4th 686, 711, overruled on other grounds by People v. Black (2014) 58 Cal.4th 912, 919.)
"The court's duty to conduct a competency hearing may arise at any time prior to judgment. [Citation.] Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.] But to be entitled to a competency hearing, 'a defendant must exhibit more than . . . a preexisting psychiatric condition that has little bearing on the question . . . whether the defendant can assist his defense counsel.' [Citations.]" (Rogers, supra, 39 Cal.4th at p. 847.)
On appeal, we give deference to the trial court's decision whether or not to hold a competency hearing, because the trial court had an opportunity to observe the defendant during trial. (Rogers, supra, 39 Cal.4th at p. 847.) However, if there is substantial evidence raising a reasonable doubt as to the defendant's competence, the failure to conduct a full competency hearing is "reversible error." (Lightsey, supra, 54 Cal.4th at p. 691.)
4. Analysis
Defendant first contends the trial court should have suspended proceedings on December 17, 2013 after receiving Dr. Fithian's report. He asserts the following constituted substantial evidence raising a reasonable doubt as to his competency: (1) his trial counsel's request for a competency evaluation; (2) his documented diagnosis of paranoid schizophrenia, documented history of "mental health variability," and documented history of medication noncompliance; and (3) his behavior during the proceedings, including his statements indicating he was hallucinating.
As defendant acknowledges, his trial counsel's opinion is relevant but not dispositive. (See People v. Howard (1992) 1 Cal.4th 1132, 1164.) And here, although defendant's trial counsel requested that the trial court appoint doctors to conduct competency evaluations, thereby implicitly indicating that he had concerns about defendant's competency, trial counsel did not explicitly state that he believed defendant's psychiatric disorders "interfered with his ability to understand the nature of the criminal proceedings or to rationally assist counsel in conducting his defense." (See People v. Sattiewhite (2014) 59 Cal.4th 446, 466, fn. omitted.) More importantly, the record supports the trial court's finding that there was no substantial evidence of defendant's incompetency. Significantly, Dr. Fithian did not believe defendant was incompetent, and nothing in the evaluations conducted by Drs. Lee and Cohen regarding defendant's NGI plea indicated that defendant's psychiatric disorders inhibited his ability to understand the trial process or assist his attorneys. (See Rogers, supra, 39 Cal.4th at p. 849.) We must keep in mind that "[t]he trial court had the opportunity to observe defendant's testimony and demeanor during the trial." (Ibid.) Nothing in the record indicates defendant was unable to understand the proceedings and communicate effectively with the trial court and his trial counsel. "Considering all the evidence before the trial court, there was no substantial indication of incompetence requiring the trial court to declare a doubt and conduct a competence hearing." (Ibid.)
Defendant next contends the trial court erred when, on December 3, 2013, the court indicated it would suspend the proceedings only if the court could question defendant directly. The record does not support this claim. After the prosecutor suggested the trial court order an advisory report from Dr. Fithian, the trial court asked for defendant's trial counsel's opinion. The trial court indicated that without an advisory report, the trial court would want to question defendant in order to determine whether to declare a doubt as to defendant's competence. In other words, the trial court wanted more evidence before declaring a doubt as to defendant's competency—either from an advisory report or from defendant himself. Because the trial court did not have a doubt as to defendant's competency at that time, it did not err by refusing to suspend the proceedings without any additional evidence showing defendant's ability to consult with his attorney and his ability to understand the proceedings.
Defendant further contends that even if the trial court did not err by failing to suspend the proceedings on December 17, 2013, it erred by failing to declare a doubt as to defendant's competency at least by November 30, 2015, when the Sheriff's Office filed its supplemental memorandum regarding the use of restraints during trial.
On this record, the trial court did not err by failing to declare a doubt as to defendant's competency during the proceedings after it considered Dr. Fithian's report. Defendant's repeated claims of being sexually abused in jail did not show he was unable to understand the proceedings or consult effectively with his trial counsel. For instance, at the Marsden hearings held on November 13, 2014 and January 8, 2015, defendant followed up his sexual abuse claims with complaints about his trial counsel not bringing a motion for change of venue. Further, the trial court could consider the reports of Dr. Lee and Dr. Cohen, both of whom believed that defendant was feigning symptoms of a psychotic disorder, and conclude that defendant's claimed sexual abuse hallucinations were not genuine. Similarly, the trial court could reasonably find that defendant's behavioral problems in jail were not caused by his psychotic disorder but that defendant was trying to be moved from jail to ASH, as he had previously mentioned to both Dr. Lee and Dr. Cohen. Moreover, defendant's behavior in jail did not reflect that he was unable to understand the trial proceedings or consult effectively with his trial counsel.
In sum, after reviewing the record and giving appropriate deference to the trial court, which had an opportunity to observe the defendant during the proceedings (see Rogers, supra, 39 Cal.4th at p. 847), we conclude the trial court did not err by finding there was no substantial evidence raising a reasonable doubt that defendant might be incompetent to stand trial. (See Lightsey, supra, 54 Cal.4th at p. 691.)
C. Admission of Statements from First Interview
Defendant contends that the trial court erred by failing to suppress statements defendant made to the police during the first interview because he had not been given any Miranda warnings.
1. Motions in Limine
Defendant's in limine motions included motions to exclude the first and second confessions. As to the first confession, defendant argued that his statements were made in response to questions asked by Detective Gansen at a time when defendant was in custody. As to the second confession, defendant argued that Detective Gansen had purposefully withheld Miranda warnings as part of a two-step interrogation technique. (See Seibert, supra, 542 U.S. 600.)
Detective Gansen testified at a hearing on the motions in limine. He described the room in which he conducted the first interview as "basically a laundry room with some chairs," located in the booking area of the jail. The room was approximately 12 feet by 12 feet and contained a television, inmate clothing, and some shelves. No deputies were present during the interview, and defendant was not in handcuffs or any other kind of restraints. The door to the room was shut but not locked.
Detective Gansen explained why he did not give defendant the Miranda advisements during the first interview: "I had no probable cause to arrest him on anything. I didn't know exactly what he had to say. I was told that he had confessed to a crime, but I had nothing to substantiate that at that point."
Detective Gansen did provide the Miranda advisements prior to the second interview, because at that point defendant had "provided enough information to make him a suspect in that case," and "he was in custody."
2. Trial Court Findings
The trial court ruled that both interviews could be admitted at trial. As to the first interview, the trial court found that defendant was in custody on another matter at the time of the first interview and that the interview had not taken place under circumstances creating "a level of compulsion above and beyond that inherent custody itself." The trial court found that the laundry room constituted a "rather casual environment" and that defendant could have left the laundry room at any time. The officers had not employed any psychological ploys, and defendant had requested the interview. Detective Gansen's tone helped convey that he was "trying to clarify what the defendant was trying to confess." As to the second interview, the trial court found that defendant "freely and voluntarily" waived his Miranda rights.
3. Applicable Law
In Miranda, the United States Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (Miranda, supra, 384 U.S. at p. 444.) The court defined the phrase "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Ibid., fn. omitted.)
The United States Supreme Court has clarified that " 'custody' is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion." (Howes v. Fields (2012) 565 U.S. 499, 508-509 (Fields).) The Fields court further clarified that "imprisonment alone is not enough to create a custodial situation within the meaning of Miranda." (Id. at p. 511.) Because the Miranda warnings were adopted "to ward off the ' "inherently compelling pressures" of custodial interrogation' " (Fields, supra, at p. 507), such warnings are required only in "those types of situations" raising concerns about the possibility of such coercion (id. at p. 514). "Confessions voluntarily made by prisoners in other situations should not be suppressed. 'Voluntary confessions are not merely a proper element in law enforcement, they are an unmitigated good, essential to society's compelling interest in finding, convicting, and punishing those who violate the law.' [Citation.]" (Ibid.)
"When a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation. These include the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted. [Citation.]" (Fields, supra, 565 U.S. at p. 514; see also People v. Macklem (2007) 149 Cal.App.4th 674, 692 (Macklem) [when a defendant is "already under detention in a custodial facility" at the time of an interview, the relevant question is whether there is "an additional degree of 'formal arrest or restraint on freedom of movement' "].)
"In reviewing Miranda issues on appeal, we accept the trial court's resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported, but independently determine from undisputed facts and facts found by the trial court whether the challenged statement was legally obtained. [Citations.]" (People v. Smith (2007) 40 Cal.4th 483, 502.)
4. Analysis
Defendant contends he was in custody for Miranda purposes when he was interviewed in the jail laundry room. He points out that he was not told he was free to leave or free to decline the interview, that the door to the room was closed, that the interview was about a past crime rather than a crime in progress, and that he had not been in an "ongoing long-term incarcerative setting[]."
We are guided by the United State Supreme Court's analysis in Fields, in which the circumstances of an in-prison interview were found not to be custodial for purposes of Miranda. The Fields court first noted the factors that supported a finding of custody: the defendant had not "invite[d] the interview" nor consented to it in advance; he had not been advised "that he was free to decline to speak with the deputies;" the interview had consumed five to seven hours and had ended late in the evening; the deputies who had conducted the interview had been armed; and one deputy had " '[u]sed a very sharp tone' " as well as profanity. (Fields, supra, 565 U.S. at p. 515.) The court then explained that those circumstances were "offset" by the following: the defendant had been told multiple times "that he could leave and go back to his cell whenever he wanted;" he was "not physically restrained or threatened and was interviewed in a well-lit, average-sized conference room, where he was 'not uncomfortable';" and "[h]e was offered food and water, and the door to the conference room was sometimes left open." (Ibid.) The court held that the circumstances were " 'consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave,' " even though the defendant was a prisoner who could not actually have left the conference room without being escorted by a correction officer. (Ibid.) The Fields court pointed out that even if the defendant "had been taken to the conference room for some reason other than police questioning," he still could not "have reasonably expected to be able to roam free." (Id. at pp. 515-516, fn. omitted.)
In this case, although defendant did not expressly "invite the interview" or consent to it in advance, he did initiate the conversation about the murder the previous day, by speaking to Probation Officer Christian, who then told a deputy and defendant's probation officer about defendant's desire to confess. (Fields, supra, 565 U.S. at p. 515.) At the beginning of the interview, Detective Gansen did not believe he had probable cause to arrest defendant—Detective Gansen had been told that defendant had confessed to a crime, but he had "nothing to substantiate that at that point." Defendant was not advised "that he was free to decline to speak" with Detective Gansen (see ibid.), but the interview began with Detective Gansen noting that he was under the impression that defendant had "somethin[g]" he wanted to say, and defendant did not indicate that he did not, in fact, have anything to say. Instead, defendant immediately told Detective Gansen, "Um, I committed murder on, uh, in 2003." Defendant's interview was not lengthy. During the interview, Detective Gansen asked mostly general questions and did not use a sharp tone. Defendant was "not physically restrained or threatened," and no deputies from the jail were present. (Ibid.) The interview did not take place in a formal environment but rather a room used for laundry, and, apparently, watching television. Although the door to the room was closed, it was not locked. Considering "all of the features of the interrogation," we find that the circumstances of the first interview were " 'consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave,' " even though defendant was an inmate in jail custody. (Id. at pp. 514, 515.)
We have listened to the CD of the interview.
Defendant focuses on the fact that he was not explicitly told he was free to decline to speak with Detective Gansen. He points out that the Fields court characterized as "[m]ost important" the fact that the Fields defendant had been told "that he could leave and go back to his cell whenever he wanted." (Fields, supra, 565 U.S. at p. 515; see also Macklem, supra, 149 Cal.App.4th at p. 695 [in-custody defendant was informed he was not required to be interviewed].) However, Fields instructs that "the determination of custody should focus on all of the features of the interrogation." (Fields, supra, at p. 514.) Nothing in Fields suggests that the determination of custody, for purposes of Miranda, depends on whether an in-custody defendant is told he or she may decline the interview. And here, a reasonable person would have understood that he or she could have declined to participate in the interview, having been told that the police were interviewing defendant because defendant had previously indicated he "had somethin' " to say.
In sum, defendant's first interview did not require the Miranda warnings because the circumstances did not involve "the ' "inherently compelling pressures" of custodial interrogation.' " (Fields, supra, 565 U.S. at p. 507.) We therefore conclude the trial court did not err by finding that defendant's first interview did not take place during "a custodial situation within the meaning of Miranda." (Id. at p. 511.) Thus, the trial court properly admitted that interview at trial.
Because we have concluded defendant was not in custody for Miranda purposes during the first interview, we need not address defendant's argument that the interview constituted an interrogation under Rhode Island v. Innis (1980) 446 U.S. 291.
D. Admission of Statements from Second Interview
Defendant contends the trial court erred by finding that his second interview was admissible. He asserts the second interview violated Seibert, supra, 542 U.S. 600 because (1) Detective Gansen "add[ed] a preamble" before providing the Miranda warnings, thereby connecting the first and second interviews, and (2) Detective Gansen purposefully withheld Miranda warnings as part of a two-step interrogation technique.
1. Applicable Law
In Siebert, the court considered the admissibility of a statement obtained via "a police protocol" in which the defendant was subjected to a custodial interrogation without Miranda warnings, and then, following a confession, a second interrogation that was preceded by Miranda warnings. (Seibert, supra, 542 U.S. at p. 604.) Five justices held that the mid-interrogation warnings were ineffective and thus that the defendant's post-warning confession was inadmissible.
The plurality opinion, authored by Justice Souter, found that the facts did not "reasonably support a conclusion that the warnings given could have served their purpose" (Seibert, supra, 542 U.S. at p. 617), noting that the initial, pre-warning questioning had been "systematic, exhaustive, and managed with psychological skill," that there had been a break of only 15 to 20 minutes between the first and second interrogations, that the interview site had not changed, that the police had not advised the defendant that her prior statement could not be used (id. at p. 616). Under the circumstances, the plurality found it "would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before." (Id. at p. 617.)
Justice Kennedy did not join the plurality, but he wrote a separate concurring opinion in which he agreed that the use of the interrogation technique in that case rendered the defendant's statements inadmissible. (Seibert, supra, 542 U.S. at p. 618 [conc. opn. of Kennedy, J.].) Because "Justice Kennedy 'concurred in the judgment[ ] on the narrowest grounds' [citation], his concurring opinion represents the Seibert holding." (People v. Camino (2010) 188 Cal.App.4th 1359, 1370, fn. omitted; see also People v. Rios (2009) 179 Cal.App.4th 491, 504-505; United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158.)
Whereas the plurality opinion focused on objective circumstances, Justice Kennedy focused on the subjective intent of the interrogating officer, setting forth the following rule: "When an interrogator uses [a] deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps." (Seibert, supra, 542 U.S. at p. 621 [conc. opn. of Kennedy, J.].) In all other cases, Justice Kennedy asserted, "[t]he admissibility of postwarning statements should continue to be governed by the principles of [Oregon v.] Elstad [(1985) 470 U.S. 298 (Elstad)]." (Seibert, supra, at p. 622 [conc. opn. of Kennedy, J.].)
Such curative steps "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" and might include "a substantial break in time and circumstances between the prewarning statement and the Miranda warning" or "an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient." (Seibert, supra, 542 U.S. at p. 622 [conc. opn. of Kennedy, J.].)
In Elstad, the court held that "coercive effect" is not presumed where a suspect makes an initial inculpatory statement that is "technically in violation of Miranda" but is voluntary, and then makes a second, voluntary statement following Miranda warnings. (Elstad, supra, 470 U.S. at p. 318.) The test for determining the voluntariness of the statements requires the finder of fact to "examine the surrounding circumstances and the entire course of police conduct." (Ibid.)
2. Analysis
We first address defendant's claim that the second interview violated Seibert, supra, 542 U.S. 600 because Detective Gansen "add[ed] a preamble" before providing the Miranda warnings, thereby conveying to defendant "that the second interrogation was merely a continuation of the unwarned first."
The record does not support defendant's claim that Detective Gansen's preliminary comments to defendant during the second interview undermined the Miranda warnings he administered. At the end of the first interview, Detective Gansen had told defendant he hoped that if they needed to "clear some things up," defendant would "agree to talk to us." When he asked, "Okay?" defendant had responded, "Yeah." At the beginning of the second interview, Detective Gansen reminded defendant of his previous day's comments about possibly having some additional questions, and he noted that defendant had "agreed to speak with us to clear some more things up." Detective Gansen then asked if defendant would in fact "continue our conversation that we had yesterday," asking, "okay?" He then administered the Miranda warnings, and defendant indicated he understood those rights.
Detective Gansen's references to the previous day's interview did not render the Miranda warnings unclear or equivocal. (See Miranda, supra, 386 U.S. at pp. 467-468 ["if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent"].) During both interviews, Detective Gansen made it clear that defendant had a choice about whether to continue talking to him. Detective Gansen in no way indicated that defendant would be penalized for deciding not to talk to the officers. Moreover, during the second interview, Detective Gansen did not reference the fact that defendant had already confessed to the murder. (Cf. Seibert, supra, 542 U.S. at p. 621 [officer's reference to defendant's prewarning statement suggested that "the mere repetition of the earlier statement was not independently incriminating"].) In short, Detective Gansen's initial remarks did not "obscure both the practical and legal significance of the [Miranda] admonition when finally given." (Id. at p. 620.)
We next address defendant's claim that the second interview was a "deliberate, two-step strategy, predicated upon violating Miranda during an extended interview." (Seibert, supra, 542 U.S. at p. 621 [conc. opn. of Kennedy, J.].) Defendant asserts we should find deliberate delay based on (1) the "preamble" and delay in providing the Miranda warnings at the beginning of the second interview; (2) Detective Gansen's failure to give Miranda warnings at the beginning of the first interview; (3) Detective Gansen's failure to give Miranda warnings in the middle of the first interview; and (4) an asserted presumption that Detective Gansen had no justification for failing to provide the Miranda warnings.
Defendant cites Evidence Code section 412 in support of his claim that we should presume Detective Gansen had no valid reason for failing to provide Miranda warnings during the first interview. That section provides: "If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust." (Evid. Code, § 412.) --------
The record indicates Detective Gansen did not engage in a deliberate two-step process designed to circumvent Miranda. There was no significant delay in administering the Miranda warnings at the beginning of the second interview. Detective Gansen's initial, brief remarks served to explain why he was interviewing defendant again. The remarks did not constitute improper pre-warning interrogation, nor did the remarks water-down or undermine the subsequent Miranda warnings. Additionally, Detective Gansen's explanation for not administering the Miranda warnings during the first interview was reasonable and credible. Defendant's initial, unprompted confession to murdering "somebody" 10 years earlier was not so reliable and trustworthy as to provide probable cause for his arrest. As to defendant's claim that Miranda warnings were required after defendant provided further details about the murder during the first interview, we have previously concluded the trial court properly found that the first interview was not custodial and thus did not require Miranda warnings. Finally, Detective Gansen testified that he did not provide the Miranda warnings at the first interview because he "had no probable cause to arrest [defendant] on anything," did not "know exactly what [defendant] had to say," and had "nothing to substantiate" defendant's confession to a 10-year-old crime. Because Detective Gansen's testimony provided a credible explanation for the lack of Miranda warnings at the first interview, there are no grounds for presuming no such explanation existed.
In sum, defendant's claims under Seibert, supra, 542 U.S. 600, are unpersuasive. The trial court did not err by failing to exclude the second interview.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.