Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, No. SWF006662 Arjuna T. Saraydarian, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Rodger Paul Curnow, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
MOORE, J.
Defendant Angel Orozco Nunez appeals his conviction for murder, arguing that his confession to the police should have been excluded because it was involuntary. After reviewing the record, including the videotape of the police interview, in light of the relevant law, we find that defendant’s statements were properly admitted. We also reject defendant’s remaining argument with respect to the pattern jury instruction on reasonable doubt. The judgment is affirmed.
I
FACTS
On the afternoon of January 13, 2004, three people were in the remote area of Winchester, in Riverside County, looking for firewood. They found a white Honda Accord parked by the road, with a man slumped over in the driver’s seat. The man was bloody and did not move.
The police were summoned and began an investigation. The victim, later identified as Freddie Villareal, was dead. He had been shot five times from close range. The bullets used were later determined to be.38 caliber, most likely fired from a.38 or a.357 magnum revolver.
The investigation, the minute details of which are not pertinent here, revealed that Villareal had left a telephone message at his girlfriend’s home on the morning of January 13. The police visited Villareal’s workplace, a horse ranch located a few miles from where Villareal’s body had been found. Several potential suspects were eliminated.
On January 23, Sergeant Jaime Alvarez, a Spanish-speaking investigator, returned to the ranch with two other officers in plain clothes. They spoke to the ranch’s owner, who introduced Alvarez to defendant. Alvarez told defendant he was not under arrest or being detained, and said that he wanted to speak with him about “Freddie” (Villareal). Defendant agreed to speak to Alvarez, and they did so in the ranch office. When asked if he knew Villareal, defendant first said that he did not, then said that he saw Villareal three days earlier. Alvarez asked defendant if Villareal worked at the ranch, and defendant first said that he did not know, then said someone named Freddie worked there, but wasn’t sure if this was the same person Alvarez was inquiring about.
Alvarez said he was looking for Freddie, and defendant’s answers seemed to change. Defendant said that Freddie worked at the ranch and lived with him at one point, and had given defendant a ride to his brother’s house. Alvarez then elicited some details from defendant about his brother, such as where he lived and his name. When asked if his brother would confirm his story, defendant said he did not know.
When Alvarez inquired as to when defendant last saw Villareal, defendant said on January 20, after defendant’s lunch break. Villareal was outside defendant’s living quarters. Defendant then said he did not see Villareal on January 20, but on January 13. Defendant gave Alvarez permission to search his room, and they continued to talk. Defendant said he had known Villareal for some time, and had lived together.
Late in the afternoon, Alvarez asked defendant if he would come to the Hemet station to speak with him further, advising him again that he was not under arrest. Defendant said that he would. Once at the station, defendant was photographed, fingerprinted, and taken to an interview room.
The first part of the interrogation at the police station began shortly after 6:00 p.m., and was videotaped. Alvarez again told defendant he was not under arrest. He elicited background information from defendant, who revealed he had a sixth grade education in Mexico and had lived in Riverside County for the past eight years. Defendant said he was not capable of killing or hurting anyone, and did not know how Villareal was killed. Alvarez said the police had evidence, such as fingerprints from Villareal’s car, and asked defendant if his prints would be found. Alvarez responded he did not know, but that Villareal had given him a ride. Alvarez then asked what his brother, Pedro, would say when asked if defendant was with him on the day of Villareal’s murder. Defendant responded that he did not know, and Alvarez would have to ask Pedro.
Defendant said that on January 13, the day of the murder, he visited his brothers. He last saw Villareal on that day. Defendant asked Villareal for a ride to see his brother, Jose Luis. He did not know Jose Luis’s address but said that he worked on a ranch in San Jacinto. Defendant denied killing Villareal and told Alvarez to “do what you have to do” several times. Alvarez told defendant that they would ask his brothers if defendant was with them on January 13. Defendant first said that they did not need his brothers, then to do whatever he had to.
Alvarez suggested that defendant and Villareal had perhaps had a fight, or that Villareal had tried to shoot defendant. Defendant again denied any involvement, stating that he did not kill Villareal, he did not know who did, and that he had not done anything wrong. He said that Villareal had given him a ride to his brother’s house, but when asked, he did not know if his brother would confirm that.
Inconsistencies in defendant’s story continued to reveal themselves. Defendant first said that he had visited his brothers, and they were home, then changed his statement to say that they were working. He spoke to his brother Pedro, but not Jose Luis. He claimed he had waited for Pedro to come home, then got a ride home with him at the end of the day. He did not answer when asked if Pedro would confirm his story.
Alvarez then told defendant that his brothers had arrived at the station and were being spoken to by other investigators. Defendant first responded that was fine. At one point Alvarez asked if defendant had called his brother for a ride from the crime scene, stating that the brother could get in trouble if that was the case. Alvarez repeatedly asked defendant for the truth, and defendant said he was telling the truth, and had not done anything. When Alvarez raised the question of his brothers’ potential involvement again, defendant said that Alvarez should lock him up, but not talk to his brothers, and later, to put him in jail but leave his brothers alone. He then said: “It was me,...
[¶]... [¶] That’s what you want me to say.”
Alvarez responded that he did not want defendant to say anything, he wanted the truth. He did not want to place defendant’s brothers in the position where they would have to incriminate him. Defendant repeated that Alvarez should lock him up. He denied killing Villareal. This pattern repeated as the interview continued.
Alvarez said that he would be talking to defendant’s brothers. Defendant then said that “some guys” told him that Villareal had been found dead. Defendant did not know what happened to Villareal after Villareal gave him a ride. He then once again repeated that Alvarez should do whatever he wanted, and “lock me up.”
Questioning then continued, with Alvarez eliciting some further detail about the ride Villareal had given defendant. Defendant continued to deny killing Villareal but stated that Alvarez should “lock me up.” Defendant stated that he was not going to answer anymore, and that Alvarez should lock him up. Alvarez asked defendant if he needed anything, and defendant said he did not. Alvarez left the room, ending this portion of the interview.
Defendant’s brother Pedro came into the interview room alone, and their conversation was also taped. Pedro almost immediately said, “[T]he problem is you told him you were with me, dude.” Defendant said “Yes,” after which both men swore. After further conversation, Pedro told defendant it would be better to tell Alvarez the truth. “[L]ook what a... mess,” Pedro added.
Alvarez eventually reentered the room. He told defendant he knew what had happened, but defendant responded that he didn’t remember. After further conversation, Pedro left. After Pedro’s departure, Alvarez advised defendant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and asked defendant after each advisement if he understood. Defendant responded “yes” to each question.
Defendant then told Alvarez that although they had once gotten along, Villareal had begun to threaten him on a regular basis. Defendant did not respond, instead telling Villareal that he did not want any problems.
On January 13, defendant said that he asked Villareal for a ride to the liquor store, but never went. When asked how they ended up in the location where Villareal was killed, defendant said that Villareal took him there. “He had said that he was going to f... me up, well, let him f... me up and... I f...ed him up.” When he got in Villareal’s car, he told him to drive to a field. He accused Villareal of threatening him, which Villareal denied, stating they were friends. Defendant replied that “You are not my friend, you’re always telling me you will f... me up.” Defendant then shot him.
Alvarez then elicited further details, including defendant’s admission that the gun was a.38 caliber. Defendant did not know where the gun was. Defendant said that he had shot Villareal three times, from the front passenger seat, next to him. He said he shot Villareal because of Villareal’s threats. After the murder, he went home on foot, and never did visit his brothers. He later stated that he had not planned to kill Villareal when he asked for a ride, but only once they started talking in the car. The interview continued until after 10:00 p.m., with defendant repeating his story several times. Although there were some inconsistencies, defendant repeated the essence of the confession. Defendant was placed under arrest.
This detail differed from the forensic evidence.
A police search of the area for the gun proved fruitless, but several months later, a gun was found in a grove of trees near the location that Villareal’s body had been found. A forensic examination could not conclusively match the gun to the bullets, but it was consistent.
Defendant was charged with one count of murder (Pen. Code, § 187, subd. (a)). It was also alleged that defendant personally and intentionally discharged a firearm, causing great bodily injury or death. (§ 12022.53, subd. (d).)
Subsequent statutory references are to the Penal Code.
Defendant filed a pretrial motion to suppress his statements to the police, arguing the statements were in violation of Miranda and involuntary. The prosecution was not interested in admitting the interrogation prior to Pedro entering the room. Defendant wanted all statements excluded.
Alvarez testified at the hearing regarding the history of the investigation and the circumstances of the interrogation. Alvarez stated he had used ruses during the interrogation, such as referring to evidence which the police did not have. The ruses Alvarez used, however, did not lead defendant to confess. Defendant did, however, become defensive when Alvarez spoke to him about talking to his brothers.
When Pedro arrived at the station, Alvarez spoke to him to verify defendant’s story. He asked Pedro to see what defendant had to say, but Alvarez did not make any promises of leniency for defendant. Alvarez listened to their conversation. When Pedro left, Alvarez read defendant his Miranda rights in Spanish. Defendant then gave Alvarez information about the crime and crime scene, including specific details Alvarez had not revealed during the earlier interrogation. Defendant was calm and did not seem confused.
Dr. Joseph LaCalle testified for the defense. LaCalle had lived and worked in Mexico, and was familiar with the Mexican justice system. He testified that nothing comparable to Miranda warnings existed in the Mexican justice system. LeCalle had spoken to defendant and his two brothers, learning that defendant came to the United States when he was 18. He had spent most of his time on the horse ranch, and IQ tests revealed defendant was borderline retarded.
LaCalle had watched defendant’s interview and read the transcript, and did not believe defendant understood his rights. He testified that in Mexico, when the police question a suspect, they answer the questions “or else.” Defendant’s repeated statement of “lock me up,” to Alvarez could have meant that he did not want to talk anymore, or wanted a lawyer. He stated that defendant would not have understood his Miranda rights because Alvarez had already “manipulated” and “indoctrinated” defendant as to what he wanted defendant to say. Defendant could not, in LaCalle’s opinion, comprehend the Miranda rights because they do not exist in Mexico, where suspects are beaten until they confess. LaCalle also stated that defendant would interpret Alvarez’s statements about talking to his brothers as a threat, because involving family was “taboo in the Mexican culture.”
The court took the matter under submission. When ruling, the court separated defendant’s statements into different segments. The statements at the ranch, which were brief and not while in custody, were admissible. The initial interview at the police station, however (prior to Pedro’s arrival) was not, because a reasonable person would not believe he was free to leave. Thus, it was custodial interrogation absent Miranda, and the statements were not admissible. The next set of statements, to Pedro, were admissible. The court found that Pedro was not acting as a law enforcement agent, and the conversation was not the functional equivalent of continuous interrogation.
Ultimately, at trial, defense counsel decided to admit the statements during the cross-examination of Alvarez.
The conversation was not admitted at trial, as Pedro could not be located.
The last and critical segment of interrogation was defendant’s post-Miranda statements. The court noted that defendant was advised of his Miranda rights in Spanish, and did not seem confused or equivocate. The advisement was properly given and defendant responded to it clearly. The court also had to determine whether the waivers were voluntary and if they were tainted by the pre-Miranda interrogation. The court had reviewed the videotape, and noted defendant appeared to understand all of the questions and answers. He gave appropriate responses, except for when he became obstinate, stating “lock me up” or “do what you have to do.” The questioning was in his native language by a detective who fluently spoke that language. Defendant’s emotions, as displayed during the interview, were appropriate.
The court then noted that this was not a case where pre-Miranda incriminating statements would make anyone feel that they had no choice but to confess, or a situation where a defendant had asserted his rights, which were then ignored. The court stated that if LaCalle was correct about the meaning of defendant’s “lock me up” and “do what you have to do” comments, defendant would have continued to give those answers. The court thus found that defendant knowingly and voluntarily waived his Miranda rights, his statements were freely and voluntarily made, and were thus admissible. As part of the defense case at trial, an expert testified about police interrogation techniques and the possibility that defendant’s confession was false.
At the conclusion of trial, the jury found defendant guilty of first degree murder and returned a true finding on the firearm enhancement. He was sentenced to 25 years to life for the murder, and a consecutive sentence of 25 years to life on the firearm enhancement.
II
DISCUSSION
Admissibility of Defendant’s Statements
Defendant argues that the court erred by admitting defendant’s confession, arguing that it was involuntary and therefore in violation of his constitutional rights. Before a confession or admissions can be used against a defendant, the state must demonstrate the defendant’s statement was voluntary by a preponderance of the evidence. (People v. Weaver (2001) 26 Cal.4th 876, 920.) “On appeal, the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession is subject to independent review. [Citations.]” (People v. Massie (1998) 19 Cal.4th 550, 576.)
“Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the ‘totality of [the] circumstances.’ [Citations.]” (People v. Neal (2003) 31 Cal.4th 63, 79.) “Among the factors to be considered are ‘“the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.”’ [Citation.]” (People v. Massie, supra, 19 Cal.4th at p. 576.) “In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (Ibid.)
With respect to the facts about the interrogation itself, defendant’s statements were not made as a result of any physical coercion or the threat thereof. Based on the facts in the record and our review of the videotape, defendant was not subjected to prolonged interrogation, physical discomfort, or to extreme psychological techniques. The interrogation was not aggressive or even particularly confrontational.
As to the defendant, he characterizes himself as poor, uneducated, and from a country where Miranda advisements are not given, and therefore especially subject to police coercion. Yet the evidence also demonstrated that defendant had lived in the United States for about 10 years, and thus any argument that defendant was utterly unfamiliar with American culture falls flat.
Further, despite defendant’s IQ test, nothing in his interview with the police suggested that his intelligence was so compromised as to effect his understanding and his ability to waive his rights. In People v. Boyette (2002) 29 Cal.4th 381, the court rejected a similar argument about the defendant’s youth, lack of education, and inexperience: “Defendant also highlights the fact of his youth, his lack of educational achievement, his modest level of literacy, and his unfamiliarity with the legal system as evidence that his confession was involuntary. Although these are factors a court should consider when evaluating the voluntariness of a confession, the record does not even hint that these factors came into play in this case. For example, defendant does not allege he failed to understand the proceedings or [the interrogator’s] statements.” (Id. at p. 412.) Similarly, in the instant case, there is no indication that defendant did not understand his rights, Alvarez’s questions, or the import of his answers.
Defendant argues that Alvarez’s mentions of his family, including deception and what he terms threats, were likely to produce untrue statements. Among other factors, including the context of the comments, nearly all of the mentions of family that defendant points to were in the portion of the interview where defendant continued to maintain his innocence — before his conversation with Pedro. Thus, we do not find that either mentions of his family or any deception on Alvarez’s part was of the kind likely to produce a false confession. (See People v. Chutan (1999) 72 Cal.App.4th 1276, 1280.)
Defendant next claims that promises of leniency led to his confession. Upon review of the record, however, we find that Alvarez did not cross the line into police misconduct. Indeed, “investigating officers are not precluded from discussing any ‘advantage’ or other consequence that will ‘naturally accrue’ in the event the accused speaks truthfully about the crime. [Citation.] The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 340.) We do not find any of the techniques complained of by defendant, taken separately or together, meet this criteria. Alvarez’s statements, reasonably interpreted, amounted to the fact that it would be better for defendant to tell the truth. This was not so coercive as to produce an involuntary statement.
In cases where there are both pre- and post-Miranda interrogations, a critical fact in determining the admissibility of the later statement is whether the pre-Miranda statement was voluntary. “[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” (Oregon v. Elstad (1985) 470 U.S. 298, 314; see also People v. San Nicolas (2004) 34 Cal.4th 614, 639.)
Given our findings on voluntariness, we can readily reach this conclusion here. We thus reject defendant’s argument that the pre-Miranda interrogation so tainted the later statement as to render it involuntary. As the trial court correctly found, this was also not a case where the “cat is out of the bag,” meaning that the earlier interrogation had produced a confession. Indeed, throughout the pre-Miranda interrogation, defendant repeatedly denied his culpability.
We also reject, as simply unsupported by the record, that Pedro was acting as a police agent when he spoke to defendant. Indeed, this assertion is belied by substantial evidence in the record and the recording of the conversation itself.
In sum, nothing about the physical circumstances or psychological techniques used during the interrogation indicates defendant’s statements were not “‘essentially free’” or that his “will was overborne.” (People v. Memro (1995) 11 Cal.4th 786, 827.) Thus, upon independent review of the totality of the circumstances (People v. Massie, supra, 19 Cal.4th at p. 576), we conclude defendant’s confession was voluntary.
Jury Instruction Regarding Reasonable Doubt
Defendant next argues that CALCRIM No. 220, on reasonable doubt, is constitutionally deficient on its face. He first claims that it does not inform the jury that a lack of evidence is to be considered in determining reasonable doubt, and further instructs the jury to “compare and consider all the evidence.”
Nearly identical arguments about CALCRIM No. 220 have been rejected by other courts on numerous occasions. (People v. Zavala (2008) 168 Cal.App.4th 772, 781; People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1505-1510; People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1156-1157.) We agree with the overwhelming weight of uncontradicted authority and find no error.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J. FYBEL, J.