Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. LA045010, Barry A. Taylor, Judge. Affirmed as modified.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
JOHNSON, J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
The issue presented in this case is whether the trial court erred in finding the defendant’s statements obtained in violation of Miranda were nevertheless voluntary and thus admissible to impeach his testimony at trial. We find his statements were voluntary and accordingly affirm the convictions. However, we will order the abstract of judgment corrected to delete the one-year term erroneously added to the One Strike sentence imposed on the forcible sex offense count. As so modified, we affirm.
Miranda v. Arizona (1966) 384 U.S. 436.
FACTS AND PROCEEDINGS BELOW
Defendant and appellant Paul Ott worked for many years in the movie industry as a grip. Ott had a serious crack cocaine habit. He also had a penchant for street prostitutes when smoking crack cocaine. The present case concerns some of his victims during a weeklong crack cocaine binge.
T.V.T. worked downtown Los Angeles as a prostitute for years. Around 5:30 a.m. on Thursday, January 15, 2004, T.V.T. was “working the streets” at Beacon and 8th. Ott pulled up in his SUV and offered T.V.T. $40 for a “blow job.” T.V.T. agreed, and got into his SUV. Once inside his vehicle Ott told T.V.T. he would give her more money if she would go with him to his apartment. T.V.T. agreed.
While driving to his apartment in the San Fernando Valley Ott started smoking crack cocaine. This alarmed T.V.T. She preferred not to work with crack users because, as she put it, “it’s too time consuming and messy; too many headaches.”
Ott parked his SUV in a covered garage and the two entered his townhouse apartment. They went upstairs to his bedroom and undressed. T.V.T. orally copulated Ott for about 15 minutes. Ott then smoked some more crack cocaine and lost his erection. Once he regained his erection, Ott turned T.V.T. around and sodomized her. T.V.T. told him “No.” She yelled for him to stop. Ott ignored T.V.T.’s complaints and continued to alternately sodomize her and smoke cocaine. A few times Ott shared his cocaine with T.V.T.
T.V.T. said she wanted to leave. Ott told her she could not leave. He kept T.V.T. in his apartment for almost 18 hours. When T.V.T. at some point started to put on her shoes to leave Ott choked her until she passed out. When T.V.T. regained consciousness, she was leaning against a wall and Ott was holding a black rope in his hand. Ott told her, “‘We can do this nicely and we can do this another way.’” T.V.T. capitulated and they resumed their sexual activity, with Ott sodomizing her repeatedly.
At some point T.V.T. tried to fight back. Ott brought out a cordless hand drill from under the nightstand, put the drill bit close to the center of her forehead, and revved the motor. T.V.T. was terrified. During their hours together Ott had told T.V.T. how he had once gotten information out of someone by pulling out his entrails.
Finally, Ott permitted T.V.T. to dress and leave. At the door, Ott told her she was lucky to be leaving alive. Ott never paid T.V.T. any money. Once outside, T.V.T. ran to the bus stop and took a bus back downtown.
T.V.T. did not file a complaint with the police. However, a few days later on January 20, 2004, T.V.T. was washing dishes when she heard a news broadcast about police having found a dead woman’s body in a SUV. The news broadcast mentioned Ott’s street and showed the school T.V.T. had seen across the street from Ott’s apartment. When T.V.T. heard the murder suspect described as a white man with a shaved head, goatee and mustache, T.V.T. realized it was the same man who had terrorized her a few days before. As T.V.T. put it, when she “heard about a dead girl found in the back of a truck, that’s what got [her] attention.”
T.V.T. called 911 and was ultimately put in touch with the investigating officers on the homicide case. T.V.T. picked Ott’s photo from a six-pack photo array as the person who forced her to have anal sex with him and the man who had kept her in his apartment for 18 hours.
On Friday, January 16, 2004, the day after his day with T.V.T., Ott got together with his friend Justin Elliot. Elliot was a heroin addict. They had met a few months before in rehab but both had since relapsed.
Ott went to Elliot’s studio apartment and they both smoked crack cocaine. They then drove to 6th and Main Streets downtown to buy more crack cocaine. Ott told Elliot he needed a prostitute before he would smoke any more cocaine. Ott pulled his SUV over near an older Hispanic woman and asked her if she wanted to “get high and party.” She agreed, and got into Ott’s SUV. Elliot thought the woman singularly unattractive. In his view, she looked old and worn out from years of living on the street and from years of drug and alcohol abuse.
Ott drove into a residential area and parked. Ott and the woman got into the back of the SUV where they both smoked crack cocaine. The woman then orally copulated Ott as Elliot watched from the front passenger seat. Elliot described Ott as having tattoos all over his body, including his back and on his penis. At some point, the woman pulled her mouth away from Ott’s penis and Ott got very angry. He grabbed the woman’s neck and forced her mouth back onto his penis. After Ott gave her another hit of cocaine she became very nervous, paranoid and fidgety. Ott got upset and cursed at her. He threw her clothes out of the SUV and then forced her out of the vehicle naked.
Afterward, Elliot asked Ott what attracted him to such a woman. Ott replied he enjoyed having complete control. Ott told Elliot he could treat them however he wanted and could talk to them however he wanted, and there was nothing they could do about it because they were just crack-addicted street prostitutes. Ott believed he could verbally and physically assault these women with impunity because he believed, as dope addicts, they would never report any assault to the police, and if they did, no one would believe them in any event. In Ott’s mind, prostitutes do not put themselves into the judicial system voluntarily.
Elliot asked Ott to take him home. Instead, Ott found another woman and drove her back to Elliot’s apartment in Hollywood. There, all three smoked crack cocaine and the woman orally copulated both of them. Around 5:00 or 6:00 a.m. Ott left Elliot’s apartment with the woman.
On Saturday, January 18, 2004, Elliot called Ott to see what he was doing. Ott said he could not come over because he was sleeping and drinking alcohol trying to come down from a cocaine binge. Elliot called Ott again on Sunday but Ott said he was busy trying to clean up his apartment.
Around midnight on Sunday, January 19, 2004, Ott pulled his SUV alongside C.L. as she was walking back to her residence at 729 South Union Street downtown. She had just purchased lighters at a liquor store and was on her way home to smoke the crack cocaine she had earlier purchased. C.L. was a crack addict. She denied being a prostitute. As C.L. described it, her modus operandi was to solicit would-be “Johns, ” take their money up-front and then run away with their money without performing any sex act.
Ott asked C.L. to help him. C.L. approached to find out what he wanted. Ott said something about helping him find his two daughters. He showed her a photo on his cell phone of two young girls. C.L. thought Ott was talking and acting weirdly. She then saw something shiny in his lap and C.L. believed it might be a gun. Ott told her to get into his SUV. Ott took hold of her jacket to help her get inside the SUV. Once inside his SUV Ott told her he did not want her to see where they were going. Ott told her to recline the passenger seat and to lie back as he drove on the freeway. C.L. told Ott she could still see her surroundings, including exit signs on the Hollywood Freeway, and offered to sit on the floorboard instead.
Ott told her they were going to pick up a package first and then they would go to his place “to party.” When Ott reached his destination, he opened a garage door with a remote control device. Ott got out of the SUV and came around to the passenger side. He told C.L. to come with him but not to look at her surroundings.
Inside the garage, C.L. saw a rolled-up carpet. The rolled-up carpet was tied with rope. C.L. hoped the carpet contained Ott’s dog but then she noticed the outline of human feet. Ott told C.L. to pick up one end as he picked up the other end of the carpet. C.L. noticed it began to leak as they moved it. C.L. got sick to her stomach and dropped the rolled-up carpet. Ott began pushing the carpet and cursing at it. He kicked the carpet and called it a “piece of shit.” Ott led C.L. to believe the carpet contained the body of a man with whom he had had an altercation when the man tried to harm his daughters.
Ott loaded the body into the back of his SUV and drove to a drive-through restaurant to buy something to eat. At the window of the fast food restaurant Ott told C.L. he hoped the employee could not “smell the damn body because that bitch stinks.”
When they arrived at his apartment, Ott pulled a ski mask over C.L.’s head so she could not identify the location. Inside his apartment, Ott told C.L. not to look as his mail, magazines, or out his windows, and to stay away from his daughters’ room and the boxes inside his apartment.
Upstairs in his bedroom Ott told C.L., “Welcome to my playground.” He apologized for the smell, claiming he had cleaned up the blood as best he could. C.L. noticed a blood smear on the wall and blood stains on the mattress. They flipped the mattress over and changed the sheets.
Ott told her to undress and wait for him. Ott returned to the bedroom with a skill saw, a broomstick, paper towels and packing foam. Using these materials Ott made a dildo. When he was finished, he covered it with a condom to hold all the materials together. C.L. had been terrified when she saw Ott with the skill saw. She asked Ott what he intended to do with this makeshift dildo he had just made. Ott said he was going to put it in her anus. C.L. told him “No” C.L. told Ott she did not like anal sex, and did not do anal sex. Ott replied, “You’ll like it. Everybody likes it.”
Ott used the makeshift dildo as an “incentive” for her to “perform well.” Ott told her to orally copulate him “and do a damn good job or else he would run the skill saw up and down [her] spine.” Ott told her a story of how once someone had bit his penis. Ott said he ripped out her teeth, and then beat her and tied her up. Ott also warned C.L. this was not the first time he had killed someone. Ott told C.L. he had cut off a woman’s head once. Ott showed C.L. a photo he had in his cell phone of a decapitated woman lying in bed. Ott also showed C.L. a human skull he kept in his closet.
As C.L. orally copulated Ott he sodomized her with the dildo. This went on and on for hours and hours despite C.L.’s screams of pain and pleas to stop. Ott put his skill saw near her spine and revved the motor, letting her know she had better stay compliant. After several hours with Ott C.L. felt so tired she wanted to “either die or go home.” Ott had set an alarm clock for two hours claiming he would let her go when the alarm rang. Instead, he simply reset the alarm clock every two hours. Once when C.L. said she wanted to go home Ott threatened to shoot up her anus with speed so she would remain alert while he cut off her arms and legs.
After about 10 hours together Ott decided to leave the apartment to buy some beer. It was now around noon. Before leaving, he bound C.L.’s arms, hands, and ankles with medical tape and then tied them together. He put tape over her mouth and wrapped an Ace bandage around her head and face. He used a leather belt to tie her bound hands and feet together and then tipped her over.
After some time C.L. managed to wriggle and bite her way out of the bindings and fled Ott’s apartment, leaving several articles of clothing behind. She ran to a nearby apartment building screaming for someone to call 911. The apartment manager called 911 and officers arrived within minutes. The officers found C.L. crouched in a fetal position, crying hysterically and shaking violently and uncontrollably. She still had tape around her ankles and the Ace bandage around her neck. C.L. told the officers over and over statements to the effect, “He’s going to kill me.” “There’s a dead body in a truck.” “Hurry and find it before he gets away.”
In moments of calm between bouts of hysteria, C.L. explained she had been held captive for hours, sodomized with a broomstick and then tied up. C.L. told the officers about the dead body she and Ott had loaded into Ott’s SUV and about the picture she had seen of the decapitated woman on Ott’s cell phone.
The officers called for assistance to search for the SUV C.L. had described. C.L. did not know the exact address of Ott’s apartment but knew it had to be only a block or so away. Officers walked through the nearby streets and found the SUV in a covered parking area of townhouses on Costello and Sherman Way. The right front passenger seat was in a reclined position, as C.L. described. There was a baby seat inside the vehicle, also as C.L. described. There was a rolled-up carpet in the SUV’s back cargo area. After opening up the SUV and more closely inspecting the rolled-up carpet, it became apparent the carpet contained a dead body. The officer touched a human knee and it was very cold to the touch. Additional officers arrived and assisted in setting up a crime scene around Ott’s apartment and garage.
Officers searched Ott’s apartment and gathered evidence for the next ten hours. The body had been wrapped in a sheet, shower curtain, and then the carpet. The sheet matched the sheet on Ott’s bed. Inside Ott’s apartment, officers found the wrapper for a shower curtain which matched the shower curtain in which the body had been wrapped. When the officers inspected the carpet, they noted Ott’s name written on the reverse.
Officers found a replica of a human head in a closet of Ott’s apartment. They also found a spear gun, the stick Ott had used to make the dildo, rolls of masking tape, the power saw, power drill, numerous bloodstains and other evidence.
The body was that of a woman, E.M. An autopsy revealed she had been beaten around the face several times. She had numerous defensive wounds on her arms and hands. She had sustained a two-inch gash in her upper arm and other wounds. Analysis of the compression to her neck showed E.M. had been strangled to death. E.M. had also sustained a four-inch deep stab wound to her chest. The coroner opined both of these were fatal injuries.
In the meantime, officers had transported C.L. to Northridge Medical Center where she was examined by a nurse practitioner specializing in sexual assault forensic nursing. C.L. was photographed and examined internally and externally for injuries. The nurse found no injuries to C.L.’s anal area.
On Monday afternoon, Ott spoke with Elliot on the telephone and asked Elliot if he could come over. When he arrived at Elliot’s apartment they both smoked crack cocaine. Ott told Elliot he had gone too far with a prostitute over the weekend and had “crossed the line.” Ott explained she had defecated in his bed and he became so overcome with rage he had killed her. Ott told Elliot he used his spear gun, as well as a knife and his power tools to kill her. Ott said he held up his spear gun and the prostitute mocked him, saying he would not really use it. In response, he shot her. Ott said he used the knife to stab her in the chest and did something with the power tools after she was dead.
Ott warned Elliot not to tell anyone. Ott pulled out the gas line attached to the apartment’s water heater and threatened to cut the line and blow up the place if Elliot said anything. Ott told Elliot if he felt threatened in any way he would also terrorize Elliot’s next-door neighbor, an elderly woman. Ott also threatened to inject Elliot with a huge quantity of heroin, saying everyone would just think he had died of an overdose. Elliot was terrified of Ott.
Around 4:00 a.m., Ott called his ex-girlfriend. He said he needed her help because he had killed someone. She did not take Ott seriously. However, later in the afternoon she contacted police when she heard the news report of police finding E.M.’s body in Ott’s SUV.
Ott stayed inside Elliot’s apartment from Monday afternoon through Wednesday. Elliot went out at least once a day to buy newspapers, food and other supplies. From the newspaper accounts, Ott knew police had his physical description. Ott tried to change his appearance by shaving off his goatee and mustache.
During the course of their days together Ott told Elliot stories of how he had once severed a woman’s head, and how he kept a few decapitated heads in his closet. Elliot had personally seen a photo Ott had in his cell phone of what appeared to be the head of a dead woman. Elliot had also overheard Ott tell a one-time girlfriend how he had killed a man and thrown his body alongside a freeway off-ramp into the bushes.
Ott also told Elliot how he had sodomized various prostitutes using a large dildo. Ott told Elliot about his time with C.L. and about how she had helped him move the body. Ott explained he left C.L. to go to the liquor store and when he returned he saw numerous police officers examining the trunk of his SUV. Ott said he flagged down a motorist who drove him to his friend’s house in the Hollywood Hills.
On Wednesday, Elliot left the apartment, supposedly to purchase more drugs. Elliot managed to leave with his cell phone by hiding it in his pocket. Once outside Elliot called 911 and told dispatch he had a murder suspect in his apartment. He met with police officers down the street and told them of Ott’s numerous threats to his and his neighbor’s safety in the event he alerted authorities to his location.
As police officers came to arrest him Ott fell or jumped from the second story window of the apartment. Ott injured his back and leg in the fall and officers transported him to Cedars Sinai Medical Center for treatment.
At trial, Ott called numerous witnesses in his defense. Some of the witnesses testified to E.M.’s character trait for aggressiveness and to the fact they had seen her before with a knife.
Some of Ott’s ex-girlfriends testified. They agreed he was sometimes forceful during sex, sometimes wanted anal intercourse, but would stop after they asked him several times to do so. One ex-girlfriend recalled how Ott had terrified her young nephew by telling him he was going to cut off his head.
Ott testified in his own defense. He explained he used power tools in his work as a grip and had them in the apartment because he had just moved into the townhouse and he used the tools to set up his daughters’ bunk bed.
Ott testified T.V.T. was a prostitute he picked up from the corner of 8th and Bixel. Ott took her to his apartment where they smoked dope and had consensual oral sex. Ott denied threatening her with a drill and denied choking her. Ott also denied sodomizing T.V.T. Ott said he drove T.V.T. back downtown less than two hours later.
Ott claimed he had had a several month relationship with E.M. Ott explained he picked her up from the homeless shelter approximately once a week and they would eat something together and have sex.
On Saturday, January 18, 2004 Ott picked E.M. up and they drove to his apartment. She was acting bizarrely and hollering about having A.I.D.S., and about dying of A.I.D.S. Ott had never seen her acting so strangely before. He stepped out of the bedroom for a moment and when he returned he saw E.M. going through his closet. She was holding his spear gun in her hand. Ott was enraged. He demanded she hand it over. Ott reached for the spear gun and E.M. kicked him. E.M. then kicked over his television set. E.M. started cursing, hollering and complaining she needed money to pay some debt.
Ott said he thought he better just take her home. E.M. hit him in the chest. He shoved her back. E.M. took out a small folding knife and lunged at him. Ott grappled with her and grabbed the knife out of her hand. E.M. then retrieved a much larger knife from her purse. The two started fighting over the knife. Ott sustained multiple cuts to his hand. He struck E.M. in the face, grabbed her by the neck, and squeezed. Somehow in the struggle, he fell onto the bed on top of E.M. and the knife accidentally went into her chest. According to Ott, E.M. then urinated, defecated and died.
Ott said he was so terrified he panicked. He wrapped E.M.’s body in a sheet, shower curtain and carpet. He then placed E.M.’s body in his friend’s garage. The next day he had C.L. help him move E.M.’s body into his SUV.
Ott admitted he had a replica human skull in his closet but denied he had a photo of a woman’s severed head on his cell phone. He explained it was simply a photo of a woman asleep with the sheets pulled up to her neck. He denied ever threatening anyone with the skill saw or power drill.
Ott testified his sexual activities with C.L. were also entirely consensual. He explained he only made the dildo at C.L.’s request when C.L. became very frustrated with him for failing to have an erection. However, Ott claimed they never used the dildo and claimed he never had anal sex with C.L. Ott admitted tying C.L. up. He explained he did not feel comfortable leaving her alone in his apartment.
As relevant to this case, an information charged Ott with the murder of E.M., sexual penetration of C.L. with a foreign object, forcible oral copulation with C.L., and sodomy of C.L. and T.V.T. by use of force.
Penal Code section 187, subdivision (a), count 1. All further statutory references are to the Penal Code.
Section 289, subdivision (a)(1), counts 2 and 3.
Section 288a, subdivision (c)(2), count 4.
Section 286, subdivision (c)(2), counts 5, 6 and 7.
As to the murder charge in count 1, the information alleged Ott personally used a deadly weapon. As to counts 2, 3 and 4, the information alleged Ott had kidnapped C.L., thereby substantially increasing the risk of harm. As to counts 2 through 7, the information alleged Ott personally used a deadly or dangerous weapon in the commission of the offenses and committed forcible sex crimes against multiple victims. Finally, the information alleged Ott had suffered a prior felony “strike” conviction for which he had served a prior prison term.
Section 12022, subdivision (b)(1).
Section 667.61, subdivision (d).
Section 667.61, subdivisions (a), (b) and (e).
Sections 667, subdivisions (a) and (b) through (i), 1170.12, subdivisions (a) through (d), 667.5, subdivision (b).
The jury convicted Ott of murder in count 1 and found the murder to be in the second degree. The jury found true the allegation connected to this count Ott personally used a deadly weapon in the commission of the offense. The jury also convicted Ott of one count of forcible oral copulation against C.L. and found true the allegation Ott personally used a deadly or dangerous weapon in committing the forcible sex offense. The jury further found the forcible sex crime involved multiple victims. The jury acquitted appellant of the remaining five counts and found not true all the other allegations.
At the sentencing hearing, the parties discussed the inconsistency in the jury’s verdicts and the likelihood of probable juror confusion. To resolve the matter, the court granted Ott’s motion for new trial on the multiple-victim finding and simultaneously granted the prosecutor’s request to dismiss the multiple-victim finding as factually and legally erroneous.
Ott appeals from the judgment of conviction.
DISCUSSION
I. THE TOTALITY OF THE CIRCUMSTANCES SUPPORTS THE FINDING OTT’S STATEMENTS WERE VOLUNTARY AND THUS ADMISSIBLE FOR IMPEACHMENT PURPOSES.
To recall, in attempting to avoid arrest Ott fell or jumped from a second story window and injured his back. Ott was treated at Cedars-Sinai Medical Center. Detectives English and Cox went to Cedars-Sinai around 7:00 a.m. to interview him. Ott was in a straight-backed wheelchair. He had been given pain medications and was sick to his stomach. The detectives informed Ott they wanted to speak with him but thought they ought to come back later when he was feeling better. Ott complained he felt sick, hurt and could not walk. Ott assured the detectives he was “going to cooperate.” The detectives told Ott they would come back later.
Other officers booked Ott and transferred him to the medical ward of the Twin Towers jail. The next day around 9:00 a.m., Detectives English and Cox again came to interview Ott. He was dressed in hospital garb and again sitting in a straight-backed wheelchair.
Detective English told Ott, “You said you wanted to talk with us.” Ott agreed he had told the detectives he wanted to talk. However, he complained he had not slept, and could not sleep sitting upright in a wheelchair. Ott explained, “So I’m not clear-minded, and I’m not going to be able to tell you as much as I want to.” Detective English suggested covering as much as possible. The detectives got Ott additional blankets because he was complaining he was cold and shivering.
The initial part of the interview covered basic information such as the day, date and time. The detectives then asked Ott preliminary questions about his personal history, such as questions about family members and friends, their names, and where they lived. The detectives then discussed Ott’s personal information. Ott said he was then 35 years old and worked as a grip in the movie industry. He belonged to the IATSE union and cashed his checks at the IATSE Credit Union. The last school he attended was Santa Monica City College. He had lived in Los Angeles his entire life. Ott told the detectives he was discharged from parole six years earlier in 1998. He recalled his parole officer’s name was Mr. Gains who worked out of the Lancaster office. They discussed the various vehicles Ott had owned the past few years and the fact he had a tattoo of his nickname, “Otter.”
Detective English then told Ott, “You’ve expressed an interest in talking to us, and we would like to talk to you and find out about all this, but before we do that, we have to advise you of your rights; okay? So we’re going to do that now.” Ott agreed he wanted to talk to the detectives and tell them his side of the story, but explained, “I can’t do it right now . . . I’ll rest.” The detective nevertheless read Ott his Miranda rights and then asked Ott if he wished to waive those rights and speak to the detectives. Ott replied, “No, not today.” Ott repeated he wanted to talk to the detectives but not right then. He explained, his back hurt, he was not able to sleep, and he was freezing cold and shivering. Ott complained the sheriffs were torturing him by making him sit in a wheelchair instead of giving him a bed where he could sleep.
The detectives, however, did not honor his right to remain silent and proceeded to question Ott about the photo of the decapitated woman and asked if they should be looking for more dead persons. Ott told the detectives the photo was a fake and there were no more dead bodies. He described the incident with E.M. in detail. Ott said she attacked him and he struggled with her over the knife in an attempt to defend himself. Ott showed the detectives the bandages on his hand covering the wounds he had received in the fight. Ott said E.M. had come at him with his spear gun, acting crazy, and he had to take it away from her. Ott said E.M.’s death was purely accidental.
Periodically, Ott said he could not talk any more. He promised the detectives he would talk to them later. The detectives told Ott they really were pressed to find out if there were “additional victims out there” he had also killed. Ott assured the detectives there were not. The detectives tried to find out why so many witnesses claimed Ott had shown them a photo of a woman with a severed head and why he had told so many witnesses he had killed before. Ott insisted there was only one dead body.
Ott also explained the situation with C.L. He claimed making the dildo and tying C.L. up were just games they were playing. The detective said C.L. had told him she did not enjoy having Ott stick the dildo up her anus. Ott replied, “Oh, she did too. She was the one who asked me to make it smaller.”
Ott denied choking anyone and explained the power tools were just there for the “drama” effect. He explained he used the power tools to scare people when they made him angry. Ott complained all the women wanted was to smoke his crack cocaine. He claimed they only complained to the police when he stopped giving them dope. Ott said the women were all in cahoots with each other and all of them intended to rob him of his money and drugs. Ott nevertheless admitted he liked being with drug addicted street prostitutes whenever he smoked crack cocaine.
After more discussion along these lines, Ott told the detectives “I can’t talk anymore. I talked more than I . . . can, and I did that out of courtesy for you gentlemen that are here.” The detectives nevertheless pursued their inquiry of the identity of the decapitated woman depicted in the photo in his cell phone. They asked Ott where he picked her up, her possible whereabouts now, and the like. Ott opined she was either with her boyfriend in Culver City or back on the streets downtown buying heroin.
Near the end of the interview the detectives asked Ott if there was anything else he wanted to talk to them about. Ott said, “Yes.” “But not today.” Ott agreed there were more things he needed to tell them but preferred to talk when he was rested and clear thinking.
The prosecutor did not attempt to use any of Ott’s statements in her case-in-chief. After the prosecutor rested, however, defense counsel requested an evidentiary hearing to determine whether the prosecutor would be allowed to use Ott’s pretrial statements for impeachment purposes if Ott testified at trial.
In preparation for the hearing, the trial court reviewed the tape and transcript of Ott’s interrogation. The court commented, “Well, obviously there was a Miranda violation, no question about it, and I suspect that’s why [the prosecutor] didn’t attempt to use the statement in her case in chief.” The prosecutor replied, “Well, actually, it was totally self-serving. That’s why I didn’t use it in my case in chief. He said it was self-defense and then he didn’t do any of the other things, . . . ”
The court commented the only issue for decision then was whether Ott’s statements were voluntary. Defense counsel argued they were not. Counsel pointed out Ott complained throughout the interview he was sleepy, cold, tired and in pain. Ott repeatedly told the detectives he could not talk anymore until he could get some rest. Defense counsel argued Ott’s statements were involuntary and thus could not be used for impeachment.
The court noted Ott’s complaints throughout the interrogation but commented, “it’s not really like they were talking to someone who absolutely refused to talk to them and then kept pushing on, which I think is a little different situation when you’re talking about voluntariness. And in this case I think your argument goes toward psychological coercion rather than physical coercion, . . . [¶] So the real issue is whether there was sufficient psychological coercion to make this statement that was made involuntary.”
The trial court properly recognized the crucial issue in deciding voluntariness was whether Ott’s statements were the product of police coercion. It is thus immaterial defense counsel later apparently conceded the case involved physical and mental coercion, and not police coercion.
After further discussion and argument, the trial court concluded the circumstances of the interrogation did not rise to the level of coercion. The trial court accordingly denied Ott’s motion to exclude his statements for impeachment purposes.
On appeal, Ott claims his statements were involuntary and thus inadmissible even for impeachment purposes. He claims his statements were the product of the detectives’ exploitation of his weakened mental and physical condition. He argues the trial court’s contrary finding constituted prejudicial error requiring reversal of his convictions.
“An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution. [citation] as well as article 1, section 7 and 15 of the California Constitution [citation].” “A statement is involuntary when ‘among other circumstances, it “was ‘“extracted by any sort of threats . . ., [or] obtained by any direct or implied promises, however slight . . . ”’” [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the “totality of [the] circumstances.’” [Citation.] ‘Coercive police activity is a necessary predicate but does not itself compel a finding that a resulting confession is involuntary. [Citation.] While the fact that a statement was obtained despite the defendant’s invocation of the right to counsel is [or, as in this case, right to remain silent] one of the circumstances we consider, it also is not dispositive.’ [Citation.] Additionally, ‘such activity must be, as it were, the “proximate cause” of the statement in question, and not merely a cause in fact.’ [Citations.]”
People v. Weaver (2001) 26 Cal.4th 876, 920.
People v. Jablonski (2006) 37 Cal.4th 774, 813-814.
The People bear the burden of proving the voluntariness of custodial statements by a preponderance of the evidence. When reviewing the trial court’s determination a confession was voluntary, “we apply an independent standard of review, doing so “in light of the record in its entirety, including ‘all the surrounding circumstances—both the characteristics of the accused and the details of the [encounter].’”’ (People v. Neal [(2003)] 31 Cal.4th [63] at p. 80.) We ‘“accept the trial court’s factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence.” [Citations.]’”
People v. Weaver, supra, 26 Cal.4th 876, 920.
People v. Jablonski, supra, 37 Cal.4th 774, 814.
Applying this independent standard of review, we conclude Ott’s statements were voluntary.
It is true the detectives did not honor Ott’s repeated requests to remain silent. This is a circumstance weighing in favor of a finding of involuntariness. On the other hand, it is apparent from a review of the interrogation the detectives did not deliberately ignore Ott’s Miranda rights simply to get a statement. The detectives’ focus was instead on attempting to learn whether there were multiple murder victims. So many different, and unrelated, persons told them Ott had claimed to have killed several people this no doubt created some pressure to find out whether it was true. While the detectives’ motives may have been understandable in the context of this case, no excuse can justify violating Miranda’s constitutional directives.
People v. Jablonski, supra, 37 Cal.4th 774, 814.
In any event, the circumstance of the detectives repeatedly violating Ott’s right to remain silent is countered by his similarly repeated expressions of desire to talk to the detectives to tell them his version of events. Ott’s statements he wanted to talk to the detectives to tell his side of the story tended to show he was capable of calculating his self-interest.
People v. Coffman (2004) 34 Cal.4th 1, 59.
Many of the circumstances of the interrogation were also not ideal. Ott was in a jail medical ward recovering from a back injury in the fall. He was in pain. He was uncomfortable in the wheelchair. Ott complained he was shivering with cold. He complained throughout he was tired, needed rest, and had been unable to sleep and wanted a bed. Despite Ott’s suggestion to the contrary, these circumstances, even in combination, do not compare to the circumstances in Mincey v. Arizona in which the Supreme Court found the defendant’s confession was involuntary. In Mincey, the defendant was interrogated for three hours while going in and out of consciousness after being shot, while complaining of unbearable pain, while being administered narcotic medications and despite his pleas to remain silent and for the assistance of counsel.
Mincey v. Arizona (1978) 437 U.S. 385.
Mincey v. Arizona, supra, 437 U.S. 385, 387, 396.
In this case the police interview lasted no more than 45 minutes. Ott did not complain of unbearable pain. Nor did he suggest he was under the influence of any pain medications. This circumstance, had it existed, would not be dispositive in any event. “The fact an interviewee is under the influence of alcohol or drugs is a significant factor. However, it is not, standing alone, a sufficient indicator of involuntariness.” Unlike Mincey, Ott was alert, conscious and expressed interest in talking to the detectives, if not right then, then after he had rested.
See, e.g., People v. Perdomo (2007) 147 Cal.App.4th 605, 617; see also, People v. Weaver, supra, 26 Cal.4th 876, 921 [the fact the defendant may have been under the influence of medications did not establish the involuntariness of his statements; the due process inquiry focuses on the alleged wrongful and coercive action of the state, not the mental state of the defendant].
Moreover, and despite his protestations to the contrary, Ott’s statements show he was sufficiently clear-minded to make sure virtually all his statements were exculpatory. His thinking was clear enough to describe his struggle with E.M. as an act of self-defense. He was also careful to describe E.M.’s death as accidental. In his statements, Ott explained all his encounters with his prostitute victims were consensual. By his own admission, he at times even gave sarcastic and/or flip responses to the detectives’ questions. Overall, Ott’s statements were so self-serving they provided very little useful information for impeachment. Indeed, Ott’s statements were so demonstrably self-serving, on redirect defense counsel went through his statements nearly line by line to show the jury how consistent they were with Ott’s claims at trial of accidental death in self-defense and consensual sex.
Ott’s personal characteristics also support a finding of voluntariness. Ott was a mature adult. He was then 35 years old. He had attended college. He had a full time job in a competitive industry. Ott was presumably sophisticated and experienced enough to know he did not have to speak to the detectives unless he wished to do so. Ott’s criminal history also suggests Ott would not easily succumb to improper questioning. Ott’s history shows he had suffered multiple prior felony convictions, numerous arrests, and had served time in prison. He likely gained some familiarity with the criminal justice system from these experiences. In addition, Ott’s recall of minor details was quite remarkable. He remembered the name of his parole officer with whom he had his last contact six years before.
Compare People v. Neal (2003) 31 Cal.4th 63, 84 [circumstances indicating the defendant’s statements were involuntary included the defendant’s youth, minimal education and low intelligence].
See, e.g., People v. Coffman, supra, 34 Cal.4th 1, 58 [although the interrogator ignored the defendant’s requests for an attorney, “given Marlowe’s maturity and criminal experience (he was over 30 years old and a convicted felon at the time of the interrogation)—it was unlikely Marlowe’s will was thereby overborne.”].
In further support of a finding of no improper police coercion, we note the record contains no suggestion the detectives wore Ott down by using threats, promises, or trickery. The only special treatment the detectives gave Ott was securing him additional blankets after he complained of the cold.
People v. Whitson (1998) 17 Cal.4th 229, 249; see also, Colorado v. Connelly (1986) 479 U.S. 157, 164 [“Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.”].
In light of the entire record, including all these surrounding circumstances of Ott’s personal characteristics and the details of the interrogation, we conclude Ott’s statements were voluntary and not the product of improper coercion. Accordingly, we further conclude the trial court did not err in permitting their use for impeachment.
II. THE ABSTRACT OF JUDGMENT MUST BE CORRECTED TO DELETE THE ONE-YEAR TERM FOR THE WEAPONS USE ENHANCEMENT ADDED TO THE ONE STRIKE SENTENCE ON COUNT 4.
A defendant charged with a qualifying forcible sex offense is subject to sentencing under the so-called One Strike law in the event the fact finder also finds the sex offense was committed under one or more of the specified aggravating circumstances listed in section 667.61. In the event the fact finder only finds true the minimum number of qualifying aggravating circumstances to justify the harsher sentencing under section 667.61, then that circumstance, or those circumstances, must be used to impose punishment under the One Strike law rather than under any other provision of law.
The special punishment provided for in section 667.61, applies to certain forcible sex crimes, including rape, sodomy and penetration with a foreign object. (§ 667.61, subd. (c).)
The aggravating circumstances listed in section 667.61 subdivision (e) include kidnapping, burglary, infliction of great bodily injury, use of a dangerous or deadly weapon, multiple victims, and binding or drugging the victim.
Section 667.61, subdivision (f) provides in pertinent part: “If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b), whichever is greater, rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty, or the punishment under another provision of law may be imposed in addition to the punishment provided by this section. . . .”
In the present case, the jury convicted Ott of one qualifying forcible sex offense—forcible oral copulation. The jury also found true only one of the aggravating circumstances to trigger the heightened punishment under section 667.61—use of a deadly or dangerous weapon. Accordingly, the trial court was required to—and did—use this circumstance to impose punishment under section 667.61, subdivision (b), specifically, imprisonment in state prison for 15 years to life, doubled as a second “strike” offense to 30 years to life.
Section 667.61, subdivision (c)(7).
Section 667.61, subdivision (e)(4).
Section 667.61, subdivision (f); People v. Mancebo (2000) 27 Cal.4th 735, 744, 754 [because the gun use findings were used to impose punishment under section 667.61, subdivision (a) for sex offenses against two victims, the trial court could not also impose gun use enhancements under section 12022.5, subdivision (a)] .
Section 667.61, subdivision (b) provides: “Except as provided in subdivision (a) [providing for a term of 25-years-to-life where additional qualifying circumstances are pled and proved] any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.”
In orally pronouncing judgment, the trial court did not impose an additional year for the dangerous or deadly weapon use finding related to this count. However, and for whatever reason, the minute order for the day and the abstract of judgment both indicate the trial court imposed one additional year of punishment on the forcible oral copulation count for the deadly or dangerous weapon use enhancement attached to that count.
Section 12022, subdivision (b)(1).
Appellant argues it was error to add an additional year on the enhancement for having used a deadly or dangerous weapon in addition to imposing sentence under the One Strike law. The People concur. We agree, and will order the abstract of judgment corrected to delete the reference to the additional one-year term under section 12022, subdivision (b)(1) on the forcible oral copulation count.
DISPOSITION
The cause is remanded with directions to the clerk of the superior court to prepare a new abstract of judgment deleting the one-year term under section 12022, subdivision (b)(1) associated with count 4, and to forward the modified judgment to the Department of Corrections. As so modified, the judgment is affirmed.
We concur:
PERLUSS, P. J., ZELON, J.