Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 05NF2511 Gregg L. Prickett, Judge.
Gerald Peters, 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, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Gustavo Palma Reyes was convicted of committing lewd acts on his girlfriend’s daughter. He contends the police violated his Fifth Amendment rights by failing to advise him of his Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436) before questioning him at the crime scene. However, we agree with the trial court that Reyes was not in custody at the time of the questioning, and therefore Miranda did not apply. Accordingly, we affirm the judgment.
FACTS
On the night of July 1, 2005, Reyes had an argument with his girlfriend, Maria Estrada, at their apartment. Reyes had been drinking, and during the fight he hit Estrada. After he left, she called him and said she was going dancing without him. This angered Reyes, but Estrada was undeterred; upon tucking her two children into bed, she went to a bar alone. She then called her cousin Jaime Flores and told him what had transpired. At Estrada’s behest, he agreed to go to the apartment and baby-sit her sleeping children while she was out.
Around midnight, Reyes showed up at the apartment, followed by Estrada’s brother Mario a short time later. Reyes wanted to see Estrada, but instead he stayed at the apartment while Mario and Flores went to speak with her. About an hour later, Mario and Flores returned to the apartment and found Reyes with Estrada’s developmentally disabled 12-year-old daughter. She was lying naked near the edge of her bed, and Reyes was standing between her legs, wearing only boxer shorts. With one hand on her leg and one hand in front of him, it looked to Flores like he was having sex with the girl. When Mario called to him, he stopped, buttoned up his shorts and left the room. He alluded to having “vengeance” for the earlier argument with Estrada. Mario called Estrada and her family, and they arrived shortly. Estrada’s father punched Reyes, and a neighbor called 911.
About 10 minutes later, Police Officer Mark Caballero arrived. Flores and Mario met him outside and told him what they had seen. Caballero then approached the open door to the apartment and asked the disheveled and bleeding Reyes if he could come in. Reyes assented, and Caballero entered. Finding it difficult to communicate with Reyes, Caballero summoned Police Officer George Barraza to act as an interpreter. While they waited, Caballero asked Reyes if he had been drinking, and Reyes pointed to several empty beer cans on the table. He then indicated he had to urinate. Caballero told him not to touch his genital area. He then followed Reyes to the bathroom and watched him from the doorway to ensure he did not do so. Other officers arrived around this time, but rather than concentrating on Reyes, they spent their time talking to Estrada’s family outside the apartment.
Barraza arrived 20 minutes after Caballero called him. He entered through the open doorway and stood in the living room, while Caballero leaned on the kitchen counter. They stood about five feet from Reyes, who was also standing in the living room. Caballero asked Reyes what happened, and Reyes said he arrived home with the children asleep and Estrada gone. He stripped down to his boxers and then used his right hand to fondle the girl’s breasts and vagina and masturbate himself.
Upon receiving this information, Caballero compared notes with the other officers at the scene, and then he arrested Reyes. Subsequent testing revealed Reyes’ DNA on the victim’s breast, and her DNA on his penis.
On July 5, four days after the incident, Detective Julissa Trapp interviewed Reyes at the police station. After waiving his Miranda rights, Reyes expounded on the story he had told Caballero, saying he had drunk 13 beers and then attended to the girl when she had an epileptic seizure. He said he began fondling her breasts with his hand, then brushed his penis on her vagina and tried to penetrate her. However, he was unable to do so because he could not get an erection.
Before trial, Reyes moved to suppress the statements he made to the police on the ground Caballero failed to advise him of his Miranda rights before questioning. In ruling on the motion, the court found that while there were several officers at the scene, most of them were not in the apartment or in any way focused on Reyes. And although Reyes was not told whether he was a suspect or informed he could terminate the interview, he did consent to the interview, and the officers were not aggressive or dominating during the interrogation; rather their demeanor and questions were “benign.” The court also found Reyes’ movement was not limited, except with respect to the restriction on touching his penis while urinating. In light of all the circumstances surrounding the interview, the trial court did not believe Reyes was in custody for Miranda purposes, and therefore denied his motion to suppress.
Trial then commenced, and the jury found Reyes guilty of three counts of committing a lewd act on a child under the age of fourteen. The court sentenced him to 10 years in prison.
DISCUSSION
Reyes argues the court erred in denying his motion to suppress. However, like the trial court, we conclude Reyes was not in custody when he made the statements to Officer Caballero. Therefore, we uphold the trial court’s ruling.
“Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’” (Oregon v. Mathiason (1977) 429 U.S. 492, 495.) Whether a suspect is in custody is resolved by asking whether the circumstances “created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest.” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) This is a mixed question of law and fact, requiring us to “apply a deferential substantial evidence standard to the trial court’s factual findings, but independently determine whether the interrogation was custodial. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.)
Factors bearing on the custody issue include: (1) whether the suspect was formally arrested before questioning; (2) absent formal arrest, the length of his detention; (3) where it occurred; (4) the ratio of officers to suspects; and (5) the demeanor of the officers. (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) “Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (People v. Pilster, supra, 138 Cal.App.4th 1395, 1403-1404 .)
As noted by the trial court, Reyes consented to the interview, which occurred “not in an isolated chamber under psychological coercion, but in the familiar surroundings” of his own home, with the front door open. (People v. Miller (1969) 71 Cal.2d 459, 481.) And only Caballero, and Barraza as interpreter, spoke to him. Other officers were in the area, but they stayed outside the apartment; there is no evidence Reyes even noticed them. Caballero did not inform Reyes he could end the interview at any time, but he never told him he was a suspect, either. The questioning was brief, polite and cordial, rather than sustained, pointed or accusatory. Caballero never tried to dominate the conversation or steer Reyes in any particular direction. Instead, he conducted what the trial court described as a “benign” investigation, and Reyes just “openly admit[ted] to how the events had occurred.” The detention lasted less than an hour, and much of that time was spent waiting for an interpreter to arrive. There is no evidence Caballero attempted to prolong the detention in order to turn up the heat on Reyes. Nor did he arrest Reyes until he had the chance to compare notes with the other officers. These are all signs of a noncustodial situation.
Before the interview commenced, Caballero did instruct Reyes not to touch his penis while urinating, then followed Reyes to the bathroom to ensure he complied. The Attorney General argues this is immaterial to the custody question because Caballero was reasonably motivated by the desire to preserve potential evidence. But the custody question turns on the degree to which the suspect’s freedom of movement is curtailed, not on the reasonableness of the officer’s conduct. (See People v. Pilster, supra, 138 Cal.App.4th at p. 1406.) Even so, viewing the objective circumstances from a reasonable person’s point of view, it cannot be said Reyes’ movement was restricted to the degree associated with a formal arrest. He was never handcuffed, he was never physically restrained, and besides the genital handling restriction, the officers did not issue any directives to him. (Compare id. at p. 1403 [defendant deemed in custody where he was handcuffed and questioned without being asked if he consented to being interviewed].)
Considering all these circumstances, we conclude Reyes was not restricted in a manner that a reasonable person would consider tantamount to arrest. In Miranda, the United States Supreme Court acknowledged its holding was not intended to affect “general on-the-scene questioning as to facts surrounding a crime . . . .” (Miranda v. Arizona, supra, 384 U.S. at p. 477.) As that fairly describes the type of questioning that occurred here, we find no violation of Miranda in this case.
Given this conclusion, we need not analyze Reyes’ secondary contention that his subsequent stationhouse interview was tainted by Caballero’s failure to Mirandize him before questioning. Although he contends the statements he made at the police station were effectively compelled by Officer Caballero’s “initial improper interrogation,” we believe Caballero’s interrogation was, for reasons explained above, lawful. The so-called “fruit-of-the-poisonous-tree” doctrine does not apply where no contamination occurred in the initial interviewing process. Accordingly, the trial court properly denied Reyes’ motion to suppress.
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.