Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F06033
ROBIE, J.
Defendant Fabian Rodriguez was found guilty by a jury of second degree murder and was found to have personally used a dangerous or deadly weapon in the commission of the offense. Defendant was sentenced to state prison for a term of 15 years to life, with a consecutive term of one year for use of a dangerous or deadly weapon.
Defendant appeals, contending his confession was taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) and was not voluntary. We shall affirm.
FACTUAL BACKGROUND
The victim and his cousin allowed defendant to stay at their apartment for a few days after he reported he had been “kicked out” of his residence. Two days later, when the cousin returned to the apartment after staying with his girlfriend, he found defendant and the victim angry at each other and very drunk. The cousin took the keys to the apartment from defendant and told the victim that it was his responsibility to tell defendant “that he needs to get out.” The cousin went to his girlfriend’s house, and when he returned the following morning, he found the victim dead in a bedroom. Defendant was arrested several days later.
Defendant was interviewed by Sheriff’s Detective Kenneth Clark, with the assistance of another detective (Detective Salvador Robles) to provide English-Spanish translation. A third detective (Detective Grant Stomsvik) was also present. Defendant was shackled during the first portion of the interview.
Detective Kenneth Clark began by obtaining some background information from defendant. He then asked defendant if he was thirsty and, when defendant said he was, the detectives left and returned with a cup of water. Detective Clark asked some additional background questions, during which defendant disclosed that he had a second grade education and did not know what month he was born. Later in the interview, defendant divulged that he did not know how to write.
Defendant was asked how he felt, and he replied, “normal.” He said he slept the night before and ate the previous morning. He said he was not under a doctor’s care, took no medications or illegal drugs and had not had any alcohol for several days. Then, the following exchange took place:
“DET[ECTIVE] CLARK: Okay. Okay. Tell him I’m gonna, uh -- uh, read him his Miranda.
“DET[ECTIVE] ROBLES [in Spanish]: He’s going -- he’s going to read you your Miranda rights, okay?
“[DEFENDANT]: Uh-huh.
“DET[ECTIVE] CLARK: And we just translate verbatim. You have the right to remain silent.
“DET[ECTIVE] ROBLES [in Spanish]: You have the right not to say anything.
“DET[ECTIVE] CLARK: Do you understand?
“DET[ECTIVE] ROBLES [in Spanish]: Do you understand that?
“[DEFENDANT]: What do you mean?
The response in Spanish was “Como?”
“DE[TECTIVE] ROBLES [in Spanish]: That you have the right not to say anything.
“[DEFENDANT] [in Spanish]: Yes.
“DET[ECTIVE] ROBLES [in Spanish]: Do you understand that?
“DET[ECTIVE] ROBLES [in English to Detective Clark]: Yes.
“DET[ECTIVE] CLARK: Anything you say may be used against you in court.
“DET[ECTIVE] ROBLES [in Spanish]: Any -- anything that you say can be used against you in a court of law. Do you understand that?
“[DEFENDANT]: Uh-huh.
“DET[ECTIVE] ROBLES [in English to Detective Clark]: Yes.
“DET[ECTIVE] CLARK: You have the right to the presence of an attorney before and during any questioning. Do you understand?
“DET[ECTIVE] ROBLES [in Spanish]: You have the right to have an attorney present before and during any questioning. Do you understand that?
“[DEFENDANT]: Uh-huh.
“DET[ECTIVE] CLARK: If you cannot afford an attorney one will be appointed for you free of charge before any questioning if you want.
“DET[ECTIVE] ROBLES [in Spanish]: If you can’t pay an attorney one will be named for free to -- to -- to represent you before and during any questioning. Do you understand that?
“[DEFENDANT]: Uh-huh.
“DET[ECTIVE] ROBLES [in Spanish]: Yes or no?
“[DEFENDANT] [in Spanish]: Yes.
“DET[ECTIVE] ROBLES [in English to Detective Clark]: Yes.
“DET[ECTIVE] CLARK: And, uh, if you could read him the, uh, -- and also if you could advise (inaudible)
“DET[ECTIVE] ROBLES [in Spanish]: I’m also going to read this to you, okay?
“[DEFENDANT]: Uh-huh.
“DET[ECTIVE] ROBLES [in Spanish]: Since you are not, uh, a citizen of the United States and you have been detained to -- detained or arrested you have the right to have us inform the representatives of the consulate of your country here in the United States of it. In some cases and depending on your nationality we are not required to contact the officials of the consulate of your country. Do you want us to notify the officials of the consulate of your country, yes or no?
“[DEFENDANT] [in Spanish]: With the officials or
“DET[ECTIVE] ROBLES [in Spanish]: Consulate of your country? Yes or no?
“[DEFENDANT]: What do you mean?
“DET[ECTIVE] ROBLES [in Spanish]: The Mexican Consulate that you are detained or arrested.
“[DEFENDANT]: No.
“DET[ECTIVE] ROBLES: No?
“[DEFENDANT]: No.
“DET[ECTIVE] ROBLES [in English to Detective Clark]: Okay, he said no so
“DET[ECTIVE] STOMSVIK: Okay.
“DET[ECTIVE] CLARK: Tell him we’d like to talk to him about some of the things that [have] been going on the last few days.
“DET[ECTIVE] ROBLES [in Spanish]: They want to talk about the things that have happened the last few days?
“[DEFENDANT]: Uh-huh.
“DET[ECTIVE] ROBLES [in English to Detective Clark]: Okay.
“DET[ECTIVE] CLARK: Uh,
“DET[ECTIVE] STOMSVIK: Can -- can I just butt in for a second?
“DET[ECTIVE] CLARK: Yeah.
“DET[ECTIVE] STOMSVIK: Uh, he waived Miranda. Correct?
“DET[ECTIVE] ROBLES: Yes. Waived Miranda.
“DET[ECTIVE] STOMSVIK: And then he said no to
“DET[ECTIVE] ROBLES: To this. To the, uh, consular notification.
“DET[ECTIVE] STOMSVIK: Which means he waives or doesn’t waive or
“DET[ECTIVE] ROBLES: He -- he doesn’t want us to contact them.”
Following this exchange, some additional background information was elicited, during which defendant revealed that he had been in the United States “[f]our to five months” and that he lived with his uncle when he first arrived. Detective Robles then asked defendant who he lived with after his uncle, and defendant replied, “with the guy that -- I was with.” He described the individual and, eventually, explained “[t]here were three of us.” According to a transcript of the interview, the following exchange ensued:
“DET[ECTIVE] CLARK: Who’s the other guy?
This question and defendant’s response were translated verbatim into Spanish and English, respectively, by Detective Robles.
“[DEFENDANT] [in Spanish]: No, I don’t -- know the other guy.
“[DEFENDANT] [in Spanish]: He was the one that -- he was the one that -- what’s it called? The one that I
“DET[ECTIVE] ROBLES: It’s the one I -- I murdered.
Detective Robles testified at trial that defendant stated, “el otro, que asesine,” which literally translates as “the one I assassinated,” and that the transcript of the interview was mistaken in failing to reflect defendant spoke these words prior to the detective’s translation.
“DET[ECTIVE] CLARK: The guy that he murdered is the one [who] was living with him?
“DET[ECTIVE] ROBLES [in Spanish to defendant]: The guy [who] you murdered is the one you were living (sic)?
“[DEFENDANT]: Mm, uh-huh.
“DET[ECTIVE] ROBLES [in English to Detective Clark]: Yes.
“[DEFENDANT]: Yes, well, there were three of us but -- it was the other guy that -- yes.”
Defendant was asked what happened, and he explained that they had been drinking and he and the victim argued after the victim accused him of taking mail out of the mailbox. Eventually, defendant grabbed a knife and stabbed the victim in the chest.
Prior to trial, defendant moved to suppress his statements, contending they were involuntary and were taken in violation of Miranda. After viewing the videotaped confession and finding it “clear . . . that [defendant] understood what was being said,” the trial court ruled that defendant entered a valid implied waiver when he began answering questions without exercising his rights.
DISCUSSION
On appeal, defendant reasserts that his confession was involuntary and was obtained in violation of Miranda. We disagree.
Although the People assert that defendant has forfeited the question of whether his confession was involuntary by failing to obtain a ruling on this issue in the trial court, we deem the issue adequately raised in defendant’s written motion, as well as being sufficiently intertwined with the Miranda issue to warrant review.
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 [16 L.Ed.2d at p. 706].) A person subjected to custodial interrogation must be given warnings apprising him that he has the right to remain silent, that any statement he makes can be used against him, and that he has the right to retained or appointed counsel. (Id. at pp. 444-445 [16 L.Ed.2d at pp. 706-707].) A statement obtained in violation of Miranda is inadmissible to establish guilt. (People v. Sims (1993) 5 Cal.4th 405, 440.)
We examine two questions in determining the validity of a Miranda waiver: was the relinquishment of the right voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception; and was it made with full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon them. (People v. Whitson (1998) 17 Cal.4th 229, 247.) These questions are examined based on a totality of the circumstances -- including the background, experience, and conduct of the defendant -- to ascertain whether the defendant in fact knowingly and voluntarily decided to forgo his rights. (Id. at pp. 246, 247.) The validity of the waiver must be established by a preponderance of the evidence. (Id. at p. 248.)
Numerous cases have held that an express waiver of Miranda rights is not necessary, and that a willingness to answer questions after affirming an understanding of the Miranda rights can constitute a valid implied waiver. (People v. Cruz (2008) 44 Cal.4th 636, 667-668; People v. Whitson, supra, 17 Cal.4th at pp. 247-248, and cases cited therein.) “The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights.” (North Carolina v. Butler (1979) 441 U.S. 369, 373 [60 L.Ed.2d 286, 292].)
On review of a Miranda claim, we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence, and independently determine whether, from the undisputed facts and those properly found by the trial court, if the challenged statements were illegally obtained, although we give great weight to the considered conclusions of the trial court. (People v. Whitson, supra, 17 Cal.4th at p. 248.)
Here, defendant was advised of his Miranda rights and stated he understood each of them. Following this, defendant was informed that the detectives wanted to talk to him about “the things that have happened the last few days,” to which he responded affirmatively. There is no indication that defendant’s judgment was clouded in any way -- his answers to questions were responsive, reflecting no confusion or lack of comprehension. Nor is there any evidence that defendant lacked sufficient intelligence to understand his rights or the consequences of his waiver, despite his minimal education and purported illiteracy.
Regarding the voluntariness of the waiver, a review of the videotaped interview corroborates the absence of any coercive tactics. There was no physical or psychological pressure placed on defendant, and no threats or promises made to him, to induce him to talk to the detectives. The detectives were polite toward defendant, their tone cordial and friendly. When defendant expressed he was thirsty, he was brought water. He manifested no hesitation or uncertainty during questioning about whether he wanted to speak to the detectives. In sum, our review of the taped interview reveals nothing in the detectives’ treatment of defendant or his response to them to indicate that he was intimidated or worn down in any way by improper interrogation tactics, lengthy questioning, or anything else.
Acknowledging that a Miranda waiver may be implied when a defendant answers questions after being advised of his rights, defendant contends a waiver cannot be implied under the circumstances here. He points out that he “was questioned while shackled to a chair” and claims he was “in a depleted state” because he was “deprived of food.” He also relies on the fact that he is from a small town rather than a “sophisticated background,” speaks no English and is illiterate, in arguing that he is “precisely the kind of person who would not be able to give a truly knowing and intelligent waiver of his right to remain silent.”
Again, a review of the videotaped interview dispels these claims. Defendant does not appear weakened or particularly naive. Nor is his demeanor that of someone who is immature or intimidated. Defendant’s lack of education does not necessarily equate to low intelligence, and he appears to be of average intellect, as reflected by his comprehension and responsiveness to questions. Contrary to defendant’s assertion, it is evident from his responses and his behavior that he willingly participated in the interview.
Defendant claims his lack of understanding was demonstrated by his response when asked if he understood after being advised of his right to remain silent. Our review of the videotaped interview convinces us that defendant’s response did not evince a lack of comprehension of the right described but was merely a request regarding what in particular the detective was referring to when he asked if defendant understood. Defendant did not hesitate to answer affirmatively, manifesting his understanding, when the detective repeated “that you have the right not to say anything.” Defendant’s response was not ambiguous, nor is a “single response, in isolation, controlling on the question whether defendant made a knowing and voluntary waiver of his Miranda rights under the totality of the circumstances surrounding his interrogation.” (People v. Cruz, supra, 44 Cal.4th at p. 668.)
As the evidence supports the trial court’s conclusion that defendant made an implied waiver of his Miranda rights, and as there is no evidence that defendant’s “‘will was overborne’” at the time he confessed (People v. Cruz, supra, 44 Cal.4th at p. 669), his claims that his confession was involuntary and violated Miranda are rejected.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., MORRISON, J.