Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR195166.
Jones, P.J.
Jovan’z Deshun Smith appeals from a judgment entered after a jury convicted him of committing an assault on a child that resulted in death. (Pen. Code, § 273ab.) He contends his conviction must be reversed because the trial court erred when it denied his motion to suppress. We disagree and will affirm.
Unless otherwise indicated, all further section references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of assaulting and causing the death of Taniya Rose, his 18-month-old daughter.
In December 2007, Taniya lived with her mother, Tyana Rose (Rose), and her grandmother, Hermenia Christian in an apartment in Vallejo. Rose believed that appellant, who was 16 years old, was Taniya’s father.
Appellant visited Taniya on December 12, 2007. At one point during the visit, Christian called Rose to the kitchen to teach her how to cook chicken. Appellant was left alone in the bedroom with Taniya.
A few minutes later, appellant came into the kitchen with Taniya saying she was not breathing. Christian took the baby and ran outside screaming for help. A neighbor gave the infant mouth to mouth resuscitation until the paramedics arrived.
The paramedics put Taniya into an ambulance and one of them tried to insert a breathing tube into her trachea. When he was unsuccessful, another paramedic inserted a laryngoscope into Taniya’s mouth and saw what looked like a “real pale, white, chewed-up piece of bubble gum” in her throat. The paramedic grabbed the object with a pair of forceps and gave it a tug. He pulled out a large wad of baby wipes that had been bunched up into a ball the size of a golf ball.
When the paramedics arrived at the hospital, Taniya was not breathing and she did not have a heart rate. Taniya died about a week later when life support measures were discontinued. The cause of death was anoxic encephalopathy due to asphyxia. In lay terms, Taniya died because her brain was deprived of oxygen when a foreign body blocked her airway.
The police interviewed appellant at the police station two days later on December 14, 2007. During the course of the interview, appellant admitted that he was angry with Rose and that he had shoved several baby wipes down Taniya’s throat.
Based on these facts, an information was filed charging appellant with murder (§ 187), and committing an assault on a child that resulted in death. (§ 273ab.) The case proceeded to trial where jurors were unable to reach a verdict on the murder charge, but convicted him on the assault charge.
After the court sentenced appellant to 25 years to life in prison, he filed the present appeal.
II. DISCUSSION
Prior to trial appellant filed a motion to suppress the statements he made to the police. The trial court conduced a hearing on appellant’s motion. The following evidence was adduced.
Officer Edward Barrientos was assigned to Vallejo High School as a youth services officer. On December 14, 2007, Vallejo Police Detective Sharon Fong asked Barrientos to determine whether appellant was at school that day. Barrientos determined appellant was at school and arranged to meet with him in the dean’s office. When appellant arrived, Barrientos told him he was not under arrest and asked whether he was willing to go to the police station to answer some questions. Appellant agreed and Barrientos drove him to the station carrying on a friendly conversation on the way.
Detective Fong interviewed appellant at the station. At the beginning of the interview, Fong also told appellant that he was not under arrest and that he could end the interview and leave at any time. Appellant said he understood.
The interview began at approximately 2:30 p.m. and continued for several hours. Others participated in the interview including Taniya’s grandmother Hermenia Christian, Detective Mustard, and Detective Pucci. During the course of the interview, appellant admitted that he was angry with Rose because she had told him that Taniya might not be his child. Appellant said he was “a little bit pissed” and while Taniya was sitting on his lap, he balled up some baby wipes and pushed them down her throat.
When appellant implicated himself in the crime, the police moved him to a custodial interrogation room and advised him of his Miranda rights. Appellant waived those rights and the interview continued. Again, appellant admitted that he shoved baby wipes down Taniya’s throat because he was angry with her mother.
Appellant’s actions at the police station were recorded and the trial court viewed the DVDs of the entire interview. The court also heard testimony from witnesses who stated that appellant suffers from poor hearing and that he has to rely on lip reading. The value of this testimony was undercut by the fact that appellant called his father at the conclusion of the interview, and the DVD shows appellant was able to communicate with his father without any difficulty even though the phone was on a table and appellant could not see his father’s lips.
The trial court considering this evidence declined to suppress appellant’s statement explaining its decision as follows: “I find that it appears... from the interviews, both of Detective Fong, Detective... Mustard... Detective Pucci, I find no evidence of any coerciveness; no evidence of any promises; no evidence of any threats, and in taking into [account] the totality of the circumstances, I find that the statements he made while at the police department, while not detained... I don’t find them to be in violation of the 5th Amendment or any other state [or] federal right.”
Appellant now argues the trial court erred when it denied his motion to suppress. He contends the court should have granted his motion because he was in custody when he made his initial incriminating statements and he had not yet been provided his Miranda rights.
The parties on appeal agree that the pivotal issue for purposes of this argument is whether appellant was in custody when he made his initial incriminating statements to the police. Two discrete inquires are essential to that determination. First, what were the circumstances surrounding the interrogation, and second, given those circumstances, would a reasonable person have felt he was not at liberty to terminate the interview and leave. (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.) On appeal, the trial court’s factual findings with respect to the first issue must be upheld so long as they are supported by substantial evidence. (Id. at p. 402.) Whether a reasonable person would have felt free to terminate the interview and leave is a question of law that this court reviews de novo on appeal. (Ibid.)
Applying this standard, we conclude the trial court’s ruling was well supported. The record here indicates that appellant was told three times that he was not under arrest and that he was free to go. The first occurred when appellant was at school. Officer Barrientos told appellant he was not under arrest and he asked appellant whether he was willing to answer some questions at the police station. The second time occurred when Detective Fong began interviewing appellant at the police station. Fong told appellant that he was not under arrest and that he was free to terminate the interview and leave at any time. The third time occurred when Detective Pucci came into the interview room to give appellant a voice stress test. Appellant asked Pucci whether he could leave after the test. Pucci said he did not know, but he then went on to tell appellant yet again that he was not under arrest. We think a reasonable person who is told repeatedly that he is not under arrest and that he is free to go would understand that he is not under arrest and that he is free to go. We conclude the trial court ruled correctly.
Our conclusion on this point is fully consistent with prior case law. For example in People v. Ochoa, supra, 19 Cal.4th 353, the defendant signed a statement in which he voluntarily agreed to submit to a lie detector test. Among other things it said, “‘I am taking this examination freely and voluntarily, and without any promise of reward or immunity, and without any force... or threat of any force. [¶] I clearly understand that I am not required to make any statements relative to this case.’” (Id. at p. 402.) Our Supreme Court ruled that someone who had signed such a statement would understand that he was not in custody. As the court explained, “A reasonable person in defendant’s position, knowing that he or she need say nothing at all, would understand that he or she would do the examiner a favor by offering to leave rather than wasting the examiner’s time by sitting mute.” (Ibid.)
The situation here is even more clear than Ochoa because appellant was told specifically and repeatedly that he was not under arrest and that he was free to go. Like Ochoa we conclude a reasonable person in appellant’s position would understand he was free to go.
None of the arguments appellant advances convince us the trial court erred.
Appellant first relies on the fact that Detective Fong considered him to be under arrest from the point when Officer Barrientos contacted him at school. However, Detective Fong did not communicate that fact to appellant. Indeed, she specifically told appellant he was not under arrest and that he was free to go. An officer’s uncommunicated intent to arrest has no bearing on whether a defendant is in custody. (Berkemer v. McCarty (1984) 468 U.S. 420, 442.)
Appellant argues he was in custody because the police transported him to the police station in a patrol car and then questioned him for an extended period of time. Both of these factors are relevant on the issue of whether a person is in custody; however, we find neither to be controlling. While appellant rode to the police station in a patrol car, he did so only after agreeing to do so and after being told specifically that he was not under arrest. While the interview was lengthy (about 3.5 hours to the point where appellant began making incriminating statements), it was similar in length to one where our Supreme Court found a defendant not to be in custody. (Cf. People v. Leonard (2007) 40 Cal.4th 1370, 1400 [a defendant who was questioned for 3.5 hours was not in custody].) Any coercion that might otherwise have been present due to the length of the questioning was lessened by the fact that at three different points during that questioning, appellant was told that he was not under arrest.
Appellant argues he was in custody because the police took his backpack and phone during the questioning. It is far from clear whether the police took appellant’s backpack. The record on the first point is equivocal. In any event, even if they did take custody of appellant’s backpack and phone, we see nothing that would have prevented appellant from simply asking that they be returned. We consider the point to be minor.
At the hearing on the motion to suppress, defense counsel questioned Detective Fong on the point as follows:
Next, appellant contends he was in custody because during questioning, he asked twice whether he could leave. However, the evidence appellant cites does not support his argument. The first incident occurred when appellant was alone in the interview room waiting for Detective Pucci to give him a stress test. Detective Fong stepped inside briefly to apologize for the delay. Appellant told Fong that he had basketball practice. Fong replied that she would let Detective Mustard know and that he should “hang tight.” At no point in the interchange did appellant ask to leave.
The second incident occurred shortly after Detective Pucci arrived to give appellant the stress test. As Pucci was getting his instruments ready, appellant asked whether he could leave when the test was completed. Pucci said he did not know and he asked whether appellant and Mustard were finished talking. However, Pucci then went on to tell appellant that he was not under arrest. We think a reasonable person who is told that he is not under arrest would understand that he is not in custody.
Appellant’s final argument is based on what he characterizes as “hint[s]” that are contained in passages in People v. Ochoa, supra, 19 Cal.4th at pages 400-402. Appellant contends those hints support the proposition that after a defendant has shown deceit in a lie detector test, the police are required to provide the defendant his Miranda rights. We need not address the substance of the argument because we have reviewed Ochoa and do not find the hints that appellant suggests are present.
We conclude the trial court correctly denied appellant’s motion to suppress.
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Needham, J.
“Q. Okay. And do you know whether or not my client had his backpack with him?
“A. I believe it was brought down with him, yes.
“Q. Okay. And you say, ‘I believe’, but you are not sure, correct?
“A. Well, actually, I do know because I think later on, it was - - I booked it into safekeeping because the juvenile hall will not take it, so I advised his father, he can come down and pick it up at any time.
“Q. I see. And did you obtain that from Officer Barrientos?
“A. I believe so, yes.
“It was either from the defendant or Officer Barrientos.
“Q. Okay. You can’t rule out that it was Officer Barrientos, correct? He handed it to you?
“A. Correct.”