Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. NA077904, Richard R. Romero, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Susan S. Kim, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Silvino Ruiz Torrez appeals his conviction, by jury, of committing a forcible lewd act on a child (Pen. Code, § 288, subd. (b)), and 10 counts of committing a lewd act on a child. (§ 288, subd. (a).) The trial court sentenced appellant to a term of 15 years to life on each count, with the terms to be served consecutively, for a total sentence of 165 years to life. Appellant contends his confession should have been excluded because it was obtained in violation of his rights to counsel and to remain silent. (Miranda v. Arizona (1966) 384 U.S. 436 (hereafter, Miranda).) We conclude the statement was properly admitted. At the request of both parties, we will order the abstract of judgment corrected to reflect that, with respect to counts 5 through 10, appellant was convicted of and sentenced for violating section 288, subdivision (a), rather than section 288, subdivision (b)(1). In all other respects, we affirm.
All statutory references are to the Penal Code unless otherwise stated.
Facts
Appellant committed numerous lewd acts against four girls who, at the time, were between the ages of four and six. In general terms, his conduct involved fondling and masturbation. Because appellant does not challenge the sufficiency of the evidence, it is unnecessary for us to describe the lewd acts in greater detail. We will focus instead on the facts surrounding appellant's confession.
Appellant's challenge to the sufficiency of the evidence on counts 5 through 9 became moot when respondent stipulated to the correction of the abstract of judgment.
Appellant, who speaks only Spanish, was interviewed by the investigating officer, Los Angeles Police Department Detective Rheault, who speaks only English. Detective Teresa Alonzo, a certified Spanish speaker with the Los Angeles Police Department, translated Rheault's questions and appellant's statements. The entire interview was tape-recorded, although the record on appeal contains only a partial transcript of it. It began at 10:30 p.m. and lasted about two hours. Appellant was handcuffed throughout the interview.
Rheault and Alonzo began by introducing themselves and telling appellant that he was under arrest. When appellant asked why, Det. Alonzo explained, "For... Touching someone that, ahm, you shouldn't touch." Alonzo told appellant that Rheault would like to talk with him about the charges but, "before we can talk with you, we have to, ahm, read you your rights and we can talk, ahm, how much or, ahm, how little, ahm, you want." Appellant said, "Well, I don't know what I have to talk about." Alonzo explained that they had to read appellant's rights to him, "before we can talk to you or you can ask us questions...." Appellant asked, "And without an attorney or anything? Because I don't know...."
Rheault replied that, if appellant wanted to know who was making the allegations against him, he would have to agree to talk to the officers "without an attorney right now. But it's as much or as little as he wants to talk to us." As translated by Alonzo, Rheault said, "Yeah, ah, to be able to tell you, ahm, who made the allegation or, or why, or when, he, ahm, needs to read you your rights and, ahm, you need to say if you want to talk to us or not. But it's your decision."
Appellant asked again what he was being accused of and who was making the accusation. Rheault and Alonzo told him he would have to "agree to talk to us" to get more information. They added: "It's not that you want to admit that you did something, it is only to talk with you." Appellant asked again, "Once and for all what are you going to ask?"
The officers asked appellant his name, address, telephone number and date of birth. Appellant answered those questions. Det. Alonzo read appellant his Miranda rights. He said he understood them. Then, the following exchange occurred:
"[Alonzo]: Okay. Do you want to talk about what... what... happened? Do you want to talk about what happened?
"[Appellant]: What happened, what do you mean I'm going to talk?
"[Alonzo]: That he doesn't know what that means that it is....
"[Rheault]: What is the question? Like, if you want to talk about what happened?
"[Alonzo]: Yeah.
"[Rheault]: Okay. Ah, we, ah... we're not saying anything happened, but we have to have you say that you agree to talk. Okay. Ahm, ah, you're not admitting anything happened. But....
"[Alonzo]: You were not admitting that something happened.
"[Rheault]: But didn't you... ? Are you willing to talk to us, ah, about, you know, the allegation she's making?
"[Alonzo]: Do you wish to talk to us about the allegation that she made against you?
"[Appellant]: Yes. But what person?
"[Alonzo]: Yes, but what person?
"[Rheault]: Okay, okay. So yes, you'll talk about what happened?
"[Alonzo]: Well, then, then, yes, ahm, are you going to want to talk with us about what happened?
"[Rheault]: What they, eh, what they say happened.
"[Appellant]: I want to know what is that, that, that, that happened.
"[Alonzo]: He wants to know what is it that happened.
"[Rheault]: Okay. So you, yes, you will talk to us?
"[Alonzo]: So you will talk to us?
"[Appellant]: Yes. Well I don't know why... what happened there, well....
"[Alonzo]: 'Cause he doesn't know; 'cause he doesn't know, ah, what....
"[Rheault]: Sure. Okay. Ah, does he know a, a a girl named Ana?
"[Alonzo]: Do you know a girl, ahm, by the name of Ana?"
The printed transcript in the record ends here. Detective Alonzo testified that the officers questioned appellant about each of the victims' allegations. Appellant eventually admitted molesting each girl. He also offered to call each victim, to ask their forgiveness for what he had done. Appellant made no other statements about lawyers.
Defense counsel at trial moved to suppress appellant's statements on the ground that they were obtained in violation of his Miranda rights. Counsel argued that, even if appellant's question about proceeding without an attorney was not sufficient to invoke the Sixth Amendment right to counsel, the officers violated his Miranda rights when they refused to explain the reasons for appellant's arrest unless he agreed to speak with them and to waive his right to counsel.
The trial court denied the motion, concluding that the officers gave appellant a "sufficient description of what the crime was that he was committing. Touching someone that you shouldn't touch is an unlawful touching. They didn't have to go into all the details at that point." It further explained that the officers properly declined to "talk back and forth" with appellant or provide him additional details about the reasons for his arrest because the officers could reasonably have expected appellant to respond to those statements. The exchange then could have been deemed, "the functional equivalent of interrogation[,]" and appellant's responses would have been given without a voluntary waiver of his Miranda rights. The trial court concluded: "The motion is denied because there was no coercion of the defendant. He was told properly what he was arrested for, touching someone that he shouldn't touch, which in layman's terms is an unlawful touching, and the officer properly didn't go into any more detail before there was a waiver of Miranda rights."
Discussion
Appellant contends that he invoked his right to counsel when he said: "And without an attorney or anything?" His subsequent statements should, he contends, have been excluded because the officers continued to question him after he invoked his right to counsel. Alternatively, appellant contends his statement was ambiguous and should have been clarified before the officers proceeded with the interview. Because they did not determine whether appellant wanted counsel present, he contends their continued questioning was improper and his subsequent statements should have been excluded.
To protect the Fifth Amendment privilege against self-incrimination, Miranda requires that a person undergoing a custodial interrogation be advised of the right to remain silent and the right to have counsel present during questioning. (Miranda, supra, 384 U.S. at pp. 444-445.) "[I]f a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation." (Davis v. United States (1994) 512 U.S. 452, 458.) The request for counsel must be unambiguous and unequivocal, so that "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." (Id. at p. 459.) Further, the statement must be one "that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police[,]" rather than a request for the assistance of counsel in some other matter or proceeding. (McNeil v. Wisconsin (1991) 501 U.S. 171, 178.)
As our Supreme Court explained in People v. Stitely (2005) 35 Cal.4th 514, "It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda, supra, 384 U.S. 436,... either to ask clarifying questions or to cease questioning altogether." (Id. at p. 535.) A statement obtained in violation of these rules is inadmissible to prove guilt in a criminal case. (Id.)
In People v. Gonzalez (2005) 34 Cal.4th 1111, our Supreme Court noted that, before the adoption of article I, section 28, subdivision (d) of the California Constitution, California law imposed on law enforcement a duty to clarify a suspect's ambiguous statements regarding counsel. After the adoption of that constitutional amendment, however, California courts are constrained to follow the federal rule in cases involving Miranda rights. Thus, Davis now provides the standard by which we determine whether a defendant has invoked the right to counsel. (Id. at p. 1125.) Under Davis, "a reviewing court -- like the trial court in the first instance -- must ask whether, in light of the circumstances, a reasonable officer would have understood a defendant's reference to an attorney to be an unequivocal and unambiguous request for counsel, without regard to the defendant's subjective ability or capacity to articulate his or her desire for counsel, and with no further requirement imposed upon the officers to ask clarifying questions of the defendant." (Id.)
In Gonzalez, the defendant told police officers that he wanted to talk to a lawyer "if for anything you guys are going to charge me...." (Id. at p. 1119.) Because this statement was conditional, and because a reasonable police officer would not necessarily have known whether the condition would be fulfilled, the statement was "insufficient under Davis to require cessation of questioning." (Id. at p. 1126.) Our Supreme Court also held that the police officers had no duty, under Davis, to ask clarifying questions about the defendant's reference to counsel. "Davis specifically rejects a rule that requires police to seek clarification of a suspect's ambiguous or equivocal request for counsel." (Id. at p. 1127.)
Gonzalez, supra, and Stitely, supra, control the result here. Appellant never made an unequivocal and unambiguous request for counsel. Instead, when Det. Alonzo asked appellant if he was willing to talk about what happened, appellant said, "And without an attorney or anything?" A reasonable police officer would not have understood this question as a request for counsel. A reasonable police officer would have understood it in the same way Alonzo did: as a request for clarification of her previous statement. Because appellant did not unequivocally request a lawyer, the officers were not obliged to stop questioning him at that point.
Alonzo and Rheault then told appellant that they could only give him more detail about the accusations if he agreed to talk to them "without an attorney right now." They explained that he could talk as little or as much as he wanted, and that he did not have to admit wrongdoing in order to talk to them. Appellant was read, and said that he understood his Miranda rights. Thereafter, when he continued to ask for more information about the accusations, the detectives asked him, "So you will talk to us?" Without saying anything more about a lawyer, appellant replied, "Yes." The trial court properly found that this was an unequivocal waiver of appellant's right to counsel, not an assertion of it.
Appellant relies on United States v. Rodriguez (9th Cir. 2008) 518 F.3d 1072, to argue that, because appellant asked, "And without an attorney or anything?" before he waived his Miranda rights, the officers had a duty to clarify whether he wanted a lawyer before they asked additional questions. We disagree. First, as our Supreme Court noted in People v. Gonzalez, supra, 34 Cal.4th 1111, police officers have no duty, "to seek clarification of a suspect's ambiguous or equivocal request for counsel." (Id. at p. 1127.) Second, assuming, as Rodriguqez does, that a duty to clarify ambiguous references to counsel exists with regard to statements made before a suspect waives his or her Miranda rights, the officers here did clarify appellant's remark. They told him they could not talk with him unless he waived his right to counsel and, when appellant continued to ask for more information, they replied by asking whether he was willing to talk without a lawyer. It was only after appellant answered with an unequivocal, "Yes," that the officers continued with the interview. There was no Miranda violation. The trial court correctly denied the motion to suppress.
Correcting the Abstract of Judgment
The parties agree that the abstract of judgment prepared in this matter is incorrect with respect to counts 5 through 10. Appellant was convicted on those counts of having committed a lewd act against a child in violation of section 288, subdivision (a). He was not convicted of the offense originally charged, forcible lewd acts in violation of section 288, subdivision (b)(1). The prosecutor amended the information to charge violations of subdivision (a) and the jury verdicts on those counts found appellant guilty of a "lewd act," rather than a "forcible lewd act." At sentencing, the trial court specifically stated that it was sentencing appellant on "counts 5 through 14, 288(a), lewd act on a child, not forcible...." The abstract of judgment, however, incorrectly reflects convictions on those counts of forcible lewd acts, in violation of section 288, subdivision (b)(1).
We have the inherent power to correct these clerical errors in the abstract of judgment and we do so now. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The clerk of the superior court is ordered to prepare and forward to the Department of Corrections an amended abstract of judgment reflecting that, on counts 5 through 10, appellant was convicted of violating section 288, subdivision (a). As so amended, the judgment is affirmed.
We concur: COFFEE, J., PERREN, J.