Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06SF0333, Gary S. Paer, Judge.
Conrad Petermann, 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, Rhonda Cartwright Ladendorf and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Victor Alex Turek was convicted of six counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), and one count of committing a lewd act upon a child who was 14 years of age and 10 years younger than the defendant (Pen. Code, § 288, subd. (c)(1)). He was sentenced to a total term of 12 years and 8 months in prison. On appeal, Turek argues the erroneous admission of his custodial statements requires the judgment to be reversed. We reject his contention and affirm his conviction.
FACTS
Turek and S.M. had one child, A.T., who was born in 1991. Turek and M. were not married, but cohabited continuously from the time A.T. was approximately five years old. Turek began fondling A.T. when she was 11 years old. He began having intercourse with her when she was 11 years old and continued to do so for the next three years. The last time Turek had intercourse with A.T. was on March 30, 2006, when she was 14 years old.
On the evening of April 1, 2006, A.T. was asleep in her room when Turek came in and ordered her to come to his room. Once in Turek’s room, A.T. told Turek she did not want to sleep with him and an argument ensued. After Turek stated he was going to kill A.T. and her mother, A.T. went back to her room.
The following day M. observed cut marks on A.T.’s wrists. When M. asked A.T. about the cuts, she did not respond. M. then told A.T. she needed to know what was going on if she was to help A.T. A.T. replied that if she told her mother what was wrong, they could never go home. After they left the house, A.T. told her mother what Turek had been doing, and M. called the police.
Later that evening, Turek was arrested and taken to the Orange County Sheriff’s Department substation. At the substation, Sheriff’s Investigators Jeff Brown and Eric Kaesman met with Turek to interview him. After Turek was advised of his Miranda rights, he indicated he understood them and he requested to speak to a lawyer before speaking with the investigators. The interview was terminated, and Turek was turned over to Sheriff’s Deputy Robert Sutton.
Miranda v. Arizona (1966) 384 U.S. 436.
Turek remained in Sutton’s custody in the pre-booking area of the substation, seated and handcuffed to a bench. Sutton did not reread Turek his Miranda rights, but reminded him he still had those rights. Based on statements made by A.T. and her mother, Sutton asked Turek if he had entertained suicidal thoughts. After some initial conversation wherein Turek indicated he was depressed because of the criminal investigation, Sutton asked Turek if anything had happened between him and A.T. Turek admitted touching A.T., but he insisted she touched him first. Turek admitted on one occasion he rubbed his penis up against his daughter and that caused him to have an orgasm. Turek acknowledged when he touched A.T., he knew it was wrong. Sutton then asked Investigators Brown and Kaesman to come back to the substation.
Sutton testified he could not recall if Turek had asked for water but said if Turek had asked for water he would have provided water. Sutton also could not recall whether Turek had complained about any medical problems.
Investigators Brown and Kaesman returned to the substation and talked to Turek in the booking area, where he remained handcuffed to the bench. The interview began at 1:46 a.m., with Brown asking Turek if he was upset. Turek said he could not believe his daughter “would do this” to him and she had totally blown things out of proportion. Although Brown stated he was going to advise Turek of his rights again, that did not occur. Turek then said he would tell Brown what happened with his daughter. One night after he and his daughter had both drunk some wine, Turek ended up in the same bed with his daughter and she grabbed his penis. Turek admitted rubbing his penis on his daughter but denied ever entering her. As he was laying there “buzzed” from the alcohol he had consumed, he had an orgasm.
The interview was taped, and the tape was played for the jury.
Brown testified Turek never indicated prior to the second interview he had a medical condition or was having a heart problem. He said if Turek had asked for water he would have given him some.
Motion to Exclude Incriminating Statements
At trial, Turek sought to exclude his statements to Sutton and Brown made when he was in custody at the substation because they were obtained in violation of Miranda. The prosecution agreed it would only introduce the statements for impeachment if Turek testified. Prior to Turek testifying, the prosecution moved to introduce the incriminating statements. Turek objected arguing the statements were not voluntary.
The court held an Evidence Code section 402 hearing to determine the admissibility of the statements. Brown conducted two taped interviews of Turek and those tapes were played for the court. In the first taped interview, Turek was advised of his Miranda rights and when he requested an attorney, the interview was terminated. Brown denied making any threats or promises to Turek prior to the second interview or displaying any weapons during the course of the interview. Prior to the second interview, Brown intended to again advise Turek of his Miranda rights, but he did not because Sutton advised him he had covered the Miranda rights with Turek several times and Turek was “good with his Miranda rights.”
Brown testified about the circumstances of Turek’s arrest, which he witnessed, but did not participate in. Brown observed other officers push Turek to the ground just outside of his house, and handcuff and arrest him.
Turek testified about his arrest. At about 10:00 p.m. or 11:00 p.m., Turek came out of his house in response to a telephone call he had received from law enforcement. Three or four police officers were pointing guns at him. Turek was thrown to the ground on the concrete sidewalk, and he felt compression like knees on his back. Turek testified he had trouble breathing and remembered calling out for his mother who was nearby. He remained on the ground for roughly 20 seconds and felt the pressure on his back increasing. He was then raised up by his arms and placed in the back of a patrol car.
Turek testified that after arriving at the substation, he was experiencing chest pain and was examined by paramedics. When Turek was first contacted by the investigators he was concerned about his chest pains. Despite having heard on the interview tape what appeared to be the investigator reading him his Miranda rights, Turek was positive he was never advised of his rights.
After the first interview was terminated, he was moved to another small room where he first saw Sutton. Turek was dehydrated and thirsty so he asked Sutton for water. He was also a little inebriated and experiencing chest pains but denied having any concerns about his mental health. Turek testified he asked Sutton for water and a cigarette; Sutton said, “not until you tell us something.” Turek denied ever having had a conversation with Sutton about A.T.
Turek testified the statements he made to Brown were not true. Turek “was just trying to give [the investigator] something to get it over with,” because he believed he would be made to sit handcuffed to the bench until he gave a statement. Although Turek did not think giving a statement would get him released, he did think he would get a drink of water after making a statement.
The trial court found Turek’s statements to Sutton and Brown were voluntary and admissible to impeach Turek’s trial testimony. The court found there was no evidence of duress or coercion and made various additional factual findings consistent with that conclusion: the officers were in plain clothes; no weapons were displayed; no promises or threats were made; there was no verbal abuse; there was no evidence Turek was having chest pain or suffering dehydration or injury—in fact he asked for a cigarette (“I kind of wonder if someone is allegedly having chest pains, why they would want a cigarette”), and was cordial and at times laughing during the interview; the interview took place in an open booking area. The court also found Turek’s testimony lacking in credibility. Turek testified he was positive he was not given his Miranda rights, but Brown could be heard on the interview tape clearly advising Turek of his Miranda rights. Turek denied he made any statements to Sutton, but when speaking to Brown, Turek made references to statements he made to Sutton.
After ruling Turek’s statements were admissible, the defense advised the court Turek intended to testify. The court advised Turek that if he testified the prosecution might attempt to introduce his statements to law enforcement. Turek indicated he understood that was a possible consequence, but he still chose to testify.
DISCUSSION
Turek contends the statements he made to law enforcement were inadmissible because they were obtained in violation of Miranda and were not voluntary. He argues the erroneous admission of his incriminating statements requires reversal of his conviction. We disagree.
If voluntary, even statements made in violation of Miranda may be admissible to impeach the defendant’s credibility so that the truth-finding function of the trial is not distorted by the defense. (Harris v. New York (1971) 401 U.S. 222, 224-226.) Turek’s statements were introduced for the impeachment purposes after he testified. Accordingly, we turn to whether the statements were voluntary.
It is the state’s burden to demonstrate voluntariness by a preponderance of the evidence. (People v. Bradford (1997) 14 Cal.4th 1005, 1033, citing Colorado v. Connelly (1986) 479 U.S. 157, 168.) “In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (People v. Massie (1998) 19 Cal.4th 550, 576.)
“On appeal, we review independently the trial court’s legal determinations of whether a defendant’s statements were voluntary [citation], whether his Miranda waivers were knowingly, intelligently, and voluntarily made [citation], and whether his later actions constituted an invocation of his right to silence [citation]. We evaluate the trial court’s factual findings regarding the circumstances surrounding the defendant’s statements and waivers, and ‘“accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.”’ [Citations.]” (People v. Rundle (2008) 43 Cal.4th 76, 115, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.)
In deciding whether a statement was voluntarily given, a court must consider such factors as the nature, length and location of the interrogation, and the defendant’s age, experience and education, physical, mental and emotional state and capacity to understand the meaning and consequences of the given statement. (People v. Lewis (2001) 26 Cal.4th 334, 383; People v. Williams (1997) 16 Cal.4th 635, 660.) “Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the ‘totality of [the] circumstances.’ [Citations.]” (People v. Neal (2003) 31 Cal.4th 63, 79; see Fare v. Michael C. (1979) 442 U.S. 707, 725.) Accordingly, we consider all of the circumstances surrounding Turek’s statements and his testimony at the hearing.
Turek contends his statements to Sutton and Brown were involuntary due to the coercive environment in which the interviews took place, his fragile physical and mental state, and the lateness of the hour. As to the location and environment in which the interviews took place, the prosecution did not dispute Turek’s testimony about the location. After his first interview with Brown was terminated, Turek was moved to another small room, where he first spoke with Sutton and the second interview with Brown took place. Nor did the prosecution dispute Turek was handcuffed to a bench during questioning. The court made a factual finding the interviews occurred in an open booking area and the location did not indicate coercion or duress. We agree an open booking area within a sheriff’s substation does not suggest coercion or duress even if the defendant is handcuffed.
As to Turek’s claimed fragile physical and mental state, the prosecution challenged Turek’s claims he was dehydrated, denied water, and experiencing chest pains at the time he made the incriminating statements. Brown testified Turek never made such complaints and had Turek asked for water, Brown would have given it to him. The court found no credible evidence Turek was experiencing pain or an injury that would have rendered his statements involuntary. It noted that in the recorded interview with Brown, there was no evidence Turek was in pain or was injured, he had a cordial nature, laughed, and asked for a cigarette. The evidence supports the trial court’s conclusion Turek’s physical or mental condition did not render his statements involuntary. And as to Turek’s reliance on the lateness of the hour, although his statements were made in the early morning hours approximately three hours after his arrest, there is no evidence suggesting he was suffering from fatigue. To the contrary, on the tape he appeared to be alert and animated.
In short, we have reviewed the trial court’s factual findings and find them to be supported by substantial evidence. We have also independently reviewed the trial court’s legal determinations as to the voluntariness of Turek’s statements and find no error. None of the circumstances indicate Turek’s statements were not freely made.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.