Opinion
H029622
5-30-2007
THE PEOPLE, Plaintiff and Respondent, v. ROGER CAVAZOS VILLARREAL, Defendant and Appellant.
NOT TO BE PUBLISHED
STATEMENT OF THE CASE
A jury found defendant Roger Cavazos Villarreal guilty of murdering Thomas Masters and further found true special circumstances allegations that he committed the murder during a robbery and had a prior murder conviction. (Pen. Code, §§ 187, subd. (a), 190.2, subds. (a)(2) & (a)(17).) The court sentenced defendant to life without the possibility of parole.
On appeal from the judgment, defendant claims the court erred in denying his motion to exclude incriminating statements obtained in violation of his Miranda rights. He also claims that during the hearing on his motion to exclude, defense counsel rendered ineffective assistance in failing to elicit evidence that authorities had focused on him as a suspect.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
We affirm the judgment.
FACTS
On December 5, 1989, about 7:25 p.m., defendant flagged down a taxi cab driven by Thomas Masters and directed him to a certain location. There, he pulled a gun on Masters, robbed him of money and keys, and shot him in the head. He then threw the keys into some bushes and left. Just after midnight, Officer Edward Gluhan of the Watsonville Police Department found Masters slumped over in his cab. He was still alive but died later at the hospital.
On April 20, 2004, Captain Eddie Rodriguez of the Watsonville Police Department and others interviewed defendant. During that interview, defendant confessed. He explained that he flagged down the taxi, robbed the driver, and later shot him with a. 32 caliber handgun, which he had gotten from a "border" brother. He did not know why he did it but said he was hooked on drugs and "strung out like a dog." He got only $50 or $60 and the drivers keys, which he threw away. At the time defendant confessed, certain facts— the type of weapon, that the driver had been flagged down, and that his keys had been taken—were not publicly known.
Defendant also confessed to the 1990 murder of Joe Reyes. He too had been shot with a .32 caliber handgun. Defendant had been a suspect but was never charged.
The Defense
Defendant, who had several prior felony convictions, including convictions for robbery, attempted premeditated murder, murder, and assault with a firearm, denied that he killed Masters. He testified that he confessed only to get some attention so that he could expose unfairness within the prison system and a conspiracy against him by prison officers. He said that confidential prison informants had wrongfully caused him to be confined in a special housing unit (SHU) for nine months, lose visitation, and have his release date extended by four years.
Raul Rodriguez, a correctional officer at Mule Creek Prison, where defendant was incarcerated, testified that several confidential prison informants had reported that defendant was trafficking in drugs. Although no drugs or evidence of trafficking were found, defendant was disciplined and sent to a SHU at Corcoran State Prison with no visitation for two years.
Defendant explained that to get the attention of prison authorities, he told a staff clinical psychologist that he had information about some unsolved murders and wanted to make a deal in exchange for his testimony. On April 13, 2004, he spoke to prison officers and reiterated what he had told the psychologist. On April 20, he negotiated an agreement with Santa Cruz County officials and then confessed to killing Reyes and Masters.
Defendant explained, however, that he learned details about the Masters murder from some people at "tent city," where he had been selling drugs. One night, he overheard some "border brothers" say that they had "bumped some[one] else" and taken the keys. He then heard some sirens. The next day, he learned that a cab driver had been shot. He did not report what he had heard. Later, he heard some people talking about a man who was armed. Fearing that man, defendant called 911 and reported that a man who had been killing cab drivers was about to strike again, and if the police hurried, they could catch him inside a tent.
A tape recording of the 911 call was played for the jury.
Doctor Richard Leo, a professor of psychology and criminology, testified as an expert on false confessions. He opined that confessions are highly persuasive evidence, and while many are genuine, some are false. He personally knew about four false confessions that had led to wrongful convictions.
DENIAL OF THE MOTION TO EXCLUDE DEFENDANTS STATEMENTS TO AUTHORITIES
Defendant contends that the court erred in denying his motion to exclude the statements he made to authorities during separate interviews on April 13 and April 20, 2004.
Background
Doctor E. Bastian, staff psychologist at Corcoran State Prison, testified that one day a custody officer told him that defendant wanted to speak to him, and on April 5, 2004, he met with defendant. Defendant disclosed that he had witnessed three murders, and the murderer was about to be released from prison and might kill again. He said that this knowledge had become an agonizing burden, and he could no longer remain silent. He was willing to testify against the perpetrator even if it resulted in a longer prison term if he could serve his time in a SHU with a sensitive needs yard. Doctor Bastian related this information to prison authorities.
On April 13, 2004, Correctional Officers Michael Alaniz and Daniel Peters met with defendant. Defendant said he knew details about two unsolved homicides in Santa Cruz County and one in Monterey County. Noting that he would be in prison into his 70s, defendant said he was willing to cooperate to have a safe prison placement for the rest of his term. He explained that he was present during the homicides, which he believed made him an accomplice. Consequently, he also wanted to avoid the death penalty.
The interview was tape recorded, and the tape was played to the jury.
Officer Alaniz asked whether he had participated in the homicides, and defendant said that he had been there. Officer Alaniz asked whether he knew the homicides were going to happen, and defendant said he did not know until "the last moment." After mentioning that defendant had certain rights, Officer Alaniz said he wanted to hear his story because he did not know what information defendant had or whether he was "a conspirator, a witness, or whatever . . . ." He said that it would be up to prosecuting authorities to decide whether to charge him. Defendant said he did not want to reveal too much because he feared the death penalty. Consequently, he wanted to talk to someone with the authority to guarantee that he would get life without parole instead of the death penalty. Officer Alaniz said that he could not do that. Defendant understood. Nevertheless, he said he wanted to bring some closure to a victims family.
Officer Alaniz asked whether defendant knew the victims name. When defendant said he did, Officer Alaniz said he was going to read defendant his rights and after that, if defendant still wanted to talk more, he could do so. He then read defendant his rights, and defendant waived them.
Thereafter, defendant said the homicide in Monterey County occurred in 1975. Another homicide occurred in 1990 in Santa Cruz County. Defendant said he would provide only enough information to get the attention of the Santa Cruz County District Attorney, with whom he could make a "deal" for life without parole under safe prison conditions. He reiterated that he wanted to bring closure to a victims family, explaining that he had been building up courage to reveal his information for months. Defendant then identified one victim as "Joe Romo" and said that he had been shot around New Years day, and his body had been found near the Watsonville High School. At that point, he said that that was all the information he was willing to provide until he spoke with Santa Cruz authorities.
Officer Peters advised defendant that he would call authorities in Santa Cruz and make the necessary arrangements.
Shortly after that interview, Captain Rodriguez of the Watsonville Police Department learned that defendant wanted to talk about two Santa Cruz County homicides but was afraid that he might incriminate himself and did not want to face the death penalty. Captain Rodriguez immediately thought of the Reyes homicide because defendant had been the primary suspect. He also thought of the Masters homicide, which had occurred close to the Reyes killing and also involved the use of a .32 caliber handgun. Captain Rodriguez reopened both cases and assigned them to Detective Saul Gonzalez.
At trial, Doctor Richard Mason, a forensic pathologist for Santa Cruz County, testified that he had performed the autopsies of Reyes and Masters. Concerning . 32 caliber handguns and ammunition, he opined that they were not common at the time of the homicides. Although they were popular at the turn of the century, he did not see them used very often—only three cases in his 25 years as a pathologist. He said the ammunition is difficult to find, and the revolvers were not manufactured anymore.
On April 20, 2004, Captain Rodriguez, Detective Gonzalez, Inspector Joe Henard of the Santa Cruz County Sheriffs Department, Assistant District Attorney Ariadne Symons of the Santa Cruz County District Attorneys Office, and Officer Peters met with defendant.
This interview was also taped and played for the jury.
Before saying anything about the homicides, defendant negotiated with the authorities over the circumstances under which he would disclose his information. Defendant explained that he wanted "closure" concerning the cases; he wanted to provide the families with some relief; and he wanted a safe place within the prison system where he could spend the rest of his life.
Captain Rodriguez said they were interested. However, because he did not know what information defendant had, he asked for a preview. Defendant said he was not going to say too much and incriminate himself without some guarantees. Based on defendants previous interview, Inspector Henard opined that he thought defendant had killed Reyes. Defendant reiterated that he knew the perpetrator but said he would not disclose any more information unless he got the deal he wanted. Inspector Henard said they had to confirm his information before they could make a deal. When defendant said he had already provided some information, Detective Gonzalez said that information was nothing new. At that point, defendant said that if they wanted to stay "in the dark" about the cases, "well hey, let me call [an] escort and take me back to my cell." Detective Gonzalez then made an offer: He promised not to use the information that defendant disclosed. Defendant did not believe him.
Defendant reiterated that he wanted to avoid the death penalty and spend the rest of his time in a safe prison with a sensitive needs yard. Captain Rodriguez asked why his information might subject him to the death penalty. Defendant again said that being present made him an accomplice and therefore subject to the same punishment as the perpetrator. He said he was not trying to escape punishment and was willing to spend his life in prison. Captain Rodriguez said they could not promise anything before they evaluated his information. Inspector Henard asked for "some trust." However, defendant said he had been deceived before and feared he would be prosecuted as soon as he said anything.
At that point the Assistant District Attorney Symons assured defendant that if he disclosed his information, it would not be used against him if later they were unable to reach an agreement. Captain Rodriguez reiterated this. However, defendant remained fearful, noting that he had cooperated with authorities in the past only to have the prosecutor ignore the assurances that had been given.
Captain Rodriguez and Detective Gonzalez repeatedly assured defendant that they could not do that, noting that if they had wanted to trick him, they could have simply made a fake promise. However, they had to follow the law. They asked defendant to trust them. Defendant remained skeptical, fearing that someone higher up would renege on their promise not to use the information. He said that he would talk only if he got what he wanted. He was surprised at how hard it was for authorities to comply with his demands.
At that point, Captain Rodriguez asked defendant if they could take a break, and defendant agreed. When they resumed, Captain Rodriguez informed defendant that as long as he did not break the law in prison, he would always have the safe conditions that he now enjoyed, even if later he were prosecuted for the homicides.
Captain Rodriguez then tried to simplify things to make sure everyone was "on the same page." He explained that he wanted to talk about the two cases in Watsonville, especially the Reyes case. He said that if defendant spoke truthfully, provided information that could be verified, and was willing to testify in court, then the prosecution would "take the death penalty off the table." Thus, they could and would meet defendants demands for continued prison safety and protection and no death penalty.
Defendant said he also wanted assurance that he could have access to a sensitive needs yard. Captain Rodriguez said "thats what our commitment is." Nevertheless defendant declined to talk because no one had called prison officials at Mule Creek to tell them about the deal and make sure that he could immediately return there. Captain Rodriguez said they had no control over where defendant would be incarcerated. He thought defendant was making a new demand and wondered if defendant had simply engineered the interviews to ensure his return to Mule Creek.
During these negotiations, defendant said a few times that he was ready to leave. At one point, he told Captain Rodriguez to call the escort because he was ready to go. At other times, he asked them to let him go, invited Captain Rodriguez to leave his card, and said he would call him. Captain Rodriguez said they had been negotiating on a good faith basis, and each time they got close to an understanding, defendant would ask for more. Captain Rodriguez warned that if he left, he would not come back. Defendant said he had simply forgotten to mention that he wanted to return to Mule Creek at the beginning. Captain Rodriguez considered it a reasonable request but warned he did not want to be manipulated.
At that point, Detective Gonzalez informed defendant that prison officials had told him that defendant could soon return to Mule Creek if there was room there. Defendant wanted a firm guarantee. Captain Rodriguez then asked whether defendant was going to demand something else if they could guarantee his return to Mule Creek. Defendant said no.
During this time, Officer Peters learned and then told defendant that prison officials had endorsed his return to either Salinas Valley or Mule Creek and had further agreed that he could return to Mule Creek. Defendant was doubtful and asked Officer Peters for his "word." Officer Peters said he would be going back to Mule Creek even if he had to personally bring him there. There was a general discussion about the logistics of returning to Mule Creek and being transported from there to the Santa Cruz County Jail during trial, if and when defendant testified.
At this point, defendant declared that he was satisfied and willing to "give the whole drawing" about the homicides. Captain Rodriguez told defendant that if he lied the deal would be off. Defendant said he understood. He said he would be precise and not disappoint them. However, he then said he would only talk further to Captain Rodriguez.
Everyone else left the room. Captain Rodriguez asked what defendant wanted to reveal. Defendant started to cry and said he killed Reyes in self-defense, after Reyes pulled a gun on him and threatened him. He said Reyes lunged at him, they struggled for the gun, he got control of it, and shot him. After that, he went to his sisters house, took a shower, and then disposed of his clothes.
After this brief summary, Captain Rodriguez stopped defendant. He asked whether defendant remembered having heard and waived his rights at the prior interview. Defendant said he remembered. When asked whether he understood his rights, he said, "Miranda yea." Captain Rodriguez then readvised him. Defendant said he understood his rights, and he waived them again. Thereafter, Captain Rodriguez interrogated defendant about the Reyes homicide, and defendant provided a detailed explanation. After that, Captain Rodriguez asked defendant about the Masters homicide. Defendant sought confirmation that he would not face the death penalty for that killing. Captain Rodriguez assured him, and defendant then explained how he had killed Masters.
Standard of Review
"An appellate court applies the independent or de novo standard of review, which by its nature is nondeferential, to a trial courts granting or denial of a motion to suppress a statement under Miranda insofar as the trial courts underlying decision entails a measurement of the facts against the law. [Citations.] As for each of the subordinate determinations, it employs the test appropriate thereto. That is to say, it examines independently the resolution of a pure question of law; it scrutinizes for substantial evidence the resolution of a pure question of fact; it examines independently the resolution of a mixed question of law and fact that is predominately legal; and it scrutinizes for substantial evidence the resolution of a mixed question of law and fact that is predominately factual." (People v. Waidla (2000) 22 Cal.4th 690, 730.)
Discussion
As noted, defendant claims the statements obtained during both interviews were obtained in violation of his Miranda rights.
"The now familiar rule in Miranda relies on the Fifth Amendment to the federal Constitution to preclude the evidentiary use of statements made pursuant to a custodial interrogation unless the suspect has knowingly and intelligently waived the rights to remain silent and to the presence and assistance of an attorney, the latter provided at state expense for indigent suspects. [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 735, italics added; Miranda, supra, 384 U.S. at pp. 444-445; see Dickerson v. United States (2000) 530 U.S. 428, 439-440.) "Absent `custodial interrogation, Miranda simply does not come into play." (People v. Mickey (1991) 54 Cal.3d 612, 648.)
"The test for whether an individual is in custody is `objective . . . : "[was] there a `formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 401, quoting Thompson v. Keohane (1995) 516 U.S. 99, 112; see also People v. Stansbury (1995) 9 Cal.4th 824, 830.)
Whether a defendant was in custody for purposes of Miranda warnings presents a mixed question of law and fact. (People v. Ochoa, supra, 19 Cal.4th at p. 401.) To make that determination, a trial court must first establish the circumstances surrounding the interrogation. It must then measure those circumstances against an objective, legal standard: would a reasonable person in the suspects position during the interrogation experience a restraint on his or her freedom of movement to the degree normally associated with a formal arrest. (Ibid.; Thompson v. Keohane, supra, 516 U.S. at pp. 112-113.)
On appeal, we accept the trial courts findings of historical fact if supported by substantial evidence but independently measure those facts against the objective legal standard to determine whether the interrogation was "custodial." (People v. Ochoa, supra, 19 Cal.4th at p. 401.)
Here, the trial court found it "obvious that the defendant [was] in custody." As a factual matter, it is indisputable that defendant was in prison when he was interviewed. However, his status as a prison inmate does not necessarily establish custody for purposes of Miranda.
In Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424 (Cervantes), a majority of the court acknowledged that the Miranda safeguards apply equally to those who are incarcerated. (Id. at p. 427; see Mathis v. United States (1968) 391 U.S. 1, 4-5 [Miranda applicable to inmates].) However, the majority rejected the defendants claim that being an inmate automatically established custody for purposes of Miranda. The majority explained that such a view "would, in effect, create a per se rule that any investigatory questioning inside a prison requires Miranda warnings. Such a rule could totally disrupt prison administration. Miranda certainly does not dictate such a consequence. . . . [Citation.] [¶] Adoption of [such a] contention would not only be inconsistent with Miranda but would torture it to the illogical position of providing greater protection to a prisoner than to his nonimprisoned counterpart. We cannot believe the Supreme Court intended such a result." (Cervantes, supra, 589 F.2d at p. 427.)
In formulating an appropriate test in the prison setting, the majority opined that the usual test of custody—i.e., whether a reasonable person under the circumstances would have felt free to leave—could not be applied because an inmate is not free to leave. (Cervantes, supra, 589 F.2d at p. 428.) Rather, since an inmate is already in custody, "custodial" for purposes of Miranda refers to situations where authorities have applied some additional degree of restraint to force participation in an interrogation. To help make that determination, the court identified four relevant considerations: (1) the language used to summon the inmate for questioning, (2) the physical surroundings of the interrogation, (3) the extent to which the inmate is confronted with evidence of his guilt, and (4) the additional pressure exerted to detain him. (Cervantes, supra, 589 F.2d at p. 428.) The court concluded that the ultimate question is whether a reasonable person under the circumstances would believe there had been a restriction of his freedom over and above that in the normal prisoner setting. (Ibid.)
In his brief dissent in Cervantes, Judge J. Blaine Anderson opined, "The new test constructed by the majority is, in my view, unrealistic and unworkable. Even if this new test should prove to be valid, the facts here bring [the defendant] within the `additional imposition on his limited freedom of movement and Miranda warnings were required." (Cervantes, supra, 589 F.2d at p. 429.) We note, however, that in U.S. v. Turner (9th Cir. 1994) 28 F.3d 981, a different panel of the Ninth Circuit unanimously approved Cervantes and followed it. (Id. at p. 983.)
The analysis in Cervantes has been widely adopted and applied by both state and federal appellate courts. In People v. Anthony (1986) 185 Cal.App.3d 1114 and People v. Fradiue (2000) 80 Cal.App.4th 15 (Fradiue), the Third District did so, and both cases provide guidance here.
See U.S. v. Newton (2d Cir. 2004) 369 F.3d 659, 670; Garcia v. Singletary (11th Cir. 1994) 13 F.3d 1487, 1491; U.S. v. Menzer (7th Cir. 1994) 29 F.3d 1223, 1231-1232; Leviston v. Black (8th Cir. 1988) 843 F.2d 302, 304; U.S. v. Conley (4th Cir. 1985) 779 F.2d 970, 972; U.S. v. Scalf (10th Cir. 1984) 725 F.2d 1272, 1275; Smith v. State (Ala.Crim.App. 2000) 838 So.2d 413, 441; State v. Swink (Utah App. 2000) 11 P.3d 299, 302-303; State v. Brown (Mo.App. 2000) 18 S.W.3d 482, 485; State v. Lopez (N.M. App. 2000) 8 P.3d 154, 156; Com. v. Larkin (Mass.1999) 708 N.E.2d 674, 680-681; State v. Tibiatowski (Minn. 1999) 590 N.W.2d 305, 309; State v. Goss (Tenn.Crim.App. 1998) 995 S.W.2d 617, 629; State v Conley (N.D. 1998) 574 N.W.2d 569, 573; State v. Ledbetter (Conn.App. 1996) 676 A.2d 409, 414-415; People v. Denison (Colo. 1996) 918 P.2d 1114, 1116; State v. Warner (Wash. 1995) 889 P.2d 479, 483; State v. Deases (Iowa 1994) 518 N.W.2d 784, 789; People v. Alls (N.Y. 1993) 629 N.E.2d 1018, 1021; State v. Owen (Neb.App. 1993) 510 N.W.2d 503, 522; Carr v. State (Alaska App. 1992) 840 P.2d 1000, 1003; Blain v. Com. (Va. App. 1988) 371 S.E.2d 838, 840-841; State v. Fulminante (Ariz. 1988) 778 P.2d 602, 607-608; see also Magid, Questioning the Question-Proof Inmate: Defining Miranda Custody for Incarcerated Suspects (1997) 58 Ohio St. L. J. 883, 936-937.
Indeed, defendant cites no case in which Cervantes has been rejected. Moreover, we note that the United States Supreme Court has declined an opportunity to address the question of whether incarceration automatically constitutes custody for purposes of Miranda. (SeeBradley v. Ohio (1990) 497 U.S. 1011, 1012-1013 [Marshall, J., dissenting from the denial of certiorari].)
In People v. Anthony, supra, 185 Cal.App.3d 1114, the defendant was arrested for murder. During an interview, he declined to talk about the crime, saying he wanted to think about it. An officer told him they had incriminating evidence and a warrant to search his residence, explained special circumstance murder, and advised him to think about it. (Id. at p. 1118.) The next day, during a second interview, police falsely told the defendant that he had been identified. They further said that if he got a lawyer, the police would never hear his side of the story. The defendant said he did not know what they were talking about. (Id. at pp. 1118-1119.) However, the next day, the defendant called the police from a lock-up facility and made incriminating statements. At that time, the police did not advise him of his Miranda rights. (Id. at p. 1119.)
Analyzing the circumstances in light of the factors identified in Cervantes, the court found it significant that the police did not summon defendant; rather, he called the police and made incriminating statements. The court also noted that the police were not present with defendant when he made the call. Furthermore, "the officers did not confront appellant with evidence of his guilt while they were speaking with him nor could they have, under the circumstances, exerted additional pressure to detain him. Thus, appellants freedom of movement during these conversations cannot be characterized as more restricted than the usual restraint on a jail inmates liberty to depart." (People v. Anthony, supra, 185 Cal.App.3d at p. 1122, original italics.) Under the circumstances, the court concluded that the telephone conversation did not constitute custodial interrogation and therefore did not require of Miranda warnings.
In Fradiue, supra, 80 Cal.App.4th 15, a correctional officer found drugs on a shelf in the defendants cell. Disciplinary charges were filed, and the defendant was assigned an investigator, whose function was to interview and assist him in obtaining witnesses and gathering evidence. The defendant had the right to request a different investigator, but he did not do so. The investigator interviewed the defendant through the bars of his cell in a segregated unit, to which he had been moved pending a disciplinary hearing. During the interview, the defendant admitted possessing the drugs but denied trafficking. (Id. at pp. 17-19.)
On appeal, the court observed that the police did not summon the defendant for questioning; rather, the investigator came to him, and they spoke in the presence of the defendants cell mate. The defendant was not handcuffed or otherwise restrained inside his cell. The investigator did not confront the defendant with incriminating evidence and told him he could have a different investigator. The investigator testified that an inmate need not cooperate with an investigator, and the defendant acknowledged this. (Fradiue, supra, 80 Cal.App.4th at pp. 20-21.) The court then explained that "`[t]o determine whether prison officials have applied an additional restraint, further restricting an inmates freedom and triggering Miranda warnings, courts must consider the totality of the circumstances surrounding the alleged interrogation. [Citation.]" (Id. at p. 21.) The court found that "no restraints were placed upon defendant to coerce him into participating in the interrogation over and above those normally associated with his inmate status." Accordingly, the court found that Miranda warnings were not required. (Ibid.)
In this case, the facts surrounding both interviews are essentially undisputed. Burdened with the information about some homicides, defendant initiated a meeting with Doctor Bastian and offered to disclose that information about some homicides in exchange for beneficial treatment.
On April 13, 2004, Officers Alaniz and Peters met with defendant in an interview room. Defendant was shackled. They did not confront him with incriminating evidence. Defendant volunteered that he knew about three homicides in Santa Cruz and Monterey Counties and would disclose that information if he were guaranteed no death penalty and a safe prison placement. The officers said they lacked authority to make such a deal but were interested in his information. Officer Alaniz asked how defendant knew about the homicides, whether he had participated, and whether he knew the victims. The questions were not accusatory, threatening, or coercive. When defendant said he could provide details because he had been present and knew the victims, Officer Alaniz gave a Miranda admonition, and defendant waived his rights. He then said he would provide only enough information to get the attention of those authorities who could guarantee his demands. Officer Peters offered to arrange a meeting.
By April 20, 2004, Captain Rodriguez suspected that defendant had information about the Reyes and Masters homicides. However, the only information the authorities had was what defendant had told Doctor Bastion and Officers Alaniz and Peters. Inspector Henard initially opined that he thought defendant was the perpetrator, but defendant was not confronted with any new incriminating information. Thereafter, defendant negotiated for the deal he wanted. He knew that they believed he had information; he made it clear that if they wanted it, they had to meet his demands; and he declined to say anything until he received firm guarantees.
During those negotiations, the authorities tried to convince defendant that they had to evaluate his information before they could make any promises. Defendant was wary and unmoved. Then they promised not to use any information against him if ultimately they could not work out a deal. Defendant neither believed nor trusted that offer. At times, defendant indicated his willingness and desire to leave and terminate the interview without revealing anything.
Ultimately, the authorities agreed to defendants terms. Defendant asked everyone except Captain Rodriguez to leave, and then he confessed to and briefly explained the Reyes killing. After hearing this, Captain Rodriguez repeated the Miranda advisements. Defendant said he remembered and understood them and then waived them. Thereafter, he provided a more detailed explanation of the Reyes killing. After that, he admitted killing Masters.
Viewed in isolation, some circumstances surrounding the interviews suggest restraint or coercive restriction over and above what was normal for defendant in prison. For example, unlike the defendant in Fradiue, defendant was interviewed in a separate room, rather than his cell, and he was shackled. Moreover, he was interviewed by more than one person each time.
However, when viewed in light of the totality of circumstances, those facts do not lead us to find that the interviews were "custodial" for purposes of Miranda.
Santa Cruz County authorities were not currently investigating the two homicides when defendant volunteered information to Doctor Bastion. Moreover, it was not the prison or county authorities who summoned defendant to each interview; nor did they require or compel his attendance. On the contrary, it was defendant who, in effect, summoned authorities to talk to him because, as he explained, he wanted to relieve himself of an emotional burden related to the homicides, provide closure for the families of the victims, and, most importantly, leverage his undisclosed information into a beneficial deal.
In our view, the fact that defendant initiated that interviews for his own purposes is of primary significance in determining whether those interviews constituted custodial interrogation because the questioning prohibited by Miranda is "questioning initiated by law enforcement officers after a person has been taken into custody . . . ." (Miranda, supra, 384 U.S. at p. 444, italics added.)
We acknowledge that defendant was shackled during the interviews. However, shackling or handcuffing a suspect who has been detained does not automatically or necessarily transform subsequent questioning into a custodial interrogation for purposes of Miranda warnings, especially where the restraint is reasonably justified by security considerations. Rather, shackling is just part of the totality of circumstances that must be considered. (See United States v. Vega (7th Cir. 1995) 72 F.3d 507, 515; e.g., United States v. Cota (2d Cir. 1992) 953 F.2d 753, 758-759; United States v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1292.)
Here, defendant was in shackles not because he was suspected of murder but, as the Attorney General points out, because he was a prison inmate and convicted murderer being voluntarily interviewed outside of his cell. Thus, shackling was simply a security measure that defendant could reasonably have expected as a prerequisite to talking to authorities in private. Because he sought those interviews, his shackling could not have conveyed to him that he was at the mercy of authorities, exerted a subtle psychological pressure to talk, or otherwise prevented him from terminating the interviews whenever he wanted. Consequently, being shackled and interviewed in a separate room do not represent restrictive or coercive circumstances that implicate the voluntariness of his attendance and participation.
Similarly, the presence of numerous persons during both interviews, including investigative and prosecutorial personnel from outside Corcoran State Prison, had no tendency to convey some additional coercive message or pressure. Rather, those were the very people defendant had sought out and wanted to talk to because they were the ones who had the authority to enter a deal and promise him what he wanted or they were the ones who could get the attention of those who could do so.
Next, we note that other than Inspector Henards speculative accusation that defendant committed the homicides, which was based on the transcript of the April 13, 2004 interview, the authorities did not confront defendant with new incriminating evidence, employ ruses about alleged evidence or witnesses, or interrogate him in an aggressive, accusatory, dominating, or controlling way. Rather, during the lengthy negotiations on April 20, 2004, defendant exhibited control over whether he would disclose anything. Although the authorities attempted to elicit information without promising anything, defendant distrusted them and felt no pressure or obligation to disclose anything before he obtained firm guarantees, and he did not do so. Indeed, when, at times, it appeared the authorities would not promise first and listen later, and the negotiations were stalled, defendant implicitly threatened to stop the interview, asking for an escort back to his cell or saying he wanted to leave. His tactics worked because authorities finally capitulated and gave him advanced guarantees. These circumstances do not suggest that the atmosphere during the interviews was coercive or that defendant felt coerced by them.
Finally, we observe that defendant was a seasoned criminal and prison inmate. At the April 13, 2004 interview, he was advised of and knowingly waived his Miranda rights. Later, during the April 20, 2004 interview, he said he remembered the previous admonition. He even knew that those rights were called Miranda rights. Thus, we may presume that defendant was aware of his rights when the interview on April 20, 2004, commenced. Defendants desire for that interview and his conduct during it implicitly reflect a knowledge of his rights, in that, he did not feel that he had to disclose any information until he got what he wanted from authorities. Thus, defendants knowledge of his Miranda rights further eliminated any possible coercive atmosphere or effect arising from the circumstances surrounding that interview.
Given the totality of the circumstances, we do not find that defendant was subjected to restraints on his liberty during the interviews over and above what was normal and reasonable in the prison setting. Nor do we find that the circumstances of those interviews created a coercive atmosphere that was tantamount to an arrest or that the circumstances carried an implicit pressure to participate in the interviews and overcame some unexpressed desire he might have had to remain silent. Consequently, we find that the interviews did not constitute custodial interrogation, and the authorities were not required to give Miranda warnings anytime before they actually did so. Accordingly, we conclude that the trial court did not err in denying defendants motion to exclude his statements.
Given our conclusion, we reject defendants claim that the authorities violated his Miranda rights because they "failed to honor his attempts to terminate questioning" during the April 20, 2004 interview.
It is settled that during custodial interrogation, if the defendant indicates in any manner at any time that he or she wishes to remain silent, police must stop the interrogation, and any statement taken after such an invocation of privilege is presumptively involuntary and inadmissible. (Miranda, supra, 384 U.S. at pp. 444-445, 473-474.)
The rule is inapplicable here because that interview did not constitute custodial interrogation. Moreover, the statements cited by defendant, in which he asks for an escort to return to his cell, or says he wants to leave, occurred during the lengthy discussions concerning his demands and insistence on guarantees before he disclosed any information. In this context, defendants comments more reasonably reflect a savvy negotiating ploy rather than an assertion of rights and a request to remain silent or terminate the interview before he had obtained the deal he wanted. Moreover, as noted, his implicit threats to terminate the interview worked because he ultimately obtained everything he wanted before he disclosed any new information.
We acknowledge that our legal analysis concerning whether the interviews constituted custodial interrogation differs from the trial courts conclusion that defendant was in custody for purposes of Miranda. However, " `[n]o rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion. [Citation.]" (DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19; People v. Zapien (1993) 4 Cal.4th 929, 976.)
Defendant notes that during the April 20 interview, he confessed to the Reyes homicide before Captain Rodriguez advised him of his rights. Then, after he waived his rights, he confessed again, providing the details of the killing. He also confessed to the Masters homicide. Citing Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), Defendant claims that notwithstanding his waiver, the prewarning confession rendered his entire statement inadmissible. We disagree.
In Seibert, a police officer questioned the defendant for about 40 minutes after her arrest, and she made incriminating statements. (Seibert, supra, 542 U.S. at pp. 604-605.) After a break, the officer gave her Miranda warnings, and she waived her rights. (Id. at p. 605.) Confronted with her prewarning statements, she confessed again. (Ibid.) The interrogating officer later testified that he had made a " `conscious decision to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught," i.e., to "question first, then give the warnings, and then repeat the question" until the suspect provides the answer he or she had " `already provided once. " (Id. at pp. 605-606.) The trial court suppressed the prewarning statements but admitted the postwarning confession. (Id. at p. 606.)
On these facts, a majority of the United States Supreme Court condemned the practice of questioning first and warning later, concluding that a "midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Mirandas constitutional requirement . . . ." (Seibert, supra, 542 U.S. at p. 604.) Writing for a plurality, Justice Souter observed that "[t]he object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed." (Seibert, supra, 542 U.S. at p. 611.) He identified several factors relevant to determining whether Miranda warnings delivered midstream are effective: "the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of the police personnel, and the degree to which the interrogators questions treated the second round as continuous with the first." (Id. at p. 615.)
Justice OConnor dissented and was joined by Chief Justice Rehnquist and Justices Scalia and Thomas.
In his concurring opinion, Justice Kennedy adopted a much narrower test: "If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made." (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) Examples of curative measures include "a substantial break in time and circumstances between the prewarning statement and the Miranda warning," and "an additional warning that explains the likely inadmissibility of the prewarning custodial statement . . . ." (Ibid.) Justice Kennedy further opined that unless the two-step interrogation technique is used deliberately to undermine the Miranda warnings, the admissibility of postwarning statements should be governed by the principles announced in Oregon v. Elstad (1985) 470 U.S. 298, 314, where the court held that "[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." (Seibert, supra, 542 U.S. at p. 614.)
Because Justice Kennedy supplied the fifth vote in Seibert and concurred on grounds narrower than those adopted by the plurality, his approach is controlling. (See Romano v. Oklahoma (1994) 512 U.S. 1, 9; Marks v. United States (1977) 430 U.S. 188, 193.)
Defendants reliance on Seibert is misplaced for several reasons. First, as we explained above, defendant was not subject to custodial interrogation during the interview, and, more specifically, when, after obtaining an agreement, he admitted killing Reyes and briefly explained what happened. Thus, Miranda warnings were not required any time before they were actually given.
Second, even if defendant had been subject to custodial interrogation, the circumstances do not support a finding that Captain Rodriguez deliberately employed the question-first interrogation technique to undermine the Miranda warnings. During the interview, defendant was repeatedly told that the prosecutor would not use defendants information unless they reached a deal. After the authorities met defendants demands, they warned him that the "deal was off" and his statements would be used, if thereafter he lied. Defendant understood. Captain Rodriguez then asked defendant what he had to say about the homicides. Defendant said he killed Reyes. Captain Rodriguez asked if defendant remembered the previous admonition of Miranda rights on April 13, 2004. Although defendant said he did, Captain Rodriguez nevertheless read them again and obtained a waiver. These circumstances are in dramatic contrast to those in Seibert.
Third, defendant expressly acknowledged the previous Miranda admonition and his waiver. In our view, that previous admonition and defendants awareness of it and his rights constitute a sufficient curative measure before defendants post-warning statements to render those statements admissible.
Indeed, given defendants recollection of the Miranda admonition, we agree with the Attorney General that the prior admonition was sufficiently contemporaneous with the April 20, 2004 interview to obviate the need for a second warning either at the outset of the second interview or later after the parties reached an agreement and before defendant waived his rights for a second time. (See People v. Mickle (1991) 54 Cal.3d 140, 169-171 [readvisement unnecessary for second interrogation 36 hours after admonition]; Biddy v. Diamond (5th Cir. 1975) 516 F.2d 118, 122 [same re second interrogation one week after an initial waiver]; Martin v. Wainwright (4th Cir. 1985) 770 F.2d 918, 929-931.)
We further agree with the Attorney General that even if Captain Rodriguez had deliberately used the question-first technique to obtain a confession to the Reyes homicide, defendants prewarning statements were unrelated to the Masters homicide, and defendant waived his Miranda rights before he admitted killing Masters. Seibert does not suggest that defendants confession to that killing was tainted by the prior unwarned confession to a different crime.
This last reason further leads us to conclude that even if Miranda warnings were required at the outset of both interviews, the failure to administer them sooner rather than later was harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 306-312 [admission of statement in violation of Miranda subject harmless-error analysis set forth in Chapman v. California (1967) 386 U.S. 18]; People v. Cahill (1993) 5 Cal.4th 478, 531-541 [same].)
During the April 13 interview, the Masters homicide was not mentioned, and defendant made no incriminating statements about it either before or after he waived his rights. Likewise, at the April 20 interview, before defendant waived his rights, the subject of the Masters homicide was not raised or discussed by name, and he made no incriminating statements about it until after he waived his rights. Under the circumstances, we conclude that any error in the admitting defendants pre-waiver statements could not have affected the verdict concerning the murder of Masters.
DISPOSITION
Given our analysis and conclusion, we need not address defendants claim that defense counsel rendered ineffective assistance during the hearing on defendants motion in limine to exclude evidence of his statements.
The judgment is affirmed.
We concur:
PREMO, J.
ELIA, J.