Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. NA068975, Tomson T. Ong, Judge.
Victor J. Morse, 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, Assistant Attorney General, Paul M. Roadarmel, Jr., and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
A jury convicted defendant Lorenzo Welch of one count of first degree murder (Pen. Code, § 187, subd. (a)). The jury found true allegations that defendant committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), used a firearm (§ 12022.53, subd. (b)), discharged a firearm (§ 12022.53, subd. (c)), and discharged a firearm causing death (§ 12022.53, subd. (d)). Defendant pled no contest to the bifurcated charge of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and admitted the allegation that he was armed with a firearm in that crime (§ 12022, subd. (c)). The trial court sentenced him to 60 years to life in state prison. He appeals, contending that his confession was obtained in violation of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), and that the trial court erred in denying his motion to exclude the confession. We affirm.
All undesignated section references are to the Penal Code.
BACKGROUND
Around 11:30 a.m. on August 1, 2005, Randall Bradley, a Rolling Twenties gang member, was shot as he walked down 10th Street in the City of Long Beach. He died from a gunshot wound to the chest.
Josette Gonzalez witnessed the shooting from the opposite side of the street. She saw a man riding a beach cruiser bicycle pass Bradley on the sidewalk and skid to a stop about eight feet in front of him. Bradley appeared surprised. The man on the bicycle appeared to say something, pulled a pistol out of his pants pocket, and shot Bradley about five times, then rode away. Gonzalez was a member of a Hispanic gang, East Side Longos, and believed that the shooter and Bradley, both of whom were Black, were also gang members. She did not identify defendant at trial.
Sean Mejia was driving on 10th Street when he heard perhaps four gunshots. Mejia turned and saw a man on a black beach cruiser bicycle holding a revolver with his arm outstretched. The man put the gun in his pants pocket and rode away. Mejia called 911. Later, around 6:45 p.m., he picked defendant’s photograph in a photo six pack, saying that he was not “a-hundred percent” sure and that the person depicted had longer hair and a smoother complexion that the shooter. At trial, Mejia identified defendant as the shooter.
Officer Oren Lew of the Long Beach Police Department was patrolling on his bicycle when he heard a radio broadcast reporting the shooting and headed toward the scene. In an alley about 10 blocks away from the scene, he observed defendant and thought he resembled the suspect described in a police broadcast. Officer Lew detained defendant. On the steps outside a nearby residence, he observed a black beach cruiser bicycle. Other officers brought Josette Gonzalez to the alley. Viewing defendant from a distance, Gonzalez believed that he was thinner than the shooter, and told the officers that he was not the man she had seen firing. At trial, she was sure that the person she had been asked to identify in the alley was not the shooter.
On January 27, 2006, while in custody, defendant was interrogated by Long Beach Police Detectives Teryl Hubert and Richard Conant. After being advised of and waiving his Miranda rights, defendant confessed to killing Bradley. He told the detectives that when he rode his bicycle past Bradley, Bradley spat at him. Defendant pulled out his revolver and shot Bradley about six times. Defendant then “blacked out” and fled on his bicycle. He believed Bradley was a member of the Rolling Twenties gang, and said he had harassed defendant in the past.
At trial, three police officers testified that defendant belonged to the Insane Crips gang. According to one of the officers, Sean Hunt, Randall Bradley was an “original gangster” (meaning a long-term member) of the Rolling Twenties, a rival of the Insane Crips. Officer Hunt testified that by shooting an original gangster of the Rolling Twenties, a member of the Insane Crips would gain status in his gang and enhance the violent reputation of the gang.
DISCUSSION
Defendant contends that the trial court erred in denying his pretrial motion to exclude his confession. He contends that by stating at one point during custodial questioning that he wanted to return to his cell, he unequivocally invoked his right to remain silent. We conclude that the trial court properly denied the motion.
The Miranda Hearing
Before trial, defendant’s counsel made an oral motion to exclude his confession on the ground that it was obtained in violation of defendant’s Miranda rights. At the hearing on the motion, the sole witness was Long Beach Police Detective Richard Conant.
Called by the prosecution, Detective Conant testified that on January 27, 2006, he and his partner, Detective Teryl Hubert, questioned defendant in an interview room at the Long Beach Police Department. They had earlier learned defendant was in custody in connection with an unrelated case, and “went up and brought him down to be interviewed.” Before the questioning began, Detective Conant gave defendant a written Miranda advisement form and had him read it aloud. After reading the advisement, defendant said he understood his rights. He initialed the form and agreed to speak to the detectives.
Detective Conant first questioned defendant about where he lived, his gang affiliation, and related topics. Defendant appeared nervous, at times shaking and fidgeting. At this point, Detective Conant was not tape recording the interview.
After about an hour, Detective Conant told defendant that he wanted to talk to him about a murder that occurred on August 1. Defendant said, “[M]aybe I should have an attorney.” Detective Conant told him that if he wanted a lawyer, he could have one. At some point (though not immediately after his comment concerning an attorney), defendant said, “I want to go back to my cell,” or words to that effect. Detective Conant remained quiet for about 15 seconds, waiting to see if defendant was going to ask for an attorney or ask to leave. When defendant did not ask for an attorney or say that he did not want to talk anymore, Detective Conant said again that he wanted to talk about the murder. Defendant was nervous, sweating, and visibly upset. Detective Conant said that he wanted defendant to tell him the truth about what had happened. He said that Randall Bradley, the murder victim, was no angel, and he urged defendant to come clean and get it off his chest. Defendant asked how that would help him. Detective Conant replied that without hearing defendant’s side of the Bradley shooting, it appeared to be a cold-blooded killing. They then continued to talk for about 15 or 20 minutes, during which time defendant confessed to the killing. At no time did defendant specifically ask for an attorney or say that he did not want to talk anymore.
In the exercise of our duty to independently review the undisputed evidence, we have construed the chronology and content of the interview in the way that makes the most logical sense. We note, however, that our task has been made more difficult because the record is not clear as to precisely what defendant said regarding returning to his cell and precisely when he said it.
After defendant implicated himself in the killing, Detective Conant turned on the tape recorder. Defendant’s tape recorded confession was consistent with his earlier statements implicating himself.
In the trial court, defense counsel argued that defendant’s reference to an attorney and to his desire to return to his cell was tantamount to an invocation of his right to remain silent. Therefore, the questioning should have ceased and defendant’s confession should be suppressed. The trial court denied the motion to exclude the confession. The court ruled that defendant expressly waived his Miranda rights in writing, and did not thereafter unequivocally invoke his right to an attorney or to remain silent. Therefore, continued questioning was permissible.
Admissibility of Defendant’s Confession
On appeal, defendant abandons any claim that he invoked his Miranda rights through his equivocal statement, “[M]aybe I should have an attorney.” (See Davis v. U.S. (1994) 512 U.S. 452, 459-461 (Davis) [suspect’s statement, “Maybe I should have an attorney,” held insufficient to invoke right to counsel during police questioning].) Rather, he contends solely that his statement, “I want to go back to my cell” (or the equivalent) was an unambiguous invocation of his right to remain silent. According to defendant, that statement “could not be interpreted as anything but a desire to terminate the interview, bid farewell to the interrogating officers, and return to his cell.” Contrary to defendant’s contention, we conclude that his statement that he wanted to return to his cell was not an unequivocal invocation of his right to remain silent.
“In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence or counsel. [Citation.] 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 . . . either to ask clarifying questions or to cease questioning altogether. [Citation.] Of course, such an approach may disadvantage suspects who, for emotional or intellectual reasons, have difficulty expressing themselves. [Citation.] However, a rule requiring a clear invocation of rights from someone who has already received and waived them ‘avoid[s] difficulties of proof’ [citation], and promotes ‘effective law enforcement.’ [Citation.]” (People v. Stitely (2005) 35 Cal.4th 514, 535 (Stitely), citing Davis, supra, 512 U.S. 452, 458-461.) On appeal, we independently review the undisputed facts to determine whether defendant’s confession was properly admitted. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1125.)
Here, defendant did not speak in unambiguous terms. He equivocally said, “[M]aybe I should have an attorney,” and was told that if he wanted one he could have one. He thus reasonably should have understood that a simple request would have sufficed to implement the right to counsel of which he had earlier been advised. He also reasonably should have understood that if he wished to implement his right to remain silent, a simple statement to that effect would have been adequate. Yet rather than clearly declaring that he wished to say no more, he said only, “I want to go back to my cell” or something equivalent. In context, this statement was not even an unambiguous request that the detectives return him to jail custody – saying, “I want to go back to my cell” is not the same as saying “Take me back to my cell” – much less an unambiguous request that all questioning cease. Indeed, that defendant must give an interpretive gloss to the statement in order to characterize it as an invocation of the right to remain silent shows that it was not an adequate invocation. The law does not compel police officers “to make difficult judgment calls about whether the suspect in fact wants” to invoke his right to remain silent “even though he has not said so, with the threat of suppression if they guess wrong.” (Davis, supra, 512 U.S. at p. 461.)
We recognize that Davis involved the Fifth Amendment right under Miranda to have an attorney present during custodial questioning, not the Fifth Amendment right to remain silent. However, the California Supreme Court has consistently applied the principles of Davis in determining whether a suspect has invoked the right to remain silent. (See Stitely, supra, 35 Cal.4th at p. 535.) The Ninth Circuit has declined to decide whether the clarity required for invocation of the right to counsel applies equally to invocation of the right to remain silent (Arnold v. Runnels (9th Cir. 2005) 421 F.3d 859, 866, fn. 8), though several other federal circuit courts have applied the Davis analysis to the right to remain silent. (See Arnold, supra, at p. 870, fn. 1 (Callahan, J., dissenting, listing cases.) The United States Supreme Court has yet to address the issue.
In context, Detective Conant reasonably understood that just as defendant only might have been invoking his right to counsel, he also only might have been asking to be immediately returned to his cell, and thereby only might have been invoking his right to remain silent. (See Davis, supra, 512 U.S. at p. 462.) Whether defendant actually wished to say no more was for him to convey in such a manner that a reasonable police officer could have had no doubt. (Ibid.) Following defendant’s reference to wanting to return to his cell, Detective Conant waited approximately 15 seconds for defendant to clarify his meaning. When defendant failed to do so, the detective permissibly continued to question him. Although it might have been “good police practice” to ask clarifying questions, Detective Conant had no obligation to do so, and no obligation to cease asking questions designed to elicit incriminating statements. (Davis, supra, 512 U.S. at pp. 461-462.)
Other decisions involving arguably less ambiguous statements have, in context, been held not to invoke the suspect’s right to remain silent. (See People v. Ashmus (1991) 54 Cal.3d 932, 969-970 [suspect’s statements, “now I ain’t saying no more” and “don’t say no more” found to be an attempt to “alter the course of the questioning” but not an “attempt to stop it altogether”]; People v. Jennings (1988) 46 Cal.3d 963, 977-979 [suspect’s statements to the effect that officer was scaring him and that suspect would not speak held to be mere expression of suspect’s frustration at officer’s attempt to elicit details that defendant said he could not recall]; People v. Castille (2005) 129 Cal.App.4th 863, 885 [emotionally distraught suspect’s question “do I have to talk about this right now” merely demonstrated suspect’s discomfort in being questioned about seeing body of murder victim].) Here, without the clarification that defendant, not Detective Conant, had a duty to provide, defendant’s statement that he wanted to return to his cell might reasonably have been, as in the preceding cases, merely an attempt to alter the course of the interrogation, or an expression of frustration at Detective Conant’s persistence, or an emotional exclamation conveying a reluctance to speak because of the pain of accepting responsibility for Bradley’s killing. In short, whatever else might be said, defendant failed to make clear that his unadorned desire to return to his cell constituted an unambiguous request to terminate all inquiry into the Bradley murder.
Finally, the present case is distinguishable from the recent Ninth Circuit decision in Anderson v. Terhune (9th Cir. 2008) __ F.3d __ [2008 WL 399199] (Anderson). There, during the course of police questioning, the defendant declared, “I don’t even wanna talk about this no more,” and “Uh! I’m through with this. I’m through. I wanna be taken into custody.” When the interrogating officer asked a further question, the defendant said, “I plead the Fifth.” (Anderson, supra, __ F.3d at p. __.) Without expressly deciding whether Davis, supra, applies to invocation of the right to remain silent (see fn. 3, ante), the Ninth Circuit concluded that the defendant’s statement, “I plead the Fifth,” was an unequivocal invocation of his Fifth Amendment right to say no more. It also faulted the state court for concluding that, in context, the statement was ambiguous. According to the Ninth Circuit, defendant’s declarations that he did not want to talk and wanted to be taken to his cell made clear that the defendant was in fact attempting to terminate the interrogation and be returned to custody. (Id. at p. __.)
In the present case, by contrast, defendant’s mere statement that he wanted to return to his cell cannot be equated to “I plead the Fifth” as an express reference to the right to remain silent. Further, unlike Anderson, defendant made no statements in which he expressly refused to talk, and no other explanatory statements showing that his expressed wish to return to his cell must reasonably be interpreted only as an unequivocal request to terminate all questioning.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.
That defendant made the comment at all was elicited on cross-examination of Detective Conant. Defense counsel asked: “Now, after [defendant] said maybe I should speak to a lawyer, he also indicated that he wanted to return to his cell; is that correct?” (Italics added.) Detective Conant answered, “Yes.” We note that an “indication” that defendant wanted to return to his cell is not necessarily the same as an express statement that he wanted to return to his cell.
Under further questioning, Detective Conant testified that he told defendant that he “wanted to talk to him and . . . wanted him to tell . . . what happened and to tell . . . the truth.” Defense counsel then asked: “And this was after he said maybe I should speak to a lawyer and I want to go back to my cell; is that correct?” The detective responded: “I don’t think it was in that context, but he did say that.”
We note that because the latter question is compound, it is not clear whether the detective was actually testifying that defendant said “maybe I should speak to an attorney,” or “I want to go back to my cell,” or both. Also, the detective’s response suggests that the reference to a lawyer did not occur at the same time as the reference to returning to the cell.
Concerning the timing of the statement, the prosecutor asked on redirect examination: “After [defendant] said that maybe he should have a lawyer, directly after that statement, did you say that if he wanted a lawyer, he could have a lawyer?” Detective Conant responded, “Yes.” The prosecutor then asked, “So he did not say maybe I should have a lawyer and I want to go back to my cell, it wasn’t in that context, correct?” Detective Conant answered, “No, it was not.” He further testified that he waited about 15 seconds before asking any further questions, and that defendant never said he wanted a lawyer or did not want to talk. In other testimony, he stated that he was waiting “to see if [defendant was] going to have an attorney or . . . ask to leave. He didn’t. I told him that I wanted to talk to him about the murder, and we continued to talk.”
From this imprecise testimony, we conclude that the most sensible construction of the record is as follows: (1) defendant first said, “Maybe I should have an attorney”; (2) he was then told if he wanted a lawyer, he could have one; (3) at some point later he said, “I want to go back to my cell,” or words to that effect; (4) there was then a pause in the interview for approximately 15 seconds as Detective Conant waited to see if defendant was going to request an attorney or request to leave; and (5) when defendant made no such request, the questioning continued.