Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F00193
BUTZ, J.A jury convicted defendant Donald Odis Wright of two counts of second degree robbery. (Pen. Code, § 211.) In connection with one count but not the other, the jury sustained a personal gun use allegation. (§ 12022.53, subd. (b).)
Undesignated statutory references are to the Penal Code.
Sentenced to 14 years in state prison, defendant appeals. His sole contention on appeal is that the trial court prejudicially erred in admitting statements he made during an interrogation after he invoked his right to counsel. We disagree and shall affirm the judgment.
FACTUAL BACKGROUND
Since we find no error and do not reach prejudice, the underlying facts are not relevant to the issue raised on appeal. Suffice it to say that on December 23, 2008, defendant, armed with a firearm, and an accomplice (who appeared to be armed as well) entered Nick’s Market, a family-owned business on V Street in Sacramento, and robbed two employees, a husband and wife, of the money in the cash register as well as some packages of cigarettes. Defendant left his palm prints on the counter. The victims did not recognize defendant as a previous customer.
DISCUSSION
Defendant claims his convictions must be reversed because the trial court erroneously admitted statements he made during an interrogation after he invoked his right to counsel. We conclude the trial court did not err.
Background
On January 8, 2009, defendant was in jail on an unrelated matter. About 11:00 a.m. that day, Detective Jason Start removed defendant from custody and transported him to the police station for an interview concerning the current offenses. At 11:35 a.m., at the beginning of the video-recorded interview at the station, Detective Start advised defendant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) by reading from a department issued card. Defendant responded “yes” when asked whether he understood that he had the right to remain silent, that anything he said could be used against him in court, and that he had the right to the presence of an attorney before and during any questioning. When told, “If you cannot afford an attorney one will be appointed free of charge before any questioning if you want” and asked if he understood, defendant’s response was inaudible. Start testified at an evidentiary hearing that, although he did not recall defendant’s exact response, the detective believed that defendant said “yes” or gave some kind of affirmative, verbal response.
The detective proceeded with the interview, obtaining defendant’s address and phone number, and asking many questions about his employment, education, family and girlfriend. About 11:58 a.m., when asked how he spent Christmas and specifically December 23rd, defendant stated that on December 23rd he spent time with his cousins at his aunt’s house. The following discourse ensued:
“[DETECTIVE]: Okay. Well, what are your cousins’ names?
“[DEFENDANT]: Titus and Tyson.
“[DETECTIVE]: I’m sorry?
“[DEFENDANT]: Titus and Tyson. Um, I got a question for you.
“[DETECTIVE]: Sure.
“[DEFENDANT]: Not (unintelligible) rude or anything, but like you said this wasn’t—because I’m in any type of trouble or anything?
“[DETECTIVE]: No, no. I’ll get to that in just a minute. Um
“[DEFENDANT]: Like because I’m like—I’m not trying to sound rude or anything, but I don’t feel comfortable, you know, telling you all my information to all my family and stuff and then like me not knowing what’s going on.
“[DETECTIVE]: Well
“[DEFENDANT]: And me not having no lawyer right here, you know?
“[DETECTIVE]: Well, we already went and told—or we went—we went and talked to your folks last night and, uh, I understand you have three sisters or three adult sisters that are all grown up and on their own and all that.
“[DEFENDANT]: Uh-huh.
“[DETECTIVE]: Your folks seemed really nice from what my partners told me. Um, do you ever go downtown at all? Do you ever go downtown, any mom and pop stops?
“[DEFENDANT]: No.”
Detective Start asked defendant questions about when he was last downtown (defendant claimed he had not been downtown since August) and then confronted him with the claim that someone had seen him downtown (defendant said it was not him). Start asked for contact information for defendant’s cousins. The detective also asked when defendant arrived at his aunt’s house on December 23rd, how he got there and how he got home.
About 12:08 p.m., when the detective asked for more information about defendant’s parents, specifically where his father’s ministry was located, defendant responded, “It’s like far out there, yeah. Like not to sound rude though, but like can I have somebody present when I’m answering questions or something? Like I don’t want to talk anymore, because I don’t even know what’s going on. I’m just giving you a lot of information.
Detective Start then told defendant why he was being questioned. Defendant denied having ever been at Nick’s Liquor downtown and could not explain why his prints would be in the store. About 12:10 p.m., when the detective started showing defendant some photographs, defendant stated, “But I will like to, you know, to have my lawyer here now that you’ve told me I got prints and stuff (unintelligible).” The detective asked, “Okay. So you’re saying you want to have a lawyer?” Defendant responded, “Or I’d just rather stop questioning.” Detective Start stopped the interrogation.
Prior to trial, the prosecutor filed a motion to introduce defendant’s videotaped statements during the interrogation up to the point that defendant invoked his right to counsel. The prosecutor claimed that defendant initially waived his rights, started answering questions and did not invoke his right to counsel until he stated, “But I will like to, you know, to have my lawyer here now that you’ve told me I got prints and stuff (unintelligible), ” at which time the detective asked a clarifying question and defendant stated, “Or I’d just rather stop questioning.” The detective then stopped the interrogation.
Defense counsel asserted that defendant did not waive his rights in the first instance or, if he did, he invoked his right to counsel much earlier in the interview when he stated, “Not (unintelligible) rude or anything, but like you said this wasn’t—because I’m in any type of trouble or anything? [¶]... [¶] Like because I’m like—I’m not trying to sound rude or anything, but I don’t feel comfortable, you know, telling you all my information to all my family and stuff and then like me not knowing what’s going on [¶]... [¶] [a]nd me not having no lawyer right here, you know?”
The trial court determined that defendant initially waived his rights but asserted his right to remain silent during the interview, which occurred between the two points argued by the parties; that is, when defendant stated, “Like not to sound rude though, but like can I have somebody present when I’m answering questions or something? Like I don’t want to talk anymore, because I don’t even know what’s going on. I’m just giving you a lot of information.”
At trial, a redacted version of the video recording was played and admitted into evidence, and the transcript provided to the jury reflected the court’s ruling.
Analysis
“Under Miranda and its progeny, ‘a suspect [may] not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel.’” (People v. Bacon (2010) 50 Cal.4th 1082, 1104-1105 (Bacon).) A waiver may be express or implied. (North Carolina v. Butler (1979) 441 U.S. 369, 373 [60 L.Ed.2d 286, 292]; People v. Whitson (1998) 17 Cal.4th 229, 247-248, 250.)
During the interrogation, if a suspect invokes his right to remain silent or the right to counsel, questioning must end. (Edwards v. Arizona (1981) 451 U.S. 477, 484-485 [68 L.Ed.2d 378, 386]; Bacon, supra, 50 Cal.4th at p. 1105.) An invocation of the right to remain silent or to counsel must be unambiguous and unequivocal. (Berghuis v. Thompkins (2010) 560 U.S. ___ [176 L.Ed.2d 1098, 1110-1111] (Berghuis); Davis v. United States (1994) 512 U.S. 452, 459 [129 L.Ed.2d 362, 371] (Davis); Bacon, supra, 50 Cal.4th at p. 1107, fn. 5; see People v. Crittenden (1994) (Crittenden) [reviewing court applies federal standards to a violation of Miranda claim].)
“If an accused makes a statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no statement, the police are not required to end the interrogation [citation], or ask questions to clarify whether the accused wants to invoke his or her Miranda rights [citation].” (Berghuis, supra, 560 U.S. at p. ___ [176 L.Ed.2d at p. 1110]; Davis, supra, 512 U.S. at p. 459, 461-462 [129 L.Ed.2d at pp. 371-373].) In determining whether a suspect has invoked his right to counsel, an objective test applies. A suspect “must articulate his desire to have counsel present sufficiently clearly so that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” (Davis, supra, 512 U.S. at p. 459 [129 L.Ed.2d at p. 371].)
In reviewing a trial court’s ruling on a violation of Miranda claim, we accept the trial court’s resolution of disputed facts that are supported by substantial evidence and determine independently based on those facts whether the suspect’s statements were obtained in violation of Miranda. (Bacon, supra, 50 Cal.4th at p. 1105.)
Defendant does not renew his claim that he did not waive his rights in the first instance. Defendant only renews his claim that he invoked his right to counsel much earlier in the interview when he stated, “Not (unintelligible) rude or anything, but like you said this wasn’t—because I’m in any type of trouble or anything? [¶]... [¶] Like because I’m like—I’m not trying to sound rude or anything, but I don’t feel comfortable, you know, telling you all my information to all my family and stuff and then like me not knowing what’s going on [¶]... [¶] [a]nd me not having no lawyer right here, you know?” We conclude that this statement did not constitute a clear request for an attorney.
Defendant’s statement that he did not “feel comfortable” providing information about his “family and stuff” without “knowing what’s going on” and without an attorney present was not an unequivocal or unambiguous request for counsel. Defendant only expressed discomfort at providing information, not that he did not want to continue without an attorney present. We note that he continued to answer questions after expressing his discomfort. Defendant claims that his “timid politeness show[ed] why [he] did not confrontationally demand an attorney.” We conclude that a reasonable officer under the circumstances would not have understood defendant’s statement to be a request for counsel. His statement suggested he might want an attorney, but it was not clear. Detective Start was not required to stop questioning or clarify whether defendant wanted an attorney. (See Davis, supra, 512 U.S. at pp. 454, 456, 461-462 [129 L.Ed.2d at pp. 368, 369, 372-373] [“petitioner’s remark to [Naval Investigative Service] agents—‘Maybe I should talk to a lawyer’” was ambiguous and not a request for counsel]; see also Crittenden, supra, 9 Cal.4th at pp. 124, 130-131 [suspect’s question, “‘Did you say I could have a lawyer?’” was not a request for counsel].)
In view of the entire interview, we conclude that substantial evidence supports the trial court’s determination that defendant’s statement that he did not feel comfortable providing information without an attorney did not constitute an invocation of his right to counsel. Our conclusion renders it unnecessary for us to analyze whether the evidence obtained in the alleged violation of Miranda was prejudicial.
DISPOSITION
Defendant was sentenced pursuant to section 2933.1. The recent amendments to sections 2933 and 4019 do not operate to modify defendant’s entitlement to additional presentence custody credit, as he was committed for robbery, a violent felony. (§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
We concur: RAYE, P. J. MURRAY, J.