Opinion
A144209
01-09-2017
THE PEOPLE, Plaintiff and Respondent, v. GEOFFREY BAGGETT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC076735-A)
Defendant was sentenced to 40 years to life after he was convicted on 25 counts related to the molestation and sexual assault of his ex-wife's daughter. He now appeals, arguing his confession was procured in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), the evidence does not support his conviction on one rape count, and the trial court committed sentencing error. We find these contentions unavailing and affirm.
I. BACKGROUND
In July 2014, defendant was charged by amended information with: two counts of committing a lewd or lascivious act upon a child under 14 years of age (Pen. Code, § 288, subd. (a); counts 1 & 29); one count of rape upon a child under 14 years of age (§ 269, subd. (a)(1); count 2); one count of oral copulation upon a child under 14 years of age (§ 288a, subd. (c)(1); count 3); one count of forcible oral copulation upon a child under 14 years of age (§ 269, subd. (a)(4); count 4); one count of engaging in three or more acts of substantial sexual conduct with a child under 14 years of age over a period of not less than three months (§ 288.5, subd. (a); count 5); one count of oral copulation with a person under 16 years of age (§ 288a, subd. (b)(2); count 6); 10 counts of sexual penetration of a person under 16 years of age (§ 289, subd. (i); counts 7 through 16); 10 counts of committing a lewd or lascivious act upon a child of 14 or 15 years of age (§ 288, subd. (c)(1); counts 17 through 26); one count of furnishing marijuana to a minor 14 years of age or older (Health & Saf. Code, § 11361, subd. (b); count 27); and one count of dissuading a crime victim from seeking the arrest of a person in connection with the victimization (§ 136.1, subd. (b)(3); count 28). As to counts 1, 3, 4, and 5, the amended information alleged substantial sexual conduct. (§ 1203.066, subd. (a)(8).) Counts 1, 3, 4, 5, and 29 alleged multiple victims pursuant to section 667.61, subdivision (e)(4), and count 29 also alleged multiple victims pursuant to section 1203.066, subdivision (a)(7).
All statutory references are to the Penal Code unless otherwise indicated.
The jury acquitted defendant on count 6, and found him guilty on all remaining counts, except for count 3, which the parties assert became a lesser included offense of count 4. The jury found the multiple victim allegations associated with counts 1, 4, and 5 not true. The remaining special allegations were found true. The trial court subsequently granted the prosecutor's request to dismiss count 5. It also granted defendant's motion for a new trial as to count 29. Defendant was sentenced to 40 years to life.
Defendant was formerly married to Jane Doe's mother. He would sometimes babysit Doe. In or around 2000, when Doe was seven years old, she stayed over at defendant's home. Doe fell asleep in defendant's bed. She awoke in the night to find defendant taking off her clothes. Defendant penetrated Doe's vagina with his penis. After about 10 minutes, defendant withdrew, pushed Doe's head down, and made her perform oral sex. At trial, Doe described various other occasions on which defendant molested her over the next several years. As those incidents are not relevant to this appeal, we shall not recount them here.
Doe reported defendant to police when she was around 19 years old. On June 5, 2012, Doe made two pretext calls to defendant, both of which were monitored and recorded by the police.
Defendant was arrested on July 18, 2012, and taken to the Foster City Police Station. During the ensuing interrogation, defendant was read his Miranda rights. Defendant initially denied touching Doe in a sexual manner. But after the police played a tape of the pretext calls for defendant, he admitted to molesting Doe. Defendant told the police the molestation started when she was 15 years old, but said there was never any "sexual sex." Prior to trial, defendant filed a motion in limine to exclude his confession, arguing the interrogation violated Miranda. The trial court denied the motion and allowed the confession to be introduced.
II. DISCUSSION
A. Defendant's Confession
Defendant asserts the trial court erred in denying his motion in limine and refusing to exclude evidence of his confession to police. First, defendant argues the police improperly delayed giving him a Miranda warning in order to " 'soften him up' " and persuade him to waive his rights. Second, defendant contends the police continued to question him after he invoked his right to counsel. We find both contentions unavailing.
Defendant also argues he "was not asked if he actually waived his rights." He does not follow up on this argument in any meaningful way. In any event, defendant did waive his rights. "[A] valid waiver of Miranda rights may be express or implied. [Citations.] A suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights." (People v. Cruz (2008) 44 Cal.4th 636, 667.) That is precisely what happened here. --------
In Miranda, supra, 384 U.S.436, the United States Supreme Court enunciated certain safeguards intended to protect the exercise of the Fifth Amendment privilege against self-incrimination. The court held that police officers conducting custodial interrogations must warn suspects regarding various constitutional rights, including the right to remain silent and the right to counsel. (Id. at p. 444.) Under Miranda, a police officer must cease interrogating a suspect who invokes these rights. (Id. at pp. 473-474.) "If [the suspect] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking[,] there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him." (Id. at pp. 444-445.)
In People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt), our Supreme Court addressed circumstances under which a defendant's waiver of Miranda rights could not be considered knowing or voluntary. In that case, the defendant was initially hostile to one of the interrogating officers. (Honeycutt, at p. 158.) That officer left the room, and another officer, who had known the defendant for about 10 years, engaged the defendant in a half-hour unrecorded discussion. The officer said they discussed unrelated past events and former acquaintances. The officer also denigrated the victim, but stayed away from a discussion of the offense. During the course of the conversation, the detective could see the defendant was " 'softening up.' " By the end of the discussion, the defendant indicated he would talk about the homicide. (Ibid.) The defendant was advised of his Miranda rights three hours after his arrest. (Honeycutt, at p. 159.) He waived his rights and confessed to beating and stabbing the victim. (Ibid.)
Our Supreme Court held the confession should have been suppressed. (Honeycutt, supra, 20 Cal.3d at p. 161.) The court acknowledged "routine booking questions and responses as to a defendant's identity and other statistical information do not render involuntary a later waiver of constitutional rights." (Id. at p. 159.) Likewise, "when a person who is not yet a suspect talks to the police without being admonished, such a conversation does not make involuntary his later waiver of rights after a proper Miranda warning." (Ibid.) But in Honeycutt, the "defendant was at all times the primary suspect and the conversation-warning-interrogation sequence was intended to elicit a confession from the inception of the conversation." (Ibid.) The court concluded: "When the waiver results from a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation, the subsequent decision to waive without a Miranda warning must be deemed to be involuntary for the same reason that an incriminating statement made under police interrogation without a Miranda warning is deemed to be involuntary." (Id. at pp. 160-161.)
Defendant argues that, just as in Honeycutt, the officer in this case softened him up before advising him of his Miranda rights. We cannot agree. Unlike in Honeycutt, there is no indication the interrogating officer was a longtime acquaintance of defendant. Nor did the officer denigrate the victim. Defendant did not show an initial hostility to the officer or demonstrate an unwillingness to speak. Further, the contact between the officer and defendant before the Miranda warning was relatively brief, in contrast with the half-hour softening up session in Honeycutt. The transcript of the interrogation is 77 pages, and the Miranda warning appears on page 10. Much of the discussion preceding the Miranda warning revolved around routine booking questions. The officer asked defendant if he had any weapons, where he was born, where he worked, whether he was taking any medications, and his age, weight, eye color, hair color, address, home and work phone number, and marital status. During this time, defendant remarked he was scared, saying he was "shaking like a leaf" and "freaked out." There were also brief asides concerning defendant's interest in guns and motorcycles, and his use of marijuana. At one point, the officer also asked defendant, "[W]hy do you think you're here?" Contrary to defendant's assertions, we cannot find these brief asides, which take up only a handful of lines in the interrogation transcript, are sufficient to support a finding the police "softened him up."
Next, defendant argues his confession should have been suppressed because he invoked his right to counsel in the middle of the interrogation. We disagree. "[I]f a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation." (Davis v. United States (1994) 512 U.S. 452, 458 (Davis).) In the event a defendant "has a change of heart" after waiving the right to counsel, "he or she must invoke the right to counsel unambiguously before the authorities are required to cease the questioning. [Citation.] The suspect must articulate sufficiently clearly his or her desire to have counsel present so that a reasonable officer in the circumstances would understand the statement to be a request for an attorney. [Citation.] '[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.' " (People v. Williams (2010) 49 Cal.4th 405, 432, italics omitted.)
In this case, defendant did not unambiguously invoke his right to counsel. During the interrogation, defendant denied having sex with Doe. The interrogating officer then asked defendant to explain why Doe would report the matter to police and why she was so upset if the abuse never occurred. Defendant responded, in relevant part: "I don't know. I mean she's always been a little . . . troubled. . . . But I don't know why she would be hysterical coming in here talking to you guys. So . . . now this is a very serious matter. Should I have my attorney present . . . ?" The officer asked if defendant had an attorney, to which defendant responded: "No, I don't. But should I get one because we're pretty deep into questioning and so I just, you know . . . ." The officer then stated: "Well . . . that's all up to you. Uh, because what you're telling me is that nothing happened. . . . [W]hat I'm trying to figure out is . . . what's going on. Uh, so if there's something you're not telling me, you know, I'm trying to see if there's some kind of misunderstanding . . . ." The questioning then continued.
In this case, defendant did not clearly request representation. He merely asked if he should have an attorney present. Defendant appears to have been deliberating out loud. Either that or he was asking the officer for legal advice. Either way, we cannot construe his question, "Should I have my attorney present . . . ?" as an unambiguous invocation of his right to counsel. Courts have found similar statements were ambiguous and thus insufficient to justify suppression in this context. (See Davis, supra, 512 U.S. at p. 462 [" 'Maybe I should talk to a lawyer' "]; People v. Bacon (2010) 50 Cal.4th 1082, 1104 [" 'I think it'd probably be a good idea for me to get an attorney' "]; People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 216, 219 [" 'If you can bring me a lawyer, that way . . . I can tell you everything that I know and everything that I need to tell you.' "]; People v. Shamblin (2015) 236 Cal.App.4th 1, 20 [" 'I think I probably should change my mind about the lawyer now. . . . I think I need some advice here.' "].) B. Substantial Evidence Challenge
Next, defendant contends his conviction for rape must be reversed for lack of sufficient evidence. He does not dispute the evidence supports a finding he had sex with Doe when she was seven years old. However, he argues there is no evidence the intercourse was accomplished by means of duress. The contention is unavailing.
We review defendant's claim under the familiar substantial evidence standard. Under this test, "we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
Defendant was convicted of rape upon a child under 14 years of age. Rape is defined as sexual intercourse "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 261, subd. (a)(2).) In this context, "duress" means " 'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' [Citations.] 'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.' [Citation.] Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. [Citations.] [¶] The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14 (Cochran).)
In Cochran, the court held the evidence supported the defendant's convictions for aggravated sexual assault of a child and forcible lewd conduct upon child under 14 years of age. (Cochran, supra, 103 Cal.App.4th at p. 11.) The victim testified she was not afraid of the defendant, and he did not beat or punish her, and never grabbed or forced her. (Id. at p. 15.) Nevertheless, the court found there was substantial evidence to support a finding of duress. At the time of the offense, the victim was nine years old and only four feet three inches tall, while the defendant, her father, outweighed her by about 100 pounds. (Ibid.) "Th[e] record paint[ed] a picture of a small, vulnerable and isolated child who engaged in sex acts only in response to her father's parental and physical authority. Her compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent. Under these circumstances, given the age and size of the victim, her relationship to the defendant, and the implicit threat that she would break up the family if she did not comply, the evidence amply support[ed] a finding of duress." (Id. at pp. 15-16, fn. omitted.)
Likewise, in the instant action, duress could reasonably be inferred from the situation. At the relevant time, Doe was only seven years old, while defendant was 43. After Doe fell asleep in defendant's bed, defendant took off her clothes and put his penis in her vagina. This lasted for about 10 minutes. Doe testified she "wasn't quite sure what [defendant] was doing" and she felt "almost paralyzed." She "just kind of laid like a plank." Doe also testified she did not tell her mother about the incident because she was "scared." Given Doe's young age and small stature, as well as her reaction to defendant's actions, the jury could have reasonably found there was an implied threat of force. Defendant argues mere physical superiority is never enough to convert acts of molestation into acts of forcible molestation. Even if this is true, there was something more here. Doe's testimony indicates she had no desire to engage in sexual activity with defendant and because of her age, size, and relationship with defendant, she could not resist. This is more than ample evidence to support defendant's conviction. C. Sentencing
Pursuant to section 667.6, the trial court imposed consecutive terms for count 2 (§ 269, subd. (a)(1)) and count 4 (§ 269, subd. (a)(4)). Defendant argues this was error because the relevant provisions of section 667.6 were not in effect at the time the crimes were committed, and the trial court failed to make an express finding the crimes were committed on separate occasions. Alternatively, defendant argues that, to the extent his counsel failed to object to consecutive sentencing, he has a claim for ineffective assistance of counsel. We find all of these arguments unpersuasive.
Section 667.6, subdivision (d) provides that a full, separate, and consecutive term shall be imposed for each violation for certain specified offenses "if the crimes involve separate victims or involve the same victim on separate occasions." Defendant argues that, at the time counts 2 and 4 were committed, sometime between 2000 and 2002, consecutive sentences were not required for section 269 convictions. As defendant concedes, this same argument was rejected in People v. Jimenez (2000) 80 Cal.App.4th 286 (Jimenez), where the court held the defendant's argument "fail[ed] to account for the fact that characterization of section 269 as such would work to the advantage of pedophiles by exempting them from the additional penalties that would ordinarily result when they commit multiple offenses or prey upon more than one victim." (Id. at pp. 291-292; see People v. Figueroa (2008) 162 Cal.App.4th 95, 100 [adopting the "reasoned analysis" of Jimenez].) We agree with the reasoning of Jimenez, and therefore find consecutive sentencing was appropriate.
Next, defendant argues that, in order to impose a consecutive sentence, the trial court was required to make an express finding counts 2 and 4 were committed on the same victim on separate occasions. Defendant contends the trial court erred by failing to make such an express finding. The argument is unpersuasive. The trial court heard extensive argument on this issue below. In his sentencing statement, defendant argued counts 2 and 4 "occurred as one continuous act and should be punished concurrently." The prosecution countered consecutive sentencing was appropriate because, after defendant stopped his vaginal penetration of Doe (the act underlying count 2), he had time to reflect on his behavior and decided to continue the assault by forcing Doe to perform oral sex (the act underlying count 4). The trial court heard further argument on the issue at the sentencing hearing, immediately after which it imposed consecutive sentences for counts 2 and 4. Based on this record, it is clear the court considered the issue and made an implicit finding that counts 2 and 4 occurred on separate occasions.
Even if an implicit finding was not enough, defendant waived the issue by failing to object to the court's failure to make an explicit one. (People v. Scott (1994) 9 Cal.4th 331, 353 ["Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention."].) Defendant contends that if a formal objection was required, it was ineffective assistance of counsel to fail to object. We cannot agree, as there is not a reasonable probability the outcome of the proceedings would have been different had an objection been made. (See Strickland v. Washington (1984) 466 U.S. 668, 694.) The trial court clearly considered and rejected defendant's arguments concerning consecutive sentencing. And during oral argument, the trial court indicated it was ready to make an express finding defendant had time to reflect between committing count 2 and count 4, explaining Doe testified the rape was "very slow" and "[t]hat, to me, indicates that there was plenty of time to know what was going on." Had defense counsel requested an express finding on this issue, there is no doubt the trial court would have provided one adverse to defendant. In the absence of any prejudice, we cannot conclude defense counsel's failure to request an express finding amounted to ineffective assistance.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.