Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR081044S
MARCHIANO, P.J.
A jury convicted defendant Chad Andrew Larsen of violating Penal Code sections 288a, subdivision (b)(1) and 261.5, subdivision (c), involving a 16-year-old girl. On appeal, he contends the trial court erred in granting a motion by the prosecution to admit statements he made to a Humboldt County deputy sheriff, arguing they were made during a custodial interrogation without the Miranda admonition. He also raises two claims of instructional error. As discussed below, we conclude there was no prejudicial error and affirm.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Background
On January 16, 2008, 16-year-old Jane Doe, a resident of Eureka, went to the Humboldt County Sheriff’s Department with complaints about a sexual assault. Deputy Sheriff Cheryl Franco began investigating the matter by interviewing the victim. Jane Doe reported she and defendant had been friends for about two years. On the evening of January 12, she telephoned defendant and asked him to give her a ride to Arcata to visit a friend. He did so, but her friend was not at home. Defendant then offered Jane Doe some pills containing oxycodone. Defendant then said “in a joking way” that if Jane Doe told anyone about “what happens tonight I’ll kill you and your whole family.” Jane Doe thought this was a “strange thing to say.”
Jane Doe told defendant she wanted to do some cocaine. When defendant replied, “What do you have that I want?” Jane Doe replied, “I’m not going to have sex with you!” The two drove to defendant’s home in Fortuna, where he retrieved more oxycodone. At the Bayside Grange, he ground up a tablet of oxycodone and told Jane Doe to snort it. He then told her to orally copulate him, pushing her head down. Afterwards, they went to the parking lot of Murphy’s Market, where he traded oxycodone for a gram of cocaine, and gave three lines to Jane Doe to snort. As defendant “never did any drugs, ” the rest of the cocaine was left in the bag, apparently for Jane Doe, who later came to feel defendant had given her all the drugs “so he could take advantage of her.”
Defendant then drove to the Samoa Dunes area. Jane Doe reported she was “very intoxicated” by this time, and would “do anything when she’s really high.” Defendant told Jane Doe to take off her clothes and assume one, then another position, and had sexual intercourse with her.
Jane Doe explained the delay between the alleged rape on January 12 and the time she reported it to the sheriff’s department on January 16 was in part because she “felt like [defendant] would hurt her or her family.”
The district attorney filed a two-count information on March 6, 2008, charging defendant with felony violations of Penal Code section 261.5, subdivision (c) (unlawful sexual intercourse by a person with a minor more than three years younger), and section 288a, subdivision (b)(1) (oral copulation by a person with a person under the age of 18 years).
Further statutory references are to the Penal Code unless otherwise indicated.
At the conclusion of defendant’s trial, on April 9, 2009, the jury found defendant guilty on both counts. The trial court, on September 22, 2009, conducted its sentencing hearing, after which it denied probation and sentenced defendant to a prison term. The consecutive terms on both counts totaled three years eight months, with a total credit of 918 days (two years and 188 days).
This appeal followed. (§ 1237, subd. (a).)
Discussion
A. Custodial Interrogation
Later on January 16, 2008, following her interview with Jane Doe, Deputy Franco drove with Deputy Stockton to defendant’s residence. Defendant was home, and Franco asked him to come outside and sit on the front steps. Franco first asked defendant if he knew why they were there. He said he thought it was because he was in violation of his probation for a prior offense, because he was living at a different address. Franco told him she was there to speak with him about Jane Doe. Defendant said he had last seen Jane Doe a “week or two back.” Franco told defendant he had been with Jane Doe on January 12, and asked what they had done. Defendant told Franco he had taken her to Arcata, where Jane Doe went into an apartment complex for about 10 to 20 minutes. He said Jane then “wanted to come with him while he ran errands, ” and they went to his residence in Fortuna, and then to the Bayside Grange and the beach. He said Jane Doe wanted him to get her some cocaine. He tried to dissuade her from using drugs “for at least two hours, ” but she insisted and “even offered him sex for the drugs.” He told her he was on probation for having sex with a minor, and asked her to “hook him up with an 18 year old friend.” Defendant denied having sex with Jane Doe or having her orally copulate him. He also denied giving her oxycodone, saying she had taken three pills from his glove box before he could stop her, as they were driving to Arcata. When asked how she had obtained cocaine, he said she must have gotten it at the apartment complex in Arcata. At that point, Franco arrested defendant.
Defendant was on probation for a conviction in 2006 under section 261.5, subdivision (d) (unlawful sexual intercourse by person 21 years or older with minor under 16 years of age). On the prosecutor’s motion, this prior conviction was admitted at trial.
On December 29, 2008, the prosecutor filed a motion in limine for the admission of the statements defendant made to Deputy Franco when she interviewed him at his home on January 16. He argued they were admissible because they were not obtained during a custodial interrogation, so it had not been necessary to give defendant a Miranda admonition. The prosecutor sought admission of the statements because they were false and constituted circumstantial evidence of defendant’s consciousness of guilt. Defendant opposed the motion, arguing that Franco’s interview was a custodial interrogation in violation of Miranda.
The foregoing summary of Franco’s interviews with Jane Doe and defendant are drawn from Franco’s police report, on which the prosecutor initially based its motion for admission of defendant’s statements.
During jury selection, the trial court held a separate evidentiary hearing on the motion in limine. (See Evid. Code, § 402.) At the conclusion of the Evidence Code section 402 hearing (section 402 hearing), on March 20, 2009, the court ruled that defendant’s statements to Deputy Franco were admissible. The statements were accordingly admitted during trial, through Franco’s testimony.
Defendant contends the trial court erred in admitting the statements he made to Deputy Franco because the circumstances of the interview constituted a custodial interrogation and the statements were obtained in violation of Miranda’s requirements.
“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda, supra, 384 U.S. at p. 444, fn. omitted.)
Whether a defendant has been subjected to a custodial interrogation “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” (Stansbury v. California (1994) 511 U.S. 318, 323.) “ ‘[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.’ ” (Id. at p. 324.) In other words, examining the totality of the circumstances, whether a reasonable man would have interpreted the restraints used by the police as tantamount to a formal arrest. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster).)
While no single factor is controlling, reviewing courts have included the following specific factors to be included in considering the totality of objective circumstances: (1) whether there was a formal arrest; (2) in the absence of a formal arrest, the length of detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of questioning. (Pilster, supra, 138 Cal.App.4th at p. 1403, citing People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) Additional considerations include whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the person’s freedom of movement during the interview, and whether police officers dominated or controlled the interview or were aggressive, accusatory, or confrontational, whether they pressured the person, and whether he or she was arrested at the conclusion of the interview. (Pilster, supra, 138 Cal.App.4th at pp. 1403−1404, citing People v. Aquilera (1996) 51 Cal.App.4th 1151, 1162.) Still others include the language used by police to summon the person and the extent to which police confronted the person with evidence of guilt. (See United States v. RedLightning (9th Cir. Oct. 25, 2010, No. 09-30122) [2010 U.S. App. Lexis 21957].)
Generally, we review the admission of evidence following a section 402 hearing for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197.) When, however, the trial court admits statements purportedly in violation of Miranda, we apply a deferential substantial evidence standard to the court’s factual findings, and determine independently whether the interrogation was custodial. (Pilster, supra, 138 Cal.App.4th at p. 1403; see also People v. Lessie (2010) 47 Cal.4th 1152, 1169.)
At the section 402 hearing, Deputy Franco testified she went to defendant’s residence on January 16, 2008, to get “his side of the story” following her interview with Jane Doe. She went to the door together with Deputy Stockton and knocked. The deputies were in uniform, with holstered handguns secured by snapped straps.
A man answered the door and said he would get defendant. No one appeared for several minutes. Knowing defendant was on felony probation, Franco and Stockton entered, calling “Sheriff’s Department. Hello. Hello.” Seeing no one, they crossed a hall into the kitchen, where they encountered defendant. There were “lots of dogs... jumping all over.” Franco asked defendant “if he wouldn’t mind stepping outside to the front porch, ” “because of the dogs.” When questioned regarding what she would have done at that point if defendant had indicated he did not want to talk, Franco replied she “[p]robably” would have gone outside and discussed what to do next with Stockton.
Deputy Franco testified more specifically that she had confirmed prior to the interview that defendant was currently on felony probation that called for him to submit to warrantless searches by probation officers or law enforcement officers.
Defendant stepped out onto the porch, and Deputy Franco “had him take a seat... because that [was her] standard protocol for officer safety.” Franco did not recall the exact words of her request, but stated she normally would have said, “Do you mind taking a seat for me?” Franco stood in front of defendant, a little to one side, while Stockton stood behind Franco and to the right. Franco said it was “possible” she placed her hand on her weapon, since she sometimes “lean[ed] her elbow or [her] hand on there.”
Defendant sat on the front porch step and Franco began by asking him if he knew why the deputies were there. The deputies did not tell defendant he was in custody, nor did they indicate whether he was or was not free to leave.
When defendant said he thought the deputies were there because he was not living at the address he had given his probation officer, Deputy Franco explained they were there “to speak with him concerning his contact with Jane Doe.” She asked about the last time defendant had seen Jane, and, when he replied a week or two before, she told him she “knew he had been with Jane Doe” on January 12. After Franco obtained his statement, she decided she had probable cause to arrest defendant and did so.
On cross-examination, Deputy Franco stated she had identified defendant as a suspect or “involved party” before the interview. She knew Jane Doe was under the age of 18 years, and if the interview with defendant indicated he had had sexual relations with Jane Doe, she was going to arrest him. On the other hand, Franco denied any intention to arrest defendant regardless of his statement, noting that one purpose of the interview was to ascertain whether he had an alibi for the evening of January 12, 2008. She decided to arrest defendant based on Jane Doe’s statement and defendant’s admission that he had been with her that night.
Defendant also testified at the section 402 hearing, presenting a version of the interview that conflicted with that of Deputy Franco. Based on the court’s ruling that defendant’s statements were admissible, we may infer that the trial court resolved the disputed facts in favor of Franco’s testimony. (See People v. Manning (1973) 33 Cal.App.3d 586, 601−602.) This inference is consistent with the court’s comments that defendant’s testimony contained “a number of inconsistencies” regarding the officers’ comments, and its express conclusion that it found defendant’s testimony not credible with respect to his claim that Franco continued questioning him after he said he wanted to leave. Thus, we determine independently whether a custodial interrogation took place in light of Franco’s testimony. (Pilster, supra, 138 Cal.App.4th at p. 1403.)
Examining the totality of the objective circumstances, we note that Deputies Franco and Stockton interviewed defendant at his home—not in a custodial setting. They did not formally arrest defendant prior to the interview. While they were in uniform, their handguns remained holstered and secured by straps. They entered the home only after no one returned to the door for several minutes. Their entry was not threatening, but was accomplished with a simple “Hello” and identification as sheriff’s deputies. When they encountered defendant in the kitchen, Franco’s request that they go out onto the porch was in part motivated by the presence of a number of dogs. If she “had” defendant sit down as a matter of officer safety, she did so with a nonthreatening request. She stood in front of the defendant as he sat on the porch step, with Deputy Stockton behind her. Thus, while the ratio of two officers was greater than defendant, they did not use that ratio in a threatening manner, either by flanking defendant or by blocking his egress back into his home. While they did not explicitly reassure defendant that he could stop the interview or leave at any time, neither did they explicitly say that he was not free to leave.
The interview itself appears to have been relatively brief—a matter of minutes. It did not include any overt act by the deputies to restrict defendant’s freedom of movement. Although Franco told defendant she knew he had been with Jane Doe on January 12, 2008, this was not in itself an accusation that defendant had committed a crime. Moreover, it does not appear Franco otherwise confronted defendant with evidence against him, nor behaved in an aggressive, accusatory, or unnecessarily confrontational manner. Without exerting undue pressure, Franco simply directed defendant to respond to the matters Jane Doe had reported earlier that day.
We conclude, under all the objective circumstances, there was no custodial interrogation requiring the procedural safeguards of Miranda. In our view, a reasonable man would not have interpreted the restraints used by the deputies as “tantamount to a formal arrest.” (Pilster, supra, 138 Cal.App.4th at p. 1403.) The trial court did not err in admitting the statements defendant made during the interview.
B. Defense Instruction Regarding Reasonable, Actual Belief of Victim’s Age
The trial court on its own motion proposed giving CALCRIM No. 1071, which was specific to the charge of unlawful intercourse under section 261.5, subdivision (c). This instruction defines the elements of the crime, but also includes a bracketed, or optional, defense to be given if the defense is supported by sufficient evidence. (Bench Note to CALCRIM No. 1071 (Summer 2010 ed.) pp. 780−781.) This defense provides: “The defendant is not guilty of this crime if (he/she) reasonably and actually believed that the other person was age 18 or older. The People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.” (CALCRIM No. 1071 (Summer 2010 ed.) p. 780, italics added.) Over defendant’s objection, the court declined to include the bracketed defense in its instruction, stating that “the evidence presented in this case did not include any evidence that the defendant... reasonably or actually believed Jane Doe was 18 years old or older.”
The court also proposed giving CALCRIM No. 1082, requested by the prosecutor, which defines the elements of a charge of oral copulation under section 288a, subdivision (b)(1). This instruction also includes optional defense language identical to that set out in CALCRIM No. 1071, which is to be given under the same circumstances—when the defense is supported by sufficient evidence. (Bench Note to CALCRIM No. 1082 (Summer 2010 ed.) p. 791.) The court again declined, over defendant’s objection, to include the bracketed defense for the same reason.
Defendant claims the trial court erred in refusing to include the defense language when it gave CALCRIM Nos. 1071 and 1082. He urges there was sufficient evidence to require giving that language because: (1) Jane Doe admitted on cross-examination that when she was with defendant on January 12, 2008, she had and smoked her own cigarettes and was wearing makeup; (2) during his interview with Deputy Franco defendant initially guessed that the deputies had come because of a probation violation rather than because of sexual offenses against Jane Doe; (3) Jane Doe admitted on cross-examination that she has a boyfriend, who was at her home when she returned from her encounter with defendant on January 12, and who confronted her about her drug use; and (4) Jane Doe stated during direct examination that defendant, during the act of sexual intercourse, told her to tell him “that it was bigger than my boyfriend’s.”
We review this claim of error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) The trial court was required to include the defense language only if there was substantial evidence to support the defense. (Ibid.)
Jane Doe testified she was 16 years of age at the time of her encounter with defendant on January 12, 2008. She also said she had had a conversation about her age with defendant when she was 14 years of age. Deputy Franco further testified defendant denied having sex with Jane Doe because “he would not have sex with... a minor because he had had sex with a minor previously and was currently on probation for that.” From this evidence, the jury could reasonably have found defendant had actual knowledge that Jane Doe was under 18 years of age. Defendant, who did not testify and presented no other direct evidence, provided no evidence to the contrary. The evidence on which he relies, recited above, had no tendency whatever to show that he had an actual belief that Jane Doe was 18 years of age or older. We conclude the trial court did not err in refusing to include the bracketed defense language when it gave CALCRIM Nos. 1071 and 1082.
C. Unanimity Instruction
A DNA analyst for the state Department of Justice (DOJ) testified that she had tested two segments of cloth taken from the underwear Jane Doe was wearing on January 12, 2008. An analysis of sperm found in the segment taken from the crotch was the same as the DNA profile developed from a sample of defendant’s blood. An analysis of epithelial cells recovered from the same segment was consistent with a “mixture” of Jane Doe’s and defendant’s DNA profiles. The analyst explained that epithelial cells are found in the mouth and in the vaginal vault. The analyst’s report was subsequently entered into evidence.
A criminologist for the DOJ additionally testified that she found amylase in the crotch segment—an enzyme present in saliva, which may also contain epithelial cells from the mouth. This witness conceded that amylase is also present in vaginal fluid and sweat.
At one point during closing argument, the prosecutor touched on this testimony, noting “[t]he epithelial cells come from, or a combination of [Jane] Doe and [defendant]” and that these cells are attributable either to “[s]weat on the inside of [Jane] Doe’s underwear, or saliva. [¶] Saliva.” Shortly afterward, the prosecutor addressed specifically the charge of oral copulation. He stated: “You can give or receive fellatio. I don’t mean to be indelicate, but when―if you believe [Jane] Doe’s testimony about [defendant] forcing her head down to make him (sic) orally copulate her [sic], certainly the other aspects of―of her evidence, her testimony is born out by the circumstantial evidence.”
Relying on these remarks, defendant contends the prosecutor argued, in effect, not only that Jane Doe had orally copulated defendant, but also that defendant had orally copulated Jane Doe, and that it was “not clear” whether he was confining his case to the act of oral copulation performed by Jane Doe on defendant. Consequently, he insists the trial court erred by failing to give sua sponte, an unanimity instruction. This, he reasons, would have made it clear to the jury that it could find defendant guilty of the charge of oral copulation under section 288a, subdivision (b)(1), only if it found unanimously that he was guilty of one of the two distinct acts, either of which could have been a basis for a guilty verdict. (See CALCRIM No. 3500 (Summer 2010 ed.) p. 959.)
Jane Doe testified that on January 12, 2008, defendant asked her to perform fellatio on him, and, when she said she did not want to, pushed her head down and “forced” her to perform oral copulation on him. Neither she nor any other witness testified that a second act of oral copulation occurred, whether performed by Jane Doe on defendant or vice versa. It is true that the two DOJ witnesses testified concerning a “mixture” of Jane Doe’s and defendant’s epithelial cells, and the presence of amylase that was possibly attributed to saliva. But according to the criminologist, the amylase could also be attributed to vaginal fluid or sweat—sweat that just as possibly could have come from defendant as from Jane Doe. The prosecutor at no point attempted to elicit from these witnesses any opinion whether this circumstantial evidence was sufficient to indicate a second act of oral copulation performed by defendant on Jane Doe.
The prosecutor’s remarks concerning the presence of “sweat... or saliva” by no means rise to the level of an argument that a second act of oral copulation occurred. Similarly, the prosecutor’s subsequent remarks contain a number of errors common in oral argument, but they nevertheless make it clear that he was relying solely on the act of oral copulation performed by Jane Doe on defendant with respect to the charge under section 288a, subdivision (b)(1). Finally, we note that nothing in the record indicates jury confusion over this issue.
The prosecutor thus refers to Jane Doe’s testimony that defendant forced her head down to make “him (sic) orally copulate her [sic].” Moreover, his assertion that this testimony was supported by circumstantial evidence is simply incorrect. The evidence elicited from the DOJ witnesses provided nothing to support Jane Doe’s testimony that defendant forced her to perform an act of oral copulation on him.
The prosecutor’s reliance on this one act of oral copulation is consistent with his pretrial motion for the admission of DNA evidence, which he sought solely to show that sperm found in Jane Doe’s underwear was consistent with defendant’s DNA profile.
We conclude that, under these circumstances, the trial court had no sua sponte duty to give the unanimity instruction.
Disposition
The judgment is affirmed.
We concur: Dondero, J., Banke, J.