Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. S810372
Mihara, J.
Defendant Jason Seth O’Connell was convicted by court trial of first degree burglary (Pen. Code, § 459), lewd conduct on a child (Pen. Code, § 288, subd. (a)), forcible lewd conduct on a child (Pen. Code, § 288, subd. (b)(1)), and aggravated sexual assault on a child (Pen. Code, § 269, subd. (a)(4)), and the court found true an allegation that the lewd conduct and forcible lewd conduct counts occurred during a first degree burglary that was committed with the intent to commit those offenses (Pen. Code, § 667.61, subd. (d)(4)). The court committed defendant to state prison for 50 years to life.
On appeal, defendant’s primary contention is that the trial court prejudicially erred in admitting into evidence defendant’s confessions to the police because those confessions were obtained after defendant invoked his right to counsel. He also contends that the trial court prejudicially erred in admitting into evidence the three-year-old victim’s statements and gestures shortly after the offenses. Defendant claims that suggestive procedures rendered this evidence so fundamentally unreliable that its admission violated his federal constitutional right to due process. In addition, defendant contends that the admission into evidence of the victim’s statements to the police nine years after the offenses was prejudicial error because the victim had no independent recall of the events at that time. Finally, defendant contends that the forcible lewd conduct count and the aggravated sexual assault count must be reversed and cannot be retried because there was not substantial evidence of force. We conclude that the trial court erred in admitting into evidence defendant’s confessions to the police because they were obtained in violation of Edwards v. Arizona (1981) 451 U.S. 477, 484-485 (Edwards). The erroneous admission of this evidence was prejudicial as to three of the four counts and the special allegation. Consequently, we must reverse the judgment. We do not bar retrial of any of these three counts or the special allegation as the prosecution presented substantial evidence as to each count.
I. Pre-Trial Proceedings
Defendant was arrested on October 3, 2006. In August 2007, defendant was charged by information with first degree burglary (Pen. Code, § 459), three counts of lewd conduct on a child (Pen. Code, § 288, subd. (a)), one count of forcible lewd conduct on a child (Pen. Code, § 288, subd. (b)(1)), and aggravated sexual assault on a child (Pen. Code, § 269, subd. (a)(4)). The information specially alleged that defendant had committed the lewd conduct and forcible lewd conduct offenses during the commission of a burglary (Pen. Code, § 667.61, subd. (e)(2)) and that this burglary had been committed with the intent to commit those offenses (Pen. Code, § 667.61, subd. (d)(4)). The charged offenses were alleged to have occurred in November 1998. The information also alleged that defendant had suffered a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)).
In September 2007, defendant entered not guilty pleas and denied all of the allegations. At a January 24, 2008 hearing before the trial judge, defendant’s trial counsel mentioned that she would be “setting a 995 motion....” The trial court responded: “Save your energy. I want to have a pretrial on this case, ‘cause this is a case that doesn’t need to be tried. He’s confessed, after Miranda, and he’s got DNA evidence. He’s hammered, so --” Defendant’s trial counsel responded: “Well, Your Honor, that actually does not turn out to be the case, so --” The court replied: “Okay. Whatever.”
In February 2008, defendant’s trial counsel moved to exclude the statements that defendant had made to the police in October 2006 on the grounds that these statements had been obtained after defendant invoked his right to counsel and his right to remain silent. On March 6, 2008, the trial court denied this motion.
Defendant’s trial counsel renewed at trial her objection to the admission of defendant’s statements to the police, and the court reaffirmed its ruling that those statements were admissible.
At an April 11 hearing, the court stated: “This isn’t a complicated case. I understand there’s a confession. I don’t know what all the hubbub is about, frankly....”
Defendant sought an in limine hearing addressing the victim’s competency and the admissibility of her statements. He also sought exclusion of any evidence sought to be admitted under Evidence Code sections 1101, subdivision (b) and 1108. The prosecutor, in turn, sought admission of evidence under Evidence Code sections 1101, subdivision (b) and 1108. The court ultimately overruled the defense objection to the Evidence Code sections 1101, subdivision (b) and 1108 evidence and admitted this evidence.
The trial court did not attach much weight to this evidence at trial. “What I’m saying is I could reach the result I’m going to reach never having seen those, but I did see them.”
On April 14, 2008, the parties waived their rights to a jury trial, and the matter was set for a court trial the following day. The parties agreed that neither of them would call the victim as a witness at the court trial The following day, the trial court gave defendant Bunnell advisements. The parties stipulated that documentary evidence could be admitted without “foregoing any right to raise evidentiary objections, other than hearsay objections, to this information.” Defendant agreed that the prosecutor could submit documents into evidence “in lieu of any live testimony, or testimony subject to cross-examination....”
At an April 11 hearing on a defense motion to disqualify the prosecutor because he would be a witness at trial, the court said: “Does it make a difference that we’re having a court trial instead of a jury trial?” Later in that hearing, the prosecutor said “I don’t have authority with my office to waive a jury trial.” The court then told the prosecutor that it would grant the defense motion, but would deny the motion if the prosecutor waived a jury trial. After further argument by the prosecutor, the court mentioned: “We had a chambers discussion about this in which the People made it clear they did not intend to waive a jury trial.” The court reiterated its ruling. Another prosecutor then stepped in and announced that the prosecution was ready for a jury trial. However, on the following court day, April 14, the prosecution waived its right to a jury trial. The court then reversed its ruling on the disqualification motion. Nevertheless, it was the new prosecutor who tried the case.
Bunnell v. Superior Court (1975) 13 Cal.3d 592 (Bunnell) held that, when a case is submitted on the preliminary examination transcript, the defendant must be advised of the rights he is foregoing and of the consequences of conviction. (Bunnell, at p. 605.)
II. Trial Proceedings
The prosecution’s trial evidence consisted of police reports, lab reports, defendant’s recorded statements to the police, and the victim’s recorded 2007 interview. The defense presented a single live witness.
The prosecution’s documentation included the following evidence. At 4:00 a.m. on November 18, 1998, the victim’s mother heard the three-year-old victim make a “moaning noise” and then begin crying. As the mother was getting out of bed to go check on her daughter, she saw a shadow walk past the open door to the master bedroom and go down the stairs. She initially assumed that the shadow was her eight-year-old son. When the mother entered the victim’s bedroom, she found the victim on her hands and knees on the floor. The victim was no longer wearing her underwear, which she had been wearing when the mother put her to bed. The underwear was lying on the floor near the bed. A black leather jacket was lying on the floor of the victim’s bedroom, and there was a strong odor of cigarette smoke in the room. The mother picked up the victim and went to check on her son. She saw that her son was sleeping in his bed, and she realized the shadow she had seen was an intruder. She called out to her husband that someone was in the house.
Upon hearing the mother’s call, the victim’s father looked out a window and saw a tall man running from the area of his back patio. The father grabbed his handgun, ran outside, yelled obscenities, and fired a round into the air. The father noticed that the sliding glass door to the apartment was open. The mother called the police.
Officer Richards arrived and asked the mother to “talk to [the victim] and ask her questions for me.” Richards noticed that the victim “kept opening her mouth and pointing to it as if showing me that someone had put something in there.” The mother asked the victim “if anyone had put something in her mouth, ” and the victim nodded her head. Using a doll, the officer had the mother ask the victim to “point to the area that the suspect had tried to put in her mouth.” The victim pointed to the “front groin area of the doll.” The mother asked the victim if “any part of her body hurt.” The victim nodded and pointed to the front groin area of the doll and the doll’s rear buttocks area.
There were “two wet drops” on the carpet next to the victim’s underwear in her bedroom. This appeared to be semen, and it was subsequently tested and found to contain defendant’s sperm.
Detective McPhillips arrived at the scene and heard the victim say something in Spanish that he did not understand while pointing toward her mouth with her mouth open. He asked the father what she had said, and he said the victim had said “ ‘I kill him.’” The father told McPhillips that the victim had said that her vagina hurt. The mother told Santa Cruz Police Sergeant Seiley that the victim, while alone with her brother, had said to her brother “ ‘it hurts’ and ‘I hate myself right here’, pointing to between her legs.” The victim and her parents and brother went to the hospital so she could be examined.
At the hospital, McPhillips and the doctor decided to use the victim’s eight-year-old brother as a Spanish-English interpreter when they interviewed the victim. The interview was not recorded. When they asked the victim what had happened, “she immediately opened her mouth and pointed to her mouth and said in Spanish, the man.” In response to a question as to whether the man had touched her with his hands, the victim “immediately pointed to her vegina [sic] and lips.” As she pointed to her lips, “she patted her lips and said in Spanish that he had hit her lip with his hands.” The victim was asked “if the man had touched her anywhere else and she replied in Spanish that he had touched her butt.” She was asked whether the man had “touched her with his labios [lips, ] and she pointed to her left ear lobe” and to her own lips. The victim was asked if she had seen the man’s penis, and “she said she had.” “When we asked if he had touched her with his pajarito [penis, ] she did not answer the question.” “In going over the questions a second time, [the victim] indicated the man had touched her vagina with his lips.” McPhillips had the brother leave and tried to interview the victim further with her father present, “but she was becoming extremely anxious and frustrated with the questioning, ” so they terminated the interview.
Defendant, who lived in the same apartment complex as the victim, was identified as a suspect within a week of the offenses. Defendant’s fingerprint was found on a page torn from a paperback book that was in the leather jacket left in the victim’s bedroom. He was known to wear a leather jacket similar to the one found in the victim’s bedroom. Defendant failed to show up for work the day after the offenses and never returned to claim his paycheck. None of his friends or family had heard from him since the offenses. Defendant was a smoker, though he had recently tried to quit. Defendant was not arrested until October 2006.
In January 2007, the victim, then 11 years old, was interviewed by Santa Cruz Police Detective Bernie Escalante, Assistant District Attorney Ross Taylor, and Victim Advocate Julie Schneider. Taylor read to the victim the police report about her statements and gestures during the November 1998 interview. He then told her: “OK, now, um basically, um, I want to indicate to you that all, all we want is for you to be honest with us. Uh, it’s OK if you don’t remember something, but if you do it’s equally important that you let us know. Um, you, you’re not going to surprise us or scare us and um, {laughter} and uh, you know, if you feel comfortable enough we really appreciate you, you know, just explaining to us what you remember. It’s OK if you don’t know something. It’s OK if you don’t remember something. Um, so, basically what do you remember from that night?” The victim responded: “Um, everything that you said was true and I screamed and then he hid in the closet and my Mom came in but when she opened the door he came out and my Mom looked in the closet and he wasn’t there and I saw my Dad with the gun. He came down stairs and I don’t know the rest.”
The victim proceeded to respond to Taylor’s questions. “All I remember that he, that this guy came in and took off his pants and stuck it into my mouth.” The victim said she was awakened by the sound of a door opening and closing. “I woke up and I saw the guy trying to take off his pants.” He picked her up from her bed and set her down on the floor. “He just like started grabbing me like from different parts.” Asked for the locations of these touchings, she said: “Like on my bottom and like on my private.” He also put his penis in her mouth. Taylor asked her: “Did you do anything that you can remember?” She responded: “I didn’t do anything, I just tried to get out of it.” Asked what she had done, she said: “I don’t know, I was like pushing him away, just trying to get my mouth out.” Taylor asked the victim: “Do you remember where his hands were?” She replied: “I just remember that one of his hands was on my head like pushing it against his private.” She also said: “[He] ran into the closet so that my Mom wouldn’t see him when she came in. When she came in she left the door open and like he ran out before she turned around....”
The prosecution also introduced evidence that defendant had sexually abused a five-year-old girl and kidnapped a seven-year-old girl in Oregon in August 2006.
The defense witness at trial was Dr. Lee Stewart Coleman. Coleman, a psychiatrist, testified as an expert on “mental capacities and abilities of children and the factors which impact and alter childhood memories.” Coleman explained that a three-year-old child is “able to perceive quite a bit of what’s going on” but is “not very good at expressing what they have seen.” Children that age “are very vulnerable to having their memory and recollection and their statements influenced about what they’ve seen by any outside influences.” “If you talk to children right away, within a few days or weeks after something happening [sic], and you’re very, very careful, you may be able to get useful information about what did or didn’t happen, but it’s a very difficult thing to do and easily can be altered in an irretrievable way.” In Coleman’s opinion, a child of three can only “hold a firsthand memory” for, at most, two months. After that, the child is unable to distinguish between “true memories” and “other images or other beliefs” that “they’ve picked up along the way at the suggestion of others.” Coleman testified that the consensus among experts was that the “earliest age” when a child forms “lasting memories” is “[t]hree and a half to four years of age.” “Four to four and a half would be kind of like average. [¶] Three and a half is really pushing it, but some experts in the field believe that that’s possible, but not before then.”
Coleman had reviewed the reports about the victim’s 1998 statements and gestures and concluded, to a “virtual certainty, that the interviewers were already starting to influence the child from that very first night” because they “were using suggestive and leading techniques....” “[W]hen you start using these kind of techniques, then I think you have essentially no chance of having reliable information come out of your interviews.” He had also reviewed reports about the victim’s 2007 interview and concluded that the victim at that time did not have “firsthand memories” of the 1998 events. Coleman believed that, in part due to the “very poor technique” by the 2007 interviewer, the 2007 interview showed that the victim was “trying to satisfy her interviewers.”
Based on Coleman’s testimony, defendant’s trial counsel argued to the court that none of the victim’s statements were admissible because she had not been competent as a three-year-old to testify and, as an 11-year-old, she “would not have memories coming from her own firsthand recollection” that would permit her to testify. Her objection was based, in part, on “state and federal due process grounds.” The court refused to exclude any of the victim’s statements. “I have my doubts as to how much of [her 2007 statements are] genuine recollection, based not only on Dr. Coleman’s testimony but just on human experience. Most of us don’t remember things from that far back, from that age, except to the extent they’ve been talked about in the family, they’ve been photographed, they’ve been written about or talked about. That’s just -- to some extent, on that point, I don’t need Dr. Coleman’s testimony, but, in any event, I’m not going to exclude the testimony of the victim at either age three, as an indirect reporter to other people, or at age twelve, but -- I do have some doubts about its reliability, but it won’t be excluded.” The trial court overruled the defense competency objection to the admission of the victim’s 1998 statements and gestures. As to the victim’s 2007 statements, the court overruled the objection because “those objections go to the weight of that testimony [sic] and not its admissibility.” “And when I rule on the case, I’ll try to point out to what extent I’ve actually relied on any of that evidence.”
After reviewing the evidence, the court found defendant guilty of the burglary count, one of the three lewd conduct counts, the forcible lewd conduct count, and the aggravated sexual assault count. The court based the lewd conduct count on defendant’s oral copulation of the victim, and both the forcible lewd conduct count and the aggravated sexual assault count on defendant forcing the victim to orally copulate him. The court found true the Penal Code section 667.61, subdivision (d)(4) allegation as to lewd conduct and forcible lewd conduct counts. It found not true the prior strike allegation. The court provided this statement of the basis for its decision: “[M]y decision is based on information contained in the statement of the witnesses on the night in question, including the victim; statements by the victim given in 2006 [sic], and Mr. O’Connell’s statements mostly.”
The court said: “I’m not clear what the conduct alleged was, but I’m, essentially, finding not guilty on those two counts.”
The prosecutor conceded that the prior conviction did not qualify as a strike.
Defendant was committed to state prison to serve two consecutive 25 years to life terms for the lewd conduct and forcible lewd conduct counts. The court stayed the terms it imposed for the burglary and aggravated sexual assault counts. Defendant timely filed a notice of appeal.
III. Discussion
A. Defendant’s Statements To The Police
Defendant contends that the trial court prejudicially erred in admitting into evidence his statements to the police because those statements were obtained after he invoked both his right to counsel and his right to remain silent.
1. Background
Defendant was arrested on October 3, 2006 in Redding, California. On October 4, he was interviewed by Oregon Detective Warthen. The interview was videotaped. At the commencement of this interview, before Warthen said anything, defendant said: “I believe I need a lawyer or something. Just -” Warthen cut him off. “Let’s hold off on that. Let me -- Do you have coffee?” A discussion ensued about whether defendant could smoke, with the decision being made that he could. While defendant smoked a cigarette, Warthen proceeded to obtain some basic information about defendant. After obtaining that basic information, Warthen began to read defendant his rights. “OK. Well, Jason, you have the right to remain silent. Anything you say can be used against you in a court of law.” “You have the right to have -- you have the right to talk to a lawyer and have him present with you when you’re being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. Do you understand all that?”
Defendant’s immediate response was to invoke his right to counsel. “O’Connell: Yes and I do wish to have a lawyer present or court appointed lawyer or something, I mean -- [¶] Detective: Why is that? [¶] O’Connell: ‘Cause that’s my right. [¶] Detective: I -- I realize that’s your right. OK. [¶] O’Connell: OK. I think that’d be in my best interest, ‘cause obviously I’m being charged with something - being handcuffed and everything else, so - I mean - [¶] Detective: So you don’t know what - you - you don’t even want to know what you’re being charged with? [¶] O’Connell: Um, yeah I do. [¶] Detective: OK. Well, finish your cigarette, and I’ll come back in and chat with you about that, OK.” (Bold added.)
Warthen then left and returned 5.5 minutes later. “Detective: Jason, I know you invoked your right to remain silent, and that’s your given right. OK? And I’m going to respect that. But when you were booked in here last night, or booked, or the officers picked you up at the rescue mission, is that correct? [¶] O’Connell: Yeah. [¶] Detective: OK. And uh one of the officers, you gave him, last night, verbal consent to look through your stuff. [¶] O’Connell: Yeah. [¶] Detective: Do you mind if I look through it? [¶] O’Connell: Uh yeah. Yeah, you can. [¶] Detective: You, yeah you can. I can look through it? OK. What is today? Can I have you sign that? Giving me permission to look through your stuff? Thank you. OK. Do you want to have another cigarette? Have another cigarette? [¶] O’Connell: While we talk? Or what? [¶] Detective: Huh? [¶] O’Connell: While we talk or... ? Oh, all right. [¶] Detective: Well, I want to - want to, you know, kind of speed this thing up a little bit, go through your stuff, and uh - [¶] O’Connell: All right. [¶] Detective: - be done with it. [¶] O’Connell: All right. [¶] Detective: Is that what you want? Or do you want to talk about it? [¶] O’Connell: Well, what’s going on first of all, I guess? [¶] Detective: Well, let me look through the stuff. [¶] O’Connell: OK. [¶] Detective: And then I’ll come back and sit down, and we’ll talk. OK? All right.” (Bold added.)
Warthen again left the room. 24 minutes later, defendant asked someone if he could use the restroom. Another 16.5 minutes later, Warthen returned, and defendant reiterated his request to use the restroom. At that point, defendant was permitted to use the restroom. When he returned, the conversation continued. “O’Connell: Thank you. [¶] Detective: OK, I went through your stuff. Nothing really interests me a whole lot, in my cases. OK? And uh so, you know, I respect your right to remain silent, so I guess we’re - we’re done talking as far as that goes. You have warrants for your arrest. You have a federal hold as well as warrants from the State of Oregon, the State of California. [¶] O’Connell: What’s the federal one? [¶] Detective: Unlawful flight to avoid prosecution warrant. OK? [¶] O’Connell: OK. [¶] Detective: Do you have any questions? [¶] O’Connell: What are my options? I really don’t have anything, do I? [¶] Detective: What are your options? [¶] O’Connell: Well, I know it’s a dumb question. [¶] Detective: Your options are to get some - some help. You got a problem, guy. You got a big problem. You know? You got kids out there being hurt, and it’s got to stop. You’re 35 years old. Now’s the time in your life to - you could turn things around. You can lead a horse to water, but you can’t make him drink, OK? [¶] O’Connell: Yeah.” (Bold added.)
Warthen proceeded to inform defendant again of his rights. Defendant responded: “I don’t want to say anything right now.” Warthen nevertheless encouraged defendant to “give your side of what’s been going on for the last few years.” Warthen continued to encourage defendant to talk, and defendant’s incriminating admissions (beginning with “I have hurt kids”) quickly followed. Defendant provided a comprehensive description of his Oregon offenses followed by a description of his Santa Cruz offenses. He explained that he had gone into an apartment in the middle of the night through an unlocked sliding glass door and “molested a little girl.” Defendant admitted that he had “undressed her, ” put his penis in her mouth, ejaculated, and left his jacket in the apartment because he “panicked” when the girl started to cry.
Although both of the transcripts of this interview record defendant’s statement as “I don’t want to say anything right now, ” the prosecutor claimed that defendant had actually said “I don’t know how to say anything right now.” We have viewed the DVD of defendant’s interview which was before the trial court in addition to the transcripts.
The following day, defendant was interviewed by Escalante. Escalante advised defendant of his rights. Escalante asked: “Having these rights in mind, do you wish to talk to me now?” Defendant responded: “Yeah, I guess. I mean, I told the guy yesterday, talked to him.” He thereafter admitted that he had gone into the apartment “hoping” to find a young girl to molest. When he found the victim, he took her out of her bed and put her on the rug. He removed some of her clothing, orally copulated her, and then “I made her give oral, um, sex.” He did not recall kissing the victim. Defendant said that the victim had complied with his requests, and, after he told her to suck his penis, he was “holding her head and moving around.” When he ejaculated into her mouth, she screamed, and he panicked and left.
The trial court denied defendant’s motion to exclude his statements to Warthen and Escalante. It stated: “[H]is first apparent invocation immediately at the beginning of the first interview with Detective Warthen was not an invocation; that he did invoke, under Miranda, both his right to remain silent and his right to counsel later on in that interview, after being properly Mirandized, and then, essentially, waived those rights by talking to Detective Warthen.”
2. Analysis
The validity of defendant’s claim that his statements to Warthen and Escalante were inadmissible depends on three determinations. First, defendant must have clearly invoked his right to counsel. Second, defendant must not have “initiated” further conversation after his invocation. Third, defendant’s incriminating statements must have been the product of police “interrogation.”
“[T]he scope of our review is well established. ‘We must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.’ ” (People v. Bradford (1997) 14 Cal.4th 1005, 1033 (Bradford).) “We review the trial court’s finding regarding whether interrogation occurred for substantial evidence or clear error.” (People v. Clark (1993) 5 Cal.4th 950, 985.) However, since the trial court’s findings in this case were based entirely on the undisputed video and audio recordings of the police interviews with defendant, there are no disputed facts, and we exercise independent review. (People v. Maury (2003) 30 Cal.4th 342, 404; People v. Vasila (1995) 38 Cal.App.4th 865, 873.)
The trial court found, and the Attorney General does not dispute, that defendant clearly invoked his right to counsel immediately after he was informed by Warthen of his constitutional rights. Instead, the Attorney General contends that defendant’s statements were nevertheless admissible because Warthen “respected” defendant’s invocation and did not subject him to any interrogation after his invocation until defendant initiated further communication and explicitly waived his rights.
Defendant argues at some length that he also clearly invoked his right to counsel prior to the initial advisements, and the Attorney General argues to the contrary. Because no incriminating statements were elicited between the first alleged invocation and the subsequent undisputed invocation, we find it unnecessary to consider this contention as we conclude that all of defendant’s incriminating statements to the police were inadmissible.
“[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [A]n accused... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards, supra, 451 U.S. at pp. 484-485, fn. omitted.)
The Attorney General claims that it was defendant who initiated conversation with Warthen after the invocation. The undisputed facts refute this contention.
After defendant invoked his right to counsel, Warthen immediately asked defendant “[w]hy is that?” Such a question does not reflect what the Attorney General calls Warthen’s “respect” for defendant’s invocation. Nor was Warthen deflected by defendant’s attempt to explain in response to this improper question. Warthen continued to engage defendant in conversation and made it clear that the interview would not be terminated as a result of defendant’s invocation. Warthen left the room for a few minutes, but he emphasized to defendant that he intended to “come back in and chat with you” shortly. When Warthen returned to the room, Warthen began questioning defendant about consenting to a search of his belongings. Defendant readily consented to the requested search, but Warthen did not end his attempts to draw defendant into conversation. After defendant had agreed to the search, Warthen asked him “do you want to talk about it?” Clearly “it” was not the search. Defendant’s only response was to ask “Well, what’s going on first of all, I guess?” Warthen did not respond to defendant’s question. Instead, he left the room again, telling defendant that, upon his return, “we’ll talk.” Again, it would have been clear to defendant that Warthen intended to continue conversing with him regardless of his invocation. And defendant’s “what’s going on” question obviously was not an initiation of conversation because it was merely a response to Warthen’s question.
A request for consent to search is not interrogation or its functional equivalent and is permissible after a suspect has invoked his or her rights. (People v. Ruster (1976) 16 Cal.3d 690, 700.)
A lengthy break followed during which defendant initiated nothing but a request to use the restroom. When Warthen returned, he told defendant “so I guess we’re - we’re done talking as far as that goes, ” but instead he went on to tell defendant that there were California and Oregon warrants for his arrest and a federal hold. Defendant asked “What’s the federal one?” and Warthen told him. Defendant did not initiate any further conversation. Instead, Warthen again sought to entice defendant to continue their conversation. He asked defendant “Do you have any questions?” and defendant asked “What are my options? I really don’t have anything, do I?”
The Attorney General seems to suggest that defendant’s response to Warthen’s question was defendant initiating further conversation. He relies on Oregon v. Bradshaw (1983) 462 U.S. 1039 in which a defendant’s post-invocation inquiry “ ‘what is going to happen to me now?’ ” was considered an initiation of further conversation. The Attorney General’s reliance on Oregon v. Bradshaw is misplaced. In Oregon v. Bradshaw, the defendant invoked his right to counsel, and “[t]he officer immediately terminated the conversation.” (Oregon v. Bradshaw, at p. 1042.) It was only “[s]ometime later, ” when the defendant was being transferred to the jail, that the defendant inquired “ ‘what is going to happen to me now?’ ” (Oregon v. Bradshaw, at p. 1042.) The post-invocation reopening of a terminated conversation by the defendant in Oregon v. Bradshaw bears no likeness to defendant’s post-invocation response to a police inquiry arising from an uninterrupted conversation that was never terminated by the police in response to defendant’s invocation.
While the content of defendant’s response to Warthen’s request for questions might have constituted the initiation of a conversation had defendant made such an inquiry after Warthen had terminated the conversation, it would subvert Edwards to consider a defendant’s response to a post-invocation police question to be an initiation of conversation by the defendant. Such a holding would encourage the police to continue to question a defendant after his invocation of his right to counsel until they were able to entice the defendant into responding to their questions with a question. We refuse to consider defendant’s “What are my options” response to Warthen’s question to be an initiation of conversation by defendant.
“While we doubt that it would be desirable to build a superstructure of legal refinements around the word ‘initiate’ in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to ‘initiate’ any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally ‘initiate’ a conversation in the sense in which that word was used in Edwards.” (Oregon v. Bradshaw, supra, 462 U.S. at p. 1045.)
Nothing that defendant did thereafter was an initiation of conversation by defendant. Warthen responded to defendant’s response by making an accusatory statement that invited defendant to respond. Warthen told defendant that defendant had “a big problem” and needed to get “some help” because “You got kids out there being hurt, and it’s got to stop.” Warthen proceeded to inform defendant of his constitutional rights, and defendant immediately responded “I don’t want to say anything right now.” Unquestionably, defendant’s attempt to invoke his right to remain silent was not an initiation of conversation by defendant but an unmistakable signal by defendant that he did not want the conversation to continue. But continue it did. Warthen proceeded to ask defendant to “give your side of what’s been going on for the last few years” and continued to encourage defendant to talk until defendant finally confessed.
Since we reject the Attorney General’s assertion that defendant “initiated” the post-invocation conversation with Warthen that led to his confession, the next issue is whether defendant’s confession to Warthen was the product of interrogation.
“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.” (Rhode Island v. Innis (1980) 446 U.S. 291, 301, fns. omitted.)
Miranda v. Arizona (1966) 384 U.S. 436.
The California Supreme Court’s decision in People v. Sims (1993) 5 Cal.4th 405 (Sims), disapproved on another point in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032 (Storm), is pertinent here. In Sims, the police officer’s reply to a defendant’s “routine” inquiry “was nonresponsive to this inquiry and served no legitimate purpose incident to defendant’s arrest or custody.” The California Supreme Court concluded that the officer’s reply, which focused on the investigation and the evidence against the defendant, was “a ‘technique of persuasion’... likely to induce defendant to attempt to defend-and thus incriminate-himself.” (Sims, at pp. 442-444.) So too here. Warthen’s reply to defendant’s question was nonresponsive to his inquiry and did not serve any legitimate purpose related to defendant’s arrest or custody. Instead, Warthen’s accusatory statement was just the type of “technique of persuasion” that was likely to induce defendant to incriminate himself. Indeed, Warthen’s suggestion that defendant needed “help” because “kids out there [are] being hurt” was soon echoed by defendant’s admission that he had “hurt kids.” Warthen’s pressing of defendant to “give your side” was an even more blatant attempt to induce defendant to incriminate himself. We hold that defendant’s confession to Warthen was the product of interrogation.
“If, after invoking the right to counsel, a suspect remains in custody, and the police initiate further questioning in the absence of counsel, the suspect’s statements are presumed involuntary and are inadmissible as substantive evidence at trial, even if the suspect later waives the right to counsel and the statements would be considered voluntary under traditional standards.” (People v. Davis (2009) 46 Cal.4th 539, 598 (Davis); People v. Cunningham (2001) 25 Cal.4th 926, 992-993 (Cunningham).)
Since we have concluded that defendant clearly invoked his right to counsel, did not initiate further conversation, and was subjected to interrogation which produced his statements to Warthen, those statements were inadmissible under Edwards.
The Attorney General contends that, even if defendant’s statements to Warthen were inadmissible because they were obtained in violation of Edwards, defendant’s statements to Escalante the following day were not inadmissible. He relies on two California Supreme Court cases to support his claim that the statements to Escalante were admissible so long as both those statements and the statements to Warthen were voluntary. The Attorney General’s reliance on these cases is misplaced.
In Bradford, supra, 14 Cal.4th 1005, Bradford was first interviewed by Detectives Riehl and Arnold at 5:00 a.m. on April 19. (Bradford, at p. 1025.) Upon being advised of his rights, Bradford immediately invoked his right to counsel. (Bradford, at p. 1025.) The detectives did not terminate the interview, and Bradford eventually made damaging admissions. (Bradford, at pp. 1025-1026.) These statements were suppressed. (Bradford, at p. 1039.) At 7:00 a.m. that morning, Bradford was booked for murder. (Bradford, at p. 1026.) During this process, Bradford volunteered additional admissions, and the booking officers then began questioning him, leading to further admissions. (Bradford, at p. 1027.) At 9:30 a.m., Detective Hooks interviewed Bradford, and Bradford repeated the admissions he had made to Riehl. (Bradford, at pp. 1027-1029.) These statements too were suppressed. (Bradford, at p. 1039.) The following morning, Bradford, who believed that all of his prior statements had been “ ‘off the record, ’ ” “called Detective Hooks and said he wanted to put a statement on the record.” (Bradford, at p. 1030.) Arnold went to see Bradford and advised Bradford of his rights. Bradford waived his rights, agreed to talk to Arnold, and confessed. (Bradford, at pp. 1031-1032.)
Bradford challenged the admission of his statements to the booking officers and his statements to Arnold the following day. The California Supreme Court found that, while his initial statements to the booking officers were admissible because he had initiated the conversation, his subsequent responses to the booking officers’ questions were not admissible because there was no indication that Bradford had wished to waive his previously invoked right to counsel by responding to those inquiries. (Bradford, supra, 14 Cal.4th at pp. 1034-1037.) However, the California Supreme Court concluded that this error was harmless because these admissions were duplicative of Bradford’s admissions to Arnold the following day. (Bradford, at p. 1038.) With regard to Bradford’s challenge to the admissibility of his statements to Arnold, the California Supreme Court rejected his claim that those statements were the “tainted product of earlier illegal interrogations.” (Bradford, at p. 1038.) The California Supreme Court refused to find that “an Edwards violation, ‘unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period.’ [Citation.] Rather, if the statement made after an Edwards violation is voluntary, ‘the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.’ ” (Bradford, at p. 1040.)
In Storm, supra, 28 Cal.4th 1007, Storm was interviewed by the police twice; once on November 19, 1996 at the police station, and once on November 21 at his home. (Storm, at p. 1016.) During the November 19 interview, Storm invoked his right to counsel. (Storm, at p. 1017.) The police officer nevertheless continued to urge Storm to talk, and Storm made additional incriminating statements. (Storm, at pp. 1017-1019.) After the November 19 interview, Storm was not arrested, and he was allowed to return home. (Storm, at p. 1019.) On November 21, the police came to his home, and he invited them inside. (Storm, at p. 1020.) Storm was not re-advised of his rights as he was not in custody. Storm was questioned and made additional admissions. After the interview, the police left. Storm was arrested the following day. (Storm, at p. 1020.) Storm moved to suppress the statements he had made on November 19 after he invoked his right to counsel and all of the statements he made on November 21. (Storm, at pp. 1016, 1020.) The trial court suppressed the post-invocation statements made on November 19, but it refused to suppress the November 21 statements. (Storm, at p. 1020.)
The first issue addressed by the California Supreme Court was whether the November 21 statements were inadmissible because those statements had been obtained in violation of Edwards or if, on the other hand, those statements were admissible because “a break in custody vitiates the Edwards no-recontact rule.” (Storm, supra, 28 Cal.4th at p. 1023.) The California Supreme Court held that the November 21 statements were admissible under a “break in custody” exception to the Edwards rule. “The narrow nature of our holding should be emphasized. We conclude only that Edwards is not violated when the police recontact a suspect after a break in custody which gives the suspect reasonable time and opportunity, while free from coercive custodial pressures, to consult counsel if he or she wishes to do so. We do not suggest the police can avoid Edwards simply by allowing the suspect to step outside the station house at midnight on a Saturday, then promptly rearresting him without affording any realistic opportunity to seek counsel’s assistance free of the coercive atmosphere of custody.” (Storm, at pp. 1024-1025, italics added & original italics omitted.)
The second issue addressed by the California Supreme Court in Storm was whether, even if the November 21 statements were not themselves obtained in violation of Edwards, these statements were nevertheless inadmissible because they were the “tainted ‘fruit’ ” of the November 19 Edwards violation. (Storm, supra, 28 Cal.4th at pp. 1027-1028.) Disapproving its own 1993 decision on this point and relying on Bradford and Oregon v. Elstad (1985) 470 U.S. 298, the California Supreme Court held that the simple fact that the police violated Edwards previously did not itself taint a subsequent properly obtained statement. (Storm, at pp. 1031-1035.)
Neither Bradford nor Storm has any application here. In Bradford, the subsequent statement did not violate Edwards because the interview in which that statement was obtained was initiated by Bradford. Edwards does not apply where the suspect initiates subsequent conversation with the police. In Storm, the subsequent statement did not violate Edwards because it was obtained after “a break in custody [which] vitiate[d] the Edwards no-recontact rule.” (Storm, supra, 28 Cal.4th at p. 1023.) Edwards does not apply after a “break in custody.” Here, defendant did not initiate any further conversation with the police, and there was no “break in custody” between the Warthen interview and the Escalante interview. Unlike in Storm, defendant remained in continuous police custody between the two interviews. Defendant’s statements to Escalante are inadmissible not because of any “taint” from the earlier Edwards violation during the Warthen interview, but because Escalante violated Edwards by interrogating defendant after defendant had previously invoked his right to counsel.
Indeed, the Attorney General’s claim is inconsistent with both the holding in Edwards and the United States Supreme Court’s recent decision in Maryland v. Shatzer (2010) __ U.S. __ [130 S.Ct. 1213] (Shatzer).
In Edwards, the defendant was arrested, taken to the police station, and informed of his rights. (Edwards, supra, 451 U.S. 477.) He initially agreed to speak with a police officer and made taped statements. However, he subsequently invoked his right to counsel, and the interrogation ceased. (Edwards, at p. 479.) The defendant was then taken to jail. The next day, two other police officers came to speak with him. They advised him of his rights, and he agreed to talk to them. (Edwards, at p. 479.) The defendant thereafter made incriminating statements. (Edwards, at p. 479.) It was these statements, made during a subsequent interrogation by different police officers on the day after his invocation, that he sought to suppress. And it was in this context that the United States Supreme Court held “that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards, at pp. 484-485, italics added.) “[I]t is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” (Edwards, at p. 485, boldface added.)
Edwards invoked his right to counsel, and, the next day, the police interrogated him and obtained incriminating statements. The United States Supreme Court held that the interrogation violated Edwards’s constitutional right because he had invoked his right to counsel, had not been provided with counsel, remained in custody, and did not initiate further contact with the police, and, the next day, he was interrogated and made incriminating statements. Here, defendant invoked his right to counsel, was not provided with counsel, remained in custody, and did not initiate any further contact with the police, and, the next day, Escalante interrogated him and obtained incriminating statements. Edwards itself establishes that those statements must be suppressed.
Shatzer also rebuts the Attorney General’s claim. In Shatzer, the issue before the United States Supreme Court was “whether a break in custody ends the presumption of involuntariness established in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).” (Shatzer, supra, __ U.S. at p. __ [130 S.Ct. at p. 1217].) The United States Supreme Court held in Shatzer that the termination of custody is the “logical endpoint” of the Edwards presumption, and therefore an interrogation that occurs after the termination of custody is not presumptively involuntary. (Shatzer, at p. __ [130 S.Ct. at p. 1222].)
The facts of Shatzer illustrate the distinction between cases like the one before us and Edwards, on the one hand, and cases like Shatzer and Storm on the other. In August 2003, a police detective informed Shatzer, who was in prison, of his rights, and Shatzer initially waived them. However, when Shatzer learned why the detective wished to question him, he invoked his right to counsel, and the interview was terminated. More than two years later, Shatzer was still in prison, and another detective came to speak with Shatzer and advised him of his rights. Shatzer waived his rights, was interrogated, and made incriminating statements. (Shatzer, supra, __ U.S.at pp. __-__ [130 S.Ct. at pp. 1217-1218].) Shatzer moved to suppress these statements, and his motion was denied on the ground that Edwards did not apply due to the “break in custody” between the invocation and the subsequent interrogation. (Shatzer, at p. __ [130 S.Ct. at p. 1218].)
In Shatzer, the United States Supreme Court noted that, under Edwards, “a voluntary Miranda waiver is sufficient at the time of an initial attempted interrogation to protect a suspect’s right to have counsel present, but it is not sufficient at the time of subsequent attempts if the suspect initially requested the presence of counsel. The implicit assumption, of course, is that the subsequent requests for interrogation pose a significantly greater risk of coercion.” (Shatzer, supra, __ U.S.at pp. __-__ [130 S.Ct. at pp. 1219-1220], italics added.) Citing Storm, the United States Supreme Court observed that “[l]ower courts have uniformly held that a break in custody ends the Edwards presumption.” (Shatzer, at p. __ [130 S.Ct. at p. 1220].) The court endorsed this uniform holding. “The only logical endpoint of Edwards disability is termination of Miranda custody and any of its lingering effects. Without that limitation-and barring some purely arbitrary time-limit every Edwards prohibition of custodial interrogation of a particular suspect would be eternal.” (Shatzer, at p. __ [130 S.Ct. at p. 1222], fn. omitted.)
The factual distinction between Shatzer and Edwards is akin to the factual distinction between Storm and the case before us. Shatzer invoked his right to counsel, and, years after the termination of his Miranda custody, he was interrogated and made incriminating statements. Storm invoked his right to counsel, was set free, and then was subsequently interrogated and made incriminating statements. Edwards, like defendant, remained in continuous custody between his invocation and his subsequent interrogation. If the Attorney General were correct and subsequent interrogations were not subject to Edwards, there would have been no need for the United States Supreme Court to consider in Shatzer whether there was a “break in custody” exception to Edwards. Shatzer made clear that the Edwards presumption continues during “subsequent attempts” to interrogate the suspect and does not end until custody terminates. Here, Escalante’s interrogation of defendant was a “subsequent attempt[]” to interrogate him, and defendant remained in continuous custody between the two interrogations. Hence, the Edwards presumption was still in place during Escalante’s interview with defendant.
The only significant factual distinction between Edwards and Shatzer, on the one hand, and the situation before us, on the other hand, is that, in both Edwards and Shatzer, the defendants’ invocations resulted in the termination of the initial interrogation attempt, while here Warthen did not terminate the interview in response to defendant’s invocation. This distinction is not material. The fact that defendant had already been subjected to a violation of his constitutional rights by Warthen prior to being interviewed by Escalante obviously did not operate to excuse Escalante’s Edwards violation.
Thus, we conclude that the trial court erred in ruling that defendant’s statements to Warthen and Escalante were admissible, and we must proceed to consider the Attorney General’s contention that the trial court’s error was harmless beyond a reasonable doubt.
A trial court error in failing to exclude a statement obtained in violation of Edwards is subject to harmless error review under Chapman v. California (1967) 386 U.S. 18 (Chapman). (Cunningham, supra, 25 Cal.4th 926, 994; People v. Johnson (1993) 6 Cal.4th 1, 33.) The Chapman standard of review requires “the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, at p. 24.) Reversal is required if there is a “ ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” (Chapman, at p. 23; Yates v. Evatt (1991) 500 U.S. 391, 403 (Yates), disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) “To say that an error did not ‘contribute’ to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous.” (Yates, at p. 403.) “To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Thus, to say that [the error] did not contribute to the verdict is to make a judgment about the significance of the [error] to reasonable jurors, when measured against the other evidence considered by those jurors independently of the [error].” (Yates, at pp. 403-404.) “[T]he appropriate inquiry is ‘not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [113 S.Ct. 2078, 2081, 124 L.Ed.2d 182], italics original.)” (People v. Quartermain (1997) 16 Cal.4th 600, 621 [erroneous admission of defendant’s statement was prejudicial]; accord People v. Neal (2003) 31 Cal.4th 63, 86 [erroneous admission of defendant’s confessions was prejudicial].)
Defendant’s erroneously admitted statements to Warthen and Escalante were very extensive and complete confessions. “A confession is like no other evidence. Indeed, ‘the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.... The admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.’ [Citations.] While some statements by a defendant may concern isolated aspects of the crime or may be incriminating only when linked to other evidence, a full confession in which the defendant discloses the motive for and means of the crime may tempt the jury to rely upon that evidence alone in reaching its decision.” (Arizona v. Fulminante (1991) 499 U.S. 279, 296.)
In this case, it is unquestionable that the trial court, which served as the fact finder, considered defendant’s confessions to be critical evidence. Months before the trial had even commenced, the trial court expressed its belief that the confessions were conclusive on the issue of defendant’s guilt. The court suggested to defendant’s trial counsel that she “[s]ave [her] energy” and not bring a motion to dismiss the charges “ ‘cause this is a case that doesn’t need to be tried. He’s confessed, after Miranda, and he’s got DNA evidence. He’s hammered, so --” (Italics added.) When defendant’s trial counsel disputed this characterization, the trial court replied: “Okay. Whatever.” A few days before the trial commenced, the trial court stated: “This isn’t a complicated case. I understand there’s a confession. I don’t know what all the hubbub is about, frankly....” (Italics added.) These statements by the trial court itself reflect that the trial court did not find defendant’s confessions to be “unimportant” in relation to the other evidence. (Yates, supra, 500 U.S. at pp. 403-404.)
The trial court’s subsequent statements at trial confirmed that it found defendant’s confessions to be important evidence. The trial court explicitly specified which pieces of evidence it found persuasive. The court stated that it did not rely on the prior acts evidence. It expressed “doubts” about the “reliability” of the victim’s 2007 statements. And it expressly identified the evidence it did rely upon: “[M]y decision is based on information contained in the statement of the witnesses on the night in question, including the victim; statements by the victim given in 2006 [sic], and Mr. O’Connell’s statements mostly.” The trial court’s emphasis on defendant’s confessions precludes a finding that the confessions were “unimportant” in relation to the other evidence.
It is true in this case in general that the confessions were not “unimportant” in relation to the other evidence. Nevertheless, we must examine each count and the special allegation separately to determine whether the admission of defendant’s confessions was nevertheless non-prejudicial as to any of these counts or the allegation.
We begin with the lewd conduct count. “The crime of a lewd or lascivious act upon a child requires a touching of a child under the age of 14 with the specific intent ‘of arousing, appealing to, or gratifying the lust, passions, or sexual desires’ (§ 288, subd. (a)) of the defendant or the child.” (Davis, supra, 46 Cal.4th 539, 606.) Here, it is undisputed that the victim was a child under the age of 14. Wet drops of defendant’s semen were found on the carpet near the victim’s bed and next to the victim’s underwear, which the victim had been wearing when her mother put her to bed. The victim was heard crying and was found on the floor on her hands and knees immediately after defendant left the room. Defendant’s leather jacket was also lying on the floor. The combination of these pieces of physical evidence precludes any reasonable explanation other than that defendant touched the victim with the requisite sexual intent. The only reasonable explanation is that defendant removed his jacket, exposed his penis, and ejaculated. This evidence indisputably shows the requisite intent. While it is theoretically possible that a three-year-old child could have left her bed, removed her underwear, and positioned herself on her hands and knees on the floor in the middle of the night, it is not reasonably possible that a three-year-old child did all these things at the very same time that defendant was in her room without defendant touching her at all. Because the physical evidence left open no reasonable possibility that defendant had not committed a lewd act on the victim, the admission of defendant’s confessions, which merely confirmed as much, was “unimportant” in relation to the other evidence.
The same cannot be said as to the burglary count and the special allegation. “The crime of burglary consists of an act-unlawful entry-accompanied by the ‘intent to commit grand or petit larceny or any felony.’ (§ 459.)” (People v. Montoya (1994) 7 Cal.4th 1027, 1041.) The physical evidence indisputably established that defendant had unlawfully entered the apartment. The presence of his semen and his jacket in the victim’s bedroom were incontrovertible proof of his presence there, and it was undisputed that the victim’s family did not know him and therefore had not invited him to enter. The key element of burglary, which distinguishes it from trespass (Pen. Code, § 602.5), is the intent to commit theft or a felony. The fact that defendant actually committed a lewd act after his entry into the apartment supports a reasonable inference that he harbored such an intent when he entered, but it is not indisputable proof that he had that intent when he entered. Had defendant’s confessions not been admitted, there is a reasonable possibility that defendant, who lived in the same apartment complex and apparently had a drinking problem, might have been able to create a reasonable doubt about his intent at the time of his entry based on evidence that he was intoxicated at that time and mistakenly wandered into the wrong apartment.
The Attorney General bears the burden of discounting any such reasonable possibility, and he has failed to establish that defendant could not have utilized such avenues to create a reasonable doubt on the issue of his intent at the time of the entry. Thus, while the physical evidence provided strong support for the burglary count and the special burglary allegation independent of defendant’s confessions, we cannot say beyond a reasonable doubt that, in the absence of the confessions, it is not reasonably possible that defendant would have been able to raise a reasonable doubt as to the burglary count and allegation.
The admission of defendant’s confessions was clearly prejudicial as to the forcible lewd conduct count and the aggravated sexual assault count. Both of these counts required proof that defendant had accomplished a lewd act by “force, violence, duress, menace, or fear.” (Pen. Code, §§ 269, subd. (a)(4), 288, subd. (b)(1), 288a, subd. (c)(2).) Neither the physical evidence nor the victim’s statements in 1998 established that the acts were forcible. Her statements in 2007 reflected that force had been used, but the trial court doubted the reliability of these statements. In his confessions, defendant admitted that he had used force. In this context, we cannot say that the trial court’s verdicts on the forcible lewd conduct count and the aggravated sexual assault count were “surely unattributable” to the admission of defendant’s confessions.
Because the trial court ruled in advance of trial that defendant’s confessions were admissible, defendant had no incentive at trial to challenge any of the physical or other evidence. In fact, he stipulated to a summary trial proceeding, and, as a result, the prosecution’s evidence was admitted without challenge. The Attorney General, as the beneficiary of the error, bears the burden of establishing that the error was harmless beyond a reasonable doubt, but he has failed to discount the reasonable possibility that defendant would have been able to mount a challenge to the prosecution’s evidence so as to create a reasonable doubt on the burglary count, the special burglary allegation, the forcible lewd conduct count, and the aggravated sexual assault count had he not been hampered by the admission of his confessions.
Under these circumstances, we cannot conclude beyond a reasonable doubt that the court’s verdicts on the burglary count, the special burglary allegation, the forcible lewd conduct count, and the aggravated sexual assault count were surely unattributable to the erroneous admission of defendant’s confessions. Thus, we are compelled to reverse the judgment on these counts and the special allegation, and remand for a retrial at which defendant’s confessions shall not be introduced.
B. The Victim’s Statements
1. 1998 Statements
Defendant contends that admission of the victim’s 1998 statements and gestures violated his right to due process under the United States Constitution because these statements were “fundamentally unreliable.” However, none of the cases he cites provide any support for his federal constitutional claim.
Defendant does not contend on appeal that there was any other basis for exclusion of these statements.
Defendant’s claim is that the victim’s statements in the hours immediately after the 1998 incident were unduly influenced by suggestive questioning. One group of cases he relies on involved suggestive lineup procedures (Foster v. California (1969) 394 U.S. 440; Manson v. Braithwaite (1977) 432 U.S. 98) or the use of hypnosis (People v. Hayes (1989) 49 Cal.3d 1260, 1268-1269) or drugs (Ramona v. Superior Court (1997) 57 Cal.App.4th 107) to recover previously unrecalled memories that tainted the witness’s subsequent trial testimony. Because these cases all involved suggestive procedures that occurred well after the event and that clearly influenced the witness’s subsequent recollections, they are readily distinguishable. Here, the victim’s statements and gestures occurred immediately after the event, and the trial court could have concluded, notwithstanding Coleman’s testimony, that the victim’s statements were not unduly influenced by the type of questioning to which she was subjected.
Defendant is not raising a Confrontation Clause issue with regard to the admissibility of the victim’s 1998 statements, so his reliance on Confrontation Clause cases is inapt. Idaho v. Wright (1990) 497 U.S. 805 (Wright) concerned whether a child’s hearsay statements elicited by suggestive questioning had “particularized guarantees of trustworthiness” under Ohio v. Roberts (1980) 448 U.S. 56 (Roberts) (overruled by Crawford v. Washington (2004) 541 U.S. 36) sufficient to justify their admission over a Confrontation Clause objection where the child had been found incompetent to testify. (Wright, at pp. 809, 813, 815-818.) In Wright, the United States Supreme Court rejected the claim that the child’s hearsay statements “are per se unreliable, or at least presumptively unreliable, on the ground that the trial court found the younger daughter incompetent to testify at trial.” (Wright, at pp. 824, 825.) It stated that “the Confrontation Clause does not erect a per se rule barring the admission of prior statements of a declarant who is unable to communicate to the jury at the time of trial.” (Wright, at pp. 824, 825.) Hence, Wright clearly did not hold that the admission of a child’s hearsay statements obtained by suggestive questioning would violate due process.
That is not to say that defendant could not raise such an objection on retrial if the victim was found incompetent to testify or otherwise did not testify at trial.
None of the out-of-state cases defendant relies on are any more helpful. People v. Zwart (1992) 151 Ill.2d 37, like Wright, involved the admissibility of a child’s hearsay statements under state hearsay exceptions and the Confrontation Clause. (Zwart, at pp. 43-48.) State v. Huss (1993) 506 N.W.2d 290 did not involve a challenge to the admission of evidence at all, but was instead a sufficiency of the evidence case. Felix v. State (1993) 109 Nev. 151 (Felix) concerned the competency of two children under Nevada law and Confrontation Clause issues. (Felix, at pp. 174-175.) The issue in State v. Michaels (1994) 136 N.J. 299 (Michaels) was “whether the interview techniques employed by the state could have undermined the reliability of the children’s statements and subsequent testimony, to the point that a hearing should be held to determine whether either form of evidence” should be admitted at trial. (Michaels, at p. 306, italics added.) The Michaels court held only that such a hearing was required before the admission of such evidence. Similarly, in People v. Michael M. (1994) 162 Misc.2d 803 (Michael M.), relying on Michaels, the trial court held that a defendant was entitled to a pretrial hearing on the admissibility of the victim’s hearsay statements because they had been elicited through suggestive questioning. (Michael M., at pp. 804-805, 810.) In neither Michaels nor Michael M. did the court suggest that the admission of such evidence would violate the United States Constitution’s due process clause. Here, defendant sought and obtained precisely the type of hearing that Michaels and Michael M. advocated, and the trial court found the statements admissible. Defendant does not claim that this hearing was inadequate.
The only witness at this hearing, which occurred at the commencement of the court trial, was Coleman, and the trial court was not obligated to credit Coleman’s testimony.
Since we can find no legal support for defendant’s theory that the admission of the victim’s 1998 statements would violate his right to due process under the United States Constitution, we reject his contention.
2. The 2007 Statements
Defendant claims that the trial court was obligated to exclude the victim’s 2007 statements because Coleman’s testimony established that the victim lacked personal knowledge of the 1998 events when she made her 2007 statements. The trial court did not exclude the 2007 statements, but it did express its doubts about their reliability. We do not believe that the record before us is fully developed to the extent that we should address this issue at this juncture. The admission of the 2007 statements was not prejudicial as to the lewd conduct count, because, as we have already determined, the physical evidence incontrovertibly established defendant’s guilt on that count. Defendant may renew this claim at any retrial of the other counts.
C. Sufficiency of the Evidence
Defendant claims that retrial of the forcible lewd conduct and aggravated sexual assault counts should be precluded because the prosecution failed to adduce substantial evidence of force to support those counts. We disagree.
“A defendant uses ‘force’ if the prohibited act is facilitated by the defendant’s use of physical violence, compulsion or constraint against the victim other than, or in addition to, the physical contact which is inherent in the prohibited act.” (People v. Bolander (1994) 23 Cal.App.4th 155, 163 (Mihara, J. concurring).) “The evidentiary key to whether an act was forcible is not whether the distinction between the ‘force’ used to accomplish the prohibited act and the physical contact inherent in that act can be termed ‘substantial.’ Instead, an act is forcible if force facilitated the act rather than being merely incidental to the act.” (Id. at pp. 163-164.)
Although defendant’s confessions will not be admissible at a retrial, they were admitted, albeit erroneously, at this trial, and they contained substantial evidence of force. Defendant admitted that he had “undressed” the victim and “made her give oral, um, sex.” (Italics added.) He also admitted that, while he had his penis in her mouth, he was “holding her head and moving around.” Defendant’s undressing of the victim and his actions in holding her head while he “made her” orally copulate him facilitated the sex acts and were not merely incidental to them. Hence, there was substantial evidence of force. Consequently, the forcible lewd act and aggravated sexual assault counts may be retried. Whether the prosecution will be able to adduce substantial evidence of force at a retrial is an issue not before us.
IV. Disposition
The judgment is reversed. Upon remand, the prosecution may elect to retry the burglary count, the special burglary allegation, the forcible lewd conduct count, and the aggravated sexual assault count. If the prosecution elects not to retry those counts, the trial court shall resentence defendant on the lewd conduct count.
I CONCUR: McAdams, J.
BAMATTRE-MANOUKIAN, J. – Concurring and Dissenting.
I concur with my colleagues’ conclusion that the error in admitting into evidence the confessions of defendant Jason Seth O’Connell to two police detectives was not harmless as to the convictions for forcible lewd conduct (Pen. Code, § 288, subd. (b)(1); count 5) and aggravated sexual assault (§ 269, subd. (a)(4); count 6). I believe that there is a “reasonable possibility that the evidence complained of might have contributed to the conviction[s].” (Chapman v. California (1967) 386 U.S. 18, 23 (Chapman); see People v. Cunningham (2001) 25 Cal.4th 926, 994.)
Further unspecified statutory references are to the Penal Code.
I concur that the forcible lewd conduct and aggravated sexual assault counts can be retried at the election of the prosecution because there is sufficient evidence to support the convictions on those counts without consideration of defendant’s confessions. (See People v. Hernandez (2003) 30 Cal.4th 1, 6-7.)
I also concur with my colleagues’ conclusion that the error was harmless as to the conviction for lewd conduct (§ 288, subd. (a); count 4). “[T]he guilty verdict actually rendered in this trial [on the lewd conduct count] was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 (Sullivan); People v. Neal (2003) 31 Cal.4th 63, 86.)
However, I do not agree with my colleagues’ conclusion that the error was not harmless as to the conviction for burglary (§ 459; count 1). As I will explain, I believe “the guilty verdict actually rendered in this trial [on the burglary count] was surely unattributable to the error.” (Sullivan, supra, 508 U.S. at p. 279.)
The Burglary Charge
Defendant was charged in count 1 with entering “an inhabited apartment with the intent to commit any felony.” Therefore, to obtain a conviction on count 1, the prosecution had to prove beyond a reasonable doubt that defendant entered an inhabited apartment and that, at the time of the entry, defendant had the specific intent to commit a felony. (§ 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041, fn. 8.) As CALCRIM No. 103 states in part: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was [properly] received throughout the entire trial.”
The Facts
Around 4:00 a.m. on November 18, 1998, the victim’s mother heard the three-year-old victim crying in her bedroom. When the victim’s mother walked into the victim’s room, she found the victim on her hands and knees on the floor, and not wearing her underwear. The victim had been wearing her underwear when her mother put her to bed. The victim’s underwear was on the floor near the victim’s bed, and suspected semen was detected nearby on the carpet. A black leather jacket was also lying on the floor. When officers arrived, they noticed that the victim kept opening her mouth and pointing to it. The victim pointed to the front groin area of a doll when asked to indicate what had been put in her mouth. The victim also indicated that her groin and buttocks hurt.
Both defendant’s employer and his father reported in November 1998 that defendant had a black leather jacket like that found in the victim’s bedroom. Defendant’s fingerprints were detected on a page from a paperback book that was found in the black leather jacket. Defendant’s sperm was detected in the semen found on the carpet.
In January 2007, the then 11-year-old victim was interviewed about the incident. She was read a police report of her 1998 interview and then asked to explain what she remembered of the incident. She stated that she remembered that the intruder came into her room, picked her up out of her crib, and put her on the floor. He touched her bottom and her privates. He took off his pants, stood her up, and stuck his penis in her mouth. She tried to push him away but could not. When he took his penis out of her mouth, she screamed. He hid in the closet and left without her mother seeing him.
The Evidence Code section 1108 Evidence
The prosecution presented evidence that, one week after the incident at issue, officers did a records check on defendant and learned that he was arrested in June 1998 for prowling. He had been found in the bedroom of an apartment where a child was supposed to be sleeping. In 2007, defendant was sentenced to prison in Oregon for his conviction by plea to kidnapping a seven-year-old child, and sexual abuse of a five-year-old child in 2006. In finding defendant guilty, the trial court stated that it was admitting the evidence of defendant’s Oregon sex offenses as Evidence Code section 1108 evidence, and that “this is kind of cumulative evidence. I mean, my decision is based on information contained in the statement of witnesses on the night in question, including the victim; statements by the victim given in 2006 [sic], and Mr. O’Connell’s statements mostly.” In response to defense counsel’s question whether the court “consider[ed]” the evidence, the court stated: “Well, I actually read the whole description of everything that happened, including what’s contained in the court records. What I’m saying is I could reach the result I’m going to reach never having seen those, but I did see them. They’re corroborative of Mr. O’Connell’s particular problem, if you will.”
Under Evidence Code section 1108, evidence of uncharged sexual offenses may be admitted to show that the defendant had a disposition or propensity to commit such crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013; People v. Falsetta (1999) 21 Cal.4th 903, 915.) In addition, evidence of a prior act may be introduced pursuant to Evidence Code section 1108 even if, as a result of that act, the defendant was not convicted of a crime that was a sexual offense. (People v. Lopez (2007) 156 Cal.App.4th 1291, 1298-1299.)
The Standard of Review
A trial court error in failing to exclude a statement on Miranda violation grounds is subject to harmless error review under Chapman. (People v. Johnson (1993) 6 Cal.4th 1, 32-33; see Arizona v. Fulminante (1991) 499 U.S. 279, 292.) “The beyond-a-reasonable-doubt standard of Chapman ‘requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ (Chapman, supra, 386 U.S. at p. 24.) ‘To say that an error did not contribute to the ensuing verdict is... to find that error unimportant in relation to everything else the [trier of fact] considered on the issue in question, as revealed in the record.’ [Citation.] Thus, the focus is what the [trier of fact] actually decided and whether the error might have tainted its decision. That is to say, the issue is ‘whether the... verdict actually rendered in this trial was surely unattributable to the error.’ [Citation.]” (People v. Neal, supra, 31 Cal.4th at p. 86.)
Analysis
Without considering the defendant’s confessions, applying the applicable standard of review to the facts, I believe the prosecution proved beyond a reasonable doubt that defendant committed first degree burglary as charged. First, the prosecution proved beyond a reasonable doubt that defendant unlawfully entered the victim’s inhabited apartment. As the majority opinion states, the physical evidence “indisputably established that defendant had unlawfully entered the apartment. The presence of his semen and his jacket in the victim’s bedroom were incontrovertible proof of his presence there, and it was undisputed that the victim’s family did not know him and therefore had not invited him to enter.” (Maj. opn. at p. 29.) Second, the prosecution proved beyond a reasonable doubt that defendant committed a felony-a lewd act upon a child under 14-after his entry into the apartment. As the majority opinion states, it is undisputed that the victim, a three-year-old child, was found in her bedroom by her mother. At the time, the victim was on her hands and knees on the floor, crying, with her underwear off. The victim had been wearing her underwear when her mother had put her to bed. Defendant’s semen was found on the carpet next to the victim’s underwear, and defendant’s jacket was nearby. “[T]he physical evidence left open no reasonable possibility that defendant had not committed a lewd act on the victim.” (Maj. opn. at p. 29.) In addition, two police officers reported that, on the night of the incident after they arrived at the apartment, the victim kept opening her mouth and pointing to it. When asked by her mother if anyone had put something in her mouth, the victim nodded and pointed to the front groin area of a doll.
My colleagues believe, nevertheless, that “[h]ad defendant’s confessions not been admitted, there is a reasonable possibility that defendant, who lived in the same apartment complex and apparently had a drinking problem, might have been able to create a reasonable doubt about his intent at the time of his entry based on evidence that he was intoxicated at that time and mistakenly wandered into the wrong apartment.” (Maj. opn. at p. 29.) I do not agree. No evidence was presented that defendant was intoxicated at the time of the incident other than by his confessions, and there was no evidence at all that he mistakenly wandered into the wrong apartment. As I stated above, the trial court admitted evidence of defendant’s Oregon sex offenses as Evidence Code section 1108 evidence, and found that “this is kind of cumulative evidence.” The Evidence Code section 1108 evidence was admitted on the issue of intent, and both the Oregon sex offenses and the 1998 prowling incident tended to show that defendant had a propensity or disposition to commit sex offenses against young children. Thus, the only evidence in the record of defendant’s intent when he entered the apartment was that he entered with the intent to commit a lewd act upon a child, and that he actually did commit a lewd act upon a child.
Based on my careful review of the witnesses’ statements, the physical evidence, and the Evidence Code section 1108 evidence contained in the record, I do not believe that there is a “reasonable possibility that the evidence complained of might have contributed to the conviction” on count 1 (§ 459, burglary). (Chapman, supra, 386 U.S. at p. 23.) The trial court made a “common sense” determination that defendant entered the victim’s apartment with the intent to commit a lewd act. Any different version of events is not plausible based on a reasonable and realistic assessment of the allegations and the facts. (See People v. Thompson (2006) 141 Cal.App.4th 1312, 1318-1319; People v. Sanderson (2010) 181 Cal.App.4th 1334, 1340-1341.) In light of the strong evidence that defendant committed a burglary by entering the apartment with the intent to commit a felony, I conclude that “the guilty verdict actually rendered in this trial [on the burglary count] was surely unattributable to the error.” (Sullivan, supra, 508 U.S. at p. 279.)
Conclusion
I would not reverse the convictions on counts 1 (§ 459, first degree burglary) and 4 (§ 288, subd. (a), lewd conduct), or the finding on the special allegation that the offense in count 4 was committed during a burglary (§ 667.61, subd. (d)(4)).
I would reverse the convictions on counts 5 (§ 288, subd. (b)(1), forcible lewd conduct) and 6 (§ 269, subd. (a)(4), aggravated sexual assault), and permit the prosecutor to retry those counts.