Opinion
G054566
01-26-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO RAMOS, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15NF0199) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Roberto Ramos of orally copulating a child. In this appeal, defendant argues that the trial court improperly admitted his confession. Defendant contends that during the first part of a police interview he was subject to a custodial interrogation without the protections of Miranda. Defendant further contends that the police engaged in a deliberate two-step strategy designed to undermine the protections of Miranda. (Missouri v. Seibert (2004) 542 U.S. 600 (Seibert).)
We disagree and affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
On March 19, 2014, at about 7:30 p.m., I.P. left her apartment in Anaheim. I.P. had left her five-year-old son, Ryan, in the care of her 26-year-old cousin, defendant, who lived with I.P. and Ryan. When I.P. returned home about a couple of hours later, Ryan told I.P. that defendant had touched his penis. Ryan also lowered his pajamas and made motions with his head and mouth indicating that he had been orally copulated. I.P. noticed that Ryan was not wearing underwear, which was unusual.
I.P. first took Ryan to a friend's house, and then to the police station. At the station, Ryan was crying and did not talk or answer any questions. Ryan was taken to a medical center for a sexual assault examination. A swab was taken from Ryan's penis, which later revealed the presence of amylase, a component of saliva; DNA testing could not exclude defendant as a contributor.
Anaheim Police Officer Happy Medina, a fluent Spanish speaker, was dispatched to defendant's apartment to assist in a sexual assault investigation. Officer Medina asked dispatch "to send two officers to that location in an attempt to contact and detain the subject." Before Medina arrived, "I was notified, I believe by radio, that [defendant] had, in fact, been contacted in the apartment and had been detained." When Medina entered the apartment, defendant was seated in a chair in the living room of the apartment. Medina assumed that one of the two officers who were present had "ordered or told" defendant to sit down, although neither officer spoke fluent Spanish. Medina was not sure how long the officers had been there before he arrived. Defendant was not handcuffed. The front door of the apartment remained open.
After telling defendant that he was "not under arrest," Officer Medina began the interview. During the interview, one of the officers stood next to Officer Medina; he recorded the interview and took notes. The other officer was coming in and out of the living room. After an initial denial, defendant said that he had put his mouth on Ryan's penis and had sucked on it. Defendant also said that Ryan had put his mouth on defendant's penis and kissed it. At this point in the interview, Officer Medina went outside and spoke to a sergeant over the phone.
Officer Medina reentered the apartment. Medina told defendant that, "I want to ask you more questions. Okay?" Medina confirmed that defendant had sucked Ryan's penis and that Ryan kissed defendant's penis. Medina said, "This is a crime. You can't do this." Medina told defendant, "Okay, but I want to ask you more questions but the law says I need to read your rights." Officer Medina then read each of the Miranda warnings, confirmed that defendant understood them, then asked, "Do you want to speak about . . . what happened?" Defendant responded, "Right now, yes." Medina said, "I'm going to ask you like . . . the same questions, okay?" Medina then asked defendant more detailed questions about the alleged incident with Ryan.
Court Proceedings
On July 13, 2015, the Orange County District Attorney filed an information alleging defendant had committed two counts of oral copulation or sexual penetration with John Doe, a child 10 years of age or younger. (Pen. Code, § 288.7, subd. (b).)
On November 7, 2016, a jury trial began. The district attorney filed a motion to admit defendant's "pre- and post-Miranda statements." The district attorney argued that defendant was not subject to custodial interrogation prior to the Miranda warnings, that his post-Miranda statements were properly obtained, "and the police conduct did not violate the United State's Supreme Court ruling in [Seibert, supra, 542 U.S. 600]."
Officer Medina testified at a pretrial hearing. Medina said that at the beginning of the interview he thought that he did not have the "power" to arrest defendant because, "We had only had Victim Doe's allegations." Medina said that he was there to get defendant's statement. Medina said that after he advised the sergeant of what was occurring, Medina decided to arrest defendant. Medina testified that he had never been trained on a deliberate "two-step interview technique" and that he had only learned of the technique when he spoke to the prosecutor before the hearing.
The court ruled that, "In reviewing the transcript, as well as the interview itself, I don't believe the first interview amounts to a custodial interrogation. It is in his own apartment. As [the prosecutor] stated, the officers were congenial in their speaking to the defendant. They never threatened him. There was no involuntariness at all. He was told he was not under arrest and not handcuffed, sitting at the table. So it was not a custodial interrogation. [¶] Obviously, after he was advised of his rights and placed under arrest, there is a sufficient waiver of those rights. So, both interviews would be admissible."
The jury convicted defendant of one of the counts and acquitted him of the other. The trial court imposed a prison sentence of 15 years to life.
II
DISCUSSION
"No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." (U.S. Const., 5th Amend., italics added.) "The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion." (Oregon v. Elstad (1985) 470 U.S. 298, 306-307.) "Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda." (Id. at p. 307.) A. The first portion of defendant's interrogation was not custodial.
Defendant argues that he was subjected to a custodial interrogation during the initial portion of Officer Medina's interview that occurred prior to the Miranda warnings and waiver. We disagree.
Generally, an officer must warn a suspect of his or her colloquial "Miranda rights" only when the suspect is subjected to a "'custodial interrogation.'" (People v. Mickey (1991) 54 Cal.3d 612, 648; People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) The test for when a suspect is in custody is objective; the question is whether there was a formal arrest or a restraint on the freedom of the suspect's movement to the degree associated with a formal arrest. (People v. Stansbury (1995) 9 Cal.4th 824, 830.) The analysis is "whether a reasonable person in defendant's position would have felt he or she was in custody." (Ibid.) The United States Supreme Court has instructed that "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." (Berkemer v. McCarty (1984) 468 U.S. 420, 442.)
An appellate court's determination of whether a suspect was in custody for Miranda purposes is a mixed question of fact and law. (See People v. Cromer (2001) 24 Cal.4th 889, 894-895.) Mixed questions of fact and law that implicate constitutional rights are subject to independent review, but reviewing courts apply a deferential standard of review to the trial court's factual findings. (Ibid.)
"Courts have identified a variety of relevant circumstances [to determine custody]. Among them are whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom; whether there were restrictions on the person's freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation." (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
"Although the circumstances of each case must certainly influence a determination . . . , the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." (California v. Beheler (1983) 463 U.S. 1121, 1125.) However, a temporary detention does not ordinarily constitute a custodial interrogation. (People v. Clair (1992) 2 Cal.4th 629, 679 [a temporary detention "allows 'the officer . . . [to] ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions'"].)
Here, before Officer Medina arrived at defendant's apartment, he had asked two other officers to detain defendant, who was at that point a suspected child molester. Although neither of those two officers testified at the suppression hearing, presumably defendant was not free to leave his apartment. However, we agree with the trial court's analysis. That is, we find that defendant was subject to a temporary detention, not a custodial interrogation, prior to his formal arrest and waiver of his Miranda rights.
Much like the trial court, we find it significant that Officer Medina told defendant at the outset of the interview that he was not under arrest. Other additional factors weigh in favor of a noncustodial interrogation: the questioning was indeed "congenial," as stated by the trial court; the questions were phrased in a nonthreatening manner; the fairly brief interview also took place in the relative comfort of defendant's own home and the front door was apparently left open during the entire interview; defendant was not handcuffed; and finally, the presence of one other police officer next to Officer Medina, who took notes and recorded the interview, does not suggest that the interview was unusually domineering or controlling. Based on the totality of these objective circumstances, we find that defendant was not in formal custody or its functional equivalent prior to the Miranda warnings and waiver.
In sum, this was not the type of coercive interrogation that Miranda warnings were designed to alleviate. Thus, defendant's unwarned statements were properly admitted. B. The holding of Seibert is inapplicable under these facts.
Defendant argues that his second set of statements after his waiver of his Miranda rights was elicited as part of a deliberate two-step technique that violated the United States Supreme Court's holding in Seibert, supra, 542 U.S. 600. We disagree.
It should be noted that defendant arguably forfeited a "Seibert claim" for purposes of this appeal. Although the prosecution moved to admit defendant's statements, defendant never moved to exclude his statements, nor did his counsel argue or seek a ruling from the trial court on Seibert grounds. (See People v. Lewis (2008) 43 Cal.4th 415, 481 ["Failure to press for a ruling on a motion to exclude evidence forfeits appellate review of the claim because such failure deprives the trial court of the opportunity to correct potential error in the first instance"], disapproved on another ground by People v. Black (2014) 58 Cal.4th 912, 919-920; see also People v. Morris (1991) 53 Cal.3d 152, 195 [defendant forfeited appellate challenge to admission of testimony by failing "to press for" a ruling "until he obtained one"], overruled on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Nevertheless, we will review the merits of defendant's Seibert claim, thereby forestalling any potential future ineffective assistance of counsel claims. (See People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [court addressed forfeited issue thereby forestalling claim of ineffectual counsel]; see also 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Reversible Error, § 43, p. 574 ["The fact that a party, by failing to raise an issue below, may forfeit the right to raise the issue on appeal does not mean that an appellate court is precluded from considering the issue"].)
Under Seibert, supra, 542 U.S. 600, police officers cannot employ a deliberate two-step interview process intentionally designed to weaken the protections of Miranda. In Seibert, police officers arrested the defendant and took her to the station. Without Miranda warnings, the police questioned the defendant for 30 to 40 minutes, during which time she made incriminating statements. (Id. at pp. 604-605.) After a 20-minute break, the officers read the defendant her Miranda rights and obtained a written waiver. (Id. at p. 605.) The officers then asked the defendant essentially the same questions in order to extract the same admissions she had previously made. (Id. at p. 606.) At the suppression hearing, the officer testified that "he made a 'conscious decision' to [initially] withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question 'until I get the answer that she's already provided once.'" (Id. at pp. 605-606.)
The United States Supreme Court invalidated this two-step approach in which police officers would deliberately obtain a confession from a person during a custodial interrogation without Miranda warnings, then obtain the same statements after Miranda warnings had been given. (Seibert, supra, 542 U.S. at pp. 613-614.) Rejecting the state's contention that the defendant's eventual waiver removed the taint of the earlier Miranda violation, the court held that the "midstream recitation of warnings after an interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement." (Id. at p. 604.) However, when there is no evidence that the police have deliberately used this two-step approach to circumvent Miranda, the Seibert holding does not apply. (See People v. Rios (2009) 179 Cal.App.4th 491, 504-505; see also In re Kenneth S. (2005) 133 Cal.App.4th 54, 66 ["Unlike in Seibert, here there was no evidence of any protocol used in eliciting respondent's confession"].)
Here, the facts of this case do not resemble those in Seibert. Unlike the interrogating officer in Seibert, Officer Medina never testified that he deliberately engaged in a two-step process designed to circumvent Miranda. In fact, Medina said that he was unaware of this strategy until the prosecutor discussed it with him.
But more importantly, we have already concluded that defendant was not in custody or its functional equivalent during that portion of the interview that took place prior to the Miranda warnings. Thus, lacking a threshold violation of Miranda during any portion of defendant's interview—which was central to the Supreme Court's rationale—the holding of Seibert is simply inapplicable to the facts of this case. (See Seibert, supra, 542 U.S. at p. 612, italics added ["there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment"]; see also United States v. Thompson (7th Cir. 2007) 496 F.3d 807, 811 ["In this case, Miranda warnings before the first confession were not required because [the defendant's] first interview was not custodial; Seibert therefore does not apply"]; United States v. Stuemke (S.D. Ohio 2006) 493 F.Supp.2d 990, 995-996 ["[Miranda] warnings must be given before subjecting a suspect to a custodial interrogation. Nothing in Seibert remotely suggests that the Supreme Court altered the Miranda rule to require the warnings also be given before interrogating a suspect who the officers know is not in custody"].)
In sum, there was no violation of defendant's constitutional right to remain silent. The trial court properly admitted defendant's statements to the police.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).