Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA104271, Robert J. Higa, Judge.
Lawrence R. Young & Associates and Lawrence R. Young for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Juan Antonio Sepulveda appeals from his conviction by jury verdict of murder, possession of a firearm by a felon, and infliction of corporal injury on the mother of his child. He argues that his confession should have been excluded because he was not given a timely Miranda warning. Appellant also claims the court erred in admitting references to his incarceration in a transcript of his interview with detectives. Finally, he claims his right to confront and cross-examine witnesses was violated when statements made by two witnesses were played for the jury.
Miranda v. Arizona (1966) 384 U.S. 436.
Appellant forfeited the Miranda argument because that objection was not raised in the trial court. In any event, we find an implied waiver of his rights and that his statement was uncoerced. The admission of the references to appellant’s incarceration were not prejudicial. There was no confrontation clause violation.
FACTUAL AND PROCEDURAL SUMMARY
Appellant and Rosemary Arellanes had a volatile relationship. They began living together off and on in 2004. They had a daughter together who was three years old in October 2007. There had been two prior episodes of domestic violence inflicted on Arellanes by appellant. On Halloween afternoon, 2007, appellant dropped Arellanes off at the Walmart where she worked. Arellanes lied to appellant and did not have a work shift that day, but planned to go to a party with him and their daughter later. At the Walmart, Arellanes encountered a coworker, Alberto Garcia, and went to lunch with him. She ended up spending the night with Garcia, ignoring multiple telephone calls from appellant. Appellant confronted Arellanes at Walmart the next morning, claiming he knew she had been with Garcia, and asking Garcia’s whereabouts. Two other workers witnessed appellant confront Garcia and threaten him. Police officers were called to the store because of appellant’s behavior. Appellant was told he was not welcome in the store and that he would be arrested if he appeared there again.
Between October 31 and December 2, 2007, Arellanes was involved with both appellant and Garcia. She spent nights with each at various times. Appellant threatened to kill Garcia, and told Arellanes that if he saw her with another man, he would kill her and the rival. On November 29, 2007, Arellanes called appellant to give her a ride home. After picking her up, appellant started driving to another location and she tried to get out of the car. He reached over to stop her and accidentally hit her in the face, giving her a black eye.
On the afternoon of December 2, 2007, appellant gave Arellanes a ride to work for her 3:00 p.m. to midnight shift. She told him she already had a ride home arranged. At the end of her shift, appellant called to say he was outside. When Arellanes told him she was working until 2:00 a.m., appellant said he would return at that time. She told him not to because she had another ride. Garcia gave Arellanes a ride home at 2:10 a.m. Fearing appellant was outside, they left the store by different doors. Garcia drove Arellanes to a relative’s home, stayed for five minutes, then returned to finish his shift at Walmart. During this time, appellant was calling Arellanes, who did not answer. At 2:46 a.m. she answered a call from appellant, who demanded to know where she was. When she said she was at home, appellant asked who had given her a ride. He told Arellanes not to lie when she said her cousin had picked her up. He said Garcia had given her a ride.
At 2:58 a.m., a police officer responding to a call found Garcia dead from gunshot wounds in a car which had crashed through an intersection light pole before coming to a rest on the sidewalk. Cell tower information showed a pattern of calls from appellant to Arellanes on the night of the shooting. The cell tower where his 2:56 a.m. call was initiated was the closest tower to the intersection where Garcia’s car crashed. Ballistics evidence established that casings found at the scene were nine-millimeter Luger cartridges manufactured by Remington, fired from the same gun. Projectiles found in Garcia’s body, except one which could not be compared, were fired from the same gun. No gun was recovered, but bullets capable of being fired from the same gun were found in a box brought to the police by appellant’s other girlfriend. Appellant had called her after he was arrested and told her to get rid of the box holding those bullets. Instead, she brought the box to detectives.
Appellant was arrested and interrogated about Garcia’s murder. He was convicted of: first degree murder (firearm enhancements also were found true) as to the death of Garcia (count 1, Pen. Code § 187), possession of a firearm by a felon (count 2, § 12021, subd. (a)(1)), and corporal injury to Arellanes (§ 273.5, subd. (a)). Appellant was sentenced to a term of 50 years to life on the murder charge with sentences on the other two counts to be served concurrently. This timely appeal followed.
Statutory references are to the Penal Code unless otherwise indicated.
DISCUSSION
I
Appellant argues his admissions during police interrogation should have been suppressed because the Miranda warning was not given until mid-way through the interrogation. He also asserts that he did not voluntarily, knowingly, and intelligently waive his rights and was not asked whether he understood and waived his rights. Throughout the interrogation, appellant denied involvement in the Garcia murder and never confessed.
“Miranda v. Arizona, supra, 384 U.S. 436, and its progeny protect the privilege against self-incrimination by precluding suspects from being subjected to custodial interrogation unless and until they have knowingly and voluntarily waived their rights to remain silent, to have an attorney present, and, if indigent, to have counsel appointed. [Citations.] ‘If a suspect indicates “in any manner and at any stage of the process, ” prior to or during questioning, that he or she wishes to consult with an attorney, the defendant may not be interrogated.’ (People v. Crittenden (1994) 9 Cal.4th 83, 128, italics omitted, quoting Miranda v. Arizona, at pp. 444-445.) Once the right to counsel has been invoked, further questioning is forbidden until counsel has been provided, ‘unless the suspect personally “initiates further communication, exchanges, or conversations” with the authorities.’ [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 384.)
At trial, when the prosecution was about to play the tape recording of appellant’s interrogation to the jury, defense counsel interrupted, saying he wanted an offer of proof. The court asked counsel what the issues were on which an offer of proof was requested. Defense counsel responded, “Admissions.” He elaborated that appellant did not make any admissions during the interrogation, although there were contradictions. The prosecutor argued that appellant’s statements were admissible. At no point during this colloquy did counsel for appellant raise an issue about Miranda rights.
Appellant has forfeited the claim by failing to object on Miranda grounds in the trial court. In People v. Ray (1996) 13 Cal.4th 313, the Supreme Court explained the reason for this rule, observing that as a result of not raising the argument “the parties had no incentive to fully litigate this theory below, and the trial court had no opportunity to resolve material factual disputes and make necessary factual findings. Under such circumstances, a claim of involuntariness generally will not be addressed for the first time on appeal. [Citations.]” (Id. at p. 339; see also People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 419, fn. 22.) We disagree with appellant’s characterization of the forfeiture rule as “far from a settled question.” The rule is well-established by the Supreme Court and we are bound to follow that precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In addition, appellant cites the federal plain error doctrine allowing review of erroneous rulings for plain error where no objection has been made. California courts apply the forfeiture rule and do not apply the plain error doctrine. (See People v. Redd (Apr. 29, 2010, S059531) __ Cal.4th __ [2010 WL 1709375]; People v. Dykes (2009) 46 Cal.4th 731, 757.)
In any event, the evidence establishes an implied waiver of appellant’s rights under Miranda. “[A] suspect who desires to waive his Miranda rights and submit to interrogation by law enforcement authorities need not do so with any particular words or phrases. A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision. [Citation.] We have recognized that a valid waiver of Miranda rights may be express or implied. [Citations.] A suspect’s expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights. [Citations.]” (People v. Hawthorne (2009) 46 Cal.4th 67, 86.)
At the outset of the interrogation, appellant was asked his name, about his tattoos, his age, address, cell phone number, prior addresses, and work history. He was asked whether he had gang affiliation tattoos, and appellant denied any gang affiliation. At that point, appellant said, “Um, can I begin the questions, sir, if you guys don’t mind?” Appellant said he had been arrested before. One of the detectives said he would read appellant his rights and “that way we can have an open dialogue and, uh, I hope we can answer any questions that you have. Are you willing to do that?” Appellant answered, “Yes, sir, ” then asked, “My rights, these are the ones that get read all the time?” The officer said right.
The detective then admonished appellant, “You have the right to remain silent, “do you understand?” Appellant answered, “Yeah, so it means after this, be quiet, right?” The detective then said, “Anything that you say may be used against you in court, do you understand?” Appellant said, “Yes.” Appellant said he understood he had a right to an attorney during questioning and that one would be appointed before questioning if he could not afford an attorney. The detective then said, “Because you showed me a desire, ... I can assume that you want to talk to us about why you’re here and all that?” Another detective interrupted and said, “We want to ask you some questions.” Appellant said, “Yeah” and then “Yeah, I just want to know why I’m here.” One of the detectives then asked appellant what happened to him that day. Appellant immediately launched into an account of his activities.
The totality of the circumstances establish an implied waiver by appellant of his Miranda rights. In addition to his statements acknowledging his rights, he was on probation at the time of his arrest and had several other prior arrests, all of which support the inference that he was familiar with his rights. He never asked for an attorney or sought to end the interview. We find no error in admitting his taped statement to detectives.
Appellant also claims his statement to detectives was not voluntary, arguing, “In the case at bar, the detective never offered the Defendant any opportunity to respond to the warning but simply launched into questioning him.” Again, we note that the interview played to the jury did not contain a confession to the crimes. Under the Fourteenth Amendment to the federal Constitution, a defendant’s involuntary confession may not be used by the prosecution. (People v. Holloway (2004) 33 Cal.4th 96, 114.) We apply a totality of circumstances test to determine the voluntariness of a confession. (Ibid.) Since appellant did not raise any issue about voluntariness in the trial court, we have no factual findings by the trial court to guide our analysis. “‘In determining whether a confession was voluntary, “[t]he question is whether defendant’s choice to confess was not ‘essentially free’ because his will was overborne.”’ [Citation.]” (Ibid.)
Here, as in Holloway, there is no claim of physical intimidation or deprivation, and no assertion of coercive tactics other than the detective’s failure to pause after giving the Miranda warnings before substantive questions were asked. Under the totality of the circumstances, appellant’s statement was voluntary.
II
Appellant claims he was prejudiced because the jury heard several statements by detectives on the recording of their interview with him to the effect that he was in jail or would have to remain in jail. This argument is unsupported by citation to the record on appeal, and for that reason it may be treated as abandoned. (People v. Stanley (1995) 10 Cal.4th 764, 788, fn. 4.) Respondent reviewed the 143 page transcript of the interview and points to seven pages with statements in which the detectives noted that appellant was in jail or would be spending the night in jail after the interview ended. Appellant argues that because the jury heard this interview, he was “cloaked” in an “air of guilt, ” citing Estelle v. Williams (1976) 425 U.S. 501, which condemned compelling prisoners to stand trial in prison or jail attire.
We find neither error nor prejudice. It was reasonable for the jury to infer that appellant was incarcerated after his arrest given the seriousness of the charges against him. Estelle v. Williams, supra, 425 U.S. 501 is distinguishable because in that case, the defendant wore identifiable prison clothing throughout his trial by jury. The brief references to appellant’s present or future incarceration did not rise to the level of prejudicial error.
III
Finally, appellant claims his right to confrontation was violated when the jury was allowed to hear transcripts of tape recorded interviews of witnesses Joseph Llamas and Brian Castro because his attorney was not present during their interrogations.
Appellant did not raise this objection at trial and therefore has forfeited the issue. (People v. Redd, supra, ___ Cal.4th ___ [2010 WL 1709375].) As we explain, even if the issue had been preserved, no Confrontation Clause violation was demonstrated.
At trial, Joseph Llamas testified that he was a good friend of appellant. He said that during his interview by detectives, he told them what they wanted to hear. He admitted he was in custody while testifying at trial because he did not want to testify. He also was arrested for failing to obey a subpoena to testify at the preliminary hearing. Llamas was evasive about a telephone call with appellant in December 2007. He denied certain inculpatory statements made by appellant or said he could not recall. A recording of Llamas’ interview with detectives was played to the jury. After the tape was played, Llamas again said he had no recall of appellant making incriminating statements to him about a confrontation with Garcia or appellant saying he was in a situation and did not know what to do.
On cross-examination, Llamas testified that he was interviewed by police at his new job for nearly two hours. He said he was agitated because he feared losing the job. He never was advised of his rights by the officers. Llamas felt his back was against the wall and said the detectives threatened to arrest him and charge him as an accessory.
Brian Castro was actively hostile to the prosecution. He testified that appellant was a friend. He then refused to answer questions by the prosecutor, saying repeatedly that he “ain’t testifying shit.” When asked whether he would answer any of the prosecution’s questions, he said, “Nope.” When the court ordered him to answer, Castro said, “I don’t remember.” He claimed he was unable to recall hanging out with appellant or being arrested with him at a barbershop in December 2007. He said, “I don’t fucking remember shit.” Castro testified that he did not recall speaking with the detectives. When asked about specific statements to the detectives concerning appellant’s involvement in the Garcia murder, Castro said he did not remember or did not know. He admitted having a felony conviction.
A recording of an interview of Castro by detectives was played for the jurors, and they were given a transcript. When it started, Castro denied that it was his voice on the recording, and said he was under the influence of PCP. Castro profanely refused to remain in the courtroom while the recording was played. Both the prosecution and defense objected to having Castro removed while the recording was played. The jury then was dismissed while the judge addressed Castro. Castro again denied it was his voice on the recording. The court strongly admonished him that he would have to be present in the courtroom while the recording was played, and that the sheriffs would be present. The remainder of the recording was played with Castro in the courtroom.
Castro was cross-examined by counsel for appellant. He said he was 17 at the time of the interview and that he did not recall much about it because he was high on PCP. He testified he did not want to be in court because it was not him on the recording and he did not know anything. When defense counsel tried to clarify, Castro explained, “I was going along” and said he went along with what the detectives told him to go along with.
Castro said that he was threatened with being charged as an accessory from the outset of the interview. He did not know what the officers were going to do with him. His parents were not present and he was not advised he could have an attorney. He answered all the defense questions, saying that what he had heard about the crime did not come from appellant, it was the word on the street. He did not know anything about a gun, and never saw appellant with one. Castro said appellant never talked about killing someone.
On redirect, Castro was asked whether he told the detectives that appellant told him “he blasted someone over his bitch.” Castro said, “From what I heard on the tape.” He explained that the detectives had given him this information. He denied that appellant made other incriminating statements. According to Castro, he probably was not truthful with the detectives because he was too messed up. He got the information contained in the transcript from the detectives. He said he did not know what happened.
The United States Supreme Court addressed this situation in Crawford v. Washington (2004) 541 U.S. 36: “[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162 (1970). It is therefore irrelevant that the reliability of some out-of-court statements ‘“cannot be replicated, even if the declarant testifies to the same matters in court.”’ Post, at 1377 (quoting United States v. Inadi, 475 U.S. 387, 395). The clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” (Id. at p. 59, fn. 9; People v. Redd, supra, ___ Cal.4th ___ [2010 WL 1709375].)
Here, both Castro and Llamas were present at trial for cross-examination by the defense. While they were uncooperative or hostile to the prosecution, they gave testimony which was generally favorable to the defense. We find no violation of appellant’s rights under the confrontation clause.
DISPOSITION
The judgment of conviction is affirmed.
We concur: WILLHITE, J.MANELLA, J.