Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 147128
Pollak, J.
Defendant Damion Stuart appeals from his conviction for forcible oral copulation, rape, and possession of a firearm by a felon. He challenges only the admission at trial of certain statements he made to detectives investigating the crimes, arguing that his statements were taken in violation of the standards prescribed in Miranda v. Arizona (1966) 384 U.S. 436. We find no merit to this contention and therefore shall affirm.
Background
The victim testified that on December 9, 2002, she was 19 years old and living in Oakland. That afternoon she began to walk on 106th Street towards a friend’s house when she noticed that a car driving the other direction made a U-turn. The car pulled next to her and she saw that the driver, whom she identified as defendant, was alone in the car. He asked for her name, which she told him, and for her phone number. He asked if she wanted a ride, and she replied, “I don’t get in the car with people I don’t know.” Defendant then pulled a gun, pointed it at her, and told her to get in the car. He said, “I’m not playing. Get in the car.” She got in and sat in the passenger seat. Defendant drove to a dark area with big trees and fewer houses, and stopped the car. She was afraid. After he parked, defendant put the gun in the back seat of the car. Defendant pulled down his pants and told her “to suck his penis.” She complied because she felt “he was going to do something to me if I didn’t.” Defendant then climbed over to the passenger side of the car and forced her to have intercourse. He then “took a napkin and wiped” himself. He threw the napkin and a matchbook that he had used out of the car window. Defendant then retrieved the gun from the back seat, drove away, and dropped her off near where he had picked her up.
She walked home, told her father what had happened and called the police. Later that evening she took the police to the place where she had been assaulted, where the police recovered three tissues and a matchbook.
After arriving home, the victim was taken to Highland Hospital where she was given a physical examination. A physician’s assistant who performed a sexual assault examination testified that he recovered semen from her vagina that a DNA expert testified matched known samples from defendant. The expert also matched genetic samples from the tissues recovered at the crime scene. She testified that the chance that the semen came from someone other than defendant was one in 905 quadrillion, that the odds that one of the tissues came from someone other than defendant was one in 305,000, and that the odds that the DNA from the second tissue came from another person were one in 3.4 billion. The victim also identified defendant in a photographic lineup.
An amended information charged defendant with one count of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), with an enhancement for personal use of a firearm (Pen. Code, § 667.61, subd. (e)(4)), and an enhancement for kidnapping the victim (Pen. Code, § 667.61, subd. (d)(2)); one count of forcible rape (Pen. Code, § 261, subd. (a)(2)) with a kidnapping and firearm enhancement; one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) with allegations that defendant had suffered two prior felony convictions.
In her opening statement, defense counsel posited the defense’s theory that the victim’s “statements are implausible, inconsistent, don’t make sense, or did not literally occur” and that after hearing the evidence the jury would “find that my client is not guilty of these charges as the prosecution has not proved these charges beyond a reasonable doubt.”
Detective Jesse Grant testified that on June 16, 2003, he interviewed defendant, who was then an inmate at San Quentin prison. After reading defendant his Miranda rights, Detective Grant asked, “Do you understand each of these rights I have explained to you?” Defendant answered that he did. Grant then said, “Okay. And, I know you usually hear this when you’re under arrest. You’re not under arrest now. Okay. We just read it to you because, obviously, it’s not like you’re really free to go, either, because you’re here. Okay? [¶] . . . [¶] So, you’re not under arrest, you’re not gonna, you know . . . at the end of this interview, I’m not gonna say, ‘Oh, here’s your new charges. You’re going’ away for more time.’ Or something’ like that. I read it to you because, you know, you can’t walk out of here.” Defendant replied, “uh huh,” and Grant asked, “having these rights in mind, do you wish to talk to us now?” Defendant replied, “Sure.”
The jury was told only that defendant “had been in custody since the date of his probation violation [when a police officer] had recovered the gun from his . . . apartment.”
Defendant apparently signed a form waiving his Miranda rights. The form is referred to by the trial court, and was admitted into evidence.
In response to Grant’s questions, defendant acknowledged that he owned a .22 caliber gun, and stated that “I ain’t never pulled on nobody, or no cut, or at no gunpoint, or took ‘em to no dead-ends, or nothing’ like that.” Defendant stated that he had not had sex “in a car in so long” and that he had never had sex in San Leandro, where the victim told police the assault had occurred and where the police had recovered the physical evidence that linked defendant to the assault.
Defendant did not testify or introduce any evidence. The defense did, however, move to exclude his statements to Detective Grant. The trial court admitted the statements and the prosecutor relied heavily on those statements in his closing argument to infer defendant’s consciousness of guilt, precluding any possible speculation that the victim had consented to the sexual activity. At the outset he reminded the jury that a criminal defendant has the right to remain silent, but then stated, “this defendant, Mr. Stuart, chose not to remain silent and so what he said can and should be used against him. That’s because what you heard him do when he spoke to Detective Grant was lie, and his lies showed you a consciousness of guilt.” The prosecutor argued, “The power of the DNA evidence is that it changes the power of the discussion. And in this case, it puts the defendant in a terrible position, based on what he’s told the police officer; he’s cornered. When you couple the DNA evidence identifying him conclusively,” “[t]he multi-different ways they gave Mr. Stuart an opportunity to come clean in this case, and what he did in response to those opportunities, because his complete denial of sexual contact in this case relates to his consciousness of guilt. And so now it puts the defense in a position where you got to try and somehow discredit the victim, and suggest that either the sexual aspect of this case was consensual or at least on some level the prosecution has failed to prove that it was without consent, and so, the victim is attacked.”
Further on in his argument, he again raised the issue, telling the jury that it would be instructed on consciousness of guilt and then stating that defendant “had multiple opportunities to admit consensual sexual conduct if that’s all that happened. In other words, if the truth of the situation is it was unambiguous mutually consensual, why wouldn’t somebody just say, ‘I don’t know, officer. I did meet a girl at 106th and Bancroft, and we both had a good time, and is that the misunderstanding perhaps you are talking to me about?’ That’s what you do, if you didn’t commit the crime. He didn’t do that. They even offer him possible explanations. They were tossing him lines, ‘hey, maybe it was a prostitute that the guy picked up, and things kind of went wrong or maybe it was some girl he picked up and there was an argument and things went bad; maybe it was a toss up, meaning a woman of easy virtue . . . .’ [¶] . . . [¶] . . . And . . . he knew that two or three days before he went into custody on the gun thing that he had sex with Jane Doe, he knew that he raped her, that’s why he said what he said. They [threw] everything out at [him], sex in San Leandro, no; sex in the car, hmm, no. Interestingly, he was able to remember that the last sexual encounter that he had in the car was the year 2000. It’s funny that he could remember one that happened two and a half years earlier, but he couldn’t remember the one, two days before he went into custody. Is there some reason why he might not want to remember that or talk about that to the officers? So if his conduct was innocent in this case, why would he lie to officers the way he did? Because he committed the rape, that’s why; because he committed the oral copulation, that’s why. . . . Now, did the cops ever come in and show their hand to the defendant and say, hey, by the way, we got some DNA evidence that suggests that you really were this guy? Well, no. These investigators are trained to be smart investigators . . . You don’t go into something with somebody that you suspect of a crime and show your hand. They gave him every opportunity to talk about it in whatever context he chose to admit the sexual conduct . . . . They are providing him with a time frame and a description of conduct that gives him the opportunity if he wants to tell the truth or at least his side of the story to do so, and with that opportunity he fully and wholly commits to a lie that we have proven through the DNA evidence and the photo lineups. There’s only one reason he did that because he committed the crimes.”
The jury found defendant guilty of forcible oral copulation, rape, and being a felon in possession of a firearm and found all of the enhancement allegations to be true. The court sentenced defendant to 35 years to life imprisonment. Defendant timely noticed an appeal.
Discussion
Defendant argues that the statements he made to the police after his arrest should not have been admitted into evidence because they were made in the context of a custodial interrogation requiring a Miranda warning, and that the Miranda warning he was given was ineffective because of the detective’s statements that he would not be charged with additional crimes following the interview.
“In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda v. Arizona, supra, 384 U.S. 436, we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we ‘ “give great weight to the considered conclusions” of a lower court that has previously reviewed the same evidence.’ [Citations.] Because the crimes in this case occurred after the addition of section 28, subdivision (d) to article I of the California Constitution, the voluntariness of defendant’s waiver and confession must be established by a preponderance of the evidence.” (People v. Wash (1993) 6 Cal.4th 215, 235-236.)
“Before a suspect may be subjected to a custodial interrogation, he must be advised that he has the right to remain silent, that his statements can be used against him and that he has a right to consult with or have an attorney present. (Miranda v. Arizona, supra, 384 U.S. at pp. 467-471 . . . .) In Mathis v. United States (1968) 391 U.S. 1, 4-5 . . ., the federal high court extended these safeguards to prison inmates.” (People v. Fradiue (2000) 80 Cal.App.4th 15, 19.) “In formulating an appropriate test in a prison setting, the court [in Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424] recognized that the usual test of whether a reasonable person would have believed he was free to leave ceases to be useful. ([Id.] at p. 428.) Obviously, the inmate is not free to leave. The question must therefore shift to whether some extra degree of restraint was imposed upon the inmate to force him to participate in the interrogation. Four factors are significant in this inquiry: (1) the language used to summon the inmate for questioning, (2) the physical surroundings of the interrogation, (3) the extent to which the inmate is confronted with evidence of his guilt, and (4) the additional pressure exerted to detain him.” (People v. Fradiue, supra, at p. 20.)
Defendant argues that he “was in ‘custody for Miranda purposes.’ ” The trial court found itself “convinced by the . . . Macklem line of cases that Mr. Stuart is in a different situation than all of those cases. And that Miranda itself and the other case, Nipschmann, that I quoted from where the prophylactic forces of the Miranda admonition are really needed. And so applying the analysis set forth in Macklem to Mr. Stuart’s situation, as it was in state prison, I find that . . . restrictive application to Miranda is no longer needed. Therefore, I would find that the statements are, . . . if proffered, are admissible.” The trial court did not inquire into the circumstances surrounding the interview. It took no testimony concerning the language used to summon defendant, the physical surroundings of the interrogation, and whether any pressure was exerted to detain him. Nothing in the transcript of the interview indicates such restraints, but the burden was on the prosecution to prove that defendant’s statement was voluntary, and there is no evidence in the record to support a finding that defendant was not in custody for Miranda purposes. Nevertheless, whether defendant was in custody within the Macklem line of cases is academic since defendant was given a Miranda warning.
In People v. Nitschmann (1995) 35 Cal.App.4th 677, the defendant interrupted the police officer who attempted to advise him of his Miranda rights and recited those rights himself. The court concluded that the defendant’s statements were admissible because he “indicated he was aware of his Miranda rights and waived them.” (Id. at p. 682.)
The more pressing question is whether the detective’s advice that no new charges would be made against defendant as a result of his statements rendered his statements involuntary. “Miranda holds that ‘[t]he defendant may waive effectuation’ of the rights conveyed in the warnings ‘provided the waiver is made voluntarily, knowingly and intelligently.’ [Citation.] The inquiry has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” (Moran v. Burbine (1986) 475 U.S. 412, 421.) “In determining whether a defendant’s will was overborne in a particular case, the [United States Supreme Court] has assessed the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225-226.)
“It is axiomatic that the use in a criminal prosecution of an involuntary confession constitutes a denial of due process of law under both the federal and state Constitutions. [Citations.] In California, before a confession can be used against a defendant, the prosecution has the burden of proving that it was voluntary and not the result of any form of compulsion or promise of reward.” (People v. Jimenez (1978) 21 Cal.3d 595, 602, revd. on other grounds by People v. Cahill (1993) 5 Cal.3d 478, 509-510.) “It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied.” (Id. at p. 611.)
In People v. Coffman and Marlow (2004) 34 Cal.4th 1 (Coffman), the court rejected the defendant’s attempt to exclude statements he had made to the police after they promised him that what he said would not be used against him. The court found it significant that “for a considerable period after [the police officer] began to assure Marlow his statements would not be used, Marlow continued to resist disclosing [the victim’s] whereabouts or admitting he committed the offenses. His resistance, far from reflecting a will overborne by official coercion, suggests instead a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information.” (Id. at p. 58.)
In People v. DePriest (2007) 42 Cal.4th 1, 35, the court held that a detective’s promise that the “defendant’s statements could not be used in the ‘case-in-chief’ was only true as far as it went; he did not specifically mention the converse principle that such statements might be used for impeachment. However, there is no evidence that defendant, a convicted felon, did not understand [the detective’s] point, or that detectives otherwise mischaracterized the interview as wholly ‘off the record.’ ” Likewise in People v. Jablonski (2006) 37 Cal.4th 774, 811, the court found that the defendant’s statements were not involuntary where the police told defendant “You know that we can’t use any of this stuff against you in a court of law. This tape will never be heard by anybody except us.” The Jablonski court compared the case to its decision in People v. Coffman and Marlow, supra, 34 Cal.4th 1 and reasoned that “The factors that supported a finding of voluntariness in Coffman are even stronger here. Neither the length nor physical circumstances of defendant’s interrogation appear to have been coercive; the interrogation was spread over a four-hour period from midmorning to midafternoon with a refreshment break and a lunch break. Nor was the tone of the questioning as evidenced in the transcript particularly harsh or accusatory-indeed, defendant argues that the ‘excessive’ friendliness of the interrogators should be deemed a factor in favor of finding involuntariness. While, as in Coffman, the police at one point falsely represented to defendant that his statement could not be used against him in court, defendant’s response was to again request a lawyer. Thus, he made no incriminating statement that can be attributed to the false representation.” (People v. Jablonski, supra, at p. 815.)
Applying this analysis to the case at hand, defendant’s claim that his statement was involuntary fails. First, he did not confess to any wrongdoing. As in Coffman, defendant did not make an incriminating statement in response to the representation that he would not be charged, but rather denied any contact with the victim. There is certainly no evidence that the questioning or tactics were coercive or that defendant’s will was overborne. Moreover, defendant had an extensive juvenile and adult criminal history, which is relevant to show that defendant was “perfectly capable of ‘calculat[ing] his self-interest in choosing whether to disclose or withhold information.’ (Coffman, supra, 34 Cal.4th at p. 58.)” (People v. Jablonski, supra, 37 Cal.4th at pp. 815-816.)
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Jenkins, J.