Opinion
No. A142775
01-30-2018
THE PEOPLE, Plaintiff and Respondent, v. JAVIER VARGAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-120147-4)
Defendant Javier Vargas seeks reversal of a judgment of conviction entered after a jury found him guilty of certain sex crimes. He argues that the trial court improperly reconsidered its pre-trial order granting his motion in limine and barring the prosecution from introducing in its case in chief his statements to a detective the day after he was arrested. He also contends that the court erred when it reversed its previous ruling and later, during trial, denied defendant's own suppression motion. Defendant contends there was not sufficient reason for the court to reconsider its initial order nor sufficient evidence that he effectively waived his right to remain silent under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We disagree. The court acted within its discretion to reconsider its initial order and there was sufficient evidence that defendant effectively waived his Miranda rights. Therefore, we affirm.
BACKGROUND
In January 2014, the Contra Costa District Attorney filed a first amended information charging defendant with committing a forcible lewd act upon Jane Doe I, a child under the age of 14 (Pen. Code, § 288, subd. (b)(1) ) with substantial sexual conduct (§ 1203.066, subd. (a)(8); count one); sexual penetration of Jane Doe I, a drugged person (§ 289, subd. (e); count two); furnishing marijuana to Jane Doe I, a minor (Health & Saf. Code, § 11361, subd. (a); count three); engaging in unlawful sexual intercourse with Jane Doe II, a non-spouse and minor more than three years younger than defendant (§ 261.5, subd. (c); count four); sexual penetration of Jane Doe II, a minor (§ 289, subd. (h); count five); and furnishing marijuana to Jane Doe II (Health & Saf. Code, § 11361, subd. (b); count six).
All statutory references are to the Penal Code unless otherwise indicated.
As established at trial, these charges related to events that occurred on January 22, 2011, when defendant, two other males and Jane Doe I and Jane Doe II, ages 13 and 14 respectively at the time, spent an evening in places around Richmond, California. Jane Doe I later alleged that defendant sexually assaulted her in a car. Richmond police arrested defendant and he spent the night in a holding cell. The next morning, Richmond Police Department Detective Timothy Gray interviewed him for about an hour and defendant made certain incriminating statements about the incident.
I.
The Trial Court's Initial Order Denying Defendant's Motion In Limine.
In April 2014, shortly before trial was to begin, defendant moved in limine based on Miranda to suppress his statements to Gray. The court conducted a "Miranda" hearing. Gray testified for the prosecution that he interviewed defendant in an interview room after identifying himself as a police department officer and reading defendant his Miranda rights from an admonishment card. Defendant indicated he understood his rights, was willing to talk and did not ask for an attorney. Gray recorded the interview. The court listened to the first part of it.
Defendant testified that he was arrested one late afternoon or early evening, taken to the Richmond Police Department, fingerprinted and put in a holding cell. Other arrestees in the cell told him to make sure he talked to his lawyer first. Officers came to the cell and asked him if he wanted to speak about his case. Defendant asked for a lawyer. The officers asked him about his tattoos, told him to "sit tight" and said he might be transferred to Martinez. Defendant, asked at the hearing, "Now, what happened—what did you do after that?," said he went back to his bunk, fell asleep and spent the night in the holding cell. The next morning deputies dressed all in black brought him to an interview room to speak with a man who was dressed in a suit and tie. The man might have introduced himself as "Detective Gray," but defendant did not "really remember" because "[i]t was a long time ago"; he was only sure that Gray introduced himself by name. Defendant assumed Gray was a public defender because defendant had asked for a lawyer the previous day. Defendant had never been arrested before and had no idea that his lawyer would not read him his Miranda rights. He did not ask Gray about what might happen next, to contact any family or friends or what type of charges were made against him. He did not recall telling Gray that on the night of the incident, he bought liquor for the group, had sex with Jane Doe 2 and touched Jane Doe I in a sexual way.
On rebuttal, Gray testified that defendant said during the interview that he purchased alcohol for the group on the night of the incident, that Jane Doe 2 leaned over and began kissing him and that he removed his penis from his pants as Jane Doe 2 got on top of him. Defendant also said he reached down Jane Doe 1's pants, rubbed his hand on her vaginal area and inserted his fingers into Jane Doe 1's vagina, and that he knew it was wrong to have sex with the girls. Gray testified that he wrote in his report of the interview that he introduced himself as a police detective to defendant and asked defendant for some additional background information before telling defendant his Miranda rights.
Defense counsel argued that defendant invoked his Miranda rights the night before Gray interviewed him and did not make a voluntary, knowing waiver of those rights during the interview because he thought he was talking to his attorney. The prosecution argued defendant's contentions that he invoked his Miranda rights and thought Gray was his attorney were not believable.
The court issued a "split decision." It found defendant's account of what happened in the holding cell "had a ring of truth to it," noted there was no contrary evidence and concluded that defendant invoked his Miranda rights that night. However, it found defendant "lied" that he did not remember whether Gray identified himself as a police officer, found defendant's claimed misunderstanding of Gray's role was "fatuous and ridiculous," and found Gray was credible in describing the procedures he used in talking with defendant. Therefore, although defendant had previously invoked his Miranda rights, he voluntarily made his statements to Gray. His statements were not admissible in the prosecution's case-in-chief, but were admissible as impeachment if defendant testified.
The court's ruling was consistent with Harris v. New York (1971) 401 U.S. 222, which permits admission of a defendant's improperly obtained statements for impeachment purposes. (See People v. Hopson (2017) 3 Cal.5th 424, 463-464.)
The prosecutor commented that defendants could always say they invoked their Miranda rights to some imaginary officer before an interview. The court replied that the prosecution could have investigated who was with defendant in the holding cell. When the prosecutor responded that he had no notice of defendant's contention, the court replied that the prosecution could have asked for a continuance but did not.
II.
The Court's Reconsideration of Its Initial Order
Several days later, after the jury was selected but before the trial began, the prosecution orally requested that the court reconsider its ruling. The prosecutor said he had located the person who booked defendant into the jail and learned who was working there at the time. The court said it "would much rather have a record fully developed" but that it was not its "job to present the record." It again noted that the prosecutor had not previously asked for a continuance. It asked the prosecutor for legal authority establishing that the court had "the discretion to reopen a hearing on which a final order has been issued for the basis of receiving additional evidence." The prosecutor said he would research the issue.
A day or two later, the prosecutor filed a memorandum with the court stating that in criminal matters, a "court has the power to reconsider its own ruling as an 'inherent court power,' " citing People v. Castello (1998) 65 Cal.App.4th 1242 (Castello). The court was only required to exercise "due consideration" before modifying, amending or revoking a prior order. The prosecutor also contended that Code of Civil Procedure section 1008, a civil statute that required a satisfactory explanation why new evidence had not been previously presented before a court could reconsider a previous order, did not control in criminal cases, although it did provide "some guidance in ruling on whether or not to reconsider a prior ruling." The prosecutor asked the court to exercise its discretion to allow him to present two additional witnesses that the prosecutor did not know about at the time of the previous hearing, Jailer Cheryl Odom and defendant's booking officer, Officer Joseph Pineda. Odom would testify that jailers wore blue uniforms rather than the black uniforms worn by officers and did not ask inmates if they were willing to make a statement. Officer Pineda would testify that if an inmate booked on sexual assault charges requested an attorney, Pineda would advise the assigned detective of that fact.
The defense argued at the subsequent hearing that the prosecution did not have a satisfactory reason for its failure to previously introduce the newly proffered information. Counsel alluded to a requirement in Code of Civil Procedure section 1008 that a party requesting reconsideration state by declaration what new or different facts or circumstances justified the request, while acknowledging that section 1008 did not "apply directly" in a criminal case.
The prosecutor stated under oath that he had not been on notice that defendant would contend he had invoked his Miranda rights the night before Gray interviewed him. The prosecutor had thought defendant would contend he invoked his rights during the interview, some of which was "almost inaudible." Once he heard the contention, the prosecutor doubted that any of the jailers or booking officers involved would have any relevant recollections, but he later realized they did.
The court granted the prosecution's reconsideration motion. It said Code of Civil Procedure section 1008 was "directory" in criminal cases and that it would deny the motion for lack of due diligence if that statute governed. However, it concluded it was not bound by section 1008 and granted the motion because it did not believe that a procedural bar should trump the court's "truth seeking function." Later that day, it heard the prosecution's two witnesses.
Richmond Police Department Police Officer Pineda testified that he arrested defendant at his home pursuant to a "Ramey" warrant on the evening of March 16, 2011, and booked him into the Richmond jail, as indicated in a log entry. He remembered some of the details of arresting defendant. Pineda said he wore a standard dark blue uniform on the day he arrested defendant, and that black uniforms were worn "during the grave shift or during inclement weather." He also said it was his normal practice to let the assigned detective handle the interview of arrestees pursuant to a Ramey warrant because the detectives wanted "the first opportunity to talk with a suspect." Accordingly, Pineda never interviewed such arrestees himself. Also, if an arrestee asked for an attorney, he would note it in a report and tell the lead detective.
People v. Ramey (1976) 16 Cal.3d 263. A so-called "Ramey warrant" permits the issuance of an arrest warrant to make a residential arrest based on an affidavit stating probable cause before criminal charges have been filed. (See 4 Witkin, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 23, p. 259; Goodwin v. Superior Court (2001) 90 Cal.App.4th 215, 218 [Ramey warrant procedure now codified as Pen. Code, § 817].)
Jailer Cheryl Odom testified that records indicated she was working on the day shift on March 16, 2011, but was not present when defendant was brought in at 6:45 p.m. Jailers wore "French blue shirts and navy pants." She never asked arrestees to provide a statement and had never seen any other jailers attempt to interview an arrestee, which was against jail policy. Records indicated defendant and two other individuals were placed together in the same cell. Detectives were allowed into the cell area.
Defendant testified that a Hispanic male and a Black male were in the holding cell with him, and the Hispanic told him not to speak to police. Pineda arrested defendant, but was not one of the two officers who came to the holding cell. One of those two officers was a White male who was bald, without facial hair and of average build, and the other might have been a female. Both wore black uniforms. The male officer asked defendant if he wanted to talk about his case and he asked for an attorney. The officer took pictures of his tattoos and asked what they meant, which defendant explained, thinking it was an innocent question. The officer asked him if he was in a gang and defendant said he was not. The officers then left.
The court wanted to know if police files contained photographs of defendant's tattoos and information about who took the photos. It continued the hearing to give the prosecution the opportunity to check.
When the hearing resumed, the prosecution called Richmond Police Department Officer Joanna Grivetti as a witness. Grivetti testified that in March 2011, she was in charge of the department's identification technicians and crime scene investigators, who took photographs for the department, and that she had records of all the photographs they took. Sometimes, technicians or investigators photographed potential gang members' tattoos at a jail, but always at the request of an arresting officer. Classification or gang officers might take photographs of people they were investigating, but most of the time they ask for evidence personnel to document things like tattoos. Records regarding defendant's March 2011 arrest did not indicate any technician or investigator took photographs of him. When defendant was arrested, there were no technicians or investigators who were White males, bald and without facial hair.
Richmond Police Department Lieutenant Darren Monahan testified that in March 2011 he was in charge of the department's gang unit. Members of the gang unit would on occasion take photos of potential gang members' tattoos when gang crimes were involved, but they would not take photos in a sex case. If members photographed tattoos of a suspected gang member, they would contact the lead detective on the case first. In 2011, there were no members of the gang unit who were White, male, bald and without facial hair.
Gray testified that when he was investigating defendant's case, there was no indication defendant was a gang member. He did not request that anyone take photographs of defendant's tattoos and was not told that anyone tried to take defendant's statement.
After hearing argument, the court ruled. It considered the situation "unusual" because the prosecutor was in effect being asked "to prove a negative." It found it significant that there were no photographs of defendant's tattoos in the department's records and "problematic" that defendant did not state in his initial testimony that his tattoos had been photographed. It stated, "[t]his really comes down to whether there are any photographs or not . . . . Because if there aren't any photographs, then the defendant's testimony is to be discredited," particularly in light of the court's previous finding that his testimony about whether Gray was his lawyer was not be credible. The court also found it significant that, while the prosecution initially did not present anything to contradict defendant's account, there was now "lots" of contrary evidence. The court now found defendant's account was not credible and that the prosecution had proven by a preponderance of the evidence that the police had complied with Miranda, and reversed its previous suppression ruling. It then granted defendant's motion for a mistrial because the parties had selected jurors with the understanding that defendant's statements to Gray would not be admissible at trial.
III.
The Court's Rejection of Defendant's Motion That It Change Its Ruling Again.
During the new trial, the defense obtained photographs of the officers who were working during the seven-hour period when defendant was brought to the Richmond Police Department in March 2011. The court allowed defense counsel to show these photographs to defendant and then held a hearing on the matter. Defendant testified that he was "80 percent" certain that one photograph, of a bald, White male without facial hair, was of the officer who came to his holding cell and asked if he wanted to talk about his case. Defendant recognized the man's eyes and the shape of his face.
Defense counsel moved for the court to reconsider its previous denial of defendant's motion to suppress his statements to Gray. The prosecution opposed the motion based on defendant's uncertain identification of the photograph of the officer. The court granted defendant's reconsideration motion and held another hearing on defendant's motion.
At this subsequent hearing, the defense called Richmond Police Department Sergeant Pablo Cooper to testify. He was a patrol sergeant in March 2011. His responsibilities included being team sergeant for the graveyard shift at the Richmond Police Department jail. He did not recall encountering defendant. If a suspect was brought in and Cooper saw things that looked like a gang affiliation, he would ask the suspect questions, including about tattoos, because he just wanted to know who he was "dealing with." It was possible that he asked defendant about his tattoos, but he did not ask arrestees if they wanted to talk about why they were arrested. He would not take photographs of an arrestee's tattoos. He had no reason to do so because he was not involved in the case and his job as patrol sergeant required only that he ensure an officer had probable cause to make the arrest. He was "positive" he did not ask defendant if he wanted to talk about his case. It was "not possible" defendant told him he wanted to talk to a lawyer. If defendant had, it would have been "pretty important," but Cooper had no recollection of that happening. Also, defendant would have been transported elsewhere and Cooper would have told the arresting officer, as well as the detective if Cooper ran into him.
After hearing argument, the court denied defendant's suppression motion. It found Cooper "extremely credible," and that Cooper did not say anything to support defendant's motion other than "remotely . . . relevant" information given "in the most hypothetical . . . way."
At trial, the prosecution played a video recording of Gray's interview for the jury, stopping the recording periodically to ask Gray questions about it. The complaining witnesses and eyewitnesses to the events in question also testified.
The jury found defendant guilty of counts four and five, unlawful sexual intercourse (§ 261.5, subd. (c)) and sexual penetration of a minor (§ 289, subd. (h)). It found defendant guilty of the lesser of count one, non-forcible lewd conduct (§ 288, subd. (a)), and the substantial sexual conduct allegation to be true. It hung on count two and acquitted defendant on counts three and six.
The court sentenced defendant to a total term of six years in prison, awarded him 423 days of pre-sentence, and ordered him to pay standard fines and fees and to register as a sex offender. Defendant filed a timely notice of appeal from the court's judgment.
DISCUSSION
I.
The Trial Court Could Reconsider Its Initial Order Denying Defendant's Motion.
Defendant first argues that the trial court abused its discretion when it granted the prosecution's motion for reconsideration of its prior, "final" order granting defendant's motion in limine. Defendant contends the prosecution did not have "good cause" for its motion, i.e., did not show it acted with sufficient diligence or had relevant new evidence as called for by Code of Civil Procedure section 1008 (section 1008). He contends the court improperly based its decision on a standard derived from "broad dicta" concerning inherent judicial powers. We conclude the court did not abuse its discretion.
Defendant's legal analysis presumes the trial court reconsidered a final order, but this is not the case. The People correctly assert that the court issued an interim order and point out that "[i]n criminal cases there are few limits on a court's power to reconsider interim rulings." (People v. Castello, supra, 65 Cal.App.4th at p. 1246.) The People are also correct in stating that a criminal trial court's power to reconsider interim rulings is not governed by Code of Civil Procedure, section 1008. (Ibid.) Further, contrary to defendant's assertion, motions to suppress statements that are not the products of a search or seizure, such as defendant's statements here, are not governed by the search and seizure statute, Penal Code section 1538.5. (People v. Stansbury (1993) 4 Cal.4th 1017, 1049.) Such motions are brought under Evidence Code section 402 based on the Fifth Amendment of the federal Constitution and Miranda. (Stansbury, at p. 1049.) Section 402 directs the trial court to "hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests." (Evid. Code, § 402, subd. (b).) Our Supreme Court has recognized that "[a] ruling on a motion under [Evidence Code,] section 402 . . . is not binding on the trial court if the subject evidence is proffered later in the trial." (People v. Williams (1997) 16 Cal.4th 153, 196-197 (Williams I).)
The trial court at one point referred to its initial ruling as a "final order." It is unclear what it meant, but the order was not final as we will discuss.
The trial court held its first two section 402 hearings in connection with defendant's motion in limine. Trial courts are not "bound to follow an in limine ruling affecting the admission of evidence." (People v. McGee (1991) 232 Cal.App.3d 620, 627; see also People v. Turner (1990) 50 Cal.3d 668, 708 ["in limine rulings on evidence are subject to reconsideration upon full information at trial"].) This follows "the general principle that a pretrial ruling is not binding on the trial court" (McGee, at p. 627; see People v. Hayes (1990) 52 Cal.3d 577, 616) because "until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility." (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3.) Thus, even in civil trials, "[b]ecause by their very nature, motions in limine are subject to reconsideration at any time prior to the submission of the cause [citation], they are not subject to the formal constraints of a motion for reconsideration under Code of Civil Procedure section 1008." (Chen v. L.A. Truck Centers, LLC (2017) 7 Cal.App.5th 757, 768.)
Our Supreme Court has also held that trial courts have the power "to use Code of Civil Procedure section 128, subdivision (a)(8) to correct erroneous in limine rulings in criminal cases." (People v. Jackson (1996) 13 Cal.4th 1164, 1205, citing People v. Keenan (1988) 46 Cal.3d 478, 513 [indicating a court's in limine ruling against a defendant is not binding at trial].) Section 128, subdivision (a)(8) provides, "Every court shall have the power to . . . [a]mend and control its process and orders so as to make them conform to law and justice." It "gives the court the discretion to modify the factual findings of a denied suppression order, as requested by the prosecution or sua sponte, in the interests of justice." (Jackson, at p. 1205.) We review such decisions for abuse of discretion.
In short, the trial court had the legal authority to reconsider its initial order. Further, its decision to reconsider was not an abuse of its discretion. The prosecution proffered evidence that was relevant to the defendant's credibility, which was the key to his motion given the absence of evidence corroborating his testimony that he invoked his Miranda rights the night before Gray interviewed him. Evidence Code section 780 provides that a factfinder "may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing." This includes "[t]he extent of his capacity to perceive [or] to recollect . . . any matter about which he testifies" and "[t]he existence or nonexistence of any fact testified to by him." (Evid. Code, § 780, subds. (c), (i).) Here, the prosecution offered evidence that jailers wore blue uniforms and that defendant's arresting officer would have told the detective assigned to the case if defendant had invoked his Miranda rights. Putting aside how much weight the trial court might have given such testimony in light of defendant's testimony up to that point, the proffered evidence was relevant to the court's evaluation of the credibility of defendant's account of the events that occurred on the evening of his arrest, in which he asserted that he invoked his Miranda rights to two unidentified "officers" dressed in black who spoke to him in his holding cell. Therefore, the court had the discretion to consider it. Further, the court's decision caused no prejudice to defendant in light of its promptness in reconsidering its previous ruling, as well as its mistrial order, which prevented defendant from suffering prejudice from selecting a jury before the court reconsidered its ruling.
In light of our conclusion, we need not further address the parties' debate over Code of Civil Procedure section 1008, Penal Code section 1538.5 and related case law.
II.
There Was Sufficient Evidence to Deny Defendant's Motions.
Defendant next argues that, even if the trial court could reconsider its initial order, there was insufficient evidence to deny his motion in limine and sufficient evidence to grant his later suppression motion during the new trial. Therefore, he contends, the court erred in its rulings on both these matters. We disagree.
A. Relevant Legal Standards
The Fifth Amendment of the United States Constitution provides for a constitutional privilege against self-incrimination. Law enforcement must warn suspects before a custodial interview of their right to remain silent and to counsel, and that anything they say may be used against them. "After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of this interrogation can be used against him." (Miranda, supra, 384 U.S. at pp. 478-479; quoted in People v. Whitson (1998) 17 Cal.4th 229, 244.)
There is no presumption that a suspect understands his Miranda rights. The burden is on the prosecution to establish, by the preponderance of the evidence, a voluntary, intelligent and knowing waiver of these rights. (Lego v. Twomey (1972) 404 U.S. 477, 489.) A court must consider "the totality of the facts and circumstances, including the background, experience and conduct of the accused." (People v. Michaels (2002) 28 Cal.4th 486, 512.) " '[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,' " and " 'a valid waiver of Miranda rights may be express or implied.' " (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218.)
We review a trial court's decision to admit or not admit evidence in limine or following a hearing pursuant to Evidence Code section 402 for abuse of discretion. (Williams I, supra, 16 Cal.4th at p. 197.) We " ' " 'accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " ' " (People v. Duff (2014) 58 Cal.4th 527, 551.) In doing so, we give " ' " 'give great weight to the considered conclusions ' of a lower court that has previously reviewed the same evidence." ' " (People v. Whitson, supra, 17 Cal.4th at p. 251.)
B. There Is Sufficient Evidence to Support the Trial Court's Reversal.
Defendant argues the court should not have reversed its initial order because "nothing produced at the rehearing controverted the basis of the court's previous finding on appellant's credibility." He then reviews the evidence presented at the rehearing in a self-serving manner, essentially asking us to reweigh it in his favor. We shall not do so. Generally, we give "great deference" to a trial court's factual determinations about witness credibility. (People v. Hinks (1997) 58 Cal.App.4th 1157, 1160.) Defendant gives us no reason to deviate from this principle here.
" 'The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court.' " (People v. James (1977) 19 Cal.3d 99, 107; see also People v. Armstrong (2016) 1 Cal.5th 432, 451 ["[W]e afford deference to the trial court's credibility determinations, 'based as they are, on firsthand observations unavailable to us on appeal' "].) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' " (People v. Lee (2011) 51 Cal.4th 620, 632.)
Defendant would have us conclude that the prosecution did not present any relevant evidence regarding his credibility and that the trial court, having already concluded his contention that he invoked his Miranda rights the night he was arrested had a "ring of truth," had no reasonable basis for changing this view. For example, he points out that he never claimed Pineda, the arresting officer who testified at the rehearing, asked him to make a statement on the evening of his arrest. Therefore, he contends, Pineda's testimony was not relevant at all to his credibility. We disagree. Pineda testified that when an arrest was made pursuant to a Ramey warrant, arresting officers did not attempt to obtain a statement from the arrestees because the detectives assigned to the case wanted "the first opportunity to talk with a suspect." From this, the court could reasonably infer that department policy frowned on anyone obtaining statements from arrestees other than the detectives assigned to the case. Therefore, even though defendant did not identify Pineda as one of the officers who attempted to obtain a statement from him, Pineda's testimony contradicted defendant's contention that officers sought a statement from him that evening.
Defendant also attempts to explain away the court's reliance on the fact that, although defendant testified at the rehearing that an officer photographed his tattoos, the prosecution presented testimony that there were no such photos in police photography files. He contends that the court's finding that any photographs of defendant's tattoos would have been in these files was flawed because "there was no evidence as to a routine and customary official practice concerning the taking of photographs at the jail in all circumstances." (Italics added.) However, we are not aware of any evidentiary rule that prohibits a court from relying on evidence that tends to prove a point, whether conclusive for all circumstances or not. Defendant ignores Grivetti's testimony that she was in charge of the people who generally took photographs for the department, including at the jail, and that she had the records of their photographs, had searched these records, and had found no photographs of defendant. He ignores that, while she acknowledged that classification or gang officers might also take photographs of people they were investigating, she also said that most of the time these officers asked the evidence personnel whom she supervised to document such things as tattoos. He gives no weight to her testimony that none of the people she supervised matched defendant's description of the officer who purportedly photographed his tattoos. He also disregards the testimony of Monahan, the head of the department's gang unit. Monahan testified that members of the gang unit would not take photos in a sex case, and if they did photograph tattoos of a suspected gang member (and there was no evidence that defendant was a suspected gang member) would first contact the lead detective on the case. Defendant fails to—and cannot plausibly—explain why the court could not reasonably rely on Grivetti's and Monahan's testimony to conclude that defendant was untruthful when he testified that an officer photographed his tattoos on the night he was arrested, and that this undermined the credibility of defendant's further account that he invoked his Miranda rights to that officer.
Rather than acknowledge this evidence, defendant in a broad brushstroke declares that the prosecution's evidence amounted to "scintillas of nonrecollection," and he criticizes the prosecution for not investigating "what might have mattered, i.e., using rosters and booking sheets to find out what other officers were [at the jail] on the night in question." But defendant does not get to dictate what evidence the prosecution should have presented. And defendant does not only ignore the evidence that we have already recounted. He gives no weight to perhaps the most important aspect of the court's consideration of the issue. That is, the court had an additional opportunity at the rehearing to observe defendant's demeanor. It acknowledged in changing its ruling that it had always had misgivings about some of defendant's testimony, having previously found fatuous his claim that he thought Gray was his public defender.
Defendant also criticizes the trial court's view that his failure to mention the photographing of his tattoos in his testimony at the initial hearing on his motion was "problematic." According to defendant, "[t]here was nothing problematic about it." This is an utterly unpersuasive effort to reargue the evidence. The court could reasonably infer from defendant's failure to include this event in his initial testimony of what occurred in his holding cell that night (which he gave in response to open-ended questions about what occurred that evening), that his account had changed and thus was not credible.
Defendant also contests the meaningfulness of booking paperwork introduced by the prosecution, but we need not address it because the trial court did not rely on it. We also have no need to address the parties' prejudicial error debate. --------
C. The Trial Court Properly Rejected Defendant's Motion During Trial.
Defendant further argues that the trial court should have changed its ruling a second time, as defendant requested during trial based on the testimony of Officer Cooper, the patrol sergeant on duty at the jail when defendant was brought there. We disagree. The court acted within its discretion to reject defendant's motion.
Contrary to defendant's contentions, Cooper's testimony did not show defendant's account of what happened that night was credible regarding those matters that the court considered most significant. Cooper did not recall defendant. He merely testified that it was possible he asked defendant about his tattoos because he asked such questions of arrestees as part of his efforts to know who was housed in the jail. While this may have lent some small credence to a portion of defendant's account, it provides us with no reason to disagree with the trial court's conclusion that this was "remotely . . . relevant" information given "in the most hypothetical . . . way."
Defendant, pointing out that Cooper was responsible for reviewing arrests for probable cause, contends Cooper likely talked with him in reviewing his arrest. Defendant also contends it can be reasonably inferred from Cooper's efforts to gather "intel" about arrestees that Cooper informally photographed defendant's tattoos. Nothing in Cooper's testimony supports any of this speculation.
In any event, much of Cooper's testimony further undermined defendant's account. Cooper denied that he would have photographed any arrestee's tattoos or asked an arrestee for a statement about the crime. He was "positive" that he did not ask defendant if he wanted to talk about his case and thought it was "not possible" that defendant told him he wanted to talk to a lawyer. He also testified that if defendant had requested a lawyer it would have been so important that he, Cooper, would have remembered it, defendant would have been transferred to another area and Cooper would have told the arresting officer and possibly the investigating detective of such a request.
In short, substantial evidence supported the court's factual determinations and, therefore, it did not abuse its discretion in rejecting defendant's motion.
III.
Gray's Miranda Admonishment to Defendant Was Not Insufficient.
Finally, defendant argues Gray did not provide an "unequivocal" Miranda admonishment to him as required. (Miranda, supra, 384 U.S. at pp. 467- 468.) He argues that Gray buried the admonishment "within a haystack" of offers of help and other statements that rendered the advisement meaningless. We disagree.
As a preliminary matter, defendant does not indicate he raised this argument below. Therefore, he may have forfeited it on appeal. (See People v. Polk (2010) 190 Cal.App.4th 1183, 1194 ["unless a defendant asserts in the trial court a specific ground for suppression of his or her statements to police under Miranda, that ground is forfeited on appeal, even if the defendant asserted other arguments under the same decision"].) The People do not raise forfeiture (indeed, they do not respond at all to defendant's argument), however, and we therefore address the merits of defendant's argument.
When Gray began talking with defendant the morning after defendant's arrest, he briefly asked defendant for certain identifying and biographical information, like his date of birth, phone number, the names of his parents, and where he lived and worked, which defendant provided. After referring to defendant's arrest pursuant to a warrant, the two had the following discussion:
"[Gray]: But before I go any further I want to make sure that you understand some rights. Okay? And the way this works here is . . . . I know, it'll warm up before [inaudible.] I'm gonna need you to be 100% honest with me. No bullshit. No sidetalk. Anything. (Inaudible.) That's the only way I'm going to be able to help you. Okay? Be straight with me. You understand? [¶] OK, well Mr. Vargas.
"You have a right to remain silent. Anything you say can and will be used against you in a court of law. You understand?
"[Defendant]: [Inaudible] [nods head]
"[Gray]: You have a right to have an attorney present before any questions. You understand?
"[Defendant]: [Inaudible] [nods head]
"[Gray]: If you can't afford an attorney one will be appointed free of charge to represent you. You understand?
"[Defendant]: [Inaudible] [nods head]
"[Gray]: Having [inaudible] those rights do you want to talk to me why you're here?
"[Defendant]: [Inaudible] [nods head]"
Gray then talked with defendant regarding the incident.
Defendant contends Gray was not allowed to ask him any questions before advising him of his Miranda rights. This is not correct. In Pennsylvania v. Muniz (1990) 496 U.S. 582 (Muniz), the United States Supreme Court found that questions about name, address, date of birth, and current age and the corresponding answers were admissible because as questions asked during booking, they fell into the "routine booking question" exception to Miranda. (Muniz, at p. 601.) Further, our Supreme Court has instructed that law enforcement may conduct such questioning "not simply due to administrative need, but because such questioning is generally unrelated to crime and unlikely to elicit an incriminating response." (People v. Elizalde (2015) 61 Cal.4th 523, 535.) Defendant notes there are times when such questioning may lead to incriminating information and, therefore, a Miranda admonishment must precede it. However, both our high court and the United States Supreme Court have acknowledged that answers to identification questions are " 'likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.' " (Ibid., quoting Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177, 191.) Defendant makes no real effort to establish how Gray's brief preliminary questions could have led to incriminating information. We have no reason to conclude they undermined the efficacy of Gray's subsequent Miranda admonishment.
Defendant also argues that Gray's statement to defendant that he, Gray, could only "help" defendant "if [defendant] answered his questions" rendered "meaningless" that part of the Miranda advisement that anything defendant said could and would be used against him. Defendant's argument is unpersuasive because he mischaracterizes what Gray told defendant. Gray did not suggest to defendant that he should answer Gray's questions; rather, Gray simply said, I'm gonna need you to be 100% honest with me. No bullshit. No sidetalk. Anything. (Inaudible.) That's the only way I'm going to be able to help you. Okay? Be straight with me. You understand?" In other words, Gray briefly urged defendant to be honest and to stay focused if he wanted Gray's help. Our courts have repeatedly held that urging a defendant to be "honest" is not coercive and does not undermine an otherwise properly given Miranda admonishment. (See, e.g., People v. Williams (2010) 49 Cal.4th 405, 444 ["Absent improper threats or promises, law enforcement officers are permitted to urge that it would be better to tell the truth"]; People v. Holloway (2004) 33 Cal.4th 96, 115 [" 'mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary"].) Further, Gray's suggestion that he was there to "help" defendant was short of a promise. While it was arguably deceptive, it was too insignificant to undermine the efficacy of the subsequent admonishment. (See People v. Higareda (1994) 24 Cal.App.4th 1399, 1409 [detective's statement that he would talk to the district attorney if defendant told him the truth did not make defendant's confession involuntary].) We conclude Gray did not say anything to defendant that undermined the effectiveness of the Miranda admonishment.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.