Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA075952, Robert Martinez, Judge.
Nancy Mazza for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Viet H. Nguyen, Deputy Attorneys General for Plaintiff and Respondent.
MANELLA, J.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Defendant Jesus Velazquez was charged by information with a violation of Penal Code section 273ab, assault on a child causing death.
Statutory references are to the Penal Code. Section 273ab provides: “Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state prison for 25 years to life.”
B. Evidence at Trial
Elizabeth Arredondo was married to Jose Arredondo with whom she had three children. In 2004, she began an affair with defendant while she was pregnant with her and Jose’s youngest child, Yahir, who was born in June 2005. Sometime after the affair began, Elizabeth and Jose separated.
Because they share a surname, the Arredondos will be referred to by their first names.
At the time of trial, they were divorced.
On July 1, 2006, a Saturday, Elizabeth dropped the children off with Jose at 8:00 a.m. and went to meet defendant. Yahir had developed a fever the previous Thursday and had been seen by a pediatrician on Friday. The pediatrician diagnosed a virus and recommended Ibuprofen. On Saturday morning when left with Jose, Yahir seemed well. At approximately noon, Elizabeth received a call informing her that Yahir was running a fever, which was being controlled with Ibuprofen. She returned to her apartment and Jose returned Yahir to her care. At that time, Yahir did not show signs of discomfort or pain and was eating normally. Defendant arrived at approximately 8:00 p.m. and took Elizabeth and Yahir to a motel. Defendant was upset because his wife had learned of the affair and threatened to leave him and take their children to Mexico. Defendant indicated he wanted to end the relationship with Elizabeth and reconcile with his wife.
On cross-examination, Elizabeth testified that Yahir had a bruise on his bottom that she had first noticed on June 28, a day after his first birthday.
At approximately 10:00 p.m., defendant asked Elizabeth to move his car so that it could not be seen from the street, in case his wife was looking for him. Up to this point, Yahir seemed fine. Elizabeth left Yahir in the room, lying on the bed next to defendant, when she went to move the car. Elizabeth put pillows around him and a chair next to the bed so he would not fall. She was gone approximately four minutes. When she returned, Yahir appeared “very scared” and was raising his arms to be held. He held onto Elizabeth tightly and would not consent to being put down. When Elizabeth tried to feed him, he vomited. For the rest of the night, he slept for only 15 or 20 minutes at a time. Defendant did not inquire about Yahir’s unusual behavior or tell Elizabeth that anything had happened while she was out of the room.
The next morning, after Elizabeth returned home, Yahir vomited again and she noticed his abdomen was swollen and that he had not urinated in some time. She took him to the hospital emergency room, where he vomited again and passed out. Yahir was pronounced dead at 7:45 a.m.
Jose confirmed that Yahir seemed fine when he picked the children up the morning of July 1. He was eating normally, but developed a fever. Jose denied hitting Yahir and said that his older children and brother, family members present at his home on July 1, did not have any time alone with the baby. Yahir was left briefly with Jose’s parents, but was not behaving differently after he was returned to Jose’s care.
The coroner testified that the cause of Yahir’s death was homicide, the result of multiple traumatic injuries. Yahir had a ruptured or perforated intestine. The perforation led to acute peritonitis -- an infection caused by germs crossing from the opening in the intestine to the abdomen. There was bruising on the inside of Yahir’s abdomen and fluid in his peritoneal cavity, around his intestines. In the opinion of the coroner, Yahir’s injuries could only have been inflicted by an adult applying a tremendous amount of force to Yahir’s abdomen, as with a blow or a kick or multiple blows or kicks. The injuries could not have been caused by squeezing the child. During his examination, the coroner also found nonlife-threatening bruises on Yahir’s buttocks. The injuries, including the bruises on the buttocks, were inflicted at least four hours and less than 24 hours before death. There were other, older injuries found when the body was x-rayed -- healed bone fractures -- that did not play a part in Yahir’s death.
The coroner testified that the abdominal injuries would have led to vomiting and dehydration. Both the initial blow and the developing peritonitis would have caused intense pain. An infant who had suffered these types of injuries would be in discomfort and appear fussy and increasingly lethargic, before becoming sleepy and going into shock.
When interviewed by Deputy Donald Walls approximately a month after Yahir’s death, defendant initially stated that nothing happened when he was left alone with Yahir, and that Yahir was asleep the entire time. In a second interview, defendant said Yahir became fussy after Elizabeth left to move the car and that he picked the baby up and squeezed him hard, causing him to expel gas. When Deputy Walls explained that according to the coroner, the injury could not have been caused by squeezing, defendant said he had brought his fist down in frustration on the baby’s stomach. In a subsequent interview, conducted in Spanish, defendant said he clenched both fists and brought them down hard out of frustration at his situation, “accident[ly]” hitting Yahir’s abdomen.
The two interviews in which defendant admitted hitting Yahir had been taped and were played for the jury. In the first, defendant initially described squeezing Yahir “very hard” causing him to expel gas. After being encouraged to “tell [] the truth” and “tell [] what happened, ” defendant said “I do like this, ” apparently making a gesture with his hand. Deputy Walls asked “which hand” and told defendant to describe where he had hit Yahir. Defendant said “in the stomach” and admitted he “probably hit too much hard.”
In the second interview played for the jury, defendant said he squeezed Yahir and then, when Yahir was lying on the bed next to him, he “d[id] like this” (apparently making a gesture) and “noticed that I hit Yahir.” He initially said it was “not my intention to... hit [Yahir].” Deputy Walls expressed disbelief and urged defendant to “be honest.” Defendant then said Yahir was crying and he hit Yahir with a “slapping hand punch” with both hands or fists, “very hard, ” but continued to say he “didn’t think... I was going to hit [Yahir].” He also said “I didn’t give [Yahir] the blow with intention in the way of hitting him, but... perhaps for him to be quiet, ” and “I didn’t try to hit [Yahir] in a way that was going to cause him harm.”
The defense called Veronica Sanchez, defendant’s wife, who testified he was not violent. Defendant’s children and his supervisor at work also testified he was not a violent person.
C. Pertinent Instructions and Argument
With respect to the charge of assaulting a child and causing death, the jury was instructed that the People must prove that the defendant willfully did an act that by its nature would directly and probably result in the application of force to the child, that the force used was likely to produce great bodily injury and that when the defendant acted, “he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in great bodily injury to the child.” The jury was also given instructions on the lesser included offenses of assault with force likely to produce great bodily injury and simple assault. For the latter two offenses, the jurors were instructed that the People were required to prove that when defendant acted, “he was aware of [] facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.”
In closing, the defense argued that defendant swung his fist out and hit the baby accidently, and that there was no evidence that he had the requisite intent to establish the section 273ab violation.
D. Verdict and Sentencing
The jury found defendant guilty as charged of assaulting a child and causing death (§ 273ab). The court sentenced him to a term of 25 years to life.
DISCUSSION
A. Miranda Issues
Defendant contends the deputies violated his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) by (1) failing to advise him of his right to remain silent and his right to an attorney before the initial interview sessions; and (2) failing to cease questioning when he asked deputies about the effect of having an attorney during the final interview session. Defendant argues that the Miranda violations should have resulted in suppression of his statements to the deputies, and that the trial court erred in denying his motion to suppress. We conclude defendant was not in custody until the final interview and that he failed to unambiguously invoke his right to counsel at that time.
1. Background
Before the first trial, the defense moved to suppress defendant’s taped interviews and the prosecution moved to admit them. The court heard evidence concerning the circumstances surrounding all of defendant’s interviews with deputies.
Although only two interviews were played for the jury, there were four distinct interview sessions. The first occurred August 3 at approximately 2:00 p.m.; the second (the first played for the jury) occurred at approximately 8:00 p.m. that night, after defendant submitted to a polygraph exam and before he was arrested; the third occurred after defendant was arrested and was very brief; the fourth and final interview (the second played for the jury) occurred the following afternoon (August 4).
Deputy Walls testified that prior to interviewing defendant, he had interviewed Yahir’s parents and other family members. He was also aware of the coroner’s findings and the fact that defendant was with Yahir during the time frame within which the fatal injuries likely occurred. Deputy Walls and defendant had scheduled two appointments to meet before August 3, Deputy Walls had cancelled one appointment and defendant had cancelled the other. Defendant had called to set the August 3 appointment, returning Deputy Walls’s call. Defendant had agreed that Deputy Walls could pick him up when he got off work at 1:45 p.m.
When he arrived to pick up defendant, Deputy Walls was wearing plain clothes and driving an unmarked car. He was alone. He did not arrest defendant. He did not consider defendant a suspect. Deputy Walls transported defendant to the San Dimas sheriff’s station, where defendant had agreed the interview could be conducted.
At the beginning of the interview, Deputy Walls advised defendant that he was free to leave. Deputy Walls interviewed defendant for approximately two hours before asking if he would take a polygraph exam. Defendant agreed. This required a drive from San Dimas to downtown Los Angeles. Prior to the drive to Los Angeles, defendant was left alone in the interview room to call his wife. During the drive, defendant rode in the front seat of the car with Deputy Walls. Defendant was not handcuffed or locked in the car. Deputy Walls did not believe defendant was responsible for Yahir’s death at that time.
At approximately 4:30 p.m., Deputy Catherine Irene Aragon performed a polygraph examination of defendant in Spanish. Deputy Aragon was not wearing a uniform and was unarmed. Her understanding was that defendant was not in custody at that time. He was free to move about and, in fact, got up to use the restroom. He signed a consent form for the exam, which included an acknowledgment that he was not in custody. Prior to his signing the consent, Deputy Aragon advised him that the test was voluntary, that he could stop the exam and that he was free to go at any time. After being so advised, defendant said he was ready to proceed. Deputy Aragon did not recall telling defendant he was a suspect or one of the suspects. The exam was performed in a room containing chairs for the deputy and defendant, a computer and a desk. The exam took two hours. During that time, defendant never said anything about wanting to stop. While undergoing the exam, defendant said he had squeezed Yahir.
After the exam, Deputy Aragon told defendant and Deputy Walls that defendant had failed and that he had admitted squeezing Yahir. Deputy Walls was surprised by the results of the polygraph exam. Deputy Walls was not prepared to arrest defendant and did not place him into custody until after a second interview, which lasted approximately 16 minutes. The interview took place in the same room as the polygraph exam. Defendant did not indicate that he wanted to terminate the interview or go home. During this interview, defendant confirmed having told Deputy Aragon that he squeezed Yahir very hard when they were alone in the motel room. Deputy Walls indicated disbelief. He told defendant that the polygraph exam indicated he “socked” Yahir and that he would not be able “to get over this” unless he told the truth. Deputy Walls said he wanted the truth, not “a story.” He said “I think you got upset with the baby and you hit the baby.” After multiple denials, defendant said “I do like this, ” apparently making a gesture with his hand, and admitted hitting Yahir in the stomach, “probably... too much hard.” Deputy Walls asked defendant a few more questions about how defendant was feeling that night, why he did not tell the truth earlier and whether he was finally telling the truth. He then terminated the interview.
This was the first interview played for the jury.
After terminating the second interview, Deputy Walls formally arrested defendant and transported him back to the San Dimas station. He placed defendant in an interview room. He advised defendant of his constitutional rights. Defendant orally stated that he was prepared to waive those rights, but when given a form to sign looked puzzled. The time was approximately 11:00 p.m., and defendant appeared tired and depressed. Deputy Walls terminated the interview. At 2:00 p.m. the following day, Deputy Walls again interviewed defendant. This time the deputy was accompanied by a Spanish-speaking detective, Deputy Margarita Barron, who advised defendant of his constitutional rights in Spanish. Defendant signed the Spanish-language form waiving his rights.
To Deputy Walls’s knowledge, defendant had not had anything to eat or drink from the time he was picked up.
This was the second interview played for the jury.
After being read his rights and stating he understood them, defendant was asked if he wanted to talk to Deputy Walls about what happened. Defendant said “yes, that’s fine. I have no problem.” He then asked, “what effect that is [sic] that I don’t have an attorney or what?” Deputy Barron, who was in the process of getting defendant’s signature on the rights card, said she did not understand the question. Defendant said: “So, ... how much does it help that I don’t have an attorney right now at this moment with me?” Deputy Barron responded in Spanish “[t]hat depends on you, if you want one, ” and then said to Deputy Walls: “He want[s] to know if it would hurt if he had an attorney here or if he didn’t have an attorney here.” Deputy Walls responded in English, saying “[t]hat’s a decision you have to make.” Deputy Walls went on to say that he wanted to know the truth about what happened and that he believed defendant had told him the truth but that there had not been an extensive interview. He further said: “It’s not that I don’t know what happened. I do know what happened[, ] but I want to know what... happened to Jesus that day... for that little time right there.” The translator said to defendant in Spanish: “You do understand him, he just want[s] to know... the truth, says that... yesterday you started to tell him what... was it that happened, and he just want[s] you to explain, [] more detail, what... happened. You do understand when he explained to you, that he doesn’t think that you are a bad man or gang member..., but many times... we made mistakes and that’s what he say, that possibly that’s what occurred in... that day....” Defendant indicated he understood. Deputy Barron asked defendant again if he wanted to talk with Deputy Walls. Defendant said “[y]es, that’s fine.”
At the suppression hearing, Deputy Barron testified that the deputies would have stopped the inquiry if defendant had asked for an attorney, but that she did not interpret his question as a request for one.
At the suppression hearing, defendant testified that when he returned Deputy Walls’s call on August 3, the deputy was upset at him for not calling sooner. When they made the arrangements to meet after defendant got off work, Deputy Walls told defendant he “had to” go with the deputy even though defendant stated he needed to get back to his family, who were without money for food or a place to stay. Defendant did not think he had any choice because Deputy Walls “was a policeman.” Once the two men arrived at the San Dimas station, defendant did not believe he could walk out because he felt “intimidated” by Deputy Walls, particularly because during the first interview, the deputy slammed his fist on the table and forcefully accused him of killing Yahir. When Deputy Walls suggested the polygraph exam, defendant told Deputy Walls that he wanted to leave because his family was waiting for him and asked if he had to take the exam. Deputy Walls said he did, for his own “security or safety.” During the polygraph exam, Deputy Aragon told defendant he was a suspect. By the end of the day, defendant felt hungry and thirsty and was tired from lack of sleep the night before. He did not, however, ask for food or drink. He stated that he had trouble understanding some of the questions asked of him because Deputy Walls spoke entirely in English. On cross-examination, defendant admitted he did not ask for an interpreter or express concern about speaking to Deputy Walls in English.
After defendant testified, Deputy Walls was called as a rebuttal witness and testified that defendant never said he needed to take care of personal business or get back to his family. He further stated that defendant had rejected Deputy Walls’s invitation to get him something to drink. Deputy Walls denied hitting the table and accusing defendant of killing Yahir.
The court denied the defense motion to exclude the evidence and granted the prosecution’s motion to admit it. The court explained it did not find believable defendant’s testimony concerning Deputy Walls’s behavior, “pounding his fist on the table, accusing [defendant] of killing the child, demonstrating to [defendant] what [the deputy] thinks [defendant] did by punching the table, being overbearing, yelling at him, coercive in tone, coercive... behaviorally; ordering him, essentially to get in the car; not listening to [defendant] when [defendant] is lamenting that he has great stress in his family and can’t really go that day because he has to give food and money for the family that is homeless.” The court “believe[d] all of the testimony of [Deputy] Walls in this regard.” The court stated that from the tapes, defendant’s statements “appeared to be consensual and voluntary.” The court further stated that it was clear from the fact that defendant was not interviewed for a month after the death occurred that he was “just one of the many people that [Deputy Walls] is talking to about this situation.” The court also concluded that defendant had not been “worn down” by the long day.
The court further ruled that even had the third interview violated Miranda, the final interview would have been admissible under Oregon v. Elstad (1985) 470 U.S. 298, and would not have been deemed tainted or “fruit of the poisonous tree.” In Oregon v. Elstad, the Supreme Court held that incriminating statements made by a suspect after administration of Miranda warnings were not subject to suppression merely because the suspect had previously made incriminating statements during a custodial interview conducted in violation of Miranda. The court held that the subsequent administration of Miranda warnings would generally suffice to remove the conditions that precluded admission of the earlier statement. (470 U.S. at p. 313.)
With respect to defendant’s questions at the final interview about the benefit of having an attorney, the court found that defendant was asking for advice from the deputies, not invoking his right to counsel. The court was not aware of any authority for the proposition that where an arrestee “is asking for advice [of] a police officer, ” the officer is required to say “I think it would be really a good idea for you to have a lawyer, sir.”
2. Analysis
a. Custody Status
“After being taken into custody by police or otherwise deprived of his or her freedom of action in any significant manner, a person must be given Miranda warnings apprising the person of his or her right to remain silent, that any statement the person makes may be used against the person and that the person has the right to counsel, retained or appointed.” (In re Kenneth S. (2005) 133 Cal.App.4th 54, 63.) Miranda warnings are required “as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’” (Berkemer v. McCarty (1984) 468 U.S. 420, 440.) Here, defendant was not informed of his Miranda rights until his formal arrest late in the day on August 3, after the initial interview, the polygraph exam and the 16-minute interview that followed the polygraph exam. The issue presented is whether he was “in custody” during those earlier interviews. We conclude he was not.
The fundamental test for whether a suspect is in custody turns on whether a reasonable person in the suspect’s position would “have felt he or she was not at liberty to terminate the interrogation and leave.” (Thompson v. Keohane (1995) 516 U.S. 99, 112.) “In cases... in which the suspect has not formally been taken into police custody, a suspect is nevertheless considered ‘in custody’ for purposes of Miranda if the suspect has been ‘deprived of his freedom of action in any significant way’” (U.S. v. Craighead (9th Cir. 2008) 539 F.3d 1073, 1082, quoting Miranda, supra, 384 U.S. at p. 444) or “‘law enforcement officials act or speak in a manner that conveys the message that they would not permit the accused to leave.’” (U.S. v. Kirsh (2d Cir. 1995) 54 F.3d 1062, 1067, quoting Campaneria v. Reid (2d Cir. 1989) 891 F.2d 1014, 1021, fn. 1.) “The objective circumstances of the interrogation, not the subjective intention of the interrogating officer or the subjective understanding of the person being questioned, is evaluated in determining whether the person was in custody at the time of the questioning.” (In re Kenneth S., supra, 133 Cal.App.4th at p. 64.)
The following factors have been found useful in determining whether a reasonable person would feel deprived of freedom: “[W]hether 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. [Citations.]” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162; accord, People v. Pilster (2006) 138 Cal.App.4th 1395, 1403; People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) “[C]ourts apply a ‘totality of circumstances’ test to determine the voluntariness of a confession.” (People v. Massie (1998) 19 Cal.4th 550, 576.)
Whether a person is in custody for Miranda purposes is a mixed question of law and fact. (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “‘Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is... reconstructed, the court must apply an objective test to resolve “the ultimate inquiry”: “[whether] there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” [Citations.]’” (Id. at pp. 401-402, quoting Thompson v. Keohane (1995) 516 U.S. 99, 112-113.) Accordingly, appellate courts apply “a deferential substantial evidence standard [citation] to the trial court’s conclusions regarding ‘“basic, primary, or historical facts: facts ‘in the sense of recital of external events and the credibility of their narrators....’”’” and “independently decide whether ‘a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.’” (People v. Ochoa, supra, at p. 401, quoting Thompson v. Keohane, supra, at pp. 110, 112.) The prosecution bears the burden of proving that the defendant was not in custody in order to use his statements against him. (People v. Ochoa, at p. 401; People v. White (1968) 69 Cal.2d 751, 759-761.)
Applying the relevant factors here, we conclude that a reasonable person in defendant’s situation would not have considered himself in custody prior to the formal arrest. Deputy Walls did not take defendant into custody when they met on the afternoon of August 3. The deputy treated defendant as if he were an ordinary witness, calling defendant beforehand to arrange a convenient time for an interview. The proposed interview had been set and cancelled twice before, once by defendant and once by Deputy Walls. The final date and time were agreed to by defendant. The trial court found credible Deputy Walls’s testimony that he did not order defendant to accompany him and did not behave in a coercive or aggressive fashion either when he picked defendant up or during the initial interviews. The evidence supported that defendant was informed on multiple occasions that he was not under arrest and that he was free to leave. Indeed, defendant signed a document prior to the polygraph exam indicating he was not in custody and was taking the test voluntarily. It is true that the interviews took place at the San Dimas station rather than a less formal setting, but “[s]tation house interviews are not necessarily custodial.” (People v. Stansbury (1995) 9 Cal.4th 824, 833.) The fact that defendant was allowed to use the restroom unaccompanied and was left alone to call his wife indicated that he was not being treated as an arrestee and had no reason to believe that his freedom had been curtailed.
Defendant claimed he felt coerced because Deputy Walls “was a policeman.” Courts recognize that “[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” (Oregon v. Mathiason (1977) 429 U.S. 492, 495.) Nevertheless, “police officers are not required to administer Miranda warnings to everyone whom they question.” (Ibid.) “Nor is the requirement of warnings to be imposed simply because... the questioned person is one whom the police suspect.” (Ibid.)
In his brief, defendant focuses on the 16-minute interview that followed the polygraph exam, after defendant failed the exam and admitted having squeezed Yahir. Defendant contends it was a custodial interview because Deputy Walls became “confrontational and accusatory” and appeared “intent on obtaining further incriminating statements.” It is true that even where a suspect voluntarily comes to a police or sheriff’s station, the interrogation can become custodial if “the circumstances become such that a reasonable person would not feel free to leave.” (U.S. v. Kim (9th Cir. 2002) 292 F.3d 969, 975.) Moreover, “‘[a]ccusatory questioning is more likely to communicate to a reasonable person in the position of the suspect, that he is not free to leave’ than would general and neutral investigative questions. Thus, on the issue of custody, courts consider highly significant whether the questioning was brief, polite, and courteous or lengthy, aggressive, confrontational, threatening, intimidating, and accusatory.” (People v. Aguilera, supra, 51 Cal.App.4th at p. 1164, quoting People v. Lopez (1985) 163 Cal.App.3d 602, 608, fn. 4.) However, in evaluating the custody issue, “no one factor is controlling and courts must consider all the circumstances surrounding the encounter.” (People v. Pilster, supra, 138 Cal.App.4th at p. 1404.) Courts are not required to find that a suspect was in custody merely because a single fact or inference would support such a conclusion. (People v. Stansbury, supra, 9 Cal.4th at p. 831.)
From an objective standpoint, the circumstances surrounding defendant’s contact with Deputy Walls did not change dramatically after defendant failed the polygraph exam. The post-exam interview was brief. Defendant was still in the same office-type room where the polygraph exam had been given. Deputy Walls and defendant were still alone. Defendant had previously been expressly told by both Deputy Walls and Deputy Aragon that his presence was voluntary and he was free to leave. Deputy Walls did not say anything which indicated that was no longer the case. Deputy Walls may have moved defendant from the category of witness to suspect in his mind, but “the uncommunicated subjective impressions of the police regarding defendant’s custodial status” are “irrelevant.” (People v. Stansbury, supra, 9 Cal.4th at p. 830.) “[E]vidence of the officer’s subjective suspicions or beliefs is relevant only ‘if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave’ or if such evidence is ‘relevant in testing the credibility of [the officer’s] account of what happened during an interrogation....’” (Ibid., quoting Stansbury v. California (1994) 511 U.S. 318, 325.) Deputy Walls did not manifest the intent to curtail defendant’s freedom until after defendant admitted hitting Yahir, at which time defendant was arrested and provided Miranda warnings. In our independent judgment, the post-exam interview was not custodial and did not require Miranda warning.
b. Invocation of Right to Counsel
“[A]n individual must be ‘clearly informed, ’ prior to custodial questioning, that he has, among other rights, ‘the right to consult with a lawyer and to have the lawyer with him during interrogation.’” (Florida v. Powell (2010) 559 U.S. ___ [130 S.Ct. 1195, 1197].) “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” (Miranda, supra, 384 U.S. at p. 474.) Once the suspect receives the Miranda warnings and waives his right to counsel, “law enforcement officers are free to question him.” (Davis v. U.S. (1994) 512 U.S. 452, 458.) There is no dispute that the deputies informed defendant of his Miranda rights, once in English and once in Spanish, prior to the final interview. Although defendant signed documents indicating he waived these rights, including the right to counsel, defendant contends that because he asked a question regarding the effect of having an attorney, the record supports an intent to invoke his right to counsel and the questioning should have ceased. We disagree.
“In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence or counsel.” (People v. Stitely (2005) 35 Cal.4th 514, 535, quoting Davis v. U.S., supra, 512 U.S. at p. 459, italics omitted.) “If an accused makes a statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no statement, the police are not required to end the interrogation, [citation], or ask questions to clarify whether the accused wants to invoke his or her Miranda rights.” (Berghuis v. Thompkins (2010) __ U.S. __ [2010 U.S. LEXIS 4379, *19-20], quoting Davis v. U.S., supra, 512 U.S. at pp. 461-462.) “It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda, [citation], either to ask clarifying questions or to cease questioning altogether.” (People v. Stitely, supra, at p. 535, italics omitted.)
In People v. Gonzalez (2005) 35 Cal.4th 1111, 1125-1126 the Supreme Court found no violation of Miranda where the defendant said he wanted to talk to a public defender if he was being charged and police continued to question him. In People v. Michaels (2002) 28 Cal.4th 486, the court found no Miranda violation where questioning continued after the defendant was asked to describe the crime and said: “‘I don’t know if I should without an attorney.’” (Id. at p. 509, italics omitted.) In People v. Crittenden (1994) 9 Cal.4th 83, the court found no violation where, after being advised of his rights, the defendant asked: “‘Did you say I could have a lawyer?’” but did not make any further comment when told that he could if he wanted. (Id. at p. 124.) Here, defendant similarly asked about the effect of having a lawyer or whether it would help to not have a lawyer, but did not unambiguously assert his right to counsel, although the deputies stated that he could have an attorney if he wanted and that the decision was up to him. Under the applicable authorities, there was no Miranda violation because defendant failed to unambiguously request counsel. Therefore, there was no obligation on the part of the deputies to cease questioning him and no basis for excluding his final interview.
B. Ineffective Assistance of Counsel
Defendant contends that defense counsel rendered ineffective assistance because he failed to elicit more detailed testimony from the coroner with respect to the healed fractures found when Yahir’s body was examined. Defendant contends this evidence could have led the jury to believe that another person committed the abuse that led to Yahir’s death.
1. Background
During the first trial, defendant was represented by retained counsel, William Hardy. In his cross-examination of the coroner, Hardy elicited information about the fractures revealed by the postmortem x-rays of Yahir’s body. The coroner testified that the radiologist identified “possible fractures” and believed they “potentially” indicated child abuse. The coroner further testified during cross-examination that the fractures could have been the result of blunt force trauma, such as squeezing or twisting Yahir’s hands or arms. The coroner estimated the fractures to have occurred up to six weeks prior to death. At the first trial, the jury acquitted defendant of second degree murder and hung -- eleven to one in favor of conviction -- on the charge of assault on a child, causing death. At the second trial, the coroner testified concerning the existence of healed fractures revealed by postmortem x-rays, but defendant’s appointed attorney, Charles Uhalley, did not elicit detailed information from the coroner or argue that a third party caused the fatal injuries. Instead, he argued that there was no evidence that defendant had the specific intent required to establish the section 273ab violation.
2. Analysis
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel. [Citations.] The ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result. [Citations.] [¶] Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to ‘the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 215, italics omitted, quoting U.S. v. De Coster (D.C.Cir. 1973) 487 F.2d 1197, 1202.)
In order to establish ineffective assistance of counsel sufficient to overturn a conviction, the defendant must show: “(1) deficient performance under an objective standard of professional reasonableness and (2) prejudice under a test of reasonable probability of an adverse effect on the outcome. [Citation.]” (People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. omitted, overruled in part on another ground in People v. Hill (1998) 17 Cal.4th 800.) Defendant fails in both respects.
Defendant’s attempt to persuade us that Uhalley’s performance was deficient by comparing his cross-examination of the coroner to Hardy’s, overlooks that in the first trial, the jury deadlocked eleven to one in favor of conviction of assaulting a child, causing death. Accordingly, Hardy’s tactical decision to highlight the fractures in order to deflect blame from defendant was far from an unmitigated success. This is not surprising as the evidence of the preexisting bone fractures was a two-edged sword -- there was no direct evidence concerning who had inflicted the injuries, and defendant, due to his longstanding relationship with Elizabeth, was as likely to have been the culprit as any other adult in Yahir’s life. Moreover, the evidence at the second trial in favor of defendant’s having inflicted the fatal injuries was overwhelming. Defendant admitted it in the interviews with the deputies, and Elizabeth’s testimony concerning Yahir’s behavior immediately before and after he was left alone with defendant confirmed that something unpleasant had happened to the baby when he was in defendant’s care. “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel.” (People v. Lucas (1995) 12 Cal.4th 415, 436.) Uhalley, aware of the results of the first trial, made the tactical decision to highlight defendant’s statements to the deputies indicating that his actions were unintentional in order to persuade the jurors to reject the more serious charge and convict instead on one of the lesser assault charges. We see no basis for second-guessing his tactical choice and no reason to believe the outcome would have been different had he prolonged his cross-examination of the coroner.
C. Appointment of Retained Counsel
Defendant contends that the trial court abused its discretion in denying a motion made prior to the second trial to appoint Hardy to represent him. We find no abuse of discretion.
1. Background
As discussed, retained counsel Hardy represented defendant at his first trial. Prior to the second trial, Hardy submitted a motion pursuant to Harris v. Superior Court (1977) 19 Cal.3d 786 (Harris), to be appointed to represent defendant. In the moving papers, Hardy stated that he had reviewed the file “several” times during his seven-month involvement with the case, visited defendant “frequently, ” and developed a “close relationship” with defendant and his wife, and that he was “very familiar” with the facts of the case. Defendant stated in a separate declaration that Hardy had spent a “considerable time” going over the facts of the case and the lines of defense and that he had “a great deal of confidence” in Hardy. The court denied the request without explanation. Subsequently, both the public defender and alternate public defender reported unavailability and Uhalley was appointed to be defendant’s defense counsel. After appointing Uhalley, the court stated to defendant: “Mr. Uhalley is totally unfamiliar with your case. He needs to get all the documents, papers, transcripts, so he’s asking to continue your matter for pretrial/trial setting [for approximately one month].” Trial commenced approximately nine months later.
2. Analysis
Section 987.2 generally requires appointment of public defenders, alternate public defenders, or attorneys that have contracted with the county to provide criminal defense services to represent indigent defendants. (See Alexander v. Superior Court (1994) 22 Cal.App.4th 901, 910 [“In Los Angeles County, pursuant to section 987.2, indigent criminal defendants... are represented by the public defender. If the public defender is unable to represent a defendant because of a conflict of interest, the alternate defense counsel is assigned to represent the defendant. If the alternate defense counsel is unable to represent a defendant because of a conflict of interest, private counsel is assigned.”].) Section 987.2 further provides, however, that “[i]n the interest of justice, ” the court may depart from the portions of the statute requiring appointment of “second public defender[s]” and county-contracted attorneys “after making a finding of good cause and stating the reasons therefor on the record.” (§ 987.2, subds. (d), (e).)
“The appointment of counsel for indigent defendants under section 987.2 rests within the sound discretion of the trial court.” (People v. Horton (1995) 11 Cal.4th 1068, 1098.) In Harris, retained counsel established that they had been involved in legal and criminal proceedings involving the defendants (members of the Symbionese Liberation Army charged with kidnapping Patty Hearst) for more than a year, through numerous pre-trial motions, a six-week trial and an appeal on a related charge, and were familiar with the “vast amounts” of documentary material involved, including an 800-page FBI report and the transcript of a related federal criminal proceeding. One of the attorneys seeking appointment stated that he had “coordinate[d] facts and trial strategies with attorneys for eight other persons” and that “his professional time has been almost exclusively devoted to the representation of the [defendants].” (Harris, supra, 19 Cal.3d at pp. 797-798, fn. 10.) The court held that although “the [trial] court’s discretion in the appointment of counsel is not to be limited or constrained by a defendant’s bare statement of personal preference, ... when that statement of preference, timely made, is supported by objective considerations of the consequence here involved, and where there are no countervailing considerations of comparable weight, it is an abuse of sound judicial discretion to deny the defendant’s request to appoint the counsel of his preference.” (Id. at p. 799.)
Harris represented an unusual combination of factors that has not often been duplicated. Rarely is a trial court compelled to exercise its discretion in favor of appointing defendant’s preferred counsel, even where preferred counsel has represented the defendant for some period of time and holds defendant’s confidence. For example, in People v. Cole (2004) 33 Cal.4th 1158, the request for appointment was based on the fact that defendant’s preferred counsel had “personally interviewed and developed rapport with numerous potential witnesses, that different counsel could duplicate such rapport only by expending considerable time interviewing and otherwise spending time with these potential witnesses, and that he was the only counsel with whom defendant had had contact.” (Id. at pp. 1186-1187.) Defendant stated in a separate declaration “that he did not want a new attorney who was unfamiliar with his case and would require additional time to become as familiar with it” and that the attorney seeking appointment “could devote more time to his case than the [alternate public defender] because of a lighter caseload.” (Id. at p. 1187.) The court concluded, however, that “[n]othing in the record... demonstrates that the relationship between defendant and [counsel] ever approached the depth of the relationship between the petitioners and their requested counsel in Harris, ” and held that the trial court’s denial of the motion to appoint defendant’s preferred counsel “constituted a proper exercise of discretion.” (Ibid.)
More recently, in Gressett v. Superior Court (2010) 185 Cal.App.4th 114, counsel seeking appointment stated he had “reviewed existing discovery, listened to ‘countless hours of audio taped interviews, ’ and [] devoted 200 unpaid hours to the case.” (Id. at p. 121.) Nevertheless, the court found the circumstances “patently distinguishable” from Harris: “[N]othing in the record suggests that [counsel’s] work during [his representation] was comparable to the extensive involvement of the attorneys in Harris in related jury trials, appeals and other proceedings. [Citation.] Instead, the work performed by [counsel] was no different than would be expected of any competent attorney, retained or appointed, who represented a defendant prior to superior court arraignment....” (Id. at p. 123, fn. omitted; see also People v. Horton, supra, 11 Cal.4th at pp. 1099-1100 [trial court did not abuse its discretion in refusing requested appointment, where counsel failed to demonstrate “a familiarity with the issues or evidence that newly appointed counsel would be unable to achieve without considerable duplication of time and effort.”].)
Here, the fact that Hardy represented defendant in the first, comparatively short trial and was familiar with the straightforward facts of the case did not compel his appointment to represent defendant at the second trial. Defendant was represented by competent counsel who appeared familiar with the facts and formulated a strategy in line with the evidence and arguments likely to be presented by the prosecution. Although the trial court made no express findings on the record, there is no reason to believe it ignored the Harris factors when it denied the appointment. We find no abuse of discretion in the denial of the motion.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
In the information, defendant was also charged with murder (§ 187, subdivision (a)). He was acquitted of this charge in his first trial, which resulted in a hung jury on the section 273ab charge.