P. v. Perez
Filed 11/5/13 P. v. Perez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE PEREZ,
Defendant and Appellant.
B242119
(Los Angeles County
Super. Ct. No. LA064981)
APPEAL from a judgment of
the Superior Court of
County, Michael K. Kellogg, Judge.
Affirmed.
Jennifer A. Mannix, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant Jose Perez challenges his
convictions for kidnapping to commit rape,
attempted kidnapping to commit rape, and other offenses. He contends the trial court erred in declining
to suppress his statements to police, arguing that he asserted his
counsel under Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda). We reject the contentions and affirm.
On
July 1, 2011, an 11-count information was filed, alleging that appellant committed
offenses against five victims. The
information charged appellant with attempted forcible rape and kidnapping to
commit other crimes regarding Emily M. (Pen. Code, §§ 261, subd. (a)(2), 209,
subd. (b)(1); counts 1 and 7); attempted kidnapping to commit another crime regarding
V.M. (Pen. Code, §§ 209, subd. (b)(1), 664; count 2); lewd acts upon a child
regarding Kaylie S. (Pen. Code, § 288, subd. (c)(1); count 3); kidnapping to
commit another crime regarding Debbie F. (Pen. Code, § 209, subd. (b)(1); count
4); and attempted kidnapping to commit another crime regarding Jessica F. (Pen.
Code, §§ 209, subd. (b)(1), 664; count 5).
Furthermore, with respect to each victim, the information charged appellant
with assault with intent to commit a felony (§ 220, subd. (a); counts 6, 8
through 11). Accompanying counts 1, 7,
and 8 were allegations that appellant inflicted great bodily injury (§ 12022.8).
Appellant pleaded not guilty to all the
counts and denied the special allegations. Prior to trial, the charge of lewd acts upon a
child (count 3) was dismissed.
At
the beginning of the trial, the court denied appellant’s motion to suppress
certain statements that he made to Los Angeles Police Department (LAPD)
detectives, and later denied his motion for reconsideration of the ruling. A jury found appellant guilty as charged on
all counts, with the exception of count 10. Regarding count 10, the jury found appellant
guilty of the lesser included offense of assault against Kaylie S. The jury also found true the great bodily
injury allegations asserted in connection with counts 1, 7, and 8. The trial court sentenced appellant to two
terms of life imprisonment plus 17 years.
FACTUAL BACKGROUND
A.
1.
8)
Emily M. was born in May 1993. On March 19, 2009, at approximately 5:55
p.m., she was seated in a secluded outdoor area of the Sherman Oaks Center for
Enriched Studies, studying for a test.
She saw a Hispanic man standing nearby, watching children on a playing field.
He looked into the school windows, and
then jumped over a brick wall. Moments
later, he placed his hands over Emily’s mouth and said, “Shut up.†When she resisted, he punched her face. As she retreated from him, his punches made
her fall, but she repeatedly got back up on her feet. She eventually found herself on the ground in
some bushes, where he choked her and tried to remove her pants and underwear. Emily held onto her clothes and kicked the
man, who eventually ran out of the school yard.
After the incident, Emily’s left eye orbital was determined
to be fractured. DNA material found on
Emily’s top matched appellant’s DNA.
2.
approximately 5:30 p.m., Jessica F. was walking home from school. She was then 15 years old. She noticed a man driving a silver Volkswagen
up and down the street, and thought that he might be looking for a street corn
vendor. The man parked near a corn
vendor, and walked past her. From behind
her, he put an arm around her neck, placed a hand on her mouth, and dragged her
toward his car, whose rear passenger door was open. Jessica noticed that there was a tattoo on the
man’s right forearm. In an effort to
escape, Jessica hit the man in the head with a water bottle that she had been
holding. The blow caused the man to fall
and release her. He ran to his car,
closed the rear passenger door, and drove away.
At trial, Jessica identified appellant as her assailant,
and appellant showed the jury his right forearm, which bore a tattoo that read
“Destinee.â€
title="">[2]
3.
V.M. was born in February 1996. On November 11, 2009, at approximately 2:00
p.m., she was walking to a friend’s house when she noticed a Hispanic man in
front of her on the sidewalk. He grabbed
her and tried to push her into a nearby car, whose rear door was open. Her screams attracted the attention of two 13-year-old
boys, Chris May and Connor Mcaree, who tried to assist her. V. resisted the man, slipped out of his grip,
and ran from him. The man then drove
away. At trial, May and Mcaree identified
appellant as V.’s assailant.
4.
On April 26, 2010, at approximately 4:25 p.m., Kaylie S. --
then 14 years old -- was waiting in front of her younger brother’s elementary
school. She planned to meet her brother
and ride home with her parents. Appellant drove past her in a gray Volkswagen
Jetta, made a U-turn, and parked his car.
He left the car and asked Kaylie whether she had seen a certain small
child. She noticed that he had the name
“Destinee†tattooed on one of his arms. Appellant
asked her several questions, including whether he could have her phone number,
and then grabbed her left breast with his hand. Kaylie pushed him away, entered the school,
and phoned 911. When police officers
arrived, she gave them the Jetta’s license plate number. The officers later determined that appellant
was a registered owner of the Jetta.
5.
Debbie F. was born in November 1991. On April 28, 2010, at approximately 3:30
p.m., she was walking from her high school to her father’s house. As she neared the house, she entered an alley
and saw a parked white SUV. A man left
the SUV and opened the vehicle’s rear door.
As Debbie began to unlatch the gate to the yard of her father’s house, the
man grabbed her legs, lifted her off the ground, and threw her onto the SUV’s
rear seat. Debbie then heard shouts from
her uncle, Douglas Sanchez. She fled
from the SUV, which drove away.
Sanchez noted the SUV’s license plate number, and provided
it to the police officers who responded to his 911 call. Shortly afterward, appellant was detained
while driving a white SUV bearing the reported license plate number. Appellant was later determined to be a
registered owner of the SUV.
6.
On April 28, 2010, LAPD Detectives Alvarez and Cole interviewed
appellant regarding the attempted kidnapping of Debbie F. After Alvarez advised appellant of his
Miranda rights, appellant agreed to
the interview and denied any misconduct regarding Debbie F.
The next day, on April 29, 2010, LAPD Detectives Doerbecker
and Blizzard interviewed appellant. At
the beginning of the interview, Doerbecker reminded appellant that Alvarez and
Cole had advised him regarding his Miranda
rights, and that he had waived them before speaking to Alvarez and Cole. Appellant agreed to talk to Doerbecker and Blizzard.
Appellant said that when he saw Debbie F., she winked at
him. He maintained that he only wanted
to scare her, and that he had no plan to rape or kill her. He stopped his car, picked her up off the
ground, and tried to put her in his car. When “some guy came out,†he drove away.
Appellant further stated that he saw Kaylie S. near an
elementary school while driving his girlfriend’s Jetta. He parked the car, approached her, and grabbed
her breast, but left when she told him to stop.
Regarding Emily M., appellant stated that he was walking
around the campus of the Sherman Oaks Center for Enriched Studies
when he began talking to her. A fist fight between them ensued, and after a
while, he walked away. He denied that he
intended to kill Emily, but admitted that he wanted to have sex with her.
Appellant acknowledged that he grabbed V.M., but denied any
recollection of the incident involving Jessica F. He further stated that he had attacked as many
as ten victims. After the attacks, he
went home and masturbated. He said that
his fantasy was to be able to rape somebody, and that he had once paid a
prostitute to act out a rape fantasy.
B.
LAPD Detective Katherine Gosser testified that
on March 19, 2009, she spoke to Emily M. in a hospital in Tarzana. Emily said that her assailant covered her face
with his hands and said, “Sh,†which Emily understood to mean, “Don’t say
anything.†He then pushed her to the
ground, and repeatedly kicked and punched her.
When she tried to stand up, he shoved her back down. She moved away from him, but he followed
her. Eventually, he pushed her into some
bushes and began choking her. He also
tried to rip her clothing off. She
resisted furiously and broke his grip on her.
LAPD
Detective Scott Crowe testified that after the incident involving V.M., he
interviewed Chris May. According to
Crowe, May said that he could not identify V.’s assailant because he saw him at
a distance.
LAPD
Officer Jusef Kassis testified that when he interviewed Jessica F., she recalled
no tattoos on her assailant.
name="_ftnref3" title="">[3]
DISCUSSION
Appellant
contends the trial court erred in denying his motions to suppress his
statements during the April 29, 2010 interview with Detective Doerbecker and
his colleagues. As explained below, we
disagree.
A. Governing
Principles
In
Miranda, the
States Supreme Court “adopted a set of prophylactic measures to protect a
suspect’s Fifth Amendment right from the ‘inherently compelling pressures’ of
custodial interrogation. [Citation.]
. . . [¶]
pressure, Miranda announced that police officers must warn a suspect
prior to questioning
remain silent, and a right to the presence of an attorney. [Citation.]
After the warnings are given, if the suspect indicates that he wishes to
remain silent, the interrogation must cease. [Citation.] Similarly, if the suspect states that he wants
an attorney, the interrogation must cease until an attorney is present. [Citation.]
Critically, however, a suspect can waive these rights. [Citation.]†(Maryland
v. Shatzer (2010) 559 U.S. 98, 103-104.)
Once
suspects have waived their Miranda
rights, in order to halt police questioning after it has begun, suspects must
“unambiguously†assert their right to counsel or silence. (Davis
v. United States (1994) 512 U.S. 452, 459 [right to counsel] (
2260] [right to silence] (Berghuis).)
Thus, after a suspect’s
suspect makes an ambiguous or equivocal statement concerning the right to
counsel or silence, the police are not required to end the interrogation, or
ask questions to clarify whether the suspect wishes to invoke his or her
supra, 512 U.S. at pp. 461-462;
silence is assessed by reference to how a reasonable police officer would
understand the suspect’s remarks. (
supra, 130 S.Ct. at p. 2260;
376-378 (Nelson).)
“In
reviewing Miranda issues on appeal, we accept the trial court’s
resolution of disputed facts and inferences as well as its evaluations of
credibility if substantially supported, but independently determine from undisputed
facts and facts found by the trial court whether the challenged statement was
legally obtained.†(People v. Smith
(2007) 40 Cal.4th 483, 502.)
B. Interviews
1. First
Interview
On April 28, 2010, LAPD Detectives
Alvarez and Cole interviewed appellant regarding the incident involving Debbie
F. Shortly after the interview began,
Cole advised appellant of his Miranda
rights, and appellant affirmed that he understood those rights:
“Detective
Cole: . . . You have the right to remain silent. Do you understand?
“[Appellant]: Yes.
“[Detective
Cole: Anything you say may be used
against you in court. Do you understand?
“[Appellant]: Yes.
“Detective
Cole: You have the right to the presence
of an attorney before and during any questioning, Do you understand?
“[Appellant]: Yes.
“Detective
Cole: If you cannot afford an attorney,
one will be appointed for you free of charge, before any questioning, if you
want. Do you understand?
“[Appellant]: Yes.â€
Following
the advisements, appellant agreed to “talk about what happened.†Throughout the
interview, appellant repeatedly denied that he attempted to kidnap Debbie
F.
Near
the midpoint of the interview, Detective Sanchez joined Detectives Alvarez and
Cole. Sanchez told appellant: “So, again, let me emphasize. The reason you are here is to give your side
of the story. . . . If you don’t want to
say anything, that’s fine. That’s your
right. Be quiet. Don’t answer any questions and we’ll go
off. We’ll all leave. You go to jail and you go to court sometime
in the future. . . .†Appellant replied, “Okay.â€
Shortly
afterward, Alvarez told appellant that his public defender would explain that
“an attempt†was the same as “completing the act,†and Sanchez urged appellant
to “give a statement.†The following
colloquy then occurred:
“[Appellant]: I’m not going to say anything no more. You guys can’t make me say anything. I’m not going to say --
“Detective
Sanchez: What’s that?
“[Appellant]: I’m not going to say anything no more.
“Detective
Sanchez: You don’t want to answer any
more questions?
“[Appellant]: No more questions.â€
“Detective
Sanchez: All right.â€
When
the detectives asked appellant to stand up and relax, the following exchange
took place:
“Detective
Sanchez: Are you willing to take a lie
detector test?
“[Appellant]: Yeah.
“Detective
Sanchez: Yes? Good.
We’ll get that set up for you.
“[Appellant]: All right.â€
After appellant agreed to the
polygraph test, the interview ended.
2. Second
Interview
The
next day, appellant was interviewed by Detectives Doerbecker and Blizzard. At the beginning of the interview, Blizzard
reminded appellant that he had talked to detectives the previous night. The following dialogue then occurred:
“Detective
Blizzard: . . . And I know that the detectives admonished you
of your Miranda rights.
“[Appellant]: Yes.
“Detective
Blizzard: Of your rights.
“[Appellant]: Yes.
“Detective
Blizzard: And you waived your rights and
you agreed to speak to them.
“[Appellant]: Yes.
“Detective
Blizzard: Okay. So you want to talk to my partner and I as
well?
“[Appellant]:
Okay.
“Detective
Blizzard: It that okay?
“[Appellant]: Yeah.â€
When
Blizzard urged appellant to describe what had happened regarding Jessica F., appellant initialed the following
dialogue:
“[Appellant]: Can I ask a question?
“Detective
Blizzard: Yes.
“[Appellant]: How come I haven’t talked to a, like,
attorney or something?
“Detective
Blizzard: How come what?
“[Appellant]: That I haven’t talked to, like to an attorney
or something like that?
“Detective
Blizzard: Because --
“Detective
Doerbecker: You’ll -- you’ll get
assigned an attorney when you’re arraigned if you -- if you want one free from
the state. They’ll give you one then. If you want to hire one, you can hire one
whenever you want[,] but that’s why.â€
Appellant
made no further references to an attorney. In response to the detectives’ questions, he admitted
his participation in several of the offenses charged against him.
C. Underlying
Proceedings
Prior
to trial, appellant filed a motion to
suppress his statements during the second interview, arguing that Doerbecker
and Blizzard failed to re-advise him of his Miranda
rights, and questioned him after he invoked his right to counsel. In denying the motion, the trial court concluded
that during the first interview, Cole gave “clear and sufficient†advisements
regarding appellant’s Miranda rights,
and that at the beginning of the second interview, Doerbecker and Blizzard
provided an “implied readvisement†of those rights. The court further determined that during the
second interview, appellant did not invoke his right to counsel when he asked
why he had not spoken to an attorney. Although
the trial court remarked that Doerbeker’s response to appellant’s question was
“troubling,†it found no defect of “constitutional dimension[]†that mandated
suppressing appellant’s statements.
Later,
appellant asked the court to reconsider its ruling, arguing that he invoked his
right to remain silent at the end of the first interview. The court concluded that appellant made no
“clear invocation of his right to remain silent,†noting that appellant
immediately agreed to a polygraph test, which necessarily involved further
questioning, and later agreed to talk to Doerbecker and Blizzard after they
reminded him that he had heard and waived his Miranda rights.
D. Appellant’s
Contentions
invoked his right to silence at the end of the first interview, and
unequivocally invoked his right to counsel during the second interview.
1. No
Invocation of Right to Silence
We
agree with the trial court that appellant did not invoke his right to silence
during the first interview. After the
suspect has waived his right to silence, officers are not obliged to stop their
questioning absent an unambiguous invocation of that right. (Berghuis,
continue questioning unless the suspect clearly invokes the right to silence,
as determined under the reasonable-officer standard. (Nelson,
supra, 53 Cal.4th at p. 377.) Although it is often “good police practiceâ€
for officers to make clarifying inquiries when the suspect makes an ambiguous
or equivocal statement, there is no duty to do so. (See Davis,
supra, 512 U.S. at p. 461;
Under
these principles, remarks that facially suggest a desire to halt police
questioning do not, in fact, invoke the right to silence if they are reasonably
viewed as unclear or equivocal. (
supra, 53 Cal.4th 367.) In People
v. Stitely (2005) 35 Cal.4th 514, 534, the defendant denied his complicity
in the underlying crime and said to the interrogating officer, “I think it’s
about time for me to stop talking.â€
However, when the officer responded, “You can stop talking,†the suspect
continued to deny that he committed the crime. (Ibid., italics
omitted.) Our Supreme Court determined that
a reasonable officer would have concluded that the suspect’s remark expressed
only “apparent frustration,†rather than an unequivocal desire to stop the
interrogation. (Id. at pp. 535-536.) In
so holding, the court noted that the officer gave the suspect a clear
opportunity to invoke his right to silence by stopping the interview and reminding
him of his right to “‘stop talking.’†(
In
People v. Jennings (1988) 46 Cal.3d
963, 977, the defendant said to the interrogating officers, “I’ll tell you
something right now. You’re scaring the
living shit out of me. I’m not going to
talk.,†and “I’m not saying shit to you no more, man. You, nothing personal man, but I don’t like
you. You’re scaring the living shit out
of me. . . . That’s it. I shut up.â€
Shortly thereafter, the defendant apologized for his remarks and
continued to answer questions. (Id.
at p. 979.) In view of the defendant’s
conduct and the circumstances surrounding the interrogation, our Supreme Court
concluded that his statements did not invoke the right to silence, but
expressed “only momentary frustration and animosity†toward one of the
interrogating officers. (
Again,
in Martinez, a detective issued
who agreed to an interview regarding a specific assault. (Martinez,
supra, 47 Cal.4th at pp. 944-945.)
When the defendant said, “‘That’s all I can tell you,’†the detective
ended the interrogation. (
with the defendant, reminded him that he had previously waived his
regarding the assault and other crimes. (
at p. 945.) In response, the detectives
announced that they intended to take a break, urged the defendant to “‘think
about it,’†and said that they would come back and talk to him. (Id.
at pp. 951-952.) The defendant replied,
“‘Okay,’†and the detectives resumed their questioning after a break. (Id.
at 952.)
In
concluding that the defendant did not invoke his right to silence during the
initial interrogation, the Supreme Court determined that the defendant’s
remark, “That’s all I can tell you,†was reasonably viewed as merely meaning, “‘That’s
my story, and I will stick with it.’†(
detectives conducting the second interview were not obliged to re-administer
response to their reminder showed his understanding of the Miranda rights. (
statement during the second interview did not invoke his right to silence,
remarking that the detectives employed “‘good police practice’†aimed at clarifying
the defendant’s statement by proposing a break and encouraging him to “‘think
about it.’†(Id. at pp. 951-952, quoting Davis,
supra, 512 U.S. at p. 461.)
We
conclude that appellant never invoked his right to silence during the first
interview. To begin, the record shows
that appellant was clearly apprised of that right and understood it. In addition to the Miranda advisements administered by Cole, Sanchez told
appellant: “So, again, let me emphasize.
. . . If you don’t want to say anything, that’s fine. That’s your right. Be quiet.
Don’t answer any questions and we’ll go off. We’ll all leave. You go to jail and you go to court sometime
in the future. . . .†In replying “Okay,†appellant manifested
his understanding that he was entitled to end all questioning.
The
record also establishes that appellant never invoked that right, as determined under
the “bright-line rule†(Nelson,
no more. You guys can’t make me say anything,†and later, “No more
questions.†(Italics added.) In response, the detectives halted their
questioning. However, in view of the
italicized phrase, it was reasonable for Sanchez to clarify whether appellant’s
statements expressed transitory frustration toward the detectives, rather than
a unequivocal desire to end questioning, by asking whether appellant would take
a polygraph test. Because appellant
agreed to the test, he necessarily approved further questioning. Furthermore, the next day, appellant agreed
to questioning by Doerbecker and Blizzard after
they reminded him of his Miranda
rights.
Appellant’s
reliance on Michigan v. Mosley (1975)
423 U.S. 96 and People v. DeLeon
(1994) 22 Cal.App.4th 1265 is misplaced. In each case, the defendant was advised of his
Miranda rights and clearly invoked them
regarding a specific crime, but agreed to a second interview regarding other
crimes after receiving a fresh set of Miranda
advisements. (Michigan v. Mosley, supra,
423 U.S. at pp.104-105; People v. DeLeon,
supra, 22 Cal.App.4th at p. 1268.) The courts held that the second interview did
not contravene the defendant’s invocation of his Miranda rights because it concerned different crimes. (Michigan
v. Mosley, supra, at pp. 105-106;
People v. DeLeon,
his right to silence during the first interview.
2. No
Invocation of Right to Counsel
We
also agree with the trial court that appellant did not invoke his right to
counsel during the second interview. Generally,
to invoke that right, “[t]he suspect must articulate sufficiently clearly his
or her desire to have counsel present so that a reasonable officer in the
circumstances would understand the statement to be a request for an attorney. [Citation.]
‘[I]f a suspect makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the circumstances
would have understood only that the suspect might be invoking the right
to counsel, our precedents do not require the cessation of questioning.’ [Citation.]†(People
v. Williams (2010) 49 Cal.4th 405, 432 (Williams), quoting Davis,
supra, 512 U.S. at p. 459.)
An
instructive application of these principles is found in Williams and People v. Davis
(2009) 46 Cal.4th 539. In
interview with the interrogating detectives, who suggested that he was
complicit in a murder. (
431-432.) The defendant said, “‘I want
to see my attorney cause you’re all bullshitting now,’†but denied that he
participated in the crime. (
attorney now or do you want to talk to us?,’†the defendant replied, “‘I’ll
talk to him,’†but nonetheless agreed to continue the interview on the
condition that one of the detectives remained silent. (Ibid.,
italics omitted.) The Supreme Court
concluded that viewed in the totality of the circumstances, the defendant’s
references to an attorney constituted an expression of frustration, rather than
an invocation of the right to counsel. (
In
People v. Davis, when the
interrogating detectives accused the defendant of a kidnapping, he responded, “‘Well
then book me and let’s get a lawyer and let’s go for it.’†(People
v. Davis, supra, 46 Cal.4th at pp. 587-588.) The defendant further stated that he would
answer what he called “routine questions,†but resented accusations that he
participated in the crime. (
defendant’s remark to the detectives constituted the defendant’s application of
a “‘challenge’†technique to deflect questions, rather than a request for
counsel. (Id. at p. 587.)
Here,
the record establishes that appellant did not invoke his right to counsel. To begin, we note that appellant never expressly
requested counsel, even when Alvarez suggested during the first interview that
appellant’s public defender would explain to him that “an attempt†was the same
as “completing the act.†Rather, when
appellant made the pertinent reference to an attorney during the second
interview, he framed his remark as a request for information. The record discloses the following dialogue:
“[Appellant]: Can I ask a question?
“Detective
Blizzard: Yes.
“[Appellant]: How come I haven’t talked to a, like,
attorney or something?
“Detective
Blizzard: How come what?
“[Appellant]: That I haven’t talked to, like to an attorney
or something like that?â€
Because
appellant had never asked to talk to an attorney, yet used the past tense to
express his question, Blizzard reasonably interpreted appellant to be inquiring
how and when he might obtain representation, as no attorney had talked to him
up to that point. That inquiry is
unsurprising, in view of the fact that the Miranda
advisements appellant received did not expressly advise him when, in the absence
of a request for counsel, an attorney would be appointed to represent him.
Duckworth v. Eagan (1989) 492 U.S.
195, 198, the interrogating officers issued Miranda
advisements to the defendant informing him, inter alia, that he had a right to
counsel during questioning, the right to stop questioning until he had talked
to a lawyer, and the right to stop questioning at any time. In addition, the officers said, “[An attorney]
will be appointed for you, if you wish, if and when you go to court.†(Ibid.,
italics omitted.) After the defendant
waived his rights and confessed to the crime alleged against him, the Seventh
Circuit concluded that the additional information rendered the
defective, reasoning that it suggested that indigents lacked the right to
appointed counsel before any interrogation. (Id.
at p. 199.) The United States Supreme
Court reversed that decision, concluding that the defendant had received
adequate Miranda advisements, and
that the additional information was merely an accurate statement of state
procedure regarding the appointment of counsel. (Id.
at pp. 203-204.) In so holding, the high
court remarked that “it must be relatively commonplace for a suspect, after
receiving Miranda warnings, to ask
when he will obtain counsel.†(
that Blizzard provided to appellant.
Viewed
in the totality of the circumstances, appellant’s inquiry did not constitute a
clear invocation of his right to counsel under Miranda. When Doerbecker
told appellant that an attorney would be appointed for him at his arraignment
unless he hired a private attorney, appellant did not say he wished to speak to
an attorney before further questioning, or even that he wanted counsel
appointed, despite having been previously advised that if he could not afford
an attorney, one would be appointed for him “free of charge, before any
questioning.†Instead, appellant answered
the detectives’ questions with no further reference to counsel, even though he had
been told -- and claimed to have understood -- that he could end the interview
at any time (see pt. D.1, ante). Because appellant’s inquiry was reasonably
interpreted as a general procedural question regarding the appointment of
counsel if he wished representation, rather than a request for counsel, the
interrogating detectives had no duty to clarify the inquiry. (Davis,
supra, 512 U.S. at pp. 461-462;
denying appellant’s motion to suppress his statements.
DISPOSITION
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.
name="_ftn1" title="">[1] All
further statutory citations are to the Penal Code.
name="_ftn2" title="">[2] Jessica acknowledged that after the attack,
she identified a different man as her assailant in a photographic lineup.
