P. v. Santillan

Filed 1/27/10 P. v. Santillan CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Cynthia A. Bashant, Judge. Affirmed.

A jury convicted George Ivan Santillan of two counts of lewd act on a child under 14 years old. (Pen. Code,  288, subd. (a).) The jury also found true allegations of substantial sexual contact. (Pen. Code,  1203.066, subd. (a)(8).) The trial court sentenced Santillan to an aggregate term of eight years in prison.

On appeal, Santillan contends the trial court erred by denying his motion to suppress inculpatory statements he made to the police without first being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The National City Police Department received a report alleging Santillan had engaged in unlawful sexual conduct with a minor.[1] Twelve days after receiving the report, Detective Kenneth Gelskey telephoned Santillan, informed Santillan he was investigating an unspecified crime, and asked Santillan if he was willing to come to the police station for an interview. Santillan agreed, suggesting they meet the following morning. The next morning Santillan walked to the police station and met Gelskey who escorted him through a secured door to an interview room. Gelskey was dressed in business attire and was the only officer present during the interview. The door to the room was closed, but was not locked.

Gelskey initially collected Santillan's biographical information, and then advised Santillan that he was not under arrest, was not being detained, and was free to go if at any point he did not want to talk. Santillan replied he wanted to help. The interview lasted approximately three hours.

Midway through the interview Santillan admitted to engaging in sexual conduct with the minor, but insisted the minor solicited it. Gelskey offered Santillan the opportunity to write the district attorney a letter explaining his side of the story. Gelskey left the room while Santillan wrote the letter, and told him to knock on the door when he finished. Near the end of the interview Santillan said he needed to leave for work as soon as Gelskey indicated it was okay for him to leave. The two discussed some ancillary matters, and then arranged for another meeting the following week. Santillan left the police station when the interview concluded. The police did not arrest him until two or three weeks later.

Before trial, defense counsel moved to suppress Santillan's statements to Gelskey because Gelskey had not advised Santillan of his Miranda rights beforehand. The trial court denied the motion, finding Santillan was not in custody when he made the statements and, therefore, Gelskey was not required to advise him of his Miranda rights.

DISCUSSION

The Fifth Amendment states that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." (U.S. Const., 5th Amend.) "When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized." (Miranda, supra, 384 U.S. 436, 478.) Once in custody, the suspect "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." (Ibid.) However, "police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.' " (Oregon v. Mathiason (1977) 429 U.S. 492, 495.)

To determine whether a person is "in custody," courts consider a variety of factors, with no one factor being dispositive. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) The most important considerations include: (1) the site of the interrogation, (2) whether objective indicia of arrest are present, (3) whether the investigation has focused on the subject, and (4) the length and form of questioning. (Ibid.) The ultimate inquiry is whether an objectively reasonable person would feel free to leave under the totality of the circumstances. (People v. Stansbury (1995) 9 Cal.4th 824, 830.)

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.) We review the trial court's factual findings for substantial evidence and the ultimate determination de novo. (Id. at p. 402.)

In this case, although Gelskey interviewed Santillan at the police station, Santillan chose the date and time for the interview and transported himself to it. Gelskey was dressed in business attire and was the only officer present. During the introductory portion of the interview, Gelskey specifically informed Santillan he was not under arrest and was free to leave at any time. In addition, the record does not suggest the presence of any indicia of arrest, such as displaying a gun or handcuffs, and Santillan left the police station when the interview concluded.

While Gelskey's investigation focused on Santillan and the interview lasted for nearly three hours, Gelskey conducted the interview in a nonconfrontational, low-key manner. In addition, much of the interview time involved collecting biographical information, writing the letter, and chatting. Gelskey did not mention the crime being investigated until well into the interview, and Santillan confessed shortly afterwards.

Although Gelskey left Santillan alone in the interview room to write the letter and told Santillan to knock if he needed anything, this does not show Santillan was in custody. (People v. Zamudio (2008) 43 Cal.4th 327, 344) [suspects not in custody while awaiting interview in the interior of the station when an officer stood guard to assist them in the event they needed anything and to keep them from nosing around the police department].) Santillan's remarks near the end of the interview about needing to leave for work when it was okay with Gelskey also do not show Santillan was in custody. In context, Santillan was essentially inquiring whether Gelskey needed any further information before the interview concluded rather than expressing a belief he could not leave without Gelskey's permission. In fact, in the same exchange Santillan noted that he lived nearby and Gelskey had his cell phone number if Gelskey needed anything, reflecting a recognition he was not under arrest and was able to leave. Furthermore, after that point in the interview, Santillan primarily drove the discussion and it largely involved ancillary matters, including making arrangements for a follow-up interview. Accordingly, we conclude under the totality of the circumstances Santillan was not in custody when he made the inculpatory statements to Gelskey and the trial court did not err in denying Santillan's motion to suppress them.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

NARES, J.

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[1] We omit further facts underlying Santillan's offenses as they are not relevant to the issue raised in this appeal.