P. v. Singletary

Filed 1/27/10 P. v. Singletary CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed.

Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant Darwun Lemar Singletary guilty of petty theft with a prior (Pen. Code, 666),^[1]a lesser included offense of the charged offense of robbery ( 211), and of commercial burglary ( 459). Defendant admitted that he had sustained a prior strike conviction. ( 667, subds. (a)(1), (b)-(i), 1170.12, subd. (a)-(d).) The trial court later struck a prior serious felony allegation based on the verdict and sentenced defendant to a total term of four years in state prison. Defendants sole contention on appeal is that the trial court erred in denying his motion to suppress his confession in violation of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda). We reject this contention and affirm the judgment.

I

FACTUAL BACKGROUND

On May 14, 2008, around 9:15 p.m., defendant and two other individuals, Armstrong and Todd, entered a grocery store, walked to the liquor section, placed cans of beer in their pockets, and then ran out of the store without paying for the beer. Once they exited the store, the three individuals ran in different directions. The store manager followed defendant. Defendant turned around, grabbed his waistband, and stated, I have a gun. The store manager stopped following defendant and told the other employees to [b]ack off. As defendant got into a white Honda Prelude, the store manager obtained the license plate number of the vehicle and alerted the police.

Officers stopped defendant, along with Todd and Armstrong, who were in a white Honda Prelude. Defendant was sitting in the front passenger seat. Defendant was 19 years old and apparently had no money at the time of his arrest. Five unopened cans of beer were found on the front passenger floorboard. No gun was found in the car or the area around the store.

Prior to questioning defendant, the interviewing officer read defendant his Miranda rights. Defendant initially denied committing the crimes and told the officer he wanted to speak to his stepfather, who was an attorney. The interviewing officer thereafter ceased questioning defendant. Later, while in the holding cell, defendant flagged down the same officer and admitted to going into the grocery store with Todd and Armstrong to steal beer. He also admitted taking two beer cans but denied threatening anyone. Todd also initially declined to give a statement but later admitted to entering the store with defendant and Armstrong with the intent to steal beer. Armstrong also admitted that he had entered the store with defendant and Todd to steal beer.^[2]

Following the detention of defendant and his cohorts, the store manager identified defendant, Todd, and Armstrong as the suspects who ran out of the store. He also identified defendant as the one who stated he had a gun. Store surveillance cameras captured the incident on videotape.

II

DISCUSSION

Defendant contends the trial court erred in denying his motion to suppress his confession. Specifically, he argues his confession should have been suppressed since he had unequivocally invoked his right to counsel and the officer violated his constitutional rights . . . by failing to honor that invocation.

Prior to trial, defendant filed a motion to suppress his confession, asserting that the police had initiated the confession without counsel present and after he had already invoked his right to counsel. A hearing under Evidence Code section 402 on the motion was held on December 8, 2008. At that hearing, Rialto Police Officer Roman Jackson testified that he contacted defendant on May 14, 2008, around 10:15 p.m. After he placed defendant under arrest, he attempted to question defendant regarding the incident at the grocery store. Prior to questioning defendant, Officer Jackson read defendant his Miranda rights from a department-issued Miranda warning card. Officer Jackson indicated that defendant had acknowledged that he understood his Miranda rights and denied going into the grocery store. Defendant also told Officer Jackson that he did not know what the officer was talking about and had no idea why he had been stopped. After Officer Jackson informed defendant that he had been positively identified by one of the store employees, defendant indicated that he did not want to speak anymore and requested an attorney. At that time, Officer Jackson ceased the interview, transported defendant to the police station, and placed him into a holding cell.

About 1:00 a.m., Officer Jackson was flagged down by defendant from his holding cell. Officer Jackson explained that defendant hollered out through the little hole in the door that he wished to talk to me. Officer Jackson advised [defendant] that [defendant] had requested legal counsel and that [Officer Jackson] had no intention of violating [defendants constitutional] rights. Officer Jackson also stated that he was not going to continue having a conversation [with defendant] while [defendant had] requested legal counsel. The officer testified that defendant was willing to give a statement. Officer Jackson again reminded [defendant] of his right to [have an attorney present] and asked [defendant] if he still requested the presence of an attorney prior to any questioning. The officer stated that defendant responded in the negative and that defendant then admitted that he had entered the grocery store with the intent to steal some beer. According to Officer Jackson, defendant also admitted to stealing some beer, but he denied using any force or threatening anyone.

On cross-examination, Officer Jackson admitted that he had not made any written notes, or any audiotape or videotape recordings of the conversation between him and defendant at the police station. Officer Jackson explained, [I]t was a 2-minute conversation and [he had] documented it in [his] report. Officer Jackson also acknowledged that no colleague was present during defendants confession and that he did not have defendant write out his statement and sign it. Officer Jackson summarized in his report that [defendant] stated he was guilty of shoplifting only.

The trial court denied defendants suppression motion, finding no evidence to discredit Officer Jacksons testimony that defendant had voluntarily flagged down the officer to give a statement. The court also stated that defendant had made a decision to voluntarily make a statement to the officer after he was re-advised of his constitutional rights.

The following day, on December 9, 2008, defendant filed supplemental points and authorities in support of his motion to suppress his confession. The trial court then reopened the suppression hearing. At that time, defendant called Todd, his cousin and cohort, as a witness. Todd testified that he was arrested on May 14, 2008, along with defendant and that he was placed in the same holding cell as defendant. Todd explained that he did not see or hear defendant motion to an officer so that defendant could speak to him. Todd also said that an officer came into the holding cell and asked if they wanted to change their statements. Todd however could not remember the name of that officer. Todd conceded that he had pled guilty to burglary in this case.

The trial court, acknowledging that there were two inconsistent testimonies, found Officer Jackson to be more credible, and again denied defendants suppression motion. The court explained, [I]f [Officer Jackson] was going to fabricate an entire alleged statement by the defendant, . . . he could have done that in the field by indicating, [t]he defendant admitted to the culpability of the crime, and . . . he could have included in this fabricated statement that the defendant admitted to threatening the store security with a gun.

In Miranda, supra, 384 U.S. 436, the United States Supreme Court held that a person questioned by the police after being taken into custody or otherwise deprived of his freedom of action in any significant way must first be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. (Id. at p. 444.) Statements obtained in violation of this rule may not be used to establish guilt. (Ibid.)

However, a suspect may knowingly and intelligently waive these rights following advisement and an opportunity to exercise them. (Miranda, supra, 384 U.S. at p. 479.) The waiver may be either express or implied, but it must be voluntary; that is, the product of a free and deliberate choice, and made with a full awareness of the nature of the right waived and the consequences of such a waiver. (Moran v. Burbine (1986) 475 U.S. 412, 421 [106 S.Ct. 1135, 89 L.Ed.2d 410].) In determining whether these criteria are met, the totality of the circumstances must be considered, bearing in mind the particular background, experience and conduct of the suspect. (Ibid.) If the suspect was advised of his rights, said he understood them, did not request an attorney, and chose to speak to police, an implied waiver may be found. (People v. Sully (1991) 53 Cal.3d 1195, 1233.) However, an implied waiver may not be inferred from the mere fact that a confession was eventually obtained. (Miranda, at p. 475.) The state must demonstrate the validity of the waiver by a preponderance of the evidence. (People v. Jones (1998) 17 Cal.4th 279, 296.) Under both state and federal law, the courts apply a totality of circumstances test to determine voluntariness. (People v. Haley (2004) 34 Cal.4th 283, 298.)

A finding of coercive police activity is a prerequisite for a finding that a confession was involuntary under the due process clauses of the federal or state Constitution. [Citations.] (People v. Clark (1993) 5 Cal.4th 950, 988, disapproved on another ground in People v. Dootin (2009) 45 Cal.4th 390, 421, fn. 22.) Police are prohibited from using only those psychological ploys that, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. (People v. Jones, supra, 17 Cal.4th at p. 298, quoting People v. Ray (1996) 13 Cal.4th 313, 340.)

A suspect, having invoked these [constitutional] rights, is not subject to further interrogation by the police until counsel has been made available to him or her, unless the suspect personally initiates further communication, exchanges, or conversations with the authorities. [Citations.] If a suspect invokes these rights and the police, in the absence of any break in custody, initiate a meeting or conversation during which counsel is not present, the suspects statements are presumed to have been made involuntarily and are inadmissible as substantive evidence at trial . . . . (People v. Storm (2002) 28 Cal.4th 1007, 1021-1022.)

In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendants rights under [Miranda], we accept the trial courts resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence. [Citations.] (People v. Wash (1993) 6 Cal.4th 215, 235-236; accord, People v. Cunningham (2001) 25 Cal.4th 926, 992.)

Here, there is no dispute that defendant was advised of all of his rights at the time of his arrest; that defendant indicated that he understood those rights; and that he had expressly invoked his right to counsel at the time of his arrest. There is also no dispute that Officer Jackson had ceased questioning defendant after he invoked his right to counsel at the time of his arrest.

The issue is whether defendant himself subsequently initiated further communication with the officer while he was in his holding cell. An accused who has asserted the right to counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. (Edwards v. Arizona (1981) 451 U.S. 477, 484-485 [101 S.Ct. 1880, 68 L.Ed.2d 378].) There was no Miranda violation here. The evidence demonstrated that defendant had initiated contact with Officer Jackson while he was in his holding cell. Upon making contact with defendant, Officer Jackson reminded defendant that he had requested legal counsel and that the officer had no intention of violating defendants rights. Officer Jackson also stated that he was not going to continue having a conversation with defendant while he had invoked his right to counsel. The officer testified that defendant, at that time, stated that he was willing to give a statement. Officer Jackson then reminded defendant of his right to have an attorney present and asked defendant if he still requested the presence of an attorney prior to any questioning. After defendant responded in the negative, defendant made his statements. The record showed that defendant confessed after he had waived his right to counsel. There is no evidence here to indicate that Officer Jackson had coerced defendant or that defendants confession was involuntary.

Miranda requires that officers immediately terminate an interrogation if the suspect indicates, in any manner, at any time prior to or during questioning, that he wishes to remain silent or to speak with an attorney. (Miranda, supra, 384 U.S. at pp. 473-474.) Whether a suspect actually invokes the right to counsel is an objective inquiry. Invocation requires that the suspect articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. (Davis v. United States (1994) 512 U.S. 452, 459 [114 S.Ct. 2350, 129 L.Ed.2d 362].) An ambiguous or equivocal reference to an attorney that would lead a reasonable officer in the circumstances to understand only that a suspect might be invoking his right to counsel is insufficient. (Ibid.)

We conclude that defendant adequately waived his right to counsel at the time he was in his holding cell. Defendant initiated further discussions with the officer and knowingly and intelligently waived his right to counsel. (People v. Crittenden (1994) 9 Cal.4th 83, 128.) Defendants arguments to the contrary are credibility issues to be resolved by the trial court. As previously noted, [w]e must accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) The trial courts finding of Officer Jackson to be more credible than Todd is supported by substantial evidence.

Even if the trial court erred in denying defendants motion to suppress his confession, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Cahill (1993) 5 Cal.4th 478, 510 [harmless error analysis applies to coerced confessions].)

Even without defendants confession, there was overwhelming evidence to show that defendant had committed the burglary and theft. He was seen and identified by the store manager. In addition, he was caught on videotape entering the store, concealing the beers, and running out of the store without paying for the beers. Moreover, defendants cohorts, Armstrong and Todd, both admitted entering the store with defendant to steal beer and both pled guilty to burglary. Furthermore, defendant was found by the officers in a vehicle with the beers. This evidence clearly supports defendants convictions for petty theft and burglary.

Based on our own independent review of the record, we conclude defendants confession was voluntarily made after he waived his Miranda rights.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

KING

J.

MILLER

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Armstrong and Todd both pled guilty to burglary before defendants trial and testified as witnesses in defendants trial.