P. v. Manriques
Filed 3/5/12 P. v. Manriques CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
DOMINGO MANRIQUES,
Defendant and Appellant.
B229277
(Los Angeles County
Super. Ct. No. BA370308)
APPEAL
from a judgment of the Superior Court of
County, Drew E. Edwards, Judge.
Affirmed.
Daniel
G. Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanka, Senior Assistant Attorney General, Scott A. Taryle
and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
Appellant Domingo
Manriques appeals from his conviction and sentence of
age of 14 years. (Pen. Code, §
288.5, subd. (a).) Before this court he
claims that the lower court erred in failing to grant his motion to suppress
evidence of incriminating statements he made during a police interview because
he had invoked his right to remain silent
under Miranda v. Arizona (1966) 384
U.S. 436. Further, appellant contends
that the trial court’s order that he submit to a blood test pursuant to Penal
Code section 1202.1 is unlawful. As we
shall explain, the evidence in the record supports the court’s denial of
appellant’s motion to suppress his incriminatory statements to police and any error
with respect to the blood testing order was harmless. Accordingly, we affirm the judgment.
AND PROCEDURAL BACKGROUND
Maria S., then 12 years old, confided to the
principal of her school, that appellant, her stepfather, had repeatedly
sexually molested her. According to
Maria, the abuse occurred on occasions when Maria was alone with
appellant. Appellant had first touched
Maria inappropriately in 2003 when she was six years old. On that occasion, while sleeping together in
the same room with Maria, appellant reached into Maria’s bed and attempted to
touch her vagina. Initially, Maria would
stop appellant and he would return to his bed.
Sometimes during the night, appellant would wake Maria up and force her
to watch pornographic movies with him.
Maria testified appellant threatened to hurt her family, especially her
mother, if she told anyone about what was occurring.
When Maria was in the third grade, appellant
drove her to and from school in his van.
Maria recalled that on one occasion, appellant picked her up from school
and drove her to a remote location. In
the back of the van, appellant inserted his penis in Maria’s rectum after she
had tried to escape. This type of
molestation occurred for about one year, two to four times a week. On other occasions, while they were alone at
home, appellant inserted his penis in Maria’s vagina and touched her when she
got out of the shower. Maria eventually
moved away with her mother and siblings.
Detective Sandra Kipp, the officer
investigating this case, interviewed Maria at her new home. Maria was visibly upset and cried during the
interview. Detective Kipp then conducted
an interview in Spanish with appellant on April 15, 2010. Appellant admitted touching Maria
inappropriately and sexually, beginning when Maria was seven years old. He admitted to specific allegations and
incidents and he concluded the interview by stating that his actions were “not
that bad. I think . . . it’s a child;
this is a passing thing that happens and that’s it.”
The amended information charged appellant with
two counts: continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a))
and lewd acts with a minor (Pen. Code, § 288, subd. (a)). A hearing on the motion to suppress
appellant’s confession was held prior to trial.
The trial court denied appellant’s motion to suppress his confession.
Following a seven-day jury trial, appellant was convicted of continuous sexual
abuse of a child in count 2. The court
sentenced appellant to 12 years in prison and ordered appellant to register as
a sex offender and to submit to AIDS testing under Penal Code section 1202.1.
Appellant filed a timely
Confession
Before this court appellant
claims that the lower court erred in failing to suppress evidence of statements
he made during his interview by police.
Appellant argues that the police continued to question him after he
invoked his right to remain silent, and therefore the court should have
excluded his statements.
Factual Background
At the
start of the interview, Detective Kipp introduced herself, advised appellant of
his Miranda rights, and appellant stated that he understood his rights.
to “talk about the reason why” he was arrested, and appellant responded that he
did not know who was accusing him.
After, Detective Kipp asked the following compound question: “Yes, but
do you want to talk about the reasons why we arrested you or you don’t want to
talk” Appellant replied, “Uh, no.” After appellant’s response, Detective Kipp
apparently realized she had asked a compound question and attempted to clarify
appellant’s response:
Kipp: You don’t want to talk about the . . .
the reason why you’re here
Appellant: Well, I know that [unintelligible]
I think they’re accusing me of sexual abuse, I think, right
Kipp: Yes.
Appellant: Okay, and, then . . . but I don’t
know, I don’t even know the person’s name.
Kipp: Okay. So what are you telling me That
you do want to talk or you don’t want to talk
Appellant: Uh, yes/no, yes.
Kipp: Yes
Appellant: Mhm.
Kipp: Okay, just sign here saying that you
understand your rights and you want to talk about the reasons why you’re here.
During
the hearing on the motion to suppress, the court considered the argument of
counsel and viewed the video of the interrogation to observe appellant’s body
language during the questioning. The court
stated that the question asked by Detective Kipp that preceded appellant’s “Uh,
no” response was ambiguous and the detective properly asked appellant
additional questions to clarify whether he wanted to invoke his right to remain
silent. Further, the court noted that
after the follow-up questions, appellant spoke with the detective and signed a
written waiver of his Miranda rights. Thereafter, the court denied appellant’s
motion.
Analysis
Whether a suspect has
invoked his right to counsel or right
to remain silent is a question of fact to be determined in light of all the
circumstances. (People v. Musselwhite
(1998) 17 Cal.4th 1216, 1238.) In
reviewing the admissibility of a statement allegedly obtained in violation of
the defendant’s constitutional right to remain silent, we accept the trial
court’s factual findings, based on its resolution of factual disputes, its
choices among conflicting inferences, and its evaluations of witness
credibility, provided that these findings are supported by substantial
evidence. (People v. Crittenden (1994) 9 Cal.4th 83,
128.) However, we review independently,
based on the undisputed facts and those properly found by the trial court,
whether the challenged statements were legally obtained. (Ibid.)
“To protect the Fifth Amendment privilege
against self-incrimination, a person undergoing a custodial interrogation must
first be advised of his right to remain silent, to the presence of counsel, and
to appointed counsel, if indigent.” (People
v. Stitely (2005) 35 Cal.4th 514, 535, citing Miranda, supra, 384
U.S. at pp. 444, 467-473, 478-479.) “As
long as the suspect knowingly and intelligently waives these rights, the police
are free to interrogate him. [Citation.] However, if, at any point in the interview,
the suspect invokes his rights, questioning must cease. [Citations.]
Statements obtained in violation of these rules are inadmissible to
prove guilt in a criminal case.” (Stitely,
supra, 35 Cal.4th at p. 535.)
However, the suspect’s invocation of his or
her Miranda rights must be clear and unequivocal. In Stitely, the California Supreme
Court explained that, “[i]n 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.”' (Stitely, supra, 35
Cal.4th at p. 535, quoting Davis v. United States (1994) 512 U.S. 452,
459.) The Stitely court further
explained that “[i]t is not enough for a reasonable police officer to
understand that the suspect might be invoking his rights. Faced with an ambiguous or equivocal
statement, law enforcement officers are not required under Miranda, supra,
384 U.S. 436, either to ask clarifying questions or to cease questioning
altogether. [Citation.] Of course, such an approach may disadvantage
suspects who, for emotional or intellectual reasons, have difficulty expressing
themselves. However, a rule requiring a
clear invocation of rights from someone who has already received and waived
them ‘avoid[s] difficulties of proof’ [citation], and promotes ‘effective law
enforcement.’” (Stitely, supra,
35 Cal.4th at p. 535.)
In Stitely,
defendant who had been advised of and then waived his Miranda rights
remarked, “I think it’s about time for me to stop talking,” and then stated,
“Okay,” in response to the questioning detective’s advisement, “You can stop
talking.” (Stitely, supra, 35
Cal.4th at p. 534.) Upholding admission
of the entire interview at trial, the Supreme Court held the defendant did not
clearly and unambiguously invoke his Miranda rights after he waived
them. (Stitely, supra, 35 Cal.4th
at p. 536.)
Contrary to what appellant
claims, appellant demonstrated that he understood each of his
asked appellant if he wanted to discuss the reasons why he was arrested. Appellant did not directly respond to the
question and instead stated that he was not certain who was accusing him. Detective Kipp then attempted to follow-up by
again asking clarifying questions to ascertain whether appellant was invoking
his right to remain silent. The question
Detective Kipp asked, however, was compound provoking appellant’s answer of
“Uh, no” and it was not clear which question he was answering. Detective Kipp then asked additional
questions to determine whether appellant wanted to talk about the charges. Rather than exercising his right to silence,
appellant continued to inquire about who was accusing him.
From the transcript of the
interrogation it is clear that Detective Kipp asked several questions to
determine whether appellant wanted to talk about the situation leading to his
arrest. The questions were compound and
confusing. Appellant gave a number of
ambiguous responses—“Uh, yes/no, yes,” “Mhm”-- and also asked questions about
the identity of his accusers. Reviewing
only the transcript, it does not appear that appellant unequivocally invoked
his right to remain silent during the interrogation, and in fact subsequently
acknowledged in writing that he understood his Miranda rights and wanted to speak about the situation. There is no indication from the transcript
that Detective Kipp engaged in coercive tactics or intentionally attempted to
confuse or trick appellant to obtain a waiver of his Miranda rights. The lower
court had the benefit of observing the videotape of the interrogation showing
appellant’s body language during the questioning, and thus, was in the best
position to determine whether appellant’s statements had been obtained in
violation of his rights. Based on the
evidence before us we hold that the court did not err in denying appellant’s
motion to suppress.
name="_ftnref2" title="">[2]
II. The Trial Court's AIDS Testing Order Did Not Result in Prejudicial
Error.
name="_ftnref3" title="">
Penal Code section 1202.1
requires the trial court to order designated persons “to submit to a blood or
oral mucosal transudate saliva test for evidence of antibodies to the probable
causative agent of acquired immune deficiency syndrome (AIDS) within 180 days of
the date of conviction.” (Pen. Code, §
1202.1, subd. (a).) Among those
designated are persons convicted of continuous sexual abuse of a child in
violation of Penal Code section 288.5, “if the court finds that there is
probable cause to believe that blood, semen, or any other bodily fluid capable
of transmitting HIV has been transferred from the defendant to the
victim[.]” (Pen. Code, § 1202.1, subd.
(e)(6)(A).) The statute directs a court
ordering such testing to “note its finding on the court docket and minute order
if one is prepared.” (Pen. Code, § 1202.1, subd.
(e)(6)(B).)
The trial court did not
specifically articulate its reasons for the AIDS testing order on the record as
it was required to do under Penal Code section 1202.1, subdivision (e)(6)(B). We conclude, however, that any error with
respect to this matter is harmless.
Here, there was ample evidence to suggest the transfer of bodily fluids. Appellant’s confession and Maria’s testimony
presented various instances of sexual intercourse and sodomy. On at least one occasion, appellant rubbed
his penis against Maria’s vagina and then inserted the tip of his penis in her
rectum. On another occasion, appellant’s
penis was inserted into Maria’s vagina.
Based on the evidence adduced at trial, there is sufficient evidence to
support a finding of transfer of bodily fluid and to support an order for AIDS
testing. Accordingly, the court’s order
requiring testing was supported by the evidence before it and the court’s
failure to “note its finding on the court docket and minute order if one is
prepared” did not result in prejudice requiring reversal of the order.
DISPOSITION
The judgment
is affirmed.
WOODS,
Acting P. J.
We concur:
ZELON, J. JACKSON,
J.
name="_ftn1" title="">[1] Detective
Kipp read appellant his Miranda
advisements in Spanish.
conclusion we also reject appellant’s argument that his confession was the
product of a two-step custodial interrogation in which incriminating statements
were elicited without a Miranda waiver to coerce a confession. In Missouri v. Seibert (2004) 542 U.S.
600 (Seibert), the police woke defendant at 3:00 in the morning,
arrested her for murder, and took her to the police station. Defendant was questioned for 30 to 40 minutes
until she confessed. (Id., at pp.
604-605.) After a short break, defendant
was given Miranda warnings, signed a waiver, and asked the same
questions until she confessed again. (Ibid.) The interrogating officer “testified that he
made a ‘conscious decision’ to withhold Miranda warnings, thus resorting
to an interrogation he had been taught: question first, then give the warnings,
and then repeat the question ‘until I get the answer that she’s already
provided once.’ He acknowledged that Seibert's
ultimate statement was ‘largely a repeat of information . . . obtained’ prior
to the warning.” (Id., at p.
606.) The Supreme Court
held that the interrogation procedure did not comply with Miranda and
that defendant’s postwarning statements were inadmissible. (Id., at p. 604.) “The object of the interrogation was to
question first, [and] render Miranda
warnings ineffective by waiting for a particularly opportune time to give them
after the suspect had already confessed”
(Id., at p. 611.) The
court stated the following factors should be considered to determine “whether Miranda
warnings delivered midstream could be effective to accomplish their object: the
completeness and detail of the questions and answers in the first round of
interrogation, the overlapping content of the two statements, the timing and
setting of the first and the second [round of questions], the continuity of the
police personnel, and the degree to which the interrogator’s questions treated
the second round as continuous with the first.”
(Id., at p. 615.)
Seibert is inapposite because there was no
deception, coercion, or coordinated interrogation strategy to extract a
confession. Appellant was questioned
after receiving a complete Miranda advisement. Police did not engage in a two-step
interrogation process here. Detective
Kipp initially asked appellant identifying questions, such as identifying
members of his family, past and present residences, work location, and prior
arrest history. Seibert concerned the admissibility of a second, repeated confession
after the defendant had confessed and was then advised of Miranda rights. From the
record it is clear that Detective Kipp followed the requirements of
about his arrest until appellant indicated that he wished to talk. This is not a case in which Miranda
warnings came “midstream” as part of a “coordinated and continuing
interrogation” to get appellant to repeat a prewarning statement. (Missouri v. Seibert, supra, 542 U.S.
at pp. 613 & 615.) The trial court
found, and we agree, the videotaped statement was voluntary and admissible.
