P. v. Buchanan
Filed 6/18/13 P. v. Buchanan CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Yolo)
THE PEOPLE,
Plaintiff and Respondent,
v.
RUSSELL ALEXANDER
BUCHANAN,
Defendant and Appellant.
C069081
(Super. Ct. No. 10-6096)
A
jury convicted defendant Russell Alexander Buchanan of
degree robbery and found that he personally used a firearm
during the offense. In bifurcated
proceedings, the trial court found a prior prison term allegation to be
true. The court sentenced defendant to
prison.
Defendant appeals. He contends the trial court prejudicially
erred in admitting his confession into evidence, requiring reversal. We find no error and will affirm the
judgment.
FACTS
At approximately 8:00 a.m. on January 12, 2009, Erick Delgado was talking on his cell
phone outside his house in Davis when he felt something pushed against his ribs. He turned around and saw defendant holding a
gun. Defendant ordered, “Give me your
money, motherf[-----].†Delgado gave his
wallet containing $40 to $80 to defendant.
Defendant also demanded Delgado’s cell phone. When Delgado protested, defendant responded,
“Do you want to die, motherf[-----]?â€
Delgado gave his cell phone to defendant. Defendant then demanded everything else and
Delgado gave some change from his pockets to defendant. Defendant ordered Delgado to walk away and
not to turn around. Although in front of
his own house, Delgado walked to the corner and saw defendant get in a white
car which Delgado had seen minutes before his encounter with defendant. The car left the area. Delgado flagged down a patrol car which came
down the street shortly thereafter.
Delgado described the robbery and the car. Davis Police Officer Frank Tenedora sent a
radio broadcast of the description of the car.
About 30 minutes later, Davis Police Officer Benjamin Adams, who
had heard the broadcast, saw the white car and stopped it. Defendant, the passenger, fled on foot,
holding his pants pocket, and leaving behind Delgado’s cell phone under the
front passenger seat. Officer Adams sent
a radio broadcast of defendant’s description.
Davis Police Officer Jeff Beasley, who had heard Officer Adams’s
broadcast, saw defendant running about a block from the stopped car. A black hooded sweatshirt which had been
described by Delgado and Officer Adams was found along defendant’s path. Defendant got away. Officer Beasley identified defendant as the
fleeing passenger. Delgado identified the
white car and the driver. Seven
.32-caliber centerfire cartridges were found in the car. The next day, defendant was interviewed,
admitted robbing Delgado, and wrote a letter of apology to Delgado. The .32-caliber handgun defendant used in the
robbery was found in his girlfriend’s house.
Although unable to identify
defendant’s photo the afternoon of the robbery, Delgado identified defendant at
trial which was the first time after Delgado was robbed that he had seen
defendant. The photo of defendant had
been taken approximately six months before it had been shown to Delgado.
DISCUSSION
Defendant contends the trial court
improperly admitted his confession into evidence since it was obtained after he
validly invoked his right to remain silent.
We disagree. Defendant’s words
and conduct in totality never indicated a present unwillingness to discuss the
robbery. As the trial court determined,
defendant did not invoke his right in a clear and unequivocal manner. We conclude that the trial court did not err
in admitting defendant’s confession into evidence.
Background
On January 13, 2009, defendant was interviewed by Fairfield
Police Detective Robert Wilkie while in custody at the Fairfield Police
Department. Detective Wilkie, who had
been an officer for more than 15 years, advised defendant of his rights
pursuant to ADDIN BA xc <@cs> xl 55 s
GLMNNM000001 xhfl Rep l "
U.S. 436 [16 L.Ed.2d 694]" Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] ( ADDIN BA xc <@$cs> xl 7 s
GLMNNM000001 xpl 1 Miranda),
reading from a POST-approved
Defendant stated that he understood his rights. Detective Wilkie then asked defendant about a
shooting in Fairfield and defendant answered the detective’s
questions, confessing to shooting the person.
During the interview, defendant was emotional and crying. He admitted he knew he was in trouble and was
concerned about a life sentence, claiming that he had not tried to kill
anyone. Defendant stated that he knew he
would have to serve time and confessed to the shooting so he could resolve it
and see his “girlfriend again,†explaining they planned to get married and to
have children. Before Detective Wilkie
left the interview room, defendant stated that he thought he would be charged
with attempted murder, get 20 years, and that his life was over. During the questioning, defendant did not
state that he no longer wanted to answer questions.
Davis Police Detective Scott Allen,
who had been an officer for 16 years, arrived at the Fairfield Police
Department while the interview between Detective Wilkie and defendant was in
progress. Detective Allen watched the
interview. After defendant confessed to
the Fairfield shooting, Detective Allen entered the
interview room, was introduced, and joined the conversation with Detective
Wilkie and defendant. Prior to entering
the room, Detective Allen asked the Fairfield detective whether defendant had been
provided his ADDIN BA xc <@$cs> xl 7 s
GLMNNM000001 Miranda
rights and was informed that defendant had been. Detective Allen spoke to defendant about his
cooperation with the Fairfield officers and his drug binge.
Detective Wilkie informed defendant that his photo had been shared with
Detective Allen. Detective Allen then
asked about the Davis robbery:
“[Detective Allen]: Does it surprise you at all that I’m here?
“[Defendant]: I guess so, yeah. I mean because this is already too much for
me to handle.
“[Detective Allen]: Okay.
Well, here’s what I want to do, okay?
Um, what I want to do is get everything done today so you don’t have to
revisit this.
“[Defendant]: Okay.
“[Detective Allen]: Okay?
And the detectives tell me that you’re -- you’ve actually been doing
pretty good lately.
“[Defendant]: Yes.
Except for that s[---].
“[Detective Allen]: And that you -- that you got a -- and that
you got a woman that you want to make it right with?
“[Defendant]: Yeah.
I know we’ve been talking about getting married when she’s 18 and having
kids.
“[Detective Allen]: Okay.
That’s all still possible, getting married.
“[Defendant]: That’s only like a year away though. That’s not possible.
“[Detective Allen]: Oh, you got a lot of time to get married.
“[Defendant]: I’m never getting out.
“[Detective Allen]: Look, now listen.
“[Defendant]: And (unintelligible) I’m going to have
nothing.
“[Detective Allen]: Listen.
“[Defendant]: My parents aren’t going to let me live there
either.
“[Detective Allen]: Okay.
What I want to get settled today is everything that happened while you
were out on your little drug binge. Okay? Okay?
Everybody makes mistakes man.
Everybody makes mistakes. I don’t
want you to have to pay for it three years from now.
“[Defendant]: But I am though. I just got caught up with a little bit of
meth and I’m still paying for it.
“[Detective Allen]: No man.
Either . . . .
“[Defendant]: Three years later.
“[Detective Allen]: Either it happened because it was a mistake
because you were on drugs or whatever or you did these things um, on purpose,
like you’re some master criminal that just goes out and does this stuff all the
time, and I don’t think that’s the case.
“[Defendant]: No.
No.
“[Detective Allen]: That’s why I want to get it all settled now.
“[Defendant]: (Unintelligible).
“[Detective Allen]: That’s why I want to get it all settled now.
“[Defendant]: Okay.
“[Detective Allen]: Okay.
Let’s talk about Davis, yesterday and let’s get it done and over with. We’re already here.
“[Defendant]: Okay.
“[Detective Allen]: Okay?
What were you doing in Davis yesterday?
“[Defendant]: I don’t
even really want to talk about it.
“[Detective Allen]: Come on Russell. I know you don’t. That’s obvious. I wouldn’t want to either, okay?
“[Detective Wilkie]: That photo line up that I told you all my
people here in Fairfield picked you out in there? They recognize the description from a
teletype they sent out and I gave them that photo line up.
“[Detective Allen]: We use the same -- we used the same line up.
“[Detective Wilkie]: They used the same line up. Okay?
“[Defendant]: Yeah, so someone pointed me out I’m guessing,
right?
“[Detective Allen]: Yeah.
Somebody pointed you out.
“[Defendant]: Man, you probably got fingerprints and all
that s[---] and all that and . . . .†(Italics added.)
Defendant confessed to the Davis robbery and admitted using the same gun, a
.32‑caliber handgun, as he had used in the Fairfield shooting.
Defendant explained he bought the gun off the street for a few hundred
dollars. At the conclusion of the
interview, defendant wrote a letter to Delgado, apologizing for the robbery.
At the preliminary hearing,
defendant argued that his confession was inadmissible having been obtained in
violation of ADDIN BA xc <@$cs> xl 7 s
GLMNNM000001 Miranda,
after he asserted his right to remain silent.
Detectives Wilkie and Allen testified about their interview with
defendant and his statement. Detective
Wilkie spoke with defendant intermittently for almost four hours. During that time, defendant never indicated
that he wanted to stop the interview.
When Detective Wilkie left the interview room, Detective Allen asked
whether defendant had been given his ADDIN
BA xc <@$cs> xl 7 s GLMNNM000001 Miranda
rights. Having been informed that
defendant had been, Detective Allen entered the interview room and questioned
defendant about the Davis robbery.
Detective Allen interpreted defendant’s statement that he did not
“really want to talk†about the Davis robbery as an indication that it was
difficult and embarrassing for him to talk about it based on the interview up
to that point. Defendant answered the
detective’s questions and did not indicate that he wanted the interview to end.
Concluding defendant’s statement
reflected “an ambiguity in the phrase and an ambiguity in the context,†the
court ruled that defendant did not unequivocally invoke his right to remain
silent. After reviewing a portion of
both the video recording and accompanying transcript of the interview, the
court reaffirmed its ruling, finding defendant’s statement was less than and
“not as strong a statement of someone saying, ‘That’s it, I shut up,’ which is
what they were dealing with in the [ ADDIN BA xc <@cs> xl 39 s
GLMNNM000002 xhfl Rep xpl 1 l "
Cal.3d 963" People v. Jennings (1988) 46 Cal.3d 963 ( ADDIN BA xc <@$cs> xl 8 s
GLMNNM000002 xpl 2 Jennings)]
case.†The court noted that defendant
did not say that he was finished talking, that he did not want to answer any
more questions, or that he was not saying anything else. The court concluded that defendant’s
statement reflected someone who knew he was in “a bad situation,†not that he
did not want to talk anymore. The court
denied defendant’s motion to exclude the evidence.
Defendant filed a motion to set
aside the information, renewing his argument that his constitutional right against
self-incrimination was violated when Detective Allen failed to terminate the
interview after defendant invoked his right to remain silent which rendered his
confession inadmissible. Defendant
claimed there was insufficient admissible evidence to establish that he
committed the offense. The court denied
the motion, concluding that defendant had expressed some discomfort in
discussing the Davis robbery but did not assert his right to
remain silent.
Defendant also raised the issue in
his pretrial motion to exclude evidence.
The court denied defendant’s motion to exclude his confession,
concluding that defendant’s statement was not “reasonably inconsistent with the
present willingness to talk.†The court
noted that defendant had been given his rights by the Fairfield detective, defendant had spoken with him
for “almost an hour before he was introduced to [Detective] Allen,†and
defendant had “freely acknowledged his culpability for several crimes†in Fairfield. The
court also noted that Detective Allen asked “innocuous questions†which
defendant answered, indicating no animosity towards Detective Allen. In analyzing the meaning of defendant’s
response “I don’t even really want to talk about it†when asked about his
presence in “Davis yesterday,†the court, having reviewed the video recording,
commented that defendant’s tone and cadence had not changed and concluded that
defendant’s response was not “assertive†but instead was “equivocal.†The court stated that defendant’s next
response about someone pointing him out made “it clear that he is, in fact,
willing to talk about what happened in Davis.â€
The court found that defendant “never made any unequivocal assertion to
his right to remain silent.â€
Analysis
Defendant contends the trial court
erred in admitting his confession, arguing the questioning should have ended
when he stated that he did not want to talk about the Davis robbery.
We reject defendant’s contention; thus, we do not reach prejudice.
We independently review the record to
determine whether a ADDIN
BA xc <@$cs> xl 7 s GLMNNM000001 Miranda
violation has occurred but “we may ‘ “give great weight to the considered
conclusions†’ of the trial court.â€
(
ADDIN BA xc <@cs> xl 43 s GLMNNM000003 xhfl Rep xpl 1 l "People v. Nelson (2012)
GLMNNM000003 xpl 2 Nelson).)
A defendant invokes his right to
remain silent “by any words or conduct reasonably inconsistent with a present willingness
to discuss the case freely and completely.â€
(
ADDIN BA xc <@cs> xl 45 s GLMNNM000004 xhfl Rep xpl 1 l "People v. Crittenden (1994)
to or during interrogation, that he is invoking his right to remain silent, the
interrogation must cease. ( ADDIN BA xc <@cs> xl 50 s
GLMNNM000005 xhfl Rep xpl 1 l "
Cal.4th 1216, 1238" People
v. Musselwhite (1998) 17 Cal.4th 1216, 1238.) “ ‘Whether the suspect has indeed
invoked that right, however, is a question of fact to be decided in the light
of all of the circumstances . . . .’ [Citation.]â€
(
ADDIN BA xc <@$id> xl 5 s ID xpl 1 Ibid.)
A defendant may refuse to answer
certain questions “without manifesting a desire to terminate ‘an interrogation
already in progress.’ †( ADDIN BA xc <@cs> xl 45 s
GLMNNM000006 xhfl Rep xpl 1 l "
Cal.3d 604, 629-630" People
v. Silva (1988) 45 Cal.3d 604, 629-630 ( ADDIN BA xc <@$cs> xl 5 s
GLMNNM000006 xpl 2 Silva).) “[A]fter a suspect makes a valid waiver of
the ADDIN BA xc <@$cs> xl 7 s
GLMNNM000001 Miranda
rights, the need for effective law enforcement weighs in favor of a
bright-line rule that allows officers to continue questioning unless the
suspect clearly invokes the right to . . . silence.†( ADDIN BA xc <@$cs> xl 35 s
GLMNNM000003 xhfl Rep xpl 1 Nelson,
supra, 53 Cal.4th at p. 377.)
If invoked midinterrogation, a
defendant’s words or conduct must be clear and unambiguous. ( ADDIN BA xc <@cs> xl 45 s
GLMNNM000007 xhfl Rep xpl 1 l "
Cal.4th 405, 434" People
v. Williams (2010) 49 Cal.4th 405, 434 ( ADDIN BA xc <@$cs> xl 8 s
GLMNNM000007 xpl 2 Williams),
citing ADDIN BA xc <@cs> xl 71 s
GLMNNM000008 xhfl Rep xqt xpl 1 l "Berghuis v. Thompkins (2010)
Berghuis v. Thompkins (2010) 560 U.S. 370, ___ [176 L.Ed.2d 1098,
1110] (
ADDIN BA xc <@$cs> xl 9 s GLMNNM000008 xpl 2 Thompkins).) The words used by defendant must be construed
in context. ( ADDIN BA xc <@$cs> xl 42 s
GLMNNM000007 xhfl Rep xpl 1 Williams, supra,
49 Cal.4th at pp. 433-434 [“ ‘I don’t want to talk about
it’ †not an invocation of right but rather an expression of frustration
with the officer’s refusal to accept the defendant’s repeated denials]; ADDIN
BA xc <@cs> xl 44 s GLMNNM000009 xhfl Rep xpl 1 l "People v. Wash (1993)
don’t know if I wanna talk anymore’ †not an invocation of right but
instead uncertainty whether he wished to continue]; ADDIN
BA xc <@$cs> xl 41 s GLMNNM000002 xhfl Rep xpl 1 Jennings, supra, 46 Cal.3d at pp. 977-979
[“ ‘I’m not going to talk . . . [t]hat’s it’ †and
“ ‘I shut up’ †in context “reflect[ed] only momentary frustration
and animosity†towards one of the questioning officers, not an invocation of
right]; ADDIN BA xc <@$cs> xl 38 s
GLMNNM000006 xhfl Rep xpl 1 Silva, supra,
45 Cal.3d at pp. 629-630 [“ ‘I really don’t want to talk about
that’ †not an invocation of right but desire not to talk about whether he
was driving]; ADDIN BA xc <@cs> xl 42 s
GLMNNM000010 xhfl Rep xpl 1 l "
Cal.3d 496, 514-516" In
re Joe R. (1980) 27 Cal.3d 496, 514-516 [when his veracity
was challenged and he was confronted with adverse evidence, the minor responded,
“ ‘That’s all I have to say’ â€; not an unequivocal invocation of his
right but simply a statement to the effect of, “That’s my story, and I’ll stick
with itâ€].)
Here, the question is whether
defendant stated his desire to be silent about the Davis robbery clearly so that a reasonable
officer in the circumstances would have understood defendant to be saying that
he wanted to exercise his right to remain silent. ( ADDIN BA xc <@$cs> xl 35 s
GLMNNM000003 xhfl Rep xpl 1 Nelson,
supra, 53 Cal.4th at p. 376.)
Defendant claims the trial court’s conclusion that he did not is not
supportable. We disagree.
Defendant argues that the trial
court’s reliance upon the interrogation about the Fairfield shooting for more than an hour was in error
since the Davis robbery was unconnected in time and place
to the Fairfield shooting and was discussed with a different
officer. Relying upon ADDIN
BA xc <@cs> xl 54 s GLMNNM000011 xhfl Rep l "Michigan v. Mosley (1975)
GLMNNM000011 xpl 1 Mosley)
and ADDIN BA xc <@cs> xl 46 s
GLMNNM000012 xhfl Rep l "
2008)
GLMNNM000012 xpl 1 Mitchell),
defendant argues that the interrogation about the Davis robbery was a distinct
interrogation and that his decision to waive his ADDIN
BA xc <@$cs> xl 7 s GLMNNM000001 Miranda
rights with respect to the Fairfield shooting was not determinative of whether
he invoked his rights in connection with the Davis robbery. We conclude that the trial court properly
considered, along with several other factors, defendant’s implied waiver in
freely and completely discussing the Fairfield shooting at length.
In ADDIN
BA xc <@$cs> xl 6 s GLMNNM000011 Mosley,
after being read the ADDIN
BA xc <@$cs> xl 7 s GLMNNM000001 Miranda
warnings, the defendant stated he did not want to discuss the robberies and
Detective Cowie immediately stopped his questioning of the defendant. More than two hours later, another officer at
another location questioned the defendant about a homicide after giving the
defendant the ADDIN BA xc <@$cs> xl 7 s
GLMNNM000001 Miranda
warnings. ADDIN
BA xc <@$cs> xl 6 s GLMNNM000011 Mosley
held the defendant’s right to cut off questioning by Detective Cowie was
scrupulously honored and did not preclude the later interrogation by another
officer. ( ADDIN BA xc <@$cs> xl 66 s
GLMNNM000011 xhfl Rep xpl 1 Mosley, supra, 423
U.S. at pp. 104-107 [46 L.Ed.2d at pp. 321-323].)
Here, the Davis robbery interrogation occurred on the same
day, at the same place, and during the same session of questioning, although by
a different officer (Detective Allen).
Before defendant was questioned that day, Detective Wilkie read
defendant his rights and he chose to waive them, unlike the defendant in ADDIN
BA xc <@$cs> xl 6 s GLMNNM000011 Mosley. ADDIN
BA xc <@$cs> xl 6 s GLMNNM000011 Mosley
is of no assistance to defendant.
In finding that the defendant waived
his ADDIN BA xc <@$cs> xl 7 s
GLMNNM000001 Miranda
rights, ADDIN BA xc <@$cs> xl 8 s
GLMNNM000012 Mitchell
discussed ADDIN BA xc <@$cs> xl 6 s
GLMNNM000011 Mosley,
noting that in both cases the defendant had cut off questioning and after an
interval of time, officers had contacted the defendant. ( ADDIN BA xc <@$cs> xl 35 s
GLMNNM000012 xhfl Rep xpl 1 Mitchell,
supra, 547 F.3d at p. 309.)
Disagreeing with the dissent, the majority determined that ADDIN
BA xc <@$cs> xl 6 s GLMNNM000011 Mosley “does not require that the repeated questioning involve
a wholly different crime.†( ADDIN BA xc <@$cs> xl 35 s GLMNNM000012
xhfl Rep xpl 1 Mitchell,
supra, 547 F.3d at p. 310 (lead opn.); ADDIN
BA xc <@$id> xl 13 s ID xhfl Rep xpl 1 id. at
p. 322 (conc. opn.) [“ ‘a second interrogation is not rendered
unconstitutional simply because it involves the same subject matter discussed
during the first interview’ â€]; ADDIN
BA xc <@$id> xl 13 s ID xhfl Rep xpl 2 id.
at p. 331 (dis. opn.) [“[t]he decisive fact allowing new interrogation in ADDIN
BA xc <@$cs> xl 6 s GLMNNM000011 xpl 3 Mosley
was the fact that the accused was questioned about an entirely different
crimeâ€].)
Defendant mistakenly relies upon the
dissenting opinion in ADDIN
BA xc <@$cs> xl 8 s GLMNNM000012 Mitchell. Further, there was no second interrogation
within the meaning of ADDIN
BA xc <@$cs> xl 6 s GLMNNM000011 Mosley.
Defendant also complains the trial
court erroneously cited the innocuous questioning by Detective Allen and
defendant’s tone as factors in finding defendant did not indicate he did not
want to discuss the Davis robbery.
We reject defendant’s complaints.
The trial court was discussing the context in which defendant made his
statement; context, of course, was relevant to its ruling. We reject defendant’s challenge to the trial
court’s observations of defendant’s tone when he made his statement. Our review of the video recording supports
the trial court’s findings that based on defendant’s tone and cadence, his
statement was not assertive but instead was equivocal.
Because we conclude that defendant
did not clearly invoke his right to remain silent, we also reject defendant’s
claims that Detective Allen failed to scrupulously honor defendant’s invocation
of his right to remain silent, that in referring to the photo lineup, Detective
Allen attempted to wear down defendant’s resistance and make him change his
mind, and that defendant’s responses afterwards cannot be used to cast doubt on
the clarity of invocation of his right to remain silent. The trial court properly considered
defendant’s responses afterwards because he had not clearly invoked his right
to remain silent; his responses afterwards reflect that he was willing to
discuss the Davis robbery.
Initially, defendant was questioned
by Detective Wilkie about the Fairfield shooting.
Detective Wilkie informed defendant of his rights pursuant to ADDIN
BA xc <@$cs> xl 7 s GLMNNM000001 Miranda. Defendant stated that he understood,
conversed with Detective Wilkie about the Fairfield shooting, and confessed to being the
shooter. During the interview with
Detective Wilkie, defendant was emotional, concerned about a life sentence and
the impact it would have on his plans to marry and have children. When Detective Allen entered the room,
defendant had already been advised of his rights pursuant to ADDIN
BA xc <@$cs> xl 7 s GLMNNM000001 Miranda
and, having understood his rights, had already willingly answered questions
posed by Detective Wilkie. Detective
Allen noted defendant’s cooperation with Detective Wilkie and mentioned
defendant’s girlfriend. Emotional and
crying, defendant talked about her, his belief that he would not be able to
fulfill their plans to marry and have children, and that he would even lose his
parents’ support in a place to live, because he would be confined for a long
time. Detective Allen encouraged
defendant to resolve all crimes that occurred while he was on his “little drug
binge.†When Detective Allen stated,
“Let’s talk about Davis, yesterday and let’s get it done and over
with†since “[w]e’re already here,†defendant responded, “Okay.†When Detective Allen asked what defendant was
doing in Davis “yesterday,†defendant responded, “I don’t
even really want to talk about it.†Detective Allen further encouraged
defendant, “Come on, Russell. I know you
don’t. That’s obvious.†When Detectives Wilkie and Allen talked about
the Fairfield photo lineup having been used in Davis, defendant continued the conversation and
surmised that someone had pointed him out in Davis, just as someone had in Fairfield.
Defendant complains that even
Detective Allen had acknowledged defendant’s invocation of his right to remain
silent when the detective responded, “I know you don’t. . . . I wouldn’t either.†We disagree.
A reasonable officer would construe defendant’s response, in context, as
ambiguous and expressing uncertainty as to whether he wanted to continue in
view of the Fairfield crime to which he had just confessed, the
amount of time he faced for the shooting, and his concern about his girlfriend
and their future plans.
We need not discuss the cases
defendant cites, comparing and contrasting the statements the defendants made,
because defendant’s words and conduct in context here are determinative. (See ADDIN
BA xc <@cs> xl 45 s GLMNNM000014 xhfl Rep xpl 1 l "People v. Martinez (2010)
For example, in support of his claim that his statement is similar to
those statements courts have held constitute an invocation of the right to
remain silent, defendant cites ADDIN
BA xc <@cs> xl 44 s GLMNNM000015 xhfl Rep l "People v. Peracchi (2001)
BA xc <@$cs> xl 31 s GLMNNM000014 xhfl Rep Martinez,
supra, 47 Cal.4th 911 discussed ADDIN
BA xc <@$cs> xl 8 s GLMNNM000015 Peracchi
as follows: “In ADDIN
BA xc <@$cs> xl 8 s GLMNNM000015 Peracchi,
after the officer read the defendant his ADDIN
BA xc <@$cs> xl 7 s GLMNNM000001 Miranda
rights and asked the defendant whether he wanted to talk, the defendant
responded, ‘At this point, I don’t think so.
At this point, I don’t think I can talk.’ When the officer tried to clarify, the
defendant explained that his head was ‘not clear enough’ to discuss the charges
against him ‘right now.’ When the
officer again tried to clarify, the defendant said, ‘I don't want to discuss it
right now.’ The officer asked why, and
the defendant then made statements incriminating himself. [Citation.]
The ADDIN BA xc <@$cs> xl 8 s
GLMNNM000015 Peracchi
court concluded that the officer’s first attempts to clarify the defendant’s
statements were proper, but once the defendant stated, ‘ “I don’t want to
discuss it right now,†’ he was ‘clearly indicating that he intended to invoke
his right to remain silent’ and the officer thereafter improperly continued to
interrogate because ‘[o]fficers have no legitimate need or reason to inquire
into the reasons why a suspect wishes to remain silent.’ [Citation.]
[¶] Although defendant’s statement here is similar to the one uttered in
Peracchi, the context in which it was uttered is markedly different. Peracchi
involved a ADDIN BA xc <@$cs> xl 7 s
GLMNNM000001 Miranda
waiver, not an invocation during the course of an interrogation. ‘Invocation
and waiver are entirely distinct inquiries, and the two must not be blurred by
merging them together.’
[Citation.] The defendant in ADDIN
BA xc <@$cs> xl 8 s GLMNNM000015 Peracchi invoked his right to silence at the outset of the interrogation,
making clear he did not wish to waive his right to silence at that time.†( ADDIN BA xc <@$cs> xl 37 s
GLMNNM000014 xhfl Rep xpl 1 Martinez,
supra, 47 Cal.4th at p. 951, italics added.) Here, defendant claims he invoked his right
to silence during the course of the interrogation. ADDIN
BA xc <@$cs> xl 8 s GLMNNM000015 Peracchi
is of no assistance to defendant.
Contrary to defendant’s claim, it is
not reasonable to construe his statement midinterrogation as invoking his right
to remain silent. Defendant’s statement,
in context, reflects that he recognized
he was in trouble for the Davis robbery as well as the Fairfield shooting, not that he wanted to stop
answering questions. Defendant did not
invoke his right to remain silent. In
response to Detective Allen asking about what defendant was doing in Davis the day before, defendant “did not say that
he wanted to remain silent or that he did not want to talk [to Detective
Allen]. Had he made either of these
simple, unambiguous statements, he would have invoked his ‘ “right to cut
off questioning.†’
[Citation.]†( ADDIN BA xc <@$cs> xl 61 s
GLMNNM000008 xhfl Rep xpl 1 Thompkins,
supra, 560 U.S. at p. ___ [176 L.Ed.2d at p. 1111].) Instead, after freely discussing the shooting
in Fairfield, defendant said that he “[did not]
presence in Davis the day before and then engaged in further
conversation with the detectives. We
find no violation of defendant’s ADDIN
BA xc <@$cs> xl 7 s GLMNNM000001 Miranda rights. The trial court did not err in denying
defendant’s motion to exclude his confession.
DISPOSITION
The judgment is affirmed.
BLEASE , Acting
P. J.
We concur:
NICHOLSON , J.
BUTZ ,
J.
name="_ftn1" title="">[1] POST is the acronym for Peace Officer
Standards and Training.
name="_ftn2" title="">[2] At the preliminary hearing, Detective Allen
testified that he construed defendant’s response as indicating that it was
difficult and embarrassing for him to discuss his crime spree. As defendant states, Detective Allen’s
subjective interpretation is not the test but instead a reasonable officer test
applies. ( ADDIN BA xc <@$cs> xl 40 s
GLMNNM000003 xhfl Rep xpl 1
