People v. Ramos-Munoz CA3 ( 2022 )

Filed 5/25/22 P. v. Ramos-Munoz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(El Dorado)
----
THE PEOPLE, C086508
Plaintiff and Respondent, (Super. Ct. No. S15CRF0093)
v.
MANUEL OVIDIO RAMOS-MUNOZ,
Defendant and Appellant.
Defendant, Manuel Ovidio Ramos-Munoz was employed at a hotel that was the
site of an early morning kidnapping and sexual assault. The victim was a 22-year-old
participant in a student work and travel program from Skopje, Macedonia who shared a
room at the hotel with other students from Macedonia. She was sitting alone outside the
hotel talking on the phone at about midnight when attacked at knifepoint by a man who
forced her to accompany him downstairs and across the street, all the while kissing her,
demanding that she commit sexual acts, hitting her, cutting her clothes off, attempting
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sexual intercourse and walking her back toward her hotel room, before she escaped,
totally naked, to her hotel room. She suffered cuts, scratches and bruises.
Defendant along with three other male hotel employees were asked to provide
saliva samples. Defendant did so. Thereafter, defendant contacted the hotel manager and
informed the manager that he had done something wrong in reference to the event. The
manager suggested that he speak with law enforcement authorities. He did so, and his
statements to investigators became the basis for the charges against him.
He appeals a judgment entered after a jury determined that he had committed all
but one of the charged sex offenses and associated enhancements, resulting in a sentence
of an indeterminate term of 167 years to life, plus a determinate term of 16 years. He
contends the trial court prejudicially erred in allowing the introduction of his partial
confession obtained by investigating officers in violation of his privilege against self-
incrimination under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Specifically, he
complains investigators should have provided him Miranda warnings because his
interrogation was custodial. We disagree and affirm his conviction.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Trial Testimony
The Victim’s Testimony
The People presented the testimony of the victim that she had been outside her
hotel room about midnight talking on a cell phone, with her roommates in the room,
when a man took her unawares, held a knife to her neck and told her to “be quiet or else
he would kill” her. He forced her down the stairs and threatened to kill her if she was not
quiet. She dropped her phone and was taken across the street to an area where there were
three large containers. It was very dark, but the victim described her attacker as a “little
bit taller” than her (approximately five feet eight inches tall), with an accent that was not
American, appearing to be between the ages of 20 and 30 years old, and with “a little bit
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of stomach.” He forcibly kissed her mouth, and then shoved her to her knees and
demanded that she orally copulate him. She did not smell alcohol on her attacker.
The victim resisted, telling her attacker that she did not want to and trying,
unsuccessfully, to avoid putting his penis in her mouth. He hit her head, causing her to
bleed and told her that he did not care. She complained of not feeling well and asked to
go to the hospital. He told her to undress, and when she refused, he cut off all of her
clothing with a knife. He repeatedly hit her and continually threatened to kill her if she
was not quiet. The man pushed her to the ground and attempted intercourse with her, but
he was unsuccessful because of her attempts to resist him. She said she “was trying to
close [her] legs, and he was opening them again, and it kept going on.” He tried to guide
his penis into her, but he was unable “to go inside.” The man moved her to another area
behind the containers where he aggressively and repeatedly penetrated her vagina and
anus with his fingers causing lots of pain. He handled her breasts and licked her vagina.
At some point, he held her neck, making it difficult to breath.
The man started to take her back towards the hotel. He asked for her room key
and if anyone else would be inside the room. Halfway to the hotel, the man forced her
back to the area with the large containers. He again forced her to her knees and made her
orally copulate him, but he never ejaculated. The man forced her around and attempted
anal sex. The victim got away and fled naked, running to her hotel room where she
entered the bathroom. She heard someone trying to enter her room behind her and her
roommates screaming. The entire attack may have taken 15 to 20 minutes or longer.
Someone called 911.
Testimony of Investigating Officers
South Lake Tahoe Police Officer Octavio Nava was dispatched to the hotel at
about 2:00 a.m. where he met the victim holding a white towel to her face covering a cut
above her right eye with blood still coming out of the cut. She also had minor cuts on her
fingers. She was taken to the hospital by ambulance.
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Detective Nick Carlquist responded to the hotel at approximately 3:00 a.m. and
interviewed M.K., one of the victim’s roommates, who said a Hispanic man with a “pot
belly” had burst into their room. She did not see his face because the room was dark, and
light outside caused the person to be “backlit.” Carlquist’s report indicated the man was
“heavyset” and “much taller” than the victim.
Detective Carlquist reported he was contacted by M.K. again later and he went
back to the hotel to meet with her. She was crying, nervous and anxious because she
recognized a hotel employee as possibly the man who entered the room the night before,
“which made her very emotional.” The man had “the same movements or same gait” as
the man who had come into the room. She reported he had come to their room the day
before the attack and had acted inappropriately flirtatious. He was wearing blue jeans, a
tan logoed shirt, and had a nose ring. Carlquist was unable to locate anyone matching
this description on his own. M.K. never identified defendant as the person she suspected.
Detective Carlquist spoke with Ruben Zepeda Raya, the general manager of the
hotel, told him there was an incident at the hotel the night before, and asked to speak with
any males who worked for the hotel. Defendant was among four men gathered at the
hotel office who agreed to give a sample of saliva. Carlquist testified that defendant had
been wearing jeans, a tan shirt, and had a nose ring. He was the only employee with a
nose ring.
Later in the afternoon, defendant came into Raya’s office; Raya said defendant
“was sad.” Defendant said he wanted to talk to Raya. Defendant told Raya he had done
“something wrong” and “was worried.” Defendant, according to Raya, said that “it was
in reference to the event -- you know, to the investigation.” Raya suggested defendant
talk to the police. Raya then called the police. Raya told Carlquist that after the men had
been dismissed to return to work, defendant, “had come back to him and appeared
emotional and had said that he had done something bad [the night before].”
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Detective Carlquist and Detective Doug Sentell, who returned to the hotel after
interviewing the victim at the hospital, met with defendant and his wife. Defendant
looked nervous, shy, anxious, and was avoiding eye contact. Raya translated for the
officers, telling defendant that he was free to leave, but asking if he would voluntarily
come with them to the station for a recorded interview. Defendant agreed, and was
transported without restraints in the front passenger seat of Sentell’s car to the police
station. Once at the station, defendant was placed in an interview room and interviewed
by Sentell with Officer Nava assisting with translation from English to Spanish and vice
versa. A video recording of defendant’s interview was admitted into evidence and played
for the jury.
B. Defendant’s Interview
At the outset of his interview with defendant, Sentell told him that he was not
under arrest “and he could not speak to [Sentell] if he didn’t want to, and that if he
wished to leave, he could leave at any time. And once he told [Sentell] that, we’d be
done.” Sentell also told him the door to the interview room was unlocked. In the
interview room, defendant sat at a small desk across from the detective. Officer Nava sat
behind Sentell in another chair. Defendant was not handcuffed.
Defendant explained that he needed to speak with the authorities because he drank
heavily the night before and did not remember what he had done, but nonetheless did not
think he was involved.
For the first hour or so of his interview, defendant recounted his attendance at a
work party at the hotel, that he had been drinking heavily, had gone for more drinks with
Pedro Rodriguez Pineda, and then had walked back to the hotel where he lived later that
night. When he arrived home he felt like he wanted to vomit. He took a shower and
noted mud on his knees and shorts. Defendant was unsure how the mud got there but
believed that he may have fallen down. When he finished showering, he saw flashing
lights and learned of the rape of a woman at the hotel and that her face was bleeding.
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Sentell was cordial and built a rapport with defendant by telling him it was okay
when he could not remember details and asking about defendant’s family. After nearly
an hour of questioning, there was a break of approximately nine minutes. When the
officers returned, Sentell asked defendant to show them his room on the map of the hotel.
Sentell asked defendant to tell him what he remembered now that he had time to think,
and defendant told them more about the mud he had on his shorts, about discussions he
and his wife had with various people at the scene, and that he moved the individuals
staying with the victim into four new rooms. They discussed defendant’s wife’s religion,
that defendant converted when he married her, and that his wife did not like his drinking.
Sentell continued building a rapport with defendant, stating that everyone, including
himself, sins.
At this point Sentell’s demeanor then changed somewhat. He continued to speak
calmly and remained seated, but he came closer to defendant. He placed his hands on
defendant’s shoulder and leg, as well as putting a hand in front of defendant and
interrupting when defendant professed amnesia. Sentell indicated he thought defendant
knew more than he was saying; that defendant came to see them in order to do what is
right. Defendant started to say that he felt in his heart that he did not do it even though he
did not recall. Sentell interrupted; he invoked defendant’s good intentions, explaining
that everyone makes mistakes and that defendant must tell the truth so that everyone can
heal. He held defendant’s hand while questioning him concerning injuries to that hand,
but defendant denied knowing how his hand was injured. He implored defendant not to
make him tell defendant’s wife that defendant would not admit his mistakes.
Sentell falsely represented that there was a witness who saw defendant with the
girl that was hurt, that they were going to take a break, and that after that “it will probably
be your last opportunity” “to come back to the truth.”
After a 22-minute break following nearly two hours of questioning, Sentell
returned and told defendant that it was time to talk and explain what he was doing with
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the victim because the people saw them together the night before. Defendant shook his
head, but Sentell insisted that he tell him what they were doing together. Defendant
repeatedly denied being with her. Defendant went on to explain that there was a period
that he did not recall, and years ago when he drank he would black out. If he had done
something drunk that he did not recall, he wanted to pay for that, but defendant
maintained that he did not remember. Sentell opined that defendant did indeed recall
what happened the night before and that defendant was just attempting to block out what
happened with the victim.
Defendant was shown pictures of the victim and exclaimed, “Oh my God.” He
was shown pictures of containers near the hotel and told that some of the blood found
there was from a male, and that they had a machine comparing his DNA sample he had
given with that blood. Sentell expressed fear that the machine would tell them what he
already knew, that defendant and the victim were there, and this reveal would occur
before defendant admitted his mistakes. And that if the machine did that, it would only
say that defendant committed the act, but not why.
Sentell’s questioning seemed calculated to suggest that defendant was a good
person but was not telling what he knew and Sentell wanted to provide him with an
opportunity to set things right.
As Sentell was leaving the room, defendant asked the translating officer in
Spanish to tell him not to leave because defendant wanted to speak with him. Sentell
came back, and defendant said that he remembered that the woman was on the stairs, he
was drunk, and he grabbed her, but he did not recall why. He did not recall anything else.
Sentell insisted defendant knew more.
Defendant said what happened hurt him in his heart, he did not feel right and
wanted to be right with God, his wife, and with everyone, but all that he remembered was
grabbing her from behind. Defendant then added that he remembered going across the
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street to a place where cars were not supposed to be, with the victim, by the apartments
downstairs.
Sentell had defendant close his eyes to picture what happened. Defendant then
relayed that when he grabbed the victim, she was in front of room 309, which is
downstairs. The victim did not do anything when he grabbed her, and she went with him.
He told her “Let’s go.” They went to the place in the photos.
Defendant continued on with much encouragement and cajoling to describe how
he grabbed her hair and how she left running, but denied knowing how many times he hit
the victim. He admitted cutting and ripping the victim’s upper clothes, cutting himself,
touching her on the breasts and vagina with his hands, and putting a finger inside her
vagina, but denied any memory of entering the victim’s room. He sat outside his room,
feeling like he needed to throw up and then showered. He denied showering to destroy
any evidence he might have had on him.
The interview went on a while longer, but without any additional factual
admissions.
C. Sexual Assault Suspect Exam of Defendant
Following his interrogation, defendant was subjected to a sexual assault suspect
exam. Detective Jake Herminghaus took defendant from South Lake Tahoe to the clinic
on Stockton Boulevard in Sacramento to be examined. After the examination was
completed, Herminghaus took defendant to the El Dorado County jail to be booked.
The exam was conducted by Dr. Angela Vickers, a pediatrician specializing in
child abuse and neglect, but cross-trained to do adult sexual assault exams.
Dr. Vickers noted that defendant had a cut on one of his fingers and “had multiple
little nicks on his forearms.” When asked to explain how his finger had come to be cut,
defendant said it had happened sometime before the alleged assault.
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Dr. Vickers collected swabs from defendant’s mouth, penis and scrotum. It
appeared his entire body was shaved except for his head. The swabs were sealed in a
“crime kit” and subsequently turned over to law enforcement for further forensic testing.
D. Search of Defendant’s Hotel Residence
South Lake Tahoe Police Officer Matthew Morrison served a search warrant at the
hotel, room 129, on June 12, 2015. This room was defendant’s residence. Officer
Morrison “collected several knives and articles of clothing and indicia in the name of
[defendant].” Among other things, the officer seized “a blue polo shirt that was wet, and
it appeared it had been like freshly rinsed out.” This shirt was in a “laundry basket within
the motel room in the bathroom.”
Officer Morrison found a “Leatherman multi-tool” on top of one of the
nightstands. In addition, he found an “SOG brand multi-tool in the third drawer of the
dresser within the room.” According to Officer Morrison, the multi-tool had a “straight
knife blade” that can be locked in place along with “a serrated blade,” a “pair of needle
nose pliers with cutters,” a Phillips head screwdriver, a pair of scissors, and a flat head
screwdriver. Neither the knives nor the clothing appeared to have blood on them.
E. DNA Analysis
Department of Justice criminalist Heather Tomchick testified as an expert in
forensic serology and DNA analysis. Tomchick first analyzed the victim’s sexual assault
kit materials and later analyzed defendant’s sexual assault suspect kit. No foreign DNA
was detected in Tomchick’s analysis of defendant’s kit. For the victim’s sexual assault
kit, Tomchick first separated the sperm and nonsperm fractions for the vaginal and
genital swabs. Because no p30 proteins consistent with male seminal fluid were detected,
this process was not completed for the oral and anal swabs. Tomchick then performed Y-
STR testing on the nonsperm fractions from both the vaginal and genital swabs.
Tomchick generated DNA profiles for the victim and defendant and then utilized
these profiles to compare the DNA found in the victim’s sexual assault kit. Defendant’s
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Y-STR profile matched the 17-locus DNA Y-STR full haplotype for both the vaginal and
genital nonsperm fractions. This meant defendant’s profile matched these results and
would be expected to also match his male relatives, barring mutations. This profile
would occur more generally in “no more than 1 in 2,070 African Americans, 1 in 2,457
Caucasians, and 1 in 1,580 Hispanics.” Tomchick also found a 14-locus Y-STR partial
haplotype in the sperm fraction from the genital swab, which she determined was
consistent with defendant’s DNA profile, but given that it had fewer points matching, it
“would give us a statistic that is more common, so not as much weight to the specific.”
Tomchick also located very low-level amounts of male DNA in the victim’s anal, buccal,
and oral swabs, which were too small to make a meaningful comparison.
Further, Tomchick performed both traditional STR and Y-STR testing on the
victim’s facial swab. Tomchick testified her results from the STR testing found a
mixture of a major female DNA profile and minor types from at least one contributor.
Assuming only one foreign minor contributor, defendant could not be excluded. She
estimated the statistical likelihood of a random match to defendant was “1 in 200 billion
African Americans, 1 in 2.5 billion Caucasians, and 1 in 5.7 billion Hispanics.”
Tomchick’s Y-STR analysis of the facial swab revealed a mixture of haplotypes and that
defendant matched the major haplotype detected. Testing excluded defendant’s brother
as a match for the nonsperm vaginal and genital haplotypes, as well as the DNA
recovered from the victim’s facial swab, but not the partial haplotype from the sperm
fraction. No DNA testing was performed on defendant’s clothes, nor did Tomchick test
any weapons.
F. Interview of Pedro Pineda
Pedro Rodriguez Pineda is familiar with defendant “[t]hrough work.” Pineda said
he was not a friend of defendant’s, nor did they socialize with one another.
One evening in June 2015, Pineda attended a party at the hotel. When the party
ended at about 11:30 p.m., Pineda left with defendant; they went “[t]o the casinos.” They
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stayed at the casino until about 12:30 or 1:00 a.m. Pineda and defendant left together.
Pineda said he “was going to [his] house, and [defendant] was going to his.” Defendant
then lived “at the hotel.”
All the time they were together defendant was calm. Neither he nor defendant
were stumbling or falling down. He and defendant “were not awfully drunk.”
G. Defense Evidence
The defense presented evidence from defendant’s wife, N.M., who met him in
2007 and married him in 2010. Defendant had never been sexually aggressive with her.
On or around June 10, defendant was working as a maintenance man at the hotel where
they lived and hurt his right pinky, requiring ointment and a bandage. She described the
wound as both a burn and a cut. The next day, there was a work party, which she
attended with defendant who was drinking beer and tequila. She left the party at
9:30 p.m. and was still awake when defendant came home around 1:40 a.m. Defendant
went into their bathroom to shower, and N.M. also went to the bathroom to relieve
herself. N.M was upset that defendant had been drinking and returned home very late.
Defendant apologized, and as they were getting ready for bed, defendant peaked through
the blinds and noticed the flashing lights of a police car.
The two of them dressed and left their room to investigate. While outside, they
encountered a young man and a young woman. The young woman told N.M. “that her
friend was taken down the stairs by her hair, across the street, and that she was attacked
and raped, and the girl came back to the room, and she was scared and crying.” When
N.M. spoke with her a second time, the girl added “that her friend was hit on the head,
and that it was hit on her face, and that her clothes were cut off with scissors or a knife,
and that there was lots of blood.” In the interim, defendant provided the young man a
new hotel room. When defendant returned to the front office, they locked up, and N.M.
told him all of the information she had learned from the young woman.
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Defendant and N.M. returned to their room and went to sleep. Defendant made
her lunch the next morning and walked her to work as he always did. Later, after she
returned from work, she ran into defendant and the young man from the night before.
The man said, “that the friend -- the girl was taken down -- down the stairs by her hair
and that -- taken across the street, and she was attacked, and she was raped and come
[sic] back to the room and scared and crying, that she was hit on the head and on the
face.· There was a lot of blood, and her clothes were cut up with scissors or knife.”
Defendant’s wife denied that defendant ever told her he had done anything wrong or
wanted to talk to “somebody.” She was with him when he spoke with Raya. On cross-
examination, N.M. denied that she had only informed defendant’s counsel that she spoke
with the young individuals mere days before. On redirect examination, counsel brought
out that no member of law enforcement had ever interviewed her and no one had ever
asked her about conversations with people in the parking lot on the night in question.
The defense also presented expert testimony from Dr. Richard Leo, a professor of
law and psychology at the University of San Francisco, who was certified as an expert in
“police interrogation, psychological coercion, and the making of false statements,
admissions, and confessions.” He opined defendant was subjected to a guilt-presumptive
interrogation, which has dual goals of convincing the suspect authorities have
conclusively established guilt and that it would be in his or her best interests to confess.
On the interrogation video, Dr. Leo saw numerous interrogation techniques designed to
induce a confession, including the use of false evidence, inducements, and time pressure
techniques. He could not say how often false confessions happened but stated, “that it
happens often enough to trouble us.” He also discussed the myth that an individual
would not confess unless subjected to physical coercion or mental illness. Dr. Leo
explained the three causes of false confession are misclassification, coercion, and
contamination error and discussed their application to the case, including the “guided
visualization” used by Sentell. On cross-examination, the People brought out that Dr.
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Leo had not considered any DNA testing done in the case, which could be important
when judging the validity of a confession and could be independent evidence supporting
the veracity of the confession.
The court then instructed the jury, and closing arguments occurred Thursday,
November 2, 2017. The People argued in pertinent part that defendant’s confession was
direct evidence that he was guilty of the crimes, including his admission that he placed a
finger in the victim’s vagina. The prosecutor argued that defendant came forward after
the collection of his DNA to minimize his behavior and that the evidence supported that
it was a truthful confession because he knew details only the true attacker would know.
In response, the defense argued the investigation was incomplete, and the evidence
was inconsistent with defendant’s guilt. The victim did not smell any alcohol on her
attacker’s breath, despite defendant’s drinking since 4:30 in the afternoon. Further, the
victim said the knife was held to her throat from the inception of the attack, thus
defendant’s statement during the guided visualization that he cut his hand while opening
the knife was inconsistent with the attack. Moreover, given the victim’s testimony, there
should have been blood on defendant’s clothing and the knife recovered by authorities,
but no such evidence was presented. Her description of her attacker’s physical
appearance and voice were also inconsistent with defendant. The DNA evidence was
more consistent with an earlier consensual encounter. Finally, defendant had an alibi for
the time of the attack, which started between midnight and 12:30 a.m. and lasted until
1:30 a.m. Defendant’s partial confession was false and induced by authorities.
Therefore, there was reasonable doubt that defendant assaulted the victim.
In reply, the People argued there was no evidence of any consensual sex between
defendant and the victim, and that defendant had been identified by his DNA, which
evidence was consistent with defendant’s sexual excitement and insertion of his fingers.
The victim’s description was also consistent with defendant, and his alibi did not really
alibi him. Defendant’s confession minimized his involvement, but was not inconsistent
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with the crime, nor was there anything wrong with the detective’s interrogation technique
that asked defendant to close his eyes. Defendant’s expert had conceded that if defendant
was guilty, the techniques utilized would have resulted in a true confession and that
defendant’s confession in the case was indeed a valid one.
Following closing arguments, the jury elected to return Tuesday, November 7, to
continue their deliberations. That same day, the jury asked for a readback of the victim’s
testimony and to watch the video of defendant’s confession. They then completed all
verdict forms except one. The following day, the jury found defendant not guilty of one
count of attempted forcible rape (Pen. Code, §§ 664/261, subd. (a)(2); count 7), but guilty
as charged on all remaining counts and enhancement allegations. He was sentenced on
January 26, 2018, to an aggregate indeterminate term of 167 years to life, plus a
determinate term of 16 years. He was also ordered to pay various fines, fees,
assessments, and restitution, none of which are challenged on appeal. Defendant timely
appealed.
DISCUSSION
I
Denial of Motion to Suppress
A. Proceedings in the Trial Court
Defendant’s trial counsel filed a written motion to exclude his statement to the
police investigators. Counsel asserted defendant agreed to accompany the officers to the
police station to talk, but once there “the interview ripened into a custodial interrogation.”
Counsel argued that defendant should have been admonished of his Miranda rights
before being interrogated further and the failure of the officers to advise him of his rights
warranted exclusion of his statement at trial.
The trial court denied defendant’s motion, writing in pertinent part:
“Here, the defense does not dispute that defendant voluntarily agreed to be
interviewed by the South Lake Tahoe Police Department. But, the defense argues the
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interview ripened into a custodial interrogation given the positioning of the officers, the
touching of defendant, and religious references made during the interview.
“The defense’s arguments are not persuasive. The interview occurred at the police
station. Defendant was transported to the police department in an unmarked detective
car. There are no bars or cages in the car, and defendant was seated in the front
passenger seat and was not handcuffed.
“There were two officers present during the interview; one doing the questioning
(Detective Doug Sentell) and the other officer (Officer Octavio Nava) acting as an
interpreter. Detective Sentell confirmed with the defendant that he had voluntarily
agreed to an interview and told him that he was free to leave. When the interview began,
defendant was not formally arrested or frisked. The door to the interview room was not
locked and defendant was not led to believe he was being restrained in a locked room.
Detective Sentell was wearing a polo shirt, cargo pants, and a baseball cap. He did not
display any weapons.
“While defendant was interviewed for approximately 3.5 hours, the interview was
not continuous and was interrupted by several breaks, some lasting 20 minutes or more.
Defendant was offered food, water, and bathroom breaks. He left the room for several
minutes to use the bathroom.
“It is true Detective Sentell is seated close to defendant, but the interview room
appears small. Indeed, Detective Sentell is outside the camera’s field of view during a
good portion of the interview. While Detective Sentell’s manner and tone becomes more
assertive later in the interview, his tone was even and was not threatening or intimidating.
Detective Sentell touches defendant multiple times, but the touching appears to be an
attempt to build rapport with defendant and is not aggressive or physically intimidating.
“During a portion of the interview Detective Sentell makes several religious
references, but it was the defendant who initially raised the matter of religion. There is
no indication defendant held strong religious beliefs or was particularly vulnerable to
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religious anxieties or a sense of guilt. (See People v. Carrington (2009) 47 Cal.4th 145,
176 [97 Cal.Rptr.3d 117].) In fact, he references that his wife was troubled by his
consumption of alcohol the evening of the events in question, because such conduct is
contrary to the tenets of their faith. The substance of Detective Sentell’s comments
‘sought to evoke defendant’s better nature’ by asserting defendant would feel relief by
telling the truth. (See ibid.) Moreover, the religious references are few and do not
dominate the interview.
“Under the totality of the circumstances, the Court finds that the defendant was not
in custody when he made the inculpatory statements during the interview in question.
The Court finds that in viewing the totality of the interview, a reasonable person in
defendant’s position would not have felt he was in custody at the times pertinent. For the
foregoing reasons, the defendant’s motion to exclude his statement to Detective Sentell is
denied.”
B. Controlling Principles
Miranda warnings are required when a suspect is subjected to custodial
interrogation. “[T]he term ‘interrogation’ under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect.” (Rhode Island v. Innis (1980)
446 U.S. 291, 301.)
Prior to Miranda, the Supreme Court addressed the propriety of confessions as
issues of due process through the due process clause of the Fourteenth Amendment. The
voluntariness of a confession was the key issues. In a paradigm shift, the Supreme Court
in Miranda analyzed the issue through the Fifth Amendment’s self incrimination clause.
Defendants could challenge incriminatory statements as involuntary within the meaning
of the due process clause. But the court concluded the process of custodial interrogation
endangers a suspect’s Fifth Amendment privilege because it exerts inherent pressures that
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undermine a suspect’s ability to exercise the right to remain silent. The antidote to such
pressures was a system of warnings and waivers devised by the court to counteract the
pressures inherent in a custodial interrogation. However, the warnings and waivers are
only required when a suspect has been “taken into custody.” (See Weisselberg,
Mourning Miranda (2008) 96 Cal. L.Rev. 1519.)
An interrogation is custodial for Miranda purposes “when ‘a person has been
taken into custody or otherwise deprived of his [or her] freedom of action in any
significant way.’ [Citation.] Custody consists of a formal arrest or a restraint on freedom
of movement of the degree associated with a formal arrest. [Citations.] When there has
been no formal arrest, the question is how a reasonable person in the defendant’s position
would have understood his [or her] situation.” (People v. Moore (2011) 51 Cal.4th 386,
394-395.) The question to be resolved is “ ‘would a reasonable person in the suspect’s
position during the interrogation experience a restraint on his or her freedom of
movement to the degree normally associated with a formal arrest[?]’ ” (People v. Bejasa
(2012) 205 Cal.App.4th 26, 35, quoting People v. Aguilera (1996) 51 Cal.App.4th 1151,
1161 (Aguilera).) “[W]e accept the trial court’s findings of historical fact if supported by
substantial evidence but independently determine whether the interrogation was
‘custodial.’ ” (Aguilera, at p. 1161.)
The only relevant inquiry is how a reasonable person in the suspect’s position
would have understood their situation. (Yarborough v. Alvarado (2004) 541 U.S. 652,
662.) The Supreme Court has emphasized that the subjective perception of the suspect is
not relevant. (Stansbury v. California (1994) 511 U.S. 318, 323 (Stansbury).) The high
court has explained: “[A]n objective test [is] preferable to a subjective test in part
because it does not ‘ “place upon the police the burden of anticipating the frailties or
idiosyncrasies of every person whom they question.” ’ ” (Yarborough, at p. 662.)
Nor is the undisclosed intent of the officers regarding the suspect’s custodial status
relevant. (Stansbury, supra, 511 U.S. at p. 323.) “ ‘[A] policeman’s unarticulated plan
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has no bearing on the question whether a suspect was “in custody” at a particular time.’ ”
(Id. at pp. 323-324.) Furthermore, whether the person being interviewed is the focus of
the investigation is not a relevant consideration. (Id. at pp. 319, 324, 325 [“We hold, not
for the first time, that an officer’s subjective and undisclosed view concerning whether
the person being interrogated is a suspect is irrelevant to the assessment whether the
person is in custody”].) Indeed, “[e]ven a clear statement from an officer that the person
under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for
some suspects are free to come and go until the police decide to make an arrest.” (Id. at
p. 325.)
California appellate courts have identified a number of factors to consider in the
totality of the circumstances test. (Aguilera, supra, 51 Cal.App.4th at p. 1162; accord,
People v. Torres (2018) 25 Cal.App.5th 162, 172-173; People v. Saldana (2018)
19 Cal.App.5th 432, 455; People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404
(Pilster).) These factors are: (1) whether the contact with law enforcement was initiated
by the police, and if so, whether the person voluntarily agreed to an interview; (2)
whether the express purpose of the interview was to question the person as a witness or a
suspect; (3) where the interview took place; (4) whether police informed the person that
he or she was under arrest or in custody; (5) whether the police informed the person that
he or she was free to terminate the interview and leave at any time and/or whether the
person’s conduct indicated an awareness of such freedom; (6) whether there were
restrictions on the person’s freedom of movement during the interview; (7) how long the
interrogation lasted; (8) how many police officers participated; (9) whether police
dominated and controlled the course of the interrogation; (10) whether the police
manifested a belief that the person was culpable and they had evidence to prove it; (11)
whether the police were aggressive, confrontational, and/or accusatory; (12) whether the
police used interrogation techniques to pressure the suspect; (13) and whether the person
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was arrested at the end of the interrogation. (See, e.g., Pilster, at pp. 1403-1404., citing
Aguilera, at p. 1162.)
“No one factor is dispositive. Rather, we look at the interplay and combined effect
of all the circumstances to determine whether on balance they created a coercive
atmosphere such that a reasonable person would have experienced a restraint tantamount
to an arrest.” (Aguilera, supra, 51 Cal.App.4th at p. 1162.) We do not focus solely on
isolated statements made by the police during the interrogation. The totality of the
circumstances “must be considered as a whole.” (Pilster, supra, 138 Cal.App.4th at
p. 1403.)
C. Analysis
Considering the Aguilera factors, we note the following: it is undisputed that
defendant came to the police station on his own. His presence had not been requested by
anyone. Defendant returned to see Raya, the hotel manager, because defendant wanted to
talk with him. Defendant looked worried and sad. Defendant said he had done
“something wrong” and that “it was in reference to the event -- you know, to the
investigation.” Raya suggested that he talk to the police. Raya called the police.
Defendant was told at the outset that he was not under arrest, he was not required to
speak to Detective Sentell if he didn’t want to, and that if he wished to leave, he could
leave at any time. “And once he told [Sentell] we’d be done.”
Thus, defendant was there at his own behest. He was questioned by a single
officer. We have viewed a video of the interrogation. Sentell was measured and
courteous in his questioning. Clearly, as he heard more from defendant, the questioning
became more focused and accusatory and calculated to determine what defendant had
done “wrong.” The fact that Sentell may have come to regard defendant as a suspect
would not have altered his custodial status so long as the understanding declared at the
beginning of the interview—that he could leave at any time—remained in place.
Viewing the totality of the circumstances, there is no indication that Sentell decided to
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make an arrest until later in the interrogation after defendant disclosed the criminal acts
for which he was ultimately charged. In the end, defendant was arrested, but there was
no indication of a preconceived plan to arrest at the beginning of the interview.
Defendant makes much of Sentell’s act of placing his hand on defendant’s knee
and holding defendant’s hand and his persistent pleas for honesty and candor. But
measures designed to establish a level of comfort and trust are not forbidden. We agree
with the trial court Sentell’s tone was not threatening or intimidating. He touched
defendant multiple times, but the touching appears intended to build trust, not to
intimidate. Noncustodial questioning, expressions of doubt about a person’s answers and
persistence in following up on responses do not create an obligation to give Miranda
warnings.
Beyond defendant’s claim that his interrogation was involuntary because it was in
response to questioning without Miranda warnings, there is no argument that the partial
confession was otherwise coerced and there is no other obstacle to its admissibility
II
Compelling Evidence Supports Guilt Even in Absence of Defendant’s Admissions
When she was interviewed at the hospital, the victim described her assailant as “a
Hispanic male adult, about 5 foot 4 to 5 foot 6, approximately 18 to 22 years of age. . . .
[H]e had a noticeable belly. He had short hair. She did not think he had facial hair but
wasn’t positive . . . . [H]e had an unknown colored T-shirt, khaki shorts, and a black
belt.”
Her roommate, M.K., reported that a Hispanic man with “a pot belly,” had burst
into the room the night of the attack. M.K. could not see the man’s face but later told
Detective Carlquist she “recognized [one of the hotel’s employees] as possibly the
suspect in the case, which made her very emotional.” The man had visited the room the
night before the attack, wearing blue jeans and a tan shirt “with a logo on the front” and
had a nose ring. She recognized “the same movements or same gait” in the man who
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burst into the room the night of the attack as the man who had come into the room the
night before.
According to M.K. the hotel employee in question had come to the room the
previous day. Detective Carlquist expounded on what she said as follows:
“She said that the day before, when they checked into the hotel, one of the
employees, who she recognized as the employee who had just walked by, had come up to
the room, had spoken with her and her friends and was acting very flirtatious. Said that if
they needed anything at all, that he could take care of them. Said that they looked very
good. Was acting out of character for his -- for his job there.”
Upon ascertaining which male employees possibly matched the description of the
victim’s attacker, Detective Carlquist had the men assemble in the manager’s office; one
of the men was defendant. Carlquist said he “explained to the four employees,” and
Raya, the hotel manager, “that [the night before] there had been some sort of sexual
assault or kidnapping possibly and that [the police] were investigating this.” The four
men were asked to give saliva samples; they all agreed to have the samples taken.
Detective Carlquist also took pictures of the four men. A little while after Detective
Carlquist had left, he was called by Raya. Raya told Carlquist that after the men had
been dismissed to return to work, one of them, defendant, “had come back to him and
appeared emotional and had said that he had done something bad [the night before].”
Serology samples obtained from the victim and defendant were examined. The
examining criminalist found epithelial cells in the vaginal and genital swabs from the
victim; however, no sperm cells were detected. By doing Y-STR testing “on the non-
sperm fraction of the vaginal swab and the non-sperm fraction of the genital swab, [the
criminalist] obtained a 17-locus male DNA haplotype.” This profile matched defendant’s
DNA profile. According to the criminalist, this “means that [defendant] and all
paternally related male individuals, barring a mutation, can’t be excluded as a source of
that DNA.”
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In addition to the 17-locus DNA haplotype, the criminalist found a “14-locus
partial haplotype” in one of the victim’s serological samples. The criminalist said that
“even though I didn’t see sperm cells when I made my slide, I still detected p30, which is
a component of seminal fluid.” The criminalist explained that “17-locus” means “a full
haplotype. There is DNA at each marker, meaning that there is a full profile, a full
haplotype.”
This is not a case where defendant’s guilt rests solely on his admissions under
interrogation. His distinctive dress, nose ring and gait connected him to the room where
the attack occurred. His self-admitted anxiety about doing something bad the night of the
crime connected him to the events of that evening. DNA samples connected him to the
victim. The evidence of guilt was compelling even in the absence of defendant’s
admissions under interrogation.
DISPOSITION
The judgment is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
HULL, J.
/s/
MAURO, J.
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