People v. Andersen-Schwegerl CA3 ( 2022 )

Filed 1/27/22 P. v. Andersen-Schwegerl 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C091092
Plaintiff and Respondent, (Super. Ct. No. 17F6743)
v.
KENDRA ANN ANDERSEN-SCHWEGERL,
Defendant and Appellant.
Defendant Kendra Ann Andersen-Schwegerl went out drinking after work with the
intention of getting drunk. Around midnight, defendant rear-ended a car carrying five
young people, killing two of them and injuring the others. Her blood alcohol level was
three times the legal limit and she was traveling at 100 miles per hour at the time of the
crash. She was convicted by a jury and sentenced to 30 years to life on two counts of
second degree murder and 10 years concurrent on other charges arising from the crash.
Defendant concedes she was guilty of gross vehicular manslaughter and causing
injuries while driving under the influence. But defendant contends the court committed
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reversible error by admitting two sets of incriminating statements she gave to police, the
first at the hospital and the second at the police station after she was advised of her rights
under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Without the admission of
these statements, defendant contends she would not have been convicted of two counts of
second degree murder.
With the exception of remand to resentence defendant on one count under Senate
Bill No. 567 (2021-2022 Reg. Sess.), we will affirm.
FACTUAL BACKGROUND
On November 2, 2017, defendant finished her shift at Red Robin in Redding at
around 9:15 p.m. Defendant was upset that evening and told her manager it had
something to do with her boyfriend. Defendant said she needed to get drunk. Her
manager told her to be safe and defendant said she always was, she had a designated
driver. Defendant texted a friend that she was on her way to get drunk at home.
Defendant’s coworker that night, Brandon Sergeeff, observed that defendant was
sad and complaining about taking care of her sister, spending all of her savings, and
having an argument with her father earlier. After his shift, Sergeeff went to a local bar in
Redding, Shameless O’Leery’s. Sergeeff messaged defendant about meeting up with him
at the bar. Defendant joined Sergeeff and a friend at the bar. She said she had had three
beers in the car before coming in. Defendant had a beer at the bar. Sergeeff left
Shameless O’Leery’s and went to the Rusty Nail. Defendant came into the Rusty Nail
later but Sergeeff did not see her drink anything there.
Defendant messaged another coworker, John Fadden, about meeting up at
Shameless O’Leery’s. Defendant said she had had a bad day and needed to get
hammered. Fadden recalled defendant had at least one beer at Shameless O’Leery’s and
a shot of tequila. They left in separate cars and went to the Rusty Nail. They had a beer
there and were leaving in separate cars with plans to go back to defendant’s house.
Fadden asked defendant if she was okay to drive and she said she was. Fadden asked if
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she was sure and offered to drive her. Defendant said she was able to drive and drove
away. Fadden bought a bottle of tequila and waited at defendant’s house. He messaged
defendant to see if she was okay but didn’t hear anything and went home.
A video surveillance recording of Shameless O’Leery’s showed defendant
drinking three large beers and a shot of liquor. A video recording of the Rusty Nail
showed defendant leaving with Fadden, almost losing her shoe in the parking lot, almost
falling over putting it back on, and holding on to Fadden.
Shortly before midnight on November 2, 2017, Daisy Reece, Lacy Jackson, Erica
Young, Ralph Sorrel and Clifford Bailey were riding in Jackson’s car with Young
driving, going to drop off Sorrel. Reece, Young, Jackson and Bailey were roommates
and students at Shasta College. They were all in their teens.
Shortly after midnight on November 2, 2017, Michael Snyder was driving south
on Churn Creek Road in Redding at 40 miles per hour. He saw a vehicle in his rearview
mirror coming up behind at a high rate of speed and straddling two lanes. Snyder went
left over the center divider so that the vehicle could pass on the right. He estimated the
car was going 80 miles per hour. The car passed him and went through a red light with
no brake lights on. He heard the crash and saw a big puff of smoke. Snyder did not see
what the car hit. He pulled into a gas station and called 911.
Based on data downloaded from defendant’s vehicle and surveillance video, a
California Department of Transportation (Caltrans) transportation engineer working with
the California Highway Patrol determined that defendant was driving 100 miles per hour
at the time of the crash.
Surveillance video from a Circle K convenience store at the intersection where the
crash occurred showed the Toyota Corolla stopping at the limit line in the right lane. The
Ford Freestyle came southbound straddling the white line between the two lanes, moving
at a high rate of speed. The light turned green a second before the collision. A police
officer investigating the crash determined that the Toyota had been struck in the rear
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driver’s side. The damage was very significant; the entire car was destroyed. The
damage to the Ford matched the damage to the Toyota. The damage to the two vehicles
was consistent with a very high-speed collision.
Reece woke up after the collision and saw Young slumped over with her eyes
closed. Reece saw Jackson in the back seat with a cut on her arm. Reece passed out.
The next thing she remembered was being on the sidewalk and seeing Bailey bleeding.
An ambulance took Reece to the hospital where she was treated for bruises and scratches.
Bailey recalled pulling out of their apartment, a quiet car ride, and waking up in
the hospital. His jaw was wired shut and a tooth was sticking out of his lip. He had a
concussion, a broken jaw and shattered teeth. Sorrel remembered waking up in the
hospital with an injured knee and scratches and bruises on his leg and arms.
Autopsies of Young and Jackson determined that they had died from blunt trauma
consistent with a high-speed motor collision.
A Redding police officer dispatched to the scene observed a “mangled” Toyota.
The driver and a passenger in the back seat were unresponsive. Defendant was in the
driver’s seat of the other vehicle, a Ford SUV. Defendant had large abrasions on the right
side of her forehead and under her right eye. The officer helped defendant out of the car.
He noticed a strong odor of alcohol from inside the vehicle and a six pack of beer in the
front passenger compartment. When speaking with defendant, the officer noticed she
was upset. He could instantly smell alcohol on her breath. Her eyes were red and watery
and her speech slurred. Defendant told the officer she got drunk at the Rusty Nail. She
said she was trying to go home.
Defendant told a paramedic who transported her in an ambulance to the hospital
that she had consumed two or three drinks. The paramedic observed that defendant had
slurred speech and was behaving as if intoxicated. Another paramedic observed that
defendant was “wobbly on her feet” and “smelled of alcohol.” Defendant told the
paramedic that she “drank everything under the sun tonight.” Assisted by a paramedic,
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defendant walked into the back of the ambulance. At the hospital, defendant was
transferred to gurney and taken into the emergency room.
A second Redding police officer, Chris Staup, followed the ambulance to the
hospital. He noted that defendant had lethargic expression, her speech was thick and
slurred, and her eyes were watery and bloodshot. Defendant was arguing with medical
personnel trying to help her.
An officer at the scene requested Officer Jacob Provencio, the Redding Police
Department’s driving under the influence (DUI) specialist, to respond because the
incident appeared to be a DUI case. Provencio arrived a short time after defendant was
transported to the hospital. Defendant was on a hospital bed. She appeared to be upset
and was a little belligerent. She was moving around, waving her arms and being loud.
She didn’t appear to be listening to instructions from medical personnel.
Provencio administered a horizontal gaze nystagmus test to defendant in a hospital
bed, looking for a jerking motion of the eye in tracking his finger moving side to side,
which indicates alcohol impairment. Defendant was having trouble following
instructions, would not follow Provencio’s finger, and at one point reached out to try to
grab his hand. Based on the test and some additional information, Provencio determined
that defendant’s blood alcohol level was above .08 percent. A subsequent blood draw
determined that her blood alcohol level was .254 percent.
After the test, Provencio attempted to question defendant. Staup was recording.
Clips of the recording were played for the jury. Defendant initially said she wasn’t
driving and didn’t know what happened. Then defendant said she drank three 22-ounce
Hexagenia beers at “Shameless” but no hard alcohol.1 Asked if she felt drunk, defendant
said, “No, yeah, maybe, I don’t know.” Defendant admitted she felt the effect of the beer
1Hexagenia is 7.1 percent alcohol, much stronger than a domestic beer like Coors,
which is about 4 percent.
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she had. Asked how she felt, defendant said, “Drunk as shit. Apparently that’s what you
wanna to hear.” Provencio said, “I just want you to tell me the truth.” Asked where she
was coming from when the collision happened, defendant said she didn’t know there was
a collision. Defendant then said she had left her job at Red Robin and didn’t go
anywhere after Shameless. Asked when she had something to eat, defendant said
sometime that day and then said, “I don’t know. I was having a really bad day today.
I’m like emotionally - everything is just shit.” Defendant denied she was driving and
when asked who was, said, “I don’t know - I don’t know who was driving. All I care
about is myself and how I feel right now. I don’t give a shit who was driving or how they
were driving, they could’ve been driving in circles and I don’t fucking know.” Defendant
said, “But all I know is I’m okay and . . . .”
Based on his observations of defendant at the hospital, Provencio stated his
opinion that she was intoxicated to the point that she was not able to operate a motor
vehicle safely.
Close to 4:00 a.m., defendant was medically cleared to leave the hospital.
Provencio told defendant she was under arrest. Provencio took defendant to the Redding
Police Department for a further interview. Clips of a video and audio recording of the
interview were played for the jury.
Provencio advised defendant of her Miranda rights and defendant stated she
understood them. Asked the last thing she remembered about that night, defendant said
she remembered nothing and then that she went to Shameless by herself. Asked what car
she had, defendant said a “Honda Ford” and then a “free style Ford. 2017.” Defendant
said she was not driving but could not tell who was driving. When Provencio said he
could not understand what she was saying, defendant said, “I know it. I can’t really
understand myself very well. And I’m really sorry but, like, only thing I can think of
right now is trying to get sleep and trying to be okay because I’m not okay.” Provencio
drew her attention to her clothes from the hospital, reminded her that she was in the
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hospital because she was in a crash, and asked her how the crash happened. Under
repeated questioning, defendant agreed that she drove herself to Shameless. Provencio
repeatedly asked defendant to sit up, look at him and have some water. Defendant
complained of pain and said she wanted to go home and go to bed. Asked why people
get arrested for driving under the influence and why it’s against the law, defendant said
“[b]ecause you’re being dumb.” Asked what could happen if a person is driving under
the influence, defendant said: “You can get into an accident and could really hurt
somebody. I get it. I’m surprised that I’m even fucking in the predicament that I’m in
and I’m so mad at myself. I won’t probably sit there and beat myself up for like a week.”
Asked what happens when people drive under the influence of alcohol, defendant said
“accidents” happen and “[d]eath” can happen in an accident.
Defendant agreed that a DUI is dangerous but answered, “I couldn’t tell you,”
when asked why she was driving after drinking knowing that it’s dangerous. Asked how
much she had to drink today, defendant said four 20-ounce Hexagenias and a vodka soda
at Shameless O’Leery’s.
Defendant said that she did not remember the collision or hitting another car.
Provencio told defendant she hit another car, there were five people in the car, and two of
the girls in the car were killed. He told defendant she was in the driver’s seat and the
only person in the car. Defendant said she did not know how this happened.
The prosecution presented evidence that defendant’s orientation at Red Robin
included training about responsible alcohol service that included recognizing the signs of
intoxication. In 2008 and 2013, defendant signed Department of Motor Vehicles (DMV)
forms advising that driving under the influence of alcohol is extremely dangerous to
human life and if someone is killed as a result, defendant could be charged with murder.
Defendant’s friends and coworkers testified that, after drinking, defendant would walk
home, get a ride with a sober driver, or take an Uber.
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A defense expert, Dr. Michael Motley, opined that the DMV advisements were not
conspicuous and the language was hard to understand. He concluded the warning was
inadequate and someone could fill out the form without reading the advisement.
Testifying for the defense, Dr. John Kelsey, an emergency room physician who
treated defendant at the hospital, testified that defendant had a contusion and abrasion on
her forehead, which, along with her agitated and uncooperative behavior, led him to
believe she may have had a concussion. Dr. Kelsey ordered a CAT scan but defendant
would not hold still. She was flailing her arms about. Defendant was trying to hit
nursing staff. Defendant received 1.5 milligrams in two doses of Ativan, a sedative, five
milligrams of Haloperidol, an antipsychotic, and four milligrams of morphine, for pain if
her agitation was potentially caused by pain.2 Defendant had a fractured spine, which
could cause pain. Dr. Kelsey testified that morphine can interfere with the ability to
think. The combination of Ativan and alcohol can slow a person’s thought processes,
including processing information. Defendant was sleepier after receiving Ativan.
Defendant did not have any bleeding in the brain and Dr. Kelsey did not diagnose her
with a concussion.
DISCUSSION
Defendant filed motions in limine to exclude her prearrest and postarrest
statements to Provencio, which defendant supported with transcripts of the audio
recording made at the hospital and the video and audio recording of the interview at the
police station, as well as the recordings themselves, and the results of defendant’s blood
sample analysis showing a .254 percent blood alcohol level. The trial court conducted a
hearing on the motions under Evidence Code section 402 with testimony from Staup,
2 Defendant was given this medication at the hospital after Provencio interviewed her
there and before she was interviewed at the police station.
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Provencio and Dr. Kelsey. The court denied both motions. We affirm the court’s
rulings.
Standard of Review
“ ‘The prosecution has the burden of establishing by a preponderance of the
evidence that a defendant’s confession was voluntarily made.’ [Citation.] ‘Whether a
confession was voluntary depends upon the totality of the circumstances.’ [Citations.]
‘On appeal, we conduct an independent review of the trial court's legal determination and
rely upon the trial court's findings on disputed facts if supported by substantial evidence.’
[Citation.] The facts surrounding an admission or confession are undisputed to the extent
the interview is tape-recorded, making the issue subject to our independent review.
[Citation.]” (People v. Linton (2013) 56 Cal.4th 1146, 1176-1177 (Linton).)
Prearrest Statements
Defendant contends that evidence of her prearrest statements recorded at the
hospital should have been excluded because: (1) her statements were involuntary; (2) the
statements were the result of custodial interrogation in violation of Miranda; and (3) she
had invoked her right to remain silent.
Defendant contends her statements at the hospital were involuntary because
(1) Provencio “conducted a field sobriety test . . . while she was on a gurney in the
emergency room undergoing medical treatment for her injuries,” (2) she “had no
opportunity to leave” because she “had to undergo medical examinations,” (3) while
Provencio “questioned her for the purpose of conducting an investigation for driving
under the influence,” (4) she “repeatedly asked to go home and reported extreme pain,”
and (5) “she was extremely intoxicated” with a blood alcohol content of .254 percent.
“In evaluating the voluntariness of a statement, no single factor is dispositive.
[Citation.] The question is whether the statement is the product of an ‘ “essentially free
and unconstrained choice” ’ or whether the defendant’s ‘ “will has been overborne and
his capacity for self-determination critically impaired” ’ by coercion. [Citation.]”
9
(People v. Williams (2010) 49 Cal.4th 405, 436 (Williams).) “ ‘In assessing allegedly
coercive police tactics, “[t]he courts have prohibited only those psychological ploys
which, under all the circumstances, are so coercive that they tend to produce a statement
that is both involuntary and unreliable.” [Citation.]’ [Citation.].” (Ibid.)
“ ‘A finding of coercive police activity is a prerequisite to a finding that a
confession was involuntary under the federal and state Constitutions. [Citations.] A
confession may be found involuntary if extracted by threats or violence, obtained by
direct or implied promises, or secured by the exertion of improper influence. [Citation.]
Although coercive police activity is a necessary predicate to establish an involuntary
confession, it “does not itself compel a finding that a resulting confession is involuntary.”
[Citation.] The statement and the inducement must be causally linked. [Citation.]’ ”
(People v. McWhorter (2009) 47 Cal.4th 318, 347; Williams, supra, 49 Cal.4th at p. 437;
Linton, supra, 56 Cal.4th at p. 1176.)
Reviewing the record of Provencio’s questioning defendant in the hospital, we
find no evidence of the crucial element of police coercion, much less incriminating
statements that were the product of police coercion. Provencio questioned defendant a
short period of time, some 10 minutes in the recording. Provencio posed his questions in
a calm and deliberate manner. (People v. Perdomo (2007) 147 Cal.App.4th 605, 618
(Perdomo).) His tone of voice was conversational, not threatening. (Ibid.) The
questions themselves were not accusatory or threatening but rather straightforward
“where, what, when” questions about defendant’s drinking that night. (People v. Mosley
(1999) 73 Cal.App.4th 1081, 1091 (Mosley).) Provencio interviewed defendant in public
in view of medical personnel as they tried to treat her. The record of defendant’s
statements in the hospital in response to Provencio’s questions contains no evidence of
coercion, threats, promises, or deceptive police interrogation.
Defendant was restrained when she arrived at the hospital because she was hitting
medical staff. The audio tape includes an exchange prior to Provencio’s arrival at the
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hospital between Dr. Kelsey and a medical staff person where he asked, “Restrained?,”
and receives an affirmative response. At the hearing, Dr. Kelsey testified that because
defendant was agitated, “[a]pparently at one point, based on nursing notes, she had to be
handcuffed by the officers because she was swinging at staff.” Provencio testified that
defendant was not restrained in any way when he questioned her.
Detention for medical examination or treatment is not an “inherently coercive”
police environment. (Wilson v. Coon (8th Cir. 1987) 808 F.2d 688, 689-690 (Wilson)
[defendant questioned while restrained by paramedic in an ambulance]; Mosley, supra,
73 Cal.App.4th at pp. 1089-1090 [defendant questioned while “in the physical custody
and care of medical personnel,” citing Wilson].) Defendant claims she was handcuffed
while Provencio questioned her, but the supporting citation defendant provides is to her
request to be “unlocked,” which she made a substantial period after questioning had
ended and Provencio had placed her under arrest.
Defendant contends that Provencio questioned her to investigate the crime of
driving under the influence. That circumstance does not render her answers involuntary.
“The business of police detectives is investigation, and they may elicit incriminating
information from a suspect by any legal means.” (People v. Jones (1998) 17 Cal.4th 279,
297.) “ ‘The courts have prohibited only those psychological ploys which, under all the
circumstances, are so coercive they tend to produce a statement that is both involuntary
and unreliable.’ [Citation.]” (Id. at pp. 297-298; see also People v. Chutan (1999)
72 Cal.App.4th 1276, 1282 [“failure to brief a suspect on the official plan for an
interrogation” does not “constitute coercion”].)
Defendant’s complaints of pain and statements that she wanted to go home do not
establish coercion. The transcript and recording of the interview do not indicate that
defendant was in intolerable pain such that her will to resist making incriminating
statements was overborne. For example, during questioning defendant vociferously
expressed anger at medical staff for minor pain she experienced from treatment. When
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defendant complained of pain from bandaging, a medical staff person responded, “It’s
just tape,” and defendant yelled, “I know it’s just tape, but it fucking hurts.” Our review
of the transcript and audio recording of defendant’s interrogation reveal statements were
not the involuntary result of police coercion exploiting her physical condition. (Perdomo,
supra, 147 Cal.App.4th at p. 618, fn. 22 [comparing Mincey v. Arizona (1978) 437 U.S.
385, 401-402, where “the coercive police activity included lengthy, relentless
questioning, while the defendant was in great pain, in and out of consciousness, while
disregarding his requests for the interrogation to cease and for counsel”].)
As for defendant’s intoxication, absent police coercion, “[i]ntoxication alone does
not render a confession involuntary.” (People v. Debouver (2016) 1 Cal.App.5th 972,
978; People v. Maury (2003) 30 Cal.4th 342, 411.) Defendant “makes no showing that
any false promises of leniency were made or that [she] suffered from a physical, mental
or alcohol/drug impairment that was exploited by the police to coerce a confession.”
(Debouver, supra, at p. 978.)
Lastly, defendant contends that the “failure to give Miranda warnings created a
presumption of compulsion” in her case. However, “ ‘absent deliberately coercive or
improper tactics in obtaining the initial statement, the mere fact that a suspect has made
an unwarned admission does not warrant a presumption of compulsion.’ ” (People v.
Storm (2002) 28 Cal.4th 1007, 1030-1031, quoting Oregon v. Elstad (1985) 470 U.S.
298, 314.) There is “ ‘a vast difference between the direct consequences flowing from
coercion of a confession by physical violence or other deliberate means calculated to
break the suspect’s will’ ” and the consequences of an incriminating statement “ ‘freely
given in response to an unwarned but noncoercive question . . . .’ ” (Storm, supra, at
p. 1030, quoting Elstad, supra, at p. 312.)
Our review of the audio recording and transcript of Provencio’s questioning
defendant in the hospital reveals no evidence of police coercion. The trial court correctly
ruled that defendant’s statements were not involuntary.
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Turning to defendant’s next contention regarding her prearrest statements, we
conclude that the trial court correctly ruled that defendant was not subjected to custodial
interrogation at the hospital in violation of Miranda, because defendant was not in police
custody while being treated for her injuries at the hospital.
In Mosley, the court articulated the applicable principles: “It is clear that
advisement of Miranda rights is only required when a person is subjected to custodial
interrogation. [Citation.] Custodial interrogation has two components. First, it requires
that the person being questioned be in custody. Custody, for these purposes, means that
the person has been taken into custody or otherwise deprived of his freedom in any
significant way. [Citation.] Furthermore, in determining if a person is in custody for
Miranda purposes the trial court must apply an objective legal standard and decide if a
reasonable person in the suspect’s position would believe his freedom of movement was
restrained to a degree normally associated with formal arrest. [Citation.] The test for
custody does not depend on the subjective view of the interrogating officer or the person
being questioned. [Citation.] The only relevant inquiry is ‘ “how a reasonable man in the
suspect’s shoes would have understood his situation.” ’ [Citation.] The second
component of custodial interrogation is obviously interrogation. For Miranda purposes,
interrogation is defined as any words or actions on the part of the police that the police
should know are reasonably likely to elicit an incriminating response. [Citation.]”
(Mosley, supra, 73 Cal.App.4th at pp. 1088-1089.)
The court in Mosley concluded that the defendant was not in custody within
meaning of Miranda when he was being treated by paramedics in an ambulance. Any
restraint on his freedom was the need to treat his gunshot wound and he was being treated
during the interview, which occurred in full view of medical personnel. He was not
under arrest. The questioning was not accusatory or threatening. He was not handcuffed
during questioning, no guns were drawn, and he was in an ambulance about to be
transported to a hospital, not jail. (Mosley, supra, 73 Cal.App.4th at pp. 1090-1091.)
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Similar circumstances were present in Provencio’s prearrest interview of defendant in the
hospital.
Defendant attempts to distinguish Mosley because “[s]uspicion had focused on
her” and “she was strapped to a gurney in the hospital, where Provencio was
interrogating her about a fatal collision.” In Mosley, the officer was trying to find out
what had happened and did not know how the defendant was involved, whether he was a
victim or not. (Mosley, supra, 73 Cal.App.4th at pp. 1089-1091.)
However, “Miranda warnings are not required simply because a person has
become a suspect in the officer’s mind.” (Linton, supra, 56 Cal.4th at p. 1167; see also
Oregon v. Mathiason (1977) 429 U.S. 492, 495; People v. Moore (2011) 51 Cal.4th 386,
402.) Further, defendant was restrained so that medical personnel could provide
treatment. “ ‘[T]he bare fact of physical restraint [by medical personnel] does not itself
invoke the Miranda protections.’ ” (Mosley, supra, 73 Cal.App.4th at p. 1090, quoting
Wilson, supra, 808 F.2d at p. 689.) Miranda is intended to protect individuals from
“incommunicado interrogation . . . in a police-dominated atmosphere.” (Mosley, supra,
at p. 1090.) “Only those interrogations that occur while a suspect is in police custody . . .
‘heighte[n] the risk’ that statements obtained are not the product of the suspect’s free
choice. [Citation.]” (J.D.B. v. North Carolina (2011) 564 U.S. 261, 268-269; see also
People v. Milham (1984) 159 Cal.App.3d 487, 501 [defendant may have been physically
unable to leave “but not by virtue of police conduct”].) We conclude that defendant was
not in custody during her prearrest statements to Provencio.
Since defendant was not in custody, we need not determine whether Provencio’s
questions amounted to interrogation under Miranda. (People v. Ochoa (1998) 19 Cal.4th
353, 401 (Ochoa).) There is no Miranda violation where the police question a suspect
who is not in custody. (Ibid.)
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Finally, defendant contends that she invoked her right to remain silent in the
hospital because she “repeatedly told Provencio that she was in pain, that it hurt
everywhere, that she wanted to go home, and that she wanted him to leave her alone.”
As set forth in the transcript, after Provencio initiated questioning at the hospital,
defendant said: (1) “Everywhere it hurts”; (2) “Everything hurts”; (3) “I just need to go
home. I just want to go home”; (4) “Everything’s (unintelligible) really bad, and I don’t
want to talk to . . .”; (5) “I want to go home and lay down”; (6) “I want to fucking go
home”; (7) “Leave me alone”; (8) “Leave me alone. I don’t know why a fucking officer
. . .”; and (9) “I just want to go home.”
Defendant relies on the rule that “[p]ursuant to Miranda, ‘[i]f the individual
indicates in any manner, at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease.’ ” (People v. Peracchi (2001) 86 Cal.App.4th
353, 360, citing Miranda, supra, 384 U.S. at pp. 473-474.) “Once a defendant invokes
his or her right to remain silent, that decision must be ‘scrupulously honored.’ ”
(Peracchi, supra, at p. 360, citing Michigan v. Mosley (1975) 423 U.S. 96, 104.)
In this instance, however, Miranda does not apply because defendant was not in
custody at the hospital when she made her prearrest statements. (Ochoa, supra,19 Cal.4th at p. 401.) In People v. Tom (2014) 59 Cal.4th 1210 (Tom), the California
Supreme Court considered invocation of the right to remain silent in a pre-Miranda
context, where, as here, invocation of the right to remain silent was based on the Fifth
Amendment privilege against self-incrimination.
In Tom, the court held that a defendant was required to clearly invoke the Fifth
Amendment privilege against self-incrimination in order to preclude admission at trial of
evidence of his postarrest, pre-Miranda silence, in the absence of custodial interrogation.
(Tom, supra, 59 Cal.4th at p. 1225.) The defendant had been arrested by police for
driving under the influence in a fatal car crash but, in his contact with police, never asked
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about the welfare of the people involved in the collision.3 (Tom, supra, 59 Cal.4th at
p. 1219.)
To preclude evidence of defendant’s silence, the court concluded that the burden
was on the defendant to establish the privilege had been clearly invoked. (Tom, supra,
59 Cal.4th at p. 1225.) An individual who wishes to invoke the privilege to remain silent
must “ ‘do so unambiguously.’ ” (Ibid.) This requirement results in an objective inquiry
that avoids the difficulties of proof and guides police officers on how to proceed in the
face of ambiguity. (Ibid.) The inquiry in a pre-Miranda context is whether a “reasonable
police officer in the circumstances would understand that the defendant had invoked the
privilege . . . .” (Id. at p. 1228.)
Here, defendant was questioned in a pre-Miranda context and, as we have held,
was not in custody. In a pre-Miranda, noncustodial context, a defendant may invoke the
Fifth Amendment privilege and cause interrogation to end, but the defendant must clearly
invoke the privilege. The objective inquiry is whether the defendant clearly invoked the
privilege, which the defendant has the burden to establish.
We conclude that defendant failed to carry her burden to establish that she clearly
invoked the privilege against self-incrimination during the prearrest interview. To begin
with, defendant did not request legal counsel. (Tom, supra, 59 Cal.4th at p. 1225.)
“ ‘Although a suspect need not “speak with the discrimination of an Oxford don”
[citation], he must articulate his desire to have counsel present sufficiently clearly that a
reasonable police officer would understand the statement to be a request for an
attorney.’ ” (Ibid., quoting Davis v. United States (1994) 512 U.S. 452, 459.) Further,
instead of expressly invoking the right to remain silent, defendant answered Provencio’s
questions. (Tom, supra, at p. 1226; Salinas v. Texas (2013) 570 U.S. 178, 182.) In an
3 Provencio testified at the trial that after he had informed defendant that, she had killed
two people and injured three, she did not ask any questions about them.
16
exchange with Provencio where he said, “Just talk to me,” defendant responded, “I’m
trying to talk to you,” indicating her desire to answer his questions, not remain silent.
The audio recording and transcript of the hospital interviews reveal that
defendant’s statements that she was in pain were made to medical personnel who were
treating her during the interview, not the police.
Remarks “express[ing] a general desire to go home” did not indicate that
defendant might be invoking her right to remain silent. (Walkinhawk v. Pliler (9th Cir.
2006) 184 Fed.Appx. 653, 654; but see People v. Villasenor (2015) 242 Cal.App.4th 42,
65 [juvenile offender invoked right to silence by demanding to go home 13 times in 14
minutes of questioning, including his statement “ ‘I know my rights’ ” made in
connection with demands to be taken home].)
Likewise, defendant’s statements that she wanted to be left alone did not
unambiguously invoke her right to remain silent. (See People v. Nelson (2012)
53 Cal.4th 367, 383 [defendant did not unambiguously assert his right to silence in
statement to police to “ ‘leave me alone’ ”]; Williams, supra, 49 Cal.4th at p. 433
[“ ‘merely expressions of passing frustration or animosity’ ” towards police do not invoke
right to silence]; see also People v. Krebs (2019) 8 Cal.5th 265, 313 [defendant’s request
reasonably interpreted to mean he wanted to be left alone for a moment did not
unambiguously invoke his right to remain silent].)
We conclude the trial court correctly denied defendant’s motion in limine to
exclude evidence of her prearrest statements to Provencio in the hospital.
Postarrest Statements
Defendant contends that evidence of her postarrest statements at the police station
should have been excluded because: (1) prearrest statements after her invocation of her
right to remain silent tainted postarrest statements after she received Miranda warnings,
and (2) her postarrest statements were involuntary due the physical trauma of the crash
combined with the alcohol and drugs in her system.
17
The People assert that defendant forfeited the claim that her post-Miranda
statements were tainted by not raising it in the trial court. Defendant responds “[b]ecause
the in limine motions encompassed both the pre-arrest and post-arrest statements as
Miranda violations and coerced statements, counsel’s objections were broad enough to
inform the trial court that the post-arrest statements were tainted by the prior unlawful
statements.” We agree that this claim was arguably raised by the parties’ in limine
motions sufficient to preserve the issue on appeal. (Williams, supra, 49 Cal.4th at
pp. 424-425.)
In any event, we conclude this claim lacks merit. (Williams, supra, 49 Cal.4th at
p. 425.) Defendant’s statements made after she received Miranda advisements were not
tainted because Provencio did not elicit defendant’s preadvisements statements in
violation of Miranda. (People v. Mickey (1991) 54 Cal.3d 612, 652 [“Because the tree
was not poisonous, its fruit was not tainted”].)
We conclude that defendant’s claim that her post-Miranda statements at the police
station were involuntary also lacks merit. Defendant argues that, not only was she
intoxicated, but under the influence of the drugs administered at the hospital. Defendant
points to the many instances where Provencio told her to sit up, keep her eyes open and
look at him, or defendant expressed the desire to go home and go to bed.
In the transcript and video recording of the interview at the police station,
Provencio multiple times asked to sit up and look at him and not go to sleep during
questioning: (1) “Kendra sit up for me”; (2) “Look at me”; (3) “Open your eyes and look
at me”; (4) “Sit up and look at me, okay? You’re doing better but sit up and look at me”;
(5) “Well can - can you - can you at least look at me and talk to me”; (6) “Can you - can
you sit up a little bit? Kendra you can’t go to sleep right now”; (7) “Kendra, can you
look at me so we can talk?”; (8) “Kendra there’s - look at me, this is very important”; (9)
“I need you to open your eyes and look at me”; and (10) “I need you to look - sit up and
look at me.”
18
Defendant also said at various times in the interview: (1) “the only thing I can
think of right now is trying to get sleep”; (2) “I want to go home officer. I want to go
home and go to bed”; (3) “I know and I just want to go to bed”; and (4) “I just want to go
home and lay in my bed. Can I do that soon please.”
Although defendant was falling asleep and Provencio had to keep her awake,
defendant provided responsive answers to questions.
Defendant does not contend that her affirmative responses to Provencio’s
questions advising her of Miranda rights were involuntary. Defendant responded “Yes
sir” to questions if she understood her right to remain silent, that anything she said would
be use against her, and her right to an attorney during questioning, free of charge if she
could not afford one.
Defendant’s answers were clear and responsive to Provencio’s questions about
why people get arrested for driving under the influence. Defendant said, “it’s against the
law to drink and drive.” In response to Provencio’s question regarding what could
happen if a person is driving under influence, defendant said, “You can get into an
accident and you could really hurt somebody. I get it.” Defendant also responded,
“Accidents happen” to the same question, and to Provencio’s question what can happen
in an accident, defendant responded, “Death.” When asked “Would you say that DUI is
dangerous,” defendant responded, “Yes.”
Asked how much defendant had to drink that day, she was precise in her answers:
“four beers and maybe one drink,” the drink was a “Vodka soda,” the beers were “Hex,”
the beers were “20 ounce” in size, and she drank them at “Shameless.”
The ingestion of drugs and alcohol does not compel the conclusion responses to
questions were involuntary rather than the product of rational intellect and free will.
(People v. Loftis (1984) 157 Cal.App.3d 229, 235; People v. Taylor (1980)
112 Cal.App.3d 348, 360-361; Perdomo, supra, 147 Cal.App.4th at p. 617.) Nor does the
fact that a defendant is in “a heavy state of somnolence” and “heavily under the influence
19
of drugs,” such that the officer had to wake up the defendant during the interview,
establish that the defendant’s responsive answers to questions were involuntary. (Taylor,
supra, at p. 361.) “The critical question is whether the accused’s abilities to reason,
comprehend, or resist were so disabled that he was incapable of free, rational choice.”
(Loftis, supra, at p. 236.) Based on our independent review of the recording and
transcript of defendant’s interview in the police station, defendant was not so disabled as
to be incapable of free, rational choice.
Defendant relies heavily on In re Cameron (1968) 68 Cal.2d 487, 498, but the
circumstances in that case bear little resemblance to defendant’s interview at the police
station. In Cameron, the court found that the defendant’s responses to police questions in
an initial interview were voluntary despite his having a blood alcohol content of .18
percent, because the defendant consistently maintained he had no memory of the events.
(Id. at pp. 499-500.) But when the defendant was subsequently administered an
“inordinately high” dose of Thorazine (id. at p. 501), 300 milligrams where the normal
dose would be 25-50 milligrams (id. at pp. 494-495), at a psychiatric hospital, combined
with his blood alcohol content, the effect was to render him incapable of anxiety or worry
(id. at p. 500, fn. 6). The defendant’s psychiatric state was such that he did not care what
happened to him and was not aware that he was charged with a serious crime. (Id. at
pp. 500-501.) As a result, during a police interview, the defendant was persuaded by
leading questions into remembering more and more details of the crime, some of which
did not occur. (Id. at p. 500.) The court found that under the influence of Thorazine,
defendant’s “will to resist was destroyed because he was rendered unable to comprehend
the seriousness of his predicament or the significance to him of acceding step by step to
‘remembering’ the prosecution’s reconstruction of his crime.” (Id. at p. 502, fn. omitted.)
In this instance, there is nothing in the recording and transcript indicating that
defendant’s will to resist was destroyed such that she was persuaded by Provencio into
reconstructing details of the crime. In the interview at the hospital, defendant said that
20
she did not remember driving or the details of the collision and she continued to maintain
she did not remember at the police station. But in both interviews, she could clearly
remember she drank Hexagenia beers at Shameless O’Leery’s. If anything, the drug-
induced interviews in Cameron present a marked contrast with defendant’s interview by
Provencio at the police station.
Further, nothing in the recording exhibits police coercion. (Perdomo, supra,
147 Cal.App.4th at p. 618.) Again, the interview was relatively short, approximately 30
minutes. Provencio took the handcuffs off defendant so she could more easily drink the
water he provided. Provencio’s questions were not threatening or accusatory. His tone
was calm, deliberate and conversational. At the conclusion of the interview, Provencio
was solicitous of defendant’s condition, telling her take it “nice and easy” as they left the
interview room. The record is devoid of any suggestion that Provencio resorted to
physical or psychological pressure to elicit statements from defendant. (Id. at p. 619.)
We conclude that trial court did not err in denying defendant’s motion in limine
and admitting evidence of defendant’s postarrest statements.
Finding no error, we need not reach defendant’s claim that, without admission of
defendant’s prearrest and postarrest statements, the evidence was insufficient to sustain
her second degree murder convictions. (Cf. People v. Homick (2012) 55 Cal.4th 816,
860, fn. 28.)
Senate Bill No. 567
On count 5, the trial court sentenced defendant to the aggravated term of three
years for driving under the influence causing injury. (Veh. Code, § 23153, subd. (a).) In
supplemental briefing, defendant contends that this case must be remanded for
resentencing on that count in light of Senate Bill No. 567 (2021-2022 Reg. Sess.), which
amended Penal Code section 1170, subdivision (b), effective January 1, 2022 (Stats.
2021, ch. 731, § 1.3)
21
The amendment to Penal Code section 1170 makes the middle term of the
determinate sentencing triad the presumptive prison term unless specified circumstances
exist. (Pen. Code, § 1170, subd. (b)(1)-(2).) A trial court “may impose a sentence
exceeding the middle term only when there are circumstances in aggravation of the crime
that justify the imposition of a term of imprisonment exceeding the middle term, and the
facts underlying those circumstances have been stipulated to by the defendant, or have
been found true beyond a reasonable doubt at trial by the jury or by the judge in a court
trial. Except where evidence supporting an aggravating circumstance is admissible to
prove or defend against the charged offense or enhancement at trial, or it is otherwise
authorized by law, upon request of a defendant, trial on the circumstances in aggravation
alleged in the indictment or information shall be bifurcated from the trial of charges and
enhancements. The jury shall not be informed of the bifurcated allegations until there has
been a conviction of a felony offense.” (Pen. Code, § 1170, subd. (b)(2), italics added.)
The People concede that Penal Code section 1170, subdivision (b), as amended by
Senate Bill No. 567, applies retroactively to defendant. (In re Estrada (1965) 63 Cal.2d
740, 742.) While the trial judge explained the aggravating factors justifying sentencing
defendant to the upper term, the People further concede that defendant did not stipulate to
the facts nor were they found to be true beyond a reasonable doubt. Therefore, this
matter must be remanded for resentencing on count 5.
We agree. Accordingly, we will vacate the sentence on count 5 and remand for
resentencing.
22
DISPOSITION
The sentence on count 5 is vacated and the matter remanded to the trial court to
resentence defendant under Penal Code section 1170 as amended by Senate Bill No. 567.
The judgment is otherwise affirmed.
/s/
RAYE, P. J.
We concur:
/s/
MAURO, J.
/s/
DUARTE, J.
23