People v. Carrillo CA1/5 ( 2014 )

Filed 1/8/14 P. v. Carrillo CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A136363
v.
OSCAR ALEJANDRO CARRILLO, (Contra Costa County
Super. Ct. No. 05-111408-1)
Defendant and Appellant.
Oscar Alejandro Carrillo appeals from a judgment of conviction and sentence
imposed after a jury found him guilty of murder. (Pen. Code, § 187.) He contends that
his statements to police were obtained in violation of Miranda v. Arizona (1966) 384 U.S.
436 (Miranda) and should have been suppressed. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An information charged Carrillo with murder and alleged that he personally used
and discharged a firearm in the commission of the offense (Pen. Code, §§ 187, 12022.53,
subds. (b)–(d)). Carrillo entered a plea of not guilty and denied the firearm enhancement.
Carrillo filed a motion to suppress evidence of statements he made to the police.
After an evidentiary hearing discussed post, the court denied the motion. The matter
proceeded to a trial by jury.
A. Evidence at Trial
Carrillo and victim Jose Marroquin trained as boxers at an Oakland gym with
trainer Pablo Perez. Carrillo, Marroquin, and Perez usually drove to the gym together.
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Ruth Aguilera also trained with Perez at the gym. Carrillo told Marroquin that
he liked Aguilera. Carrillo had asked Aguilera out, but she declined his invitations. In
March 2011, Aguilera started dating Marroquin instead of Carrillo.
On March 23, 2011, Carrillo saw Marroquin and Aguilera hugging and kissing
in a parking lot across the street from the gym. Aguilera observed Carrillo looking at
her; he appeared mad and upset, which made Aguilera uncomfortable.
That evening, Marroquin drove Carrillo and Perez home. Carrillo seemed upset
and did not say goodbye when he got out of the car. As Perez went inside his house, he
saw Marroquin and Carrillo talking and arguing. That same evening, Marroquin told
Aguilera that Carrillo had appeared upset and said that Marroquin had made him look
like a fool.
On March 24, 2011, Marroquin told a friend, Raul Ventura, that he did not go to
the gym that day because he was afraid. Marroquin explained that he had a problem
with Carrillo, because Carrillo discovered Marroquin was “hanging out” with Aguilera.
Marroquin seemed scared, nervous, and worried. Marroquin also said that, when he
told Carrillo that Aguilera did not want to be with Carrillo, Carrillo told him to be
careful because Carrillo did not “know what’s going to happen.”
On March 25, 2011, Marroquin agreed to pick up Perez at 5:00 p.m. to go to the
gym. Around 5:00 p.m., Perez received a call from Marroquin, who sounded normal
and said he had arrived. In about five or 10 minutes, Perez came out of his house and
found Marroquin in his car, unresponsive, with blood on his temple. Perez told his son
to call the police.
The police found Marroquin slumped in the driver’s seat, with a gunshot wound
to his head. A spent .40-caliber cartridge was on or beneath the driver’s seat headrest,
and a bloody spent projectile was on the dashboard. The autopsy revealed a gunshot
entry wound to the base of Marroquin’s skull, and an exit wound over his left ear,
indicating a bullet path from Marroquin’s right to his left, back to front, and upward.
Marroquin died as the result of the gunshot wound.
2
Richmond Police Detective Timothy Gray interviewed Carrillo after the
shooting. In videotaped interviews on March 29 and April 1, 2011, Carrillo denied any
involvement in the shooting. During the April 1 interview, however, Carrillo became
agitated when Gray pressed him on issues concerning Aguilera and Marroquin.
A search warrant was executed on Carrillo’s home on April 7, 2011. Police
found .40-caliber ammunition, among other items, in Carrillo’s bedroom.
On April 8, 2011, Detective Gray interviewed Carrillo again. In this
interview—the subject of Carrillo’s suppression motion—Carrillo told Gray that he
killed Marroquin. Specifically, Carrillo stated that he drove to Perez’s house on the
afternoon of the shooting and waited until Marroquin arrived. He then got in the rear
seat of Marroquin’s car and said, “let me show you something,” displaying a .40-
caliber Taurus Millennium semi-automatic handgun. Marroquin became “stressed,”
but Carrillo told him not to worry and he would unload the gun. As Carrillo began to
unload the weapon, Marroquin was talking on his cell phone. Carrillo removed the clip
from the gun, but when he attempted to remove the bullet from the chamber, “it
slipped” and the gun went off. At this point, Carrillo did not know what to do, so he
left Marroquin, got in his own car, went to a restaurant and had dinner, and then went
home. On his way home, he threw his gun in the water near the Berkeley Marina.
Carrillo denied having an argument or issue with Aguilera or Marroquin, and he
claimed that he had the gun with him because he usually carried it, not because he
intended to shoot Marroquin. Carrillo also claimed that he did not come forward about
shooting Marroquin because he was scared and embarrassed.
B. Verdict and Sentence
The jury found Carrillo guilty of first degree murder and found the firearm
enhancement allegation true. The court sentenced Carrillo to 25 years to life on the
murder count plus a consecutive 25 years to life for the firearm enhancement. This
appeal followed.
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II. DISCUSSION
Carrillo contends that a statement he made to Detective Gray at the police station
doorway (which was not introduced at trial), and his subsequent statement to Gray in the
interrogation room (which was introduced), should have been suppressed under Miranda
and its progeny. We first summarize the evidence and the ruling at the suppression
hearing, and then consider each of Carrillo’s statements in light of the relevant legal
principles.1
A. Suppression Hearing
1. Detective Gray’s Testimony
Detective Gray testified that on March 28, 2011 (three days after Marroquin
was shot), he called Carrillo and asked him to come to the police department to
discuss the shooting. Carrillo appeared at the police station the next day. He denied
being at the scene of Marroquin’s shooting and denied any involvement in his death.
At the end of the 15- to 20-minute interview, Gray escorted Carrillo from the
interview room and out of the police station through a set of unsecured glass doors.
Carrillo does not claim his Miranda rights were violated by this contact.
On April 1, 2011, Detective Gray again asked Carrillo to come to the police
station and discuss Marroquin’s death and his prior statement. During this second
interview, Carrillo was specifically told that he was not under arrest. He again denied
any involvement in Marroquin’s killing. At the end of the interview, which lasted over
an hour, Gray escorted Carrillo from the interview room and out the unsecured glass
exit doors. Carrillo does not claim his Miranda rights were violated by this contact
either.
On April 7, 2011, Detective Gray executed a search warrant on Carrillo’s
residence. In Carrillo’s bedroom, Gray located “large amounts of suspected
1
Because the suppression motion addressed both statements, and because the
admissibility of the interrogation room statement could be affected by whether the
doorway statement was obtained in violation of Miranda, we address both statements
even though the interrogation room statement was the only one introduced at the trial.
4
marijuana,” a gym bag containing needles and apparent steroids, and .40-caliber
ammunition—the same caliber as the bullet that killed Marroquin. Carrillo arrived at
(or approached) his residence during the search, was arrested for possession of
marijuana, and was transported to the police station.
At the police station, Carrillo was booked on the marijuana charge. Detective
Gray informed Carrillo that he was under arrest for possession of marijuana and began
the interview. Intending to interview Carrillo about the marijuana, Gray advised
Carrillo of his Miranda rights. Carrillo invoked his right to counsel, and Gray ceased
questioning. The interview lasted three minutes or less, and Gray took Carrillo to the
jail inside the police station.
The following day (April 8, 2011), around 10:30 a.m., Detective Gray decided
to release Carrillo pending the results of the crime lab’s testing of the suspected
marijuana, because it would have been difficult to file charges until those results were
received. Gray therefore removed Carrillo from his jail cell and walked him to a small
storage area, which was used to process inmates for release, within the secured portion
of the jail. Gray filled out paperwork with Carrillo, who was not in handcuffs, and told
Carrillo he was being released and he was not being charged for possession of
marijuana at that time. (Carrillo had not been told he was under arrest for any other
offense either.) Carrillo appeared relieved and signed the release form and a receipt for
money taken from him when he was booked.
At one point, Carrillo asked Detective Gray how much time someone would
serve for a marijuana arrest; Gray replied that he did not know and could not talk
about it because Carrillo had asked for a lawyer. They then “talked about a lot of
things,” including fishing, exercise, boating, and Carrillo’s children, for about five to
10 minutes. During this conversation, Carrillo volunteered statements to Gray, as
opposed to merely responding to questions from Gray.
Detective Gray then escorted Carrillo out of the storage room and the secured jail
area, down a 90-foot hallway, to the unsecured glass door exit. Along the way, they
continued to engage in small talk, but Gray did not touch or exercise physical control
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over Carrillo. When they reached the exit doors, Gray leaned up against a door so it
was partially open, and they continued their general conversation; Gray had reminded
Carrillo that he had no obligation to talk to Gray, he was not under arrest, and he was
going home.2
At this point, it appeared to Detective Gray that something was wrong with
Carrillo: he appeared somber, there was a softness in his voice, and his eyes appeared
glassy at times. Gray asked Carrillo if everything was okay (or “what’s wrong?”).
Gray also told Carrillo that it looked like he had something on his mind, and he asked
Carrillo if he could help or if Carrillo had any questions for him. By this inquiry, Gray
testified, he did not intend to elicit incriminating information from Carrillo.
Carrillo paused for over 30 seconds, and then said it was an accident and he was
trying to clear the gun and the gun went off. This statement occurred about 20 to
30 minutes after the paperwork for Carrillo’s release had been completed.
Detective Gray suspected that Carrillo was referring to the shooting of
Marroquin and stopped him from speaking further. Gray told Carrillo that he did not
want Carrillo to say anything Carrillo was not supposed to, he wanted to make sure
Carrillo’s rights were protected, and he wanted to make sure Carrillo understood that
he had the right not to speak to Gray. Carrillo acknowledged that he understood his
rights, and he stopped speaking.
Detective Gray escorted Carrillo to an interview room. Carrillo was quiet and
seemed sad; he was “kind of crying, tearing up a little bit.” At 12:50 p.m., Gray
commenced the interview, explaining that he was investigating Marroquin’s shooting.
Gray read Carrillo his Miranda rights, and Carrillo acknowledged that he understood
2 It is not clear from Detective Gray’s testimony whether this admonition occurred
at the doorway, in the hallway between the storage area and the doorway, in the storage
area, or in some or all of these locations. The upshot is that Gray made these statements
to Carrillo on at least one occasion in the midst of their several minutes of small talk,
before Carrillo made the doorway statement that he presently challenges.
6
them. Carrillo again told Gray that he shot Marroquin accidentally, but he denied
intending to kill Marroquin.
2. Trial Court’s Ruling
The trial court denied Carrillo’s suppression motion, finding that Detective Gray
had not gone to the police department on April 8, 2011, to question Carrillo about the
homicide, but to release him on the marijuana charge, and that Gray took Carrillo to the
storage room in the interest of privacy. The court believed Gray was credible when he
testified that he was concerned about Carrillo’s welfare, and the court noted it was
apparent from the videotapes of Carrillo and Gray that there was a “camaraderie” and
“easy flow” between them. The court found that Carrillo was no longer in custody—and
clearly not in custody on the homicide—when he made the statement to Gray at the
doorway. The court further found that Gray’s statements were not meant to elicit an
incriminating response, and Carrillo’s statement was spontaneous.
We review factual findings for substantial evidence and legal rulings de novo.
(People v. Waidla (2000) 22 Cal.4th 690, 730.)
B. Carrillo’s Statement in the Police Station Doorway
Miranda protections apply only to custodial interrogations. (Miranda, supra,384 U.S. at p. 444 [“the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards” (italics added)]; People v. Ochoa
(1998) 19 Cal.4th 353, 401 [“ ‘[a]bsent “custodial interrogation,” Miranda simply does
not come into play’ ”].)
Here, Carrillo was not in custody, nor was he subjected to interrogation, when
he told Detective Gray at the police station door that the gun went off accidentally.
1. Carrillo’s Statement Was Not Made While in Custody
For purposes of Miranda, an interrogation is “custodial” if it occurred in a
situation “ ‘ “in which ‘a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.’ ” ’ ” (People v. Ochoa, supra,19 Cal.4th at p. 401; see People v. Storm (2002) 28 Cal.4th 1007, 1037 (Storm)
7
[“Miranda procedures apply only in the custodial setting”].) The essential question is
“whether ‘a reasonable person [would] have felt he or she was not at liberty to
terminate the interrogation and leave.’ ” (People v. Ochoa, at p. 402.)
In the matter before us, a reasonable person would have felt free to stop the
conversation with Detective Gray, and continue walking out the open police station
doors, when Gray asked Carrillo if anything was wrong or if he had a question. By
this time, Gray had informed Carrillo that he was being released without being
charged, and the paperwork for the release had already been completed. Gray had
told Carrillo that he did not have to talk to him. Carrillo was not in handcuffs, and
Gray did not make physical contact with Carrillo during their walk out of the secured
police area and down the hallway to the exit. Their conversation between the time the
release papers were signed and the time Gray asked about Carrillo’s welfare was
merely small talk, was not for the purpose of questioning Carrillo about the shooting
or any other charge, did not suggest any law enforcement belief that Carrillo was
culpable, lasted only a few minutes, and was mutual in the sense that Carrillo was not
merely responding to Gray’s questions. There is no indication that Gray was
aggressive, confrontational, or accusatory. Gray’s questions about Carrillo’s welfare
took place at the public doors to the police station, which were not secured—and, in
fact, were partially open—after Gray advised Carrillo that he was no longer under
arrest and was able to go home. Under these circumstances, a reasonable person
would have felt free to leave, without responding to Gray’s inquiry into his welfare.
(See generally People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 [discussing
factors relevant to whether interrogation was custodial]; California v. Beheler (1983)
463 U.S. 1121, 1125 [fact that interview took place at a police station was not
determinative; “the ultimate inquiry is simply whether there is a ‘formal arrest or
restraint on freedom of movement’ of the degree associated with a formal arrest”].)
Because Carrillo was not in custody, there was no Miranda violation.
8
2. Carrillo’s Statement Was Not in Response to 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, italics added & fns. omitted.) The issue is not the officer’s
subjective intent, but instead involves an objective assessment of “the total situation
. . . by considering such factors as the length of the interrogation, the place and time of
the interrogation, the nature of the questions, the conduct of the police and all other
relevant circumstances.” (People v. Stewart (1965) 62 Cal.2d 571, 579.)
“ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of
compulsion above and beyond that inherent in custody itself.” (Rhode Island v. Innis,
at p. 300, fn. omitted.)
Here, the totality of the circumstances indicates that Detective Gray’s words to
Carrillo—at the open doorway to the street after Carrillo had received his release papers
and been told he was free to leave—were not reasonably likely to elicit an incriminating
response. Gray merely observed that it looked like something was on Carrillo’s mind and
asked him whether he was okay, what was wrong, if he had questions, and whether Gray
could help. This inquiry was innocuous, especially in light of its context. Given
Carrillo’s two prior denials of involvement in Marroquin’s death, the fact that Carrillo’s
most recent incarceration and questioning pertained not to Marroquin’s killing but to
Carrillo’s marijuana, the fact that they had engaged in mutual small talk for the last
several minutes, and Carrillo’s freedom to walk out the police station door, Gray would
not have reasonably expected that asking Carrillo if he was alright would result in an
incriminating admission about Marroquin’s case. It cannot be said that Gray should have
known that it was reasonably likely Carrillo would confess to his participation in the
shooting of Marroquin.
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For this reason as well, there was no Miranda violation.3
3. Carrillo’s Argument Based on Edwards4 is Meritless
Carrillo insists that whether he was in custody when Detective Gray asked about
his well-being is immaterial, because there was not a long enough break in his “custodial
status” to allow him to contact an attorney after asserting his right to counsel, and
therefore Gray could not renew his questioning. Essentially, Carrillo urges that a
particular exception to a rule set forth in Edwards, supra, 451 U.S. 477, was not
established; his argument fails, however, in that Edwards does not apply to Carrillo’s
statement at the police station door anyway, since the statement did not arise in the
context of custodial interrogation.5
In Edwards, the defendant invoked his right to counsel on the first day of
interrogation. The next day, the police interrogated him again, and this time he waived
his Miranda rights and made incriminating statements. (Edwards, supra, 451 U.S. at
pp. 478–479.) The court held that the defendant’s Miranda waiver was not valid because
the police had not made counsel available in response to his initial invocation, and the
defendant was not the one who suggested the second interrogation or otherwise initiated
further communication with police. (Id. at pp. 484–485.) The court concluded: “an
accused, . . . having expressed his desire to deal with the police only through counsel, is
not subject to further interrogation by the authorities until counsel has been made
available to him.” (Ibid., italics added.) The Edwards rule was intended to protect the
3 We also note, as a corollary to the fact that Detective Gray’s questions were
not in the context of custodial interrogation, that Carrillo’s statement at the police
station door was voluntary: he was free to leave and took over 30 seconds to respond
to Gray’s inquiry about his welfare. “Volunteered statements of any kind are not
barred by the Fifth Amendment and their admissibility is not affected by our
holding . . . .” (Miranda, supra, 384 U.S. at p. 478.)
4 Edwards v. Arizona (1981) 451 U.S. 477.
5For reasons discussed post, Edwards does not apply to Carrillo’s subsequent
statement in the interview room either.
10
Miranda rule by preventing law enforcement from badgering a defendant to get him to
waive his rights. (Michigan v. Harvey (1990) 494 U.S. 344, 350.)6
In so ruling, Edwards made it clear that it was barring continued custodial
interrogation of an accused, initiated by the police, after the accused’s invocation of the
right to counsel. The court held: “when an accused has invoked his right to have counsel
present during custodial interrogation, a valid waiver of that right cannot be established
by showing only that he responded to further police-initiated custodial interrogation even
if he has been advised of his rights.” (Edwards, supra, 451 U.S. at p. 484, italics added
& fn. omitted.) The court further explained: “The Fifth Amendment right identified in
Miranda is the right to have counsel present at any custodial interrogation. Absent such
interrogation, there would have been no infringement of the right that [the defendant]
invoked . . . .” (Id. at pp. 485–486, italics added.)
Here, the exchange between Detective Gray and Carrillo at the police station door
was not a custodial interrogation, for reasons discussed ante. Edwards does not apply.
In Minnick v. Mississippi (1990) 498 U.S. 146 (Minnick), the accused invoked his
right to have a lawyer on the first day of interrogation, and the interrogation ceased.
While still in custody, he met with a lawyer. Two days later, while still in custody, the
accused was told that he had to answer the sheriff’s questions. During the ensuing
custodial interrogation, the defendant confessed without a lawyer present. (Id. at
pp. 148–149.) The court stated: “[W]hen counsel is requested, interrogation must cease,
and officials may not reinitiate interrogation without counsel present, whether or not the
accused has consulted with his attorney.” (Id. at p. 153, italics added.) As Carrillo notes,
Minnick justified this extension of the Edwards rule because “[a] single consultation with
an attorney does not remove the suspect from persistent attempts by officials to persuade
6 The Edwards rule was expanded in Arizona v. Roberson (1988) 486 U.S. 675,
677, 683, such that an accused’s invocation of Miranda rights when interrogated as to
one charge also precludes custodial interrogation as to a different charge unless counsel is
present. The court in Roberson emphasized that the accused was in continuous custody.
(Id. at p. 686.)
11
him to waive his rights, or from the coercive pressures that accompany custody and that
may increase as custody is prolonged.” (Ibid., italics added.)
Again, Carrillo was not in custody during his exchange with Detective Gray at the
police station door, so Minnick does not apply.
An exception to the Edwards no-recontact rule—which Carrillo now raises and
then tries to negate—was recognized in In re Bonnie H. (1997) 56 Cal.App.4th 563.
There, the police questioned an arrested defendant in regard to a murder, she requested an
attorney after being read her Miranda rights, the questioning stopped, and she was
released. (Id. at p. 566.) Six weeks later, the defendant was rearrested for the same
crime, waived her Miranda rights, and made incriminating statements. (Id. at pp. 566–
567.) The court held that the statement was admissible notwithstanding Edwards,
because there had been a good faith break in custody before she waived her rights. (Id. at
pp. 583–584; see also McNeil v. Wisconsin (1991) 501 U.S. 171, 177 [once a suspect in
custody invokes Miranda, subsequent statements to police are inadmissible if obtained
pursuant to “an encounter [initiated by the police] in the absence of counsel (assuming
there has been no break in custody)” (italics added)].)
Although In re Bonnie H. held that a statement made during police-initiated
custodial interrogation did not run afoul of Edwards, by no means did it insinuate that
Edwards would bar a statement made (as here) during a noncustodial conversation, no
matter how long it had been since the defendant had been released from custody. In re
Bonnie H. does not support Carrillo’s argument.
Carrillo’s reliance on Storm, supra, 28 Cal.4th 1007 is similarly misplaced. In
Storm, the accused was being investigated in connection with his wife’s death. He agreed
to take a polygraph test but, at the police station, said he wanted to consult an attorney
first. Rather than ceasing questioning and honoring that request, the polygraph examiner
encouraged him to continue talking, and he admitted killing his wife. He was then
released. Two days later, the police reinterviewed the accused at his home with his
permission, assuring him that he would not be arrested, without giving him new Miranda
12
warnings. The defendant provided additional information about killing his wife. (Id. at
p. 1012.)
Our Supreme Court assumed that the accused’s statement while in custody at the
police station was obtained in violation of Miranda and Edwards. (Storm, supra,
28 Cal.4th at p. 1022, fn. 5.) But as for the statement at his home, the high court agreed
with the Court of Appeal that the Edwards no-recontact rule did not apply, because there
had been a break in custody sufficient for the accused to consult with counsel, and police
may lawfully recontact the accused after such a break. (Id. at pp. 1023–1024.)
Furthermore, the court emphasized the limited scope of the Edwards no-recontact rule:
“The special protections of Miranda and Edwards apply only to persons questioned in the
coercive atmosphere of police custody. The Edwards no-recontact rule guards against
police badgering designed to wear down a suspect who remains in custody after invoking
his Miranda right to counsel during custodial questioning.” (Id. at pp. 1012–1013.) The
court further explained: “While the [United States Supreme Court] has never directly
addressed whether a break in custody vitiates the Edwards no-recontact rule, California
cases uniformly have held or assumed that the rule barring police recontact after a
Miranda request for counsel applies only during continuous custody. [Citations.]” (Id. at
p. 1023, final italics added & fn. omitted.)
Here, the Edwards no-recontact rule did not apply to the exchange between
Detective Gray and Carrillo at the police station door, because Carrillo was not then the
subject of custodial interrogation. Because the Edwards no-recontact rule did not apply,
whether the In re Bonnie H. exception to the Edwards rule applies (based on a break in
custody) is immaterial.
In the final analysis, Carrillo’s statement to Detective Gray at the doorway of the
police station, to the effect that he shot Morriquin by accident, was not obtained in
violation of Miranda or its progeny. Carrillo has not established that the court erred in
denying his suppression motion in this regard.
13
C. Carrillo’s Subsequent Statement
After Carrillo told Detective Gray at the police station doorway that he in effect
shot Marroquin by accident, Gray took Carrillo to an interview room, read Carrillo his
Miranda rights, and obtained Carrillo’s acknowledgement that he understood those
rights. Carrillo’s subsequent statement, introduced at trial, was not obtained in violation
of Miranda.
Carrillo argues that the Miranda advisement and implied waiver in the interview
room immediately before Carrillo’s subsequent statement was vitiated by the Miranda or
Edwards violation perpetrated earlier at the doorway to the police station. Because we
conclude there was no Miranda or Edwards violation at the doorway, Carrillo’s argument
is unavailing.
Furthermore, Carrillo’s subsequent statement was not obtained in violation of
Edwards for yet another reason. Although his subsequent statement was in the context of
custodial interrogation, it came about because Carrillo had first voluntarily brought up the
topic of the shooting, while out of custody. Edwards does not apply where, as here, the
subsequent custodial interrogation was not initiated by police, but by the accused.
(Edwards, supra, 451 U.S. at pp. 484–485 [exception to no-recontact rule arises if “the
accused himself initiates further communication, exchanges, or conversations with the
police”]; People v. Hayes (1985) 169 Cal.App.3d 898, 909 [“Miranda does not proscribe
a suspect from changing his mind concerning speaking to the police, when his change of
heart is a voluntary one, based on factors that do not involve coercion by the police”].)
Here, after Detective Gray reminded Carrillo that he was free to leave, held open the exit
door, and asked Carrillo if anything was wrong, Carrillo paused for over 30 seconds
before volunteering that the gun had fired accidentally. Carrillo’s statement may be
viewed as reflecting his desire to open a discussion of the shooting. (See People v.
Mickey (1991) 54 Cal.3d 612, 648–649, 652 [no Edwards violation where accused first
opened up a more general discussion relating directly or indirectly to the investigation
before the police commenced the interrogation].)
Carrillo has failed to establish error.
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III. DISPOSITION
The judgment is affirmed.
15
NEEDHAM, J.
We concur.
JONES, P.J.
SIMONS, J.
16