People v. Vue CA3

Filed 2/10/22 P. v. Vue 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C080269
Plaintiff and Respondent, (Super. Ct. No. 12F04118)
v.
CHERFAPU TONY VUE,
Defendant and Appellant.
Defendant Cherfapu Tony Vue was convicted after a jury trial of 10 counts of
sexually molesting two minor victims, his nieces. He was sentenced to 12 years plus 90
years to life. On appeal, he contends his statements to the police should have been
suppressed because they were obtained in violation of Miranda1 and because they were
involuntary.
1 Miranda v. Arizona (1969) 396 U.S. 868 [24 L.Ed.2d 122] (Miranda).
1
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Trial Evidence
The victims, M. and D., were defendant’s step-niece and biological niece. At the
time of trial, M. was 17 and going into her senior year of high school. D. was 10, going
into the fifth grade. Defendant began molesting M. when she was nine or ten years old.
He began molesting D. when she was five or six. Suffice it to say at this point in the
opinion that both victims testified at length establishing multiple acts of sexual
molestation by defendant. Other evidence included passages translated from recorded
conversations defendant had with his mother in Hmong at the police station, including his
admission that he touched and licked the victims’ vaginas.2 Also, the victims’
grandmother observed concerning behavior and the two victims made disclosures to her.
And the prosecution introduced a video recording of an interview defendant gave
to Sacramento Police Department Detective Dean Lawrie on June 12, 2012, which was
played to the jury.3 It is the admissibility of this interview that is at issue in this appeal.
We discuss what was said during this interview in more detail, post.
2 Defendant does not challenge the admissibility of these statements.
3 A transcript was given to the jurors when the recording was played for them. While
the recording was admitted into evidence during the trial, the transcript was not.
However, the transcript of this interview and the prior interviews are in the record on
appeal. Both parties refer to and cite those transcripts. Consequently, so do we. We
have watched the recorded interviews that took place on June 12, 2012, and where there
are relevant discrepancies between the transcript and what we hear on the recording, we
refer to what we hear on the recording.
2
Verdicts and Sentence
The jury found defendant guilty as to the following: counts 1 and 2, oral
copulation of D., a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b));4
counts 3 and 4, lewd and lascivious acts with D., a child under 14 (§ 288, subd. (a));
counts 5 through 8, oral copulation of M., a child 10 years of age or younger (§ 288.7,
subd. (b)); and counts 9 and 10, lewd and lascivious acts with M., a child under 14
(§ 288, subd. (a)).
The trial court sentenced defendant to 12 years plus 90 years to life.
DISCUSSION
I. The Parties’ Contentions
Defendant contends the trial court erred by denying his motion to suppress his
statements because: (1) the objective circumstances show that he was subjected to
custodial interrogation before he was given the Miranda warnings, and (2) Detective
Darlene Killip, who administered the polygraph examination, employed additional
deceptive tactics identified by Miranda that purportedly rendered defendant’s later
statements to Detective Lawrie involuntary. He also contends the Miranda violation was
prejudicial beyond a reasonable doubt because the prosecution relied heavily on his
confession in its closing argument.
The Attorney General replies: (1) defendant was not in custody before he received
Miranda warnings; (2) defendant has forfeited any general involuntariness argument
because his motion in the trial court alleged only a Miranda violation, but even if not
forfeited, defendant’s involuntariness argument lacks merit; (3) any error in introducing
the statements the jury heard was harmless given the totality of the evidence, including
4 Undesignated statutory references are to the Penal Code.
3
the victims’ testimony and defendant’s confession to his mother, which defendant does
not challenge here.
We conclude that defendant was not in custody for purposes of Miranda during
his interview with Killip and much of the following interview with Detective Lawrie.
Further, his post-Miranda statements were admissible. His involuntariness claim is
forfeited because it was not raised in the trial court. Lastly, we conclude that any error in
admitting the statements made between the point when the interview became custodial
and when defendant was Mirandized was harmless, given the other admissible evidence
in the case. Further, even assuming it was error to allow the post-Miranda statements,
any such error was harmless as well.
II. Additional Background
Only the June 12, 2012,5 interview with Detective Lawrie was introduced into
evidence during the trial. In addition to that interview, two prior interviews are pertinent
to the issues presented here: a May 2 interview with Lawrie and a June 12 interview and
polygraph examination with Killip, which took place before Lawrie’s interview of that
same day.
A. The May 2 Interview with Detective Lawrie
On May 2, Lawrie interviewed defendant at the police station. Lawrie began by
saying, “I appreciate you coming down . . . as we spoke on the phone earlier, this is a
voluntary interview.” He continued, “If at any time you . . . don’t wanna talk to me, Vue,
you are free to leave.”6 He told defendant he would get him a ride back to work if
5 All dates were in 2012.
6 Although the trial court did not reference considering the preliminary hearing transcript
in its decision on defendant’s motion to suppress, we note that Lawrie testified at the
preliminary hearing that defendant scheduled a “volunteer interview” and appeared at the
police station on his own. The parties appear to agree that defendant came to the police
station on his own on both May 2 and June 12.
4
needed. Lawrie explained, “this is a chance for you to come down and tell your side of
the story.” He continued, “if you get mad or you’re pissed off at me or you wanna stop
the interview, just let me know. I’ll escort you back out, we’ll call a cab, take you back
to work.”
Lawrie then obtained background information, including that defendant was as a
full-time babysitter for his brother’s four children. Lawrie asked whether defendant had
ever been arrested or gone to jail. Defendant asked, “Am I going to jail?” Lawrie said,
“No – no, like I told you earlier, you’re not gonna go to jail.” Defendant responded,
“Depend on what I say, right?” Lawrie replied, “No, either way you’re not gonna go to
jail. That’s today, that’s you get to leave anytime.” Defendant responded, “That is for
today, right?” Lawrie explained, “at some point in time, it is possible that you, they’ll
send you to jail if the – if the DA follows up on the stuff from CPS, like I told you.”7
(Italics added.)
The detective resumed questioning defendant about his family, and then asked
about sexual subjects, eliciting a description of defendant’s tastes in pornography. The
detective asked whether defendant had masturbated in the victims’ presence or showed
them pornography and he denied both.
Eventually, Lawrie told defendant that M. said he had licked her vagina.
Defendant denied it and suggested she might have made that up because he had caught
her acting out sexually with boys at school. Lawrie told defendant that D. had also said
he had licked her vagina. She also said defendant had rubbed his penis on her vagina and
her “butt,” and defendant denied those allegations as well. Asked why the girls would
say these things if they were not true, defendant said he was sometimes “kind of mean” to
7 Neither party called any witnesses during the Miranda hearing. Thus, the record of the
Miranda hearing does not show exactly when Lawrie previously talked to defendant
about these things or specifically what he said.
5
them because his brother had given him permission to discipline them when he babysat.
Lawrie told defendant the victims were talking about his pornography and said that he
masturbated and licked their vaginas and that he put his penis around D’s vagina and butt.
Again, defendant denied the conduct.
Lawrie told defendant, “The way these cases kind of work is I get their side, I get
your side, and thanks for coming in, I appreciate it. . . . [¶] [B]ut right now there is, it’s
having your word against their word and it’s two against you. So one way that you could
clear your name, or try to clear your name, is by taking a polygraph exam. It’s like a lie
detector test.” Defendant expressed interest in doing so and asked how long it would
take. Lawrie determined a polygrapher was not available at that time and told defendant
he would make an appointment for him.
Lawrie asked defendant if there was anything else defendant wanted to tell him
and defendant said no. Lawrie then told defendant, “let’s go out front, we’ll get a cab
ordered up for you.”
B. June 12 Interview/Polygraph Session with Detective Killip
Detective Killip began the session by saying she had “talked to the detective a
little bit. He said you wanted to take a polygraph, there were some allegations.” She
then talked with defendant for approximately an hour and a half before administering the
exam. She explained that she had to hear his version of what was going on to make up
the test questions. However, most of the pre-test interview involved general background
discussion, what defendant knew about polygraphs, and an explanation regarding how the
6
polygraph works and how the test would be administered.8 In addition, Killip asked
defendant general health questions.9
Killip explained that the polygraph is a voluntary test, “100 voluntary,” and that
neither she nor the detective could make anybody take the test. Defendant responded that
he figured if he did not take the test, it would make it look like he was hiding something.
Killip explained that the detective got a lot of cases like this and the “only way that he
can be sure that you did not do what they are saying you did is to pass a polygraph test,
and people come in and pass all the time.” She again emphasized the test was voluntary
8 The general background discussion included: defendant’s military experience, his
family members and family relations, and how his parents disciplined him for lying when
he was a child. Defendant said he had taken a polygraph test in the military and passed.
Also, when discussing how the polygraph worked, defendant admitted that he researched
polygraph examinations on the Internet, including YouTube. He explained some of what
he had learned about how the test is administered and how to beat it.
9 Killip explained she was going to ask some medical questions to make sure defendant
was “medically okay to take the test.” Questions posed concerned defendant’s general
medical and mental health history, medications, the amount of sleep he got the night
before, when he last ate, whether he used illegal drugs in the last week or alcohol in the
last 24 hours. After asking these questions, eight minutes into the interview, Killip asked
defendant if he had any other general health problems, and defendant smiled and
responded, “no, just — I’m just, I have an anxiety attack right now.” Killip said, “You’re
nervous?” Still smiling, defendant responded, “Yeah.” Killip said, “That’s okay” and
explained that everyone is nervous when they come for a polygraph. Defendant nodded
affirmatively and said, “yeah.” She explained nervousness will not make a person fail a
polygraph and defendant nodded affirmatively and said, “Alright.” Killip further
explained she expects people who take the test to be nervous. Smiling, defendant asked,
“do I look like I’m nervous right now?” Killip responded, “No.”
At oral argument, appellate counsel, for the first time, made much of defendant saying
he was having an “anxiety attack.” Based on the exchange and defendant’s demeanor, it
appears that defendant was indicating he was nervous, not that he was having some sort
of mental health related anxiety issue. Based on our review of the recording, we do not
find defendant’s statement about having an “anxiety attack” to be anything more than an
expression of nervousness; nor do we find the statement to be probative of the issues we
decide here.
7
and she could not make anyone take it. She added, “you won’t be able to clear your
name for the detective, okay, but . . . I’m not going to force you to take the test.”
Defendant responded with what appears to be a joking remark: “like I don’t care, if you
just stand up I’ll walk out right now because you know what, I’m just here answering
questions.” Defendant chuckled. Killip responded, “you can leave if you want to leave”
and “I’m not here to make anybody take a test.” (Italics added.) Defendant said, “I don’t
feel like – like trying to run out, then the detective just tackles me down,” to which Killip
responded, “No, no, no. That’s not how it’s going to be. . . Like I said this, is a
voluntary test, you are not under arrest. When we’re done, you’re leaving.” (Italics
added.) Defendant then said, so “basically . . . what I do here, . . . it’s gonna to make him
have his decision, right?” Killip responded, “Well, yes, whether he should still
concentrate on you or move on to somebody else, because . . . the detectives have to have
. . . a way to clear people.”
Defendant then asked, “when I pass the test, is there a way that I could get like
some kind of proof saying that I passed my polygraph?” Killip explained there was no
such mechanism and that defendant should talk to the detective about such questions; it
would be up to the detective to decide whether to release that information. Killip
returned to discussion about how the polygraph works. About 40 minutes into the
interview, she presented defendant with a “polygraph advisement form,” which defendant
signed.10
10 The form reads, in pertinent part, as follows: “Sacramento Police Department
[¶] Consent to undergo polygraph examination or lie detector test [¶] I, [defendant],
by these presents, being of sound mind and body and without duress, coercion or
promises of immunity or reward or promises of any kind whatsoever, hereby voluntarily
agree, consent, and assent to the submission of my person to the polygraph test or
examination, more commonly known as the lie detector test. In so consenting, I
understand and am fully aware of, the meaning, nature and purpose of said test. [¶] I
acknowledge that I have been advised by the undersigned witness [Detective Killip] of my
8
Killip asked defendant what were the allegations that were being made against
him. He said M. and D. claimed he masturbated in front of them, put his penis on their
private parts, and licked their private parts. Defendant acknowledged he masturbated in
his bedroom at the house, and said sometimes the kids entered without knocking. Killip
began to explain the questions she would ask him, and mentioned the question of whether
he put his mouth on anybody’s vagina. She asked defendant what questions he would
like her to ask, and he responded, “anything that could clear my name.”11
Killip asked defendant about his relationship with M. She also asked about any
occasions where innocent touching might have been misinterpreted by M. and defendant
described innocent circumstances.
Killip told defendant one of the test questions would be whether his mouth ever
touched M.’s vagina. In response to Killip’s question whether that seemed like a
reasonable question, defendant said, “yes.” Shortly before the test was administered
regarding M., defendant asked, “So what happens if I fail this test?” Killip responded,
“You’re not going to fail the test, right?” Defendant said, “No, but --.” Killip said they
would clear up the issue with M. and then talk about D., and added, “[L]et’s just focus on
one thing first and make it easy for you.”
During the administration of the test, just before starting the second round of
questions, Killip asked defendant, “All right. You ready for another one? Is your hand
feeling okay?” Defendant said, “Yeah.” Killip then said, “Get you done, so you can get
out of here.” (Italics added.) Defendant lifted his hand and Killip said, “Okay, hand
right to consult an attorney now and throughout all further proceedings in this case and
of my right to remain silent. I fully understand these rights but desire nevertheless to
submit to the polygraph examination.” (Italics added.)
11Defendant also suggested the following question: “[H]ave I ever done anything like
wrongfully to the kids that would put me . . . that would jeopardize my . . . future.” He
added, “That would be an awesome question.”
9
down,” and then said, “I’m just gonna adjust this.” Killip adjusted the connections on
defendant.12
After the test concerning M. concluded, Killip went over the results with
defendant. It was then about two hours into defendant’s time with Killip. Killip showed
defendant the result indicated by the computer and asked him what it said. He answered,
“Deception indicated.” Killip asked, “Do you know what that means?” Defendant
responded, “I’m lying?” Killip answered, “That means you’re not being 100% honest.”
Defendant responded, “Okay.” Killip said, “So, we should probably talk about this a
little bit.” Defendant replied, “Okay.”
Detective Killip said, “So what’s bothering you about the test? I mean obviously
. . . something happened with [M.] [¶] And now’s kind of the time we’re gonna need to
discuss it.” Defendant responded, “Okay.” Killip’s tone was as it had been throughout
the morning, low-key, casual, and conversational.
Killip continued, “So why don’t you tell me what happened. Look, people make
mistakes all the time. Doesn’t mean you’re a bad person, it just means you had an error
in judgment, okay. . . . [¶] You’re not at this drag them in the bushes, rape and pillage
and kill, okay. . . . I think you just kind of made a mistake. You know, you’ve got some
young girls in the house there. Um, you know, 12, 13, ten-year-olds, they’re starting to
develop, okay, and you’re probably like every other guy, you know, when you see a
young girl, things just -- emotions take over, you know, testosterone takes over. So, why
don’t you tell me what happened. I don’t want to put words into your mouth but, you
know, obviously something went on with you guys. Was it just a mistake? I mean I
12The transcript does not include all of this discussion. After defendant responded,
“Yeah” to the question about his hand feeling okay, the transcript reads: [Killip]:
(Unintelligible). Okay. Now I’m just gonna adjust this.” Where the transcript says
“Unintelligible,” we hear “Get you done, so you can get out of here” and “Let’s see,
okay, hand down.” (Italics added.)
10
don’t think you intentionally meant to hurt her at all.” Killip’s tone was still low-key,
casual, and conversational.
Defendant put his head down, raised it back up, and said, “It was a mistake. It
was, she was asking questions like - like what happens to my body when it changes, like
— like why does a guy do this, what does a guy do that.” He continued, “I was just
trying to—trying to show her . . . how things were.” He said he “just went too far and -
and now I’m paying the price.” Killip said, “Ok, so you just made a mistake. You
weren’t trying to hurt anybody or anything,” and defendant agreed, saying, “I wasn’t
trying to hurt her. I was trying to . . . teach her too so.” Killip responded that what
defendant said made sense and asked, “So, did you lick her vagina?” Defendant said yes,
but “[n]ot very often.” He said he only did it “whenever she asked me – like, ‘I have a
strange feeling. I don’t know what it is, you know.’ ”
Killip asked whether the same thing happened with D., and defendant replied,
“No, It was just, uh, like eventually I just like started having that -- like I just needed it,
you know.” Detective Killip responded, “That sometimes happens with guys. You guys
have hormones that take over, testosterone, um, a little bit different from women but I
mean it happens. I have a son that’s just a few years younger than you, so trust me, I’ve
heard it all. This isn’t the first time, stuff – and people make mistakes. You know.
People experiment, you know. Unfortunately, you have to pick somebody a little bit
older.” Defendant replied, “I know . . . every time I did that, I would feel like I was such
a horrible man. I had to do something to hurt myself in order to – to like not think about
it, you know?”
Killip asked, “Were you feeling bad about yourself?” Defendant said, “Yeah” and
explained he had attempted suicide three or four times “cause I was so pissed - so mad at
myself, you know, because . . . like I know it was wrong, I shouldn’t be doing this . . .
But after a while . . . I tried to take my life a couple of times and my brother caught
me. . .” In a consoling tone, Killip told defendant, “nothing’s that bad that you have to
11
hurt yourself.” Replying in an argumentative tone, defendant declared, “Yeah, it is
though. No, it is.”
Continuing in a consoling tone, Killip responded, “Let me tell you how it is.
Today is going to be the first day of the rest of your life, okay, I mean really.” Defendant
interrupted, “Today’s the last day that I will ever feel free,” to which Killip responded,
“Today, you are free because you’re finally telling the truth.” Defendant insisted, “No,
no, I’m not.” Killip continued in a consoling tone, “Listen. Doesn’t it feel better — I
mean when people hold a secret inside them, that’s what makes them feel bad. It’s like
cancer, it just eats away at you. I bet you’ve been feeling bad about this for a long time.”
Defendant responded, “I know now they’re gonna go over there and tell them the bad
news, and then they’re gonna go over and arrest me and and that’s it, you know. . .”
Detective Killip interrupted, “Okay. Let me explain. I wasn’t lying. When
you’re done here today, you’re leaving.” (Italics added.) Killip continued, “I’m not
gonna tell the detective, I’m gonna let you do that, okay. Because it’s not gonna mean
anything coming from me, but I’m sure you’re sorry for what you did, right? You sound
like you are. Are you sorry you made a mistake?” (Italics added.) Defendant replied,
“Yes.” Killip said, “Ok, absolutely. Do you think you should tell the detective that?”
Killip continued, “Look, everybody makes mistakes. Okay, I’m telling you,” to which
defendant responded, “And everybody just has to pay for it, right?” Killip responded, “I
don’t know what’s gonna happen in the future. I honestly don’t know. That’s something
you’re gonna have to talk to Detective Lawrie about.”
Defendant told Killip, “now, since I said the truth, I basically - when I get home,
my brother’s gonna go, well of course . . . my brother’s gonna go ape shit.” (Italics
added.) Defendant said there would probably be fighting and “Nobody can ever trust me
again.” He then said, “[N]ow, I just feel like I want to kill myself now. . . No, no, I want
to kill myself now.”
12
In response to Killip’s exhortations that this was “not the end of the world,”
defendant responded, “It is the end of the world though.” After discussing his family’s
anticipated reaction, defendant said, “So if I leave, I cannot go home and hang myself?”
Killip said, “Don’t do that,” to which defendant responded, “I have to.” Killip said if he
did that, the victims would feel responsible for the rest of their lives. She said they would
feel like they killed their uncle and she suggested the family needed to work together to
heal. Defendant said, “But that’s after I pay for what I did, right?” Killip responded,
“You want to talk to the detective and ask him those questions? It’s gonna be more
appropriate, okay. Cause it’s his case, I don’t really know anything about it except what
we talked about today, okay. So, it’s gonna be probably a little more appropriate for you
to kind of. I want you to tell him the truth, okay. I don’t want to . . . put any words in
your mouth. I want you to tell him the truth. Does that sound like something that you
can do?” Defendant responded, “Yeah.” Killip said, defendant seemed like a “pretty
nice guy” and she did not want to see anything bad happen to him. She continued,
“sometimes we just make stupid mistakes. If you’re teaching that, they’re a little too
young. Don’t do it again. You may have to apologize, you know. That would probably
be a good thing.” Killip said, “I’m gonna let you talk to the detective.”
Defendant put his head in his hand and said, “Yeah, I’m ready to go to jail.”
Detective Killip replied, “You’re not going to jail. Aren’t you going to work when you
leave here?” (Italics added.) Defendant, replied, “No.” Killip followed up, “Do you
have to work today?” (Italics added.) Defendant said, “Yes.” Killip asked what time
defendant had to be at work. Defendant responded, “What time is it now? . . . I got to
tell my mom. She’s going to make me walk home.” (Italics added.) Killip replied, “I’ll
have the detective come talk to you. Let’s do that and then you can ask him questions
that you need to ask.” Killip then called Lawrie and told him defendant “would like to
talk to you in an interview room if you have time.”
13
Killip then said to defendant, in a conversational tone, “Alright, so let’s do that.
Why don’t you talk to him, okay, and he’s going to ask you some questions and you
know what? Let’s just be honest with him, okay?” Defendant looked up at Killip and
said, “Okay.”
Killip suggested defendant talking to Lawrie would be better than if she spoke to
Lawrie, and then she said, “Just tell him the way you told me, okay. But you’re leaving
when you’re done here today.” (Italics added.) Defendant responded, “Until they get a
warrant on me.” Killip replied, “That’s up to him, whatever they’re gonna do. Yeah. I
don’t have any idea because I do polygraphs.”
When Lawrie entered, Killip said, “[Defendant] would like to let you know how
he did on the test, he wants to talk to you about a few things.” Lawrie invited defendant
to “talk in the room in private, how’s that?” Killip told defendant it was nice meeting
him and wished him luck. Defendant responded, “All right. Thank you.”
C. June 12 Interview with Detective Lawrie
1. Statements Made Before Miranda
Throughout the interview, Lawrie’s tone, as reflected in the recording, was like
Killip’s – low-key, casual and conversational. The interview began by Lawrie stating,
“You came in for a volunteer polygraph today. How’d it go?” Defendant replied, “Not
so good. Not so good.” Lawrie asked, “What does that mean?” Defendant replied, “I
messed up. I lied to you.” Defendant continued, “I’m admitting to my faults.13 [¶] Now
I understand I have to pay the price . . . and I understand this is gonna be a slow process
and to me recovering from what I did and - and basically now . . . .”
13 The word “fault” (singular) appears in the transcript. We hear defendant say the word
“faults” (plural) in the recording.
14
Lawrie interrupted and indicated Killip was paging him and left the interview
room. During this time, defendant took his glasses off and put his hands over his face.
When Lawrie returned, he apologized for interrupting and asked defendant to finish.
Defendant continued, “And I know it’s gonna be a - a slow but long process for
me to recover, but at least it’ll give the girls a chance . . . to heal now after me admitting.
I understand that . . . everybody makes minor mistakes in their life and what I did is
basically unforgivable to any kind of parents out -- outside of this world -- this life --
whatever. And you know . . . I’m at that point where I should be on suicide watch.
. . . [¶] Because if I go home, I will do something . . . [¶] . . . to hurt myself and I know
if I do that, it’s gonna make -- they’ll feel responsible for my death.” (Italics added.)
Lawrie told defendant, “Okay, well, let’s do this. . . . I don’t know exactly what
transpired in that room, but let’s dissect it a little bit at a time and when we’re done here
. . . I’ll get you whatever help you want and need. So if that’s something you wanna do,
then we’ll – then we’ll take one step, but . . . I know it’s gotta make you feel a lot better
that you . . . .” Defendant interrupted, “[W]ell, actually after admitting it, you know, I’m
back to that point where I know I did somethin[g] wrong . . . [¶] and like I just — like I
just don’t wanna live no more.”14 Lawrie told defendant, “[N]othing’s that bad, okay?”
Defendant responded, “Well I put so much pressure on me to where, I guess, I like up
here and just fall back down [gesturing with his hand in an up position and then a down
position], I just like try to step in front of cars for no reason at all, you know.”
Lawrie said, “let’s go back a little bit and then we’ll deal with each thing. You
came in here and you said you lied to me. . . . I’m assuming the last time I interviewed
you, right?” Defendant nodded affirmatively.
14The transcript indicates “unintelligible” where we hear defendant saying the words
“actually after admitting it.”
15
Lawrie said he did not hold any grudges because defendant lied to him. He told
defendant he thought more of him now because he was telling the truth, and then asked,
“So, what happened between you and [M.]?” Defendant said “she came to that age where
she was asking questions” about sexual things. He said M. was 12 or 13 years old and he
was in his late twenties. He said he showed her his penis, then “what excites a girl,”
touching her vagina with his fingers, masturbating her. Sometimes he would have “that
urge” to masturbate himself simultaneously. This happened “[p]robably a couple times.”
Defendant said he also put his mouth on her vagina “a couple times.”
After M. moved out, defendant said he “finally became addicted . . . [¶] . . . to be
a pedophile and [D.] was there and it just happened.” Lawrie said, “So tell me how that
started.” Defendant said D. slept in his bed with him when she was little because she was
scared. Lawrie asked what kind of things he did to D. Defendant replied, when she was
five or six years old, he “touched her and . . . licked her vagina and that was it.” He said
he did each act “[j]ust a couple times.” When he licked her vagina, she was awake. He
admitted he rubbed his penis around the edges of her vagina, but “[n]ot a lot.” He said
she was five or six and he was 29. He denied rubbing his penis around her rectum or
having her touch his penis.
Defendant ejaculated onto a towel while performing these acts with the victims
“maybe 10 to 15 times.” He had M. touch his penis with her hands and her mouth “[l]ess
than three or four times.”
Defendant denied any sexual activity with S., M.’s cousin. He also denied
watching pornography with the victims.
Detective Lawrie suggested that “a lot of times it makes people feel better to write
down something” and asked, “would it make you feel better, like, write a letter to M. and
D., - just kind of explaining that you’re sorry and how you feel about doing this?”
Defendant said, “I don’t feel like doing that right now.” Lawrie said, “okay, no
problem.” Lawrie said he felt better that defendant “got this off [his] chest,” and
16
defendant interrupted, “I know you feel better, but that’s about it. . . . [¶] I know I
fucked up and I know now I have to pay the price . . . [¶] and hope that this will never
happen again.”
Lawrie asked about pornography. Defendant said he had animation pornography.
He denied viewing other types of pornography.
Returning to D., Lawrie asked about the time of day those events happened.
Defendant said both day and nighttime, always in the bedroom. He denied D. touched his
penis. Only M. did.
Lawrie told defendant his mother was outside and asked, “Do you think we should
have your mom come in or do you want to talk to her in private?” Defendant said, “I
think she should come and hear what I have to say in front of you. . . . [¶] And we can
try to figure out what happens next.”
Lawrie left the interview room and discovered defendant’s mother had left the
police department and gone home. Lawrie called and asked her to come back. Lawrie
asked defendant whether he felt like “writing anything to the girls right now so there’d be
something [Lawrie] could get them.” Defendant agreed to do so. Lawrie provided paper
and a pen and left the room.
Lawrie later returned and read the letter defendant had written aloud: “D[.] and
[M.], there are . . . not enough words in the world that describes how much forgiveness I
have to ask you. As we all know, if you do something bad, you have to pay the price for
it because all bad people belong in hell, and surely enough, that is where I am heading. I
don’t accept any form of forgiveness from you both as it doesn’t exist for me. I just hope
both of you girls enjoy your life more that you have succeeded in putting a bad guy away.
Enjoy your life and stop thinking about me. That is all I ask. Sincerely, a bad guy.”
Immediately after Lawrie read the last line, defendant said, “Yeah. That’s what I am.”
Lawrie asked defendant if he was still feeling like hurting himself. Defendant
said, “[T]he suicidal part kind a like went away.” Lawrie then told defendant he had
17
talked to his supervisor. He continued, “I don’t feel comfortable, um, without gettin’ you
some kind of help, okay? Uh, I just -- I don’t feel comfortable lettin’ you go, you know,
you talk about runnin’ out in front of a car there, you talked about hanging yourself from
a tree I guess when you talked to [Killip].”15 (Italics added.) Defendant said, “I’m more
calmed down now.” Lawrie said he could see that, but was still worried about defendant.
Defendant said, “I’m just ready for my mom to come in here so I can tell her. . . [¶] the
kind of person I am. . . . [¶] And after that, we can talk about what’ll happen to me —
what’s gonna happen this next couple of days to (unintelligible) years of my life.”
Detective Lawrie asked defendant what he thought should happen to him, and defendant
talked about getting therapy in “a place for like where, you know, pedophiles go.”
Lawrie asked if there had been other victims; defendant said no. Lawrie asked
whether defendant would have persisted if the victims had not moved out; defendant said
“yeah” and he would “probably been dead a long time ago.” He said he would have
committed suicide. He explained, “whenever I did somethin’ like that, I would feel
horrible, you know. I would feel like, ‘What am I doing? I need to stop,’ you know.”
Defendant said he had cut himself out of guilt. He also said he tried to hang himself.
However, he denied that he would harm himself in jail. He said he would just “try to
serve what I have to serve.”
Lawrie asked defendant if he went to jail and could talk to a psychiatrist there,
would that make him feel better. Defendant responded, “Yes. . . [¶] As long as — cause
you know, I just wanna be separated from the outside world right now.” The detective
said he would talk to his supervisor and get defendant into a place where they could help
him. In the meantime, they would wait for defendant’s mother to arrive. Defendant
15As we discuss post, we conclude defendant was in custody for purposes of Miranda
beginning at this point.
18
assured Lawrie he was okay, and he was just going to take a nap and wait for his mother
and “for you guys to say, ‘alright, let’s book this mother fucker.’ ”
Defendant’s mother arrived and entered the room with Lawrie. She and defendant
began speaking in Hmong. Lawrie asked if they could speak English. Thereafter, he
asked defendant to tell his mother what he wanted to tell her. Defendant said, “Mom, I’m
sorry, but I lied to you and I did those things to [D.] and [M.]. And . . . I’m not goin’
home tonight, ever again, until I go to court, serve my time and whatever.” He told her
he needed “help, therapy and psychiatric help because I wanna hurt myself . . . [¶] and if
nothin happens, and then if I was to go home with you, I would have done something to
where [M.] and [D.] would have felt responsible for causing me to kill myself.” (Italics
added.) He asked the detective whether he would go straight to prison. The detective
said first defendant would “go down there today and do some paperwork,” then they
would try to get him whatever services he needed, and then he would get a court date and
decide whether to plead or stand trial.
Lawrie explained to defendant’s mother that defendant had failed his polygraph
test. He then told her, “afterwards, we talked and he’s admitted to doing these bad
things.” Lawrie further explained, “the reason he’s gonna go to jail today is because he
feels he’s gonna kill himself . . . and he’s told me that several times. He’s told the other
officer that and our concern is for [defendant] cause we don’t want him to harm himself.
. . . So in his safety right now, he’s gonna go to jail.” (Italics added.)
Defendant’s mother asked, “So how long he gonna go to the jail?” Lawrie
explained the legal process without estimating defendant’s eventual custody time.
Lawrie left defendant and his mother alone in the interview room, where they spoke in
Hmong for more than 20 minutes. During the beginning of their discussion, defendant
began to get emotional and his mother told him, in English, “calm down, calm down,
calm down, okay?” Defendant did.
19
After the detective came back in, he said. “I’m gonna sit and talk to you a little
more. How about we have your mom go out there for a minute, she can digest
everything, and then I’ll go talk to her, but I’d like to talk to you.”
2. The Miranda Advisements and Defendant’s Post-advisement Statement
After defendant’s mother left the room, Lawrie said, “So couple things I wanna
clean up here. Um, you know, you came down here today, . . . you’ve been askin’ me to
take a . . . polygraph exam, um, it was voluntary, um, you knew that -- we knew that.
And right now since, you’re technically in custody cause I’m going take you to jail like
we talked about.[16] I wanna. . . I didn’t really take any notes,[17] so I wanna make couple
and I’m a read your rights real quick, I wanna talk to you real quick, clean up a couple
questions I have. I’ll then answer any question you have, we can bring your mom back in
if you want . . . [¶] and then we’ll go from there, okay?”
The detective continued, “So, uh, this is just a format affidavit”18 and read
defendant the Miranda advisements. After each right, he asked defendant if understood
and defendant said “yes” each time.
Lawrie asked, “So just to clean some stuff up, um, you said when you started doin’
things with [M.], she was how old?” Defendant said, “Like between 9 to 12.” Lawrie
asked, “And tell me what things . . . happened between you and her.” Defendant said, “I
touched her vagina with my fingers.” In response to Lawrie’s question about how many
16 The transcript indicates Lawrie said, “And right now since you’re — tend to be in
custody cause I’m gonna take you to jail, uh, we talked about.” We hear Lawrie as
saying, “And right now since, you’re technically in custody cause I’m going take you to
jail like we talked about.”
17The transcript indicates Lawrie said, “I’m gonna — I need to be able to take your
notes.” We hear Lawrie as stating, “I wanna. — I didn’t really take any notes, so I
wanna make a couple. . . .”
18 This passage is difficult to hear, so we simply note what is in the transcript.
20
times, defendant responded, “Estimation -- no more than 20 to 30 times.” Lawrie asked,
“Now what else happened?” Defendant said, “I put my mouth on her vagina.” He said
he did so “20 to 30 times.” In response to Lawrie’s question, “[w]hat else happened,”
defendant replied, “I used my tongue on her vagina.” Again, he said he did this “20 to 30
times.” Defendant acknowledged he was in his late twenties — 27 to 29 — when this
occurred, and he knew these things were wrong when he was doing them.
Lawrie asked whether M. had touched defendant’s penis with her hand. He said
she had two or three times. M. also touched his penis with her mouth two or three times.
He denied ejaculating on those occasions, but admitted doing so when he touched or
licked M.’s vagina “about 20 [times].”
Lawrie then turned to D. Defendant said he touched D.’s vagina, put his mouth on
her vagina, and put his tongue on her vagina “[l]ike 10 to 20 times” when she was four to
six years old. She never touched his penis, although he asked her to do so “maybe less
than five times.” She always said no, “it’s yucky. I don’t wanna touch it.” He rubbed
his penis around her vagina “less than ten times.” It never went inside. He never thought
about doing so. He never ejaculated on either M. or D.’s body.
Lawrie turned back to S. Defendant denied anything happened with S. However,
he later admitted touching her breasts and rubbing her vagina over clothes when she was
16 and he was 28.
Lawrie asked whether there was anything else defendant wanted to tell him.
Defendant replied, “I wanna thank you personally. . .” He explained if he would have
been the uncle “that I’m supposed to be, then none of this would of never happened.” He
continued, “[I]f I didn’t have those perverted thoughts and stuff . . . none of this would
have never happened. . . . [¶] . . . [¶] I know I understand I messed up and I know I’m
gonna pay the prices for it and I hope those girls — the two girls move on . . . I’m gonna
stop myself from entering their lives.” Defendant said he did not deserve to live anymore.
But later he said he was sorry and hoped he could start his “road to recovery.”
21
The interview went on a while longer, but without any additional factual
admissions. Thereafter, defendant spoke to his mother.
D. Defendant’s Miranda Motion
Defendant filed a “motion to suppress defendant’s statements pursuant to Miranda
v. Arizona.” (Capitalization omitted.) All of the argument headings cited Miranda, and
all of the arguments thereunder addressed only Miranda.
The trial court considered the video recordings and transcripts of the interviews.
The recording of Lawrie’s June 12 interview was admitted and played for the jury.
E. Miranda Hearing Argument
Defendant argued the facts showed custodial interrogation without benefit of
Miranda warnings. Defense counsel first argued defendant was in custody after Killip
“began to question the veracity and validity of [defendant’s] statement.” Counsel went
on, “once [defendant] started making statements to Detective Killip that were admissions,
as well as statement[s] that he was going to engage in self-harm, that it was pretty clear at
that point in time that he was not going to be able to leave.” He was in custody from the
time he told Killip he was going to injure himself and was ready to go to jail, because it
was clear the detectives would not let him leave then. Instead of reading him his rights or
telling him he could discontinue the questioning, Detective Killip continued to interrogate
him, then “directed him to go with [Detective] Lawrie into another room and tell him
what happened.” Under those circumstances a reasonable person could not have felt free
to leave.
Defendant further argued the officers had “used interrogation techniques to
pressure [defendant] such as lying about evidence and using what was most likely a fake
polygraph exam.”19 The interrogation revealed that the officers considered defendant a
19The defense did not call Killip to testify at the Miranda hearing and there is no
evidence that the polygraph examination was a “fake.”
22
suspect. All this showed an “intentional plan on the part of detectives” which
“underscores . . . the fact that the interrogation had an end goal of effectuating an arrest.”
Defendant contended, “In sum, the totality of circumstances . . . overwhelmingly
demonstrates that [defendant] was in custody: while he went there voluntarily and was
told he was not in custody, the express purpose of the interview was to question him as a
suspect. The interview took place at the police station. [Defendant]’s conduct did not
indicate an awareness that he was free to leave. He never left the interview room except
when escorted by [Detective] Lawrie from the polygraph room to another interview
room. The interview lasted . . . several hours. Detectives dominated and controlled the
course of the interview. Detectives manifested a belief that [defendant] was culpable and
repeatedly told him that. Police used interrogation techniques such as lying to
[defendant] and used a purported polygraph examination to pressure him. [Defendant]
was arrested at the end of the interview.”
In addition to the above points concerning Miranda custody, citing Missouri v.
Seibert (2004) 542 U.S. 600 [159 L.Ed.2d 643] (Seibert), defense counsel argued the
detectives’ failure to read defendant his Miranda rights until after obtaining a confession
showed a deliberate plan to evade Miranda, which would make the subsequent
Mirandized confession inadmissible. Counsel asserted that defendant’s statements before
and after the Miranda warnings were essentially part of a “seamless conversation”
between defendant and Detective Lawrie, with only minutes separating the original
confession from its Mirandized recapitulation. The belated Miranda warnings therefore
did not cure the previous failure to warn.
The prosecution argued defendant’s decision to take the polygraph examination
was the voluntary result of his first interview with Lawrie. Killip repeatedly assured
defendant he was free to leave — not only before the exam, but afterward. Contrary to
defense counsel’s assertion, Killip did not interrogate defendant for two hours, because a
good part of the session consisted of preliminary discussion about the examination. After
23
he completed the test, defendant said he wanted to talk to Lawrie. No force was used.
From beginning to end, defendant did most of the talking, beginning with “I lied to you”;
thus, there was no true interrogation. The detectives did not use pressure techniques or
fabricate evidence. Far from coercing defendant, everyone there, including defendant’s
mother, was sympathetic to him and tried to calm him down. It was only after they failed
to do so or to get him to stop threatening self-harm that Lawrie decided he could not let
defendant leave and gave him the Miranda warnings.
Defense counsel suggested that before Lawrie took defendant into the other room,
he had decided he would not let defendant leave because of his talk about hurting himself
and that this decision was relevant to whether Lawrie should have given Miranda
warnings then. Counsel asserted that, as mentioned in his written motion, Lawrie
testified at the preliminary hearing that “once he began hearing [defendant] make
statements to the effect that he was going to engage in self-injurious behavior, that he had
formed the opinion that he wasn’t going to let him leave the station at that point in
time.”20 He stated Lawrie had monitored defendant’s interview with Killip and the
polygraph examination.
20In the written motion, defense counsel cited page 44, lines 13-20 of the preliminary
hearing transcript. There was no stipulation between the parties that the trial court could
consider the preliminary hearing testimony in deciding the Miranda motion and the trial
court did not mention that testimony in its written ruling. Because of the argument
defense counsel made in the trial court, we have, nevertheless, reviewed the pertinent
preliminary hearing testimony. At the cited page, the following questions and answers
appear in the transcript:
“Defense Counsel: I apologize for skipping around but I wanted to go back to
something that you said on direct. [¶] Because you said at some point when [defendant]
was indicating that he wanted to hurt himself about what he — essentially over what he
had done, you were concerned that he was a danger possibly to himself and others?
“Lawrie: Yes.
24
The trial court questioned whether Miranda warnings would be required “even if
the defendant is completely unaware of the potential of arrest.” Defense counsel
responded that defendant was not unaware of it, which is why he told Killip he was ready
to go to jail. That impression was confirmed after the interview with Lawrie began.
Furthermore, the fact that Lawrie was monitoring the polygraph session indicated its real
intent was “to create a scenario where the police would have an opportunity to interrogate
“Defense Counsel: And that was at that point that you decided . . . I need to not
let this guy leave?
“Lawrie: That is correct.” (Italics added.)
During the direct examination referenced in the above questions, the following
question and answer appear in the transcript:
“Prosecutor: After you read [defendant] his Miranda rights and was there a
particular reason why you decided that it was necessary not to allow [defendant] to leave?
“Lawrie: Yeah. At that point in time I had had lengthy conversation with
[defendant]. I felt he was a threat to himself and others after he started talking about
wanting to injury [sic] himself and confessing to some of these accusations that I didn’t
— I knew I wasn’t going to let him leave at that point in time. [¶] So I read him his
Miranda rights in my mind knowing that he was not free to leave and then we continued
with the interview.” (Italics added.)
Defense counsel’s cross-examination questions above referenced “at some point”
and “at this point,” but this testimony does not reflect when specifically during the
interviews the “point” came when Lawrie decided he would not let defendant leave. If
anything, the direct examination suggests that that point occurred just before Lawrie
Mirandized defendant. Later, cross-examination testimony appears to confirm this.
Lawrie testified: “I brought him into the other room. Once he started confessing and I
realized that he was a danger to himself or possibly someone else, that’s when I backed
out of the room, I came back in, I read him his Miranda rights.”
In any event, the record is clear that Lawrie did not say anything to defendant or
otherwise indicate his intent not to let defendant leave until the point in time during the
interview that Lawrie expressly told defendant he was not going to let him go because of
his threats to commit suicide. This “point” in time was before Lawrie Mirandized
defendant and it is the point in time we conclude the interview became custodial.
25
or confront [defendant] regarding the allegations in connection with this case[,] and that
that was furthered when they moved him down . . . to another room where that further
questioning occurred.” Whether the polygraph exam was real or fake, “the designed
purpose was to conduct an interrogation of [defendant].”
The trial court stated the officers’ “purpose” did not matter so long as the situation
did not amount to custodial interrogation and asked whether Killip had indicated to
defendant that he could leave whenever he wanted. The prosecutor said: “Yes.”
Defense counsel replied that Killip said, toward the end of the session: “ ‘Oh, no, at the
end of this you can leave here and go back to work,’ ” whereupon defendant said, “ ‘But
the warrant’s going to get issued for my arrest, right? I’m going to get arrested,’ ” and
Detective Killip answered: “ ‘Well, I can’t really talk to you about that. You’re going to
have to talk to the other detective.’ ”
The trial court said that, even if defendant was told a warrant for his arrest would
issue, “that’s a future event,” not a recognition that he was going to be arrested then and
there. The court took the matter under submission to watch the video recordings.
F. The Trial Court’s Ruling on the Miranda Motion
The trial court entered a written ruling as follows: “Having now viewed portions
of Defendant’s Exhibits A, and C, read the entirety of Defendant’s Exhibits A-1 and C-1,
and B, and having heard both counsels’ arguments at in limine proceedings, and
considered all pleadings related thereto, the court rules as follows: [¶] The Motion to
Suppress Defendant’s statements pursuant to Miranda v. Arizona, is DENIED. [¶]
Defendant’s statements were uncoerced, voluntary, and not the product of a custodial
interrogation.”
G. Miranda Custody
1. Miranda Custody Principles
When a suspect is subjected to custodial interrogation, Miranda warnings are
required, and any incriminating statement made without such warnings will be
26
inadmissible to establish guilt. (Miranda v. Arizona (1966) 384 U.S. 436, 444.) But not
every statement under interrogation is made in custody. (Ibid.; People v. Mickey (1991)
54 Cal.3d 612, 648.)
An interrogation is custodial for Miranda purposes “when ‘a person has been
taken into custody or otherwise deprived of his 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 situation.” (People v. Moore (2011) 51 Cal.4th 386, 394-395 (Moore).)
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 high court has provided significant guidance in this area. 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 [158 L.Ed.2d 938, 950]
(Yarborough).) The court has emphasized that the subjective perception of the suspect is
not relevant. (Stansbury v. California (1994) 511 U.S. 318, 323 [128 L.Ed.2d 293]
(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 subjective intent of the officers regarding the suspect’s custodial status
relevant, if not disclosed to the suspect. (Stansbury, supra, 511 U.S. at p. 323.) “ ‘[A]
27
policeman’s unarticulated plan 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 (Saldana); People v. Pilster (2006) 138 Cal.App.4th 1395,
1403-1404 (Pilster).) This court has considered the same list of factors. (In re I.F.
(2018) 20 Cal.App.5th 735, 759.) 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 was under arrest or in custody; (5) whether the police
informed the person that he 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 they
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
28
was arrested at the end of the interrogation. (See, e.g., ibid., quoting 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.)
2. Totality of the Circumstances Analysis
Defendant appears to assert he was in custody from the point in time that he made
incriminating statements to Killip. In his briefing, the Attorney General responds
defendant was not in custody until Detective Lawrie gave the Miranda warnings. We
conclude defendant was in custody for purposes of Miranda from the point that Lawrie
told defendant he was not letting defendant leave because of his suicidal mental state.
Looking to the Aguilera factors, we note the following: defendant came to the
police station on his own; he voluntarily agreed to a polygraph examination; he was told
numerous times that he was not required to talk to the officers, not required to take the
polygraph test and was not under arrest; neither detective was aggressive nor
confrontational — to the contrary, their tone was low-key, casual and conversational and,
at times, they were empathetic and consoling; and the officer-to-suspect ratio was one-to-
one during the interviews. Before discussing in more detail the pertinent circumstances
that demonstrate a reasonable person would not have “experienced a restraint tantamount
to an arrest” (Aguilera, supra, 51 Cal.App.4th at p. 1162), we discuss a recent case that is
factually similar to the instant case, in which another panel of this court held the
defendant was not in Miranda custody.
29
In People v. Potter (2021) 66 Cal.App.5th 528 (Potter), the defendant was accused
of sexually molesting his daughter and admitted the molestations during a polygraph
interview at a police station. (Id. at p. 531.) After the victim disclosed the sexual abuse,
a detective called defendant on the phone and asked him questions concerning the
allegations. (Id. at p. 532.) After denying the allegations, the investigating detective
suggested the defendant should tell the truth about what happened, adding “ ‘You’re
essentially calling [the victim] a liar.’ ” (Id. at p. 533.) Eventually, the detective asked
the defendant if he would be willing to come to the police station for a polygraph
examination. (Ibid.) Defendant agreed and appeared for the examination two weeks
later. (Ibid.)
The polygraph was to be conducted by a second detective. At the beginning of the
pre-test interview, that detective told the defendant, “ ‘you don’t have to talk to me if you
don’t want,’ ” and “ ‘[y]ou can walk out anytime you want.’ ” (Potter, supra, 66
Cal.App.5th at p. 533.) The pre-test interview generally followed the same lines as in the
instant case — an explanation of how the polygraph worked, the defendant’s
understanding of the allegations against him, and his family history and relations
background. (Id. at pp. 533-534.) However, they also discussed the fact that the
defendant had been molested as a child. (Id. at p. 534.) Also, at one point, while
devising the relevant polygraph questions, the detective told the defendant he did not
think the victim was lying. (Ibid.) The detective suggested a reasonable explanation
might be “regression,” where the defendant had not dealt with his own sexual abuse. (Id.
at p. 535.) He told the defendant that his daughter deserved to know this was not going to
happen to her again. (Ibid.) The defendant said his molester never apologized. (Ibid.)
The detective told the defendant his daughter would have to live with what happened for
the rest of her life “until she has some sort of closure.” He added, “and you’re her dad.
And you — and that’s your job and your responsibility.” (Ibid.) The detective asserted
that the victim deserved an explanation. (Id. at p. 536.) He asked defendant to tell him
30
what happened so he could understand. (Ibid.) The defendant explained that his sexual
abuse issue “ ‘never really got fixed,’ ” and the detective said he hoped the defendant
would have a talk with his daughter when the time came. (Ibid.) The detective asked
when was the first time the defendant had done something to his daughter. Thereafter,
the defendant made incriminating statements, admitting acts of sexual abuse in response
to questions by the detective. (Id. at pp. 536-538.)
No polygraph examination was conducted. After speaking with that detective, the
defendant was moved to another interview room where he made admissions to the
original detective. (Potter, supra, 66 Cal.App.5th at p. 538.) At one point, the defendant
wrote an apology letter to his daughter. (Ibid.) The defendant was allowed to leave the
police station after the interviews and was arrested three days later. (Id. at p. 539.) The
Potter court concluded the defendant was not in custody for purposes of Miranda when
he was interrogated at the police station. (Id. at p. 544.) We discuss some of the Potter
court’s reasoning below in the context of the circumstances presented in the instant case.
a. Voluntary Agreement to be Interviewed
Defendant twice appeared at the police station on his own to speak to police. He
first voluntarily came to the police station on May 2 to talk to Lawrie. Thereafter,
defendant was allowed to go home. Over a month went by during which defendant was
not arrested. On June 12, he again voluntarily appeared — this time for a polygraph.
The details on how this was arranged are not clear as neither party elicited testimony at
the Miranda hearing on this subject. But the recorded interviews demonstrate defendant
appeared voluntarily.
In Potter, the court found the defendant’s voluntary appearance to be a significant
factor. The court wrote: “[the] defendant went to the police station voluntarily. He did
so to take a polygraph examination, apparently in the hope of passing the examination
and thereby convincing law enforcement that he did not molest his daughter. For
purposes of the Miranda analysis, we perceive no material difference between arriving at
31
the station voluntarily to give a statement and doing so to take a polygraph examination.
Taking a polygraph examination involves answering a series of background and
potentially incriminating questions while connected to the polygraph machine.” (Potter,
supra, 66 Cal.App.5th at p. 541.) Significantly, Potter came to the police station on his
own two weeks after speaking to the original detective on the phone. (Ibid.)
These circumstances in Potter essentially mirror what happened here. We too find
it significant that defendant appeared at the police station voluntarily. Furthermore, more
than a month had gone by after initially speaking to the investigating detective on the
phone about the victims’ allegations and then later sitting through an in-person interview.
During that interim period, no arrest had taken place. We conclude that these
circumstances cut heavily in favor of a finding that defendant was not in Miranda
custody before the time when Lawrie told defendant he would not let him go home.
b. Location of the Interview
Our high court recognized long ago that, even when an interview room is in a
secure area of a police facility, that circumstance does not necessarily mandate a finding
of custody. (People v. Ochoa (1998) 19 Cal.4th 353, 403 [“the fact that [the defendant]
was questioned in the police station’s polygraph examination room does not necessarily
require a finding of custody, even if the room was in a secure area”].) Similarly, the
court in Potter reasoned: “The fact that an interrogation occurred at the police station
does not, by itself, render the interrogation custodial.” (Potter, supra, 66 Cal.App.5th at
p. 540.)
We conclude that this circumstance is insignificant here, especially since
defendant appeared for the second time at the police station voluntarily and got there on
his own. This circumstance does not cut in favor of a finding of Miranda custody.
c. What Defendant Was Told About His Custody Status
Neither detective here said nor did anything that created a coercive atmosphere
such that a reasonable person would have “experienced a restraint tantamount to an
32
arrest.” (Aguilera, supra, 51 Cal.4th at p. 1162.) To the contrary, defendant was told
multiple times that he was not under arrest and that he would be going home. This
message was first communicated to defendant during Lawrie’s May 2 interview: “you’re
free to leave”; “if you get mad or you’re pissed off at me or you wanna stop the
interview, just let me know. I’ll escort you back out, we’ll call a cab, take you back to
work.” And, as noted, he was allowed to leave after that first in-person interview. An
objectively reasonable person would have this historical circumstance in mind when
similar statements were made to him on June 12.
On June 12, Killip made such statements to defendant multiple times: the
polygraph test was “100 voluntary”; “this is a voluntary test, you are not under arrest.
When we’re done, you’re leaving”; “Get you done, so you can get out of here”; “I wasn’t
lying. When you’re done here today, you’re leaving”; “You’re not going to jail. Aren’t
you going to work when you leave here?”; “you’re leaving when you’re done here
today.” Additionally, the polygraph advisement form expressly told defendant he was
under no obligation to make any statements: “I acknowledge that I have been advised by
the undersigned witness [Detective Killip] of my right to consult an attorney now and
throughout all further proceedings in this case and of my right to remain silent.” (See fn.
10, ante., italics added.) Our state’s high court has found a similar polygraph advisement
to be significant in the Miranda custody analysis, stating: “Most important, defendant
signed a statement that told him that the interview was voluntary” and “[a] reasonable
person in defendant’s position, knowing that he or she need say nothing at all, would
understand that he or she would do the examiner a favor by offering to leave rather than
wasting the examiner’s time by sitting mute.” (Ochoa, supra, 19 Cal.4th at p. 402.)
Indeed, the advisement here cuts more against a finding that the interview was custodial
than in Ochoa. Not only did the form used here advise that taking the polygraph was
33
voluntary, but it also told the defendant he had right to counsel and the right to remain
silent “now and throughout all further proceedings in this case.”21
Up until the time Lawrie expressed discomfort in letting defendant leave because
of his suicidal mental state, nothing the detectives did or said nullified what they had told
him about being free to terminate the questioning and leave. Under the circumstances of
this case, an objectively reasonable person would have understood he was not in custody
or a restraint tantamount to arrest, especially when similar statements about being free to
leave were made to him in the previous month and he was, at that time, allowed to leave.
These circumstances significantly cut against a finding of Miranda custody.
d. Awareness of Ability to Terminate the Interview
The court in Aguilera, indicated that whether the person’s conduct indicated an
awareness of the ability to terminate the interview is a factor to be considered. (Aguilera,
supra, 51 Cal.App.4th at p. 1162.) This is not an objective circumstance and seems
inconsistent with the high court’s pronouncement that the determination of custody
depends on the objective circumstances of the interrogation and not the subjective views
of the person being questioned. (Stansbury, supra, 511 U.S. at p. 323.) Factoring in this
circumstance “ ‘ “place[s] upon the police the burden of anticipating the frailties or
idiosyncrasies of every person whom they question,” ’ ” something the high court sought
to avoid by declaring that the test is an objective one. (Yarborough, supra, 541 U.S. at
p. 662.) It would seem that the appropriate consideration is whether a reasonable person
21 The advisement in Ochoa was as follows: “ ‘I, Lester R. Ochoa, do hereby agree to
submit myself to an instrumental detection of deception examination. The polygraph
examiner in this case is D.R. Hooker. [¶] I am taking this examination freely and
voluntarily, and without any promise of reward or immunity, and without any force
(mental or physical), or threat of any force. [¶] I clearly understand that I am not
required to make any statements relative to this case.’ ” (Ochoa, supra, 19 Cal.4th at
p. 402.)
34
under the circumstances would have had an awareness of the ability to terminate the
interview, not whether defendant actually did.
Defendant contends it is relevant that at certain times he expressed the belief or
suspicion that he would be arrested and jailed: “ ‘I don’t feel like – like trying to run out,
then the detective just tackles me down’ ”; “ ‘Today’s the last day that I will ever be free’
”; “ ‘Yeah, I’m ready to go to jail.’ ” But to each statement, Killip corrected defendant.
When defendant made the statement about the detective tackling him if he left, Killip told
defendant, “No, no, no. That’s not how it’s gonna to be. . . Like I said, this is a
voluntary test, you are not under arrest. When we’re done, you’re leaving.” (Italics
added.) After defendant made the statement about it being the last day he would be free,
Killip told defendant, “Okay. Let me explain. I wasn’t lying. When you’re done here
today, you’re leaving.” (Italics added.) After defendant said he was ready to go to jail —
a statement that, based on the circumstances and the way it was said, suggests to us that
defendant was feeling contrite and remorseful — Killip told defendant, “You’re not going
to jail,” and then asked, “Aren’t you going to work when you leave here?” Defendant has
not explained why a reasonable person under the circumstances would have considered
their situation to be tantamount to arrest given Killip’s statements and we see no reason
why that would be the case.
Moreover, there were times when defendant made statements indicating he did not
view his situation as being tantamount to arrest and that he believed he would be going
home after talking with the detectives. In this regard, defendant’s understanding mirrors
that of a reasonable person under the circumstances.
After making admissions, defendant stated that “when I go home,” one of his
brothers “gonna go an ape shit” and his family would not trust him. (Italics added.) He
stated, “So if I leave, I cannot go home and hang myself, huh?” (Italics added.) When
Killip asked him about going to work after they were done at the police station, he
responded by saying he had to tell his mom what he had done and “[s]he’s gonna make
35
me walk home.” (Italics added.) Before concluding with defendant, Killip expressly told
defendant, “But you’re leaving when you’re done here today.” (Italics added.)
Defendant responded, “Until they get a warrant on me” — a statement that suggests
defendant did not believe he was under arrest, but might be arrested sometime in the
future. Later, when talking to his mother, defendant said to her, “if I was to go home with
you, I would have done something to where [M.] and [D.] would have felt responsible for
causing me to kill myself.” (Italics added.) On this record, it appears defendant did not
view his situation as tantamount to an arrest and he believed he would be going home
after talking with the police, even though he had made admissions. We view this belief
as being consistent with that of a reasonable person under the circumstances.
e. Restrictions on Defendant’s Movement
There were no apparent restrictions on defendant’s movement during the
interview, save for the time period he was hooked up to the polygraph. He was not
handcuffed during the interviews with Killip or Lawrie. When he entered the interview
room each time, the video recordings show defendant taking a seat under his own power.
This circumstance cuts against a finding of custody.
f. Length of the Interviews
We find the length of the interviews here to be insignificant as to the question of
Miranda custody. All total, the amount of time defendant spent with Killip was only
approximately two hours. As we previously noted, most of the interview consisted of
pretest questions. We need not go over that portion of the interview or the administration
of the test, because defendant asserts the interview became custodial when he admitted
complicity.
Defendant first admitted molestation conduct to Killip at 8:54 a.m. and first
mentioned hurting himself at 8:57 a.m. He exited the room with Lawrie at 9:08 a.m.
Questions by Killip during this 14 to15 minute period were open ended, the tone was
conversational and sympathetic and consisted mostly of defendant talking. We conclude
36
that the time defendant spent with Killip does not cut in favor of a finding of Miranda
custody.
Lawrie interviewed defendant for approximately 15 minutes and then went to look
for defendant’s mother. After defendant had written the apology letter while they were
waiting for his mother to return to the police station, Lawrie came back in and read his
letter aloud. Thereafter, he told defendant he had talked to his supervisor and did not feel
comfortable letting defendant go home. As we have said, defendant was in custody for
purposes of Miranda at this point. Thereafter, they spoke for six minutes before Lawrie
left again. Lawrie returned with defendant’s mother and during the next seven minutes,
at defendant’s earlier suggestion (“I think she should come and hear what I have to say in
front of you”), he admitted molesting M. and D. to her and Lawrie explained to
defendant’s mother that defendant would be arrested. Lawrie left again. While Lawrie
was gone, defendant and his mother spoke alone for a little more than 20 minutes. When
Lawrie returned, he Mirandized defendant and interviewed him for 33 minutes.
The length of time here does not cut in favor of a finding of Miranda custody.
g. Number of Officers Present
During each of the interviews, there was only one officer present. This was not a
situation where multiple officers outnumbered defendant, enhancing the police-
dominated environment. This circumstance does not cut in favor of a finding of Miranda
custody.
h. Nature of the Questioning22
“Miranda warnings are not required ‘simply because . . . the questioned person is
one whom the police suspect.’ [Citation.] While the nature of the police questioning is
22Under this subheading, we consider, among other things, the factors related to whether
police manifested a belief defendant was culpable and they had evidence to prove it and
whether the police were aggressive, confrontational, and/or accusatory, whether the
37
relevant to the custody question, police expressions of suspicion, with no other evidence
of a restraint on the person’s freedom of movement, are not necessarily sufficient to
convert voluntary presence at an interview into custody.” (Moore, supra, 51 Cal.4th at
p. 402.) In discussing this circumstance, the Potter court noted that the detectives there
“clearly indicated to defendant that he was suspected of having molested his daughter,
[and] defendant had two weeks to contemplate the decision to come to the police station
to speak to police and undergo a polygraph examination. He voluntarily chose to do so.”
(Potter, supra, 66 Cal.App.5th at p. 541.) The same can be said here — the detectives
told defendant about the allegations his nieces had made, and he had more than a month
to contemplate his decision to voluntarily come to the police station for a polygraph after
a detective first told him about those allegations. (Ibid.)
The Potter court observed that the original detective’s interview “was not
particularly intense or confrontational.” (Potter, supra, 66 Cal.App.5th at p. 542.) The
same can be said about both detectives here. As noted, the tone of both detectives here
was casual and conversational, and, at times, sympathetic and consoling. In Potter, the
panel agreed with the trial court’s description of the defendant’s interview by the
polygrapher detective as “more like a ‘therapy session’ than a typical interrogation.”
(Ibid.) In many ways, the same can be said here. The detectives were obviously
concerned about defendant’s mental state and made numerous efforts to divert his
thoughts away from committing suicide.
The detectives here did not dominate or control the conversation in a way that
would cause a reasonable person to believe his situation was tantamount to arrest. Much
of defendant’s discussion was narrative. The non-dominating tone of the Lawrie
interview is illustrated by several things defendant did during the interview. As noted,
police dominated the interview, as well as, arguably, whether the express purpose of the
interview was to question the person as a witness or a suspect and whether police used
interrogation techniques to pressure defendant.
38
defendant initially said he did not feel like writing an apology letter and Lawrie replied,
“okay, no problem.” On one occasion, defendant corrected Lawrie.23 On another
occasion defendant made a joke.24 On another occasion, defendant stopped Lawrie from
interrupting him.25
This case is unlike Saldana, supra, 19 Cal.App.5th 432, upon which defendant
relies.26 The Saldana court noted that, after the interrogating detective told the defendant
23 At one point, Lawrie asked, “You said D. touched your penis with her hands, but not
with her mouth, or did she touch it with her mouth too?” Defendant replied, “I never said
that D. touched my penis.” That was true; he had not said that. Lawrie said, “My
mistake, that was just M.” Defendant said, “Yes.”
24 At one point after defendant had confessed, defendant volunteered, “would you like
me to call you Detective Lawrie?” Lawrie responded you can call me anything you like,
“just don’t call me late for dinner.” Defendant replied, “I’m sorry. I’m not serving your
favorite dish tonight.” They both chuckled.
25 During the post-Miranda interview, Lawrie asked defendant about S. After defendant
denied that anything happened between the two, Lawrie made the only accusatory
statement he made during the interview and told defendant he thought something did
happen with S. based on what M. and D. had said. Defendant said, “Well we never really
did anything, you know, like. . .” Lawrie interrupted and defendant interrupted Lawrie
saying, “Hold on, I’m saying right now if you listen to me.” Lawrie apologized for
interrupting, telling defendant politely, “I’m sorry. I’m sorry.” Thereafter, defendant
went on to say he and S. never did anything “sexual,” but he did touch her breasts and
rubbed her vagina outside her clothes.
26 Defendant asserts the Saldana court held that the defendant’s question, “What’s going
to happen to me?” indicated he was not free to leave, citing Saldana, supra, 19
Cal.App.5th at page 441. But the Saldana court did not say that at the cited page or any
other page in its opinion. Defendant further asserts, focusing on Lawrie mentioning the
potential future event of the prosecutor’s review and charging decision, that the court in
Saldana “recognized that threats that a suspect might be arrested later undermine claims
that a current interrogation is voluntary.” But the Saldana court stated such statements
did not make the setting custodial. The court wrote: “At the outset, [the detective] told
Saldana, ‘[Y]ou’re not under arrest,’ and ‘You can leave when you want.’ Saldana
acknowledged this and even said, ‘I agree.’ However, after telling Saldana he was free to
leave, the detective said, “Um, we’re not going to arrest you right now”—suggesting that
39
he was not under arrest and could leave when he wanted, the interrogation became
“persistent, confrontational and accusatory.” (Id. at p. 437.) The detective repeatedly
told the defendant he did not believe his denials and that he was not telling the truth. (Id.
at p. 462.) The court wrote: “[I]n light of the detective’s repeated rejection of Saldana’s
denials, a reasonable person in Saldana’s position eventually would have realized that
telling the ‘truth’ meant admitting the detective’s information was correct—and that until
this ‘truth’ came out, the person could not leave.” (Id. at p. 458.) The Saldana court
reasoned that, compared to the circumstance that the defendant was interrogated by only
one officer, the “more significant factor” was “the nature of the questioning, the character
and quality of the interaction between law enforcement and the person being
interrogated.” (Id. at p. 463.) The court held: “[W]hen police create an atmosphere
equivalent to that of formal arrest by questioning a suspect who is isolated behind closed
doors in a police station interrogation room, by repeatedly confronting him with the
evidence against him, repeatedly dismissing his denials, and telling him at the outset he is
free to leave—when all the objective circumstances later are to the contrary—Miranda is
triggered.” (Id. at p. 438.)
That is not what happened here. While it was made clear to defendant from the
first interview that his nieces had made accusations against him, the detectives did not
“confront” him with this evidence in the way referenced in Saldana. Nor did they
dismiss his denials or try to convince him they could prove the allegations against him.
In our view, there was nothing about the tone or tenor of the questioning here that would
have caused a reasonable person in defendant’s position to have believed he was in a
Saldana might well be arrested later. [¶] Telling Saldana he was not under arrest and
was free to leave indicates the beginning of the interrogation was not custodial. [¶] Even
with the somewhat ominous—you will not be arrested ‘right now’—a reasonable person
would have felt free to walk right out the door.” (Saldana, at p. 457.)
40
situation tantamount to arrest prior to Lawrie telling defendant he was not comfortable
letting him leave because he seemed suicidal.
i. Post-statement Arrest
Unlike the defendant in Potter, who was allowed to leave the police station after
his interviews with the police, defendant here was arrested at the police station.
Superficially, this circumstance would appear to cut in favor of a finding of Miranda
custody. But close examination of the evidence reveals defendant would not have been
arrested had he not repeatedly expressed suicidal ideations. Lawrie told defendant he did
not feel comfortable letting defendant go for that reason. And Lawrie told defendant’s
mother in front of defendant that defendant’s talk of suicide was the reason he was being
arrested: “the reason he’s gonna go to jail today is because [he] feels he’s gonna kill
himself . . . and he’s told me that several times. He’s told the other officer that and our
concern is for [defendant] cause we don’t want him to harm himself. . . . So in his safety
right now, he’s gonna go to jail.”
Nothing in the evidence suggests the detectives would not have honored their
earlier commitment to allow defendant to go home that day no matter what admissions he
made — just as the detective did in Potter — had defendant not expressed the desire to
take his own life. The evidence simply does not establish that the officers did or said
anything that would cause a reasonable person, aware of all the circumstances, to feel he
was in a situation tantamount to arrest up until being told he would be detained because
of his expressed suicidal ideations.
Under the circumstances presented here, we conclude that this circumstance does
not cut in favor of a finding of Miranda custody.
3. Miranda Custody Conclusion
As the court in Aguilera noted: “No one factor is dispositive.” (Aguilera, supra,
51 Cal.App.4th at p. 1162.) Rather, courts “look at the interplay and combined effect of
all the circumstances to determine whether on balance they created a coercive atmosphere
41
such that a reasonable person would have experienced a restraint tantamount to an
arrest.” (Ibid., italics added.) We have done that here and have considered the
circumstances “as a whole.” (Pilster, supra, 138 Cal.App.4th at p. 1403.) We conclude
that, based on the totality of the circumstances, a reasonable person would not have
experienced a restraint tantamount to arrest.
Accordingly, the trial court did not err in concluding defendant was not in
Miranda custody up to the point Lawrie told defendant he did not feel comfortable letting
him go because of his expressed thoughts of suicide. As we discuss post, the admission
of statements defendant made after that, but before he was Mirandized, was harmless
beyond a reasonable doubt.
H. The Post-Miranda Statements
Defendant’s sole Miranda argument on appeal is that he was in Miranda custody
after he admitted complicity during his interview with Killip. He does not challenge the
admissibility of the post-Miranda statements based on Seibert, supra, 542 U.S. 600, as
the product of a deliberate two-step interrogation technique, as he did in the trial court.
Defendant has abandoned this argument on appeal. Consequently, any such argument is
forfeited. (People v. Rundle (2008) 43 Cal.4th 76, 121 (Rundle), disapproved on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 412, fn. 22 [a defendant who does not
raise issues on appeal raised in the trial court waives them]; Jones v. Jacobson (2011) 195
Cal.App.4th 1, 19, fn. 12 [“issues and arguments not addressed in the briefs on appeal are
deemed forfeited”].)
It is defendant’s responsibility to establish error on appeal. (Del Real v. City of
Riverside (2002) 95 Cal.App.4th 761, 766 [“It is the appellant’s burden to demonstrate
the existence of reversible error”].) He has offered no compelling reason why the
statements he made to Lawrie after he was Mirandized should not have been admitted.
Consequently, we conclude the trial court did not err in admitting the statements
defendant made after he was Mirandized and indicated he understood each of the
42
Miranda rights. (See Berghuis v. Thompkins (2010) 560 U.S. 370, 384-385, 388 [176
L.Ed.2d 1098] [where the prosecution shows a Miranda warning was given and
understood by the accused, an accused’s uncoerced statement establishes an implied
waiver].)
As we discuss below, even if it was error to admit defendant’s statements made
during the post-Miranda portion of Lawrie’s interview, any error was harmless.
I. Harmless Error
We assess whether allowing evidence of statements taken in violation of Miranda
is harmless by applying the harmless beyond a reasonable doubt standard. (Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]; People v. Davis (2010) 46 Cal.4th
574, 598 [Chapman standard applies to Miranda error].)
As we recently observed, “Under Chapman, ‘[t]he reviewing court must reverse
the conviction unless, after examining the entire cause, including the evidence, and
considering all relevant circumstances, it determines the error was harmless beyond a
reasonable doubt.’ [Citation.] Under Chapman, the People must show ‘beyond a
reasonable doubt that the error complained of did not contribute to the verdict obtained.’
[Citation.] ‘ “To say that an error did not contribute to the ensuing verdict is ... to find
that error unimportant in relation to everything else the jury considered on the issue in
question, as revealed in the record.” ’ [Citation.] In other words, the Chapman harmless
error inquiry asks: ‘ “Is it clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error?” ’ [Citations.] Since Chapman, our high
court has ‘ “repeatedly reaffirmed the principle that an otherwise valid conviction should
not be set aside if the reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt.” ’ ” (People v. Powell
(2021) 63 Cal.App.5th 689, 715 (Powell).)
The statements defendant made between the point when Lawrie told defendant he
did not feel comfortable letting defendant go home and when defendant was Mirandized
43
added little to the statements defendant made during the noncustodial portion of the
interview. As for the statements defendant made post-Miranda, they were essentially a
recapitulation of what he said during the non-custodial part of the interview, although
additional detail, e.g., the number of molestations, was provided. Given the other
evidence the jury heard, we conclude that the error in introducing the custodial statements
and any error regarding the statements made post-Miranda was harmless beyond a
reasonable doubt.
The other evidence included the unchallenged admissions defendant made to his
mother that he touched and licked the victims’ vaginas. This evidence was devastating.
Defendant completely ignores these admissions in his argument for prejudice.
Moreover, on appeal, defendant does not identify any problems with the victims’
testimony or problems with the other evidence that corroborated their accounts of
defendant’s molestations. In his opening brief, defendant only attempts to minimize the
significance of this testimony by asserting that it was “merely the ‘some evidence’ to
corroborate [defendant’s] out-of-court statements required by the corpus delicti rule.” In
his reply brief he simply argues his confession was “the cake” and the testimony of the
victims was “the icing,” and “the icing” would not have been sufficient to support a
conviction. We disagree. We view the testimony of the victims as being equally
devastating to the statements defendant made to his mother. And defendant completely
ignores evidence from the victims’ grandmother that helped corroborate the victims’
testimony about the molestations. Given the combination of this evidence, the error in
admitting the un-Mirandized custodial statements and any error related to the post-
Miranda statements is harmless beyond a reasonable doubt.
M. testified about multiple molestations defendant perpetrated upon her beginning
when she was in the third grade. The sexual acts included regular acts of oral copulation
by defendant upon her and at least one act of touching her vagina with his hand. The acts
occurred in defendant’s bedroom, including inside defendant’s walk-in closet. She
44
testified she noticed pictures of adult blond females on his computer in skimpy clothing
and further testified that defendant told her those women reminded him of her. He told
her he would cut his stomach if she refused his advances. And he told her “they’ll keep
us three football fields away from each other” if she told anyone about the molestations.
She kept the molestations a secret because she feared she would be removed from the
house and leave her stepbrother and stepsister, D., “vulnerable.”
D. testified that defendant touched her vagina multiple times, with his hand,
tongue, mouth, and penis. He licked her private part. He touched her while she was
watching her favorite movie, Daddy Daycare. He rubbed his penis on her private area.
All of the incidents happened in defendant’s room on his bed. At the forensic interview,
she also stated that defendant put his “straight” “pee-pee” in front of her face while she
was watching Daddy Daycare.
The victims’ maternal grandmother testified defendant’s job was to take care of
the children. She went on to testify about incidents involving defendant. On one
occasion, when she picked up the children for the weekend, defendant stood by the front
of the car where M. was seated. He was staring into the car and his arms were folded.
M. did not look at defendant. She looked straight ahead like she had “tunnel vision.”
The grandmother later asked M. whether defendant was mad at her, and M. only replied,
“it’s okay.” When it came time to take the children home at the end of the weekend, M.
cried and begged the grandmother not to take her back. The grandmother prodded M. for
a reason, but M. would not say anything.
The grandmother also testified that, around Christmas in 2010, defendant visited
her home, where M. was then living. She saw defendant and M. in the girls’ bedroom,
facing each other. M. was on the bed and defendant was sitting in a chair. His hands
were on M.’s upper leg, between her knee and thigh. M’s foot was on defendant’s knees.
He was moving both his hands on M.’s thigh. The grandmother got a “sick gut feeling.”
She told M. to come help her with something in the garage. She asked M. if “Uncle Tony
45
ever hurt [her].” M. was “immediately flushed red” and she had an expression on her
face like “a deer in headlights. Like I just got found out.” She disclosed that defendant
had been touching her inappropriately, but she did not give details.
On cross-examination, the grandmother was asked if she ever asked the other
children whether anything had happened to them. One of the boys told her Uncle Tony
did not like boys, he only liked little girls. He also told her that defendant watched
pornography in his bedroom.
On the day after Thanksgiving in 2011, D. told her grandmother defendant rubbed
his private parts on hers. D. also told her that on one occasion D. opened defendant’s
bedroom door and saw defendant “hurting M. like he hurts [her.]”
Defendant argues that the prosecutor relied on his statements to Lawrie during
closing argument. Courts look to the prosecutor’s argument as a relevant circumstance in
determining whether an error is harmless. (Powell, supra, 63 Cal.App.5th at p. 715
[instructional error].) But here, as we have held, portions of defendant’s statements were
admissible. The prosecutor’s arguments by and large did not include much that was
substantively different from what defendant said before Lawrie told defendant he was not
comfortable letting defendant go. As for the things defendant said post-Miranda not
included in the non-custodial statements defendant made earlier, such as his specific
estimation of the number of times he molested the victims and his reference to his
perverted thoughts, those statements were inconsequential given the other evidence, so
any error in admitting these statements was also harmless.
Having examined the entire cause, including the totality of the evidence, and
having considered all relevant circumstances, we conclude that a rational jury would have
found defendant guilty absent the custodial, non-Mirandized portion of the Lawrie
interview we have concluded was inadmissible. (See Powell, supra, 63 Cal.App.5th at
p. 718.) We conclude the same concerning the post-Miranda statements, assuming their
admission was erroneous. Any error here was “ ‘unimportant in relation to everything
46
else the jury considered on the issue’ ” of defendant’s guilt. (See ibid.) Consequently,
the error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24;
Powell, at p. 718.)
J. Voluntariness Claim
On appeal, defendant argues for the first time that his confession was involuntary
apart from Miranda. He argues that Killip employed deceptive tactics during the
polygraph that rendered defendant’s statement involuntary.
A defendant ordinarily forfeits a voluntariness claim that was not raised below.
(People v. Williams (2010) 49 Cal.4th 405, 435; People v. Ray (1996) 13 Cal.4th 313,
338-339.) Similarly, a defendant’s failure to object on the grounds that statements were
coerced forfeits such a claim on appeal. (People v. Kennedy (2005) 36 Cal.4th 595, 611-
612, overruled on other grounds in Williams, at pp. 458-459.) When defendant failed to
raise these issues, “the parties had no incentive to fully litigate this theory ... and the trial
court had no opportunity to resolve material factual disputes and make necessary factual
findings.” (Ray, at p. 339; see also People v. Quiroz (2013) 215 Cal.App.4th 65, 78
[“Because the question of coercion turns on the intensely factual inquiry into the totality
of the circumstances [citation], it is an especially poor candidate for first-time
consideration on appeal”].)27
27 Here, there was evidence not admitted at the Miranda hearing related to the
communications before the May 2 interview and the communications between that
interview and the June 12 interviews. For example, during the June 12 interview, Lawrie
said to defendant, “you’ve been askin’ me to take a . . . polygraph exam,” a statement
defendant did not refute. There was no evidence introduced indicating when defendant
had been asking to take the polygraph, specifically what he said and what was said to
him, how many occasions this occurred or the circumstances under which defendant’s
requests had been made. This is the kind of evidence one would expect to have been
introduced if defendant made a voluntariness challenge based on coercion, because if
defendant was desirous of taking the polygraph before he met with Killip, that evidence
undermines any notion that what Killip said to him was coercive. There was also
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All of defendant’s argument headings in his written motion cited Miranda, and all
of the arguments under those headings addressed only Miranda.28 None of his arguments
in the text of the motion asserted that any of the statements were involuntary or advanced
a due process argument for suppressing them, let alone any specific theory of
involuntariness. Nor did defendant claim that his statements were involuntary in oral
argument during the hearing on the Miranda motion. (See Rundle, supra, 43 Cal.4th at
pp. 122–123 [defendant’s claim on appeal that his statements were involuntary because
of the “ ‘extensiveness of the interrogations’ ” was forfeited because it was not made in
the trial court]; People v. Polk (2010) 190 Cal.App.4th 1183, 1194 (Polk) [“unless a
defendant asserts in the trial court a specific ground for suppression of his or her
statements to police under Miranda, that ground is forfeited on appeal, even if the
defendant asserted other arguments under the same decision”].)
potential evidence concerning conversations that may have taken place between law
enforcement and defendant at the police station just prior to Killip’s interview and
conversations that may have taken place between Killips’ interview and Lawrie’s. It was
also unclear how defendant arrived at the police station on June 12, other than he got
there on his own, and how long his mother was there. And it is possible the prosecution
would have introduced testimony to address defendant’s coercive police tactics theory of
involuntariness raised the for the first time here on appeal.
28 The substantive argument headings in defendant’s written Miranda motion are as
follows: “I. UPON MOTION BY THE DEFENSE, THE BURDEN IS ON THE
PROSECUTION TO PROVE THAT A STATEMENT IS ADMISSIBLE UNDER
MIRANDA”; “II. THE DEFENDANT’S STATEMENT TAKEN PRIOR TO HIS
FORMAL ARREST WAS IN VIOLATION OF MIRANDA V. ARIZONA BECAUSE
THE DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION AND
NO FIFTH AMENDMENT WARNINGS WERE GIVEN OR WAIVER TAKEN”; “III.
THE DEFENDANT WAS IN CUSTODY FOR PURPOSES OF MIRANDA PRIOR TO
HIS FORMAL ARREST”; and “IV. THE DEFENDANT’S STATEMENT TAKEN
AFTER HIS FORMAL ARREST WAS OBTAINED IN VIOLATION OF MIRANDA V.
ARIZONA BECAUSE THE DELAYED POST-CONFESSION WARNING WAS
INEFFECTIVE.”
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Defendant argues against forfeiture in his reply brief, but ignores the above
authorities. Instead, he relies on People v. Avena (1996) 13 Cal.4th 394, which is
inapposite. Avena involved a claim of ineffective assistance of counsel grounded on the
assertion that counsel did not object to the admissibility of a confession on voluntariness
grounds. (Id. at pp. 419-420.) Our high court concluded that trial counsel had made such
an objection. The defendant testified at an Evidence Code section 402 hearing on the
admissibility of the statement that he had been beaten by the police. (Ibid.) In rejecting
the defendant’s claim that the objection had not been made, our high court noted: “When
making his motion to suppress, counsel noted there were ‘several reasons’ why the court
should decide to suppress defendant’s statements, including failing to read the Miranda
rights, failure to respect defendant’s alleged request for an attorney, and ‘[o]f course,
there is the beating aspect.’ ” (Id. at p. 420.) Our high court concluded that: “[a]lthough
an inartful articulation of the claim that the statements were involuntary as the alleged
product of a physical assault, counsel’s reference to the ‘ “beating aspect” ’ fairly raised
the issue.” (Ibid.) Even if Avena had application in the context of forfeiture (the more
recent authorities cited ante suggest it does not), defendant points to nothing in his
written motion or his oral argument on the motion that fairly raised any claim of
involuntariness, and we have found nothing that did so.
Defendant points to the trial court’s written ruling in which it stated:
“ ‘Defendant’s statements were uncoerced, voluntary, and not the product of a custodial
interrogation.’ ” Defendant suggests that the trial court understood he was making an
argument that his statements were coerced and involuntary and ruled accordingly.
However, the fact remains that defendant never made a coercion-involuntariness
argument in writing or orally on-the-record; nor did the trial court’s finding suggest that
he did. Moreover, the prosecution was thus never tasked with the responsibility of
meeting this fact-specific due process claim, including the purported coercive
interrogation tactics defendant belatedly complains about on appeal; nor was the trial
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court asked to issue a ruling on due process grounds about these tactics. Allowing an
argument on appeal not advanced in the trial court is unfair not only to the trial judge, but
also to the adverse party. (Polk, supra, 190 Cal.App.4th at p. 1194, quoting People v.
Saunders (1993) 5 Cal.4th 580, 589-590 [one explanation for the forfeiture rule “is
simply that it is unfair to the trial judge and to the adverse party to take advantage of an
error on appeal when it could easily have been corrected at the trial”].)
Here, the trial court made its ruling based on the recorded interviews and
transcripts. Other evidence that might have been admitted to establish voluntariness,
including evidence specific to the claim of coercive tactics, was not introduced because
the theory defendant raises on appeal was not raised in the trial court. (See fn. 27, ante.)
As noted, to preserve a confession suppression theory for appeal, a defendant must assert
that specific theory in the trial court. (See Rundle, supra, 43 Cal.4th at pp. 122–123;
Polk, supra, 190 Cal.App.4th at p. 1194.)
Because defendant’s motion in the trial court was grounded only on Miranda, he
has forfeited his involuntariness claim as a separate basis for suppressing his statements.
*****
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DISPOSITION
The judgment is affirmed.
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
DUARTE, J.
 Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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