People v. Thomas CA5

Filed 10/19/21 P. v. Thomas CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079202
Plaintiff and Respondent,
(Super. Ct. No. F17903402)
v.
STERLING WAYNE THOMAS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Rachelle
Newcomb, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Snauffer, J. and DeSantos, J.
THE COURT
Appellant Sterling Wayne Thomas was convicted by jury of assault with a
1
semiautomatic firearm (Pen. Code, § 245, subd. (b)). The jury also found true an
enhancement alleging Thomas had personally used a firearm in the commission of the
offense (§ 12022.5, subd. (a)). He was sentenced to a term of 6 years in state prison. On
appeal, Thomas contends the trial court erred by failing to suppress statements he made
to police in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We affirm.
PROCEDURAL HISTORY
On November 9, 2017, the Fresno County District Attorney’s Office filed an
information charging Thomas with assault with a semiautomatic firearm (§ 245, subd.
(b)). The information further alleged Thomas had personally used a firearm in the
commission of the offense (§ 12022.5, subd. (a)).
On January 2, 2019, at a pretrial hearing, the trial court ruled that post-Miranda
statements made by Thomas during his interrogation were inadmissible because Thomas
had invoked his right to remain silent.
On January 3, 2019, the prosecutor filed a motion for reconsideration of the trial
court’s ruling. Defense counsel filed an opposition to the People’s motion.
On January 7, 2019, after consideration of the parties’ motions, the trial court
reversed its prior ruling and held Thomas’s statements were admissible.
On January 10, 2019, Thomas was convicted by jury of the charged offense and
the firearm enhancement allegation was found true.
On April 12, 2019, Thomas was sentenced to an aggregate term of six years in
state prison.
On April 26, 2019, Thomas filed a timely notice of appeal.
1 All undefined statutory citations are to the Penal Code unless otherwise indicated.
2.
STATEMENT OF FACTS
The Trial
Prosecution’s Case
On May 30, 2017 at approximately 8:00 p.m., Thomas invited Jason Broyles into
his home to play video games and drink alcoholic beverages. Thomas and Broyles were
acquaintances and neighbors.
During the course of the evening, Broyles and Thomas had several drinks and
consumed marijuana. As Thomas became intoxicated, he became aggressive. Following
a heated discussion over prison politics, a verbal altercation ensued between Broyles and
Thomas. As Broyles was speaking with Thomas’s mother, he heard Thomas yell, “ ‘I’m
going to f-ing kill you.’ ” When Broyles turned to look at Thomas, he observed Thomas
pointing a .25-caliber semiautomatic handgun at him. Broyles threw up his hands up and
asked Thomas what he was doing. Thomas shot Broyles in the arm.
Defense’s Case
Thomas’s mother Deborah, with whom Thomas lived at the time of the shooting,
testified at trial. Deborah claimed Broyles was preparing to leave the home around 10:00
p.m. when Thomas told Broyles, “ ‘Don’t ever disrespect my mom.’ ” Thomas was
pointing a gun at Broyles.
Deborah told Thomas to put the gun down. Thomas lowered the gun but kept it by
his side. Broyles and Thomas stared at one another for several minutes. Deborah told
Broyles, “ ‘Leave, go home.’ ” Broyles turned toward the door to leave. Suddenly, he
turned back around and charged at Thomas, causing the gun to discharge.
The Interrogation
Thomas’s Statements to Detectives
Following the shooting, Thomas was handcuffed and escorted to the Fresno Police
Department for questioning. While waiting in an interview room, Crime Scene
Technician Alyssa Vargas took photographs of Thomas and swabbed his hands for
3.
gunshot residue (GSR).2 During the course of the procedure, Thomas made unprompted
statements concerning the shooting.
After approximately 10 minutes, Detective Clement and Detective Soto entered
the interview room. The following exchange occurred:
“[DETECTIVE CLEMENT]: Hey, uh, I appreciate you comin’ down here.
Uh, I’m gonna read [you] your rights.
“[THOMAS]: Well, like I told this guy, uh, you know, I didn’t have no
problem when he said, you know, ‘Come down, come down,’ because there was a
problem. And I thought my mom was the one that called the police so [that’s]
why I came down here was the situation.
“[DETECTIVE CLEMENT]: Okay. Well I’m gonna read your rights real
quick ‘cause we did bring you down here in handcuffs and all that other stuff. So
just gonna cover everything. Doesn’t mean you’re being charged with anything.
[¶ … ¶]
“[THOMAS]: You just gotta get through the formalities.
“[DETECTIVE CLEMENT]: Exactly. So …
“[THOMAS]: Which you guys haven’t done yet which I could actually call
my lawyer, uh, which you guys didn’t give me the process to do.
“[DETECTIVE CLEMENT]: Well …
“[THOMAS]: All right. I’m listenin’. I’m listenin’.
“[DETECTIVE CLEMENT]: [L]et me read [you] your rights. You have
the right to remain silent. Anything you say can and may be used against you in
court. You have the right to talk to a lawyer and have him present with you while
you’re being questioned. If you cannot afford to hire a lawyer one will be
appointed to represent you upon questioning if you wish. You understand these
rights I read to you?
“[THOMAS]: Yes sir.
2 The GSR sample was not subsequently tested by the Department of Justice
because there was no question that Thomas had fired a gun.
4.
“[DETECTIVE CLEMENT]: All right. Havin’ those rights in mind you
wanna talk to me about what happened tonight?
“[THOMAS]: Not really.
“[DETECTIVE CLEMENT]: You don’t wanna talk to me?
“[THOMAS]: Not really, I mean, it was a bad night. I mean, … I really
don’t remember much. I smoked a shit-load of wax. I have a marijuana card
so …
“[DETECTIVE CLEMENT]: Okay.
“[THOMAS]: I was kinda fucked up. And then I know what happened
which was my neighbor tried to attack me and my mother.
“[DETECTIVE CLEMENT]: Okay.
“[THOMAS]: And then I blacked out. And next thing you know I’m bein’
arrested. It’s all I gotta say.
“[DETECTIVE CLEMENT]: Okay. Uh …
“[THOMAS]: And it’s not the first time he’s tried to attack people.
“[DETECTIVE CLEMENT]: Okay.
“[THOMAS]: And he came at me and my mother. I blacked out. And the
next thing you know I’m in handcuffs and I’m wonderin’ why he wasn’t in
handcuffs.
“[DETECTIVE CLEMENT]: Uh, you don’t remember any of this? You
don’t remember what happened?
“[THOMAS]: I remember that I was outside my house. I was waterin’ my
front yard.”
The Pretrial Hearing & Motion for Reconsideration
On January 2, 2019, at a pretrial hearing (Evid. Code, § 402), the prosecutor asked
defense counsel to stipulate to the admissibility of all statements after Thomas was
admonished pursuant to Miranda. The prosecutor explained she would redact any
statements made before the Miranda warnings had been given. Defense counsel declined
5.
and lodged a general objection to the admission of any portion of the recorded
interrogation.
The trial court held Thomas’s post-Miranda statements were inadmissible, based
upon the following exchange:
“[DETECTIVE CLEMENT]: ‘All right. Having those rights in mind, do you want
to talk to me about what happened tonight?
“[THOMAS]: ‘Not really.’
“[DETECTIVE CLEMENT]: ‘You don’t want to talk to me?’
“[THOMAS]: ‘Not really. It was a bad night. I mean, I really don’t remember
much. I smoked a shit-load of wax. I have a marijuana card, so.’ ”
According to the trial court, Thomas’s statements did not represent a valid waiver
of his right to remain silent. The trial court added that while Thomas’s post-Miranda
statements were not admissible, they could still be used for impeachment purposes.
On January 3, 2019, the prosecutor filed a motion for reconsideration of the trial
court’s ruling. According to the prosecutor, Thomas did not unambiguously invoke his
Miranda rights during the interrogation. Defense counsel filed a motion in opposition.
Following argument by the parties, the trial court reversed its previous ruling and
held Thomas’s statements were admissible. The trial court analyzed the interrogation in
two parts.
The first part of the interrogation occurred when the crime scene technician took
Thomas’s photographs and collected a gunshot residue sample from Thomas. While this
interaction occurred within a custodial setting, Thomas’s statements during this portion of
the interrogation were voluntary and unprompted by questioning from law enforcement.
The trial court further observed that statements made during the booking process are not
generally subject to Miranda. This portion of the interrogation was analogous to the
booking process. Thomas’s unsolicited statements during this portion of the interrogation
were therefore admissible.
6.
The second portion of the interrogation occurred when Detective Clement and
Detective Soto began questioning Thomas. Almost immediately after Detective Clement
entered the interview room, he told Thomas he was going to admonish him of his
Miranda rights. Thomas replied, “Which you guys haven’t done yet which I could
actually call my lawyer, uh, which you guys didn’t give me the process to do.” This
statement—which was never followed by a clear and unambiguous invocation of
Thomas’s right to counsel—demonstrated that Thomas understood his rights. Thomas
reaffirmed that he understood his rights after Detective Clement provided a complete
Miranda advisement, and asked Thomas whether he understood his rights. Thomas
responded clearly and unequivocally, “ ‘Yes sir.’ ”
When Detective Clement asked Thomas whether he wanted to speak with him,
Thomas responded, “ ‘Not really.’ ” According to the trial court, Thomas’s response was
ambiguous. When Detective Clement asked Thomas, “ ‘You don’t wanna talk to me?’ ”
he was attempting to clarify Thomas’s response. Thomas replied, “Not really, I mean, it
was a bad night. I mean, … I really don’t remember much. I smoked a shit-load of wax.
I have a marijuana card so …” Thomas proceeds to make a series of statements to
Detective Clement concerning the shooting. Thomas’s statements were not in response
to questioning or interrogation. He began to voluntarily discuss the shooting, and at no
point thereafter did he make any attempt to invoke his Miranda rights. Thomas’s
statements were therefore admissible.
At trial, a recording of Thomas’s confession was played for the jury. Defense
counsel did not lodge a timely and specific objection when this evidence was offered.
DISCUSSION
“Under California law, issues relating to the suppression of statements made
during a custodial interrogation must be reviewed under federal constitutional standards.”
(People v. Nelson (2012) 53 Cal.4th 367, 374.)
7.
In Miranda, the United States Supreme Court held that to protect the federal
constitutional right against self-incrimination, “any person who is suspected or accused of
a crime and who has been taken into custody or otherwise restrained may not be
interrogated by the police unless he [or she] first knowingly and intelligently waives his
[or her] right to silence, to the presence of an attorney, and to appointed counsel if
indigent.” (People v. Ray (1996) 13 Cal.4th 313, 336.)
“The Miranda rule and its requirements are met if a suspect receives adequate
Miranda warnings, understands them, and has an opportunity to invoke the rights before
giving any answers or admissions. Any waiver, express or implied, may be contradicted
by an invocation at any time. If the right to counsel or the right to remain silent is
invoked at any point during questioning, further interrogation must cease.” (Berghuis v.
Thompkins (2010) 560 U.S. 370, 387-388.)
“In order to invoke the Fifth Amendment privilege after it has been waived, and in
order to halt police questioning after it has begun, the suspect ‘must unambiguously’
assert his right to silence or counsel. [Citation.] It is not enough for a reasonable police
officer to understand that the suspect might be invoking his rights. [Citation.] Faced
with an ambiguous or equivocal statement, law enforcement officers are not required
under Miranda, supra, 384 U.S. 436, either to ask clarifying questions or to cease
questioning altogether.” (People v. Stitely (2005) 35 Cal.4th 514, 535 (Stitely).)
The accused must therefore “articulate his desire to [remain silent] sufficiently
clearly that a reasonable police officer in the circumstances would understand the
statement to be [an invocation of the right to remain silent].” (Davis v. United
States (1994) 512 U.S. 452, 459; Berghuis v. Thompkins, supra, 560 U.S. at p. 381.) A
reviewing court may look to the conduct of the accused “before, during, and after the
statements” (People v. Jennings (1988) 46 Cal.3d 963, 978-979), to determine what “ ‘ “a
reasonable officer in light of the circumstances would have understood” ’ ” the accused’s
statements to mean. (People v. Sanchez (2019) 7 Cal.5th 14, 49 (Sanchez).)
8.
In reviewing Miranda claims, we accept the trial court’s resolution of disputed
facts and evaluations of credibility if supported by substantial evidence (People v.
Enraca (2012) 53 Cal.4th 735, 753), “ ‘but we independently decide whether the
challenged statements were obtained in violation of Miranda.’ ” (People v.
Gonzales (2012) 54 Cal.4th 1234, 1269.)
In the instant case, Thomas does not challenge the admissibility of statements he
made during the first part of his interrogation, when he was photographed and had
gunshot residue samples taken. In any event, we find no constitutional infirmity with
respect to the admission of these statements.3 Our analysis is therefore constrained to the
second part of Thomas’s interrogation, where he was Mirandized and asked questions
about the shooting.
Following our independent review of the recorded interrogation and the
accompanying transcript, we conclude Thomas did not unambiguously assert his right to
remain silent—either at the outset of the interrogation or at any point thereafter—and that
he implicitly waived his Miranda right by speaking with Detective Clement after being
informed of and expressly indicating an understanding of his Miranda rights.
After Detective Clement admonished Thomas of his Miranda rights, he confirmed
Thomas had understood his rights. Detective Clement then asked Thomas, “Havin’ those
rights in mind you wanna talk to me about what happened tonight?” Thomas replied,
“Not really.” Contrary to Thomas’s assertion, this was an ambiguous response.
Although Detective Clement was not constitutionally required to do so (Stitely, supra, 35
3 Thomas was clearly in a custodial setting even though he had not yet been
arrested. His interrogation was imminent, and as such, he was entitled to invoke
Miranda’s protections. (People v. Nguyen (2005) 132 Cal.App.4th 350, 357.) He did not
do so. At the same time, Thomas was not asked any questions by the crime scene
technician that were reasonably likely to elicit an incriminating response. All of the
statements he made during this portion of his interrogation were voluntary, unprompted,
and offered in the course of routine procedures conducted by the crime scene technician.
9.
Cal.4th at p. 535), he gave Thomas a chance to clarify his response by asking, “You don’t
wanna talk to me?” Thomas replied, “Not really, I mean, it was a bad night. I mean, … I
really don’t remember much. I smoked a shit-load of wax. I have a marijuana card
so …”
If viewed in isolation, Thomas’s responses appear to support his claim that he
invoked his right to remain silent. However, a different picture emerges when Thomas’s
statements are considered in light of the full transcript and the recording of his
interrogation.
Immediately after Thomas stated he did “[n]ot really” want to talk to Detective
Clement, he made a series of unsolicited statements about the shooting.
Detective Clement replied, “Okay” to Thomas’s statements, but he did not pose any
questions to Thomas. By the time Detective Clement asked Thomas, “[Y]ou don’t
remember any of this? You don’t remember what happened?” it had become clear that
Thomas wanted to discuss the shooting and that he was not invoking his right to remain
silent. Thomas’s assertions to the contrary are unpersuasive in light of the full context of
the record.
We further observe that Thomas’s demeanor appeared relaxed throughout the
interrogation. Although Thomas claimed he had smoked copious amounts of marijuana
wax, he spoke clearly, he was attentive, and he appeared eager to offer his version of
events. Consistent with the trial court’s ruling, he did not appear to be under the
influence of any substances which may have impaired his ability to understand the
Miranda advisement given, or the right he was waiving by continuing to discuss the
shooting. Nor does he argue as much.
Nothing in Thomas’s behavior, demeanor, or statements communicated
an unambiguous and unequivocal desire to invoke his right to remain silent. Thomas
repeatedly discussed the shooting, without prompting, even after he had purportedly
invoked his right to remain silent. Understood in context, a reasonable listener would not
10.
have understood Thomas’s statements as an invocation to invoke his right to remain
silent.
Relying upon People v. Harris (1989) 211 Cal.App.3d 640 (Harris), Thomas
contends his reply of “Not really,” when asked whether he wanted to speak to Detective
Clement, was a clear invocation of his rights under Miranda. Thomas’s reliance upon
Harris is unpersuasive.
In Harris, several days after Harris’s roommate was murdered, an investigating
officer contacted Harris and persuaded him to come back into town and straighten things
out. (Harris, supra, 211 Cal.App.3d at pp. 645.) After Harris was advised of his
Miranda rights, interrogating officers asked him if he wanted to talk. Harris responded,
“ ‘Not really.’ ” (Ibid.) One of the interrogating officers terminated the interview, turned
off the tape recorder, and had Harris indicate “ ‘No’ ” on a written waiver form. (Id. at
pp. 645-646.) As the interrogating officer prepared to leave, he told Harris he would be
booked for murder. (Id. at p. 646.) Harris appeared shocked. The interrogating officer
told Harris, “ ‘ “I thought you were going to come back and straighten it out.” ’ ” Harris
subsequently confessed to helping his friend dispose of his roommate’s body. (Ibid.)
The appellate court held Harris’s initial assertion of his right to remain silent was
unambiguous. (Harris, supra, 211 Cal.App.3d at p. 649.) The interrogating officer
subjectively understood Harris had invoked his right to remain silent because he had
terminated the interrogation and had Harris indicate “No” on a written admonition form.
When the interrogating officer commented, “ ‘I thought you were going to come back
and straighten it out,’ ” it was the functional equivalent of further questioning. Thus, the
trial court had erred in admitting Harris’s post-Miranda confession. (Ibid.)
We do not read Harris to suggest that a response of, “ ‘Not really’ ” invariably
means the accused has manifested a clear and unambiguous intent to invoke the right to
remain silent. While the interrogating officer in Harris subjectively understood Harris’s
response to be a clear invocation of his right to remain silent (Harris, supra, 211
11.
Cal.App.3d at pp. 646, 649), our inquiry is objective. We must consider Thomas’s
response in the context to ascertain what a reasonable listener would have understood by
Thomas’s reply. (Sanchez, supra, 7 Cal.5th at p. 49.)
“ ‘In certain situations, words that would be plain if taken literally actually may be
equivocal under an objective standard, in the sense that in context it would not be clear to
the reasonable listener what the defendant intends.’ ” (Sanchez, supra, 7 Cal.5th at p. 49;
see e.g., Stitley, supra, 35 Cal.4th at p. 535 [“ ‘I think it’s about time for me to stop
talking’ ” expressed frustration by the defendant but did not represent an attempt to end
the interrogation]; People v. Thomas (2012) 211 Cal.App.4th 987, 1006 [the defendant’s
statement—“ ‘I ain’t talking no more and we can leave it at that’ ”—was not an
unambiguous invocation of his right to remain silent; it was an expression of momentary
frustration]; People v. Martinez (2010) 47 Cal.4th 911 [“ ‘I don’t want to talk anymore
right now,’ ” and “ ‘That’s all I can tell you,’ ” did not amount to an unequivocal
invocation of the defendant’s right to remain silent].)
By volunteering statements about the shooting, Thomas clearly waived the right to
remain silent. Further, at no point during his interrogation did Thomas clearly and
unambiguously assert his right to remain silent. As we have explained, Thomas’s
response of “[n]ot really,” was insufficient to infer he was asserting his right to remain
silent. We therefore conclude the trial court did not err in finding Thomas’s post-
Miranda statements were admissible.
Although the parties dispute whether the erroneous admission of Thomas’s
challenged statements were prejudicial, our conclusion that the trial court did not err
obviates the need for us to address the issue of prejudice.
DISPOSITION
The judgment of conviction is affirmed.
12.