P. v. Furness

Filed 7/19/06 P. v. Furness CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Timothy Todd Furness appeals from the judgment following a "slow plea" in which the trial court found him guilty of three counts of aggravated sexual assault of a child under the age of 14 (Pen. Code, § 269, subds. (a)(1), (a)(5) & (a)(4))^[1], assault with intent to commit forcible oral copulation (§ 220; 288a, subd. (c)(2)), and kidnapping to commit rape (§ 209, subd. (b)(1)). Appellant waived jury trial after the trial court denied his motion to exclude statements allegedly obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda). Appellant was sentenced to 70 years to life based on findings that he had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike under the Three Strikes law (§§ 667, subds. (d)(1)-(e)(1); 1170.12, subds. (b)(1)-(c)(1)). We affirm.

Facts and Procedural History

We view the evidence in accordance with the usual rules on appeal. (People v. Waidla (2000) 22 Cal.4th 690, 730.) Appellant abducted eight-year-old Megan G. at an elementary school in Goleta on July 3, 2004. He drove the child to a church parking lot where he pulled down her pants, orally copulated her, and flipped her over. Megan told the police that appellant "started sticking something up my butt." Appellant tried to put his penis in her mouth, digitally penetrated Megan's vagina, and attempted sexual intercourse.

Appellant drove Megan to a bowling alley where he flagged down Santa Barbara County Deputy Sheriff John Coyle. Appellant said that "he had just took this girl," referring to Megan in the passenger seat. Deputy Coyle ordered appellant out of the Honda and asked his name. Appellant responded, "Timothy," that he could not help it, and that he was "a 290 registrant." Appellant said that he had touched Megan and was put in the patrol car.

Deputy Coyle tried to speak to Megan but she was disoriented and sobbing. In order to determine whether Megan needed immediate medical attention, Deputy Coyle returned to the patrol car and asked if appellant had penetrated Megan's vagina. Appellant said that he tried but she was too small.

Appellant was transported to the sheriff's station. During the ride, appellant volunteered that he was remorseful and upset about the incident.

Detective Chris Dallenbach interviewed appellant about two hours later. Waiving his Miranda rights, appellant said that he kidnapped and sexually assaulted Megan. The videotaped confession was corroborated by Megan and the medical exam findings. It was stipulated that appellant's penis and finger came in contact with Megan's genitals, that appellant caused pain to Megan's anus, that appellant licked and bit Megan's genitals, that he oral copulated and fondled her anus, and that appellant's sperm was on swabs of Megan's labia, external vagina and her anus.

Parking Lot Statement

Appellant claims that his Miranda rights were violated when Deputy Coyle put him in the patrol car and asked if he penetrated Megan's vagina. The trial court found that the statement was free, voluntary, and not the product of a custodial interrogation. On review, we defer to the trial court's factual findings which are supported by substantial evidence. (People v. Cunningham (2001) 25 Cal.4th 926, 992.) "We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained. [Citation.]" (Ibid.)

In is settled that the prophylactic rules of Miranda do not apply to interrogations to discover information necessary to preserve life or to insure public safety. (New York v. Quarles (1984) 467 U.S. 649, 657 [81 L.Ed.2d. 550, 558]; People v. Panah (2005) 35 Cal.4th 395, 471.) "Under some, narrow circumstances, sometimes called the 'public safety' or 'rescue' exceptions, compliance with Miranda is excused where the purpose of police questioning is to protect life or avoid serious injury and the statement is otherwise voluntary. [Citation.]" (Ibid.)

In New York v. Quarles, supra,467 U.S. 649, the United States Supreme Court held that the police were not required to "Mirandize" a rape suspect because the exigent circumstance affected public safety. The victim told the police that she had just been raped and the assailant was in a grocery store with a handgun. The officers arrested Quarles in the store, saw that he had an empty shoulder holster, and asked where the handgun was hidden. Quarles nodded toward some empty cartons and said, " '[t]he gun is over there.' " (Id., at p. 652 [81 L.Ed.2d at p. 554].) The court held that Miranda warnings are "'not themselves rights protected by the Constitution" and that "there is a 'public safety' exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence . . . . [T]he availability of that exception does not depend upon the motivation of the individual officers involved." (Id., at pp. 654-656 [81 L.Ed.2d at pp. 556-557].) The court concluded that "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." (Id., at p. 657 [81 L.Ed.2d at p. 558].)

The same public safety principle applies here. Appellant flagged down Deputy Coyle, said that he had kidnapped and touched Megan, and asked for help. Appellant was shirtless and wearing sweatpants. His underwear was in the Honda next to Megan. Megan was sobbing and appeared to be in shock. Deputy Coyle was unsure whether "finding her home was the best thing to do or whether it would be [better] to get -- get immediate help, immediate medical attention." Appellant was asked if he had penetrated Megan's vagina. It was "a kaleidoscopic situation . . . where spontaneity rather than adherence to a police manual [was] necessarily the order of the day . . . ." (New York v. Quarles, supra, 467 U.S. at p. 656 [81 L.Ed.2d at p. 557].)

Substantial evidence supports the trial court's finding that appellant's statements were "not the product of a custodial interrogation designed to elicit incriminating statements and need not have been preceded by the admonition prescribed by Miranda vs. Arizona. . . . [T]he responses to the questions asked by Deputy Coyle were made freely and voluntarily by the defendant as part of his continuing effort to provide information to the police that was initiated by his stopping the officer in the first place."

Appellant argues that his Miranda rights trump the safety concerns of the victim because he was in custody. The public safety doctrine, however, does not depend on the timing of the arrest. In New York v. Quarles, supra, 467 U.S. 467 U.S. 467 [81 L.Ed.2d 550] the suspect was surrounded by four officers and handcuffed when questioned. (Id., at p. 655 [81 L.Ed.2d at p. 556].) The case is one of a series of decisions holding that "an exception to the usual constraints on custodial interrogation in the situation where an overriding need exists to rescue persons in danger or to protect human life." (People v. Coffman (2004) 34 Cal.4th 1, 56; see People v. Modesto (1965) 62 Cal.3d 436, 446 [rescue doctrine]; People v. Willis (1980) 104 Cal.App.3d 433, 449 [emergency justified renewed interrogation]; People v. Stevenson (1996) 51 Cal.App.4th 1234, 1238-1240 [rescue doctrine; defendant questioned about ingesting drugs]; People v. Riddle (1978) 83 Cal.App.3d 563, 576-577 [same]; People v. Dean (1974) 39 Cal.App.3d 875, 886 [spontaneous questions about location of kidnap victim].)

We reject the argument that the officer violated appellant's Miranda rights by asking questions to determine the nature of Megan's injuries and whether she required immediate medical care. Under appellant's construction of the law, police in a hostage situation would have to Mirandize every kidnapper before negotiating the surrender of an injured victim. (See William T. Pizzi, The Privilege Against Self-Incrimination In A Rescue Situation, 76 J. Crim. L. & Criminology 567 (1985).) It would lead to absurd results, especially where the kidnapper approaches an officer and requests help. The need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent exigency or emergency. (Mincey v. Arizona (1978) 437 U.S. 385, 392 [57 L.Ed.2d 290, 300].) "Any other policy would reflect indifference to human life." (People v. Riddle, supra, 83 Cal.App.3d at p. 578.)

Stationhouse Confession

Appellant argues that his videotaped statement at the sheriff's station is inadmissible because he invoked his right to remain silent. Whether a suspect has invoked his right to counsel or right to remain silent is a question of fact to be determined in light of all the circumstances. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.) On review we apply federal standards to determine whether appellant's statements were solicited in violation of Miranda. (People v. Crittenden (1994) 9 Cal.4th 83, 129.) "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.]" (People v. Stitely (2005) 35 Cal.4th 514, 535, citing Davis v. United States (1994) 512 U.S. 452, 459 [129 L.Ed.2d 362].) Here, appellant did not do so.

Detective Dallenback introduced himself, advised appellant of his Miranda rights, and said: "I want to talk to you about what was going on today, okay? Um, so it's up to you, if you want to talk to me, that's fine. If you don't, that's fine too. Do you want to talk to me?

Appellant responded: "Seems like this is always the big question." Appellant said that he had been arrested before. " Last time I talked, it um, not that it helped or hurt me but you know how lawyers are, they say don't talk. [¶] . . . . .

[¶] But I'd rather, you know . . . but what can I say anymore than what I've already said, you know?

Appellant told the detective that he was a registered sex offender and asked if charges would be filed against him. Appellant did not indicate, by his speech or conduct, that he wished to remain silent. On the contrary, his questions and comments "evinced a willingness and a desire for a generalized discussion about the investigation . . . ." (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045-1046 [77 L.Ed.2d 405, 412].)

We conclude that there was no express or implied invocation of the right to remain silent. (See e.g., People v. Musselwhite, supra, 17 Cal.4th at p. 1239 [no invocation of right to silence where defendant said "I don't want to talk about this[,]" and kept answering detectives' questions]; In re Joe R. (1980) 27 Cal.3d 496, 516 [defendant's statement, " 'That's all I got to say' " not assertion of right to remain silent].)

Appellant also claims that he invoked his right to remain silent when Detective Dallenback left the interview room. Appellant asked Deputy Coyle: "How am I doing?" Deputy Coyle answered: "Fine I guess." Appellant said: "I'm already looking at time in jail, possibly prison now you know, so I'm thinking I might just want to keep my mouth shut. . . I don't know." Deputy Coyle responded: "[I]t's your decision to make, okay, whether you talk to the detective or not. . . . I'm not going to make the decision for you. I won't do that and I can't do that."

After Detective Dallenbach returned, Deputy Coyle said: "You just have to feel comfortable with yourself, and if nothing else you know, you can say at the end of the day, hey, I did the right thing, you stopped me, I didn't stop you. . . [Y]ou are the one who said, hey, I need help. . . . I commend you on that because you at least, you had integrity to say, look, here I am, how do I fix this, how do I get better. But you know, where you go from there is up to you."

Appellant told the detective that "something happened with the girl" and "I'm not happy about what happened."

Citing People v. Box (2003) 23 Cal.4th 1153, 1194, appellant argues that an officer may only ask clarifying questions where the suspect's invocation of the right to remain silent is ambiguous. However, in Davis v. United States, supra, 512 U.S. 452 [129 L.Ed.2d 362]) the United States Supreme Court indicated only that it would be "good police practice" for an officer to clarify whether a defendant actually wants an attorney when the suspect makes an equivocal request for counsel. The court, however, "decline[d] to adopt a rule requiring officers to ask clarifying questions. If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." (Id., at p. 461 [129 L.Ed.2d at p. 373].)

In People v. Stitely, our Supreme Court extended Davis to a suspect's assertion of the right to remain silent. "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. [Citation.]" (People v. Stitely, supra, 35 Cal.4th at p. 535.)

Appellant received a Miranda admonishment, waived his rights, and vacillated on whether he should assist in the investigation. Appellant "did not assert a right to refuse to answer any questions, ask that the questioning come to a halt, or request counsel." (People v. Michaels (2002) 28 Cal.4th 486, 510.) Consistent with Davis, the trial court correctly found that the officers were not required to stop the interview or limit their questions to clarify whether appellant was invoking his right to remain silent. (People v. Stitely, supra, 35 Cal.4th at p. 535.)

Missouri v. Seibert

Appellant argues that his confession was the product of a two-step custodial interrogation in which incriminating statements were elicited without a Miranda waiver to coerce a confession. In Missouri v. Seibert (2004) 542 U.S. 600 [159 L.Ed.2d 643] (Seibert), the police woke defendant at 3:00 in the morning, arrested her for murder, and took her to the police station. Defendant was questioned for 30 to 40 minutes until she confessed. (Id., at pp. 604-605 [159 L.Ed.2d at p. 650].) After a short break, defendant was given Miranda warnings, signed a waiver, and asked the same questions until she confessed again. (Ibid. [159 L.Ed.2d at p. 650-651].) The interrogating officer "testified that he made a 'conscious decision' to withhold Miranda warnings, thus resorting to an interrogation he had been taught: question first, then give the warnings, and then repeat the question 'until I get the answer that she's already provided once.' [Citation.] He acknowledged that Seibert's ultimate statement was 'largely a repeat of information . . . obtained' prior to the warning. [Citation.]" (Id., at p. 606 [159 L.Ed.2d at p. 651].)

The Supreme Court held that the interrogation procedure did not comply with Miranda and that defendant's postwarning statements were inadmissible. (Id., at p. 604 [159 L.Ed.2d at p. 650].) "The object of the interrogation was to question first, [and] render Miranda warnings ineffective by waiting for a particularly opportune time to give them after the suspect had already confessed" (Id., at p. 611 [159 L.Ed.2d at p. 654].) The court stated the following factors should be considered to determine "whether Miranda warnings delivered midstream could be effective to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second [round of questions], the continuity of the police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." (Id., at p. 615 [159 L.Ed.2d at p. 657].)

Seibert is inapposite because there was no deception, coercion, or coordinated interrogation strategy to extract a confession. Deputy Coyle's questions at the parking lot were brief, to determine if Megan was injured and required immediate medical attention. Appellant was questioned at the sheriff's station two hours later by a different officer after receiving a complete Miranda advisement.

Appellant contends that the Miranda waiver was ineffective because Detective Dallenbach failed to advise him, pursuant to Seibert, that the earlier statement about the attempted vaginal penetration was "inadmissible." The argument fails on several grounds. First, it assumes Detective Dallenbach knew about the statement and exploited it to get a confession. During the interview, Detective Dallenbach did not refer to the prior statement. The record indicates that Deputy Coyle did not tell the detective what appellant specifically said earlier that day.^[2]

Unlike Seibert, there was a substantial break in time between the first statement and the confession. Appellant was repeatedly told that he did not have to talk. Appellant weighed the pros and cons of confessing and said "I'm not happy about what happened." Before Detective Dallenback asked specific questions about the kidnap, appellant volunteered "I tried to have sex with her" and "it didn't work out" because "she was too tight, I couldn't get it in." Appellant said that he penetrated Megan with his finger, tried to insert his penis, and that " it got a little rough." Megan "was squirming and tried to push me and my hands away."

This is not a case in which Miranda warnings came "midstream" as part of a "coordinated and continuing interrogation" to get appellant to repeat a prewarning statement. (Missouri v. Seibert, supra, 542 U.S. at pp. 613 & 615 [159 L.Ed.2d at pp. 656-657].) The trial court found, and we agree, the videotaped statement was voluntary and admissible. (See e.g., Oregon v. Elstad (1985) 470 U.S. 298, 314-315 [84 L.Ed.2d 222, 235-236] [defendant's Mirandized stationhouse statements admissible even though defendant made a prior un-Mirandized statement at home].)

Appellant's remaining arguments have been considered and merit no further discussion.

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

George C. Eskin, Judge

Superior Court County of Santa Barbara

______________________________

Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johndon, Supervising Deputy Attorney General, Lids J. Brault, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code.

^[2] After Detective Dallenbach left the interview room, appellant told Deputy Coyle "I might just want to keep my mouth shut." Deputy Coyle said: "What's done is done. You know, um, I didn't talk to him [i.e., Dallenbach] except [to] explain that you

stopped . . . . You stopped me and told me very briefly that you know, you had the girl there in the car and uh, and uh, brought you over here."

This is corroborated on another part of the videotape. When Detective Dallenbach started the interview, he told appellant "the deputies told me, in a nutshell" about what happened. "I didn't ask them any questions, I just got the basics. You got arrested, um, there was something in it involving a girl. . . at a school."