Filed 12/17/18 P. v. Garvin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge.

William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Kenneth Renaldo Garvin was convicted of committing multiple offenses against 14-year-old R.W. Garvin contends his pretrial statement to police was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and the trial court erred in denying his motion to suppress his statement. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Garvin was charged in count 1 with violating Penal Code[1] section 289, subdivision (a)(1)(C), forcible sexual penetration of a minor 14 years of age or older; in count 2 with sexual battery of a person unlawfully restrained, a violation of section 243.4, subdivision (a); in count 3 with lewd and lascivious acts on a child of 14 years of age by a person who is at least 10 years older than the child, in violation of section 288, subdivision (c)(1); in count 4 with assault by force likely to cause great bodily injury, in violation of section 245, subdivision (a)(4); and in count 5 with misdemeanor possession of narcotics paraphernalia, a violation of Health and Safety Code section 11364.1. In addition, two section 667.5, subdivision (b) enhancements were alleged.

On February 22, 2016, Garvin filed a motion in limine seeking inter alia to exclude his pretrial statement on the basis the statement was obtained in violation of his Miranda rights. Alternatively, he sought an Evidence Code section 402 hearing to determine the admissibility of the statement. The next day, the trial court held a hearing on the motion in limine, but deferred ruling on the admissibility of the pretrial statement.

On February 24, 2016, the trial court noted the “parties stipulated the Court could conduct that [Evidence Code section 402] hearing by reviewing the DVD. So I have reviewed that.” The trial court stated it had reviewed the portion of the DVD “that covered the administrations of Miranda rights” and found “that the Miranda rights were properly given and the defendant knowingly, voluntarily, and intelligently waived those rights.”

Testimony at trial established that 14-year-old R.W. ran away from her foster home on October 1, 2014, and took a bus to Heritage Park in Bakersfield, where she intended to stay the night. She fell asleep around 8:30 to 9:00 p.m.; R.W. was later awakened by someone touching her. There was an adult male touching her breasts, underneath her clothing.

R.W. tried to defend herself by kicking and screaming; the man put his hand over her mouth and tried to choke her. R.W. felt like she could not breathe because of the pressure and she was scared. The man removed her pants and underwear and “put his fingers inside” of her. He was hurting her, and she tried to kick him off of her. He kept his fingers in her vagina for “10 or 15 minutes.” R.W. finally managed to kick him in his “private parts” and he ran away. After the man left, she put on her clothes.

When the man was assaulting her, R.W. was able to get a look at his face. The man was African American, had a beard, and was wearing a black jacket. R.W. saw the man the next morning. The man was walking toward R.W. When she tried to walk away, he moved closer to her. One of the homeless men in the park grabbed a beer bottle and chased the man away.

R.W. identified her attacker in a photographic lineup; the man she identified was Garvin. She also identified Garvin at trial as her attacker. It took R.W. less than 20 seconds to identify her attacker in the photographic lineup.

Daniel Reyes was homeless and living in Heritage Park. The morning of October 2, 2014, around 2:00 a.m., he heard muffled sounds, “like someone’s mouth being covered.” The muffled sounds continued for about five minutes. Later that morning, R.W. was walking towards Reyes with Garvin “trying to grab ahold of her to make her stay.” R.W. looked afraid. Reyes grabbed a beer bottle and told Garvin to “get the hell out of there.” R.W. told Reyes the man “was fondling her and touching her.”

Reyes identified Garvin as the man from the park. He also identified R.W. as the girl in the park.

Later in the day, Reyes’s friend, Mark Gibson, came to the park. Reyes told him what had happened to the girl and Gibson called the police. The police arrived and “swarmed the park.”

Officer Kameron Bailey spoke with R.W. and Reyes at Heritage Park. R.W. told Bailey what Garvin had done to her during the night. R.W. also told Bailey that Garvin came back to the park in the morning and tried to approach her. Reyes described what he had heard during the night and Garvin approaching R.W. again in the morning. The police recovered the jacket Garvin had been wearing from where it had been thrown into some bushes.

R.W. provided a description of the man who attacked her as a black male; late 20’s; approximately five feet, 10 inches; without tattoos; wearing a white T-shirt under a blue long-sleeved shirt; and dark jeans. Reyes independently described the man as a black male in his late 20’s wearing dark clothing, with a dark complexion and short wavy hair. Reyes and R.W. worked with the police to compile a composite drawing of the man.

The evening of October 2, 2014, Forensic Nurse Specialist Heather Mauro conducted a sexual assault examination of R.W. The physical examination revealed bleeding in both of R.W.’s eyes consistent with strangulation. R.W. had bruising on her throat. She complained of pain in her right breast. R.W. had sustained an “injury to the posterior fourchette” which was “consistent with digital penetration.”

Mauro took swabs of R.W.’s breast area, her external genitalia, and external debris in the vaginal area. She was unable to take a swab of the interior vaginal area because the speculum was too painful for R.W.

Garvin was located at a shelter on October 11, 2014. He had a methamphetamine pipe in his pants when arrested. In a subsequent interview with police, Garvin stated he came across a 14-year-old girl in Heritage Park on a Wednesday night; the girl told him she had been raped. The girl was bleeding and needed tampons. Garvin claimed she grabbed his hand when she was scared; maybe they kissed; and she was on top of his chest when they fell asleep.

Garvin claimed he returned the next morning to give the girl money for tampons and food, when an old man tried to come at him with a bottle. Garvin stated that anything the detectives were alleging could have occurred because he might have blacked out after drinking heavily that day.

Police obtained a DNA sample from Garvin. Garvin’s DNA sample matched the swab taken from R.W.’s breast and the external debris in the vaginal area. The swab of R.W.’s external genitalia contained a large amount of DNA consistent with bodily fluids as opposed to a touch transfer.

The parties stipulated that Garvin was 14 years nine months older than R.W. It also was stipulated that Garvin previously had been convicted of felony unlawful intercourse with a minor under the age of 18 years and more than three years younger than he, in violation of section 261.5, subdivision (c).

On March 2, 2016, the jury found Garvin guilty on all counts. In a court trial on March 3, 2016, the prior prison term allegation was found true.

The trial court imposed a total aggregate sentence of 12 years on March 30, 2016. The upper term of 10 years was imposed for the count 1 offense; the terms for the remaining counts were imposed and stayed pursuant to section 654. A one-year consecutive term was imposed for each of the section 667.5, subdivision (b) enhancements.

Garvin filed a notice of appeal on March 30, 2016.

DISCUSSION

Garvin’s sole contention on appeal is that his pretrial statement to police was obtained in violation of Miranda and should not have been admitted. He contends its admission was prejudicial. We disagree.

1. No Violation of Miranda Rights

Standard of Review

“An appellate court applies the independent or de novo standard of review, which by its nature is nondeferential, to a trial court’s granting or denial of a motion to suppress a statement under Miranda insofar as the trial court’s underlying decision entails a measurement of the facts against the law.” (People v. Waidla (2000) 22 Cal.4th 690, 730.) An appellate court “examines independently the resolution of a pure question of law; it scrutinizes for substantial evidence the resolution of a pure question of fact; it examines independently the resolution of a mixed question of law and fact that is predominantly legal; and it scrutinizes for substantial evidence the resolution of a mixed question of law and fact that is predominantly factual.” (Ibid.)

Pursuant to Miranda, supra, 384 U.S. 436, a suspect who is subjected to custodial interrogation must be informed of his rights to remain silent and the presence of an attorney. If a suspect invokes his right to counsel, all further interrogation must cease until an attorney is present. (Id. at pp. 473-474.) Invoking the right to counsel under Miranda must be unambiguous and unequivocal. (Davis v. United States (1994) 512 U.S. 452, 459.)

In Edwards v. Arizona (1981) 451 U.S. 477 (Edwards), the high court held that once counsel is requested the suspect “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Id. at pp. 484-485.) Under Edwards, “[i]f further conversations are initiated by the police when there has not been a break in custody, the defendant’s statements are presumed involuntary and inadmissible as substantive evidence at trial. This is true even when the defendant again waives his Miranda rights and his statements are voluntary under traditional standards.” (People v. Thomas (2012) 54 Cal.4th 908, 926.)

A suspect initiates dialogue with law enforcement when he or she speaks words or engages in conduct that can be “fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation.” (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045 (plur. opn.).) If a suspect does initiate dialogue, the police may commence an interrogation if the suspect validly waives his rights. (Id. at p. 1046.)

Factual Background

The interview between Garvin and police began with the police providing a lunch for Garvin. The DVD of the interview shows Garvin sitting comfortably at a table; he is not handcuffed or restrained in any way. An officer then tells Garvin, “we’re here to talk to you a little bit.” Garvin responds, “I was asked did I wanna come down. And I was like (yeah), I don’t see no point why I wouldn’t.” The officer responds, “Okay. I can appreciate that. Um, and I understand you were under arrest for another.…” The last part of the officer’s comment is unintelligible.

The officer then tells Garvin, “As it were because of my investigation and because you’re under arrest and you were brought here under arrest from the other deal, okay, um, I’m gonna read you your rights.” The exchange then goes as follows:

“[Detective]: You have the right to remain silent. You understand that?

“Garvin: Yes, sir.

“[Detective]: All right. Anything you say may be used against you in court. You understand that?

“Garvin: Yes, sir.

“[Detective]: You have the right to the presence of an attorney before and during any questioning.

“Garvin: Yes, sir.

“[Detective]: At any time. If you cannot afford an attorney one will be afforded for you free of charge before any questioning if you want. Do you understand all your rights?

“Garvin: Yes, sir.”

Waiver of Rights

Garvin asserts he did not waive his right to counsel and his right to remain silent. We reviewed not only the transcript of the interrogation, but the video of the interrogation admitted as exhibit 53. As exhibit 53 clearly shows, Garvin was specifically informed of those rights and acknowledged he understood those rights.

“The prosecution had to prove by a preponderance of evidence that defendant knowingly and voluntarily waived his Miranda rights. [Citations.] A valid waiver may be express or implied. [Citation.] Although it may not be inferred ‘simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained’ [citation], it may be inferred where ‘the actions and words of the person interrogated’ clearly imply it. [Citation.] [¶] In determining whether a defendant waived his rights, the court must consider ‘the totality of the circumstances surrounding the interrogation.’ ” (People v. Cortes (1999) 71 Cal.App.4th 62, 69.)

A criminal defendant’s Fifth Amendment rights under Miranda are impliedly waived if, having heard and understood an officer’s recitation of those rights, the defendant speaks to police. (Berghuis v. Thompkins (2010) 560 U.S. 370, 384.) Here, Garvin affirmatively stated he understood his rights before detectives began questioning him and exhibit 53 discloses that he was alert during the questioning; his answers are lucid and responsive to the questions; and the entire interview, with pauses, took one hour and 17 minutes. At no time during the interview does Garvin ask the detectives to cease questioning him; at no point does he request an attorney; at no time is there an indication he does not understand the questions or the purpose of the interrogation.

It is apparent from the totality of the circumstances that Garvin understood his Miranda rights and waived those rights by his conduct in answering questions put to him by the detectives. (People v. Lessie (2010) 47 Cal.4th 1152, 1169.)

Knowing and Voluntary

Garvin claims, however, that his waiver was not knowing and voluntary. He claims he did not know why he was being questioned. Garvin also contends the officers were aware that his mental state may have impacted his ability to knowingly waive his Miranda rights.

One of the detectives informed Garvin they wanted to talk with him about their investigation, which was not related to the matter for which he had been arrested, possession of a methamphetamine pipe. Officers are not required to inform a suspect of the charges against him as a condition of soliciting a valid Miranda waiver. (People v. Sanders (1990) 51 Cal.3d 471, 512-513.) The detectives were not required to announce to Garvin at the inception of questioning that he was being questioned regarding the sexual assault of R.W. (Ibid.) “The business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means.” (People v. Jones (1998) 17 Cal.4th 279, 297.)

As for Garvin’s claim that his mental state impacted his ability to knowingly waive his rights, the record does not support this contention. There is no requisite level of intelligence or sophistication to trigger a defendant’s ability to validly waive his Miranda rights. (People v. Jenkins (2004) 122 Cal.App.4th 1160, 1171.) Garvin states in the interview that he had a seizure and was released from the hospital two days prior to the interview. Exhibit 53 shows Garvin walking into the interview room with a cane. At no point in the interview does Garvin indicate he is under the influence of medication, alcohol, or any other substance; state his faculties were impaired; or profess a lack of understanding of the circumstances and purpose of the interview. Exhibit 53 shows Garvin to be lucid, treated respectfully by the detectives, and aware of his surroundings.

There is no indication in the record that Garvin’s mental state or faculties were in any way impaired and that his waiver of Miranda rights therefore was not knowing. (People v. Nelson (2012) 53 Cal.4th 367, 375.)

Garvin also contends his waiver was not voluntary. “The test for the voluntariness of a custodial statement is whether the statement is ‘ “the product of an essentially free and unconstrained choice” ’ or whether the defendant’s ‘ “will has been overborne and his capacity for self-determination critically impaired” ’ by coercion.” (People v. Cunningham (2015) 61 Cal.4th 609, 642 (Cunningham).) The ultimate issue of voluntariness is a question of law. (People v. Benson (1990) 52 Cal.3d 754, 779.)

There is no evidence of the use of any coercive tactics by the detectives. Garvin was asked if he would speak with the detectives before he was brought to the interview room; he agreed to do so. The detectives provided Garvin with a lunch, inquired about his well-being, did not threaten Garvin, did not handcuff or restrain Garvin, and did not question him for an undue length of time. The entire interview was one hour and 17 minutes. The characteristics of the interview were not such that Garvin’s will was “ ‘ “overborne and his capacity for self-determination critically impaired.” ’ ” (Cunningham, supra, 61 Cal.4th at p. 642.)

As discussed above, there also is no evidence in the record that Garvin’s mental state was in any way impaired. Garvin’s coherent and responsive answers to questions from the detectives show a lack of impaired mental state. (People v. Hensley (2014) 59 Cal.4th 788, 814.) There is no showing by Garvin of an actual inability to comprehend or to make a free and rational choice regarding his Miranda rights. (Cunningham, supra, 61 Cal.4th at p. 645.)

The trial court did not err in finding Garvin knowingly and voluntarily waived his Miranda rights and spoke with detectives.

2. No Prejudice

Garvin contends the admission of his statement to the detectives was prejudicial. We disagree.

Assuming admission at trial of Garvin’s statements to the detectives was error, any error was not prejudicial. Whenever a confession is erroneously admitted in a trial, the prejudicial effect of the confession must be determined under the federal standard when the confession was obtained in violation of the federal Constitution. (People v. Cahill (1993) 5 Cal.4th 478, 509-510.) Under federal law, the test of prejudice for the erroneous admission of a confession is the standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Cunningham (2001) 25 Cal.4th 926, 994; People v. Johnson (1993) 6 Cal.4th 1, 32-33.) The Chapman standard of review requires “the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.) Reversal is required if there is a “ ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” (Id. at p. 23; Yates v. Evatt (1991) 500 U.S. 391, 402-403 (Yates), disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)

“To say that an error did not ‘contribute’ to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous.” (Yates, supra, 500 U.S. at p. 403.) “To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Thus, to say that [the error] … did not contribute to the verdict is to make a judgment about the significance of the [error] to reasonable jurors, when measured against the other evidence considered by those jurors independently of the [error].” (Id. at pp. 403-404.) “[T]he appropriate inquiry is ‘not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, italics original.)” (People v. Quartermain (1997) 16 Cal.4th 600, 621 [erroneous admission of defendant’s statement was prejudicial]; accord, People v. Neal (2003) 31 Cal.4th 63, 86.)

It is apparent from the record that the statements made by Garvin to the detectives did not contribute to the verdicts rendered by the jury. Garvin acknowledged meeting R.W. in the park. Garvin claimed she grabbed his hand when she was scared; maybe they kissed; and she was on top of his chest when they fell asleep. These statements from Garvin did not establish the substantive offenses of which he stands convicted and did not constitute a confession to the charged offenses.

The evidence that established Garvin’s guilt was the DNA evidence obtained from R.W. that matched Garvin’s DNA; R.W.’s testimony about what Garvin did to her and her identification of Garvin; Reyes’s testimony of the muffled sounds he heard during the assault, what R.W. had told him about the sexual assault, and Reyes’s identification of Garvin as the man he had to chase away from R.W. The presence of finger marks on R.W.’s throat and the bleeding, or hemorrhaging, in her eyes substantiated R.W.’s claims that she had been choked and strangled during the attack. The injury to the posterior fourchette was consistent with the forcible digital penetration to which R.W. testified.

Considering the overwhelming evidence of Garvin’s guilt and the lack of any confession to the crimes in his statements to the detectives, there is no reasonable possibility the admission at trial of his statements to the detectives contributed to his convictions.

DISPOSITION

The judgment is affirmed.