Filed 9/27/17 P. v. Guzman CA4/3 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Reversed.

Jamie Popper, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Antonio Bautista Guzman of five counts of sexual intercourse or sodomy with a child age 10 or younger (Pen. Code, § 288.7, subd. (a); counts 1-5) and five counts of lewd acts on a child (Pen. Code, § 288, subd. (a); counts 6-10). The court sentenced defendant to prison for a term of 55 years to life.

The alleged victim, J.F., is defendant’s step-granddaughter. She told investigators and testified at trial, that defendant had continually sexually molested her, from the time she was five or six years old until she was nine.

Police questioned defendant in an interview room at a police station for two hours without advising him of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). After an hour of intense accusatory interrogation, defendant began making admissions, and he eventually confessed to many unlawful acts. Police then arrested him, advised him of his Miranda rights and, within a few minutes, obtained a second statement from defendant which merely confirmed the content of his pre-Miranda statement.

Before trial defendant’s counsel challenged the admissibility of his pre-Miranda statement on voluntariness grounds. The court reviewed a video and transcript of the interrogation, and found defendant’s pre-Miranda statement was voluntary. Defendant’s trial counsel never challenged the admissibility of defendant’s statements on the grounds they were obtained in violation of his Miranda rights. So, the court never ruled on whether defendant was in custody for Miranda purposes before his arrest, or whether the police engaged in a deliberate two-step interrogation designed to circumvent Miranda, as prohibited by Missouri v. Seibert (2004) 542 U.S. 600 (Seibert).

On appeal, defendant raises two primary claims. First, he argues the court erred by ruling his pre-Miranda statement was voluntary. Second, he argues his trial counsel was ineffective by failing to challenge his statements under Miranda and Seibert.

We conclude defendant’s second argument has merit. His trial counsel’s performance was deficient, and defendant was prejudiced. Therefore, we reverse the judgment. Considering this disposition, we need not reach defendant’s first argument.

FACTS AND PROCEDURAL HISTORY

1. J.F.’s C.A.S.T. Interview and Trial Testimony

J.F.’s grandmother is married to defendant, and the pair often provided childcare while J.F.’s parents worked. As a result, J.F. frequently spent time at defendant’s home, before or after school and in the summer.

In April 2013, when J.F. was nine years old and in the fourth grade, she told a friend defendant had sexually abused her. A member of the Child Abuse Services Team (C.A.S.T.) interviewed J.F., and the video of the interview was played for the jury. J.F.’s trial testimony was consistent with her C.A.S.T. interview, but she had trouble remembering the details by the time of trial.

J.F. told the C.A.S.T. interviewer defendant had a pattern of taking her into the bedroom he shared with her grandmother and locking the door. In the bedroom, he touched and licked her breasts, private parts, and buttocks underneath her clothing. He also forced her to touch his penis, both under and over his clothing, at least 20 times, and he twice put his penis into her vagina.

J.F. said defendant would force her to take off her pants and then touch her vagina. His penis looked “straight” and “hairy.” Defendant sometimes forced her to touch and squeeze his penis, and she remembered seeing “white stuff” come out of defendant’s penis and drip down his leg.

J.F. remembered several instances where defendant sat her on his lap and touched her, or made her touch him, in the presence of other family members, including J.F.’s grandmother. J.F. was six years old when defendant first put his penis into her private part, and he did it again when she was eight.

J.F. said defendant warned her something bad would happen if she told anyone about what they were doing. J.F. did not tell her parents about the abuse because she kept thinking it was her fault. Defendant stopped molesting J.F. after her ninth birthday, when she was in third grade.

2. Defendant’s Pre-Miranda and Post-Miranda Statements

After J.F.’s C.A.S.T. interview, four police officers went to defendant’s house. They explained they were there to investigate allegations of sexual abuse involving J.F. A detective asked defendant, who speaks only Spanish, if he would voluntarily accompany them to the police station and give a statement. Defendant agreed, and he told his wife he would be right back.

Two officers transported defendant to the Tustin Police Department in the back of a patrol car. Defendant was not handcuffed. Once inside the police station, Officer Alvarado, a native Spanish speaker, led defendant to a small interview room. The room had video recording equipment, and the video and a transcript prepared from the video with English translation were provided to the court and the jury at trial.

After Alvarado got defendant seated, Detective Grover joined them and he shut the door. In Spanish, Alvarado told defendant he was not being detained or arrested, and defendant had the option to “end everything” at any time, and they would take him home. Defendant replied, “Okay.”

Alvarado explained to defendant that Grover was investigating a case involving J.F. Alvarado asked defendant if he knew why he was there, and defendant said, “no.” Alvarado said J.F. had complained that he was molesting her and touching her sexual parts. Defendant denied touching J.F, and pointed out that he worked “all the time.” He said J.F. was an imaginative child, but he could only think of anger as the reason for her allegations.

Alvarado told defendant Grover had “evidence” to “verify what has happened.” He encouraged defendant to tell the truth, and he told defendant “right now is [the] moment for you . . . .” Defendant said J.F. was very impulsive and frequently hugged him. But Alvarado said, “this is more than hugging,” to which defendant replied, “Well, no, honestly, I don’t know.”

Alvarado told defendant he already knew what defendant had done to J.F. Alvarado said he was just giving defendant a chance to tell his side of the story and the truth. Defendant repeatedly denied doing “anything to her” and he said he hugged all of his grandchildren.

Alvarado then claimed he and Grover had investigated these types of crimes before, with other girls who had made these same types of allegations. However, in those cases, unlike this one, there was no evidence to back up the girls’ stories. Alvarado also explained that if defendant admitted what he had done to J.F., they could get her help to deal with the problems she would develop as a result of the sexual abuse. Defendant, again, denied any improper touching.

Alvarado responded, “I can see in your face . . . that you are not telling the truth,” and he explained, “now it’s your time to tell us your side, why it happened . . . and . . . when it started and . . . what has happened.”

At this point, defendant admitted he once accidentally touched J.F.’s breasts over her clothing while the two were “playing.” This had occurred about six months earlier. Asked to elaborate, defendant said J.F. had thrown herself on top of him, and he grabbed her to push her to one side.

Grover told Alvarado, “You know, he’s saying it’s accidental, maybe there’s lots of times where, you know, it was accidental. . . . Find out . . . . ” Alvarado then told defendant, “[s]o the thing is that . . . this has happened several times,” and over “several years,” and he asked defendant to “think of, are there other . . . times that . . . you were playing that . . . .”

Defendant responded, “Well, always . . . on the bed . . . at home, there were times also that she would always come in and she would throw herself on me on the couch or wherever we were. She would come in and she would hug me and she would climb on me . . . .” He also said, “at no time was I thinking about those things, but . . . that day it was an accident and I . . . admit that.”

At Grover’s suggestion, Alvarado asked defendant, “Has she tried to kiss you on the mouth?” Defendant replied, “No. I found her kissing a boy in my house one day, but I mean, it was a little boy.”

Again at Grover’s suggestion, Alvarado asked defendant if he had ever been alone with J.F. Defendant said his wife was always with them, and he had never been alone with J.F. Grover wanted to know if J.F. had ever touched defendant, and defendant said, “no.” Grover also wanted to know if J.F. undressed in front of defendant, and defendant said, “Yes[,]” but his wife was always there. Defendant denied changing clothes in front of J.F.

Asked if J.F. had ever been in defendant’s bedroom, defendant replied, “Yes.” He explained J.F.’s parents work early in the morning and sometimes J.F. slept with him and his wife for an hour or so before they got up. Defendant would then drive J.F. to school. Alvarado asked if defendant had touched J.F. under her clothes at any time. Defendant said, “No.” ~

Defendant repeatedly denied being alone with J.F., but Alvarado persisted and told defendant he knew there was more to the story. Alvarado said, “Like I said, we are giving you the chance . . . to tell us . . . your side in your own words . . . how it happened . . . [if] it was an accident several times or if . . . she did something to start touching . . . .” However, defendant again called J.F. an impulsive child, who liked to climb on him, but he admitted only one accidental touching of J.F.’s breasts over her clothing.

About an hour into the interview, Alvarado and Grover took a break and briefly left the interview room for a few minutes. When they returned, Alvarado told defendant. “Okay. Well . . . I’d say it’s time to . . . to finish everything up. Let’s put everything on the table.” Alvarado repeatedly accused defendant of touching J.F.’s private parts when the two were naked and alone, but defendant denied the allegations and said, “I have never touched her . . . under the clothes.”

Defendant steadfastly maintained his innocence until Alvarado asked “What parts have you touched her on?” Defendant said he had tickled J.F.’s legs, but he had not touched her underwear. When Alvarado asked about touching J.F.’s breasts, defendant said he had twice touched her breasts over her clothing within a six month time frame.

Alvarado next asked how many times defendant touched J.F.’s “vagina.” Defendant denied touching J.F.’s vagina, but with additional questioning, defendant admitted he and J.F. had been alone in his bedroom.

Defendant said he had been asleep, and his penis had been erect when J.F. came into his bedroom. Defendant explained, “Maybe she saw me like that.” Defendant also said J.F. asked him what his penis was and then she slapped it. Defendant told her to “settle down.”

When asked, defendant denied masturbating in front of J.F, but he thought she might have seen him in the shower. He also denied having sex with J.F. Alvarado asked defendant if he had ever put his finger in her vagina, and he said, “No.” Alvarado told defendant they had proof of his actions, and he knew defendant was lying, because a doctor had already examined J.F. Defendant responded, “Well, that’s what the doctors are for, to investigate all that.”

Defendant eventually admitted touching J.F.’s vagina with his finger. He said J.F. took her pants off and showed him her private part. Then she grabbed his hand, put it on her private part, and said “touch me.” According to defendant, J.F. also encouraged him to put his finger in her vagina. When asked if he liked it, defendant replied, “Well, yes. But it was just one time . . . .”

Alvarado asked defendant how many times he touched J.F.’s vagina. Defendant initially said twice, but he later admitted it was more like four times. He admitted touching J.F.’s bottom about three times, and her breasts probably twice, but always over her clothes.

Defendant told the investigators J.F. wanted him to touch her, and he described her as a “very perverted child.” He said J.F. had been eight years old the first time she lay on his bed and called to him. The last time had been seven months ago. At the time, J.F. had not been wearing underwear. She jumped on defendant, grabbed his erect penis through his pants, and put his penis in her vagina. Defendant said he told J.F. it was wrong.

Defendant also said J.F. kissed him on the mouth, and he admitted putting his mouth on her vagina. However, defendant claimed J.F. moved her underwear to one side for him and grabbed his head and put it there. Defendant also admitted having oral sex with J.F. three times.

After roughly two hours of questioning, Alvarado and Grover arrested defendant. As the officers processed defendant for jail, they gave him the standard Miranda advisement. Alvarado asked him if he wanted to speak to them, again. Defendant agreed and “basically confirmed the elements of the crime, confirmed his statement.” Defendant’s entire post-Miranda statement took about three minutes. No recording or transcript of defendant’s Miranda waiver, or his post-Miranda statement was produced at trial.

3. Evidence Code Section 402 Hearing Regarding the Voluntariness

The district attorney filed a trial brief which asserted defendant’s pre-Miranda statement was voluntary, and that defendant was not in custody for Miranda purposes, at any time during the interrogation and prior to his arrest. It also asserted defendant’s post-Miranda statement was admissible under Seibert.

Defendant’s counsel initially indicated he was not going to challenge the admissibility of either of defendant’s statements. He did not file opposition to the district attorney’s trial brief, nor did he file a motion to suppress. But on the first day of trial, he changed his mind and told the court he wanted an Evidence Code section 402 hearing, regarding the voluntariness of defendant’s pre-Miranda statement.

In preparation for the hearing, the court watched the entire video and read the whole 288-page transcript of defendant’s pre-Miranda statement.[2]

At the hearing, defendant’s counsel argued, “under the totality of the circumstances, given the numerical superiority of the interrogators, the location of the interrogation room being very small, with the door closed, inside the Tustin Police Department, and after having been transported there in a squad car, and after having been told numerous times that they had experience, that they had doctors’ notes, that they could look somebody in the eye and tell when somebody was not making full disclosures, that only after an hour of denials of inappropriateness did the officers begin to start to hear from [defendant] what I maintain they wanted to hear the entire time. [¶] So based on that argument, your honor, I think if you look at this in its totality, I think the court can find that the statements were involuntary. [¶] And I’ll reserve any discussion about Siebert [v.] Missouri until after I hear what your honor’s ruling is.”

The court then found defendant’s pre-Miranda statement was voluntary, and explained: (1) defendant was told he was not detained or arrested, was free to leave, and could end everything at any time; (2) defendant agreed to go to the station to talk, and he was not handcuffed on the way down; (3) there were two officers, one in plain clothes, no guns were drawn, and defendant was not handcuffed during the questioning; and, (4) the officers used a conversational tone throughout.

The court also noted Alvarado and Grover did not use threats or promises of leniency, but did use, “a ruse that . . . there were positive findings on the physical exam. But in the context of this interview, the way they were used, it would not lead to any untrue statements based on what I heard.” Thus, the court concluded, “[b]ased on the totality of the circumstances, the defendant’s ability to reason, comprehend or resist were not so disabled that he was incapable of free or rational choice.”

Defendant’s counsel never returned to the reserved Seibert issue. However, during trial, just before the jury watched the video and read the transcript of defendant’s pre-Miranda statement and heard Alvarado’s testimony about defendant’s post-Miranda statement, defendant’s counsel said: “I know we dealt with it earlier . . . . But since we’re about to play the tape, I raised the Miranda issue earlier. . . . Can I just re-note my objection . . . ?” The court responded and asked: “Well, I looked at voluntariness on it. . . . [¶] Is that what you mean by Miranda?” Defendant’s counsel replied, “That’s exactly what I mean, yes.”

DISCUSSION

Defendant argues the court erred by finding his pre-Miranda statement was voluntary. He also argues his trial counsel was ineffective by failing to challenge both of his statements under Miranda and Seibert. We are persuaded by defendant’s ineffective assistance argument, for reasons which we will explain. Hence, we reverse the judgment.

1. Ineffective Assistance of Counsel

A. General Principles and Standard of Review

“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ‘“‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569; see Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Camino (2010) 188 Cal.App.4th 1359, 1377 (Camino).)

B. Voluntariness, Miranda and Siebert

To determine whether defendant’s counsel’s performance was deficient, we must briefly review the relevant United States Supreme Court jurisprudence. As the high court explained in Oregon v. Elstad (1985) 470 U.S. 298, 304 (Elstad), “[p]rior to Miranda, the admissibility of an accused’s in-custody statements was judged solely by whether they were ‘voluntary’ within the meaning of the Due Process Clause.” Thus, “the pre-Miranda exclusionary rule analysis was simply a Due Process Clause voluntariness inquiry.” (Reyes v. Lewis (9th Cir. 2016) 833 F.3d 1001, 1025 (Reyes).)

But Miranda fundamentally altered the analysis. In Miranda, the court presumed, “interrogation in certain custodial circumstances is inherently coercive and held that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights.” (New York v. Quarles (1984) 467 U.S. 649, 654, fn. omitted.) Further, the Miranda court was concerned that its “‘traditional totality-of-the-circumstances’ test posed an ‘unacceptably great’ risk that involuntary custodial confessions would escape detection.” (Seibert, supra, 542 U.S. at p. 608 (plur. opn of Souter, J.).)

Therefore, Miranda held that finding a statement had been voluntary would no longer be sufficient. (Miranda, supra, 384 U.S. at pp. 444-445.) Moreover, “Failure to administer Miranda warnings creates a presumption of compulsion.” (Elstad, supra, 470 U.S. at p. 307.) And the Miranda presumption is irrebuttable for purposes of the prosecution’s case-in-chief. (Ibid.) “Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda.” (Ibid.)

In sum, “Miranda and later cases thus clearly establish that the voluntariness of an unwarned statement during a custodial interrogation is not sufficient to establish the statement’s admissibility.” (Reyes, supra, 833 F.3d at p. 1026.)

Elstad had held that an unwarned voluntary custodial confession followed by a voluntary warned confession did not require the exclusion of the second, warned confession. (Elstad, supra, 470 U.S. at p. 309.) But in Seibert, the high court limited its holding in Elstad. Seibert recognized “[t]he technique of interrogating in successive, unwarned and warned phases,” was a “new challenge to Miranda” that Elstad had not resolved. (Seibert, supra, 542 U.S. at p. 609 (plur. opn. of Souter, J.).)

In Seibert, a police officer in Rolla, Missouri, conducted an unwarned custodial interrogation of Seibert that was “systematic, exhaustive, and managed with psychological skill.” (Seibert, supra, 542 U.S. at p. 616 (plur. opn. of Souter, J.).) The unwarned custodial interrogation produced a confession. After a 20-minute coffee and cigarette break, the officer read Seibert her Miranda warnings, and she signed a written waiver. The officer then resumed questioning, reminding Seibert of her prewarning statements. (Id. at p. 605.) The officer later “testified that he made a ‘conscious decision’ to withhold Miranda warnings, thus resorting to an interrogation technique 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.’” (Id. at pp. 605-606.)

The Seibert plurality noted use of this two-step interrogation technique had been promoted and endorsed by national police training organizations. (Seibert, supra, 542 U.S. at pp. 609-610 (plur. opn. of Souter, J.).) But the purpose of the two-step interrogation was “to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.” (Id. at p. 611.) Justice Souter concluded: “It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.” (Id. at pp. 616-617.)

The Seibert plurality, in a footnote, also made clear that if a two-step interrogation technique violated Miranda, the voluntariness of the post-Miranda warning statement is irrelevant. (Seibert, supra, 542 U.S. at p. 617, fn. 8 (plur. opn. of Souter, J.).) In that circumstance, even a voluntary post-Miranda warning statement must be suppressed. (Ibid.) Justice Souter wrote, “Because we find that the warnings were inadequate, there is no need to assess the actual voluntariness of the statement.” (Ibid.)

Concurring in Siebert, Justice Kennedy agreed that, if deliberately employed, a two-part interrogation technique presented “different considerations” from earlier Miranda cases. (Seibert, supra, 542 U.S. at p. 620 (conc. opn. of Kennedy, J.).) Justice Kennedy’s concurrence narrowed Seibert’s holding to “those cases involving deliberate use of the two-step procedure to weaken Miranda’s protections.” (United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-58 (italics added).) But “the plurality and Justice Kennedy agreed that even a voluntary postwarning confession must be excluded where law enforcement officials deliberately withheld Miranda warnings until after obtaining an in-custody confession, and where insufficient curative measures had been taken to ensure that the suspect understood the meaning and importance of the previously withheld warnings.” (Reyes, supra, 833 F.3d at p. 1027.)

Thus, under Justice Kennedy’s narrower concurrence, a post-Miranda statement must be suppressed if the interrogating officers deliberately use the two-step interrogation technique, and if effective curative measures are not taken to ensure that the suspect genuinely understood the Miranda warnings. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) Justice Kennedy wrote: “Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver.” (Ibid.)

All told, if the deliberate two-step strategy has been used, a post-Miranda statement that is related to the substance of a pre-Miranda statement must be excluded unless curative measures are taken before the post-Miranda statement is made.

C. Deficient Performance - Miranda

Applying the above principles to the circumstances in this case, a challenge to the admissibility of defendant’s pre-Miranda statement was plainly warranted, despite the court’s voluntariness finding. Again, “Miranda and later cases thus clearly establish that the voluntariness of an unwarned statement during a custodial interrogation is not sufficient to establish the statement’s admissibility.” (Reyes, supra, 833 F.3d at p. 1026.)

The crucial question which should have been but never was litigated here is whether defendant was subjected to a custodial interrogation before he was given the Miranda warnings.[3] ‘“In applying Miranda . . . one normally begins by asking whether custodial interrogation has taken place. “The phrase ‘custodial interrogation’ is crucial.” (People v. Ochoa (1998) 19 Cal.4th 353, 401 (Ochoa).)

The Attorney General does not address the interrogation element, but a simple review of the transcript of defendant’s pre-Miranda statement reveals the issue is relatively clear-cut. Alvarado and Grover questioned defendant using aggressive and persistent interrogation techniques, such as calling him a liar and misrepresenting the state of the evidence, for two hours, behind a closed door, in a small interview room at the police station. That defendant endured an interrogation seems a forgone conclusion.

In determining whether an interrogation is custodial, courts look at a number of factors, including the time, place, and duration of the interrogation; together with other factors like, “whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview.” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404 (Pilster); quoting People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)

Many of the Pilster factors weigh in defendant’s favor and suggest he was in custody when he was interrogated. Four police officers appeared at his door and asked if he would voluntarily accompany them to the police station and give a statement. Although defendant was the only suspect, none of the police officers mentioned this fact.

Once at the station, defendant was led into a small room with two police officers and a closed door. Although Alvarado told defendant at the beginning he could stop the interview and leave at any time, Alvarado did not repeat this admonition and defendant was never given an opportunity to leave.

True enough, Alvarado used a measured tone of voice throughout the interview, the officers never drew their guns, and defendant was not handcuffed. But defendant had no previous experience with law enforcement, and Alvarado used aggressive and persistent questioning techniques.

The Attorney General cites Oregon v. Mathiason (1977) 429 U.S. 492, 493-495 and People v. Moore (2011) 51 Cal.4th 386, 402, to argue defendant was not in custody for Miranda purposes. We have no quibble with these cases. But in the end, we need not and, at this juncture, cannot determine whether defendant was in custody. This determination must instead be left to the trial court in the first instance, because it presents a mixed question of law and fact. (Ochoa, supra, 19 Cal.4th at p. 401.) “‘The first inquiry, all agree, is distinctly factual. . . .’” (Id. at p. 402, italics added.)

It is sufficient for our purposes to state there is no explanation for the challenged behavior, and the record affirmatively discloses counsel had no rational tactical purpose. (People v. Lucas (1995) 12 Cal.4th 415, 437 (Lucas).) Defendant’s pre-Miranda statement was arguably inadmissible under Miranda and Seibert (see discussion post). It was a critical part of the evidence, and the possibility of suppressing it offered his only realistic hope of crafting a viable defense to any of the charged offenses.

Accordingly, we hold defendant’s counsel’s failure to further challenge his pre-Miranda statement fell below an objective standard of reasonable competence.

D. Deficient Performance - Siebert

Once more applying the above principles to the circumstances in this case, a Siebert challenge to the admissibility of defendant’s pre-Miranda and post-Miranda statements was obviously required. Again, “even a voluntary postwarning confession must be excluded where law enforcement officials deliberately withheld Miranda warnings until after obtaining an in-custody confession, and where insufficient curative measures had been taken to ensure that the suspect understood the meaning and importance of the previously withheld warnings.” (Reyes, supra, 833 F.3d at p. 1027.)

So, there were two central questions which should have been but were not litigated. Did the officers deliberately use the two-step interrogation technique? Were effective curative measures taken to ensure defendant genuinely understood the import and effect of the Miranda warning and the Miranda waiver? (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) Neither of these questions was ever addressed.

The Attorney General does not discuss the curative measures question. It is easy to see why. There is no evidence any curative measures were taken, period.

The Attorney General does argue there is no evidence the officers employed the deliberate two-step interrogation technique, but that may well have been because defendant’s counsel never raised the issue. However, during cross-examination, defendant’s counsel asked Alvarado, “Is it safe for me to assume that the not reading of Miranda rights at the beginning of the interrogation is also a tactic that is used in order to encourage people to speak?” Alvarado responded, “I don’t know if I would say it’s a tactic.” There was no follow up question. There should have been a lot.

Alvarado also admitted he realized he could have read defendant his Miranda rights at any time, particularly after defendant started making inculpatory statements, but he decided not to do so. Instead, Alvarado waited until after defendant fully confessed to mention his constitutional right to remain silent. Plus, it only took Alvarado three minutes of questioning after giving the Miranda warnings to “confirm” what defendant had said during the two-hour pre-Miranda interrogation.

These facts support an inference the officers deliberately used the two-step interrogation technique and withheld the Miranda warnings until after obtaining an in-custody confession, all as expressly prohibited by Siebert, even though Alvarado never directly admitted he made a conscious decision to do so. Other objective facts which support this inference are, ‘“the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements.’ [Citation.]” (Camino, supra, 188 Cal.App.4th at p. 1370.)

As before, we need not, and at this juncture cannot, determine whether the officers use of the two-step interrogation technique was, or was not deliberate. And that, they key in a Siebert challenge, must be left to the trial court in the first instance, since it turns on facts and inferences. (Camino, supra, 188 Cal.App.4th at pp. 1370-1372.)

We understand we are required to defer to counsel’s reasonable tactical decisions in considering a claim of ineffective assistance of counsel. (Lucas, supra, 12 Cal.4th at p. 436.) Also, we recognize “there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Strickland, supra, 466 U.S. at p. 689]” (Lucas, at p. 437.)

Nevertheless, there is no explanation for the failure to assert Siebert, and the record affirmatively discloses no rational tactical purpose. Defendant’s appellate counsel argues his trial counsel’s statement he would reserve discussion of Siebert until after the court ruled on the voluntariness question, suggests trial counsel mistakenly believed Siebert only applied if the court found defendant’s pre-Miranda statement was involuntary. Maybe so. But of course, ignorance or misinterpretation of applicable law is not a rational tactical purpose. (Lucas, supra, 12 Cal.4th at pp. 440-441.)

For these reasons, we conclude defendant has carried his undeniably “difficult” burden on direct appeal (Lucas, supra, 12 Cal.4th at p. 437); and we hold defendant’s trial counsel’s failure to assert a Siebert challenge to both of his statements to the police was conduct which fell below an objective standard of reasonable competence.

E. Prejudice

As noted, even where deficient performance appears, the conviction must be upheld unless the defendant affirmatively demonstrates prejudice. (Strickland, supra, 466 U.S. at pp. 691–692.) “‘“Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”’ [Citation.]” (Lucas, supra, 12 Cal.4th at p. 436.)

Defendant has demonstrated prejudice. The district attorney primarily relied on J.F.’s C.A.S.T. interview at trial, because J.F. had forgotten a number of things in the intervening years, and there was no physical evidence or other eyewitnesses. Under these circumstances, defendant’s statements to the police were crucial to the prosecution. There is a reasonable probability defendant’s statements could have been excluded under Miranda and Siebert, as we have explained. There is also a reasonable probability the result of the trial would have been different if his statements had been excluded. This is particularly true considering the drastically different sentencing which could flow from being convicted of less than all of the charged offenses.[4]

Notwithstanding these facts, defendant’s counsel did not challenge the constitutionality of either of his statements to the police under Miranda and Siebert. His failure to do so all but ensured both of those extremely damaging statements would be admitted and used against him. Bearing in mind the importance of his statements to the district attorney’s case, we conclude there is a probability sufficient to undermine our confidence in the outcome in this case, due to his counsel’s deficient performance.

Consequently, the judgment must be reversed.

2. Other Issues

A. Voluntariness Finding

Defendant argues the court erred by finding his pre-Miranda statement was voluntary. We need not consider this argument, because the judgment is reversed.

B. Confidential School Records

Defendant asks us to review certain sealed and confidential records subpoenaed from J.F.’s schools which were reviewed by the trial court, and the Attorney General does not object. We reviewed these records in camera and we independently concluded the court did not abuse its discretion by denying defendant access to them. (See People v. Prince (2007) 40 Cal.4th 1179, 1286.)

C. Custody Credits

Finally, defendant asserts he is entitled to one additional day of presentence custody credit, and the abstract of judgment must be corrected accordingly. The Attorney General agrees. But we need not make the correction, because the judgment is reversed.

DISPOSITION

The judgment is reversed. The clerk of this court is directed to forward a copy of this opinion to the State Bar. (Bus. & Prof. Code § 6086.7, subd. (a)(2).)

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.