P. v. Holguin

Filed 3/20/06 P. v. Holguin CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed.

David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Attorney General, and S.A. Tyler, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted Herbert Holguin of second degree murder (Pen. Code, § 187, subd. (a)), during which he used a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). He was sentenced to prison for 15 years to life plus one year. He appeals, claiming the trial court erred in denying his motion to exclude statements he made during a pretrial polygraph examination and follow-up interview on the ground that he was not given and waived his Miranda^[1] rights before either set of statements. We reject his contentions and affirm.

Facts

Holguin and his uncle beat the victim to death and buried him in Holguin's backyard on September 22, 1997.

The victim, who was Holguin's best friend, did not return home from Holguin's house where he had gone the night of September 22, and was not located by family members or friends the following day. During the early evening hours of September 23, the 15-year-old Holguin was at the home of his mother's sister and brother-in-law when he told his mother that her brother (hereinafter, Holguin's uncle), who was staying at Holguin's house, had killed the victim and had made Holguin help bury the victim in the backyard. Holguin's mother and her brother-in-law wanted Holguin to tell the police what had happened to the victim, so the two and Holguin went to a nearby fast food restaurant, where, with Holguin's knowledge, the mother called the police, asking the latter to meet them at her house. A sheriff's department sergeant, who was aware that Holguin knew something about the victim's whereabouts, that the victim was last seen at Holguin's house and that Holguin's uncle may have done something to the victim, went to the house a few hours later. During a brief interview with the sergeant at his home, Holguin said that his uncle had killed the victim and he and the uncle had buried the victim's body in the northwest corner of the backyard. At the end of the interview, the sergeant left Holguin's house, without arresting him. The trial court ruled that this interview did not require Miranda warnings and Holguin here does not take issue with this conclusion.

A plainclothes homicide detective arrived at Holguin's house after the latter's interview with the sergeant. The detective told Holguin he needed to talk to him and he asked Holguin if the latter wouldn't mind coming with him to the station. The detective twice told Holguin that when he was finished, he would bring Holguin back to his house or take him to another place of Holguin's choosing if the crime scene processing at Holguin's home was not at a stage where the residents could reoccupy the house.^[2] The detective told Holguin that he was not under arrest and Holguin said he understood this. The detective drove Holguin on the 10-minute trip to the station in the detective's unmarked car, with Holguin sitting in the front seat, next to the detective. Neither at Holguin's house nor during the drive did the detective tell Holguin that he was a suspect or was believed to be involved in the killing. Holguin was questioned in an unlocked staff conference room at the secured station. Holguin had not asked that his mother be allowed to accompany them to the station, nor did he ask to speak to her or another relative at his home, during the ride or at the station. He was cooperative throughout the taped one hour forty-five minute interview. During the interview, Holguin said that his uncle hit the victim with his elbow, fists and feet. He said the victim was alive when his uncle sent him to get duct tape and a T-shirt. Holguin admitted helping his uncle drag the victim to the pig pen in Holguin's backyard. It was unclear whether Holguin believed the victim was alive while he was being dragged. Holguin said he helped his uncle bury the victim. At the end of the interview, Holguin was reunited with his mother, who was also at the station being questioned by another officer, and they left. The trial court ruled that this interview was not custodial and Holguin here does not take issue with this conclusion.

During the afternoon of September 24, Holguin and his mother arrived at their home while the backyard was still being processed. The case agent, in plainclothes, asked Holguin if he would do a video reenactment of the crime. Without hesitation, Holguin agreed. Holguin's mother did not object. Holguin neither asked for his mother, who remained in the front yard while Holguin went to the back for the reenactment, nor did she ask to be with him. The case agent did not tell Holguin he couldn't leave or that he was under arrest. In fact, he told Holguin that the latter was free to leave and was not under arrest. No promises were made to Holguin about arrest and there was no discussion about the possibility of him being charged or prosecuted. During the reenactment, Holguin said his uncle had hit the victim with his fists and feet and had dropped a barbell three to four times on the victim's head. Holguin said that he hit and kicked the victim because he was mad at him. He said he helped his uncle drag the victim part of the way to the pigpen, his uncle put the victim in the pit in the pen and he helped cover the victim with dirt. The case agent testified that he did not consider giving Holguin his Miranda rights or detaining him even after Holguin said he had kicked the victim in the head. He also testified that the uncle remained the main suspect. The trial court concluded that the reenactment was not custodial and Holguin does not here take issue with this.

The case agent called Holguin, his mother and her brother-in-law^[3] and talked to them about Holguin taking a polygraph examination. The agent told Holguin that the police had two versions of events -- Holguin's and his uncle's-- and they needed to verify Holguin's. Holguin agreed to submit to the examination. Holguin's mother and her brother-in-law were supportive of Holguin's decision. The case agent drove Holguin and his mother during the 30 to 45 minute trip to sheriff's headquarters in San Bernardino. He left Holguin and his mother in the lobby for 10 to 15 minutes while he talked to the examiner, who was not a deputy sheriff, but a â€