P. v. Ontiveros

Filed 6/23/06 P. v. Ontiveros CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Allan J. Preckel, Judge. Affirmed.

A jury found Ontiveros guilty of first degree murder and conspiracy to commit murder and found true two special circumstance allegations. At the conclusion of the penalty phase of the trial, the jury returned a verdict of life in prison without the possibility of parole. On April 2, 2004, the court sentenced Ontiveros to life in prison without the possibility of parole for the murder conviction, and a concurrent term of 25 years to life for the conspiracy conviction. Ontiveros's appeal followed.

Ontiveros, a Mexican national whose native language is Spanish, challenges on two grounds the court's denial of his motion to suppress evidence of incriminating statements he made to the police during two interrogation sessions: (1) Due to his lack of proficiency in the English language, he did not knowingly and intelligently waive his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and (2) the court erred in finding under U.S. v. Lombera-Camorlinga (9th Cir. 2000) (en banc) 206 F.3d 882, cert. den. sub nom. Lombera-Camorlinga (2000) 531 U.S. 991 (Lombera-Camorlinga) and this court's decision in People v. Corona (2001) 89 Cal.App.4th 1426 (Corona), that although state and federal authorities failed to advise him of his right to contact the Mexican Consulate in violation of the Vienna Convention on Consular Relations (the Vienna Convention) and Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol), April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 and Penal Code section 834c,^[1] suppression of his statements to the police was not an appropriate remedy. We conclude that substantial evidence shows Ontiveros understood his Miranda rights, and voluntarily, knowingly, and intelligently waived those rights. We also conclude that suppression of the evidence of Ontiveros's self-incriminating statements is not an appropriate remedy for the violations of the Vienna Convention and section 834c that occurred in this matter, and thus the court did not err in denying his motion to suppress the evidence.

FACTUAL BACKGROUND

Ontiveros was a former employee of his codefendant Michael William Flinner.^[2] The prosecution's theory was that Flinner hired Ontiveros to kill Flinner's girlfriend, Tamra Keck, so that Flinner could collect the proceeds of her life insurance.

On June 11, 2000, at about 1:50 p.m., Keck was found shot to death in the back of the head with a .45-caliber firearm. She was found lying face up on the pavement in front of her Ford Mustang, which was parked in an isolated cul-de-sac on Tavern Road in the community of Alpine. The projectile exited her right cheek and lodged in the firewall of the engine compartment of the Mustang. The engine was still running, the air conditioning and radio were still on, and the hood was slightly ajar.

The blood spatter found under the hood and inside the engine compartment indicated that while the hood was open and Keck was facing the engine compartment, she was shot and fell forward into the engine compartment. Her body was turned over after she was shot. Keck's handbag, wallet, money and credit cards were still in the Mustang, suggesting she was not the victim of a robbery. A receipt from WalMart dated June 11, 2000, and time-stamped at 12:16 p.m., was also found in the car. Items listed on the receipt were found in the car, such as a pregnancy test kit.

On December 29, 1999, about six months before Keck was murdered, Flinner, accompanied by Keck, purchased a $500,000 term life insurance policy on Keck and named himself as the beneficiary. Flinner told the sales representative that Keck was his fiancée, she was an important part of his landscaping business, and he would suffer a financial loss if something happened to her. On the insurance application, Keck's annual income was reported to be $30,000. However, although Keck was occasionally reimbursed by Flinner for expenses for such things as office supplies, she was not a salaried employee of his landscape business in Alpine, and Flinner's business was not dependent upon her in any manner. Flinner's bookkeeper testified there was no indication in the financial records of the business that in 1999 Keck earned $30,000 working for Flinner. The bookkeeper also testified based on information in the general ledger that Flinner occasionally reimbursed Keck for expenses when she would buy office supplies for him, and he would occasionally pay her for her time, but not on a regular basis.

Robert Johnston, who worked for Flinner in 1999 and early 2000, testified that in late 1999 or early 2000 at the Sycuan Indian Reservation, Flinner asked Johnston whether he would be willing to kill Keck for money. Johnston replied, "No, I'm not an assassin."

In January 2000 Flinner told another employee, Charles Cahoon, that he had insured Keck and that he (Flinner) would be a millionaire if she died. Flinner asked Cahoon whether $10,000 would be enough to have somebody killed. Cahoon told Flinner not to even talk about it.

On June 10, 2000, the day before Keck was murdered, Flinner and Ontiveros went to a used car dealership in Mission Valley, and Flinner signed an agreement to borrow a white Nissan NX. The owner of the dealership testified that when Flinner took possession of the Nissan, he was with a Hispanic man whom Flinner identified as one of his employees.

On June 11, 2000, at around 10:21 a.m., Flinner drove his white Ford pickup truck to a dirt area just north of the Ultramar gas station on Tavern Road, where he stopped and made a cell phone call to his answering service. Flinner then drove to a Shell station on Tavern Road to purchase gasoline. Flinner told the Shell cashier he was in a hurry as he was late meeting with a friend down the street.

Video cameras at a Texaco gas station across the street from an Ultramar gas station recorded images of Ontiveros driving the Nissan NX and pulling into the back parking lot of the Ultramar station. Two minutes later, Flinner's pickup truck was captured by a camera traveling to the same location as the Nissan NX. At 10:44 a.m., the cameras captured both the Ford pickup and the Nissan NX traveling into the cul-de-sac where Keck's body was later found at 1:50 p.m. A witness saw two white vehicles parked in the cul-de-sac between 10:45 and 11:00 a.m. At 11:00 a.m., the Texaco station cameras captured both the Ford and the Nissan traveling out of the cul-de-sac and turning right on Tavern Road.

A Wal-Mart video showed Keck shopping inside the store later that day between about 12:00 p.m. and 12:17 p.m., and a receipt later found in her car indicated she made a purchase there at 12:16 p.m. While Keck was shopping at Wal-Mart, the Texaco station video showed the white Nissan NX returning to the cul-de-sac at 12:00 noon. A person (Ontiveros) then walked to the Ultramar gas station at 12:13 p.m., as shown on the Texaco station video.

Keck's cell phone records showed that she received two phone calls from Flinner while she was shopping at Wal-Mart. After she received those calls, Keck drove directly to the Ultramar gas station on Tavern Road, and her car was captured by both the Texaco and Ultramar stations video cameras at 12:30 p.m. as she pulled into the Ultramar station and picked up Ontiveros. Three minutes later, the white Nissan NX was captured on videotape driving out of the cul-de-sac. Keck's cell phone records revealed that she failed to answer calls placed to her phone at 12:49, 1:08 and 1:35 p.m. Later that afternoon, Flinner called the police and reported Keck's disappearance.

In July 2000 Flinner gave to Ontiveros a check made out to Ontiveros's father in the amount of $7,000, but the check was never cashed because it was a forged check.

On June 7, 2001, Ontiveros was interviewed in English by Detectives Rick Scully and Chris Serritella after Detective Scully advised Ontiveros of his Miranda rights. Ontiveros waived those rights.^[3]

On June 12, 2001, Ontiveros was interviewed in English by Detectives Scully and Franks after Detective Scully again advised Ontiveros of his Miranda rights. Ontiveros again indicated that he understood his rights and was willing to talk to the detectives.

DISCUSSION

I. MIRANDA

Ontiveros challenges the court's denial of his motion to suppress evidence of incriminating statements he made to detectives during the interrogation sessions that occurred in this case on June 7 and June 12, 2001. He first contends that he did not knowingly and intelligently waive his rights under Miranda, supra, 384 U.S. 436, due to his lack of proficiency in the English language. We reject this contention.

A. Applicable Legal Principles

In People v. Whitson (1998) 17 Cal.4th 229, the California Supreme Court explained that the United States Supreme Court has "made clear that in order to determine whether a defendant voluntarily, knowingly, and intelligently has waived his Miranda rights, a court analyzing the question must consider two distinct components: 'First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.] [¶] . . . [¶] . . . Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.' [Citation.] [¶] California law involving the implied waiver of a defendant's Miranda rights is in accord with the federal case authorities cited above. [Citations.]" (Whitson, supra, 17 Cal.4th at p. 247, quoting Moran v. Burbine (1986) 475 U.S. 412, 421, 422-423.)

"In determining whether a defendant knowingly and intelligently waived his Miranda rights, we consider, as one factor, any language difficulties encountered by the defendant during custodial interrogation. [Citation.]" (U.S. v. Garibay (9th Cir. 1998) 143 F.3d 534, 537.)

"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda[], supra, 384 U.S. 436, we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we '"give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.' [Citations.]" (People v. Wash (1993) 6 Cal.4th 215, 235-236.)

B. Background

1. The interviews

On June 7, 2001, before Ontiveros was interviewed by Detectives Scully and Serritella, Detective Scully advised Ontiveros regarding his Miranda rights, stating:

"Okay. Well, I want to talk to you about some things that happened here, in the United States, okay? Before I do that I want to read you your rights, okay? You have the right to remain silent. If you give up the right to remain silent anything you do say can and will be used in court against you. You have the right to speak to an attorney of your choice before questioning and have the attorney present during questioning. If you cannot afford an attorney, one will be appointed for you by the court prior to any questioning, if you so desire. The attorney will not cost you anything, the services are free. Do you understand each of these rights I explained to you?"

After Ontiveros indicated in English that he understood those rights, Detective Scully said to him, "Okay. Having in mind and understanding your rights as I've told you, are you willing to talk with me? You nodded your head up and down, yes or no?" Ontiveros responded, "Yes." The detectives then began asking him questions. At one point during the interview, Ontiveros returned to the topic of his Miranda rights, stating, "I know I have a right to get a lawyer or whatever . . . ." Detective Scully replied, "Right." Detective Scully then said, "We told you that," and Ontiveros responded, "I know."

During this first interview, Ontiveros stated that he went to a Mission Valley car dealership to pick up a Nissan NX. He admitted that on the date of Keck's death, he drove the Nissan NX to the Ultramar gas station on Tavern Road in Alpine, then followed Flinner to the cul-de-sac where Flinner told him what he wanted him to do. Ontiveros was to leave the Nissan in the cul-de-sac, and Keck would be told that she needed to pick him up because his battery needed a jump. Ontiveros followed Flinner's instructions and later drove the Nissan to the cul-de-sac, left it there, and walked back to the gas station. Keck picked him up at the station and he rode with her back to the cul-de-sac.

Ontiveros also told the detectives that he got out of Keck's Mustang and left the passenger door open. He indicated the Nissan had been left in the cul-de-sac to make it look like he needed to have the battery jumped and that Keck opened the hood of the Mustang. Ontiveros indicated he then fled, stating, "I fly away." He admitted that he lured Keck into the cul-de-sac and knew she was going to be killed, but denied that he shot her. He claimed that Flinner had offered him $25,000 to kill Keck, but he never received the money. Ontiveros also claimed that he had agreed to take Keck into the cul-de-sac, but that someone else would shoot her.

On June 12, 2001, Ontiveros was again interviewed in English, this time by Detectives Scully and Franks. Detective Scully again advised Ontiveros of his Miranda rights, and Ontiveros again indicated that he understood those rights. Detective Scully then asked, "Having in mind and understanding your rights as I've told you, are you willing to talk to me?" The following exchange then took place between Detective Scully and Ontiveros:

"[Ontiveros:] Si.

"[Detective Scully:] Okay. So, you said Si, you mean yes?

"[Ontiveros:] No, I mean, see I don't understand what you said in the last . . . .

"[Detective Scully:] Okay. Having in mind and understand[ing] your rights as I've [told you], are you willing to talk to me?

"[Ontiveros:] Oh, if I understand if I can talk to you without a lawyer?

"[Detective Scully:] Yeah.

"[Ontiveros:] Yes."

Ontiveros stated that Flinner asked him whether he was interested in killing Keck, and he admitted that on the day Keck was killed, she picked him up at the Ultramar station and he rode with her back to the cul-de-sac. He said Keck thought that the battery in his car was dead. Ontiveros indicated that he opened the passenger door and got out of Keck's Mustang, Keck opened the hood, and, as she was getting the cables to jump start the "little white car" that he had driven there earlier in the day, he got into the white car and drove away, leaving her in the cul-de-sac. He said he did not shoot Keck.

2. Ontiveros's motion to suppress evidence

Ontiveros brought a pretrial motion to suppress the statements he made to the detectives during the two June 2001 interviews on the grounds that his lack of proficiency in English, and his below-average IQ, prevented him from giving a knowing and intelligent waiver of his Miranda rights. Audio tapes and transcripts of the interviews were provided to the court.

In April 2002 the court held a five-day evidentiary hearing on Ontiveros's suppression motion. The defense presented two expert witnesses who had interviewed Ontiveros and tested his proficiency in English. Dr. Roseanne Gonzalez, an English professor at the University of Arizona who specializes in applied linguistics, testified that she rated him "English language handicapped." During the oral proficiency exam, Ontiveros displayed only a "memorized proficiency" in English in order to survive in a job setting. She stated he was working with an English vocabulary of about 500 words, which a first grader would need to read a primer in English. On a scale of 0 to 5 in terms of language proficiency, she rated Ontiveros as a 1 plus, meaning that he can create with language, ask and answer some questions, and participate in short conversations. Dr. Gonzalez opined that Ontiveros did not understand his Miranda rights.

The defense also presented the expert testimony of Dr. Francisco Gomez, a licensed psychologist. Dr. Gomez testified that he administered the WAIS III intelligence test in English, the results of which showed a full scale IQ of 82, which placed Ontiveros in the borderline category of intellectual functioning. Ontiveros's verbal IQ score in English was 70, which placed him in the mildly retarded range. However, his performance score, which is less affected by language, was 100, which is the average. Dr. Gomez attributed the difference between Ontiveros's verbal and performance results to language deficiency and opined that his verbal comprehension in English is very low.

Dr. Gomez stated that Ontiveros suffers from anxiety when he speaks English, and he "doesn't know the system here." He asked Ontiveros about his prior criminal record in the United States, and Ontiveros told him he had been arrested for transporting drugs across the border. When the prosecutor asked whether the concept of a right to an attorney during questioning has any meaning in Mexican culture, Dr. Gomez replied, "No." Dr. Gomez evaluated Ontiveros's history of using alcohol and determined that Ontiveros's drinking had escalated to the point where he was drunk three or four times a week. Dr. Gomez opined that Ontiveros did not understand his Miranda rights, and he did not knowingly and intelligently waive those rights during either of the June 2001 interviews in this matter.

The prosecution presented the testimony of several witnesses who had worked with Ontiveros. Their testimony (discussed, post) indicated they were able to communicate with Ontiveros in English.

The court denied Ontiveros's motion to suppress evidence of the incriminating statements he made during the June 2001 interviews. The court stated: "When one steps back and views the totality of the evidence bearing upon this motion, the individual pixels blend together so as to present a very clear image that [Ontiveros] did indeed have a full awareness of his [Miranda] rights and did, in fact, give a valid waiver. [¶] It is further the court's ruling that suppression of [his] statements is not warranted by virtue of their asserted unreliability. To the contrary, [Ontiveros's] statements concerning the commission of and information attendant to the crime are very reliable and repeatedly corroborated and validated by independent evidence. And though [Ontiveros] does not speak the King's English, overall his statements and responses to questions are cogent and understandable. And thus for the reasons stated, the motion to suppress is denied."

C. Analysis

Substantial evidence supports the court's findings that Ontiveros's ability to speak and comprehend English was sufficient at the time the interviews were conducted to enable him both to understand his Miranda rights and to knowingly and intelligently waive those rights; and that he gave a valid waiver. The record shows that before Detective Scully advised Ontiveros of his Miranda rights on June 7, 2001, he asked Ontiveros several questions in English that Ontiveros answered appropriately. For example, when Detective Scully asked Ontiveros for his full name, Ontiveros gave his name and then corrected Detective Scully when he misspelled it.^[4] Detective Scully asked Ontiveros for his date of birth and home address. Ontiveros's answers, in English, were responsive and appropriate.

After Ontiveros demonstrated his ability to understand and communicate in English, Detective Scully advised him of his Miranda rights. When asked whether he understood those rights, Ontiveros answered, "Yes." Detective Scully then asked whether Ontiveros wanted to speak with him. Ontiveros nodded his head up and down, and said, "Yes."

Ontiveros's answers to Detective Scully's questions during the rest of the interview were also responsive and appropriate. For example, when Ontiveros stated that Flinner wanted him to "do it," Detective Scully asked for clarification, and Ontiveros said, "To kill Tammy [Keck]." When Detective Scully asked him for his phone number in Tijuana, Ontiveros replied, "Right now? 'Cause when I was working with [Flinner] I have a cellular, but I don't have the same number." Detective Scully then asked, "What was your cellular number back then?" Ontiveros answered, "I don't remember that." Detective Scully later asked Ontiveros, "So, when [Flinner] leads you down into that cul-de-sac that morning, what does he tell you?" Ontiveros replied, "To tell Tammy to give me a jump."

When he testified during the evidentiary hearing on the motion to suppress, Detective Scully indicated that during the interview Ontiveros's explanations "made perfect sense," and he believed Ontiveros understood English well enough to communicate with him in a meaningful way.

The testimony of several prosecution witnesses who had worked with Ontiveros also demonstrated Ontiveros's ability to understand and communicate in English. Ronald Millard stated he worked with Ontiveros at Alpine Landscaping. Flinner, the owner of the business, was Millard's immediate supervisor. Millard, who did not speak Spanish, testified that he had no problem at all in communicating with Ontiveros in English. He stated he had no experience in landscaping when he started working for Alpine Landscaping, and Ontiveros explained to him how to do the work, such as how to grade the dirt and plant shrubs and trees. On those occasions when Millard would use a "big" word that Ontiveros did not understand, such as "pathetic," Ontiveros would ask him for clarification.

Robert Johnston testified he worked with Ontiveros at Alpine Landscaping on a daily basis for a period of about 15 months. Johnston stated that he and Ontiveros socialized and had many conversations in English about family and work. Johnston once visited Ontiveros and his family in Mexico after Ontiveros gave him directions in English on how to get to Ontiveros's home.

Robert Pittman stated he worked for Flinner's landscaping company and worked with Ontiveros during a period of several months. During that time, Pittman, who does not speak Spanish, had no problem understanding Ontiveros when Ontiveros spoke in English with him.

In assessing Ontiveros's ability to comprehend English, the court considered substantial evidence regarding Ontiveros's prior criminal history and his prior contacts with immigration officials, which also showed he was familiar with his Miranda rights. The testimony of San Diego County Deputy Sheriff Frank Cannon indicated that Ontiveros was taken into custody at the United States-Mexico border on September 13, 1995, for transporting marijuana into the United States in a car. Deputy Cannon, who does not speak Spanish, testified that on that date, he admonished Ontiveros of his Miranda rights in English. Ontiveros replied, "I understand." When Deputy Cannon asked him whether he understood his rights, Ontiveros said, "Yes, sir." When asked whether he would give a statement, Ontiveros explained in English that the car he was driving at the time of his arrest did not belong to him, and he did not know the marijuana was in the vehicle.

Michael Ramon, a customs inspector at the Tecate port of entry, indicated in his testimony that on January 16, 1996, he contacted Ontiveros in the secondary inspection area. Ramon inspected Ontiveros's van and noticed that some of the gas tank screws were loose and that the tank apparently had been removed. Ontiveros declared that he was a United States citizen and that he was not bringing anything into the United States from Mexico. Ramon indicated that he detained Ontiveros and that a search of the van led to the discovery of a compartment inside the gas tank. Inside that compartment Ramon found more than 32 pounds of marijuana.

Deputy Cannon testified that on January 16, 1996, following Ontiveros's arrest, he advised Ontiveros of his constitutional rights in English, and Ontiveros said that he understood his rights and was willing to make a statement. Ontiveros told Deputy Cannon that he was going to be paid $2,000 to drive the marijuana to the San Ysidro area and that he was supposed to park the van in a parking lot close to the border, lock it, and give the key and parking receipt to someone in Tijuana in order to get paid. Ontiveros said he knew there was marijuana in the vehicle. Based on Ontiveros's responses, Deputy Cannon believed Ontiveros understood English.

The foregoing substantial evidence amply supports the court's findings that Ontiveros understood his Miranda rights in this matter and that he knowingly and intelligently waived those rights. Accordingly, we conclude the court did not err in denying Ontiveros's motion to suppress the evidence of the incriminating statements he made during the June 2001 interviews.

II. VIENNA CONVENTION AND SECTION 834C

Ontiveros also contends the failure to accord him his consular rights under the Vienna Convention and section 834c requires suppression of his statements to the police. Specifically, he claims the court erred in finding that although the law enforcement officers who interviewed him violated article 36 of the Vienna Convention and section 834c by failing to advise him of his right to contact the Mexican Consulate, under Lombera-Camorlinga, supra, 206 F.3d 882, and this court's decision in Corona, supra, 89 Cal.App.4th 1426, suppression of his statements to the authorities was not an appropriate remedy. We conclude that suppression of the evidence of a foreign national's self-incriminating statements is not an appropriate remedy for a violation of article 36 of the Vienna Convention or section 834c, and thus the court did not err in denying Ontiveros's motion to suppress the evidence of his postarrest statements.

A. Court's Ruling

In denying Ontiveros's motion to suppress, the court found that suppression of the evidence of statements he gave to the detectives in the absence of consular assistance was not a remedy for any violation of article 36 of the Vienna Convention and section 834c that occurred in this matter. The court stated: "Addressing first the issue of asserted nonadvisement of the right to contact the Mexican Consulate, the court denies the motion on that ground. Contrary to the defense arguments, suppression of [Ontiveros's] statements is not the remedy for a violation of [section 834c] or article 36 of the Vienna Convention. Neither the statute nor the treaty sets forth a remedy if law enforcement officers fail to inform a foreign national of his right to communicate with his country's consulate. The court finds precedence for its ruling in [Corona, supra, 89 Cal.App.4th 1426, a] 2001 decision of the [Fourth] District, Division One of the Court of Appeal[,] and further finds precedent for its ruling in the case of [Lombera-Camorlinga, supra, 206 F.3d 882], a decision of the [Ninth] Circuit from 2000 . . . ."

B. The Vienna Convention and Section 834c

"The Vienna Convention is a 79-article, multilateral treaty signed by the United States and Mexico. [Citation.] It was negotiated in 1963 and ratified by the United States Senate in 1969. [Citation.] Its provisions cover a number of issues, including arrest of a foreign national, that require[] consular intervention or notification. [Citation.]" (Corona, supra, 89 Cal.App.4th at pp. 1428-1429, citing Lombera-Camorlinga, supra, 206 F.3d at p. 884.)

Article 36 of the Vienna Convention "deals with what a member state must do when a foreign national is arrested." (Lombera-Camorlinga, supra, 206 F.3d at p. 884.) Article 36(1)(b) provides: "1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: [¶] . . . [¶] (b) if he [or she] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his [or her] rights under this sub-paragraph." (Italics added; Corona, supra, 89 Cal.App.4th at p. 1429, citing the Vienna Convention, 21 U.S.T. at p. 101.)

Section 834c, subdivision (a)(1) provides: "In accordance with federal law and the provisions of this section, every peace officer, upon arrest and booking or detention for more than two hours of a known or suspected foreign national, shall advise the foreign national that he or she has a right to communicate with an official from the consulate of his or her country, except as provided in subdivision (d). If the foreign national chooses to exercise that right, the peace officer shall notify the pertinent official in his or her agency or department of the arrest or detention and that the foreign national wants his or her consulate notified."^[5] (Italics added.)

C. Analysis

On appeal, the People acknowledge that the evidence presented at the hearing on Ontiveros's suppression motion "established that sheriff['s] deputies did not advise [him] of any rights that he may have under the Vienna Convention," and the detectives also did not advise him of his rights under section 834c. The People argue, however, that "[n]either federal nor state cases analyzing violations of article 36 of the Vienna Convention have held that there is a personally enforceable right or that the exclusionary rule applies to violations," and section 834c contains no provisions indicating that the Legislature intended the exclusion of evidence to be a remedy for a violation of that section

In the majority opinion in Lombera-Camorlinga, supra, 206 F.3d 882, the United States Court of Appeals, Ninth Circuit, held that in a criminal prosecution, exclusion of evidence obtained as the result of postarrest interrogation is not a judicial remedy for a violation of that article, regardless of any personal rights that are created under article 36 of the Vienna Convention. (Lombera-Camorlinga, supra, 206 F.3d at p. 885.) The Ninth Circuit explained that the Vienna Convention "does not link the required consular notification in any way to the commencement of police interrogation. Nor does the treaty, as Miranda does, require law enforcement officials to cease interrogation once the arrestee invokes his right. [Citation.] Furthermore, while the rights to counsel and against self-incrimination are secured under the Fifth and Sixth Amendments to our own Constitution and are essential to our criminal justice system, they are by no means universally recognized or enforced. [Citations.] There is no reason to think the drafters of the Vienna Convention had these uniquely American rights in mind, especially given the fact that even the United States Supreme Court did not require Fifth and Sixth Amendment post-arrest warnings until it decided Miranda in 1966, three years after the treaty was drafted." (Lombera-Camorlinga, supra, 206 F.3d at p. 886.)

The Ninth Circuit's Lombera-Camorlinga majority concluded that "[t]he language of the Vienna Convention and its operation over the last 30 years support the government's position that a foreign national's post-arrest statements should not be excluded solely because he made them before being told of his right to consular notification." (Lombera-Camorlinga, supra, 206 F.3d at p. 888.) In U.S. v. Velarde-Gomez (9th Cir. 2001) 269 F.3d 1023, 1036, a Ninth Circuit majority reaffirmed the holding in Lombera-Camorlinga, rejecting the defendant's claim that the district court erred in denying his motion to suppress his statements taken in violation of article 36 of the Vienna Convention.

In Corona, supra, 89 Cal.App.4th 1426, this court in early June 2001 followed Lombera-Camorlinga, noting that "[b]ecause the exclusionary rule is the sanction for a violation of uniquely American rights, there is no indication the drafters of the Vienna Convention intended the exclusionary rule be used as a remedy for its violation." (Corona, supra, 89 Cal.App.4th at p. 1429.)

Citing two post-Corona decisions of the International Court of Justice (ICJ)─(LaGrand Case (F.R.G. v. U.S.) 2001 I.C.J. No. 104 (June 27) (LaGrand), decided in late June 2001, and Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) 2004 I.C.J. No. 128 (March 31) (Avena), decided in March 2004─for the proposition that individuals have enforceable rights under article 36 of the Vienna Convention, Ontiveros urges this court to reconsider Corona and hold that foreign national criminal defendants have rights under article 36 of the Vienna Convention that they may enforce in United States criminal courts by means of a motion to suppress evidence. He also asserts that Corona arose before the enactment of section 834c,^[6] and thus did not address that section.

We reaffirm our holding in Corona, supra, 89 Cal.App.4th at pages 1429-1430, that even if article 36 of the Vienna Convention creates personally enforceable rights, exclusion of evidence is not a remedy in criminal cases for violations of that article. Ontiveros acknowledges that the Vienna Convention is silent on the issue of whether suppression of evidence is a remedy for a violation of article 36. (See Lombera-Camorlinga, supra, 206 F.3d at p. 887 ["the Vienna Convention is silent─and therefore ambiguous, at best─on whether or not suppression is an appropriate remedy"].) In Corona, we explained that we did not need to resolve the issue of whether the Vienna Convention created a personally enforceable right "because the Ninth Circuit has held that regardless of what personal rights the Vienna Convention creates, suppression of evidence is not an appropriate remedy for violations of article 36." (Corona, supra, 89 Cal.App.4th at p. 1429, fn. omitted, italics added, citing Lombera-Camorlinga, supra, 206 F.3d at p. 885.) Indeed, the Ninth Circuit stated in Lombera-Camorlinga that, "assuming that some judicial remedies are available for the violation of Article 36, the exclusion in a criminal prosecution of evidence obtained as the result of post-arrest interrogation is not among them." (Lombera-Camorlinga, supra, 206 F.3d at p. 885.)

The ICJ's LaGrand and Avena decisions do not undermine the analytical underpinnings of Lombera-Camorlinga, supra, 206 F.3d 882, and its decisional progeny, including Corona, supra, 89 Cal.App.4th 1426. In LaGrand, supra, 2001 I.C.J. No. 104, paragraph 77, the ICJ held that "Article 36, paragraph 1, [of the Vienna Convention] creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person." (Italics added.)

Given the foregoing language used by the ICJ in articulating its holding in LaGrand, it remains an open question whether article 36 of the Vienna Convention creates legally enforceable individual rights that a foreign national criminal defendant may assert in the United States in a state criminal proceeding such as the one at issue in the instant appeal. In stating that the individual rights created by article 36, paragraph 1, of the Vienna Convention "may" be invoked in "this Court by the national State of the detained person," the ICJ in LaGrand appears to have limited the enforcement of those rights to a judicial proceeding in the ICJ and not by the detained person, but by the "national State" of that person and at the discretion of such state. Thus, the plain language of the LaGrand opinion indicates that the ICJ did not hold that foreign national criminal defendants have rights under article 36 of the Vienna Convention that they may personally enforce in a state criminal proceeding.

This interpretation of LaGrand was adopted by the Virginia Supreme Court, which concluded in Bell v. Commonwealth (2002) 264 Va. 172 [563 S.E.2d 695] (Bell) that the ICJ "did not hold that Article 36 of the Vienna Convention creates legally enforceable individual rights that a defendant may assert in a state criminal proceeding to reverse a conviction. Instead, the ICJ stated that 'Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in [the ICJ] by the national State of the detained person.' [Citation, italics added.]" (Bell, supra, 563 S.E.2d at p. 706.) The Bell court stated that "[t]he ICJ also held that if the United States should fail in its obligation under Article 36, then the United States should allow review of the conviction and sentence by taking into account the violation of the rights set forth in the Vienna Convention. However, the ICJ recognized that the 'obligation can be carried out in various ways' and that '[t]he choice of means must be left to the United States.' [Citation.]" (Bell, supra,563 S.E.2d at pp. 706-707.)

In Avena, as Ontiveros points out, the ICJ reaffirmed its holding in LaGrand that article 36 of the Vienna Convention gives rise to "individual rights." (Avena, supra, 2004 I.C.J. No. 128, ¶ 40.) The ICJ also stated in Avena, however, that in the LaGrand case, it "left to the United States the choice of means as how to review and reconsideration should be achieved . . . ." (Avena, supra, at ¶ 41, italics added.) This language strongly suggests the ICJ recognized that the courts in the United States could properly conclude─as did the Ninth Circuit in Lombera-Camorlinga, supra, 206 F.3d 882, and this court in Corona, supra, 89 Cal.App.4th 1426─that suppression of evidence is not a remedy in a criminal proceeding in the United States for a violation of article 36 of the Vienna Convention.

In any event, for reasons explained in Lombera-Camorlinga and Corona (discussed, ante), suppression of evidence is not a remedy for a violation of the Vienna Convention, even if article 36 of that convention creates individual rights. (Lombera-Camorlinga, supra, 206 F.3d at p. 885; Corona, supra, 89 Cal.App.4th at p. 1429.)

Our decision to reaffirm Corona finds support in recent secondary sources. One commentator has noted that since LaGrand, federal courts addressing whether suppression is a remedy for the seizure of inculpatory evidence from a foreign national before he was informed of his right to consular notification and access under the Vienna Convention have held that suppression is not warranted for a violation of article 36 of that convention. (See Bishop, The Unenforceable Rights to Consular Notification and Access in the United States: What's Changed Since the LaGrand Case? (2002) 25 Hous. J. Int'l L. 1, 58-59 & fn. 352, citing U.S. v. Contreras-Cortez (10th Cir. 2002) 41 Fed.Appx. 252 [2002 WL 734772] [holding at p. 255 that "even if the Vienna Convention creates individual rights, which remains an open question, suppression is not an available remedy for the violation thereof"]; U.S. v. Carrillo (7th Cir. 2001) 269 F.3d 761, 771, cert. den. & U.S. v. Robinet (9th Cir. 2001) 27 Fed.Appx. 895, 897 [2001 WL 1631475].)

Another commentator recently suggested that because suppression of evidence is not a remedy that courts in the United States are willing to recognize as a cure for a violation of article 36 of the Vienna Convention, the courts can and should allow parties to explore greater enforceability in the "civil arena" through actions for monetary and injunctive relief under section 1983 of title 42 of the United States Code^[7] and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 U.S. 388 (Bivens).^[8] (Harrill, Exorcising the Ghost: Finding a Right and a Remedy in Article 36 of the Vienna Convention on Consular Relations (2004) 55 South Carolina L.Rev. 569, 570-571, 586-590.)

Section 834c also does not undermine the analytical underpinnings of Corona. That section contains no provision indicating the Legislature intended that exclusion of evidence be a remedy for a violation of its provisions.

For the foregoing reasons, we conclude the court correctly denied Corona's suppression motion.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Apartment Manager Lawyers.

^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] The jury found Flinner guilty of first degree murder and other charged offenses and returned a death sentence verdict against him.

^[3] This interview was tape recorded and transcribed, and the tape was played for the jury during the trial.

^[4] The indictment indicates that Ontiveros is also known as Juan Carlos Delatorre, and this is the name Ontiveros gave to Detective Scully during the interview.

^[5] Section 834c continues as follows to provide in full: "[(a)](2) The law enforcement official who receives the notification request pursuant to paragraph (1) shall be guided by his or her agency's procedures in conjunction with the Department of State Guidelines Regarding Foreign Nationals Arrested or Detained in the United States, and make the appropriate notifications to the consular officers at the consulate of the arrestee. [¶] (3) The law enforcement official in charge of the custodial facility where an arrestee subject to this subdivision is located shall ensure that the arrestee is allowed to communicate with, correspond with, and be visited by, a consular officer of his or her country. [¶] (b) The 1963 Vienna Convention on Consular Relations Treaty was signed by 140 nations, including the United States, which ratified the agreement in 1969. This treaty guarantees that individuals arrested or detained in a foreign country must be told by police 'without delay' that they have a right to speak to an official from their country's consulate and if an individual chooses to exercise that right a law enforcement official is required to notify the consulate. [¶] (c) California law enforcement agencies shall ensure that policy or procedure and training manuals incorporate language based upon provisions of the treaty that set forth requirements for handling the arrest and booking or detention for more than two hours of a foreign national pursuant to this section prior to December 31, 2000. [¶] (d) Countries requiring mandatory notification under Article 36 of the Vienna Convention shall be notified as set forth in this section without regard to an arrested or detained foreign national's request to the contrary. Those countries, as identified by the United States Department of State on July 1, 1999, are as follows: [¶] (1) Antigua and Barbuda. [¶] (2) Armenia. [¶] (3) Azerbaijan. [¶] [53 additional specified countries]. [¶] However, any countries requiring notification that the above list does not identify because the notification requirement became effective after July 1, 1999, shall also be required to be notified."

^[6] Section 834c was enacted by Statutes 1999, chapter 268, section 1.

^[7] Title 42 United States Code section 1983 provides in part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

^[8] We express no opinion on the question of whether the remedies for a violation of the Vienna Convention include a civil action for relief under section 1983 of title 42 of the United States Code and Bivens, supra, 403 U.S. 388.