P. v. Li

Filed 8/31/07 P. v. Li CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Andrew Li was convicted, after a jury trial, of possession of cocaine. (Health & Saf. Code,  11350, subd. (a).) Appellant was granted probation. He contends his conviction must be reversed, because his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) were violated. We find no Miranda violation, and affirm.

I. FACTS AND PROCEDURAL HISTORY

Although appellant was charged in this matter with other crimes, he was only convicted by the jury on one charge relating to cocaine possession, and therefore we summarize the facts relevant to that charge, and appellants claim of a Miranda violation.

On the evening of April 23, 2005, appellant was with his codefendant Andre Cunningham and Shelli W., in a motel room on Broadway in San Francisco. The three of them drank beer, smoked crack cocaine, and engaged in sexual relations.

On the next morning, April 24, 2005, Officer Robert Merino of the San Francisco Police Department was dispatched to a room at the Royal Pacific Motor Inn on Broadway, to investigate a report of an argument in the room. Officer Merino found Shelli W. and Andre Cunningham in the room. Shelli W. was frightened, and said that Cunningham would not let her leave. She had injuries to her face, and said she had been beaten and raped. She also said another man, appellant, had previously left the room.

Later on the evening of that day, Officer Brian Oliver of the San Francisco Police Department responded to a call from the area of Broadway and Grant Streets, regarding a suspect fleeing the area. Officer Oliver saw a man matching the description of the suspect who was running down the street. Oliver helped to detain the man, who was appellant Andrew Li.

Officer David Frias of the San Francisco Police Department was also on duty on the evening of April 24, 2005, looking for the same fleeing suspect in the area of Broadway between Grant and Stockton. Frias took appellant into custody after a short struggle. While appellant had been running from the police, he had been carrying a black bag, which was found to contain marijuana and crack cocaine.

In the early morning of April 25, 2005, just before 1:00 a.m., Inspector Frank Lee of the San Francisco Police Department sought to interview appellant at San Francisco General Hospital, where appellant was being treated for minor injuries that he received in his struggle with the arresting officers. Lee gave appellant his Miranda warnings, but appellant replied no three times when asked if he wanted to talk, and said that he did not feel good now so Lee stopped the interview.

About 32 hours later, after 9:00 in the morning of April 26, 2005, Lee again attempted to talk with appellant, this time at the jail. Lee again gave appellant his Miranda warnings from his department issued Miranda card, and appellant talked to Lee this time. Appellant said that he had possessed the cocaine found in his black carry bag. Later, when Lee questioned appellant about Shelli W.s injuries, appellant said he did not want to talk anymore, so Lee ended the interview.

After a hearing to consider appellants objections to the admission of his statements to Lee, the trial court found that appellants Miranda rights had not been violated when Lee sought to interview appellant a second time, and allowed his statements to Lee to be admitted. At the time of trial, Officer Lee testified that appellant had admitted possessing the cocaine that had been found in his bag at the time he was detained.

Appellant was convicted by the jury on one count charging possession of cocaine, and was acquitted on all other charges. Appellant was granted probation.

II. DISCUSSION

Appellant contends his Miranda rights were violated when his statements to Officer Lee at the second interview, regarding possession of cocaine, were admitted into evidence at trial.

A. Standard of review

We apply a de novo standard of review to determine whether, on the undisputed facts presented, appellants Miranda rights were violated. (People v. Riva (2003) 112 Cal.App.4th 981, 988-989 (Riva).)

B. There was no Miranda violation.

Appellant contends that his Miranda rights were violated, because Officer Lee sought to interview him at the jail, about 32 hours after he had invoked his Miranda rights and had declined to speak with Lee at the hospital. We find no Miranda error.

It is well established that questioning must cease when a suspect invokes his Miranda rights at an interview, but this does not mean that the police are unable to again seek to interview a suspect on a subsequent occasion, if the appellants Miranda rights are scrupulously honored. (Michigan v. Moseley (1975) 423 U.S. 96, 102-105 (Moseley); accord, People v. Warner (1988) 203 Cal.App.3d 1122, 1130-1131 (Warner); Riva, supra, 112 Cal.App.4th at pp. 993-994.)

In Moseley, the federal Supreme Court addressed an analogous situation, in which a suspect had invoked his Miranda rights, and all questioning by the police officer ceased. After a hiatus of two hours, another officer sought to interview the suspect, and again provided Miranda warnings. The federal high court held that this procedure did not violate Miranda, because the suspects rights under Miranda were scrupulously honored. (Moseley, supra, 423 U.S. at pp. 102-106.)

Applying Moseley, the court in Warner, supra, 203 Cal.App.3d at pages 1130-1131, also found no Miranda violation in a similar situation, where an officer sought to interview a suspect and gave him his Miranda rights, which the suspect exercised by declining to talk. The next day, another interview was attempted; the suspect was again given his Miranda rights, and he made incriminating statements. The Warner court found no violation of Miranda, citing Moseley. (Warner, supra, 203 Cal.App.3d at pp. 1130-1131.)

The more recent case of Riva, presents circumstances similar to those before us. In Riva, a suspect was given his Miranda rights when he was arrested in the field after a shooting. The suspect made some statements, but then declined to speak further with the police officer right now. (Riva, supra, 112 Cal.App.4th at p. 994.) About an hour later, the suspect was again approached by the same officer at the jail, who did not repeat the Miranda warnings. The suspect made incriminating statements. The Court of Appeal found no Miranda violation from the subsequent interview, even though the suspect had invoked his Miranda rights at the first interview, and not been read his Miranda rights again before the second interview. (Id. at pp. 993-994.)

The court in Riva observed, Ideally, the Miranda warnings should be repeated before reinitiating the interrogation of a suspect who has invoked the right to remain silent, but the failure to do so is not fatal if the totality of the circumstances shows the suspect's waiver remains voluntary, knowing and intelligent. Our Supreme Court has identified factors the trial court should consider in determining whether readvisement is necessary. These include the amount of time that has passed since the waiver, any change in the identity of the interrogator or the location of the interview, any official reminder of the prior advisement, the suspect's sophistication or past experience with law enforcement, and any indicia that he subjectively understands and waives his rights. Any misconduct by the police in reinstituting the interrogation of course must also be taken into consideration. (People v. Riva, supra, 112 Cal.App.4th at pp. 993-994, fns. omitted, quoting People v. Mickle (1991) 54 Cal.3d 140, 170.)

In the present case, appellant declined to speak now with Officer Lee at the hospital, where appellant was being treated for minor injuries, and Lee scrupulously honored that invocation of appellants Miranda rights by ending the interview at that time. However, about 32 hours later, after appellant had been transferred to the jail, Lee again explained to appellant his Miranda rights, and again sought to interview appellant. Appellant then made certain statements regarding possession of cocaine, until he re-invoked his Miranda rights and the interview ended. Considering the totality of the circumstances, we conclude there was no Miranda violation here. The same officer familiar to appellant conducted both interviews and there is no suggestion of misleading conduct by him. Considering the passage of 32 hours between the interviews, readvisement was appropriate and was done.

Appellant attempts in his reply brief to suggest that Riva is distinguishable, because he claims the first invocation of Miranda in Riva was equivocal, whereas appellant in this case stated no three times, when declining to speak now with the officers. However, appellants characterization of the response as no, no, no three times is at odds with the transcript of the initial invocation.

Inspector Lee: Q. Do you want to talk to me? You have to say yes or no first. Appellant: A. Um-hum. Q. You say, no? Appellant: A. Yes, sir. Inspector Lee: Q. You dont want to talk to me? Appellant: A. No, Im not feel good now.

The officer apparently had to repeat his question in order to understand and clarify appellants answer to his first query. Appellants response may have been unclear because his first language is Cantonese, not English, and he has problems with English. More importantly, when Inspector Lee renewed his attempts to interview appellant, he in fact readvised appellant of his Miranda rights, the ideal that was absent in Riva. And we note that in both the present case and Riva, the suspect unequivocally stated that he did not wish to speak now, which reasonably suggested to the interviewing officer, equivocally, that he might wish to speak later. (See Riva, supra, 112 Cal.App.4th at pp. 993-994.) Appellant evidently did wish to speak later, because they did so, after Officer Lee re-admonished him regarding his Miranda rights. Appellants Miranda rights were scrupulously honored, and appellant then waived his rights. There was no Miranda violation. (Moseley, supra, 423 U.S. at pp. 102-103; Warner, supra, 203 Cal.App.3d at pp. 1130-1131; Riva, supra, 112 Cal.App.4th at pp. 993-994.)

As we find no error under Miranda, we need not address the Peoples additional argument that any such Miranda error would have been harmless in this case.

III. DISPOSITION

The judgment of conviction is affirmed.

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Jones, P.J.

We concur:

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Gemello, J.

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Needham, J.

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