P. v. Williams

Filed 6/29/06 P. v. Williams CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

Following a jury trial, appellant was convicted of one felony count of first degree burglary and one misdemeanor count of being under the influence of methamphetamine. (Pen. Code, §§ 459-460, Health & Saf. Code, § 11550, subd. (a).) In a separate proceeding, the trial court found true allegations that appellant had suffered two prior strike convictions. (Pen. Code, § 667, subds. (b) – (i).) The court sentenced appellant to a state prison term of 25 years to life. Appellant contends that evidence of statements he made during police interrogations was inadmissible because the statements were obtained in violation of his Miranda rights and were involuntary.[1] He further contends that his conviction for burglary is unsupported by the evidence and violates his due process rights. He contends, "The trial court erred and violated appellant's due process rights by admitting evidence of prior sexual offenses, evidence of appellant's character or disposition, and other evidence contained in the tapes and transcripts of the police interrogations." He also contends that he received ineffective assistance of counsel, that the trial court erred in refusing to discharge a juror and that the prosecutor engaged in misconduct. We affirm.

Evidence at Trial

Appellant was charged with entering his neighbor's home with the intent to commit a sexual offense. Robert and Terry Bauer lived with their son and daughter in the Willow Glen neighborhood of San Jose. Appellant lived next door with his mother and a friend. Between July and October 2002, Robert had a couple of brief conversations with appellant. A few days before the offenses here, appellant "kind of cornered" Terry in her driveway and they had what she described as a "bizarre conversation." Terry testified that appellant "gave [her] the creeps." During one conversation, Robert talked to appellant about the progress of the ongoing remodeling of the Bauer home and appellant seemed jumpy. Terry joined them briefly and appellant said that he had worn out his welcome and left.

Robert's brother, a contractor, was working on the house and left a radio on the roof for the workers who were building the second story. Although part of first floor of the home was gutted, the family was living in a part that could be locked.

Early one October morning in 2002, Terry heard footsteps overhead on the part of the house that was under construction. She awakened Robert and he went to investigate. Robert heard the radio on the roof playing for less than a minute. He told Terry to call 911. He heard what sounded like someone running on and then jumping off the roof. The police arrived and searched for several minutes including in the crawl space under the house. The police concluded that the intruder was no longer around. The officers left except for one who started to drive away and then stopped to talk to a neighbor across the street. Robert went over to explain that that neighbor should not be considered a suspect.

Terry went to check on the children, who were sharing the son's room during the construction. As she walked to that bedroom, she saw someone coming through her daughter's bedroom doorway into the hall. She ran to her son's room, placed a chair under the door handle, and had her daughter open the window and call for Robert. Robert and the officer heard the girl's scream and rushed back into the house. Terry told Robert it was appellant. Appellant, who was found in the master bedroom lying on the bed with his hands behind his head, was taken into custody.

Four officers working in teams of two interviewed appellant and tapes and transcripts of these interviews were admitted into evidence at trial. San Jose Police Officer Richard Bravo testified that when he interviewed appellant, he believed him to be under the influence of methamphetamine, which can cause delusional thinking. Methamphetamine use can also cause "speech having to do with several topics in a rapid manner." Appellant seemed aware and lucid. Bravo sought to interview appellant about his specific intent in entering the house. Bravo testified at trial that at the time of the interview he thought that appellant was possibly there for the "purposes of a sexual offense" because there was "an adult female and a juvenile female present," there was no sign that theft was the motive, and appellant was a convicted sex offender. Bravo testified that when he questioned appellant, "I wasn't hoping that he would necessarily incriminate himself. I was hoping to build the best case possible."

During these interviews, appellant talked about God, the CIA, and a conspiracy to keep him from having sex.[2] When first asked "Why did you go next door?" appellant answered, "looking for girls." He said he was attracted to Terry but when asked if he intended to rape her he answered, "Hell, no." He said that he had not been "sneaking around" but that he had "tried to access several different points" of the house before pulling himself up to the roof by a rafter. He said that he wanted to peek at Terry and "touch her without waking her up." The officers asked him, "what were you thinking about that brought you over there tonight though?" and his answer described his problems "getting laid."[3] The officers asked about appellant's intentions toward the 10-year-old girl in the house, appellant said, "You know what? The way I see things, ah, eighteen is the limit. If they're under 18, you're not supposed to touch them. Okay. But that doesn't necessarily mean that they're not old enough to have sex. A sixteen year old girl, my wife's daughter, I created a lot of fucking shit in our marriage, because I started to, ah, party with the kids . . . And we were too close together." Discussing methamphetamine, appellant said, "when I spin out on crank, I try to fuck anything . . . [I]t creates a problem with my relationships." Appellant told the officers that he was "loaded" on methamphetamine that night and was "trying to have a marathon sport fuck." He said, "I'm just out to have sex with anybody that's willing." In his second interview with the police, appellant told the officers that he had entered the Bauer's home because he "needed" to get into the "sealed chamber" that contained a "sex ring involving kids." Appellant also made repeated references to "pussy." For example, when asked if he wanted something to eat, he answered, "Pussy." He explained that when he used methamphetamines, he would have "a little bit of a problem" with "just sex in general" and "chasing pussy." He said, "it's a pussy thing" as distinguished from a "crank thing." At one point appellant said, "I wonder how many people are gonna be mad at me by the time this is all over."

Alleged Miranda Violation

Appellant contends, "The police interrogations of appellant were inadmissible because they violated appellant's Fifth and Fourteenth Amendment rights as set forth in Miranda v. Arizona and the court erred in denying appellant's motion to suppress the interrogations."

Background

Appellant was interrogated in a holding cell beginning at 6:30 on the morning of his arrest. Officer Bravo testified that he, accompanied by Sergeant Frank Aviles, "entered the room, identified ourselves, addressed what we – what our purpose for being there was. And then – and then upon confirming that he was going to be willing to talk to us, we then clarified his Miranda rights." As described in the tape and transcript admitted into evidence at the hearing, the officers had the following exchange with appellant:

"BRAVO My name is Detective Bravo. This is Sergeant Aviles. Okay. But, so, we're talking about ah, what happened out there this morning. How do you feel about that? Do you want to talk to us this morning? You sure? Okay. Just so we're all clear and everything, what I'm gonna do is read you your rights. Okay. So there's no misunderstanding between us. You have the right to remain silent. Do you understand?

"WILLIAMS Yes.

"BRAVO Anything you say may be used against you in court. Do you understand?

"WILLIAMS I do.

"BRAVO You have the right to the presence of an attorney before and during any questioning. Do you understand?

"WILLIAMS Yes.

"BRAVO If you cannot afford an attorney, one will be appointed to you free of charge before any questioning if you want. Do you understand that?

"WILLIAMS Yeah.

"BRAVO And having all that in mind, basically what I want to do is just find out from you what was going on this morning. Sounds like there was a lot of running around, some yelling and screaming, and I just want to know why you were in that house.

"WILLIAMS Ah, well, I think first, um, I should have a lawyer. And ah, second, I'm trying to figure out. Well, trying to do God's will.

"BRAVO Trying to do God's will.

"AVILES What do you mean by that? You have me thrown (inaudible) that one.

"AVILES What is, what do you mean God's will?

"WILLIAMS Well, you can do good things. You can do bad things. Bad things (inaudible).

"BRAVO Okay.

"WILLIAMS That's satanic. Focus on the good side.

"AVILES Okay. So, you're not a devil worshiper.

"WILLIAMS No.

"AVILES Okay.

"BRAVO (Inaudible).

"WILLIAMS Well, (inaudible) pretty good, yes. (Inaudible)

"BRAVO Well, it sounds like you broke the same (inaudible).

"WILLIAMS Hum. There's not ah, I don't know. Me either.

"BRAVO I'm sorry.

"WILLIAMS Me either.

"BRAVO Me Edith?

"WILLIAMS No, I said, me either.

"BRAVO Oh, (inaudible),

"WILLIAMS Me either. Matter of fact, half of the time I don't know exactly what I'm doing.

"BRAVO Um hum.

"WILLIAMS Trying to do God's will. And sometimes I have to sacrifice myself. It ah . . . .

"BRAVO Well we all sacrifice ourselves (inaudible). Yeah.

"AVILES How do you feel about that, Greg?

"WILLIAMS Reasonable.

"AVILES Yeah. Now you said, the first thing you said, you wanted a lawyer? Is that the first thing you said?

"WILLIAMS Right. Well, it was, because . . . .

"AVILES Help, help us.

"WILLIAMS I (inaudible), because . . . .

"AVILES I just want to understand. But if you want a lawyer, we'll walk out of this room. You can't talk to me if you want a lawyer.

"WILLIAMS Oh.

"AVILES I just want to understand that, that's a statement you made. You want a lawyer. . . .

"WILLIAMS (Inaudible).

"AVILES or do you want to talk to us?

"WILLIAMS I want, hell, I'll just talk to you then.

"AVILES Okay. Well, I won't change your mind, no. That . . . .

"WILLIAMS Yeah. No, I'm, no, I'm not trying to . . . .

"AVILES You understand? Okay.

"WILLIAMS I, I mean, you read the, read . . . .

"AVILES Ah, we read . . . .

"WILLIAMS the card, . . .

"AVILES you your rights.

"WILLIAMS cards . . . .

"BRAVO Right.

"WILLIAMS said . . . .

"AVILES Did, did . . . .

"WILLIAMS that you can have a lawyer.

"AVILES Yeah, and, and . . . .

"WILLIAMS It's an intelligent thing to do, isn't it?

"AVILES Yeah, it is. Yeah. So if you want a lawyer . . . .

"BRAVO But we're looking for clarification. Because you said you did want to talk to us. But then you said, well, I think I should have a lawyer. So, it's up to you. And then you can talk to us right now or not. (Inaudible), because right now, obviously, there's not gonna be (inaudible).

"WILLIAMS (Inaudible) work on getting a lawyer, right?

"BRAVO Not right now.

"WILLIAMS Oh. Well, yeah, I think that later.

"BRAVO Will I personally do it? No.

"AVILES You know how the system works, right? Right?

"WILLIAMS I'll, I'll, I'll . . . .

"BRAVO Do you want, do you want to talk to us? Gregg.

"AVILES You sure you want to talk to us?

"WILLIAMS Yeah.

"AVILES Okay. Maybe one (inaudible)--

"WILLIAMS I don't even need a lawyer though. I'll just let God handle it." (Italics added.)

Following this exchange, appellant talked to the officers for hours. Before trial, appellant moved to suppress his statements to the police on the grounds that they were obtained in violation of Miranda and that they were involuntary. The court denied appellant's motion. The court said, "The easy stuff first is the mechanics of the Miranda admonition. I don't think there's any question after looking at Exhibits 1 and 2 that he received admonitions that were sufficient as a matter of law. The only twist that comes to that is on the waiver portion where the defendant made what the people urged is an equivocal statement about an attorney. The statement, of course, speaks for itself, and I agreed with the people that it was, in fact, an equivocal statement that the officers were entitled to pursue to find out what his true wishes were. And I think they did so reasonably and not coercively. And ultimately, the defendant freely and voluntarily waived his right to have an attorney before any questioning. [¶] And I make that statement based on the recording that I heard as well as the transcript and also partially based on his statements that he made here in court today."

Discussion

The invocation of the right to counsel has been thoroughly discussed by the California Supreme Court in People v. Gonzalez (2005) 34 Cal.4th 1111, applying Davis v. United States (1994) 512 U.S. 452, in which "the United States Supreme Court held that a defendant's invocation of the right to counsel during custodial interrogation . . . must be unambiguous and unequivocal to be valid." (Gonzalez, supra, at p. 1116.) Gonzalez repeated the standard of review: "Davis now provides the standard by which we assess whether a defendant's reference to counsel constituted an unambiguous and unequivocal invocation of the right to counsel. [Citations.] Consistent with Davis, a reviewing court--like the trial court in the first instance--must ask whether, in light of the circumstances, a reasonable officer would have understood a defendant's reference to an attorney to be an unequivocal and unambiguous request for counsel, without regard to the defendant's subjective ability or capacity to articulate his or her desire for counsel, and with no further requirement imposed upon the officers to ask clarifying questions of the defendant. [Citation.] In reviewing the issue, moreover, the reviewing court must 'accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. [The reviewing court] independently determine[s] from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " (Id. at p. 1125.) Applying Gonzalez and Davis here we fully agree with the trial court that appellant's statement, "Ah, well, I think first, um, I should have a lawyer. And ah, second, I'm trying to figure out. Well, trying to do God's will" was ambiguous and equivocal.

Appellant argues that "appellant's statement that he should speak with a lawyer need[s] no clarification [and] the questions the officers posed appear better designed to confuse and to discourage the exercise of the Miranda rights than to clarify appellant's intentions." Appellant asserts, "absent authoritative knowledge that God did not want appellant to invoke his Miranda rights . . . there is no contradiction and thus no ambiguity. Consequently, no clarification was necessary, and the interview should have been terminated forthwith." We disagree. Appellant's statement, setting forth his thoughts in numerical order and choosing the word "should," can reasonably be interpreted as expressing a conflict between his understanding that having counsel is a good idea and his faith-based motive for speaking to the officers. Officer Bravo testified, "It sounded to me like he wasn't sure whether or not he wanted to have a lawyer, and he was thinking out loud, well, that he thought maybe he should." After asking for clarification of what appellant meant by his references to God and sacrifice, the officers returned to appellant's reference to a lawyer, restating it to him in stronger language than he had actually used. Concerning his decision whether to exercise his right to counsel, appellant acknowledged, in a bantering tone, "It's an intelligent thing to do, isn't it?" Again describing the conflict he was feeling at the beginning of the interview, appellant resolved this conflict in his statement, "I don't even need a lawyer though. I'll just let God handle it."

Appellant argues that his waiver was not valid because"[b]ecause the police attempted to trick and badger appellant into rescinding his request for a lawyer and contradicted the Miranda warning by informing appellant that he could either talk with the police or have a lawyer, but could not choose both." Neither officer used a word choice or a tone of voice that could reasonably be considered badgering. Furthermore, there is nothing tricky in the statement, "But if you want a lawyer, we'll walk out of this room. You can't talk to me if you want a lawyer." The officer was describing a proper course of action should appellant immediately and clearly request counsel.

As appellant sees it, Gonzales and Davis do not apply to the context before us because those cases stand for the principle that, once the Miranda rights have been waived, a suspect who changes his mind and wants to invoke his right to counsel must do so with clarity. Appellant contends that "the law is different when a suspect, having waived his Miranda rights and submitted to custodial interrogation, changes his mind and decides to invoke his right to counsel." He argues, "Davis cannot be read to support a broader rule requiring the absence of ambiguity or uncertainty in requests for counsel by suspects who have not waived their Fifth Amendment rights." He argues, "To require the defendant to show that his invocation of the right to counsel was unambiguous and unequivocal is inconsistent with requiring the prosecution to show by a preponderance of the evidence that the defendant waived that right."

The court in Miranda held that if a defendant "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." (384 U.S. at pp. 444-445, emphasis added.) Although he need not "speak with the discrimination of an Oxford don," a suspect must articulate his desire for counsel clearly enough that a reasonable police officer in the circumstances would understand that he is requesting an attorney. (Smith v. Illinois (1984) 469 U.S. 91, 95.) "Doubts must be resolved in favor of protecting the constitutional claim," and courts must "give a broad, rather than a narrow, interpretation to a defendant's request for counsel . . . ." (Michigan v. Jackson (1986) 475 U.S. 625, 633.)

Before 1994, California precedent held that a suspect's request for counsel need not be unequivocal or absolute to invoke Miranda. (People v. Thompson (1990) 50 Cal.3d 134, 165.) The Miranda holding was construed by California courts to mean that "a suspect may invoke his right to silence by any words or conduct reasonably inconsistent with a present willingness to discuss his case freely and completely." (People v. Duran (1983) 140 Cal.App.3d 485, 492, italics added.) Thus courts found invocations of the right to counsel where suspects stated "Do you think we need an attorney?" or "I guess we need a lawyer" (People v. Superior Court (Zolnay ) (1975) 15 Cal.3d 729, 736, cert. den. (1976) 429 U.S. 816), "Well, maybe I should talk to my attorney" (People v. Munoz (1978) 83 Cal.App.3d 993, 995), and "Well then I think it's better that I have an attorney here" and "have you got an attorney right here present, close?" (Duran, supra, 140 Cal.App.3d at 490-492.) These holdings preceded Davis and the adoption of Article I, section 28, subdivision (d) of the California Constitution, requiring our courts to apply federal standards in deciding whether to exclude a confession for violating Miranda. (People v. Crittenden (1994) 9 Cal.4th 83, 129 [noting California's adoption of federal standard, requiring invocation of right to counsel be unambiguous and unequivocal]; People v. Cunningham (2001) 25 Cal.4th 926, 993.)

Davis imposes no requirement upon the interrogating officer to ask clarifying questions following an equivocal invocation. However, if a suspect "expresses ambiguous remarks falling short of a clear waiver or invocation of his Miranda rights," officers may "continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights." (People v. Johnson (1993) 6 Cal.4th 1, 27.) Here, the trial court refrained from imposing a rule requiring the absence of ambiguity or uncertainty in a request for counsel by a suspect who had not waived his Fifth Amendment rights. Instead, the trial court properly considered that the officers could ask clarifying questions under these circumstances. A typical exchange between a suspect and police officers has more in common with a David Mamet script than a conversation between Oxford dons. An officer seeking clarification of a suspect's ambiguous response to the Miranda admonishments, in an attempt to discern if it is an invocation or a waiver, does not violate a suspect's Fifth and Fourteenth Amendment rights as set forth in Miranda.

We see no inconsistency between requiring the prosecution to prove a valid waiver of Miranda rights by a preponderance of the evidence and defining an invocation of Miranda as an unambiguous and unequivocal assertion of that right. In a proceeding on a motion to suppress a statement that is the product of a custodial interrogation, although the defendant is the moving party the prosecution bears the burden of persuading the trial court that the defendant voluntarily, knowingly, and intelligently waived his or her Miranda rights, including the right to have counsel present during questioning. Once the prosecution produces evidence to show that the defendant validly waived his or her rights, the defendant may wish to produce evidence tending to show that a reasonable police officer would have understood the defendant to be requesting the assistance of an attorney. From this record, the trial court makes factual findings and rules on the suppression motion. One way that the court may admit the challenged statement is by determining that, as the authorities were obtaining a Miranda waiver, the defendant made ambiguous statements, the officers asked questions to clarify that the defendant was waiving his rights rather than invoking them, and then obtained a valid waiver. The trial court's ruling here reflects its determination that the evidence presented at the hearing preponderated in support of the prosecution's position. As the trial court observed, "the defendant himself told us that the reason that he chose to – that he made the equivocal statement about the attorney wasn't so much that he wanted to have an attorney because he said, quote, I was wasted; I wanted to straighten up before I talked to them, and not that he really wanted to speak with an attorney." The trial court did not err in denying appellant's motion to suppress his statements.

Voluntariness of Appellant's Statements

Appellant contends, "The trial court erred and violated appellant's Fifth Amendment and due process rights by admitting into evidence the police interrogations because appellant's responses were not voluntary."

Appellant was interrogated at the San Jose Police Department in a 12 foot by 12 foot room with a metal table fixed to the wall and two stools. The interviews were recorded with a "surreptitious microphone" although appellant seemed to be aware of this.[4] Appellant testified that at the time of the interviews he had not slept for 24 hours and was suffering the affects of methamphetamine consumption. He testified that he had never seen Officer Bravo before the hearing on the motion. He said that he thought that there was only one long interview, with the same two officers who took a break to get coffee, rather than two separate interviews by two different teams of officers. He said that during the interview he was at times indirectly referring to an "advanced rehabilitation system" that "can be construed as hallucinations, but they aren't." Appellant testified that in the years before this arrest he had been read the Miranda warnings by arresting officers, and had understood those warnings, "around 30 times."

In ruling on appellant's motion to suppress the evidence of the interrogations, after finding that appellant had waived his Miranda rights, the trial court said, "Let's move on to what I think is the somewhat more difficult issue, the overall voluntariness of his statement . . . . [T]he voluntariness standard that I found is the defendant's ability to reason, comprehend, or resist or was he so disabled that he was incapable of free or rational choice. In evaluating that particular factual dilemma, I certainly will consider the drug and alcohol influence of the defendant, if any, and there certainly doesn't seem to be much question that he was at least under the influence of methamphetamine at the time of the interview, and the defendant's report of sleep deprivation. . . . [I]t is my view that [appellant] wanted to speak with the police officers and that, overall, taken as a whole, his statements are lucid, responsive, and I think rather straightforward, although without question he certainly made some unusual statements during the course of the interview." The court concluded, "I find that he voluntarily made the statements to the police and he further had the capacity to waive Miranda."

Under both federal and state law, before a defendant's pretrial statement may be admitted into evidence, the prosecution has the burden of proving by a preponderance of the evidence that the statement was voluntary. (Lego v. Twomey (1972) 404 U.S. 477, 489; People v. Sapp (2003) 31 Cal.4th 240, 267.) Courts apply a "totality of circumstances" test to determine the voluntariness of a confession. (Withrow v. Williams (1993) 507 U.S. 680, 693; People v. Williams (1997) 16 Cal.4th 635, 660.) Among the factors to be considered are " 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (People v. Williams, supra, 16 Cal.4th at p. 660.) Due process requirements prohibit the use at trial of involuntary statements obtained by coercive police questioning. (Colorado v. Connelly (1986) 479 U.S. 157, 167; People v. Benson (1990) 52 Cal.3d 754, 778.)

A confession is voluntary if the suspect's decision to speak is entirely "self-motivated" because he freely and voluntarily chooses to speak without any form of compulsion or promise of reward. (People v. Thompson (1980) 27 Cal.3d 303, 327-328.) No single factor is dispositive in determining the question of voluntariness. (Williams, supra, 16 Cal.4th at p. 660.) Lies told by the police to a suspect under questioning do not render the confession involuntary per se. The court must look to see whether the deception is reasonably likely to procure an untrue confession. (People v. Farnam (2002) 28 Cal.4th 107, 182.) Similarly, police trickery, by itself, does not render a confession involuntary (People v. Thompson (1990) 50 Cal.3d 134, 167), because subterfuge is not necessarily coercive. (People v. Felix (1977) 72 Cal.App.3d 879, 885-886.) On appeal, a trial court's determination of the voluntariness of a confession is reviewed de novo, while the trial court's historical findings of fact surrounding the confession are reviewed under the deferential substantial evidence standard. (People v. Williams, supra, 16 Cal.4th at pp. 659-660.)

Appellant asserts, "When the interrogations are viewed in the totality of their circumstances, they reveal that the police did indeed take advantage of appellant's obviously impaired mental condition and brought intense pressure to bear upon his weakened will by denying his request for a lawyer, by obsessively insinuating into his mind thoughts of sex with children, by ignoring every response that showed a non-felonious intent, by insisting tirelessly that it is permissible not only to desire children but also to have sexual intercourse with children if they are willing, and by playing upon appellant's religious and patriotic sentiments."

After reviewing the evidence presented at the hearing on the motion to suppress appellant's statements, as well as the tape and transcript introduced at the motion, we reject appellant's contention that the statements were involuntary. Appellant was a mature adult with substantial experience with the criminal justice system. Although he was under the influence of methamphetamine during at least some of the interrogation, he does not sound submissive, weak, or in distress on the tape. The officers may have directed the conversation toward a discussion of what appellant's intent had been when he entered the Bauer's home, rather than expanding on the discussion of the CIA conspiracy to keep appellant from having sex, but this can hardly be considered improper. Likewise, in the portions of the interrogation during which appellant discusses his religious or patriotic sentiments he sounds as if he is chatting about these topics rather than being dominated or bullied by the officers. As for "obsessively insinuating into his mind thoughts of sex with children" the officers' comments on this subject, while recurring, were not oppressive or overbearing. We cannot imagine that an officer's comment such as, "But a 15-year-old that's mature, her body's mature, that's no problem if she's willing" would cause a person who did not agree with that statement to feel coerced into agreeing that he or she did. Under the totality of the circumstances, a preponderance of the evidence shows that appellant's statement was voluntary.

Sufficiency of the Evidence of Burglary

Appellant contends, "The conviction for burglary is unsupported by the evidence and violates appellant's due process rights."

When determining the sufficiency of the evidence, an appellate court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "Under this standard, the court does not ' "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 . . . .)" (People v. Hatch (2000) 22 Cal.4th 260, 272.) " ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 933.)

Appellant was charged with committing a burglary by entering the Bauer's home with the intent to commit a violation of Penal Code section 220, which prohibits an assault with the intent to commit, rape, sodomy, oral copulation, rape in concert with another, lascivious acts upon a child, or the penetration of the genitals or anus with a foreign object. Appellant argues that the evidence showed that appellant "made a good deal of noise before he entered the home" and argues that "[t]his conduct is inconsistent with an intent to commit an assault on a member of the Bauer family, for a successful assault would require stealth and surprise." "The uninvited late-night entry by itself does not support a rational inference of the intent to commit a violation of [Penal Code] section 220 or any felony, especially given that appellant was under the influence of methamphetamine." Appellant points out that there is no evidence that he was in possession of burglary tools, weapons, or restraining devices.

Appellant argues that because there is not evidence that the charged offense involved an intended or attempted sexual assault, evidence of his prior sexual offense cannot rationally substitute for the missing evidence. He asserts that the stipulation that he was convicted in 1993 of a misdemeanor violation of Penal Code section 647.6 does not support a rational conclusion that appellant intended to commit a violation of Penal Code section 220 because the parties' stipulation did not describe the offense in detail and whatever comments appellant made about that offense during the interrogation lack significant probative value on the element of intent in this case "for it does not appear that a burglary was involved and it does not appear that the girl was a stranger." As appellant sees it, the only other evidence concerning appellant's intent, aside from the prior conviction, was the inferences to be drawn from appellant's other statements during the interrogation. Appellant argues, "Appellant was evidently out of touch with reality, fantasizing about the CIA, about being followed, about sex rings involving children. No rational factfinder could be confident that anything appellant reported in those interviews was true." We disagree. Admittedly some of appellant's statements show beliefs that could be considered delusions. However, his statements also show that he clearly understood that he was entering his neighbor's house, that he knew that Terry and her daughter lived there, that he was looking that night for a "marathon sport fuck," and that he thought Terry was attractive and was interested in having sex with her. Appellant told the police, "my primary goal when I went in that house was to get pussy . . . ." A rational factfinder could view the evidence as proving that appellant had various concurrent and compatible reasons for entering the Bauer home, including the intent to commit a violation of Penal Code section 220. Viewing the whole record in the light most favorable to the judgment below, including appellant's repeated sexual references in his statements regarding his intent and his prior conviction for a lewd act with a child, we conclude that the record discloses substantial evidence supporting the jury's verdict and appellant was not denied due process.

Evidentiary Issues

Appellant contends, "The trial court erred and violated appellant's due process rights by admitting evidence of prior sexual offenses, evidence of appellant's character or disposition, and other evidence contained in the tapes and transcripts of the police interrogations, and any insufficiency in counsel's objections amounted to ineffective assistance."

Background

After his motion to suppress the tapes and transcripts of appellant's statement to the police on Miranda and voluntariness grounds was denied, defense counsel sought to exclude at trial many specific parts of appellant's statement. The court and counsel had a lengthy discussion about which parts of the over 100 pages of transcripts should be deleted before this evidence was presented to the jury. Questions and answers that discussed appellant's status as a registered sex offender were deleted, as were discussions of his prior strike offenses and time in prison.[5] Also deleted were discussions of the details of a prior robbery conviction, appellant's affirmative declarations that he is a non-violent person, and a statement that appellant's mother considered him to be violent when he was young. The court redacted other portions of the transcript as well. For example, the court explained that it would strike a statement by Officer Aviles and appellant's affirmative response to it because, "I think the response 'that's right' is an ambiguous admission at best. We don't know whether he's admitting he's wasting the officer's time, he's under the influence of crank, or that people who are accused of child molesting have a bad time in prison."

Discussing the admissibility of the portion of the statement during which appellant discussed his prior conviction for violating Penal Code section 647.6, defense counsel said, "It involved an allegation of a neighbor, and I think an allegation of touching on the leg." Counsel argued that the police "did ask him about the [Penal Code section] 647.6 conviction in the transcript. He does not at any point admit the essential allegations of that. He denied it. He denies it repeatedly. . . . So to the extent that the people would even ask the Court to consider allowing that in, I think that the manner of proof as it relates to a statement is that it's confusing, it's ambiguous. He does not admit to the essence of the allegations. And for those reasons, it's not trustworthy. It's irrelevant. It's prejudicial."

The trial court said, "The defendant's statements standing alone as scattered through different parts of the interviews, those statements standing alone would present an incomplete and/or distorted picture of the alleged sexual offense, for which the defendant stands accused. If those were the only grounds, I don't think I could permit the evidence to come in simply because . . . the majority of the statements are him denying it occurred with a few arguable admissions, depending on what the trier of fact finds to be the context of the questions and answers. [¶] However, if the people first place into evidence the other proof that establishes the conviction in fact occurred, I think the defendant's statements may help explain or at that point will not be a distorted or incomplete description when coupled with the other evidence."

Later the court said, "The long descriptions of the defendant where he eventually admits to ever touching the 7-year-old girl in what I assume to be the previous 647.6 evidence seem to me to be clearly admissible." As to the portion of the transcript challenged by defense counsel, the court said, "I think the only clear understanding of the context is that it was a discussion of a previous sexually related incident involving, I guess, a 7-year-old girl in some apartment which I'm told by Counsel was the subject of the 647.6 conviction. And although there is a little bit of jumping back and forth and some interesting detours through other subjects the defendant thought were important, that appears to be admissible under [Evidence Code section] 1108. I'm inclined to admit all of that or allow it to be played in its entirety." Appellant also sought to have a discussion of appellant's sexual interest in his ex-wife's 16-year-old daughter redacted. The court said, "It may assist the jury in their inference on the determination what intent, if any, the defendant entered."

The trial court granted a defense motion to redact a portion of the transcript that "might be an adoptive admission concerning Lolitas and young teens" on Evidence Code section 352 grounds. As for some discussions of appellant's sexual proclivities when under the influence of methamphetamine, the court said, "I weighed, under Evidence Code Section 352, the prejudicial effect and the probative value. To the extent it might provide some circumstantial evidence to the trier of fact, in the statement of [']You tend to like young girls when you're on crank,['] and the defendant's response appears to adopt that position, and it is relevant in this case."

The court said, "This was a far-ranging discussion with the defendant that occurred over an hour or so period of time after he was arrested. Many times, the defendant makes what can only be characterized as nonresponsive answers to the officers' questions. And we have commented throughout the trial that the defendant appears to be a remarkable person in the sense that his ability to narrate and perceive may be different from most folks when it comes to speaking."

Discussion

As described above, defense counsel challenged the admissibility of specific portions of appellant's statements and the trial court, the prosecutor and defense trial counsel spent a great deal of time going over the transcripts in the redaction process. Appellant now takes a sweeping approach. Appellant asserts, "The tapes and transcripts contain vague and confusing statements made by appellant that the jury might have interpreted as revealing prior sexual activity with children and a continuing sexual interest in children, as well as statements made by the police regarding appellant's criminal history and character." He argues that this evidence was not admissible under Evidence Code sections 1101 or 1108 and that "The prior offense evidence and all the evidence in the police interrogations should have been excluded under Evidence Code section 352."[6]

Evidence Code section 1101 provides in pertinent part: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act."

Evidence Code section 1108 creates an exception to Evidence Code section 1101. It states, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Evid.Code, § 1108, subd. (a).)

The purpose of Evidence Code section 1108 is to " ' "[permit] courts to admit such evidence on a common sense basis--without a precondition of finding a 'non-character' purpose for which it is relevant--and [to permit] rational assessment by juries of evidence so admitted. This includes consideration of other sexual offenses as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense." ' " (People v. Falsetta (1999) 21 Cal.4th 903, 912.)

Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." On appeal, " '[a] trial court's exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]' " (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)

Appellant argues that the evidence of his prior misdemeanor conviction for violating Penal Code section 647.6 and his statements about that offense made during the interrogation were irrelevant and inadmissible under Evidence Code section 1108 because the charged offense, burglary, was not a sex crime. Appellant argues that the prosecution "conjure[d] up an intended sexual assault, in the absence of any evidence of such assault, in order to introduce evidence of a disposition to engage in sexual acts with minors." Appellant asserts that "the police and prosecution could have hypothesized that appellant intended to commit larceny in the Bauer home, questioned appellant persistently about his interest in money and goods, obtained acknowledgements about how nice it is to possess money and goods, and then adduced appellant's prior theft crime in an attempt to prove the intent to commit a theft offense."

We disagree with appellant's view that there was an absence of evidence that the current offense, charged as a violation of Penal Code section 459 by entering with the intent to commit a violation of Penal Code section 220, involved any sexual crime. Appellant made repeated sexual comments throughout the interrogation. Some of these comments may have been prompted by specific questions from the officers exploring whether there was a sexual motive for the burglary, but many were completely unbidden. The tape and transcripts reveal a defendant who was more than willing to volunteer his sexual motivation for entering the home. He may have woven his strange conspiracy theories into the discussion, but he never shrank from the suggestion that at least part of his motivation that night was sexual gratification. Although appellant made some racket at the Bauer's home and did not admit to an intent to use force, explaining that he was "just out to have sex with anybody that's willing," his statements must be taken in the context of all the evidence. Even after the police arrived and searched for him, appellant was sufficiently motivated to gain entry that he hid underneath the house for close to 25 minutes until the police left. Then, rather than retreating to his place next door, he came into the home and was seen leaving the daughter's bedroom. Although during the interrogation appellant made some strange remarks about his perceptions that night, there was sufficient evidence that he entered with the intent to commit one of the offenses enumerated under Penal Code section 220, such as rape or child molestation, to support the trial court's decision to permit the introduction into evidence of appellant's prior child molest conviction and his statements concerning it.

Appellant contends that the court did not have sufficient information about the prior sexual offense to engage in a proper Evidence Code section 352 analysis. The court told counsel that it had "performed a 352 weighing and balancing." Appellant claims "the record does not reveal how that [sic] the court had any knowledge of the facts underlying the prior conviction (other than any inferences the court drew from appellant's vague and confusing statements in the interrogations)." Yet defense counsel told the court that the prior offense "involved allegations that while my client was at someone else's residence, that he inappropriately touched a young female." This background information, combined with appellant's own statements about the offense and the record of conviction provided a sufficient basis for the trial court's Evidence Code section 352 determination. Evidence Code section 1108 does not require any factual similarity between prior sexual misconduct and the charged offense, the prior offense here was not particularly inflammatory, and appellant's statement offering an exculpatory version of the prior offense was in the transcript. Thus, the trial court properly admitted the fact of appellant's Penal Code section 647.6 conviction and his statements concerning it under Evidence Code sections 1108 and 352.

Appellant argues, "Except for the prior section 647.6 offense, there is no evidence independent of appellant's confusing statements in the interrogations that such offenses even occurred; and appellant's own statements are too confusing and unreliable to give any assurances that they did occur." However, appellant's statements about his sexual interest in children were not introduced under Evidence Code section 1108 as acts of prior sexual misconduct, and the jury was instructed to consider only the stipulated conviction for Evidence Code section 1108 purposes. Appellant argues that because section 1108 makes only the evidence of the commission of prior sexual offenses admissible, "this section does not authorize the admission of appellant's own statements regarding his character in his answers to the officers' questions, nor any observations or insinuations made by the officers." Respondent contends, "Appellant's various statements regarding his sexual interest in children were not admissible as prior convictions, they were admissible as direct expressions of appellant's state of mind." We agree. Appellant's statements were all made in the context of an exploration of his state of mind at the time he entered the Bauer home and, in that context, constituted admissions of a sexual motive from which an intent to violate Penal Code section 220 could be inferred. For example, appellant explained that he had been arrested the day before for being under the influence of methamphetamine and that he continued to use this drug the day of the charged offense. Appellant told the officers, "when I spin out on crank, I try to fuck anything, you know, fuck my (inaudible). Um, it creates a problem with my relationships." Although during the interview appellant did not admit to an intent to use force to obtain the sexual gratification he sought that night, his discussion of his state of mind that night still has evidentiary value. The trial court specifically stated that it had engaged in the weighing process of Evidence Code section 352 concerning the parts of the statements in which appellant discusses with the officers his sexual behavior and interests when under the influence of methamphetamine and that it found this evidence admissible. The court said, "To the extent it's, I think, easily understood as an accusation, the defendant's response to the accusation is relevant to the trier of fact. He had a choice of a number of things to say, including, I didn't do it; no, that's not true; please repeat that; I'm confused. What he said was: I don't know. . . . So I think the trier of fact may find the accusation and the defendant's response relevant for whatever purpose they may, and whatever weight they place on it." Our review does not find this to be an abuse of discretion.

Appellant complains, "The unreliability of the interrogations is compounded by the frequent redactions, blazoned by ominous black ink, which were bound to incite speculation, regardless of any admonition to disregard them." Appellant makes the same argument as to the frequent inaudible portions of the taped statements. Appellant asserts, "There is also the problem that, in conversations in general, words like 'yeah' are sometimes used to indicate that the listener is paying attention and thereby to encourage the speaker to complete his thought, and at other times to express agreement with the speaker."

We believe that the jurors, playing the tapes and following along with the transcript, would be sufficiently familiar with casual speech patterns to understand what they heard. Furthermore, before playing the first tape, the trial court told the jurors "the officers will be asking questions of the defendant on the tape, and the same rules that apply to that interview as do here. In other words, the evidence isn't the question. What the officers say is not the evidence. What the defendant says in response to those questions is the evidence that you should consider. [¶] The officers may make insinuations or suggestions of fact during the course of the interview, but you should not take those insinuations to be true. The evidence you will consider in this case is the defendant's responses. Consider the questions and the statements of the officers only as they help you to understand the response of the defendant captured on the tape."

The court further instructed the jury, "there are portions of the interview . . . when the discussion had veered off into the areas that had nothing to do with this case or evidence that you need to consider in this case. So there will be times in the transcript where you may see things that are blacked out, and there are times on the audiotape when you may hear gaps or cuts in the tape or blank spaces when I've ordered things removed. That's a little bit what we've been working on in the last couple of days when we kept you waiting. Please don't consider any significance to that. I was cutting out things that have nothing to do with this case. Don't worry about it or think we're hiding anything."

After reviewing the tapes and transcripts, we do not consider the evidence contained therein so confusing or misleading, or so inherently prejudicial and inflammatory, that a reasonable juror would be unable to abide by the instructions given.

Furthermore, appellant was not denied due process by the admission of this evidence. The Due Process Clause does not make review of a trial court's evidentiary rulings under a standard similar to that of Evidence Code section 352 a component of federal constitutional law. In Estelle v. McGuire (1991) 502 U.S. 62, 68-70, the Supreme Court held that admission of relevant evidence does not violate the Due Process Clause, and the court in Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919, stressed that the due process inquiry is whether admission of the challenged evidence so fatally infected the proceedings as to render them fundamentally unfair and concluded that "[o]nly if there are no permissible infere