Filed 9/21/17 P. v. Gonzalez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Law Office of Christopher Nalls and Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen A. Kenealy, Acting Attorney General and Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

About 26 years ago, Salvador Murillo’s dead body was found in an orange grove. The police discovered a shell casing and an empty beer can near the body, but there were no other leads and the case went cold. Seven years ago, DNA was recovered from the beer can; three years ago, the DNA was linked to defendant Paulino Olmos Gonzalez.[1] The police interviewed Olmos twice over the course of two days. He made inculpatory statements and a jury later convicted Olmos of murdering Murillo.

Olmos’s sole contention on appeal is that the police deliberately engaged in a two-step interview process designed to undermine the protections of Miranda.[2] (Missouri v. Seibert (2004) 542 U.S. 600 (Seibert).) We find substantial evidence to support the trial court’s factual determination that the police did not do so. Thus, we affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

On November 3, 1991, at about 12:30 a.m., a man who lived near a rural orange grove in Yorba Linda heard two gunshots in rapid succession. Later that morning, another man who was walking through the grove saw Murillo’s dead body underneath one of the orange trees. Murillo had been shot once in the eye and once in the side of his torso. The police found a shell casing and a beer can a few feet away from the body. The police were unable to identify any suspects.

In August 2007, a crime scene investigator obtained a DNA sample from the mouth of the beer can. In April 2014, the Orange County Sheriff’s Department was notified that the DNA profile from the beer can matched Olmos, who was in federal custody in Texas, and was about to be deported. Investigators Eric Hatch and Cruz Alday flew to Dallas to interview Olmos.

The First Interview

On May 1, 2014, at about 2:00 p.m., Hatch and Alday met with Olmos in an interview room located within a federal immigration detention facility. The investigators were dressed in plain clothes. A federal employee escorted Olmos to the interview room; he was not handcuffed. The investigators introduced themselves and told Olmos they were investigating an old case from Orange County.

During the interview, Olmos initially denied knowing Murillo. Eventually, Olmos admitted knowing Murillo, but he said, “I was not the one who did this, the one who killed him.” Olmos said that he was driving a car on the night of the killing. He said that he and two other men, Fidel and Chago, picked up Murillo in Santa Ana, and then drove to a rural location near the 91 freeway. Olmos said that he dropped off Murillo, Fidel, and Chago. Olmos said he waited nearby and got out of the car at one point to tell Fidel and Chago, “Hey, let’s go.” Olmos said that when Fidel and Chago returned to the car they told him, “We already, already did what we had to do.” Olmos said, “I was driving the car, that’s all I was doing. Which maybe it gives me the same complicity like if I would’ve done it, right, but I was just driving the car.”

The interview lasted approximately two and a half hours. At one point, Olmos said, “Okay, well, then the only thing that I have to do is I, well, try to get an attorney or something, because, to defend me, because I already told you what I know.” Alday asked, “But, why?” Olmos said, “Because you are accusing me of something, I tell you what’s going on --” The questioning continued. At the conclusion of the interview, the investigators told Olmos that “we appreciated him talking to us, and we told him that we would go back and make a phone call and talk to our D.A. and let him know what he also told us. And based on what our D.A. told us then we would most likely come and visit him again.” INS employees then escorted Olmos out of the interview room. The investigators contacted an Orange County Deputy District Attorney who asked the investigators to “go back and follow up” with Olmos the following day.

The Second Interview

On May 2, 2014, at about 10:00 a.m., investigators Hatch and Alday returned to the same interview room at the immigration detention facility. A different federal employee escorted Olmos to the interview room; Olmos was again not in handcuffs. Hatch took a buccal swab from Olmos’s cheek; he then advised Olmos that “we wanted to ask you some questions today, and uhm, but we, before we do that, we have to advise you of your rights and -- cause charges are gonna be filed against you for murder through the DA’s office.” After advising Olmos of his Miranda rights, the following conversation then took place:

“[ALDAY]: . . . . Would you like to speak with me today?

“[OLMOS]: I could answer you [sic] some questions, but, yes, I would like to have an attorney.

“[ALDAY]: Okay, that’s fine.

“[OLMOS]: I could answer you [sic] some questions that I can answer you [sic], that I can tell you, I can answer them, I have no problem regarding that. Now --

“[ALDAY]: So do you want an attorney or?

“[OLMOS]: I would like an attorney, but I don’t have one handy. I answer you [sic], tell me what questions you have, and I will answer them to you [sic].

“[ALDAY]: So, would you like to speak with me, or you wouldn’t like to speak to me?

“[OLMOS]: Yes, of course, I don’t refuse talking with you.

“[ALDAY]: Okay. Because if you’re asking me for an attorney, then, I cannot continue anymore.

“[OLMOS]: You cannot continue anymore. When would you continue?

“[ALDAY]: If you’re asking me for an attorney?

“[OLMOS]: For right now?

“[ALDAY]: Right now.

“[OLMOS]: Well, I would like to have an attorney, who will defend me, but I can, I can answer questions that you want to ask me right now, so we can take care of it right now. Why are we going to complicate things? You understand?

“[ALDAY]: So, you do want to talk, speak with us right now?

“[OLMOS]: Yes let’s talk, I have no problem with that.”

Olmos then went on to answer the detectives’ questions, which largely clarified what Olmos had said the day before. Olmos said that Fidel had told him a couple of weeks before the murder that he had been looking for Murillo because Murillo had stolen drugs from him at gunpoint. He said that on the night of the murder they spotted Murillo in Santa Ana and he got into the car with Chago and Fidel without resistance. Olmos said that Chago had a black pistol. He said that when he stopped and dropped the group off near the freeway, he just thought “that they were going to beat him up, I never thought that they were gonna kill him.” Olmos said he “never saw the body laying there, I never saw the body laying there.” Olmos said that when Fidel told him, “‘It happened what had to happen,’” he thought that Fidel meant that Murillo had to be killed.

Trial Proceedings

The prosecution charged Olmos with murder. In a pretrial hearing, the prosecution withdrew its request to have the first interview admitted into evidence. Olmos then sought to exclude the second interview on four grounds: 1) he invoked his right to counsel in the first interview (requiring all questioning to cease, including the second interview); 2) the second interview was part of a deliberate two-step interrogation process; 3) he invoked his right to counsel in the second interview; and 4) his statements in the second interview were involuntary.

The trial court accepted the prosecutions’s concession that any statements from the first interview were inadmissible (custodial interrogation without Miranda warnings). However, the court found: 1) Olmos did not unequivocally invoke his right to counsel during the first interview; 2) the investigators did not engage in a deliberate two-step interview process; 3) Olmos did not unequivocally invoke his right to counsel during the second interview; and 4) Olmos’s statements in the second interview were voluntary. The court admitted the transcript of the second interview into evidence with redactions to delete any references to the first interview.

The jury found Olmos guilty of first degree murder. The trial court sentenced Olmos to prison for 25 years to life.

II

DISCUSSION

A. The Seibert Holding

Police officers cannot employ a deliberate two-step interview process designed to weaken the protections of Miranda. (Seibert, supra, 542 U.S. 600.) In Seibert, officers arrested the defendant and took her to the police station. Without any Miranda warnings or waiver, the police questioned the defendant for 30 to 40 minutes; she made statements admitting her role in a murder. (Id. at pp. 604-605.) After a 20-minute break, the officers advised the defendant of her rights and obtained a written waiver. (Id. at p. 605.) The officers then asked the defendant essentially the same questions that they had asked in the first interview. (Ibid.) At the suppression hearing, the officer testified that “he made a ‘conscious decision’ to [initially] withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question ‘until I get the answer that she’s already provided once.’” (Id. at pp. 605-606.)

A plurality held, “When the [Miranda] warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and ‘deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.’ [Citation.] And it would be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.” (Seibert, supra, 542 U.S. at p. 601, italics added.)

Justice Kennedy concurred with the plurality; he held that if the police deliberately employ a two-step strategy, the trial court must suppress any post-Miranda warning statements. However, if the two-step method is not deliberate, the postwarning statements are admissible if voluntarily made. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.); see United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158 [Justice Kennedy’s concurrence is the Supreme Court’s holding in Seibert as it is the narrowest grounds with which a majority of the court agreed].) In determining that the two-step procedure was deliberate, the court considered how, where, and to what extent the interrogation took place. “The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment.” (Seibert, supra, 542 U.S. at p. 616.) The court concluded that the trial court should have excluded the defendant’s post-Miranda statements because the police deliberately used the two-step procedure “to undermine the Miranda warnings.” (Ibid., fn. omitted.)

B. The Standard of Review

Factors to be considered in determining whether an interrogator used a deliberate two-step strategy include the officer’s testimony as well as “‘the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements.’” (People v. Camino (2010) 188 Cal.App.4th 1359, 1370.) “[T]he trial court’s determination of deliberateness is a factual finding entitled to deference. . . . California reviewing courts are bound by the trial court’s factual findings if supported by substantial evidence . . . , and we must accord ‘“‘“great weight””” to the trial court’s conclusions. [Citation.]” (Id. at p. 1372, fn. omitted.)

When conducting a substantial evidence review, “we ‘“presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citation.]’ [Citations.] ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.]” (People v. Jackson (2014) 58 Cal.4th 724, 749.)

C. The Trial Court’s Seibert Ruling

Prior to making its ruling, the trial court noted that the investigators had called back to an Orange County prosecutor for further instructions after the first interview. The court opined that “it could be interpreted that [the investigators] left that interview on May 1st not knowing whether they were going to interview him the second time.” The court then asked, “And if that’s a reasonable interpretation doesn’t that weigh against a finding that it was a deliberate attempt to interview him twice?”

The trial court distinguished the facts concerning Olmos’s interviews from the facts in Seibert, supra, 542 U.S. 600. “[The Supreme Court] found that that particular interrogation was intended to undermine Miranda and obtain a confession of the defendant in Seibert that might not otherwise be forthcoming. [¶] In looking at the facts of Seibert, however, I think this circumstance is distinguishable. In Seibert, the court took note that that interrogation was nearly continuous. There was an interview of the defendant, admissions and confessions were obtained, and there was merely a 20-minute break. And the court indicated – I think they even described it as a mid[-]stream advisement and commented on the lack of – or the nearly continuous nature of that interrogation. [¶] And I think the circumstance that we have here is very different because it does not appear to the court that the method that was used to take two separate statements from the defendant in this case was intended to undermine his Miranda rights. Rather, [the two interviews] were separated by an evening. And prior to taking a waiver of the defendant to his Miranda rights during the second interview, the defendant was actually advised that he was going to be charged. I think that undermines the notion that it was an impermissible two-step technique as prohibited under Seibert.”

D. Our Analysis

Here, the trial court reasonably inferred that the investigators would not have needed to call a prosecutor for instructions after the first unwarned interview, if they had planned from the outset to conduct a second warned interview. Further, it seems unlikely that the investigators would have taken a 17-hour break before conducting the second interview if they had a deliberate plan in mind. The overnight delay would have given Olmos plenty of time to reflect and not be as forthcoming as he had been in the first interview. Another critical fact is that the investigators told Olmos right before the second interview that he was going to be charged with murder. It is a reasonable inference that this would have been counterproductive to a preplanned strategy. Moreover, we note that unlike the police officer in Seibert, the investigators in this case did not testify that their agency had trained them to deliberately conduct two-step interview procedures.

In short, we agree with the trial court’s interpretation and application of Seibert. There is substantial evidence in the record to support its ruling.

Olmos directs our attention to some other possible conflicting evidence in the record. For instance, Olmos argues that the two investigators were experienced professionals and therefore they should have known from the outset of the first interview that he was in custody and that they needed to advise him of his Miranda rights. Olmos also argues, as in Seibert, that during the second interview the investigators largely repeated the same line of questioning and elicited the same inculpatory statements that he had made during the first interview.

However, our role in this appeal is not to reweigh the conflicting evidence or to resolve credibility issues. Rather, our inquiry is fairly modest and straightforward: is there substantial evidence in the record to support the trial court’s ruling? Having answered that question in the affirmative, we must sustain it.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.