Filed 12/14/17 P. v. Hamel CA4/3




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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

BARBARA ANN HAMEL,

Defendant and Appellant.

G052068

(Super. Ct. No. 10CF2478)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.
Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Susan E. Miller and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Barbara Ann Hamel of first degree felony murder, finding true the special circumstance allegation that she caused the victim’s death during a robbery in which the perpetrators followed the victim, Chi Bui, in his car after he departed a Hawaiian Gardens casino with substantial winnings. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(A); all further unlabeled statutory references are to the Penal Code.) The jury also found Hamel guilty of second degree robbery and attempted second degree robbery. (§§ 664, 211, 212.5, subd. (c).) Based on the special circumstance finding, the trial court sentenced Hamel to life in prison without the possibility of parole (LWOP; see fn. 2, infra).
Hamel contends the trial court erred under the Fifth Amendment in denying her motion to suppress her pretrial statements to detectives during questioning at the police station. She argues suppression was required because the officers elicited her statements in a custodial interrogation without initially providing Miranda warnings. She also argues the detectives deliberately delayed the Miranda advisement until after they obtained incriminating statements and therefore the trial court erred in failing to suppress her postwarning statements, and she contends her statements were involuntary. She further asserts her conviction for first degree murder under the felony murder rule violates due process for lack of evidence of malice, but she concedes we are bound by Supreme Court authority holding felony murder does not require malice, so we do not address the contention further. (People v. Dillon (1983) 34 Cal.3d 441, 475; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity); see also Montana v. Egelhoff (1996) 518 U.S. 37, 59 [state may redefine mental state for murder without offending due process].)
As we explain, we conclude as a matter of law that Hamel was in police custody during her initial interview, after seven or eight officers, including members of the Orange County Fugitive Apprehension Team, descended in five or six police vehicles on her home, impounded the vehicle she had parked outside her house, took up positions in her yard to prevent her escape, and had a battering ram ready to knock down her front door. Some of the officers drew their guns while knocking on her door, arrested a “confrontational” male occupant who responded to the door, and later the officers could not recall or provide the trial court with any details about the nature of the confrontation with the male.
The officers entered Hamel’s home, but remembered nothing they did there or anything that occurred there, except that Hamel agreed to accompany them to the police station. The officers did not tell Hamel whether she was “under arrest or not under arrest,” but she saw the battering ram in her yard when they escorted her outside to the back seat of an unmarked car, and frisked her before placing her in the police vehicle. An officer sat beside her during the 20-mile ride from Long Beach to the Santa Ana Police Department, during which the officers could not recall if they said anything to Hamel. In light of these circumstances and the nature of Hamel’s initial stationhouse interrogation, she was in police custody and therefore entitled to Miranda warnings. Accordingly, the trial court erred in failing to suppress the unwarned admissions she made in her first interview at the station.
The error was harmless, however, because the trial court properly admitted Hamel’s subsequent admissions in a second interview after she reinitiated contact with the investigators. As we explain, Hamel’s claim the officers violated her constitutional rights by engaging in a two-step interrogation process in which they deliberately withheld Miranda warnings fails under the facts as found by the trial court and fails under Justice Kennedy’s controlling concurrence in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). The claim fails under the trial court’s express finding the officers did not intentionally delay her Miranda warnings, and further fails because the officers were not able to “recap” her admissions at the close of the first interview when they read her Miranda rights; instead, she invoked her right to an attorney. Precisely because Hamel successfully invoked her rights — cutting short the first interview at that moment, and because Hamel reinitiated a second interview an hour later, the record demonstrates she understood the “import and effect” of her Miranda rights and of waiving them, and therefore her claim fails under Justice Kennedy’s analysis. We are bound to apply that analysis. (Auto Equity, supra, 57 Cal.2d at p. 455). Consequently, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Bui, age 55, died in a violent roadside robbery in the early morning hours of September 3, 2010, after someone followed him and his companion when they departed from a casino where Bui had won more than $10,000. Bui’s companion, Kim Nguyen, testified they cashed in their chips at the casino around 4:00 a.m. and she drove Bui’s car as the designated driver. They traveled to Santa Ana without incident, but as they looked for street parking, another vehicle cut them off and blocked their path, forcing Nguyen to stop Bui’s car in the roadway.
A large man later identified as Tad “Tiny” Carroll exited the vehicle and approached Nguyen while brandishing a knife and shouting, but her window was up and she did not understand what he was saying. As the man moved to the passenger side, Bui kept exclaiming, “Oh, shit,” and then Bui stepped out of the car to confront Carroll. Nguyen also left the car and ran a short distance away where she called 911 on her cell phone. She could see Bui and Carroll striking each other with their fists and money flying around. Bui fell to the ground behind the vehicles and near the sidewalk, but still in the street. Nguyen saw the car that blocked them pull away. She did not see it strike Bui, but she heard what she described as a very loud “braking” sound as it left. She went back to Bui, but he was not moving.
Detectives Louie Martinez and Domingo Cabrera of the Santa Ana Police Department (SAPD) homicide unit responded to the scene. Bui’s body was still in the street; both detectives observed tire tracks running across his body and it appeared he suffered severe head trauma. Martinez noted that Bui had lost his dentures, there was blood coming from his ears, and Martinez described the tire track marks as “[s]tarting from his legs going across his body across the shirt and across his head.” Martinez also found near Bui a small pocket knife with an open blade that was approximately three or four inches in length. Loose cash was strewn about the scene.
An autopsy confirmed Bui died from major blunt trauma injuries inflicted to his head and chest when he was run over by a vehicle. Tire tracks marked a “crushing injury” to his head that resulted in multiple complex skull fractures. The crushing injuries to Bui’s chest were also lethal. Forensic testing of the DNA residue left on the knife matched samples taken from Bui and later taken from Carroll.
Reviewing surveillance video from the Hawaiian Gardens casino, SAPD Detective Dean Fulcher noticed a man in shorts and a dark jacket watching Bui as Bui stood up from a table and cashed in his winnings. The man, who was later identified as Michael Ross, made a phone call after Bui and Nguyen left the casino.
As disclosed in Martinez’s preliminary hearing testimony, the case broke open when two witnesses stepped forward. Within several days of Bui’s death, Ross’s ex-girlfriend told security personnel at the casino she had information about the crime. Martinez contacted her, and she explained she suspected Ross and Carroll may have been involved because she previously overheard them discuss a follow-home robbery from the same casino conducted two months before Bui’s death, in June 2010. She told Martinez the men used Ross’s gold-colored Grand Am, but she believed the vehicle was registered to someone else. She did not mention Hamel.
The vehicle description matched Nguyen’s recollection of the car that forced her to a halt. Ross’s ex-girlfriend also explained she confronted Ross about whether he was involved in Bui’s death, which had been reported in the news, but he declined to speak about it. She also confronted Carroll, who admitted that on the night of the robbery he “‘was going to meet [Ross], and they were going to go do a lick,’” which Martinez knew was street slang for robbery.
Carroll’s roommate also contacted Martinez about Carroll’s involvement, noting he came home that day with visible injuries that included “some type of injury to his upper shoulder, his knees were scuffed and cut, scraped, and . . . his hands and elbows were also cut.” The roommate also described a telephone call in which she overheard Carroll provide, as described at the preliminary hearing, “an additional name that may have been involved in the robbery of Mr. Bui.” That person was a woman known as “Bob,” who “lived in Long Beach” and “rode a Harley,” according to the roommate. Further police investigation revealed that Bob was “Barbara Hamel residing in Long Beach.”
The roommate told Martinez that based on the conversation she overheard, Bob “was the driver th[e] evening” Bui was robbed, but she did not specify whether Bob was driving at the time Bui was killed, or earlier or later in the night. The roommate provided a tentative address for Hamel.
Martinez explained in his preliminary hearing testimony that the roommate’s information prompted him to proceed with at least three fellow officers, together with an unspecificied number of “members from two different [law enforcement] agencies” to Hamel’s Long Beach address on September 9, 2010, less than a week after the robbery. It appears they arrived around 8:45 a.m. The officers observed a gold Pontiac Grand Am parked in front of Hamel’s home. Martinez’s investigation connected the vehicle not only to Hamel as a potential driver, but also to Carroll because Martinez learned from Carroll’s parole officer that at some earlier, unspecified time Carroll had received a traffic citation in the vehicle.
As the lead investigator, Martinez directed his officers to impound the Grand Am. He also directed them “to make the contact with Ms. Hamel.” He did not specify in his preliminary hearing testimony or otherwise how the officers were to carry out this order, or whether they or the fugitive apprehension team had a warrant for Hamel’s arrest or intended to arrest her, but instead observed simply, “I was not there.” He left and returned to police headquarters in Santa Ana.
Around 2:00 p.m. that afternoon, Fulcher and Garcia brought Hamel to Martinez at the station, where he and Cabrera interviewed her. Martinez testified at the preliminary hearing that Hamel admitted she knew there was a plan to commit a follow-home robbery when she accompanied Ross and Carroll to the casino. She explained Ross and Carroll remained in cell phone contact while Ross was inside the casino and Carroll stayed with her outside in the Grand Am. After receiving a call from Ross, Carroll followed Bui’s car from the casino and eventually intercepted Bui’s car in Santa Ana. Carroll exited the car with a knife and fought Bui. During the fight, Hamel moved over to driver’s seat, drove forward and made a U-turn, Carroll reentered the vehicle after struggling with Bui, and Hamel heard a noise and felt a thump when she drove away. Exclaiming, “‘Oh, my God. What was that,’” Carroll told her, “‘That was him.’” Hamel continued driving to Ross’s apartment where they met Ross.
Martinez acknowledged in his preliminary hearing testimony that Hamel claimed she did not receive any of the $800 to $1,000 Carroll obtained in the robbery; instead, Carroll turned it all over to Ross, apparently because he owed Ross money for a drug debt. Martinez also acknowledged he did not read Hamel her Miranda rights until the end of the interview, prompting her to complain, “‘Why didn’t you read this to me before.’” Martinez stated he told Hamel “two or three times” that “‘you were free to leave at any time,’” but he acknowledged she responded, “‘I didn’t feel like I could leave, though.’” He acknowledged she also pointed out, “‘Where was I going to go? Walk down the street in Santa Ana?’”
When Martinez’s partner remarked near the close of the interview that Hamel “volunteer[ed] to come down here and talk to us,” Hamel observed, “You guys, it seems like I had to come anyway. You had the battery [sic] ram sitting there on the grass out in front of the house.” Noting that officers arrested her companion before taking her to the police station, Hamel commented, “Poor Chris, Chris didn’t know what to do. I said least you could do is not open the door till I put some pants on okay, and I was sitting up under the covers of my bed, I was having my morning coffee. If I had any, if I had any choice in the matter I would have never gone with any of them.”
After the preliminary hearing, Carroll, Ross, and Hamel agreed to plea deals under which Carroll would be sentenced to 25 years to life in state prison, and Ross and Hamel 15 years to life each. Hamel in particular pleaded guilty to second degree murder in exchange for dismissal of the robbery charge involving Bui, the attempted robbery charge involving Nguyen, and the special circumstances robbery-murder allegation requiring LWOP as a minimum sentence. When the matter proceeded that same day to sentencing, however, Hamel balked and decided to withdraw her guilty plea. Hamel apparently believed Carroll and Ross “G.H.B.’d me,” “[t]hey drugged me so I couldn’t leave that car to get out of there,” and she withdrew her plea to raise that claim at trial.
Hamel filed a pretrial motion to suppress her statements to Martinez and Cabrera, contending the officers failed to advise her of her Miranda rights in an initial custodial interview and that a subsequent interview ran afoul of Seibert, supra, 542 U.S. 600 because the officers deliberately withheld Miranda warnings until the end of the first interview, tainting her admissions in a second interview an hour later at the station.
The trial court heard Hamel’s suppression motion during breaks in jury selection. In considering the motion, the court reviewed a transcript of the preliminary hearing testimony and a recording of Hamel’s interrogation at the Santa Ana police department. As discussed below, Hamel and Detectives Fulcher and Garcia testified at the hearing concerning the events at Hamel’s home before she was transported to Santa Ana.
The trial court stated at the outset of the hearing that it was particularly interested in “the whole issue of the battering ram. I don’t have any evidence of that other than a statement from her. . . . [¶] I could see obviously [a] battering ram goes through the door, police bust in, things like that. That obviously is going to weigh on custody versus as I was leaving, one officer turned to the other and says ‘Sure glad we didn’t have to use the battering ram’ or something like that.”
Garcia’s testimony at the hearing was brief, stating he believed Fulcher “had most of the verbal conversation with Ms. Hamel prior to going to the Santa Ana Police Department.” Fulcher explained he went to Hamel’s residence at Martinez’s request to “make contact with Ms. Hamel” and “[t]here was also a vehicle that was of interest . . . at that location.” As Fulcher described it, “certain members of [his] team secured the vehicle and eventually seized it.” Fulcher did not say when the car was seized, observing only, “I don’t think I did the actual impound, but I was present.”
An Orange County Fugitive Apprehension Team (OCFAT) was already outside Hamel’s home when Fulcher arrived. Fulcher described the OCFAT unit as “a fugitive task force or I think they were with the marshall’s office that we used to assist us from time to time,” but he acknowledged it “may have been parole versus the marshals” or a “combination” of “both.” Fulcher estimated the OCFAT team consisted of four or five members, and each likely drove individually to Hamel’s home so that four or five additional law enforcement vehicles were present. Three or four SAPD officers also were present at various times. Specifically, Fulcher and Garcia drove together in an unmarked vehicle to Hamel’s address around 9:00 a.m., where they found Cabrera and learned Martinez already had left.
Fulcher did not know if Cabrera also left or where he was located when Fulcher and Garcia approached Hamel’s front door. Fulcher could not remember if Garcia proceeded to the door with him, but Garcia would have been “in close proximity.” The OCFAT members “would have taken up positions probably to either side of the house just to have a view of the back . . . .” Fulcher could not recall whether he had his gun drawn, but assumed the others did.
Fulcher knocked on the door and “basically announced who we were.” He recalled “there were two persons inside the residence, and they were both, if I remember correctly — it was a verbal — like who’s out there, what do you want, that type of thing.” Fulcher described it as “initially . . . just kind of inquisitive, then it did elevate to what you could call confrontational.” A male came to the door, “became somewhat confrontational” as Fulcher described it, and was arrested. Fulcher did not describe the nature of the confrontation, what the man or anyone else said, who or how many officers arrested him, the degree of force they used to do so, or whether they made the arrest inside or outside the house.
Fulcher stayed focused on Hamel. When the prosecutor asked Fulcher at the hearing if “any of your interactions with [Hamel were] confrontational,” he answered, “No. Once we were face-to-face, they were not.” Their colloquy continued, as follows: “[Q:] At the time you — by the time you meet with Ms. Hamel, that other party already ended [i.e., the confrontation with the male]; is that accurate?” [¶] [A:] Yes. Yes. [¶] [Q:] Okay. And then when you meet Ms. Hamel, it’s just back to conversational? [¶] [A:] Yes, sir. [¶] [Q:] And do you recall what you asked her? [¶] [A:] Not sitting here today, I don’t recall. [¶] [Q:] Would it have been an effort to get her to agree to come to the police department to be interviewed? [¶] [A:] Yes. [¶] [Q:] And did she agree to come to the police department to be interviewed? [¶] [A:] She did.”
The trial court attempted to clarify with Fulcher, “Did you have a conversation with the defendant at all at that moment or, you know, before she gets into the car[,] about her status,” but the detective expressed some confusion, querying, “As far as her status —,” so the court elaborated, “Like you’re under arrest; you’re also under arrest; you’re not under arrest, something — that’s what I mean by status.” Fulcher answered, “No, sir. The only conversation was a request for her to come to the Santa Ana Police Department to be interviewed.”
Fulcher provided no details about the conversation. He acknowledged entering the house, stating, “I know after we had made contact at some point, yes, I did step into the house.” When defense counsel asked, “[W]as that when Ms. Hamel was also in the house,” Fulcher responded, “I can’t recall if she was in the house or not at that time.” Counsel asked, “Was this when there was some trouble that was beginning to brew with one of the male individuals,” Fulcher offered, “It could have been,” but admitted, “I honestly can’t recall at this time.” He estimated he spent “approximately several minutes” with Hamel outside the house and “probably another two to three minutes” inside the house, but he did not specify in which order he did so. Fulcher also stated he “did have a conversation with” Hamel that “would have been either on the front porch or in the front yard immediately off of the porch.”
Neither Fulcher nor Garcia recalled seeing a battering ram in use or laying outside Hamel’s home. Fulcher answered affirmatively when the prosecutor asked, “If someone had one, either ready to use or had used it . . . would that have been something you would have seen,” but also agreed with defense counsel “it would be logical” for the fugitive apprehension team to “have such a device” on hand.
In response to questions from the trial court, Fulcher stated he first saw Hamel at some unspecified time “[a]fter the front door had opened,” and he did not recall if he had his gun drawn at that point, but assumed the six or seven officers accompanying him had their guns out. Fulcher testified officers took the male into custody “several minutes” after the door opened, and no guns were “still drawn” after his arrest. Fulcher also clarified in response to the court’s questions that he frisked Hamel before placing her in the back seat of an unmarked police car, she did not choose the back seat but rather that was “our choice,” the car did not have a “cage” in the rear seat and the rear doors were unlocked and could be opened from the inside, but Garcia rode next to Hamel from Long Beach to the police department for “[o]fficer safety.”
When the trial court asked, “Did you have a conversation with her as you’re riding to the police station,” Fulcher responded that he did not “recall any direct conversation such as [regarding] the case,” but “[t]here may have been small talk in general.” The court also asked if he discussed with Hamel “how she would get back home.” Fulcher answered, “I don’t recall if — saying those exact words. I know generally that is a concern and in situations like this in the past, I always assure them we will — if that is an issue, we will make sure that they get home.” Fulcher was not wearing his police uniform when he contacted Hamel, and the OCFAT unit also wore civilian attire.
In response to a question from the trial court, Garcia clarified that the “first time” he saw Hamel was “inside the residence,” but he did not explain whether he also was inside the home. No guns were drawn when he first saw Hamel.
Hamel also testified briefly at the hearing. She explained that she saw the battering ram in the “right front corner of my front yard, by the porch,” “[j]ust as I had come out the front door of the house.” She was with “[t]he first detective,” Detective Fulcher, “when [she] came out” and “saw it sitting on the grass.” Hamel said she made “[j]ust a light-hearted comment” when she saw it, telling the detectives “they would probably get a hernia trying to open my front door with that.” She laughed, but did not note any response from the officers.
On cross-examination, when the prosecutor asked, “Did [Fulcher] contact you in your house first,” Hamel answered, “Yeah. He spoke through the front door.” Hamel stated, “Yeah” again when the prosecutor asked, “[I]s that where he asked you if you would come with him to Santa Ana.” The prosecutor confirmed with Hamel regarding the battering ram that “there was no human attached to it” or, in other words, “They weren’t holding it” when Hamel saw it on her lawn.
The trial court denied Hamel’s suppression motion. The court explained: “The first issue is that her agreement to go in the [police] car [with Fulcher and Garcia] . . . did not place her in custody at that time. I think that the arrest of the other individual for an unrelated issue, I think it was a parole violation or something like that, really dissipates the show of force that was present because a reasonable person would say oh, there’s all these people here, but that’s because they’re arresting these other people. They’re not here for me. So that would allow that.”
“Second of all,” the trial court explained, “the way she was transported doesn’t show [custody]. The classic things that I look for . . . would be handcuffs and guns and yes, there were guns present. But there was no testimony that no one [sic: anyone] ever pointed a gun at her, anyone ever handcuffed her[.]” As to the police car, “[w]as it a cage? Was there — did she have the ability to get out? Those would all be indicative [of] weighing in favor of custody [if present]. So the transporting doesn’t show custody.” Having reviewed a video regarding of Hamel’s stationhouse interview, the court also explained that “voice tone” was important, observing, “The voice tone is not harsh at all. They’re asking — she’s asking questions.”
After the trial, the court gave a detailed ruling tracking custody factors identified in People v. Pilster (2006) 138 Cal.App.4th 1395 (Pilster) and in People v. Aguilera (1996) 51 Cal.App.4th 1151 (Aguilera). Among other factors, the court noted in Miranda’s origin a “belief that there was the coercive atmosphere of the police station,” which “weighs in [favor of a] finding of custody.”
But the trial court noted again “the demeanor of the officers. I have already spoken to that and having heard the interview again [at trial], there is nothing to suggest that this was browbeating or incredibly accusatory all the time. Was most of the time, we’re just trying to understand what happened.” As to a similar factor, “[w]hether or not the officers dominated or controlled the in[terrogation] or were aggressive, confrontational or accusatory,” the court observed, “I didn’t find that they pressured her in anything other than regarding the facts,” nor “pressured her to explain a fact one way or the other . . . .” In other words, “it wasn’t like when she would say a particular fact they — they just browbeat her to get her to change her statement . . . .”
After the trial court denied Hamel’s suppression motion, the matter proceeded to trial, and the jury rejected Hamel’s defense that she had not knowingly or willingly participated in the offense because Carroll or Ross drugged her. She now appeals.
II
DISCUSSION
A. Miranda
Hamel contends the trial court erred in failing to suppress her initial interview with Martinez and Cabrera because they violated her Miranda rights. We agree.
Miranda requires officers to admonish suspects in police custody of certain rights, including the right to remain silent, to safeguard the Fifth Amendment’s guarantee against self-incrimination. (See Miranda, supra, 384 U.S. at pp. 473-474 [suspect also must be advised of right to an attorney and that statements can be used against her in court].) These warnings are designed to “compensate for the coercive pressures inherent in a custodial interview.” (Pilster, supra, 138 Cal.App.4th at p. 1405.) The prosecution may not use in its case-in-chief statements elicited during custodial interrogations unless preceded by a valid waiver of the defendant’s Miranda rights. (People v. Mickey (1991) 54 Cal.3d 612, 647-648.)
The warnings, however, are required only when an individual is in police custody, which the Supreme Court has explained arises “as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’” (Berkemer v. McCarty (1984) 468 U.S. 420, 440, quoting California v. Beheler (1983) 463 U.S. 1121, 1125; see People v. Ochoa (1998) 19 Cal.4th 353, 401 [“‘Absent “custodial interrogation,” Miranda simply does not come into play’”].) Whether an individual is in custody is a mixed question of law and fact. (Pilster, supra, 138 Cal.App.4th at p. 1403.) We defer to the trial court’s factual findings if supported by substantial evidence, but independently evaluate whether the defendant was in custody. (Ibid.)
“Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.]” (Pilster, supra, 138 Cal.App.4th at 1403, fn. omitted.) “‘Miranda’s concern is not with the facts known to the law enforcement officers or the objective reasonableness of their actions in light of those facts. Miranda’s focus is on the facts known to the seized suspect and whether a reasonable person would have understood that his situation was comparable to a formal arrest.’ [Citation.]” (Id. at p. 1406.)
The manner in which the suspect is detained and questioned is important, including the location, the ratio of officers to suspects, and the officers’ demeanor. (Pilster, supra, 138 Cal.App.4th at p. 1403.) Key factors include “whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview.” (Aguilera, supra, 51 Cal.App.4th at p. 1162.) Hallmarks of a custodial arrest include “handcuffing, drawing a gun, holding by the arm, or placing into a police car.” (2 LaFave et al., Criminal Procedure (4th ed. 2015) Interrogation and Confessions, § 6.6(f), at pp. 833-834, fns. omitted.) Consequently, physical restrictions often implicate Miranda because they convey to the suspect that he or she is “‘completely at the mercy of the police’” and, as in an arrest, his or her “detention is not likely to be ‘temporary and brief.’” (Pilster, supra, 138 Cal.App.4th at p. 1404.)
Other factors include whether the officers informed the detainee she was not under arrest or that they considered her a witness, rather than a suspect. (Pilster, supra, 138 Cal.App.4th at pp. 1403-1405 [“brief handcuffing” does not “‘automatically’” constitute arrest, but absence of any “explanation from the officers that they placed the handcuffs on him temporarily to prevent further altercations or a categorical statement that he was not under arrest” weighed towards custody].)
The prosecution bears “the burden of proving that a custodial interrogation did not take place.” (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.) Accordingly, additional factors in assessing the custody question include whether the police “informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person’s conduct indicated an awareness of such freedom; whether there were restrictions on the person’s freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation.” (Aguilera, supra, 51 Cal.App.4th at p. 1162.)
We conclude as a matter of law Hamel was entitled to Miranda warnings. The record does not support the trial court’s conclusion a reasonable person in her circumstances would conclude she was free to decline to go to the station, cut short her trip there once it began, or end the interview and leave the station. (Ochoa, supra, 19 Cal.4th at p. 401 [substantial evidence must support trial court’s factual findings and reviewing court applies objective legal standard to determine custody].) The show of force the officers used to secure Hamel’s acquiescence in accompanying them to the police station factors heavily into our conclusion, along with the officers’ near total inability to recall or refresh their recollection of their interaction with Hamel at her home.
Here, the officers displayed force throughout the encounter. First, seven or eight law enforcement officers descended in separate vehicles on Hamel’s home in Long Beach, took up positions in front of the lot “with a view of the back,” and had their guns drawn when Officer Fulcher knocked on the door to contact Hamel. It was not clear how long the officers had been present, but at least two began conducting surveillance before 9:00 a.m. and four or five fugitive apprehension team members who each had driven in their own vehicles were already there when Fulcher and his partner arrived. (See U.S. v. Craighead (4th Cir. 2008) 539 F.3d 1073, 1084-1085 (Craighead) [suspect reasonably would believe eight police officers, who entered the suspect’s home, some with unholstered firearms, would prevent suspect from attempting to leave]; Sprosty v. Buchler (7th Cir. 1996) 79 F.3d 635, 642 [interrogation inside suspect’s home custodial where five officers surrounded his car, blocked driveway, and escorted him inside].)
Fulcher could not remember if he still had his gun drawn when he contacted Hamel. He stated a confrontation arose with a male inside the home, but he could recall no details about the nature of the confrontation, how it started, or how it was resolved and he offered no information about whether the arresting officers entered Hamel’s home to arrest the man. The trial court concluded there was “an unrelated issue, I think it was a parole violation or something like that,” therefore “really dissipat[ing] the show of force” because “a reasonable person would say oh, there’s all these people here, but that’s because they’re arresting these other people. They’re not here for me.” No evidence supported this finding.
Nor was there any evidence to suggest Hamel was not the officers’ target. As Hamel’s defense attorney aptly summarized in Hamel’s suppression motion below: “Here, police arrived in Long Beach because they identified Hamel as a suspect. They had lain in wait outside her home since 8:46 [a.m.] . . . [¶] [T]he detectives were present with a fugitive apprehension team, a battering ram and, eventually, a tow truck to impound the Grand Am. All of this communicated, rather starkly, that police arrived with a particular interest in Hamel. [¶] The battering ram is particularly communicative: it belies a will intolerant to resistance. It implies that ‘no’ in the form of a locked or barricaded door is not an option. Indeed, its sole use is for ‘taking’ doors. [¶] The ram itself and the unit of officers there to [wield] it were an objective manifestation of the officers’ intent — that they were going to get inside Hamel’s home. A reasonable person would recognize this implication that ‘no’ was not an answer and not feel free to decline the officer’s invitation to answer questions [at the station]. Thus, at the outset of her interaction with police, prior to questioning, there was a strong suggestion to Hamel that she was a suspect who, while not in handcuffs, was at the sharp end of police scrutiny and under pressure to cooperate; that resistance . . . would be ineffectual. It is with this mindset that she traveled to SAPD.”
Importantly, the officers deployed continuing, potent reminders of their power over Hamel even after their initial contact. At some unspecified point, they put their guns away, no later than after officers arrested Hamel’s companion. Fulcher only noted they were not “still drawn” after the man’s arrest. Presumably, Hamel’s companion was handcuffed after his arrest. Handcuffing “is a distinguishing feature of a formal arrest.” (Pilster, supra, 138 Cal.App.4th at p. 1405, citing Dunaway v. New York (1979) 442 U.S. 200, 215 [handcuffs considered among the “trappings of a technical formal arrest”]; United States v. Newton (2d Cir. 2004) 369 F.3d 659, 676 [handcuffing “recognized as a hallmark of a formal arrest”]; United States v. Maguire (1st Cir. 2004) 359 F.3d 71, 79 [handcuffs considered “‘one of the most recognizable indicia of traditional arrest’”]; United States v. Glenna (7th Cir.1989) 878 F.2d 967, 972 [“handcuffs are restraints on freedom of movement normally associated with arrest”].)
Although the officers did not formally arrest or handcuff Hamel, their display of force could not be lost on a reasonable person placed in her position. The record does not reflect the officers provided Hamel any explanation of the arrest, nor assurance that it was unrelated to her. (See Pilster, supra, 138 Cal.App.4th at p. 1405 [officer statements can dispel custodial atmosphere].) The trial court recognized the importance of this point, asking Fulcher whether he ever advised Hamel regarding her “status,” which the court explained meant whether she was “under arrest or not under arrest,” but Fulcher could not remember.
The prosecution’s presentation at the hearing left unclear the sequence of events involving their entry into Hamel’s residence and her companion’s arrest. But the evidence plainly shows that after the arrest, Hamel viewed the battering ram, and then Fulcher and his partner, Garcia, escorted her to their police car, frisked her, and placed her in the back seat, with Garcia seated beside her for the 20 mile ride to the Santa Ana police department.
Before the suppression hearing, the trial court had commented regarding the battering ram that it would be one thing if the “police bust in, things like that. That obviously is going to weigh on custody versus as I was leaving, one officer turned to the other and says ‘Sure glad we didn’t have to use the battering ram’ or something like that.” But as defense counsel observed, the mere presence of the instrument strongly communicated that the officers were not going to leave without Hamel, whether or not they used it and whether or not she agreed to accompany them. As Hamel explained at the close of her interview with the detectives at the police station, “You guys, it seems like I had to come anyway. You had the battery [sic] ram sitting there on the grass out in front of the house.”
After escorting Hamel out of her home, Fulcher frisked her before placing her next to Garcia in the backseat of their police car. The Attorney General asserts a reasonable person would understand this was done for officer safety, but the record here does not support this claim. The reasonableness of these precautions is not the standard for determining custody. Rather, the issue is whether a reasonable person would see these precautions as another sign she was not free to leave. (Craighead, supra, 539 F.3d at p. 1086 [physical control of the suspect may be necessary for officer safety, but it does not lessen the tendency to make a reasonable person believe she is in custody]; cf. People v. Kopatz (2015) 61 Cal.4th 62, 80 [no custody where officers did not display weapons or frisk defendant before he agreed to go with them on a 10 minute drive to the police station].)
In sum, all the hallmarks of a custodial arrest were present here: handcuffing and arresting Hamel’s companion; police possession of a battering ram to break down a locked door; the display of weapons by six or seven officers; frisking Hamel before placing her in the police car; and the equivalent of physical restraint by seating an officer next to her on the 20 mile drive to the police station. At this point, a reasonable person would not have felt she was free to leave or decline the officer’s request to accompany them to the police station and be interviewed there.
The interrogation at the police station further supports our conclusion a reasonable person would have felt she was not free to terminate the interrogation and leave. (Yarborough v. Alvarado (2004) 541 U.S. 652, 663 [the Miranda custody test asks, under the given circumstances, “‘would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave’”].) Martinez testified at the preliminary hearing that he told Hamel at least three times during their interview that she was free to leave, but our review discloses he made the offer once. After she arrived from Long Beach, the transporting officers ushered her into a room on the third floor of the Santa Ana police headquarters, where Martinez greeted her by stating, “[T]hank you for coming down here voluntarily. Uh, you’re free to leave anytime you want.” Hamel had no way to return home, but Martinez did not inform her he or another officer would drive her back to her residence. “The mere recitation of the statement that a suspect is free to leave or terminate the interview . . .does not render an interrogation non-custodial per se.” (Craigshead, supra, 539 F.3d at p. 1088.) Here, under the circumstances described above, the announcement that Hamel was free to leave appears to be a matter of form.
The interview lasted from 2:51 p.m. until 4:18 p.m., approximately an hour and a half. After introductory comments, the officers five times rejected Hamel’s explanation of her activities. With each rejection, the officers began a new round of questioning with more direct accusations, gradually removing any pretense they regarded Hamel as a witness rather than a suspect. (Aguilera, supra, 51 Cal.App.4th at p. 1164 [officers unmistakably treated defendant as a suspect, not a witness].) When Hamel within an hour concluded, “I’m not gonna see anything but a jail cell anyway,” the officers renewed their calls for her to incriminate herself and persisted in pressing her for details, including to diagram the scene, though Hamel objected, “Let’s not do this.”
The manner in which the officers conducted the interview would not suggest to a reasonable person she was free to leave. Rebuffing Hamel’s attempts to explain herself and warning her halfway through the interview, “[I]t’s time for us to be honest with each other. And I need to find out with you if you’re gonna be honest with me,” Martinez reminded Hamel, “I’ve been doing this job 30 years. Alright,” and disclosed she was a police target because “I have reason to believe that you were driving the car . . . with Tiny in the car.” He repeatedly pressured her to “tell me the truth” when she continued to deny involvement, attempted to learn her nickname (“You go by Bobby?” “Barbie?”), suggested others had turned on her (“Well we talked to quite a few people,” naming several), and reminded her, “I'll treat you with respect Barbara. Okay. Just treat me with respect. Okay. You told me you wouldn’t lie to me, but I’m asking you to tell me the truth. And, and, and . . . and remember I told you that a lot of these questions I know the answer to already[.]”
When Martinez asked about “one particular incident that happened here in Santa Ana somebody got hurt. Do you know what I'm talking about,” and Hamel admitted only, “I’ve heard,” Martinez responded: “You heard . . . well you more than heard you witnessed it cuz you were there. Right? It’s time for you to get stuff off your chest now.” Martinez showed Hamel a picture of the victim, told her he wanted her “side,” and repeated as he had before that she had better tell him what happened “for your best interest.” (See Miranda, supra, 384 U.S. at p. 451 [including among psychologically coercive interrogation techniques statements that the officers know the suspect is guilty and want to give him an opportunity to explain].) As one court observed after officers repeatedly rejected a defendant’s explanation, “a reasonable person eventually would have realized that telling the ‘truth’ meant admitting the officer’s information was correct” and that the defendant “could not leave” until he “explain[ed] how and why one was involved” in the crime. (Aguilera, supra, 51 Cal.App.4th at p. 1163.)
The Attorney General relies on the trial court’s express finding the officers did not pressure Hamel “in anything other than the facts” or pressure her “to explain a fact one way or the other. . . .” In considering whether the officers were confrontational or accusatory, the court observed, “I didn’t hear anything to suggest that they were in that other than at times when they were confronting her, but I’ve heard interrogations that were much, much more confrontational. . . .” The record supports the court’s finding the officers “at times” were confrontational, but under these circumstances this factor leads to the conclusion a reasonable person would not believe she could end the interview and leave the police station.
As discussed above, the record also shows the officers’ questions were accusatory and their questions and comments during the interview “manifested a belief that the person was culpable and they had evidence to prove it.” (Aguilar, supra, 51 Cal.App.4th at p. 1162.) Contrary to the court’s analysis, it does not logically follow that anecdotal comparisons to more egregious interrogations shows the officers here did not pose confrontational or accusatory questions. No matter how mild the tone, confrontational and accusatory questions convey to a reasonable person investigators considered her a suspect, not a witness, and therefore she would not feel free to leave under these circumstances. (U.S. v. Carter (8th Cir. 1989) 368, 370 [making suspect “aware of the evidence against him” conveys to a reasonable person a sense of custody].)
Most importantly, the interrogation must be viewed in light of the circumstances in which Hamel agreed to an interview, where six or seven officers surrounded her home with their guns drawn, and that initial show of force did not dissipate, but instead transformed into other displays of physical control the officers did not or could not explain. They could not provide the trial court with any details about their arrest of Hamel’s male companion, including whether it took place inside or outside the home, how many officers were involved, anything that was said, the level of force used, or whether Hamel witnessed it. Similarly, the officers recalled nothing about their interaction with Hamel except that she “agreed” to go with them to the police station and that she was “conversational” rather than confrontational. They entered her home but remembered nothing they did there or anything that occurred there; they did not tell Hamel whether she was “under arrest or not under arrest”; she saw the battering ram in her yard as they escorted her outside to the back seat of an unmarked car; they frisked her before placing her in the vehicle; and they maintained ongoing close physical control over her with an officer seated beside her during the 20-mile ride from Long Beach.
As Hamel stated when Martinez suggested at the close of her interview that she had been free all along to leave, “Where was I gonna go, walk down the street in Santa Ana.” (Aguilera, supra, 51 Cal.App.4th at p. 1164 [interview deemed custodial where defendant did not have any “means of getting home on his own if he had tried to leave before the officers were finished with him”].) Considering these circumstances as a whole, we conclude Hamel was subjected to custodial interrogation. A statement taken while a defendant is in custody and the defendant has not been given Miranda warnings carries a presumption of compulsion that requires the statement to be suppressed even when it is “otherwise voluntary within the meaning of the Fifth Amendment.” (Oregon v. Elstad (1985) 470 U.S. 298, 306-307 (Elstad).) Because the officers failed to provide Hamel with the necessary Miranda warnings when they took her into custody, the trial court erred in failing to suppress her initial statements when Martinez and Cabrera initially interviewed her at the station.
B. Seibert and related issues
The Attorney General contends that even if Miranda warnings were required at the outset of Hamel’s first interview, their omission does not require reversal because Hamel made substantially the same admissions in a second interview after receiving and expressly waiving her Miranda rights. In Elstad, the United States Supreme Court held that an unwarned voluntary custodial confession followed by a voluntary warned confession did not require the exclusion of the second, warned confession. (Elstad, supra, 470 U.S. at p. 309.) The court explained, “It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” (Ibid.)
The high court later distinguished Elstad in Siebert, which Hamel invoked in her suppression motion. In Seibert, an officer “testified that he made a ‘conscious decision’ to 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.’” (Seibert, supra, 542 U.S. at pp. 605-606.) Employing this tactic on the defendant, the interrogating officer “questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating” a suggestive, accusatory remark (id. at pp. 604-605). She admitted the truth of the officer’s accusation and, following a 20-minute coffee and cigarette break, the officer then read her the Miranda warnings, obtained her written waiver, resumed the questioning “and confronted her with her prewarning statements” to again elicit inculpatory statements. (Seibert, at p. 605.)
A divided Supreme Court held the defendant’s postwarning statements were inadmissible. (Seibert, supra, 542 U.S. at pp. 617, 622.) Observing that the purpose of the two-step interrogation was “to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed” (id. at p. 611), Justice Souter concluded in the plurality opinion: “It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.” (Id. at pp. 616-617.)
Because police training organizations promote the two-step interrogation technique across the country, its widespread adoption could undermine Miranda (Seibert, supra, 542 U.S. at pp. 609-610 (plur. opn. of Souter, J.)), particularly since “the intent of the officer will rarely be as candidly admitted as it was here.” (Id.. at p. 616, fn. 6; see also id. at p. 613 [expressing concern that the “question-first is catching on”]). The plurality therefore proposed an objective test focused “on facts apart from intent that show the question-first tactic at work.” (Ibid.) This analysis asks whether, under the case-specific circumstances, “it would be reasonable to find . . . the warnings could function ‘effectively’ as Miranda requires” (id. at pp. 611-612), recognizing that midstream Miranda warnings “without expressly excepting the statement just given, could lead to an entirely reasonable inference that what [the accused] has just said will be used, with subsequent silence being of no avail” (id. at p. 613).
Justice Kennedy concurred in the judgment but did not agree with the plurality’s test that “envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations.” (Seibert, supra, 542 U.S. at pp. 621-622 (conc. opn. of Kennedy, J.).) Justice Kennedy instead adopted “a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” (Id. at p. 622.) Despite hazards in determining intent as noted by the plurality (id. at p. 616, fn. 6) and the dissent (id. at p. 626 [dis. opn. of O’Connor, J.) [noting different interrogating officers may hold “different states of mind” and “evidentiary difficulties have led us to reject an intent-based test in several criminal procedure contexts”]), Justice Kennedy concluded no constitutional violation occurs unless the interrogating officer(s) deliberately withheld Miranda warnings. (Id. at pp. 620-622.)
Under Justice Kennedy’s formulation, “If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made.” (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) Thus, illicit intent alone is not enough. Instead, the analysis consists of two prongs, first to determine whether the officer harbored the requisite intent and, if so, whether there were adequate “curative measures” that salvage the second statement. (Ibid.) Those “measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver.” (Ibid.) Justice Kennedy offered as nonexclusive examples: “a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances . . . . Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.” (Ibid.) Because Justice Kennedy “‘concurred in the judgment[ ] on the narrowest grounds’” (Marks v. U.S. (1977) 430 U.S. 188, 193), his concurring opinion represents the Seibert holding. (See Romano v. Oklahoma (1994) 512 U.S. 1, 9 [a narrower concurrence that “supplie[s] the fifth vote” controls over plurality opinion].)
Here, in denying Hamel’s Siebert motion based on the officers’ delay in giving her Miranda rights, the trial court stated, “I do not find that this was a bad faith tactic on their part.” Presumably the court meant by a lack of “bad faith” that it found the officers did not deliberately engage in a two-step interrogation process in which they intentionally withheld Miranda warnings until Hamel confessed. In People v. Camino (2010) 188 Cal.App.4th 1359 (Camino), we explained that a trial court’s finding in a Siebert hearing regarding the officer’s (or officers’) subjective intent is — like other factual findings — subject to deferential review under the substantial evidence standard, which we compared to the federal “clear error” standard. (Id. at pp. 1371-1372.) We must accept the trial court’s credibility assessments and resolution of disputed facts and inferences, if supported by substantial evidence. (Id. at p. 1371.) Thus, while in evaluating a defendant’s Fifth Amendment Miranda claim, 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.’”’” (Ibid.)
If our review were de novo, we may not have accepted the Attorney General’s claim that the officers did not deliberately delay giving Hamel Miranda warnings. Martinez commenced and continued Hamel’s interview without warnings though it appears he regarded or grew to regard her as a suspect, rather than a witness. He redirected (“Let’s get down . . . ”) her answers, made repeated demands for honesty (“I need to find out . . . if you’re gonna be honest with me”) especially when telling her “I have reason to believe that you were driving the car,” made statements suggesting he did not believe her innocent explanations (“I’ve been doing this job 30 years. Alright. Lot of the questions that I ask you I know the answers to already”), expressed open disbelief at her responses (“you’re dancing around” and “that ain’t gonna cover it”), and continued his unwarned questioning after she admitted that “with the way things went down I’m not gonna see anything but a jail cell anyway.”
Even after Hamel confessed she knew of the robbery plans and had been the driver who ran Bui over, Martinez did not pause for warnings. Instead, he pressed her for additional details by having her diagram the scene, though she protested, “Let’s not do this.” And when Martinez insisted, after receiving her confession, that she had “come in here voluntarily,” Hamel answered, “I didn’t feel like I could leave though.” (Martinez’s unintelligible interruption omitted.) After Martinez finally read Hamel her Miranda rights at the conclusion of the interview, she noted, “I think it’s kinda odd that you read me my rights after you’re asking me all these questions,” and she asked, “Why didn’t you read me these rights before.” Cabrera may have supplied the answer when he stated, “Basically we’re just gonna recap again,” which could suggest the officers intended the warnings to occur midstream in their questioning, followed by a recap of her earlier admissions, as the officer in Siebert had done. Had that occurred, this would be a close case suggesting a Siebert violation.
But Hamel cut off further questioning by invoking her right to an attorney (“I would like, I would like to speak to an attorney please”). No recap occurred and Hamel made no postwarning admissions at that time. When she stated, “I’d like to go home,” Martinez told her, “Well at this point . . . you can’t go home. Technical[ly] now you’re under arrest.” She and the officers quibbled as to why they had not provided warnings earlier. Hamel also seemed to explore whether waiving her rights and speaking further with the officers would aid her (“Come on you guys”), but Martinez reminded her, “[N]ow that you want your attorney I cannot ask you no more questions,” and Hamel recognized, “[Y]ou can’t promise me anything.” At the close of the interview, the officers praised Hamel for her honesty and accountability. But Hamel, “feeling like a big dummy” and “kicking my own ass inside,” lamented, “So pardon me for fuckin’ myself over, I was asked to do [unintelligible] [and] I’m very sorry for that.” The interview concluded and another officer escorted Hamel out of the room and down to the booking area, where she made no further admissions.
At this juncture, even if the record furnished some basis to doubt whether the officers deliberately delayed Hamel’s Miranda warnings, we are constrained by the lower court’s factual findings under the deferential substantial evidence standard of review. (Camino, supra, 188 Cal.App.4th at p. 1371.) As noted, credibility and intent are factual matters committed to the trial court’s purview. (Ibid.) That the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Because an appellate court must “give due deference to the trier of fact and not retry the case ourselves,” an appellant challenging the sufficiency of the evidence “bears an enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
Moreover, assuming Hamel could meet her burden to show the trial court erred in failing to recognize the officers intentionally withheld her Miranda warnings, the second prong of Justice Kennedy’s Siebert test forecloses relief. Specifically, his second prong requires an objective inquiry into whether “a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver,” though the officers delayed the warning. (Siebert, supra, 542 U.S. at p. 622, italics added (conc. opn. of Kennedy, J.).) Here, Hamel’s firm invocation of her right to an attorney near the close of her first interview, which the officers honored, objectively demonstrates the warning’s import and effect. Upon receiving the warning, Hamel invoked it, and the officers abided by her decision, even if they had intended to dilute the warning by giving it only as a midstream prelude to recapping her admissions.
Similarly, the record shows Hamel not only grasped the import and effect of invoking her rights, but of waiving them as well, as required under Justice Kennedy’s reasonable person test. At the close of her first interview, as Hamel explored whether she could gain any benefit from speaking further with the officers despite invoking her rights (“Come on you guys”), she expressly recognized without prompting from Martinez that if she waived her rights: “you can’t promise me anything.” Martinez reminded her, “I cannot ask you no more questions . . . unless you’re willing to talk to me without an attorney,” reiterating the import and effect of her rights. Hamel stood firm in her invocation at that time. Indeed, it appears she may have initialed a written assertion of her rights, and the interview concluded without further questioning, objectively demonstrating she understood that invoking Miranda would prevent further interrogation.
An hour later, Hamel returned to the room at her own request, after informing the booking officer she wanted to speak to Martinez again. The record demonstrates that a reasonable person would understand — and that Hamel here understood — the import and effect of her Miranda rights and of waiving them. (See Siebert, supra, 542 U.S. at p. 622 [only the objective inquiry is required] (conc. opn. of Kennedy, J.).)
Immediately after she entered the room, Hamel told Martinez, “I want to talk to you” and “I want to tear up that piece of paper.” When Martinez asked, “The advisement of rights?” Hamel answered, “Yeah,” and when Martinez queried, “So you are willing to talk to me without an attorney right now,” Hamel affirmed, “Yeah, yes, yeah.” Hamel began to say, “Can I ask you something please,” but Martinez interjected to again warn her of her Miranda rights before proceeding (“No, not until I advise you of your rights”). Expressly acknowledging the import and effect of waiving her Miranda rights, Hamel stated, “I just feel, I’m going to burn to incriminate myself,” but she listened as Martinez again read each of her rights and paused between each to ask, “Do you understand?” Hamel expressly acknowledged as to each of her rights, “Yes sir, I do understand,” and when Martinez asked, “Can we talk about what happened,” Hamel stated, “Yes sir, we can. Yes.”
Hamel then recapped the admissions she made in the first interview. It appears she believed the prosecutor would consider a more lenient disposition if she admitted her participation in the offense, though she recognized Martinez could make no guarantees. And Hamel may well have been right that “honesty was the best policy” at this point, as she garnered and initially accepted a plea offer of 15 years to life. As the judge who granted her pretrial request to withdraw her plea warned her, “It usually winds up being first degree murder when it’s a felony such as robbery, so you are receiving a pretty sweet deal.” But the fact Hamel ultimately rejected the prosecutor’s plea offer has no bearing on the admissibility of her second statement under Siebert. As discussed, even if we were to assume Martinez and Cabrera deliberately delayed giving her Miranda warnings, the objective circumstances demonstrate a reasonable person would grasp the import and effect of the warnings and of waiving them. Simply put, Hamel’s successful invocation of her right to an attorney unmistakably shows she understood their import and effect, namely, the officers could not question her further or review her earlier admissions after she invoked her rights. Consequently, under the second prong of Justice Kennedy’s controlling analysis in Siebert, the trial court did not err in denying her motion to suppress the admissions she made when she reinitiated contact with Martinez.
We note that if we were deciding this case on a blank slate, we would give serious consideration to the practical reality that a suspect deprived of Miranda warnings in a custodial setting, and who has let the “cat out of the bag” in an unwarned statement, may conclude there is little choice but to continue to speak to officers after receiving a belated warning. In particular, we would be leery of encouraging the police to circumvent Miranda in this manner. (Cf. People v. Storm (2002) 28 Cal.4th 1007, 1039-1040 & 1040-1049 (dis. opns. of George, C.J., and Chin, J.) (Storm).) But the high court and our Supreme Court have concluded as a matter of law that “an unwarned admission does not warrant a presumption of compulsion” in a subsequent statement. (Elstad, supra, 470 U.S. at p. 314; Storm, supra, 28 Cal.4th at p. 1031 [no “taint” inferable from two earlier confessions obtained in violation of Miranda; jailed suspect’s decision the next day to speak with detective a third time deemed voluntary, distinguishing “pre-Elstad California precedent”]; see, e.g., People v. Sims (1993) 5 Cal.4th 405, 455 [decided before Elstad; requiring “break in the causative chain” so that “the second confession is not in fact obtained by exploitation of the illegality”].)
In Siebert, Elstad’s author, Justice O’Connor, explained that the Elstad majority rejected the “theory” that when a suspect has made unwarned admissions in a custodial setting “‘[t]he coercive impact of the unconstitutionally obtained statement remains, because in a defendant’s mind it has sealed his fate.’” (Siebert, supra, 542 U.S. at p. 627 (dis. opn. of O’Connor, J.).) Justice O’Connor elaborated: “We did so not because we refused to recognize the ‘psychological impact of the suspect’s conviction that he has let the cat out of the bag,’ but because we refused to ‘endo[w]’ those ‘psychological effects’ with ‘constitutional implications.’ [Citation.] To do so, we said, would ‘effectively immuniz[e] a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver,’ an immunity that ‘comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual’s interest in not being compelled to testify against himself.’ [Citation.]” (Ibid.) If these considerations do not account for Miranda’s purpose to “compensate for the coercive pressures inherent in a custodial interview” (Pilster, supra, 138 Cal.App.4th at p. 1405) and allow officers effectively to downplay the warnings’ importance (People v. Musselwhite (1998) 17 Cal.4th 1216), we are nevertheless bound by Elstad and Seibert. (Auto Equity, supra, 57 Cal.2d at p. 455.)
Our conclusion the admission of Hamel’s second statement did not violate her constitutional rights under governing law is bolstered by the rules that apply when a person invokes the right to an attorney. Under Edwards v. Arizona (1981) 451 U.S. 477 and its progeny, “law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation.” (Davis v. United States (1994) 512 U.S. 452, 454.) As our Supreme Court has explained, “‘Once the suspect has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” [Citation.]’” (People v. Mattson (1990) 50 Cal.3d 826, 859, original italics.)
In Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045, the court held that if the suspect initiates further discussion, there is no constitutional violation if he or she then validly waives the right to counsel and to silence. Accordingly, the question is “‘whether the purported waiver was knowing and intelligent . . . under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.’” (Ibid., italics omitted.) A Miranda waiver is knowing and intelligent when made “with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” (Moran v. Burbine (1986) 475 U.S. 412, 421.)
Hamel suggests she could not comprehend her rights under the circumstances, and therefore her statements to the officers were not knowing, intelligent, or voluntary. “A confession is involuntary if an individual’s will was overborne. [Citations.] A coerced confession is not ‘the product of a rational intellect and a free will.’ [Citation.]” (In re Shawn D. (1993) 20 Cal.App.4th 200, 208-209.) But here the record demonstrates Hamel reinitiated contact with the officers and that her waiver at the outset of her second interview was knowing, intelligent, and voluntary where she was fully aware of the import and effect of her Miranda rights, and of the consequences of waiving them. We have reviewed a recording of Hamel’s interrogation, and none of the factors she cites, including exhaustion, emotional distress, or the interview circumstances, suggest an involuntary confession.
III
DISPOSITION
The judgment is affirmed.



ARONSON, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.