Filed 4/19/18 P. v. Farmer CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS AUSTIN FARMER, JR.,

Defendant and Appellant.


G053621

(Super. Ct. No. 14NF1800)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Cheri
T. Pham, Judge. Affirmed.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Thomas Austin Farmer, Jr., was convicted of multiple counts of child sexual abuse. His sole contention on appeal is that his pretrial statements to the police should have been excluded from his trial because they were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Although appellant’s statements were elicited at a police station, he arrived there on his own and was repeatedly informed he was not under arrest and free to leave at any time. Under these circumstances, we conclude appellant was not in custody for Miranda purposes when he was interviewed. Therefore, his statements were properly admitted into evidence, and we affirm the judgment against him.
FACTS
A trusted friend of Jim Lewis and Jessica Baker, appellant often looked after their five-year-old daughter Haley and four-year-old son Blake. Sometimes appellant babysat the children just for the night, and sometimes he had them at his place for the entire weekend. This arrangement appeared to be working, but one day Lewis noticed Haley sticking her finger down her pants near her crotch. When he asked Haley what she was doing, she said appellant touched her down there like that, and Blake said appellant did the same thing to him. Alarmed by the children’s allegations, Lewis activated the recorder on his phone and questioned them about appellant. They said appellant had put his penis in their mouths and his finger in their butts. After the children repeated the allegations to Baker, she and Lewis called appellant over to get his side of the story. Appellant said if he did anything inappropriate to the children, it must have been while he was sleepwalking.
The next day, Lewis and Baker called the police. When questioned by the responding officer, the children described how appellant had molested them on multiple occasions. The case was then assigned to Anaheim Police Detective Thomas Hoang. He arranged for the children to be interviewed by child protective services and watched behind a two-way mirror as they repeated their allegations to a social worker.
The following week, Hoang went to appellant’s residence, but appellant was not home. Although Hoang left his business card and a note for appellant to call him, he did not hear back. A few days later, however, Hoang reached appellant by phone. He told appellant he wanted to talk to him about a matter he was investigating, and appellant agreed to meet him at the Anaheim Police Station later that day. Appellant did not express any reservations about coming in.
When appellant arrived at the police station, he checked in at the front desk in the lobby, per Hoang’s instructions. A few minutes later, Hoang and his partner greeted appellant there. They were wearing civilian clothing with police badges, and they had their guns holstered in their waistbands. From the lobby, they escorted appellant to an interview room that was located in a secured area of the police station. The walk to the interview room took about three to five minutes and required the trio to climb two flights of stairs. During this time, Hoang made small talk with appellant, but he did not discuss the case with him or physically restrain him in any manner. In fact, he did not even search appellant before they entered the interview room.
Roughly eight by eight feet in dimension, the room contained two chairs and a table. After appellant sat down in the chair farthest from the door, Hoang left him there momentarily to get him some water. Meanwhile, Hoang’s partner began setting up the recording equipment in a nearby room, where he stayed throughout the interview. When Hoang returned with the water, he closed the door and took a seat across the table from appellant. The door was not locked, but Hoang’s chair was positioned directly in front of it. He told appellant that if he wanted to end the interview at any point to just let him know and he would escort him out. Appellant acknowledged the offer and seemed to understand what Hoang was telling him.
At that point, Hoang’s partner activated the recording equipment, and Hoang informed appellant their conversation was being taped. He then told appellant, “I appreciate you coming in . . . I just . . . wanted to explain that you’re here on your own accord, right?” Appellant responded, “Right.” Hoang also told appellant he was not under arrest. To underscore this point, he told appellant, “You voluntarily came here to talk to me. So at any time you want to stop this conversation . . . and you want to leave just let me know” and “I’ll escort you out.” Appellant said he understood he was not under arrest and could leave at any time.
Hoang then asked appellant to tell him about himself, and appellant said he was a recovering drug addict who had spent time in prison. He said he was currently seeing a therapist for depression but had not used any illicit drugs in about 10 years. When Hoang asked him why he thought the police wanted to talk to him, he said he had no idea. He said he had a good relationship with Jim Lewis and was like an uncle to his children. However, when asked if he thought things were still good between him and the Lewis family, he acknowledged Haley and Blake had accused him of molesting them.
Appellant said that when Lewis played him the recording of his children’s allegations, he was shocked. He told Hoang he did not think he was a pedophile, but he was prone to blackouts, and if he did molest Lewis’ children while they were in his care, he deserved to be punished for it. Appellant also stated he was sexually abused for many years when he was a child. However, he insisted he had no memory of ever molesting Haley or Blake and was “dumbfounded” by their accusations.
For the next several minutes of the interview, Hoang attempted to clarify whether appellant was saying he did not molest the children or was simply saying he could not remember molesting them. Appellant did not give a clear answer. He said he takes an antidepressant medication, and when he falls asleep at night he’s “dead to the world,” so it was possible he could have done something to Haley and Blake while he was sleepwalking. But he said it would be shocking to him if he did because he has a daughter of his own whom he has never molested.
Hoang asked appellant why Haley and Blake would accuse him of molesting them if it wasn’t true. Appellant speculated Lewis put them up to it. While admitting Lewis was a longtime friend, appellant claimed “sometimes he does pull shit like that.” Hoang was skeptical. He said he wanted to do what was best for the children and asked appellant how he could help them if they had in fact been molested. When appellant suggested counseling and therapy, Hoang said he could not get the children those resources until he knew what actually happened to them. Appealing to appellant’s “sense of right and wrong” and his “sense of family,” he implored appellant to tell him the truth so he could “get the kids the help they need[.]”
Appellant responded, “[W]hat else is there to say? . . . I’m not gonna admit to something I didn’t do. But I mean, . . . obviously, there’s . . . some kind of indication of proof that I’ve done something. So I mean, what am I supposed to say?” Hoang told appellant he simply wanted to know what happened, to which appellant replied, “Well obviously what happened is I obviously molested ’em. So I mean . . . what [else] is there . . . to say[?]” Sensing appellant was getting worked up, Hoang told him to slow down, but he continued in this vein, saying he “must have” molested the children because “obviously” there was evidence of that. Claiming evidence “doesn’t lie,” appellant surmised there was DNA evidence confirming the children’s allegations. When Hoang asked if he really believed that, appellant said, “I have no idea. Obviously we’re here.” “Obviously . . . I’ve done it.” “So what else is there to say? Okay, yes I did.”
Hoang still wasn’t sure whether appellant was actually admitting guilt or just trying to be facetious. He told appellant he did not believe his sleepwalking story and reiterated that, for the sake of the children, it was important for him to explain what really happened. Appellant responded with mixed messages. While insisting he was innocent and shouldn’t have to go to prison for something he did not do, he also said he was “fucked” because the children must be telling the truth. Then, after urging Hoang to just “book” him and get it over with, he backtracked again, saying for “[a]ll I know . . . this could all be hearsay. . . . I don’t know how the kids came up with stuff like that.”
Hoang told appellant he did not want him to cop to anything he did not do, but at the same time, he did not want him to lie either. He told appellant the problem with his sleepwalking story was that the children both said he was wide awake when he molested them. Appellant said he didn’t know what to say to that. When Hoang suggested he tell the truth, appellant said, “Okay fine. I mean obviously you want me to lie and have [to spend the] rest of my life in prison.” Hoang told appellant he did not want that; rather, he simply wanted appellant to tell the truth and make things right with Lewis’ family. Appellant responded, “Fine, then I guess . . . . I admit it.” “I’m not leaving this . . . room so I might as well . . . admit it. Admit[] to something I didn’t do. But hey, you know what? You’re the detective.” “Obviously . . . I’ve had sex . . . with them.”
When Hoang asked for details, appellant responded, “Why should I say anything else if I’ve already admitted it? Obviously . . . I’ve had sex and all that kind of shit with them.” At the same time, though, appellant continued to hedge his statements by claiming he had no recollection of doing anything wrong. He said the whole situation was very sad to him because he had “never harmed a kid in [his] life.”
In the face of appellant’s continued ambivalence, Hoang tried to assure him he had an open mind about the case. He told appellant that if he had really thought he was guilty from the get-go, he would have just arrested him at his house, but instead he invited him to the police station to get his side of the story. He told appellant not to presume what his opinions about the case were, but appellant doubted Hoang was buying his story. He said, “I have to confess that I’ve done something because obviously [the children’s allegations have] been looked at and something has happened.”
At that point, about half an hour into the interview, Hoang asked appellant if he would like to write an apology letter to Lewis’ family, and appellant said yes. He then gave appellant a pen and paper and left him alone in the room for about 20 minutes. During that time, appellant struggled to put his thoughts on paper, but when Hoang returned he seemed relieved to have done so.
After reviewing the letter, Hoang reminded appellant he was not under arrest and free to leave at any time. Although Hoang told appellant he wanted to keep their conversation going, he said that was up to appellant, and if he wanted to end the interview, he could do so at any time. When appellant said he was not going anywhere, Hoang reiterated this point. He told appellant, “I want you to . . . listen. I want you to understand . . . very clearly that if you want to leave right now tell me you want to leave and I’ll escort you out.” Appellant chose to stay, and the interview continued.
Hoang told appellant he wanted to speak to him “man to man.” Saying his sleepwalking story was “not going to fly” in court, Hoang implored appellant to “make things better” by explaining what really happened between him and the children. Appellant replied, “Then okay fine[,]” “I’m gonna admit it[.]” “I abused them. What else is there to say?” When Hoang asked, “What does that mean?” appellant said, “Yeah, I must’ve, you know? I have obviously had sexual relationships with the kids.”
Hoang decided to play along. He asked appellant when he first started molesting the children, and he said about a year ago. Then he added, “It’s done. Book me.” When Hoang asked what for, appellant said, “I obviously, you know, fingered her[.]” While insisting there was “no evidence” of that, appellant said, “I’ve obviously had sex with [them],” even though “I’ve never done [anything like that] in my whole life” up to this point. “I just can’t believe . . . how sick . . . I am to be that messed up with these kids. And it saddens me but I mean, I’m not gonna [keep denying it because] they need closure.”
Appellant’s subsequent statements made it clear he was being sincere. While claiming he couldn’t remember everything he had done, he bemoaned, “I’m gonna be hung in fucking prison now for something that I did. I’m not gonna say I didn’t do this ’cause I did this.” “I obviously went wrong. There’s no doubt.” “It just happened.” “And it just . . . kept happening and kept [getting] easier and easier.” “And I don’t understand.”
Appellant went on to provide details of the molestation, which included rape, sodomy and digital penetration. He said he first started molesting the children the previous summer, and that contrary to his earlier statements, he never really had any blackouts. He said he just blocked the molestation out of his mind as a coping mechanism because he did not want to think about what he was doing. He also said he never intended to hurt the children and was very sorry for molesting them. He told Hoang, “For some reason I thought it was okay and it’s not okay.”
Hoang thanked appellant for his candor and said his confession would start the healing process for the children. Saying it felt good to confess, appellant told Hoang he was sorry it took so long for him to come clean during the interview. He thanked Hoang for being so patient with him and for letting him write the apology letter “because that’s what did it,” i.e., that’s what made him think about what he had done and paved the way for his admissions.
Following the interview, which lasted about an hour and forty-five minutes, appellant was arrested and charged with multiple child sex crimes. Before trial, he moved to suppress his statements on the basis Hoang did not read him his Miranda rights before questioning him. Following a hearing on the issue, the trial court found Miranda did not apply because appellant was not in custody during the interview, nor was he subjected to interrogation. Therefore, it denied appellant’s motion.
At trial, appellant took the stand and denied the allegations. He said that during his interview with Hoang he lied about the blackouts and sleepwalking because he was nervous and Hoang did not believe his initial denials. He also claimed he did not feel free to leave the interview room because Hoang was blocking the door and he knew his partner was right outside. During trial, the defense also presented evidence from a forensic nurse who examined Haley and Blake after appellant’s arrest. She testified the children did not display any physical signs of sexual abuse. However, she said that did not mean they were not abused because sex crime victims often appear to be healthy. After deliberating on the matter, the jury convicted appellant of 14 counts of child sex abuse. He was sentenced to life in prison for his crimes.
DISCUSSION
Appellant contends the trial court erred in denying his Miranda motion. In his view, his statements were inadmissible because he was subjected to custodial interrogation by Hoang without the benefit of receiving his Miranda rights. We uphold the trial court’s ruling. Irrespective of whether appellant was subjected to interrogation during the interview, the record shows he was not in custody for Miranda purposes. Therefore, there was no Miranda violation, and appellant’s statements were properly admitted into evidence.
Under Miranda, “a person questioned by law enforcement officers after being ‘taken into custody or otherwise deprived of his freedom of action in any significant way’ must first ‘be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’ [Citation.] Statements elicited in noncompliance with this rule may not be admitted for certain purposes in a criminal trial. [Citations.] An officer’s obligation to administer Miranda warnings attaches, however, ‘only where there has been such a restriction on a person’s freedom as to render him “in custody.”’ [Citations.] In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply whether there [was] a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ [Citations.]” (Stansbury v. California (1994) 511 U.S. 318, 322.)
Factors bearing on the custody issue include the length of the interview, where it occurred, and the ratio of officers to suspects. (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) “Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404.)
Some of those factors support appellant’s position that he was in custody at the time he was interviewed. For example, the interview occurred in a police station and ended with appellant’s arrest. (See Howes v. Fields (2012) 565 U.S. 499, 511 [a person who is questioned at a station house “may be pressured to speak by the hope that, after doing so, he will be allowed to leave and go home.”].) In addition, appellant reasonably understood he was suspected of serious misconduct; he knew what the children had said. Hoang never came right out and said this, but he was fully aware of the children’s allegations, and his questions signaled he believed they were true.
Nevertheless, “Miranda warnings are not required ‘simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.’ [Citation.]” (People v. Moore (2011) 51 Cal.4th 386, 402.) Instead, we must examine the totality of the circumstances to determine whether a reasonable person in defendant’s position would have felt free to leave. (Thompson v. Keohane (1995) 516 U.S. 99, 112-113; People v. Pilster, supra, 138 Cal.App.4th at p. 1403.)
Some of the circumstances surrounding appellant’s interview shed little light on the custody issue. For example, the number of officers to suspects was roughly even, and at one hour and forty-five minutes, the interview was not unduly prolonged. (See Green v. Superior Court (1985) 40 Cal.3d 126, 131-136 [defendant not in custody even though he was questioned at the police station for two hours by two police officers].) In addition, while Hoang asked appellant some pointed questions and was fairly persistent throughout the interview, he was also cordial and professional; at no point did he threaten appellant, promise him anything, or even so much as raise his voice. These circumstances do not tip the custody issue one way or the other. (Compare People v. Saldana (2018) 19 Cal.App.5th 432 [defendant found to be in custody during highly confrontational interview in which he was threatened and confronted with false evidence].)
But the fact appellant voluntarily went down to the station and was told he was free to leave strongly support a finding he was not in custody. Hoang didn’t just making a single, fleeting reference to the fact appellant was free to leave, he drove this point home several times. Before the questioning began, he told appellant he could end the interview whenever he wanted. Then again, at the start of the interview, he informed appellant he was not under arrest and free to leave at any time. The third such admonishment came after appellant wrote his apology letter. At that time, Hoang reiterated appellant was under no compulsion to keep talking to him.
In and of themselves, these admonishments are not dispositive of the issue, but it is “common sense” to accord them great weight in determining whether appellant was in custody for Miranda purposes. (Smith v. Clark (9th Cir. 2015) 804 F.3d 983, 995.) Indeed, courts “‘have consistently held that a defendant is not in custody when officers tell him that he is not under arrest and is free to leave at any time.’ [Citation.]” (Id. at p. 994, citing Howes v. Fields, supra, 565 U.S. at p. 515 [despite the presence of some circumstances indicating otherwise, the defendant was not in custody because he “was told at the outset of the interrogation, and was reminded again thereafter, that he could leave”]; California v. Beheler (1983) 463 U.S. 1121 [suspect not in custody where he voluntarily agreed to accompany police to the station house after being told he was not under arrest]; Oregon v. Mathiason (1977) 429 U.S. 492 [same]; see also United States v. Brown (11th Cir. 2006) 441 F.3d 1330, 1347-1348 [the fact a suspect is told he is not under arrest and is free to leave is of substantial importance in determining custody issue]; United States v. Griffin (8th Cir.1990) 922 F.2d 1343, 1349 [“The most obvious and effective means of demonstrating that a suspect has not been ‘taken into custody . . . is for the police to inform the suspect that an arrest is not being made and that the suspect may terminate the interview at will’”]; United States v. Wright (5th Cir. 2015) 777 F.3d 769, 776-777 [the officers repeatedly told the defendant he was free to leave before questioning him, which was a “crucial” factor on the custody issue]; United States v. Peck (N.D. Ga. 2014) 17 F.Supp.3d 1345, 1362 [“‘Unambiguously advising a defendant that he is free to leave and is not in custody is a powerful factor in the mix, and generally will lead to the conclusion that the defendant is not in custody’”]; People v. Linton (2013) 56 Cal.4th 1146, 1167 [defendant not in custody where he was repeatedly informed he was not under arrest and not required to speak to authorities].)
Appellant contends the statements Hoang made to him about not being under arrest and free to leave were illusory because he was interviewed behind closed doors in a secured section of the police station. It’s true appellant was not free to just up and leave the interview room and wander about the station. However, Hoang made it clear to him that if he wanted to leave, he would escort him out. The escort requirement was a reasonable security measure. It did not transform the situation into a custodial one. (Howes v. Fields, supra, 565 U.S. at pp. 515-516 [defendant not in custody even though he could not “roam free” outside the area where his interview took place]; Sanchez v. Barnes (N.D. Cal. 2011) 2011 U.S. Dist. LEXIS 143723 [defendant not in custody even though he needed a police escort to leave the interview area].)
Nor did any of the other circumstances attendant to the interview. Those circumstances simply were not sufficient to undermine Hoang’s repeated admonishments that appellant was not under arrest and free to leave. In fact, every time Hoang advised appellant of this, he indicated he understood and continued to answer the detective’s questions. Not once did he say or do anything to suggest he wanted to terminate the interview and go on his way. And, of course, after he confessed, he expressed relief and thanked Hoang for the manner in which he conducted the interview, which certainly suggest circumstances that did not “present a serious danger of coercion.” (Howes v. Fields, supra, 565 U.S. at pp. 508-509.) Considering all the relevant circumstances, we conclude appellant was not in custody, and therefore Hoang was not required to read him his Miranda rights. (Ibid.) There was no error in admitting appellant’s statements into evidence at his trial.
DISPOSITION
The judgment is affirmed.



BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.