P. v. Fox

Filed 3/15/07 P. v. Fox CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A jury found defendant Gary Leroy Fox guilty of two counts of lewd conduct with a child under the age of 14. (Pen. Code, 288, subd. (a).)[1] The trial court found that defendant had suffered a prior serious felony conviction within the meaning of section 667. Defendant was sentenced to a total of 13 years in prison.

On appeal, defendant argues that he was denied his right to a speedy trial, that his incriminating statements to a correctional officer were made without benefit of a Miranda[2]warning, and that the trial court erred in failing to grant a new trial after it was learned that the jury had mistakenly been given a verdict form relating to the prior conviction allegation.

We reject defendants speedy trial argument. However, his remaining arguments have merit. Accordingly, we shall reverse.

I.                   Procedural Background

On April 1, 1991, a complaint was filed in Santa Cruz County charging defendant with two counts of lewd conduct on a child under the age of 14. The complaint also contained an enhancement allegation in which it was alleged that defendant had previously been convicted of the same crime in 1983. A warrant for his arrest was issued.

Defendant was taken into custody in Oklahoma on a separate matter in January 1992. Santa Cruz County authorities filed a detainer with the Oklahoma correctional authorities (see 1389) but did not seek defendants extradition for trial in California nor did defendant demand a trial as he is entitled to do under section 1389.

Defendant was released from custody in Oklahoma on July 15, 2003. Two days later, he was located at a motel in Texas and arrested on the Santa Cruz County warrant.

On January 2, 2004, defendant filed a motion to dismiss arguing that he had been denied the right to a speedy trial. The trial court deferred ruling on the motion until after the trial.

Immediately before trial defendant filed a motion to suppress evidence of his statements to Oklahoma Department of Corrections internal affairs investigator Mike Stone, who had interviewed defendant on defendants last day in custody in Oklahoma. Stone had questioned defendant about his involvement in this case, eliciting several incriminating statements. The trial court denied the suppression motion.

The trial court granted defendants request to bifurcate trial of the prior conviction allegation from trial of counts 1 and 2. Jury trial on the two substantive counts began on April 18, 2005. On April 28, 2005, during the course of its deliberations, the jury found among the papers in the jury room a verdict form pertaining to the bifurcated prior conviction. The jury asked the court what it was. The court instructed the jury to disregard the form and denied the defense motions for mistrial and for a new trial.

The jury returned a verdict of guilty on both counts.[3] The trial court found the prior conviction allegation to be true and sentenced defendant to the middle term of six years for the first count, plus two years for the second count and five years for the prior conviction enhancement ( 667, subd. (a)), for a total of 13 years in prison. This appeal followed.

II.                Facts

A.     The Prosecutions Case

In 1991, the victim (A.), was seven years old and living with her mother, her two-year-old brother, and her mothers boyfriend, J.K., at a motel in Santa Cruz. Norman Gross lived in the same motel. On or about March 29, 1991, A. came home upset and told her mother that someone living at the motel had touched her inappropriately earlier that day. A.s mother promptly reported A.s story to the police.

A. testified at trial that she had been molested by a man who lived with another man at the motel. The man called A. into his room, closed the door, and told her to take a nap. The room had one big bed and a folding bed. There were pictures of naked young girls on the wall and there were girls clothes under the bed.

The man put his hand down A.s pants and touched her genitalia. He then pulled down her pants and underpants but she pulled them back up. The man pulled down A.s pants a second time and pulled down his own pants and took off his shirt. He laid her on the bed, held her by the shoulders, and rubbed his penis on her stomach down to her vagina. A. tried to resist but the man was lying on top of her and she could not move. A. did not recall whether the man penetrated her vagina, although she did recall having felt pain in her vagina.

The man laid A. on the floor and put a cloth on her, like a diaper. He had her try on different clothes and wrote down the size of the clothes she had been wearing when he brought her into the room. He then sent her home, telling her not to tell her mother.

A. told police that the man who molested her was short, skinny, and had short dark hair and a tattoo. The mans roommate was heavy set, had long grayish-brown hair, a beard, and glasses. (Gross was about six feet tall and weighed around 225 to 250 pounds, and, in 1991, had dark bushy hair and a beard.) At trial, A. identified defendant as the man who molested her in 1991.

Santa Cruz Police Officer Lee Sepulveda investigated A.s report in 1991. Sepulveda went to the motel room A. had identified as the place where she was molested. Gross answered the door and consented to Sepulvedas search of the room. Sepulveda found a large bed, a folding bed, and a night stand. Childrens clothing was stacked on the furniture. Pictures of nude children who appeared to be about 10 years of age were taped to the walls. There was a shopping list that contained the notation: A[.], size seven. Sepulveda then interviewed A., who told him the story she recounted at trial.

Following Sepulvedas initial investigation, Santa Cruz Police Sergeant Andrew Crain executed a search warrant at Grosss motel room. He saw pictures of nude children taped to the walls. He found a shopping list with A.s name and clothing size. The list included the following items: underwear, bathing suits, dolls, crayons, and KY jelly. Elsewhere in the room Crain found pantyhose, a crib, and some womens clothing. Crain seized the pictures, the shopping list, the pantyhose, and the sheets from the folding bed. All this physical evidence was subsequently lost, although a photocopy of the shopping list was preserved.

Officer Doug Kaleas interviewed A. at the motel a day or two after Sepulveda first interviewed her. A. told Kaleas that the man who molested her was named Gary. She described him as skinny, with brown hair and a mustache and a tattoo on his left arm. Photographs of defendant taken in 2003 show tattoos on his left arm, right arm, and stomach.

Twelve years after the events recounted above, district attorney investigator Joseph Henard spoke with A. and A.s mother in Sacramento. Henard showed A. a photographic lineup that contained a photograph of defendant taken in 1984 but A. was unable to identify him. A.s mother identified the photograph of defendant as someone she recognized. She also identified a photograph of Gross taken in 2003 as the person who lived in the Santa Cruz motel with a man named Gary. Henard showed photographs to the motel manager who recognized Gross but not defendant.

In 1992, during an interview with Sheriff Billy Cassingham in Beaver County, Oklahoma, defendant admitted that he had sexually molested a three-year-old boy.

Oklahoma investigators Mike Stone and John Daniels interviewed defendant on July 15, 2003, just hours before defendant was to be released from prison. Stone asked defendant about his involvement in the Santa Cruz matter. An audio tape of that interview was admitted into evidence and played for the jury. In the interview, defendant admitted having lived with Gross and having been acquainted with A. around 1991. When Stone asked him if it was possible that he had once rubbed his penis on A.s belly defendant responded, Its possible. Defendant admitted to cleaning up the neighborhood children when they would come in covered with mud. Daniels asked what kind of contact defendant had had with the children and defendant said, Mostly hand contact. So, bathin em, you know. And changin em. Daniels prompted, A little fondling and maybe, and defendant answered, Well, maybe. Once.

Stone asked defendant if it was possible that he had had sex with A., to which defendant replied, Its likely. Nothin, nothin left of physical evidence. But, not after. Stone followed up by asking, Didnt come on her or anything like that and show her what it looked like or anything like that? Um, kay. Or did you? Defendant answered, I could of. Maybe I just. I just. Its. I might have, on her. Oh, I dont know. She may have walked in me, walked in on the bath, in the bathroom with the, by the shower and accidentally or something, by the door. Defendant also admitted, I may of touched her in between her legs when I was drying her, washing her and drying her off. When Stone asked him if he had ever put his fingers inside her defendant responded, I could of made. I. Logically, I could of, one time. I dont know. It was. Defendant made other, similar, equivocal but incriminating statements during the course of the 40 minute interview.

B.     The Defense Case

On cross-examination, A. admitted that until she was allowed to review the 1991 police report, she could not remember anything about the incident. Upon questioning by the court, A. clarified that she had remembered the pictures on the wall of Grosss room and remembered being touched sometimes, but she had had no recollection of the touching described in the police report. She also admitted that she had given inconsistent physical descriptions of the man who allegedly molested her in 1991. She said she got confused because she had been molested more than once in her life. Her mothers boyfriend, J.K., had molested her, as had a man named Doug. J.K. was convicted of molesting A. and was sentenced to prison for the crime. Sacramento police reports revealed that A. had reported that her younger brother had been molested by J.K., possibly while the family was living in Santa Cruz.

Dr. Charlea Massion performed the pediatric examinations for the sexual assault response team (SART) at Dominican Hospital in 1991. She examined A. on April 8, 1991, about 10 days after the alleged molestation and found no evidence of vaginal trauma or penetration.

Dr. Thomas Reidy, a forensic psychologist, tested defendant and determined that defendant has a verbal IQ score of 69, a performance IQ score of 80, and a full-scale IQ score of 72. Based upon this assessment, Reidy opined that defendant would be able to remember general-life events, although the details may be shaky. Persons with IQ scores in defendants range are not very smart. So their judgment and reasoning may be off, and their ability to handle complex conversations may not be very good.

Dr. Brian Abbott, a forensic psychologist, testified about childrens suggestibility and the difficulty in obtaining accurate information if questions are leading or otherwise suggest the answer being sought.

III.             Discussion

A.     Speedy Trial

The complaint in this case was filed in 1991 and an arrest warrant was issued at that time. Defendant was not arrested, however, until 2003. Defendant moved to dismiss the case, contending that the 12-year delay deprived him of his state and federal constitutional rights to a speedy trial.

At the hearing on the motion, the prosecutor presented evidence that on August 13, 1992, while defendant was imprisoned in Oklahoma, Santa Cruz authorities sent a certified copy of the arrest warrant to the Oklahoma Department of Corrections. On September 29, 1993, defendant signed as received a document entitled Notice of Untried Indictment, Information or Complaint. The notice advised defendant that he had the right to request a final disposition of the untried complaint and that if he did so, he would be brought to trial within 180 days. The notice also stated, Should you desire such a request for final disposition of any untried indictment, information or complaint, you are to notify records office of the institution in which you are confined. Defendant testified that when he signed this notice he assumed that if the Santa Cruz authorities wanted to try him, they would come after him. He admitted, however, that he knew when he looked at the notice that if he wanted a trial based on the warrant that he could have had one within 180 days.

After presiding over the trial, the trial court ruled that dismissal was not warranted under either the federal or state speedy trial analysis: The Court is satisfied here, as any basis and under any standard, I think, that you use here, that the motion ought to be denied; and while there certainly were problems presented here from the standpoint of delay, from the standpoint of memory, its clear to the Court here that they were not such that they denied Mr. Fox any due process here; and so under that standard or any other--and Im not suggesting here one versus the other; but it just seems to me, under any of the standards here, that the circumstances are such that Mr. Foxs opportunity to be brought back have a great deal of weight; and in addition to what the Courts review was at the time of seeing the evidence as it came in and on the basis of that, the other factors here as mentioned, certainly, in the Peoples argument, the Court would deny the motion. Defendant asserts that this ruling was error.

The state and federal Constitutions guarantee a criminal defendant the right to due process and a speedy trial. (U.S. Const., 5th Amend., 6th Amend.; Cal. Const., art. I, 15, cl. 1.) Under the federal Constitution, . . . the filing of a felony complaint is by itself insufficient to trigger speedy trial protection. [Citation.] The United States Supreme Court has defined the point at which the federal speedy trial right begins to operate: [I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. (United States v. Marion (1971) 404 U.S. 307, 320.) (People v. Martinez (2000) 22 Cal.4th 750, 754-755 (Martinez).) Thus, the complaint filed in 1991 did not trigger defendants federal speedy trial right.

Defendant points out that the Santa Cruz authorities placed a hold on him in Oklahoma by transmitting the arrest warrant to the correctional authorities in Oklahoma. That act, he claims, is effectively the same thing as an arrest in this case and, therefore, his federal rights should attach. However, our Supreme Court rejected the same argument in People v. Horning (2004) 34 Cal.4th 871. Horning held that a letter to Arizona authorities placing a hold on the defendant who was incarcerated in Arizona on separate charges did not cause the defendants actual restraint on the charges in the California case. He was not extradited at that time, and he remained incarcerated in Arizona due to conviction of charges in that state. The letter did not cause the government to arrest[] him and thereby commence[] its prosecution of him. (Dillingham v. United States (1975) 423 U.S. 64, 65.) Accordingly, the federal protection attached only when he was actually restrained on these charges. (People v. Horning, supra,34 Cal.4th at pp. 891-892.) It is true, as defendant observes, that Horning went on to apply the federal constitutional analysis on the assumption that the federal right applied. (Id. at p. 892.) That does not change the courts holding, which was that the federal right does not apply in these circumstances.

In California, a defendants right to a speedy trial is protected by statute and by the state Constitution. ( 1381 et seq.; Cal. Const., art. I, 15, cl. 1.) Defendant does not argue that he was denied his statutory rights under section 1381 et seq. He focuses only upon the constitutional right to a speedy trial. In contrast to the federal right, the speedy trial right under the California Constitution is triggered by the filing of a felony complaint. (People v. Martinez, supra, 22 Cal.4th at p. 754.) Thus, defendants state constitutional speedy trial rights attached upon the filing of the complaint in 1991.

The interests protected by the state Constitutions speedy trial guarantee are (1) avoiding prolonged imprisonment, (2) relieving anxiety and public suspicion, and (3) preventing unfairness at trial, which can arise when the passage of time places the means of proving innocence out the defendants reach, as by the loss of witnesses or the dulling of memory. (Martinez, supra, 22 Cal.4th at pp. 767-768.) When the defendant is not subject to restraints following arrest and has not been held to answer or formally charged . . . the first two concerns are implicated little or not at all, and the state Constitutions speedy trial guarantee serves primarily the interest in fair adjudication. (Id. at p. 768, fn. omitted.) In such a case, the defendant must affirmatively demonstrate that the delay has prejudiced the ability to defend against the charge. (Id. at p. 766.) If the defendant meets the burden of establishing prejudice, the trial court then weighs the prejudice against the justification for the delay to decide whether defendant has been deprived of his right to a speedy trial. (Serna v. Superior Court (1985)40 Cal.3d 239, 249.)

The trial courts decision acknowledged that there certainly were problems presented here from the standpoint of delay, from the standpoint of memory but the court went on to state that those problems did not deny defendant due process, impliedly finding that defendant had not demonstrated actual prejudice. The initial question of whether a defendant has established prejudice occasioned by the delay is a factual matter to be resolved by the trial court, and its decision on that point will not be overturned by an appellate court if supported by substantial evidence. (People v. Martinez (1995) 37 Cal.App.4th 1589, 1593.)

There is substantial evidence to support the trial courts conclusion in this case. Defendants claimed prejudice was his inability to obtain photographs of the motel room and other physical evidence, the unavailability of J.K., Gross, and the SART nurse, and potential deprivation of a concurrent term and potential exposure to treatment under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, 6600 et seq.) But as the Attorney General argues, the lost evidence is not necessarily prejudicial in light of the uncertainty that any of it would have been favorable to defendant. Further, the delay worked in defendants favor in that A.s faded memory diminished the force of her testimony. And the passage of time allowed defendant to introduce evidence of J.K.s molestation of A., evidence that was more powerfully favorable to defendant than whatever J.K. might have been able to testify to back in 1992 or 1993.

As to the possibility of concurrent sentences, the trial courts ruling implies that, in the trial courts view, defendants case was such that there was little real possibility that he would have received concurrent terms had he been tried sooner.[4] Indeed, defendants interstate crimes met the criteria for imposition of consecutive sentences. (Cal. Rules of Court, rule 4.425.) And there was no evidence from which the trial court could determine whether defendant would be subject to the SVPA.[5] Accordingly, defendant failed to carry his burden on this point.

Our review of the record supports the trial courts conclusion that defendant did not show actual prejudice resulting from the delay in this case and, therefore, the trial court did not err in denying defendants speedy trial motion.

B.     The Jury Verdict Form

In the course of deliberations the jury sent a note to the court stating, What is this? 1983 Santa Clara? Attached to the note was a jury verdict form that had been prepared for trial of the prior conviction allegation. The form itself does not appear in the record but according to the reporters transcript, the form was a Requested Finding on Special Allegation that [defendant] suffered a prior conviction for 288(a) in 1983 in the County of Santa Clara.

When the court received the jurys note, the court recognized that the jury should not have been given the form. I asked that counsel look at this such that we made sure what was going to go to the jury or not; and so I guess, in the rush of things, or whatever you want to say, it went to the jury. So now the question is what to do. Defense counsel immediately requested a mistrial.

The court called the jury, which had been engaged in listening to a lengthy reading of trial testimony, and questioned the jury as a group. The foreperson stated that the jury had been going through the papers and came across the form and wondered what it was. Three or four of us said, What the hell is this? We didnt know. Another juror explained that the jury had read the form out loud. The trial court explained that the form was not to have been before the jury and asked each juror in turn whether he or she could disregard it. Each juror responded affirmatively. The court then instructed the jury to disregard the form, denied defendants motion for a mistrial, and denied defendants subsequent new trial motion. Defendant contends that this was error.

If disclosure of the verdict form was inadvertent, the error was ordinary error. Such error is reversible only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Cooper (1991) 53 Cal.3d 771, 836.) On the other hand, if the error was misconduct, prejudice is presumed. [R]eversal is required unless there is no substantial likelihood that any juror was improperly influenced to the defendants detriment. (People v. Clair (1992) 2 Cal.4th 629, 668.)

Defendant has argued that the stricter standard should apply in this case. We need not decide the issue. Disclosure of the form to the jury was unquestionably an error and it was unquestionably prejudicial to some extent. It is unlikely that the jurors were not aware of the implication contained in the form, which was that defendant had previously been convicted of lewd conduct with a minor. Prior crimes evidence is considered highly prejudicial because of the likelihood the jury will use it to justify a finding that defendant committed the offense charged. (People v. Allen (1976) 65 Cal.App.3d 426, 435; disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 39, fn. 25.) Indeed, the trial court had granted defendants motion to bifurcate trial of the prior conviction allegation for that very reason. However, in light of the Miranda error discussed below, it is unnecessary to decide whether disclosure of the form, standing alone, is reversible error.

C.     The Miranda Warning

Defendant maintains that his interrogation at the prison in Oklahoma was a custodial interrogation requiring a Miranda warning, that the warning Stone gave him did not meet the requirements of Miranda,and that his confession was involuntary. We agree that the warning was required and that Stones recitation of the warning was inadequate.

1.      The Circumstance of the Interrogation

Santa Cruz authorities had contacted Stones office requesting that he obtain some information from defendant before defendant was released from custody. Stone and Daniels traveled to the Dick Conner Correctional Center in Oklahoma where defendant was then incarcerated. Defendant was called or escorted (the record is unclear on the point) to the office of the chief of securities, a secured room in the facility, where he was interviewed by Stone and Daniels.

The office was deemed secure due to its having no bars or windows and only one door. That door led to a hallway that ran past the shift captains office. The interview took place at a conference table pushed up against the chiefs desk. Defendant sat on one side of the table and Stone sat across from him. Daniels sat to the left of defendant. There was a tape recorder in the center of the table. Defendant was not handcuffed or otherwise physically restrained. Neither Stone nor Daniels was armed. In Oklahoma, none of the correctional officers are armed while inside a correctional facility. Daniels was in uniform. The record does not disclose whether Stone was also wearing a uniform.

Stone commenced the interview by asking defendant his name and inmate number. Stone identified himself as Mike Stone. D.O.C. Internal Affairs and Daniels as Sergeant John Daniels with the . . . Oklahoma Correctional Center, a Special Investigator. The following exchange then took place:

[Stone]: Mr. Fox, what Im here to talk about is a situation that may or may not of happened back in 1991 in Santa Cruz, California. You lived in Santa Cruz at one time, didnt you?

[Defendant]: Off and on.

[Stone]: Off and on? Um, kay. Did you ever, while you were livin in Santa Cruz, share an apartment or a room with a guy named Norman Gross, Gross, or something like that?

[Defendant]: Yeah. Part-time.

[Stone]: Part-time? Okay. Do you remember the dates that you lived in Santa Cruz or stayed with Mr. Gross?

[Defendant]: No.

[Stone]: Okay. Could it have been around 1991?

[Defendant]: Its possible. . . . [] . . . []

[Stone]: Its. I know its a long time back. But. Do you remember. You stayed at the Salt Air Motel? Wasnt that what it was, with Mr. Gross?

[Defendant]: It could have been. Yeah. . . . []. . . []

[Stone]: Okay. While you were at that Salt Air Motel, do you remember a young lady at that time by the name of [A.]?

[Defendant]: Yeah. Vaguely.

[Stone]: Hum? Okay. You kinda remember her?

[Defendant]: Yeah. Its been some years back.

[Stone]: Yeah. I know. Ah. What Im gonna do then, and before we get started, is I understand you know what a Miranda Warning is. But Im gonna read you a Miranda Warning and ask you to sign it and talk to me. Okay? An investigation has been ordered in which it is suspected that criminal activity has occurred. You are not under arrest. But before we ask you any questions you must understand your Constitutional Rights. Now, you are not under our arrest [sic] or anything like that. Were just gonna clear up some stuff. Okay? You have the Right to remain silent and anything you say may, can and will be used against you in a Court of law. If you are placed under arrest you then have the Right to retain a private attorney at your expense to be present and to consult with you before answering any questions. If you cannot afford to hire an attorney the Court may appoint you one before answering any questions. Do you understand each of the Rights that Ive explained to you?

[Defendant]: Um, hum.

[Stone]: Is that a yes?

[Defendant]: Yeah.

With the advisement complete, Stone went on to inform defendant that the reason why he was being interviewed involved an allegation of child molestation and that the victim, A., had identified defendant as a principal suspect.

2.      The Need for a Miranda Warning

The Miranda warning must be given prior to the interrogation of a person who has been taken into custody or deprived of his or her freedom in any significant way. (Miranda, supra, 384 U.S. at p. 444.) Obviously, this standard formulation of the rule is meaningless when the subject of the interrogation is already incarcerated. In such a situation the question is whether some extra degree of restraint was imposed upon the inmate to force him or her to participate in the interrogation. To determine whether prison officials have applied an additional restraint, further restricting an inmates freedom and triggering Miranda warnings, courts must consider the totality of the circumstances surrounding the alleged interrogation. (People v. Fradiue (2000) 80 Cal.App.4th 15, 21, citing Garcia v. Singletary (11th Cir. 1994) 13 F.3d 1487, 1492.) Four factors are significant in this inquiry: the language used to summon the individual, the physical surroundings of the interrogation, the extent to which he is confronted with evidence of his guilt, and the additional pressure exerted to detain him. (Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424, 428.)

Several cases have applied the Cervantes test to find no Miranda violation. United States v. Turner (9th Cir. 1994) 28 F.3d 981, 983-984 found no Miranda violation where the inmate made statements in a telephone call initiated by an inmate from jail. (See also, People v. Anthony (1986) 185 Cal.App.3d 1114, 1120-1121 [inmate made incriminating statements to police during telephone call initiated by inmate].) In Garcia v. Singletary, supra,13 F.3d at pages 1491 through 1492, the inmate was removed from his cell and questioned immediately after a fire was discovered inside the cell. In United States v. Scalf (10th Cir. 1984) 725 F.2d 1272, 1273, 1275-1276, no violation was found where the inmate was observed stabbing someone and a prison guard came to his cell and asked what was going on, to which the inmate responded that he did not like the victim. And in People v. Fradiue, supra, 80 Cal.App.4th at pages 20 through 21, there was no need for a Miranda warning where an investigative employee assigned to assist an inmate in preparing a defense to administrative charges interviewed inmate from outside his cell, in the presence of a cellmate, and advised the inmate that he was not required to cooperate and could stop talking at any time.

In each of the foregoing cases, the defendant was located where he normally would have been located on a day-to-day basis in prison and the circumstances were such that he would have reasonably understood that he was free to avoid the questions presented. In the present case, the circumstances are markedly different. Although we do not know the language used to summon defendant for questioning, he was either summoned or escorted to the office; the encounter was not merely incidental to ongoing prison activities nor was it initiated by defendant.

The physical surroundings of the interrogation were clearly more restrictive than the surroundings defendant would have ordinarily experienced in prison. The interrogation took place in the office of the prisons chief of securities, a room with only one exit leading to a hall past the shift captains office.

The circumstances as a whole amount to additional pressure exerted to detain defendant. The interrogation was conducted by Stone and Daniels, two correctional officers defendant did not know, just hours before defendant was set to be released. Defendant was surrounded by the two officers at the interview table. Neither Stone nor Daniels was armed, but that is the norm for correctional officers in Oklahoma. Daniels, at least, was in uniform. Although Stone did most of the questioning, Daniels also posed questions. Neither told defendant that he need not participate in the interview or that he would not suffer any adverse consequences if he decided not to answer questions. (See United States v. Chamberlain (8th Cir. 1998) 163 F.3d 499, 501-502.) Rather, Stone immediately elicited the admissions that defendant was acquainted with A. and had lived in Santa Cruz when and where A. claimed to have been molested. He then gave his Miranda advisement and promptly informed defendant that he was a suspect in the molestation of A.

We conclude that defendants having been taken out of the general prison population, placed in an unfamiliar room, surrounded by unfamiliar correctional officers, and promptly confronted with evidence of his guilt constituted a further restriction upon defendants freedom that warranted an appropriate Miranda advisement at the commencement of the interrogation.

3.      The Adequacy of the Miranda Warning

The Attorney General argues that defendant never raised the issue of whether the Miranda warning was adequate and, therefore, the issue is not preserved on appeal. In a supplementary brief, the Attorney General acknowledges having overlooked a sentence in defendants memorandum of points and authorities filed with the trial court in which defendants attorney argued: In addition to this, Mr. Fox was never advised of his right to have an attorney present during questioning. The Attorney General now contends that this perfunctory argument was insufficient to preserve the issue.

It is true that at trial, defendants challenge to the admissibility of his statements to Stone was primarily based upon alleged improprieties in the questions themselves. Counsel obviously believed that argument was her strongest. But she did not ignore the question of whether the advisement was adequate and clearly raised that as an additional basis for excluding the statements. It was minimal, to be sure, but sufficient to preserve the issue for appeal.

Miranda holds that before a defendants out-of-court statements can be received in evidence, the prosecution must prove that the defendant was informed in clear and unequivocal terms that (1) he has the right to remain silent; (2) anything he says can and will be used against him in court; and (3) he has the right to the presence of counsel, which means he has the right to consult an attorney and have his attorney with him during the interrogation so as to protect his privilege against self-incrimination. (Miranda, supra,384 U.S. at pp. 467-471; see also People v. Bennett (1976) 58 Cal.App.3d 230, 236-237.) Furthermore, [t]he warning . . . must make clear that if the arrested party would like to retain an attorney but cannot afford one, the Government is obligated to appoint an attorney for free. (United States v. San Juan-Cruz (9th Cir. 2002) 314 F.3d 384, 388, italics added; see also United States v. Connell (9th Cir. 1989) 869 F.2d 1349, 1353.) Thoroughness and clarity in the Miranda advisement are especially important when communicating with uneducated defendants or, as here, with defendants of below average intelligence. (United States v. Perez-Lopez (9th Cir. 2003) 348 F.3d 839, 848.) The warning must give meaningful advice in language which they can comprehend and on which they can knowingly act. (Ibid.)

Here, Stone told defendant twice that he was not under arrest. He then said, If you are placed under arrest you then have the right to retain a private attorney at your expense to be present and to consult with you before answering any questions. If you cannot afford to hire an attorney the Court may appoint you one before answering any questions. It is certainly true that no talismanic incantation is required to satisfy Miranda. (California v. Prysock (1981) 453 U.S. 355, 359.) But by stressing that defendant was not under arrest then telling him that if he were placed under arrest he would then have the right to counsel, Stone told defendant, in effect, that he did not then have the right to an attorney. An admonition that refers to appointed counsel at a future point in time does not fully advise a suspect of his right to counsel before such interrogation. (Id. at p. 360, citing People v. Bolinski (1968) 260 Cal.App.2d 705.) And the right Stone described was the right to retain an attorney at defendants own expense. He clarified that if defendant could not afford to retain an attorney the court may appoint one for him, but that certainly did not make it clear that the court is obligated to do so. Thus, the warning did not comply with the requirements of Miranda.

4.      Prejudice

We review Miranda error under the harmless beyond a reasonable doubt standard propounded in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Johnson (1993) 6 Cal.4th 1, 32.) In Yates v. Evatt (1991) 500 U.S. 391, the United States Supreme Court explained that [t]he Chapman test is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Yates v. Evatt, supra, 500 U.S. at pp. 402-403.) To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question. . . . (Id. at p. 403.) (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1166.)

The Attorney General does not argue that admission of the statements was harmless. Indeed, it would be a difficult argument to make in this case. Defendants statements, although equivocal in part, amount to nothing less than a confession. Confessions, as a class, provide persuasive evidence of guilt and often operate as a kind of evidentiary bombshell which shatters the defense (People v. Schader [1965] 62 Cal.2d 716, 731). (People v. Cahill (1993) 5 Cal.4th 478, 503.) [T]he improper admission of a confession is much more likely to affect the outcome of a trial than are other categories of evidence, and thus is much more likely to be prejudicial. (Ibid.)

Defendants statements to Stone were the most powerful evidence of guilt. Absent that evidence, there was nothing to connect defendant to the 1991 incident other than A.s in-court identification and her remark to Kaleas a day or two after the incident that her molester was named Gary. A.s in-court identification, however, was counter balanced by her faded memory and her inability to recognize defendant in a photographic line up when investigators renewed their inquiries into the matter in 2003. Neither A.s mother nor the motel manager recognized defendant, as depicted in the photograph, as having lived at the motel in 1991. And there was evidence that J.K., who was living with A.s family in 1991, and another man, had molested A., suggesting that it might have been one of them who actually molested her in Santa Cruz in 1991. Thus, without evidence of defendants statements to Stone, the case was extraordinarily close. Even with the statements included, the jury must have found the issue to be a close one since, in the course of deliberating, the jury requested a reading of A.s testimony and the testimony of each of the police officers involved in the 1991 investigation. Exacerbating the prejudice is the jurys exposure to the improper verdict form, which effectively informed the jury that defendant had previously been convicted of the same offense for which he was being tried in this case.

Given the paucity of the other evidence against defendant, we cannot say that the erroneous admission of defendants interview with Stone was unimportant in relation to everything else the jury considered. Accordingly, we cannot find the error to be harmless beyond a reasonable doubt.

IV.              Disposition

The judgment is reversed.

Premo, Acting P.J.

I CONCUR:

Mihara, J.

BAMATTRE-MANOUKIAN, J., Concurring and Dissenting.

In March 1991, the seven-year-old victim, A., reported that she had been molested by a man named Gary in his motel room in Santa Cruz. A. lived in a different room in the same motel with her mother, her two-year-old brother, and her mothers boyfriend. A. described defendant, his roommate, and the interior of defendants motel room. A criminal complaint was filed and a warrant issued for defendants arrest on April 1, 1991. In 1993, defendant was notified of the Santa Cruz charges while he was serving a prison sentence in Oklahoma following his admission that he molested a three-year-old boy. Defendant did not request a speedy disposition.

The trial in this case took place in 2005 when the victim was 21 years old. At trial, A. identified defendant as the man who molested her at the motel in Santa Cruz in 1991. Evidence of defendants admission of the molestation of the three-year-old boy in Oklahoma was admitted at trial.

Defendant was interviewed in 2003 before he was released from the Oklahoma state prison and he admitted that he lived off and on in Santa Cruz in 1991, and that he shared a room part-time there with a man named Norman Gross. Defendant stated that he knew A., and that he may of touched her in between her legs when [he] was drying her, washing her and drying her off. He also admitted that on at least one occasion he might have penetrated her with his fingers or hand or penis, and that its possible that he rubbed his hand or fingers inside her on at least one occasion. A tape of this interview was played for the jury.

The jury found defendant guilty of two counts of lewd conduct with a child under the age of 14 in violation of Penal Code section 288, subdivision (a). In a bifurcated proceeding, the trial court found that defendant had suffered a section 288, subdivision (a) conviction in 1983, which was a prior serious felony. The court sentenced defendant to 13 years in state prison.

Based on my review of the record in this case, I agree with the majority that the trial court did not err in denying defendants speedy trial motion. However, I would find that defendant waived the issue concerning whether the statements defendant made to the Oklahoma investigator should have been suppressed due to inadequate Miranda[6] advisements, but that defendant was not prejudiced by the waiver as the advisements actually given were adequate. I would further find that the jurys receipt of an improper verdict form was ordinary error and that there was no reasonable probability that an outcome more favorable to the defendant would have resulted absent the error.

I would affirm the judgment.

THE PROSECUTIONS CASE

Ms. M.

Ms. M.testified that in 1991, she was living with her boyfriend J.K., her two-year-old son, and her seven-year-old daughter A. at a motel in Santa Cruz. One day that year, A. came home upset. When Ms. M. asked A. what was wrong, A. said that somebody in the motel had touched her inappropriately earlier that day. At the time, A. did not know the persons name. Ms. M. called the police. The police came the next day and Ms. M. spoke to them about A.s report with A. present. A few days later, Ms. M. spoke to the police again. A. was later examined at the hospital.

Ms. M. further testified that she had seen Norman Gross around the motel at the time of A.s reported molestation, and she described Gross as a heavy-set man with long gray hair and a beard. Before trial, when she was shown defendants picture by a woman from the defense and by district attorney investigator Joseph Henard, Ms. M. recognized defendant as somebody who was also at the motel in 1991, but she did not know who he was.

A.

A. testified that when she lived at the motel in Santa Cruz in 1991 with her mother, J.K. and her brother, she was molested by a man who lived at the same motel with a roommate. The man who molested her was short, skinny, and had short dark hair and a tattoo. The mans roommate was heavy set, had long grayish-brown hair, a beard, and glasses. Their room, which is where the molestation occurred, had one big bed and a folding bed. There were pictures of naked young girls on the wall in the room and in the bathroom, and there were girls clothes under the bed.

The man called A. into his room, closed the door, and told her to take a nap. She told him that she was not tired. He grabbed her pants, put his hand down them, and touched her in her private area. He then pulled down her pants and underwear. She pulled them back up. He pulled down her pants and underwear a second time and pulled down his pants. He took off her shirt and laid her on the bed, holding her down by her shoulders, and rubbed his penis on her stomach down to her vagina. She does not remember if he actually penetrated her vagina. She told the man no, and tried to get away, but the man was too heavy. When he got off of her he laid her on the floor and put a cloth on her, like a diaper, and safety-pinned it. He then had her try on different clothes. He wrote down the sizes of the clothes she had been wearing. Afterwards he told her that she had to go home because he had to go to work and that she was not to tell her mother what happened. She felt pain in her vagina. The man gave her money, dolls, scissors, knives and packets of lubrication.

A. identified defendant at trial as the man who molested her at the motel in 1991. She testified that she knows that it was defendant who molested her because she recognizes him.

A. told her mother what happened that day or the next day, and police officers came and spoke with her. At that time, what had happened to her was fresh in her mind and she told the officers the truth. She does not remember exactly what she said. When A. was in the fourth grade in Sacramento, J.K. molested her and subsequently went to prison for it. She did not have to testify at a trial. She does not have trouble telling the difference between defendant and J.K. or between the two molestations. While A. answered yeah in response to a question, but there was a man named Doug that molested you as well, she also testified that she does not remember ever being touched by anybody else before 1991.

Officer Lee Sepulveda

Santa Cruz Police Officer Lee Sepulveda testified that on March 29 or 30, 1991, he left a message for Ms. M. at her motel, asking her to talk to A. and to do a physical examination of her. After leaving the message, Officer Sepulveda went to room 104 of the motel and knocked on the door. Norman Gross answered the door and gave the officer permission to go inside. The officer did not question Gross about the reported molestation because Gross did not match the description of the suspect. The motel room contained a large bed, a small fold-up bed, and a nightstand next to the fold-up bed on which there were folded girls clothing. Taped to the wall next to the fold-up bed and in the attached bathroom were some magazine pictures of nude children who appeared to be about 10 years of age. On the fold-up bed was a shopping list that also contained the notation A[.], size seven.

On March 30, 1991, Officer Sepulveda interviewed Ms. M. and then A. at the motel. A. told Officer Sepulveda that the day before, a man called her into his room and told her to take a nap but she declined to do so. The man grabbed the front of her pants and underwear, pulled them away from her body, and stared down into her pants. He then pulled her pants down to her ankles. She pulled her pants back up, but he pulled them down again and made her lie down on the fold-up bed. She was on her back and he lay on top of her, rubbing his penis on her around her stomach area. She tried to get up but could not do so because he was holding her down. She told him no to try to get him to stop. At one point they moved to the other bed and the same thing happened. When the touchings stopped, he made her wear a large cloth, like a diaper, that he pinned around her waist. He then had her try on a shirt and a skirt. He also gave her gifts. A. said that the man was the thinner of the two men who lived in room 104.

After interviewing A., the officer returned to room 104, but nobody was home.

Sergeant Andrew Crain

Santa Cruz Police Sergeant Andrew Crain testified that on April 1, 1991, after talking to Officer Sepulveda and reading the officers report, he obtained and executed a search warrant at room 104 of the motel. He was looking for items listed in Sepulvedas report as well as indicia regarding defendant. He was familiar with Gross, who was about six feet tall, weighed 225 to 250 pounds, and had bushy hair and a beard. However, nobody was in the motel room at the time of Crains search. The room contained two beds, one of which was a folding bed. Taped to the wall at the head of the folding bed were four small magazine pictures of nude young girls. Under the mattress of that bed the officer found a shopping list that listed A.s name and clothing sizes, underwear, bathing suits, dolls, crayons, and lubricants. Taped to the wall on both sides of the mirror in the bathroom were nine pictures similar to the ones over the bed. He seized the pictures, the list, and the sheets from the folding bed.

Officer Doug Kaleas

Officer Doug Kaleas testified that on April 2, 1991, he interviewed A. at the motel. He was aware that Ms. M. and A. had had a conversation about the incident before his arrival. A. identified the man who molested her as Gary. She said that he had brown hair, a moustache, a skinny build, and a tattoo on his left arm. She stated that his penis was hard when he rubbed it against her genital area, and she described resulting discomfort. She also described this as having happened on one bed. Officer Kaleas advised Ms. M. that A. should have a SART exam. Nobody answered the door when the officer went to room 104.

Investigator Joseph Henard

District Attorney Investigator Joseph Henard testified that he spoke with A. and Ms. M. in Sacramento on May 23, 2003. Before speaking with A., Henard did not give her anything to help her refresh her recollection about the 1991 incident. He showed her a photographic lineup that contained a photo of defendant taken in 1984, but A. was unable to identify defendant. Henard showed the same photographic lineup to Ms. M. and Ms. M. identified the photograph of defendant as someone she recognized. Ms. M. also identified a photo of Gross taken in May 2003 as the person who lived in room 104 with a man named Gary. Henard showed the same pictures of defendant and Gross to Mr. Patel, the owner-manager of the motel in Santa Cruz. Patel recognized Gross but did not recognize defendant.

Henard obtained copies of photographs of defendant taken when defendant was booked into jail on August 1, 2003, after arriving from Oklahoma. The photographs included one of defendants face, as well as others showing tattoos on his arms and stomach.

Sheriff Billy Cassingham

Sheriff Billy Cassingham from Beaver County in Oklahoma testified that in January 1992 he interviewed defendant during an investigation of a child molestation. During the interview defendant waived his rights and admitted that he molested a child. A photograph of defendant taken in Beaver County by Cassingham in 1992 was admitted into evidence.

Stipulation

The parties stipulated to the following: The defendant Gary Fox was interviewed on January 31, 1992, by Sheriff Bill Cassingham in Beaver County Sheriffs Office in Oklahoma. [] He agreed to talk with law enforcement. Mr. Fox said he moved to Beaver, Oklahoma, in September of 92 [sic]. There he moved into the Meirs . . . Apartments, Unit No. 6. [] He met M[.] R[.] who lived in the apartment complex. Around June 31st [sic], M[.] R[.] needed to go [to] the doctor. She left her three-year-old boy in Mr. Foxs care. The boy stayed with Mr. Fox all night. [] During the night, Mr. Fox gave him a bath and changed his clothes. Mr. Fox then said he sexually molested the three-year-old-boy. He said that it happened once or twice that night.

Investigator Mike Stone

Mike Stone, an investigator with the Oklahoma Department of Corrections, testified that in 2003 he received faxes from Santa Cruz regarding a 1991 incident at a motel there, asking if he could clear some things up. As a result, he spoke with defendant in the chief of securitys office at the state correctional center where defendant was incarcerated. Defendant was not physically restrained during the interview, but there was an unarmed correctional officer sitting next to defendant. Stone told defendant what he wanted to talk to him about, and defendant seemed to understand and agreed to talk to Stone. The interview was tape recorded and a redacted recording was played for the jury.

At the beginning of the interview, defendant said that he lived in Santa Cruz off and on, and that while doing so he shared a room with Norman Gross part-time. He said that its possible that he stayed with Gross in Santa Cruz around 1991. After being given Miranda advisements, defendant said that he stayed off and on at the motel in Santa Cruz at a time when he was drinking. Often in the afternoon, he would find neighborhood children playing in the mud and clean them up and give them clean clothing. He remembered playing with A., and remembered seeing her naked. He may have touched A. between her legs when he was washing her and drying her off, and he might have stuck his finger inside her. He did recall that he played with her on the bed and on the floor while she was undressed and while he was partially undressed. He also remembered giving her sodas or money to buy herself a soda on hot days.

THE DEFENSE CASE

Dr. Charlea Massion

Dr. Charlea Massion testified that she did pediatric exams for the sexual assault response team (SART) at Dominican Hospital in 1991. On April 8, 1991, she examined A., and found no evidence of vaginal trauma or penetration. The SART report prepared by the SART nurse states that the molestation took place on March 29, 1991, and that A. reported that she was held down, her body was touched, and that the mans penis was rubbed over her genital area. Such a touching would not necessarily leave an injury.

Dr. Brian Abbott

Brian Abbott, a forensic psychologist, testified as an expert in suggestive questioning childs memory and interview techniques of child witnesses. He testified that children are better at paying attention to and recalling things that happen to them that they consider personally meaningful than they are at recalling peripheral details. If children are subjected to suggestive or leading questions about things that are unclear in their memory, they will generally agree with the questions and the information will then be incorporated into their memory of the event. Children can resist suggestive and leading questions, and seven-year-old children can give accurate information about what happened to them. It would be unusual, unless a child were asked leading questions, for a child to report specific physical characteristics of an individual, such as the person being skinny and having short, brown hair and a mustache.

Dr. Thomas Reidy

Thomas Reidy, a forensic psychologist, testified that he performed an IQ test for defendant and determined that defendant has a verbal IQ score of 69, a performance IQ score of 80, and a full-scale IQ sc