Opinion
A148142
07-20-2017
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL I. ESTUPINIAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 224455)
Defendant Rafael I. Estupinian was convicted of assaulting Maria C. at a house in which Maria and defendant rented rooms. During trial, the state introduced statements defendant made in a police interview subsequent to being given the warning prescribed by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Defendant contends that these statements should have been excluded because the police withheld the Miranda warnings until partway through the interview. We find substantial evidence to support the trial court's conclusion that the police were not attempting to undermine Miranda by waiting to read defendant his rights, and affirm.
I. BACKGROUND
In an amended information, the People charged defendant in count I with burglary with intent to commit a sexual assault (Pen. Code, § 220, subd. (b)) and in count II with sexual battery (id., § 243.4, subd. (e)(1)).
As to count I, the jury found defendant guilty of a lesser included offense, misdemeanor assault (Pen. Code, § 240), and as to count II, the court declared a mistrial because the jury was unable to reach a verdict. The court sentenced defendant to 179 days in county jail, with 179 days of credit for time served.
We briefly recite the facts of the underlying incident, though they are largely irrelevant to the Miranda issue defendant raises on appeal. In May 2015, Maria resided in a house owned by defendant's mother. In the early morning of May 22, defendant entered Maria's room and sat on the bed she was in. Defendant told police that he was seated on the bed in his underwear and a T-shirt. Maria testified that defendant had been on top of her, entirely naked. After Maria yelled for help, defendant got dressed and left the room.
Sergeants Selinger and Pon of the San Francisco Police Department interviewed defendant after his arrest on June 4, 2015. The interview began with questions about an unrelated robbery defendant had witnessed, whether he was dating, his children, and living at his mother's home with Maria. When the interview turned to the subject of Maria, Selinger said to defendant that "there was a report that was filed. [¶] . . . [¶] And I want to ask you and get your side of the story." Defendant asked if the officers meant "[a]bout with the—with the girl [(Maria)] or whatever—the woman?" and Sergeant Pon confirmed that they were interested in talking about Maria. Defendant volunteered to tell the officers "what happened." Sergeant Selinger suggested, "Why don't you let me read you your Miranda Rights 'cause it's your right to know what you're [sic] rights are okay?" Defendant said that he "didn't try to do anything with [Maria]," and Selinger cut him off to insist on Mirandizing him. Selinger then read the Miranda warnings from a department-issued Miranda card. Defendant responded that he understood his rights, and he agreed to continue speaking with the police about "[his] side of the story."
Over the remainder of the interview, defendant explained that he had gone into Maria's room to ask if she wanted to "kiss or do something but kind of leaning towards [sex]." He denied any desire to force Maria to do anything. He maintained that the door to Maria's room had been unlocked when he entered, and that he had been wearing boxer shorts in addition to his T-shirt the entire time. Defendant never invoked his right to remain silent, nor his right to counsel.
Prior to trial, defendant filed a motion to exclude the June 4, 2015 interview. In a hearing regarding that motion, Sergeant Selinger testified about her decision not to Mirandize defendant at the outset of the interview. She characterized the pre-Miranda statements as part of an "introduction to him." She stated that she began the interview with this introduction "[b]ecause I've never met Mr. Estupinian before. I wanted to see what his demeanor was going to be like, and also just to talk to him to see if I could build a rapport with him, to see if I can get a statement from him because I was assigned the case, I wanted to get his side of the story. So I just wanted to build a little bit of a conversation and trust."
The trial court ruled that all of defendant's statements after the Miranda warnings were admissible. The trial judge reasoned, "I absolutely do not find that the officers in this case were engaged in anything that comes close to a strategy to undermine the Miranda warnings . . . I don't find that this was conducted in any effort to undermine the protections of the Fifth Amendment, to overcome Mr. Estupinian's will, or in any way to dilute the power of Miranda."
The trial court excluded all of defendant's pre-Miranda statements concerning whether he was dating and the fact he had lived in the same house as Maria.
II. DISCUSSION
Defendant contends that the trial court erred by admitting his post-Miranda statements from the June 4, 2015 interview. Defendant asserts that these statements are inadmissible because police deliberately withheld the Miranda warnings in an attempt to discourage him from exercising his rights, in violation of Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). We find substantial evidence that the police acted with no such intent, and affirm the trial court's decision to admit defendant's post-Miranda statements.
When reviewing an assertion that a statement violates Miranda or its progeny, we " 'accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.' " (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) "We apply federal standards in reviewing defendant's claim that the challenged statements were elicited from him in violation of Miranda." (Ibid.) A. Miranda and Two-step Interviews
Miranda states that for a person's custodial statements to police to be admissible, "the person must be warned [by the interviewer] 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." (Miranda, supra, 384 U.S. at p. 444.) When police provide Miranda warnings in the middle of an interview, "the admissibility of any subsequent statement [depends] solely on whether it is knowingly and voluntarily made." (Oregon v. Elstad (1985) 470 U.S. 298, 309 (Elstad).) Courts are to assume that the subsequent statement is made knowingly and voluntarily, unless the police have engaged in "coercive or improper tactics in obtaining the initial statement." (Id. at p. 314.)
Police can undermine the Elstad presumption of voluntariness by engaging in a "two-step" interview in which they interrogate a suspect to gain inculpatory information, administer Miranda rights, and then go over the same inculpatory information. In Seibert, the court ruled deliberate use of this two-step approach renders "postwarning statements that are related to the substance of prewarning statements [inadmissible] unless curative measures are taken." (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) In Seibert, the interviewing officer extracted a confession from the defendant, a murder suspect, that she had intended to kill the victim. (Id. at p. 605.) The officer then Mirandized the defendant and used her prewarning statement to pressure her into making the same confession. (Seibert, at p. 605.) At a suppression hearing, the officer stated he "made a 'conscious decision' to withhold Miranda warnings" in order to first get the answers he wanted, and then after warning the suspect, "repeat the question 'until I get the answer that she's already provided.' " (Id. at pp. 605-606.) The court ruled it was unlawful for police to use this "two-step interrogation technique . . . in a calculated way to undermine the Miranda warning." (Id. at p. 622 (conc. opn. of Kennedy, J.).)
Justice Kennedy's opinion is controlling because he concurred with a four-justice plurality. In that situation, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." (Gregg v. Georgia (1976) 428 U.S. 153, 169, fn. 15.) --------
Though the California courts have not clarified how to determine whether a decision to withhold Miranda warnings is "calculated," the Ninth Circuit suggests, "courts should consider whether objective evidence and any available subjective evidence, such as an officer's testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning." (U.S. v. Williams (9th Cir. 2006) 435 F.3d 1148, 1158, fn. omitted (Williams).) This objective evidence includes "the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements." (Id. at p. 1159.)
In Reyes v. Lewis (9th Cir. 2016) 833 F.3d 1001 (Reyes), the Ninth Circuit examined the foregoing factors to determine the trial court improperly admitted the defendant's postwarning confession. There, police questioned the 15-year-old defendant for multiple hours over two days with no Miranda warning. (Reyes, at pp. 1017-1021.) After the defendant finally stated he had shot the victim, the officers Mirandized him, and then directed him to "talk about the stuff [they] talked about earlier," leading the defendant to "repeat[] his confession." (Reyes, at p. 1022.) The Ninth Circuit focused on three objective elements suggesting the police made deliberate use of a two-step interview. First, the defendant provided "the incriminating information" early on in the prewarning interview, yet the police persisted in questioning the defendant for a protracted period before Mirandizing him. (Reyes, at p. 1032.) Second, when an officer finally Mirandized the defendant, he "played down" the warnings. (Reyes, at p. 1032.) The officer suggested the warnings were being provided simply because the defendant was in a room in which " 'the door was locked and [he was not] free to leave.' " (Ibid.) The officer also did not pause after reading the Miranda warnings to make sure the defendant understood his rights, let alone pausing after each warning to provide any clarification the defendant might have wanted. (Reyes, at p. 1032.) Third, the officer referred the defendant back to his prewarning statements, suggesting the interview after the warnings was " 'just to clarify stuff.' " (Ibid.) B. Admissibility of Defendant's Post-Miranda Statements
On appeal, defendant argues the police used a "two-step interrogation technique . . . in a calculated way to undermine the Miranda warning." (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) The trial judge found that the police were not deliberately trying to undermine Miranda: "I don't find that this was conducted in any effort to undermine the protections of the Fifth Amendment." Per People v. Bradford, supra, 14 Cal.4th 1005, 1033, we defer to the trial court unless its holding is not supported by substantial evidence. We believe both "objective evidence and [the] available subjective evidence" substantially support the trial court's holding. (Williams, supra, 435 F.3d at p. 1158.)
We begin with the objective criteria enumerated in Williams. The "prewarning interrogation" was hardly "complete[]." (Williams, supra, 435 F.3d at p. 1159.) That portion of the interview covered an unrelated robbery, defendant's social and familial relations, and the fact he had lived with Maria. Defendant's confirmation that he and Maria had at one point lived in the same house was not close to the type of prewarning confession at issue in Seibert and Reyes. In fact, prior to being Mirandized, defendant explicitly denied doing anything to Maria.
There was also no "overlapping content of the pre- and postwarning statements." (Williams, supra, 435 F.3d at p. 1159.) After Mirandizing defendant, the police did not go back over his statements about the robbery, a girlfriend, or sharing a house with Maria. Sergeant Selinger separated the "introduction" from the second part of the interview by twice stating she wanted to transition to "get[ting defendant's] side of the story"—once before she Mirandized defendant and once after. Unlike in Reyes, where the officer rushed through the Miranda warnings and implied the second interview was only for clarification, Sergeant Selinger asked defendant if he understood each separate Miranda right and then asked whether he wished to continue "[with] those rights in mind."
The police personnel were continuous between both parts of the interview, but it is hard to see how defendant would have felt pressured by that continuity. In Seibert and Reyes, continuity was of consequence because the officers who heard prewarning confessions were able to compel the defendants to repeat those statements. Here, because defendant did not confess before the warning, there could have been no such explicit or implicit pressure to make an identical postwarning confession.
In addition to the objective evidence supporting the trial court's conclusion, Sergeant Selinger's testimony addressed her subjective mindset in withholding the Miranda warnings. She stated that her objective was not to subvert Miranda, but rather to "build a rapport with him, to see if I can get a statement from him."
Defendant asserts Sergeant Selinger's statement is tantamount to an admission that she sought to undermine defendant's Miranda rights. We do not agree. Were it the case that "build[ing] a rapport" undermined Miranda, police would be acting unlawfully every time they offer suspects water or bathroom breaks, talk about family gatherings, bring up shared loyalties to local basketball teams, or otherwise treat suspects in a considerate manner. Miranda was not intended to prevent police from building a relationship with suspects to increase the effectiveness of their interviews, but rather to ensure that defendants are aware of their rights prior to engaging in potentially incriminating discussions and to prevent coercive interview techniques. The claim that "build[ing] a rapport" undermines Miranda misunderstands the conditions of questioning that the warnings aim to prevent.
Moreover, Seibert does not forbid all techniques that officers might employ to get statements from suspects. Seibert forbids two-step interviews in which an officer gets inculpatory information prior to informing a defendant of his or her rights, Mirandizes the suspect, and then uses the earlier statement as leverage to cause the suspect to repeat that information. Prewarning statements that police encourage suspects to repeat after Miranda warnings are distinct from prewarning conversations that police use to "build[] a rapport." Thus, even if the intent of building rapport with defendant was to encourage him to talk with the police, that fact alone does not make the "introduction" unlawful under Seibert.
Defendant has not claimed, nor is there any indication, the police used other "coercive or improper tactics in obtaining [defendant's] initial statement." (Elstad, supra, 470 U.S. at p. 314.) We therefore conclude the trial court properly admitted defendant's postwarning statements.
III. DISPOSITION
The judgment of the trial court is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.