Opinion
G062398
04-24-2024
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL MERINO, Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Amanda Lloyd, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 18CF3206 Jonathan S. Fish, Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Amanda Lloyd, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
GOODING, J.
A jury convicted defendant Miguel Angel Merino of oral copulation with a child 10 years of age or younger, a felony. (Pen. Code, § 288.7, subd. (b).) The trial court sentenced Merino to 15 years to life in prison.
Merino contends the trial court erred in admitting at trial the statements he made to police while in custody, including his confession to the crime, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Specifically, Merino contends (1) the waiver of his Miranda rights was invalid because he initially was given a materially incorrect advisement regarding his right to an attorney (i.e., that a lawyer would be appointed on his behalf "if [he has] money to pay for [one]"), and that, although he was later correctly advised of his Miranda rights, the inconsistent advisements were irremediably confusing, and (2) his subsequent confession was involuntary because law enforcement used religion as a coercive tactic during questioning to get him to confess. We conclude the police complied with Miranda before initiating questioning and, given the totality of the circumstances, Merino voluntarily, knowingly, and intelligently waived his rights under Miranda. We also conclude Merino's confession was voluntary and not coerced. We affirm.
FACTS AND PROCEDURAL HISTORY
I.
MERINO'S ARREST AND MIRANDA ADVISEMENTS
On the evening of November 13, 2018, Santa Ana Police Officer Gomez arrested Merino for the suspected molestation two weeks earlier of a nine-year-old boy (R.F.) at the Santa Ana home where both Merino and R.F. resided. Officer Gomez had learned from R.F. during his investigation that Merino had forced R.F. to orally copulate Merino. Merino was 28 years of age at the time and the cousin of R.F.'s mother's boyfriend.
After placing Merino in custody, Officer Gomez drove Merino to the Santa Ana Police Department and interviewed Merino in an interview room. Merino is Spanish speaking, so Officer Gomez conducted the interview of Merino in Spanish. The interview was both audio and video recorded and was later transcribed into English.
Officer Gomez grew up speaking Spanish and Spanish is his first language. Officer Gomez was certified by the Santa Ana Police Department as a Spanish speaker for the department.
Officer Gomez later testified he reviewed the transcript for accuracy.
Before he began his questioning, Officer Gomez informed Merino of his Miranda rights. At first, Officer Gomez verbally gave Merino an incorrect advisement regarding his right to an attorney, telling him that an attorney would be appointed for him before questioning "[i]f you have money to pay for a lawyer."
Officer Gomez then showed Merino the Santa Ana Police Department's Miranda advisements form, which was pre-printed in Spanish, and read each of the advisements listed on the form out loud to Merino line by line. Under each separate advisement, the form asks whether the individual understands the advisements, followed by a line for a signature or initials. After reading the first advisement to Merino, Officer Gomez told Merino, "[i]f you understand put your initials there." Merino responded, "Okay" and asked if he should use initials or a signature. Officer Gomez told Merino, "initials are fine." Officer Gomez then read Merino the remaining three Miranda advisements from the form and asked Merino if he understood them. This time, Officer Gomez correctly told Merino the following with respect to his right to an attorney: "If you do not have money to pay for a lawyer, one will be appointed to you for any questioning if you wish." Merino initialed the form indicating his understanding of every advisement. Merino also signed the form.
Officer Gomez read the following advisements to Merino (translated into English): (1) You have the right not to say anything. (2) What you say now can be used against you in court. (3) You have the right to an attorney before and during any questioning. (4) If you do not have money to pay for a lawyer, one will be appointed to you for any questioning if you wish.
The form initialed by Merino said under each advisement: "Entiende?" - i.e., "Do you understand? "
II.
MERINO'S WAIVER OF MIRANDA RIGHTS
After giving Merino his Miranda advisements and obtaining Merino's initials and signature on the form, Officer Gomez proceeded to question Merino. Merino responded to Officer Gomez's questions. According to Officer Gomez, Merino seemed to be in good physical condition at the time of the interview, did not appear to be under the influence of any alcohol or drugs, and appeared able to understand the questions Officer Gomez asked him. At one point in the interview, Merino showed some confusion about the advisements form as it related to his right to remain silent and asked Officer Gomez, "well what about . . . Well, it says there that I have no right, well, still to speak." Officer Gomez told Merino if he wished to speak with him, "as I have told you, you can talk to me." At no point in the interview did Merino inquire about or express any confusion regarding his right to an attorney.
III.
POLICE QUESTIONING AND MERINO'S CONFESSION
Officer Gomez first asked Merino about his background, work experience and living arrangements. Merino told him he was born and raised in Mexico and had been in the United States for only three months as of the time of the interview. Merino initially denied the allegations against him, saying "the child came talking to me, but for a little while and then he fell asleep, and . . . I mean, how can I hurt a little boy"; "I don't have the soul to do that." Merino admitted he and the boy had been alone in the garage.
As the questioning proceeded, Merino brought up the topic of God. He stated, "I . . . by God well, I come to work for my family; and until now they told me well, I didn't have a soul for those things, that this was happening." Officer Gomez then asked Merino if he believed in God, to which Merino responded "Yes"; "I believe a lot in God."
Officer Gomez then urged Merino to tell the truth. Merino continued to deny the allegations. Officer Gomez again stated, "there are times like today when you have to tell the truth." Merino started to give more detail regarding the night of the incident. For instance, he said he told R.F. to "'go to sleep, it's late'" but R.F. refused because he enjoyed conversing with Merino.
Officer Gomez then started asking Merino more targeted questions about the allegations, including whether Merino offered to give R.F. money to perform sexual acts on him, and whether R.F. put his mouth on Merino's penis. Merino continued to deny the allegations. Officer Gomez kept urging Merino to tell the truth. Officer Gomez shared with Merino what he had learned from R.F. In response, Merino said, "how am I going to do that to a child?" and "I don't remember having done that, I don't think so, how am I going to do that?" Officer Gomez then told Merino the police had collected his semen from the garage where the victim said he spat after orally copulating Merino, stating "what you are going to see is [the victim's] DNA and yours, how are you going to explain that?" Merino again denied the allegations.
Officer Gomez then turned back to religion: "You don't say that you are religious, right? Are you Catholic?" Merino responded, "Yes." Then Officer Gomez asked Merino: "Do you believe in God?" Merino responded, "Yes." Officer Gomez then asked Merino to think about his children and his wife: "What if something happened to . . . your wife or your children? Wouldn't you want someone to tell you the truth? There are times when you have to be a man and you have to think and say you know what? I made a mistake . . . I made a mistake and this is what happened; this is what I need to know about you." Merino responded, "Yes." Officer Gomez then asked Merino what God thinks of him and asked: "When you go to church, what are you going to think?"
Officer Gomez asked Merino what he did to R.F. and to tell him what happened. Merino again denied the allegations, saying "I didn't do anything to him." Officer Gomez returned to the topic of Merino's wife and children, again urging him to explain what happened in the garage. Merino said, "[w]ell nothing." Officer Gomez asked, "Are you sure?" Merino then started confessing to the crime. He said R.F. wanted to "hug" him, and Merino told him no and to calm down. Merino said it was the boy who asked Merino for money in exchange for performing the sexual act. When Officer Gomez asked Merino if R.F. took Merino's shorts off, Merino said "Yes, as you say, you have to admit mistakes." Merino then admitted the oral copulation took place and answered questions regarding the details of the offense.
The interview of Merino was conducted in two segments. The first segment, which included Merino's confession to the crime, lasted only about 26 minutes.
IV.
PRETRIAL MOTION TO EXCLUDE MERINO'S CONFESSION
Prior to trial, Merino moved in limine to exclude his confession, and the People filed a cross-motion to introduce it. On August 24, 2022, the trial court held an evidentiary hearing, heard testimony from Officer Gomez, took the matter under submission, and later the same day issued a written order denying Merino's motion. In its written ruling, the court concluded Officer Gomez complied with Miranda prior to questioning, Merino gave a knowing, intelligent, and voluntary waiver of his rights under Miranda "despite the initial mistake by the officer," and all of Merino's subsequent statements were given voluntarily and not due to coercion or a calculated psychological tactic. The court ruled that although Officer Gomez's reference to God "may well have been the catalyst to a confession . . . it was not the result of tactics by law enforcement to delve into a known psychological vulnerability." The court found no evidence of such a vulnerability and noted it was Merino who introduced the subject of God, not law enforcement.
V.
MERINO'S TRIAL AND CONVICTION
At trial, the audio and video of Merino's police interview were played for the jury and the jury reviewed the written transcript of the interview with an English translation.
The jury found Merino guilty of one count of violating Penal Code section 288.7, subdivision (b), oral copulation of a child 10 years old or younger. The trial court sentenced Merino to 15 years to life in state prison.
Merino timely appealed.
DISCUSSION
I.
STANDARD OF REVIEW
Our review is de novo. "'On appeal, we review independently the trial court's legal determinations of whether a defendant's . . . Miranda waivers were knowingly, intelligently, and voluntarily made [citation], and whether his later actions constituted an invocation of his [rights].'" (People v. Suarez (2020) 10 Cal.5th 116, 158.) Where "'an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review.'" (Ibid.)
II.
MIRANDA WARNINGS
Merino contends his statements to police should have been excluded at trial because the initial, incorrect Miranda warning given to him regarding his right to counsel rendered the subsequent, correct advisements confusing and invalid. We disagree.
Under Miranda, "[i]n order fully to apprise a person interrogated of the extent of his rights under this system . . . it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent-the person most often subjected to interrogation-the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it." (Miranda, supra, 384 U.S. at p. 473, fn. omitted.) Although all of the requisite Miranda warnings must be given, there is no rigidity as to the precise formulation of the wording. (Florida v. Powell (2010) 559 U.S. 50, 60 [the inquiry on the adequacy of Miranda warnings is whether the warnings reasonably convey to a suspect his rights].)
A defendant may waive his Miranda rights if the waiver is made voluntarily, knowingly, and intelligently. (Miranda, supra, 384 U.S. at p. 475.) To be effective, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. "Only if the 'totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." (Moran v. Burbine (1986) 475 U.S. 412, 421; People v. Parker (2017) 2 Cal.5th 1184, 1216 [the validity of a waiver must be determined on the particular facts and circumstances surrounding the case, including "'"the background, experience, and conduct of the accused"'"].) "'In general, if a custodial suspect, having heard and understood a full explanation of his or her Miranda rights, then makes an uncompelled and uncoerced decision to talk, he or she has thereby knowingly, voluntarily, and intelligently waived them.'" (People v. Parker, at p. 1216; People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218-219 [suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights is sufficient to constitute an implied waiver of the rights].)
In 1993, the California Supreme Court decided People v. Wader (1993) 5 Cal.4th 610 (Wader), which also involved law enforcement giving inconsistent Miranda advisements to a defendant. In Wader, a police officer misread a form while reading the defendant his Miranda rights and told the defendant: "'If you hire a lawyer one will be appointed to represent you before any questions free of charge.'" (Wader, at p. 637, italics added.) The California Supreme Court rejected the defendant's contention that this misreading invalidated the correct Miranda warnings the defendant was given for several reasons. First, 15 to 20 minutes before the misreading of the advisement, the same officer had advised the defendant of his rights under Miranda in a manner the defendant did not assert was inaccurate. (Wader, at pp. 637-638.) Second, "defendant indicated in writing immediately after the misadvisement that he understood his rights as set forth on an admonition card" that correctly stated the Miranda advisement regarding his right to an attorney, and "he signed the admonition card." (Wader, at p. 638.) Third, the Wader court noted the United States Supreme Court has emphasized that rigidity with respect to Miranda warnings is not required and that "'"no talismanic incantation [is] required to satisfy its strictures."'" (Wader, at p. 638.)
Inexplicably, neither party cited Wader in their appellate briefs.
Here, as in Wader, after misstating the Miranda advisement regarding the right to an attorney, Officer Gomez gave Merino the correct Miranda advisements both verbally and in writing (in Spanish) and confirmed that Merino understood them before he started his questioning. Merino initialed each of the rights listed on the pre-printed advisements form line by line, indicating his understanding of them, and then he signed the form. After hearing Officer Gomez tell him verbally that he had the right to an attorney if he could not afford to pay for one, initialing that he understood the written advisement that he had a right to an attorney if he could not afford to pay for one, and then signing the advisements form, Merino voluntarily answered Officer Gomez's questions. There are no facts indicating Merino was unable to understand the advisements given to him. Merino was 28 years old. Officer Gomez was fluent in Spanish, Merino's native language. Although at one point in the interview (before the confession) Merino seemed to express some confusion about his right to remain silent, he never asked about or expressed any confusion about his right to have an attorney present for the questioning or to have an attorney appointed to represent him because he could not afford one.
Merino does not cite or address Wader, but instead relies on several decisions from the Ninth Circuit Court of Appeals, including U.S. v. San Juan-Cruz (9th Cir. 2002) 314 F.3d 384 (San Juan-Cruz), U.S. v. Botello-Rosales (9th Cir. 2013) 728 F.3d 865 (Botello-Rosales), and U.S. v. Perez-Lopez (9th Cir. 2003) 348 F.3d 839, in which the courts held conflicting Miranda warnings rendered the defendant's waiver invalid. Some of these cases are distinguishable on their facts, and in any event, we are not bound to follow them. (See People v. Williams (2013) 56 Cal.4th 630, 668.) We follow the California Supreme Court's decision in Wader. Based on the totality of the circumstances, we hold Officer Gomez complied with Miranda.
In San Juan-Cruz, two different and conflicting sets of warnings were given to the defendant when he was taken into custody at a border patrol station. The defendant was first read his administrative rights, informing him he had the right to have an attorney present during questioning but "not at the Government's expense." (San Juan-Cruz, supra, 314 F.3d at p. 386.) Following that, he was read his Miranda rights telling him that if he could not afford an attorney, one would be appointed for him. The court of appeals found it would be an unfair burden to require a custodial defendant to resolve the conflicting sets of warnings. (San Juan-Cruz at pp. 387-388.) Moreover, the court found the defendant's interrogation was coercive enough to make "'the nature of [the defendant's] rights' entirely unclear. [Citation.] This was in part because the government handcuffed the defendant to a chair and interrogated him in a situation so 'stressful' that it was 'unfair' to make him 'sort out [the] confusion' the warnings created." (U.S. v. Gonzalez-Godinez (9th Cir. 2024) 89 F.4th 1205, 1209.) In contrast, nothing in the record here suggests Merino faced coercive conditions. Further, the conflicting advisements in San Juan-Cruz were both given verbally; here, the incorrect advisement was given verbally, followed by correct advisements both verbally and in writing, initialed and signed by Merino. In Botello-Rosales, the defendant was given misleading and conflicting advisements regarding his right to appointed counsel. Following San Juan-Cruz, the court held "there is no indication in the record that the government clarified which set of warnings was correct." (Botello-Rosales, supra, 728 F.3d at p. 867.) In U.S. v. Perez-Lopez, defendant was erroneously told he would have to solicit the court for counsel, implying the possibility of rejection. (U.S. v. Perez-Lopez, supra, 348 F.3d at p. 848.) The court held that, although Miranda requires no talismanic incantation to satisfy its strictures, it does not permit such an affirmatively misleading advisory.
III.
VOLUNTARINESS OF CONFESSION
Merino next contends his confession was not voluntary because Officer Gomez appealed to his belief in God and religion to coerce him to confess, and the trial court therefore erroneously denied his motion to suppress. We conclude the court did not err. Viewed under the totality of the circumstances, Merino's confession was the product of his free will.
While not an express ground for appeal, Merino also argues Officer Gomez lied to him about his DNA being at the scene. "'Lies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary.' [Citations.] Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted." (People v. Farnam (2002) 28 Cal.4th 107, 182.) In Farnam, the Supreme Court concluded police subterfuge that defendant's fingerprints were found on the victim's wallet was "unlikely to produce a false confession." (Ibid.) Similarly, a detective implying "at various times that he knew more than he did or could prove more than he could" does not "offend any constitutional guaranty" because it is not reasonably likely to result in an untrue admission. (People v. Jones (1998) 17 Cal.4th 279, 299.)
"'"The Fourteenth Amendment of the federal Constitution and article I, section 7 of the California Constitution make 'inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion.'" [Citation.] The prosecution must prove by a preponderance of the evidence that a defendant freely and voluntarily gave police statements before the statements can be admitted. [Citation.] "'Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the "totality of [the] circumstances."'" [Citation.] The test considers several factors, including any element of police coercion, the length of the interrogation and its location and continuity, and the defendant's maturity, education, and physical and mental health. [Citation.] The determinative question "'is whether defendant's choice to confess was not "essentially free" because his will was overborne.'"'" (People v. Suarez, supra, 10 Cal.5th at pp. 157-158.)
In evaluating a claim of psychological coercion, the question posed is whether the influences brought to bear upon the accused were "'"such as to overbear [his] will to resist and bring about confessions not freely determined."'" (People v. Kelly (1990) 51 Cal.3d 931, 952 (Kelly).) Here, there is nothing in the transcript of Officer Gomez's interview of Merino that suggests any physical intimidation, promises, or threats; nor does Merino contend the presence of any such conduct by law enforcement. Rather, Merino argues Officer Gomez improperly appealed to his religion and belief in God, noting that "the tactic of exploiting a suspect's religious anxieties has been justly condemned." (Id. at p. 953.)
Having examined the entirety of the transcript of Officer Gomez's interrogation of Merino, we agree with the trial court's ruling. Discussing religion with a suspect is not, by itself, an impermissible coercive interrogation technique. (Kelly, supra, 51 Cal.3d at pp. 951-953 [questions about belief in Jesus, going to heaven, Christian upbringing, and violating Christian values did not render confession involuntary].) Although Officer Gomez arguably tried to appeal to Merino's belief in God to get him to confess (after Merino himself first raised the issue of God), Merino continued to deny his guilt. Thus, those comments "do not appear to have been a motivating cause behind defendant's subsequent confession." (Id. at pp. 951-953 [after officer commented on the defendant's Christian upbringing and belief in going to heaven someday, the defendant still denied involvement in crimes].) The comments that preceded Merino's confession were Officer Gomez's repeated urging that Merino tell the truth. It was not improper for Officer Gomez to encourage Merino to be truthful, to try to awaken Merino's sense of guilt or shame, or to suggest being honest would bring Merino some psychological relief. (People v. Carrington (2009) 47 Cal.4th 145, 176 [detective's comments "that 'purg[ing] it all' was morally the right thing to do and would provide [the defendant] with psychological relief" were not coercive]; People v. Davis (2009) 46 Cal.4th 539, 600 [merely advising suspect it would be better to tell the truth does not render confession involuntary]; People v. Howard (1988) 44 Cal.3d 375, 398.)
Further, Officer Gomez's comments did not "appear to have been calculated to exploit a particular psychological vulnerability." (Kelly, supra, 51 Cal.3d at p. 953.) Although Merino stated he believed in God, nothing indicates he was devoutly religious or had any known psychological vulnerability that would cause appeals to religion to overcome his will.
DISPOSITION
Our independent review of the evidence leads us to conclude Merino voluntarily, knowingly, and intelligently waived his rights under Miranda, and his confession to the crime was voluntary and not coerced. The trial court did not err by denying Merino's motion to suppress evidence.
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J. GOETHALS, J.