Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C149212
Reardon, J.
A jury found appellant Mehmet Sanduvac guilty of forcible rape and sodomy. (See Pen. Code, §§ 261, subd. (a)(2), 286, subd. (c)(2).) Sentenced to six years in state prison for these offenses, he appeals, contending that the trial court erred in admitting evidence of his statement to police because it was taken in violation of his right to counsel pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and because it was involuntarily given. We affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
A. Circumstances of the Crime
Appellant Mehmet Sanduvac was born in Turkey in 1970. He had a wife and seven children in Turkey. A revolution in Turkey prompted him to go to New York in 2000, even though he spoke no English. He worked as a cook in a Turkish restaurant for eight or nine months before moving to Berkeley. He found no Turkish restaurants there, so he began working as a dishwasher and helper at an Indian restaurant. After six months, he and a partner opened their own Turkish restaurant in Berkeley.
Ritu Doe had been born in India and came to the United States in 1995, when she was 21 years old. By July 2004, she founded an environmental consulting firm that advised local restaurants how to be more environmentally friendly by recycling, composting, and conserving energy and water. She ran this business out of her Oakland home. Through her work, she met Sanduvac, who worked at the Berkeley restaurant that she was “greening.” When she advised Sanduvac about environmental practices to use, they spoke in English. Occasionally, he had difficulty understanding Ritu when she spoke to him in English of an unusual concept such as storm water management, but she thought that even people who spoke English as a first language had some difficulty understanding this phrase.
All dates refer to the 2004 calendar year unless otherwise indicated.
When Ritu visited Sanduvac’s restaurant, he was affectionate and hospitable to her. They would hug and he would insist that she eat something. Outside of work, Ritu sometimes socialized with Sanduvac, taking an exercise class or going out to dinner together. He had come to her home twice before July—once to advise her about some repair work and once to attend her housewarming party. A bisexual, Ritu had been in a romantic relationship for three years with Marilyn M., who lived outside of the Bay Area, but whom she saw once or twice a month. Marilyn was also at the housewarming party that Sanduvac attended.
On the morning of July 13, Ritu visited Sanduvac’s restaurant. As usual, he offered to feed her. Knowing that he liked Indian food, Ritu suggested that she might cook dinner for him sometime. He accepted her offer, suggesting that she do so that evening. She agreed, inviting him to come over about 9:00 or 9:30 that evening.
When Sanduvac arrived at her house about 10:00 p.m., Ritu was still cooking. They talked and ate dinner. Ritu did not drink and served no alcohol. After dessert, they talked a while longer, but she was getting sleepy and indicated that it was time for him to go. Standing near the front door, Ritu hugged him goodbye. Sanduvac hugged her waist and would not let go. He tried to kiss her on the mouth several times—she turned her face so that he kissed her cheek. She put her hands on his chest and pushed him away, pulling her face away from him, until he let go of her.
Sanduvac told Ritu that a friend had dropped him off at her house, so she offered to take him home. She walked from the front door to the kitchen to get her keys and wallet. When she had picked them up, Ritu turned around to find Sanduvac had followed her into the kitchen. He took her into his arms again, hugging her waist. He tried to kiss her again and again, she turned her cheek. Sanduvac said “I like you.” Ritu responded that she liked him, but that she needed to take him home. He continued to hug her and try to kiss her on the mouth while she turned her face away.
Sanduvac picked up Ritu, carried her to one of the bedrooms, and placed her on the bed. She repeatedly told him no. Ritu was on her back and Sanduvac lay down beside her. She told him that he was an attractive man but that she was in a committed, monogamous relationship with someone and she could not have relations with anyone else. Sanduvac seemed to understand and apologized to her. She replied, “Then you understand I need to take you home.” Then, Sanduvac struck her lightly under her eye a few times, and told her to “shut up.”
Ritu felt paralyzed—Sanduvac’s behavior seemed angry and unpredictable to her. She interpreted Sanduvac’s conduct as a threat to beat her if she did not stop talking. When she closed her eyes, Sanduvac suggested that she was shy, but Ritu told him that she was not. She was angry that he was blaming her for his unwanted advances. She felt very vulnerable lying on her back with him next to her, so she turned onto her stomach. Ritu held her fist by her side to create a barrier so that Sanduvac could not touch her upper body. He spoke again, saying “Okay, okay, okay, I won’t do anything. I won’t do anything. Just let me stay. I won’t do anything.”
At this point, Ritu thought that Sanduvac understood that he had made an advance, that she had rejected it, and that he had made a mistake. Still, she was confused about how best to handle the situation, uncertain as to whether or not she was safe. Ritu got up from the bed, went to the kitchen, and called Marilyn on the telephone. It was sometime before midnight. She did not tell Marilyn about Sanduvac’s presence or his behavior, nor did she call the police or leave her home.
Ritu and Marilyn spoke for as long as 30 minutes on the telephone. When she hung up, Ritu came back to the bedroom and found Sanduvac lying in the bed. Something about his body position told her that he was only pretending to be asleep. Fully clothed in belted pants and a long-sleeved top, Ritu lay down on her stomach on the bed, a foot or two away from Sanduvac. Neither of them was under the covers. Her arms were flexed so that her elbows were by her waist and her hands were near her shoulders. When Sanduvac approached her a few minutes later, he repeatedly tried—later, she estimated that he attempted as many as 10 times—to push his hand under her arm to touch her breast. Ritu pressed her body deeper into the bed to prevent this. She was uncertain whether Sanduvac actually touched her breast through her shirt or not. As many as five times, Sanduvac tried to wedge his hand under Ritu’s body to unbuckle her belt. Again, she resisted his advances, pressing her body more deeply into the bed. He also repeatedly tried to roll her over onto her back, without success.
On cross-examination, Sanduvac brought out the fact that in her July 15 statement to police, she claimed that this attempt occurred before she made her telephone call to Marilyn.
Until this point, Ritu believed that Sanduvac was making unwanted sexual advances, but she did not think that he intended to rape her. She realized that she was in danger when Sanduvac yanked off her pants, belt and all. This required considerable effort on his part, because her pants were tight, the belt buckle was still closed, and Ritu continued to press her body into the bed to resist him. Once her pants were off, she tried to put them back on, but the closed belt buckle prevented her from doing so. Still, repeatedly, Ritu pulled her pants up and Sanduvac repeatedly pulled them down again. Three or four times, he pulled her underwear down and she pulled them back up again.
Ritu tried to keep her legs closed. After the last time he pulled down Ritu’s underwear, Sanduvac placed his knee between her thighs to force her legs open. She heard his belt buckle open and felt his penis being inserted into her anus. In pain, Ritu moved her pelvis away from him enough that his penis came out after a few seconds. Within two minutes, Sanduvac inserted his penis into her vagina. Again, she moved her pelvis away from him such that his penetration only lasted a few seconds. He rolled over and fell asleep.
After waiting a few minutes to be certain that he was really asleep, Ritu got up from the bed, pulled on her clothes and went to another bedroom. She felt violated and helpless because she had been unable to stop Sanduvac’s sexual attack. Eventually, she fell asleep, fully clothed.
About 7:00 a.m. on July 14, Ritu heard Sanduvac leave through her front door. At first, she lay in bed, confused about what to do. She tried to do some work, but found that she was unable to think straight. She was not certain whether or not she wanted to file charges against Sanduvac.
Finding it difficult to sort out what had happened on her own, Ritu began calling friends on the telephone to talk with them about the incident. Sometime before noon, she called her friend Shipra Bansal, who was a doctor working in New Jersey. Ritu told her friend that she had been raped, explaining the incident in as much detail as she could recall. Bansal recommended that she go to a hospital and be tested for pregnancy and sexually transmitted diseases. Ritu thought about the situation for a while longer. On the evening of July 14, after dark, she called Marilyn and told her that she had been raped. Marilyn also advised Ritu to go to the hospital and to call the police.
On July 15, Ritu arranged for a ride to Highland Hospital. She did not trust herself to drive. At the hospital, she was crying. Directed to the hospital’s rape crisis center, she underwent a medical examination. She answered questions about the incident. A nurse took her underpants. Vaginal and rectal swabs were also taken. Ritu found the examination to be very traumatic—she later testified that she cried during the entire procedure.
B. Charges and Pretrial Matters
At the hospital on July 15, Ritu gave a statement to police recounting the July 13-14 incident. An officer wrote it down and she signed it. At that point, she was still uncertain whether to file charges against Sanduvac. The police took her home from the hospital. Later, she spoke with Bansal again, who challenged Ritu’s characterization of Sanduvac as “a nice guy.” Also, Ritu began to be concerned that Sanduvac might assault another woman if she did not press charges against him.
Ritu contacted Oakland police the next day to formally press charges against Sanduvac. Within a few weeks, Ritu gave a taped statement to Oakland Police Officer Shan Johnson. He asked her to make a pretext call to Sanduvac to lure him into confessing to the crime. Officer Johnson wanted to test whether Ritu’s allegations were true. She called Sanduvac from her home while Officer Johnson and his partner were there. The first call was not properly recorded, so she made a second pretext call on August 10.
During that call, when Ritu told Sanduvac that he hurt her by having sex with her even though she said no, he replied “Yeah, I know.” Then, he changed the subject. Ritu asked if he felt bad that he hurt her, and she apologized for needing his reassurance. Sanduvac replied: “Okay. Okay. I’m sorry, too . . . .” Soon, he tried to change the subject again. When she pressed him to say something in his own words rather than just agreeing to what she said, Sanduvac said “Yeah, everything sorry, you know. Ritu, everybody sorry, you know . . . everything sorry.” Ritu said that she needed to know that he would not do this to her again. Sanduvac said: “No more again.” When she asked, “No more again? Just this once?” he replied: “Yeah.” Later, he said “[S]orry I bother you.” If he wanted to have sex with another woman and she said no, Ritu asked what he would do. “No is no, huh?” he replied. Ritu asked if he would stop, if he would not do this again. Sanduvac replied: “She no want, she no need . . . stop, stop, I’ll stop.”
An hour later, Sanduvac was arrested in Berkeley. During the ride to the Oakland Police Department, Sanduvac answered questions posed by Officer Johnson without any apparent difficulty. Unable to locate a Turkish-speaking interpreter, the officer decided that this was not necessary. He believed that he and Sanduvac understood each other well enough to conduct the interview without an interpreter. The interview began about 5:15 p.m., about four hours after Sanduvac was placed in the interview room.
Officer Johnson read and explained his Miranda rights to him. At one point, he told Sanduvac that he had the right to talk with a lawyer and to have one present during questioning, even if he could not afford one himself. If Sanduvac wanted to wait for an attorney—even an appointed attorney—he could do so. When, Officer Johnson asked Sanduvac if there was anything that he did not understand about his rights and if Sanduvac had any questions for him, Sanduvac replied: “Yeah, I need to, for talk to lawyers so, you have any lawyers? [¶] . . . [¶] . . . The English and Turkish? . . . I’ll give you the address, you talk. [¶] . . . [¶] . . . Have Turkish language and . . . [¶] . . . [¶] . . . English language, too.”
Officer Johnson explained that if Sanduvac wanted to talk to them at that time, he could not have a lawyer there, but that if he wanted to wait, “that’s ok, too. It’s not a . . . pressure situation.” He then proceeded to obtain Sanduvac’s oral agreement that he understood his rights and that he wanted to talk with the police at that time. Officer Johnson also obtained Sanduvac’s written waiver of his Miranda rights. Sanduvac then told the police about Ritu and the night that he went to her house for dinner. He admitting spending the night at her house, but repeatedly denied having sex with Ritu.
In August, a complaint was filed charging Sanduvac with forcible rape and forcible sodomy. (See §§ 261, subd. (a)(2), 286, subd. (c)(2).) After a November 2005 preliminary hearing, he was held to answer for these charges. In December 2005, an information was filed charging Sanduvac with these two offenses, both of which were alleged to be serious, violent felonies rendering him ineligible for probation. (See §§ 261, subd. (a)(2), 286, subd. (c)(2); former §§ 667.5, subd. (c)(3), (4) [as amended by Stats. 2002, ch. 606, § 2], 1192.7, subd. (c)(3), (4) [as amended by Stats. 2002, ch. 606, § 3], 1203.065, subd. (a) [as amended by Stats. 1993-1994, 1st Ex. Sess., ch. 60, § 2, p. 8804].) He pled not guilty.
After Sanduvac’s arrest, the federal Immigration and Naturalization Service (INS) placed a detainer against him and began deportation proceedings. His attorney sought a plea agreement that would not require Sanduvac to serve jail time and would not impact his immigration status. In January 2005, he pleaded nolo contendere to felony assault with a deadly weapon and was to be placed on probation for five years. He and his attorney believed that this agreement would have no adverse immigration consequences. In March 2005, Sanduvac learned that this plea would have the unanticipated consequence of his indefinite mandatory detention by the federal Department of Homeland Security. In April 2005, on the basis of this new evidence, he moved to withdraw his plea and in May 2005, he was permitted to do so.
Of the code sections that have been revised since the July 14 offenses occurred, the current provisions are not substantially different from those in effect on that date. (See former §§ 667.5, subd. (c)(3), (4), 1192.7, subd. (c)(3), (4), 1203.065, subd. (a).)
In January 2006, DNA analysis was completed linking semen on Ritu’s clothing to Sanduvac. Before trial, the People sought to introduce evidence of his statement to Oakland police. Sanduvac sought to exclude this evidence, alleging that it was taken in violation of Miranda without a knowing and intelligent waiver and thus was involuntary. After a foundational hearing to consider the admissibility of this evidence, the trial court listened to an audiotape of the interview several times, assisted by a transcript that the parties agreed on. (See Evid. Code, § 402, subd. (b).) It found that Sanduvac did not clearly invoke a right to counsel, that he understood the officer’s advisement of his Miranda rights, and that he knowingly and intelligently waived those rights. Thus, it ruled that evidence of the statement could be admitted at trial.
Before and during trial, Sanduvac was assisted by a Turkish interpreter.
At trial, Ritu Doe testified about the events of the night of the incident. She told the jury that when Sanduvac tapped her face and told her to “shut up,” she feared that if she said openly that she did not want Sanduvac there, he might injure her. At that point, she used mute, constant passive resistance rather than the verbal and physical resistance that she had tried earlier. Sanduvac’s attack started slowly rather than being an overt threat. Ritu also told the jury that she found it difficult to strike a friend or a guest. She explained that in India, a guest is considered sacred and that as a host, she had a duty to provide anything that her guest needed. Even after the assault, she still thought of Sanduvac as a friend and a “really nice guy.”
After Sanduvac lightly struck her, Ritu did not call the police or tell Marilyn that Sanduvac had made advances toward her. In part, she felt a sense of loyalty to Sanduvac, seeing him as a friend who had made a mistake. She was also uncertain whether she was in imminent danger. Even if she was, she did not believe that the police or Marilyn could reach her sooner than Sanduvac could react. Ritu was unwilling to leave her home, because she feared that Sanduvac might damage it.
During the assault, Ritu felt scared, but helpless. When she went to bed on the first few nights after the incident, she was petrified. She imagined that Sanduvac stood at the foot of her bed and she sensed that he was armed with a knife or other sharp object. She felt so paralyzed from a panic attack that she could not even open her eyes to see that he was not really there. She sought counseling after the event. She no longer felt safe in her home and did not sleep in the room where the assault occurred.
Ritu told the jury that she did not consent to Sanduvac’s anal and vaginal intercourse with her. She repeatedly denied having given Sanduvac a massage that night, but admitted that once when Sanduvac seemed dejected in a public setting, she rubbed his shoulders to cheer him up.
A Highland Hospital physician’s assistant testified as an expert witness about the pelvic examination of Ritu that she conducted on July 15. Ritu told her that “Mohammed” had penetrated the victim’s anus and vagina with his penis. She also complained of anal pain. She reported that he had threatened her, told her to shut up, and that he had carried her from the kitchen to the bedroom. The assistant testified that she found no remarkable physical evidence, but that was not surprising, given the brief penetrations that Ritu reported. In her expert opinion, the results of the examination were consistent with what Ritu had reported.
Officer Johnson testified about the circumstances of Sanduvac’s statement to him. During the prosecution’s case-in-chief, the jury heard an audiotape of Sanduvac’s statement to police. They also listened to a tape recording of Ritu’s pretext call to Sanduvac. The officer told the jury that it seemed to him that in this call, Sanduvac was avoiding the subject that Ritu sought to talk about.
The jury also heard expert testimony about rape trauma syndrome—the emotional, psychological and physical reactions that a victim of sexual assault suffers. The expert opined that in situations of acquaintance rape, the victim usually gives the offender the benefit of the doubt. Before the assault occurs, if the victim understands that she is in danger, the victim goes into a denial stage and her body goes into shock, which affects her ability for logical thought. The expert also testified that a delay in reporting a sexual assault to law enforcement authorities was very common.
A DNA expert testified that she found evidence of sperm on Ritu’s underwear. Two DNA samples taken from that garment showed that the sperm came from a single donor. The DNA profile of the sperm found in the victim’s underwear was consistent with Sanduvac’s DNA profile. In the witness’s expert opinion, it was highly unlikely that the semen found on Ritu’s underpants came from anyone other than Sanduvac.
The defense put on evidence that Sanduvac did not speak English well, but that he pretended that he did. He was unable to understand past or future tenses. Several witnesses who had lived or worked with Sanduvac testified that he was a kind man who was well mannered toward women.
Sanduvac testified in his own defense. He told the jury that he knew that Ritu was a lesbian and that he never gave her any reason to think that he was attracted to her. Sanduvac told the jury that he always treated Ritu in a respectful manner. She knew that he had suffered a back injury many years earlier. Once, when they were at a restaurant fair, Ritu gave him a massage, not just on his back, but all over his body. This made him uncomfortable, because they were in public.
The last time Sanduvac visited Ritu’s home was when she invited him to have dinner with her. Late that evening, a friend gave him a ride to her house. She hugged him and kissed his neck when he arrived. They ate the meal that she prepared. She spoke with him about some problems she was having with some repairs to her house. She implied that she wanted some money from him to finish the repairs.
Sanduvac told Ritu that it was time for him to go. He told the jury that Ritu took his hand and told him to stay with her that night. In the bedroom, she asked him to take off his shirt and pants, which he did, until he was wearing only his underwear. Ritu directed him to lie face down on the bed and she massaged his back. When she finished the back massage, she signaled him to turn over and she began to massage the front of his body. At some point, the massage became sexual. She stroked his erect penis, causing him to ejaculate. When Ritu saw this, she gave him a towel to clean himself. She took the towel away after he did so. He slept there overnight, but Ritu did not sleep in the same room with him. He woke early the next morning, got dressed and left.
A few days later, Ritu called Sanduvac on the telephone. She spoke about something he did not understand. Ritu knew that his English was not very good. He thought that “she was trying to make [him] say something that she made up” but he was not clear about what it was. He was uncomfortable and tried to change the subject. Later that day, Sanduvac was arrested. The police insisted on talking to him, even though he told them that he had a problem speaking and understanding English. That part of the conversation did not appear in the tape-recorded part of the interview, he told the jury. During the interview, he tried to answer their questions as best he could. He told police that he did not have any sexual contact with Ritu—that she did not want a sexual relationship with him.
Sanduvac also told the jury that he sometimes carried condoms with him in his wallet. He had one with him at the time that he was arrested. He denied ever forcing Ritu to have sex with him. He did not know how his semen got onto her panties. He never touched her underwear or her private parts.
During closing argument, the prosecutor noted that soon after his arrest, Sanduvac denied having had sex with Ritu but that once the January 2006 DNA report proved that his semen was on her panties, he changed his version of events. The jury deliberated for a day and a half before finding Sanduvac guilty of both charges. (See §§ 261, subd. (a)(2), 286, subd. (c)(2).) In April 2006, he was sentenced to six years in state prison—a midterm of six years for forcible sodomy and a concurrent midterm of six years for forcible rape.
II. ADMISSIBILITY OF STATEMENT
A. Miranda Issues
1. Legal Standard
Sanduvac challenges the trial court’s admission of evidence of his postarrest statement to police, for two reasons. First, he contends that he clearly invoked his Miranda right to counsel, but that his statement was erroneously admitted into evidence at trial in violation of his Miranda rights. Before we address his specific claim of error, we set out the legal principles and the standard of review to be applied in this matter.
Without proper safeguards, the process of in-custody interrogation of persons accused of crime contains inherently compelling pressures that might lead an accused to make statements in violation of his or her Fifth Amendment privilege against self-incrimination. As such, the United States Constitution requires law enforcement officials to advise an accused of certain rights and to honor the exercise of them. Specifically, the accused must be warned before any questioning of the right to remain silent, that anything said can be used against him or her in a court of law, of the right to the presence of an attorney, and that if he or she cannot afford an attorney, one will be appointed before questioning if desired. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1122, cert. den. sub nom. Gonzalez v. California (2005) 545 U.S. 1108 (Gonzalez); see Miranda, supra, 384 U.S. at pp. 465, 467, 479; see also Dickerson v. United States (2000) 530 U.S. 428, 444 [confirming that Miranda states a rule of constitutional stature].)
A second layer of protection applies to the guarantee against an involuntary waiver of the Fifth Amendment right to counsel. Once a suspect asserts a right to counsel during custodial interrogation, the interrogation must cease. The suspect is not to be further interrogated by law enforcement officials until counsel has been made available, unless the accused initiates further communication, exchanges or conversations with police. (Edwards v. Arizona (1981) 451 U.S. 477, 481-482, 484-485; Miranda, supra, 384 U.S. at pp. 473-474; Gonzalez, supra, 34 Cal.4th at p. 1122; People v. Simons (Sept. 27, 2007, C051632) ___ Cal.App.4th ___, ___ [2007 D.A.R. 15164, 15166]; see McNeil v. Wisconsin (1991) 501 U.S. 171, 176-177.)
In order for the Fifth Amendment right to counsel to apply, the accused must clearly assert a right to counsel. (Edwards v. Arizona, supra, 451 U.S. at p. 485; Gonzalez, supra, 34 Cal.4th at pp. 1122, 1124-1125 [same result under California Constitution]; see Davis v. United States (1994) 512 U.S. 452, 458-459, 461 (Davis); People v. Crittenden (1994) 9 Cal.4th 83, 129-130, cert. den. sub nom. Crittenden v. California (1995) 516 U.S. 849 [acknowledging that earlier California decisions to the contrary are now superseded].) The purpose of the Fifth Amendment right to counsel is to protect a suspect’s desire to deal with police only through counsel. Thus, at a minimum, invocation of this Fifth Amendment right to counsel requires some statement that may reasonably be construed as an expression of a desire for the assistance of counsel in dealing with custodial interrogation by law enforcement officials. (McNeil v. Wisconsin, supra, 501 U.S. at pp. 177-178; Gonzalez, supra, 34 Cal.4th at p. 1123; People v. Simons, supra, ___ Cal.App.4th at p. ___ [2007 D.A.R. at p. 15167].)
In this matter, the trial court found that Sanduvac did not clearly invoke his Miranda right to counsel. On appeal, he contends that he did do so, and that the trial court erred both by finding otherwise and by admitting his statement to police into evidence at trial in violation of his Miranda rights. Thus, the issue on appeal is whether Sanduvac made a clear invocation of his right to counsel.
A suspect makes a clear invocation of the Miranda right to counsel when he or she articulates a desire to have counsel present with sufficient clarity that a reasonable law enforcement official under the circumstances would understand the statement to be a request for an attorney. If a reasonable officer in light of the circumstances would have understood that the suspect might be invoking the right to counsel, no clear invocation has been made and questioning may continue. (Davis, supra, 512 U.S. at pp. 459, 461-462; Gonzalez, supra, 34 Cal.4th at pp. 1124, 1127; People v. Simons, supra, ___ Cal.App.4th at p. ___ [2007 D.A.R. at p. 15167].) Courts make an objective determination of whether the suspect actually invoked a right to counsel. (Davis, supra, 512 U.S. at pp. 458-459.) Thus, the issue is not whether the defendant subjectively intended to seek an attorney, but whether a reasonable officer would have understood the defendant to seek one, given the circumstances. (Gonzalez, supra, 34 Cal.4th at p. 1126.)
When the defendant makes ambiguous remarks falling short of a clear waiver or invocation of Miranda rights, law enforcement officers may continue talking with the suspect for the limited purpose of clarifying whether the suspect is waiving or invoking his or her rights. (People v. Johnson (1993) 6 Cal.4th 1, 27, cert. den. sub nom. Johnson v. California (1994) 513 U.S. 844; People v. Peracchi (2001) 86 Cal.App.4th 353, 360, cert. den. sub nom. Peracchi v. California (2001) 534 U.S. 901.) This practice is consistent with Miranda, because not every question by a law enforcement official to an accused constitutes interrogation. Only questions that are reasonably likely to elicit an incriminating response constitute interrogation for purposes of Miranda. (Rhode Island v. Innis (1980) 446 U.S. 291, 301; U.S. v. Foster (9th Cir. 2000) 227 F.3d 1096, 1102-1103.) As such, a suspect who has invoked the right to counsel may not be questioned about any offense unless an attorney is actually present. (Davis, supra, 512 U.S. at p. 458.) Thus, Miranda draws a distinction between questions relating to a defendant’s understanding of his or her rights and formal interrogation that develops facts relating to the underlying crime. (People v. Smith (1969) 270 Cal.App.2d 715, 722.)
In fact, the United States Supreme Court has suggested that this is good practice. (See Davis, supra, 512 U.S. at pp. 461-462; see also Gonzalez, supra, 34 Cal.4th at pp. 1124-1125; People v. Simons, supra, ___ Cal.App.4th at p. ___ [2007 D.A.R. at p. 15168].)
However, even clarifying questions are only proper when the defendant’s words are ambiguous when understood as an ordinary person would understand them. (Connecticut v. Barrett (1987) 479 U.S. 523, 529.) There must be a patent ambiguity about the defendant’s understanding of the right to counsel and the exercise of that right. (See People v. Russo (1983) 148 Cal.App.3d 1172, 1177 [applying prior California standard, instead of current federal standard]; see also People v. Smith (1995) 31 Cal.App.4th 1185, 1191; People v. Carey (1986) 183 Cal.App.3d 99, 103, cert. den. sub nom. California v. Carey (1987) 479 U.S. 1089 [no ambiguity about exercise of privilege against self-incrimination when defendant says “ ‘I ain’t got nothin’ to say’ ”].) If an invocation is ambiguous, the officer’s clarifying questions must relate to the suspect’s comprehension of his or her constitutional rights or the waiver of them. Substantive questions to develop the facts of the case under investigation do not constitute clarification, but further interrogation. (See People v. Carey, supra, at p. 103.)
2. Standard of Review
Whether a defendant has clearly invoked his or her Miranda right to counsel is determined on the basis of the totality of the circumstances. (See People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 527.) We may only consider those circumstances arising before or during the purported request for counsel. An accused’s post request responses may not be used to cast doubt on the clarity of an initial Miranda request for counsel. (Smith v. Illinois (1984) 469 U.S. 91, 92, 98-99.) This is so, even if later, the police did not actually obtain a confession through trickery or coercion. (Id. at p. 99 fn. 8.) The key inquiry is whether a defendant’s exercise of the Miranda right to counsel was scrupulously honored. (See Michigan v. Mosley (1975) 423 U.S. 96, 104 [privilege against self-incrimination]; People v. Peracchi, supra, 86 Cal.App.4th at p. 360.)
On appeal, we must accept the trial court’s resolution of disputed facts and inferences and its evaluations of credibility, if supported by substantial evidence, based on a preponderance of evidence standard. We then independently determine—from the undisputed facts and those facts properly found by the trial court—the ultimate legal question of whether the requirements of Miranda were satisfied. (Gonzalez, supra, 34 Cal.4th at p. 1125; People v. Kelly (1990) 51 Cal.3d 931, 947, cert. den. sub nom. Kelly v. California (1991) 502 U.S. 842; People v. Simons, supra, ___ Cal.App.4th at p. ___ [2007 D.A.R. at p. 15166]; see People v. Nitschmann (1995) 35 Cal.App.4th 677, 683 [upholding trial court’s Miranda ruling].) We apply federal standards when reviewing a defendant’s claim that a challenged statement was elicited in violation of Miranda. (People v. Bradford (1997) 14 Cal.4th 1005, 1033, cert. den. sub nom. Bradford v. California (1997) 522 U.S. 953; see People v. Box (2000) 23 Cal.4th 1153, 1194, cert. den. sub nom. Box v. California (2001) 532 U.S. 963.)
3. Invocation
Sanduvac contends that he clearly invoked his right to counsel when Officer Johnson explained his Miranda rights to him. He argues that the interrogation that followed resulted in a statement that should have been excluded at trial because his Miranda request for counsel was not honored. (See U.S. Const., 5th Amend.)
Officer Johnson began the August 10 interview by asking Sanduvac a series of introductory questions such as his name, birthdate, address, telephone number and place of business. He explained that he had tried to find a Turkish-English translator to assist them during the interview, but he was unable to find any reliable translators. Officer Johnson then read Sanduvac his Miranda rights, pausing to explain certain of those rights when it appeared prudent to do so. He told Sanduvac that he had the right to talk to a lawyer and to have him present during questioning. He elaborated: “[Y]ou have a right, if you . . . desire to have the lawyer here, alright?” Officer Johnson went on to explain Sanduvac’s right to appointed counsel. “[T]hat usually takes a little bit, but you . . . have a[] right to wait . . . to that point, if you want.”
At the end of the recitation of rights, Officer Johnson asked Sanduvac: “[I]s there anything in there you don’t understand about the whole thing? Is there any questions you . . . have for me?” Sanduvac offered this response: “Yeah, I need to, for talk to lawyers so, you have any lawyers?”
Then, this exchange occurred:
Officer Johnson: “We don’t, no, no.”
Sanduvac: “The English and Turkish? We have, a, you, you, you need, I’ll give you the address, you talk.”
Officer Johnson: “Well, we have to wait.”
Sanduvac: “Have Turkish language and . . .”
Officer Johnson: “English language.”
Sanduvac: “. . . English language, too.”
Officer Johnson: “I’m sure there are many lawyers . . .”
Sanduvac: “Yeah.”
Officer Johnson: “. . . who speak Turkish and English.”
Sanduvac: “But he’s lawyer.”
Officer Johnson: “Right, a lawyer, that’s what I’m saying. But, right now, you, if you want to talk to us . . .”
Sanduvac: “Yeah.”
Officer Johnson: “. . . we can’t have him here.”
Sanduvac: “No (unintelligible).”
Officer Johnson: “But if you want to wait, . . . that’s ok, too. It’s not a, not a pressure situation. You understand what I’m saying?”
Sanduvac: “I see.”
Officer Johnson: “So, do you understand the rights I’ve explained to you? . . .”
Sanduvac: “Yeah, I understand (unintelligible).”
Officer Johnson: “You don’t have to talk. . . . [Y]ou have the right to talk to a lawyer, [to] have him present while you are being questioned. . . . Do you understand . . . ?”
Sanduvac: “Yes.”
Officer Johnson: “Ok. Ok, having these rights in mind, do you wish to talk to us now? . . . [W]ould you like to speak with us about the subject of why you were arrested . . . [?]”
At this point, Sanduvac states that he was arrested and does not know what happened. Officer Johnson explained that if he got the facts from Sanduvac, as well as other persons, he could piece together the truth of what happened. “[W]e give you an opportunity to tell us what your perspective is, how you saw things, what happened. If you don’t want to, that’s ok, too. It’s not . . . mandatory.” Sanduvac replied: “I see.” He asked about the complaint that the witness filed. Officer Johnson replied: “Would you like to . . . speak about that subject with us?” Sanduvac: “Yeah.” After stating again that if he did not want to talk with the police, Sanduvac did not have to do so, Officer Johnson asked: “[H]aving these rights, do you wish to talk to us right now?” Sanduvac replied: “Yes.” Officer Johnson obtained a written waiver of Sanduvac’s Miranda rights and the interrogation began.
On our own motion, we obtained the tape recording of Sanduvac’s police interview. In evaluating this claim of error, we have reviewed relevant parts of both the transcript of that interview and the tape.
Sanduvac contends that he made a clear invocation of his desire to consult counsel when he said “I need to, for talk to lawyers so, you have any lawyers?” We evaluate this assertion considering the circumstances existing at the time of the alleged invocation, to determine whether a reasonable officer would have understood Sanduvac’s question to be an unequivocal and unambiguous request for counsel. (See Davis, supra, 512 U.S. at pp. 459, 460-462; Smith v. Illinois, supra, 469 U.S. at pp. 92, 98-99 [no post request responses do not cast doubt on clarity of request for counsel]; Gonzalez, supra, 34 Cal.4th at pp. 1124, 1125-1127.)
Officer Johnson had already explained that he was unable to find a Turkish-English translator, but that they would do the best they could under the circumstances. For his part, Sanduvac spoke in broken, accented English. Most of the time, he seemed to understand and to make himself understood, but at times his responses were difficult to understand. The United States Supreme Court has acknowledged its requirement of a clear invocation of the right to counsel may disadvantage a suspect who, because of lack of linguistic skills, does not clearly articulate the right to counsel although he or she actually desires to have an attorney present. It noted that the Miranda right to counsel is a secondary protection, with the primary protection being the advisement of Miranda rights themselves. (Davis, supra, 512 U.S. at p. 460.) Edwards provides the additional protection that questioning must cease once a suspect asks for an attorney, but the high court requires that the suspect affirmatively invoke this additional level of protection. (Id. at p. 461.) Thus, the court expects even nonnative English speakers to make a clear invocation of the Miranda right to counsel.
Sanduvac contends that his actual belief is controlling on whether he requested an attorney, but the United States Supreme Court requires us to evaluate whether a reasonable officer in the circumstances that Officer Johnson found himself in would have believed that he invoked his right to counsel. (See Davis, supra, 512 U.S. at pp. 459, 461-462; Gonzalez, supra, 34 Cal.4th at pp. 1124, 1127.)
After explaining his rights to Sanduvac, Officer Johnson asked if he had any questions. Sanduvac responded: “Yeah, I need to, for talk to lawyers so, you have any lawyers?” Viewed in context, a reasonable officer could have interpreted this response to indicate that Sanduvac believed that the police required him to talk with an attorney, rather than merely offering him the option of doing so. (See, e.g., People v. Crittenden, supra, 9 Cal.4th at p. 130 [defendant wanted to know if he had heard the police officer correctly].) Based on the application of an objective standard and considering the circumstances of the interview as it had unfolded up to the point of Sanduvac’s key response, we find that that response was not a clear invocation of his Miranda right to counsel, but was ambiguous. As a reasonable officer in light of the circumstances would have understood only that Sanduvac might be invoking his right to counsel, the officers were not required to cease questioning. (See Davis, supra, 512 U.S. at p. 459.)
At this point, Miranda prohibits further interrogation about the charged crimes, but allows the police to clarify whether Sanduvac understood his rights and intended to waive them. (See Davis, supra, 512 U.S. at pp. 461-462; Gonzalez, supra, 34 Cal.4th at pp. 1124-1125; People v. Johnson, supra, 6 Cal.4th at p. 27.) Officer Johnson asked only clarifying questions after Sanduvac made his response until the defendant gave a formal written waiver of his Miranda rights—including his right to counsel. When Sanduvac offered the address of an attorney who spoke Turkish and English, it became clear that—if he wanted to invoke his right to counsel at all—he sought the assistance of one who could communicate with him in Turkish. Officer Johnson explained that if he wanted such an attorney, they would have to wait to find one. If Sanduvac wanted to talk with the police right then, such an attorney was not immediately available.
In essence, the officer explained to Sanduvac what his options were and asked him to choose. In so doing, Officer Johnson assured Sanduvac that if he wanted to wait, he could do so—that this was “not a pressure situation.” When asked if he understood this choice, Sanduvac indicated that he did. Thus, there was no impermissible interrogation about the substance of the crimes charged against him during the period between Sanduvac’s ambiguous response and his subsequent waiver of his Miranda right to counsel. (See People v. Johnson, supra, 6 Cal.4th at p. 27; Davis, supra, 512 U.S. at p. 458 [no questions about offense]; People v. Smith, supra, 270 Cal.App.2d at p. 722.) The trial court properly denied Sanduvac’s Miranda challenge to the admissibility of his statement to police and this evidence was properly admitted at trial.
B. Voluntariness
Sanduvac also asserts that his statement to police should have been excluded from evidence because it was involuntary. The trial court found that Sanduvac knowingly and intelligently waived his Miranda rights. It noted that the police repeated his advisement of rights in different ways and were very sensitive to the language issue. The officers acted in a reasonable manner to be certain that Sanduvac understood his rights, the trial court found. Both the manner in which the officers conducted the interview and the responses that Sanduvac gave to their questions persuaded the trial court that his statement was voluntary.
A suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently waived the right to remain silent, the right to the presence of an attorney, and the right to appointed counsel if the suspect is indigent. (People v. Crittenden, supra, 9 Cal.4th at p. 128.) Once a suspect has been given Miranda warnings, he or she may knowingly and intelligently waive them and agree to answer questions or a give a statement. (Miranda, supra, 384 U.S. at p. 479.) The determination of whether the defendant voluntarily waived his or her Miranda rights is made by a preponderance of evidence. (Colorado v. Connelly (1986) 479 U.S. 157, 168; Lego v. Twomey (1972) 404 U.S. 477, 488-489; People v. Box, supra, 23 Cal.4th at pp. 1194-1195; People v. Bradford, supra, 14 Cal.4th at p. 1033.) The People bear the burden of proof of voluntariness. (Lego v. Twomey, supra, 404 U.S. at p. 489; People v. Benson (1990) 52 Cal.3d 754, 779, cert. den. sub nom. Benson v. California (1991) 502 U.S. 924; People v. Markham (1989) 49 Cal.3d 63, 71.) We consider the totality of the circumstances, not on any one particular fact, when making this analysis. (People v. Williams (1997) 16 Cal.4th 635, 661, cert. den. sub nom. Williams v. California (1998) 523 U.S. 1027; see Arizona v. Fulminante (1991) 499 U.S. 279, 285-286.)
On appeal, we defer to the trial court’s underlying findings of fact about the characteristics of the accused and the details of the interrogation if they are supported by substantial evidence. Based on these properly found facts, we independently review the trial court’s determination of the ultimate issue of voluntariness. (People v. Williams, supra, 16 Cal.4th at pp. 659-660; People v. Benson, supra, 52 Cal.3d at p. 779; see Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226.)
In this appeal, Sanduvac cites two specific circumstances that he contends rendered his waiver of his Miranda rights involuntary. First, he argues that by asking him preliminary questions such as his name, address, and age, the police increased the risk that he would believe that he was required to answer their questions. We disagree. The police may not “soften[]up” a defendant by means of ingratiating conversation. (People v. Honeycutt (1977) 20 Cal.3d 150, 160.) However, the routine questions asked and answers given during this preliminary inquiry offer no evidence that would support a finding of any such improper police conduct. Miranda admonitions are not required at the preliminary stage of an interview at which police elicit only basic information about the accused that is unrelated to the circumstances of the charged offense. (People v. Rucker (1980) 26 Cal.3d 368, 387.)
The overall tone of the officers conducting the interview was courteous, polite and low-key. (See, e.g., People v. Bestelmeyer, supra, 166 Cal.App.3d at p. 526.)
We note that Sanduvac does not suggest that any of his responses to these identifying questions was used against him at trial.
Sanduvac also complains that when the police told him that they could not question him immediately if they waited for a Turkish-English speaking attorney, he was not given the option of declining to be interrogated. The record on appeal does not support such a factual finding, but supports the contrary finding inherent in the trial court’s ultimate conclusion that Sanduvac made a voluntary and intelligent waiver of his Miranda rights.
On appeal, our task is to determine whether the statement was voluntary, based on the totality of the circumstances. (See People v. Williams, supra, 16 Cal.4th at pp. 660-661; see also Arizona v. Fulminante, supra, 499 U.S. at pp. 285-286.) We must analyze whether the influences brought to bear on Sanduvac were such as to overbear his will to resist, thus bringing about a statement that he did not freely determine. (See People v. Hogan (1982) 31 Cal.3d 815, 841, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) We evaluate whether the police conducting the interview acted in an oppressive or coercive manner. (See Colorado v. Connelly, supra, 479 U.S. at pp. 163-164.)
When we review the part of the interview leading up to Sanduvac’s waiver, we find that the officers conducted themselves in a polite and respectful manner, repeatedly indicating to Sanduvac that he was not required to talk with them at that time if he did not want to do so. Once the interrogation began in earnest, Sanduvac explained what occurred on the night of the incident. He answered most—but not all—of the questions that the officers put to him. Significantly, when Officer Johnson asked if he had sex with women other than his wife, Sanduvac declined to answer this question on the ground that it was his private business. We find this response to be particularly important when we evaluate the totality of the circumstances surrounding the question of whether Sanduvac’s will was overborne when he waived his Miranda rights. The totality of the circumstances satisfy us that Sanduvac’s statement was voluntarily given after he knowingly and intelligently waived his Miranda rights. Thus, Sanduvac’s motion to suppress his statement to police was properly denied and evidence of that statement was properly admitted at trial.
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.