People v. Daniels CA2/7

Filed 10/19/20 P. v. Daniels CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B294435

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA085943)
v.

DIONTE CLEVELAND
DANIELS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Gregory A. Dohi, Judge. Affirmed and
remanded with directions.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Assistant Attorney General, Zee Rodriguez and Corey J. Robins,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________
 Dionte Cleveland Daniels appeals from a judgment entered
after the jury convicted him of three counts of forcible oral
copulation, two counts of false imprisonment, first degree
burglary, and dissuading a witness by force or threat arising from
two incidents that took place in a tent in a homeless
encampment. The jury found true Daniels personally used a
deadly or dangerous weapon (a knife) in the commission of two of
the counts of oral copulation, the first degree burglary, and the
false imprisonment.
On appeal, Daniels contends his federal and state
constitutional rights were violated because he was improperly
restrained in front of the jury and removed from the courtroom
during a portion of the voir dire. Further, Daniels argues the
trial court abused its discretion in admitting testimony that
suggested he was a gang member and testimony about his use of
the knife recovered in this case in a prior incident. Daniels also
contends the trial court erred in admitting one of the victim’s
statements to a police officer as a spontaneous statement.
Daniels also maintains he was interrogated by the police in
violation of his Miranda1 rights. We affirm.

1 Miranda v. Arizona (1966) 384 U.S. 436, 473-474
(Miranda).

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 FACTUAL AND PROCEDURAL BACKGROUND

A. The Information
The information charged Daniels with three counts of
forcible oral copulation (Pen. Code,2 former § 288a, subd. (c)(2)(A);
counts 1, 2 & 4), first degree residential burglary (§ 459; count 3),
dissuading a witness by force or threat (§ 136.1, subd. (c)(1);
count 5), and two counts of false imprisonment by violence (§ 236;
counts 6 & 7). As to counts 2 and 4 for forcible oral copulation,
the information specially alleged Daniels used a deadly or
dangerous weapon (a knife) (§§ 667.61, subds. (b) & (e)(3),
12022.3, subd. (a)); Daniels committed the offenses against more
than one victim (§ 667.61, subds. (b) & (e)); and the offenses
occurred during the course of a residential first degree burglary
(§ 667.61, subds. (a) & (d)). As to counts 3, 6, and 7, the
information specially alleged Daniels personally used a deadly or
dangerous weapon (a knife) (§ 12022, subd. (b)(1)). Further, as to
counts 1 through 5, the information specially alleged Daniels
suffered a prior serious felony conviction within the meaning of
section 667, subdivision (a)(1). As to all counts, the information
specially alleged Daniels suffered a prior conviction of a violent or
serious felony under the three strikes law (§§ 667, subds. (b)-(j),
1170.12).

2 Further undesignated statutory references are to the Penal
Code.

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 Daniels pleaded not guilty and denied the special
allegations.

B. The Evidence at Trial
In 2016 Fidel “Cindy” S. lived in a tent in a small homeless
encampment by a freeway. Around five other people, including
Joel Valle and his girlfriend Angela, lived in the encampment.
Cindy was close friends with Jose “Selina” P., whom Cindy had
known for approximately eight years.3 Selina would visit Cindy
at the encampment about once a week.
In 2017 Daniels, who was known as “Tay Tay,” came to the
encampment. He told Cindy he had no family and did not have a
place to stay. Cindy offered Daniels use of her tent until he could
get his own tent. Cindy told Daniels he could stay in her tent
when she went to recycle (to earn a living) at nighttime. But he
could not stay in her tent when she was inside, and he had to
obtain her permission before he could enter.
Daniels initially got along with everyone in the
encampment. But Daniels became “mean” and began “bullying”
when Valle’s brother got upset with Daniels for riding his bicycle
without permission. A month and a half after joining the
encampment, Daniels fought with Valle and Angela. Valle saw
Daniels grab Angela by the throat. Cindy witnessed Daniels
hitting Angela and telling her to “shut up” as he grabbed her by
the hair and neck and “threw her very close to the freeway.”
Daniels told Cindy, “You’re not going to call the police. Because
the police is not going to do anything to me.” Someone else called

3 We refer to Fidel S. and Jose P. by their chosen names
(Cindy and Selina) and gender.

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the police, and Daniels was arrested but later released. Cindy
felt afraid when Daniels was released because of his repeated
comments about being arrested but released. Valle moved to
another campsite north of the encampment to get away from
Daniels.
At some point, Daniels made a comment to Cindy about
Selina’s and Cindy’s testimony in a prior trial about individuals
who robbed them in a hotel in 2013. Cindy testified in this trial
Daniels had stated “we were rats and because of us, it was our
fault that his homies were in prison.”4 Daniels’s statement made
her “very scared.”

1. The April 30, 2017 incident (counts 1 & 5)
Approximately 20 days after Daniels started living at the
encampment, he proposed Cindy leave her partner Miguel and
live with him. Daniels made advances to Cindy many times.
Cindy told Daniels she only thought of him as a family member.
Daniels responded “that if [she] refused him, he would do
something to Miguel.”
On the morning of April 30, 2017 Cindy was inside her tent
when Daniels came in. Cindy asked him, “Why didn’t you call
me? Why didn’t you tell me?” Daniels responded, “I’m tired of
you refusing. I need you to suck my dick.” Cindy replied, “Tay
Tay, please understand, I can’t do that with you, because I love
my partner very much.” Daniels asked, “Oh, so you’re not going
to do it?” Then he grabbed Cindy by her hair with both fists and

4 Los Angeles Police Sergeant Maricela Vargas, the
investigating officer, testified she conducted a search of the police
databases and concluded Daniels was not affiliated with any
gang.

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stated, “I already told you. You already know if you don’t do this,
you know what I’m going to do to Miguel.” Daniels pulled his
pants down, moved Cindy’s head toward his groin, and put his
penis in and out of her mouth for about 10 minutes.
After Daniels ejaculated on Cindy’s shirt, he told Cindy “to
not tell anybody” or call the police. Daniels stated if Cindy
“called the police and he ended up in jail, his brother would come
and do something to [her].” Cindy told Selina about the incident
the next day. But she did not tell Selina, who had a cell phone, to
call the police. Cindy did not contact the police “[b]ecause [she]
was very scared that [Daniels] was going to do something to [her]
or Miguel.”

2. The May 2, 2017 incident (counts 2-4, 6 & 7)
On the night of May 1, 2017 Selina decided to stay in the
tent with Cindy after Cindy told her she “was very scared” of
Daniels. The next morning at approximately 5:30 or 6:00,
Daniels came inside the tent with a foot-long knife in his hand
and woke up Cindy by pulling her by the hair. Daniels angrily
said, “Hey, you fucking bitch” and “Were you already talking with
Chaparro?” Cindy responded, “Yes. What’s wrong with that?”
Daniels asked, “Well, why do you not want to be with me and you
have relations with other people?” Cindy replied, “I didn’t have
relations. I’m just talking to him. I have no reason to explain
that to you. And you are not somebody that I need to give
explanations to.” When Daniels asked Cindy why she did not
want to live with him, Cindy responded she only saw him as a
brother. Daniels then demanded, “You’ve got to suck my dick.”
Cindy was “very frightened because he had a knife” in his right

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hand pointed “very close” to her while clenching her hair with his
left hand.
Daniels hit Cindy in the right ribcage with a closed fist,
slapped her two or three times on her cheek, and squeezed her
neck with his left hand. Selina woke up and told Daniels to leave
Cindy alone and not to hit her. Daniels slapped Selina on the
right side of her face and told her to “shut up.” Selina tried to
leave the tent, but Cindy told her, “No, don’t run. He’s either
going to hurt you with the knife or me.” Daniels told Selina not
to move, and then said, “Both of you are going to have to suck my
dick.” Selina stated, “I don’t like that.” Daniels responded, “If
you don’t suck my dick, you know what’s going to happen with
Cindy.” Cindy said, “S[e]lina, please, sweetie. Please.” Selina
replied, “Okay, Cindy, but no crying.”
Cindy testified Daniels pulled his pants down to his knees
and dropped the knife. He pushed Cindy’s head into his groin
area and forced her to perform oral sex on him. Then Daniels
pulled down Selina’s pants to have anal sex with her, but she told
him she was HIV positive, and neither she nor Cindy had a
condom. Daniels then forced Selina to perform oral sex on him by
pointing a knife at her neck, then pointing the knife toward
Cindy. He told Selina, “Do you want to suck my dick, or I’ll kill
you[?]” Daniels grabbed Selina by the back of her neck and forced
her head down to perform oral sex on him. Cindy said in
Spanish, “S[e]lina, make him come on your clothing, or your body
so that there will be evidence so we can call the police.” Daniels
asked, “What are you telling her?” Cindy responded, “Nothing,
that I don’t feel well.”

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 After Daniels ejaculated on Selina’s shirt, he made Cindy
and Selina lie down and said he wanted to live with them.
Daniels lay down between Cindy and Selina with the knife within
his reach under the blanket. An hour later about 9:00 a.m.,
Cindy and Selina both asked to leave, but Daniels only allowed
Selina to leave to see her mother, and Daniels told her Cindy
could only leave when Selina returned.
Selina left the tent, crossed the street to a wooded area,
and cried before falling asleep. She did not immediately call the
police because she was tired, confused, and worried Daniels
might harm Cindy. When Selina woke up at about 1:00 or
1:30 p.m., she sought out Valle and asked him to call the police
with her cell phone, which he did. Valle noticed Selina looked
“real tired,” but he did not learn about the details of the sexual
assaults until later.

3. The police investigation and Daniels’s arrest
Los Angeles Police Officers Joshua Gonzales, Alejandro
Carrillo, and Lizbeth Luna arrived at the encampment at 5:00 or
6:00 p.m. on May 2, 2017. Cindy was still inside her tent with
Daniels when she heard a police officer say, “Come. Come here.”
Daniels told her, “Go.” When Cindy went outside her tent,
Officer Gonzales asked Officer Luna to speak with her because
Officer Luna spoke Spanish.5 Cindy told Officer Luna that
morning Daniels had hit Selina and her, pulled his pants down,
grabbed a large gray knife, and made them perform oral sex

5 The prosecutor played the video of Officer Luna’s
conversation with Cindy in Spanish, which was recorded by
Officer Gonzales’s body camera. The prosecutor also provided the
jurors with a certified translation of the recorded conversation.

8
before he ejaculated on Selina’s clothes. Cindy looked visibly
distraught and cried as she described what had happened.
Officer Carrillo, who had previously encountered Daniels and
called him “Tay Tay,” asked Daniels to come out of the tent, then
arrested and handcuffed him when he exited.6 Officer Gonzales
recovered a knife with an eight-inch-long blade from under
Cindy’s tent, and Cindy confirmed it was the knife Daniels used
that day. At trial Selina identified the knife as the one Daniels
used to force her to perform oral sex on him. The prosecutor also
showed Valle the knife at trial and asked whether he had seen
the knife before. Valle responded, “I believe the day that
[Daniels] grabbed Angela. I believe he had it a couple more times
after that.”
Los Angeles Police Sergeant Maricela Vargas interviewed
Cindy and Selina at the police station. Sergeant Vargas testified
Cindy and Selina appeared nervous and upset and were “were a
little dirty, a little disheveled.” During the interview, Sergeant
Vargas showed Selina a photograph of the knife. Selina
recognized the knife as the one she put inside the tent for
protection when she stayed over with Cindy. Selina told
Sergeant Vargas she did not see the knife during the May 2, 2017
incident. Sergeant Vargas obtained a shirt from Selina and had
it tested for DNA.

6 The prosecutor played the video of Officer Carrillo’s
conversation with Daniels, which was recorded by Officer
Carrillo’s body camera. The prosecutor also provided the jury
with a 20-page transcript of the recorded conversation.

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 The parties stipulated a forensic lab analyst performed a
DNA analysis and concluded (1) a swab taken from Selina during
the May 2, 2017 sexual assault exam matched Daniels’s DNA and
(2) sperm on Selina’s shirt matched Daniels’s DNA. The parties
also stipulated forensic lab analysts were unable to analyze the
DNA taken from the knife or obtain any fingerprints from the
knife.
On May 2, 2017 at approximately 9:00 p.m., Leticia Tapia-
Jaffe, a registered nurse who was a forensic and sexual assault
nurse examiner, conducted a physical exam and forensic
interview of Cindy. Tapia-Jaffe took photographs of Cindy’s
injuries during the physical exam, which were shown to the jury.
Tapia-Jaffe testified Cindy had two-inch and three-inch
lacerations on her scalp. In addition, Cindy “had some moderate
redness” and “a couple of dark marks” on her neck. Cindy told
Tapia-Jaffee she had been choked and felt soreness in her arms,
scalp, and neck. Tapia-Jaffe testified Cindy “was emotional,”
“crying,” and occasionally “jittery or shaky” during the interview.
Daniels did not testify or call any witnesses.

C. The Verdicts and Sentences
The jury found Daniels guilty of forcible oral copulation of
Cindy (counts 1 & 4) and Selina (count 2), first degree burglary
(count 3), dissuading a witness (Cindy) by force or threat
(count 5), and false imprisonment by violence of Cindy (count 6)
and Selina (count 7). As to counts 2 and 4 for forcible oral
copulation, the jury found true Daniels personally used a deadly
or dangerous weapon; Daniels committed the offenses against
more than one victim; and the offenses occurred during the
course of a residential first degree burglary. As to counts 3, 6,

10
and 7, the jury found true Daniels personally used a deadly or
dangerous weapon.
The trial court sentenced Daniels to an aggregate prison
term of 66 years to life. The court sentenced Daniels on counts 2
and 4 for forcible oral copulation during the course of a burglary
(§ 667.61, subds. (b) & (e)) to 25 years to life on each count, plus a
consecutive middle term of four years for use of a knife
(§ 12022.3, subd. (a)). The court imposed and stayed two terms
on each count of 15 years to life for the multiple victims and
personal use weapon circumstances (§ 667.61, subds. (b) & (e)).
On count 1 for forcible oral copulation of Cindy, the court
imposed a consecutive term of eight years (the upper term) “given
her vulnerability as a homeless person in a tent, away from the
public view.” On count 3 for first degree burglary, the court
imposed and stayed the middle term of four years7 plus one year
for the weapon enhancement (§ 12022, subd. (b)(1)). On count 5
for dissuading a witness, the court imposed and stayed the
middle term of three years.8 On count 6 for false imprisonment of

7 Although the court stated it was imposing the middle term
of two years, the minute order and abstract of judgment correctly
reflect imposition of a four-year middle term for first degree
burglary under section 461, subdivision (a).
8 The minute order and abstract of judgment incorrectly
state the trial court imposed and stayed an additional one year
term for a personal use weapon enhancement (§ 12022,
subd. (b)(1)) on count 5. But the information did not specially
allege, and the jury did not make a finding on personal use of a
weapon on count 5. We order the minute order and abstract of
judgment corrected to remove the one-year weapon enhancement
imposed and stayed on count 5. (People v. Jones (2012)

11
Cindy, the court imposed and stayed the middle term of two years
plus one year for the weapon enhancement (§ 12022, subd. (b)(1)).
On count 7 for false imprisonment of Selina, the court imposed
and stayed the middle term of two years plus one year for the
weapon enhancement (§ 12022, subd. (b)(1)).
Daniels timely appealed.

DISCUSSION

A. Restraining Daniels with a Lap Belt During Trial Did Not
Violate His Constitutional Rights
1. The trial court proceedings
One day before jury selection, the trial court raised a
“security issue” posed by Daniels’s statement in lockup. The
courtroom deputy reported Daniels said something to the effect of
“[if] these white people don’t make the right decision, I’m going to
go off.” The court stated, “I’ll note that during court in previous
sessions, Mr. Daniels has addressed the prosecutor directly, has
sort of spontaneously made some remarks—I wouldn’t call them
necessarily outbursts, but inappropriate remarks. [¶] In light of
what he said about potentially going off, . . . I am finding . . .
there’s a need to take additional security measures that would
not be visible to the jury, specifically, Mr. Daniels would be belted
to the chair in a way that the jurors couldn’t see. [¶] I don’t

54 Cal.4th 1, 89 [“When an abstract of judgment does not reflect
the actual sentence imposed in the trial judge’s verbal
pronouncement, this court has the inherent power to correct such
clerical error on appeal, whether on our own motion or upon
application of the parties.”]; People v. Mitchell (2001) 26 Cal.4th
181, 185 [“Courts may correct clerical errors at any time . . . .”].)

12
believe that there are any reasonable measures we would take
that are less restrictive. He would have his hands free during the
trial. He could still confer easily with counsel. He just couldn’t
stand up. [¶] So I would instruct the lawyers not to stand up
when the jurors come and go, although that might be their
practice just so as to not to highlight the fact that Mr. Daniels
can’t. [¶] The only other measures that could possibly be taken
would involve using additional bailiffs and that would not
necessarily make things safer, and it would be difficult to arrange
staffing wise.”
Defense counsel objected to the use of a physical restraint
on Daniels. Defense counsel argued, “In my interactions with
Mr. Daniels, I’ve never felt like I personally have had a safety
concern. He’s been respectful to me. He does have a very
gregarious personality and sometimes make comments that are
off-the-cuff. [¶] I understand everyone’s concern about the
statement going off, however, I would say that . . . I don’t feel like
it rises to the level that the court needs to take an extra security
measure and restrain him. I’m most concerned about his ability
to have a fair trial and that jurors may already, in observing him
sitting at defense table, have a bias against his innocence. And
so any further restraint could lead to an unfair proceeding for
him.”
The trial court observed Daniels was “gregariously looking
around,” “making eye contact with the deputies,” and “smiling,”
and “there’s nothing wrong with that.” But the court explained,
“In the past he has made remarks such as he asked the district
attorney directly whether she was going to be at the next
hearing, things like that, which indicate to me that perhaps
Mr. Daniels might have some issues in restraining himself, and

13
he’s laughing right now. [¶] So based on everything I’ve seen, it’s
appropriate . . . to take the minimal steps . . . of just putting the
security belt, not visible to the jurors, so that Mr. Daniels can’t
leave his chair.”

2. Governing law
“‘In general, the “court has broad power to maintain
courtroom security and orderly proceedings” [citation], and its
decisions on these matters are reviewed for abuse of discretion.
[Citation.] However, the court’s discretion to impose physical
restraints is constrained by constitutional principles. Under
California law, “a defendant cannot be subjected to physical
restraints of any kind in the courtroom while in the jury’s
presence, unless there is a showing of a manifest need for such
restraints.” [Citation.] Similarly, the federal “Constitution
forbids the use of visible shackles . . . unless that use is ‘justified
by an essential state interest’—such as the interest in courtroom
security—specific to the defendant on trial.”’” (People v. Bell
(2019) 7 Cal.5th 70, 123 (Bell); accord, People v. Young (2019)
7 Cal.5th 905, 934 (Young).)
“‘“In deciding whether restraints are justified, the trial
court may ‘take into account the factors that courts have
traditionally relied on in gauging potential security problems and
the risk of escape at trial.’ [Citation.] These factors include
evidence establishing that a defendant poses a safety risk, a
flight risk, or is likely to disrupt the proceedings or otherwise
engage in nonconforming behavior.” [Citation.] Although the
court need not hold a formal hearing before imposing restraints,
“the record must show the court based its determination on facts,
not rumor and innuendo.”’” (People v. Bryant, Smith and Wheeler

14
(2014) 60 Cal.4th 335, 389 (Bryant) [requiring defendant to wear
stun belt under his clothing was not an abuse of discretion where
defendant was part of a large-scale and extremely violent drug
organization whose members had been disruptive in prior trials,
including attempting to kill prosecution witnesses]; accord,
Young, supra, 7 Cal.5th at pp. 934-935 [use of concealed leg chain
to restrain defendant was not an abuse of discretion where
defendant had previously possessed weapons in custody and had
attacked another inmate, although he had been respectful in
court].) However, “even when the record establishes a manifest
need for restraints, the restraint imposed must be the least
obtrusive or restrictive one that would be effective under the
circumstances.” (People v. Simon (2016) 1 Cal.5th 98, 115;
accord, People v. Virgil (2011) 51 Cal.4th 1210, 1271.)
“‘“[W]e will not overturn a trial court’s decision to restrain a
defendant absent ‘a showing of a manifest abuse of discretion.’”
[Citation.] To establish an abuse of discretion, defendants must
demonstrate that the trial court’s decision was so erroneous that
it “falls outside the bounds of reason.”’” (People v. Miracle (2018)
6 Cal.5th 318, 346; accord, Bryant, supra, 60 Cal.4th at p. 390.)
Further, “‘“courtroom shackling, even if error, [is] harmless if
there is no evidence that the jury saw the restraints, or that the
shackles impaired or prejudiced the defendant’s right to testify or
participate in his defense.”’” (Young, supra, 7 Cal.5th at p. 935;
accord, People v. Williams (2015) 61 Cal.4th 1244, 1259.)

15
 3. The trial court did not abuse its discretion in
restraining Daniels, and any error was harmless
Daniels contends the use of a physical restraint during trial
violated his state and federal constitutional rights to due process
and a fair trial because there was no showing of a manifest need
to restrain him. His contention lacks merit.
The trial court ordered the use of a lap belt to physically
restrain Daniels because Daniels threatened “to go off,” and he
had made “inappropriate remarks” at prior court proceedings.
The court reasoned the lap belt was the least obtrusive and
restrictive restraint because it was not visible to the jury and
Daniels “could still easily confer with counsel” and “have his
hands free during the trial.” Further, the court ordered the
attorneys to stay seated when the jurors entered and exited the
courtroom to avoid highlighting Daniels’s inability to stand.
Given Daniels’s statement he might “go off,” the trial court’s
reasoned decision to use a lap belt, not visible to the jury, was not
an abuse of discretion.
Further, any error in using the lap belt to restrain Daniels
during trial was harmless because the belt was not visible to the
jury and there is no evidence the belt impaired Daniels’s right to
testify or participate in his defense. (Young, supra, 7 Cal.5th at
p. 935; see People v. Amezcua and Flores (2019) 6 Cal.5th 886,
910-911 [any error in belting defendants to their chairs and
handcuffing one hand concealed by use of a drape over counsel
table was harmless because there was no evidence jury saw the
restraints or the restraints impaired the defendant’s right to
testify or participate in their defense].) Here, there is no evidence
the lap belt “influenced [Daniels] not to testify, affected his
demeanor or impaired his ability to communicate with defense

16
counsel.” (People v. Williams, supra, 61 Cal.4th at p. 1259 [any
error in using leg restraint was harmless]; accord, People v.
Combs (2004) 34 Cal.4th 821, 839 [“[D]efendant did not testify at
the guilt or penalty phase of trial, and there is no evidence or
claim his leg restraints influenced him not to do so, or that they
distracted him or affected his demeanor before the jury.”].)

B. The Trial Court’s Exclusion of Daniels from the Courtroom
During Voir Dire Did Not Violate His Constitutional Rights
1. The trial court proceedings
At the October 23, 2018 morning session, prior to jury
selection, the trial court addressed Daniels, “Mr. Daniels, just a
really quick warning: You’re a lively person, and that’s just the
way you are. But please do the best . . . [¶] . . . [¶] . . . to your
best ability, don’t blurt anything out. You may not want to touch
anybody else. And this morning you have been absolutely fine.”
Jury selection resumed the next morning and continued in
Daniels’s presence until the afternoon break. At the start of the
afternoon session on October 24, outside the presence of the jury,
the trial court noted that Daniels may have again remarked
about “going off” at trial, and the court warned Daniels,
“Mr. Daniels, you have the right to be at your trial. And I want
to honor that right. I want you to be able to see what’s going on
because you have so much at stake. But, if things get out of
hand, and especially if people start feeling threatened, then I do
have the authority to say you can sit this one out and we’ll just
pipe the sound into you. [¶] I don’t want to have to do that.
Frankly, I don’t even know if we can. But I’m going to ask that,
for starters, I understand something else might have been said to
the effect that you’re going to go off.” The court inquired, “Is that

17
what you’re telling me right now?” Daniels responded, “I’m
confirming I said that.”
After the trial court gave Daniels an opportunity to talk to
his attorney, the court asked Daniels, “Are you telling me that
you’re going to go off?” Daniels answered, “No. I just told you
that’s what I said.” The following colloquy ensued:

“The court: Okay. So let me ask you now, are you going to
go off?
“[Daniels]: I don’t know. We have to cross that bridge
when we get there, and that’s the dead honest truth.
“The court: We have to think about how we’re going to
proceed now. So, as you know, my main concern is security. I
have to keep people safe. I want to honor your right here, but I
need people to be safe.
“[Daniels]: I understand. I understand. I’m not safe.
“The court: You are not safe?
“[Daniels]: No, I am not.
“The court: Are you telling me now you cannot control
yourself?
“[Daniels]: I’m telling you now I can control myself fine,
yes.
“The court: But you’re going to go off?
“[Daniels]: No. I didn’t say that. I said we have to cross
that bridge when we get there.”

At this point the court said to Daniels, “You’re smiling.
You seem to be joking. Here’s the deal.” Daniels interrupted,
“Can I get some gummy bears?” The court stated, “I can give you
a glass of water, but I can’t give you some bears.” Daniels

18
responded, “Those bears are what I need. I swear if you give me
five gummy bears, I wouldn’t say anything.” The court stated,
“So here’s the deal: I know you want the gummy bears. Here.
All right. Look.” Daniels again interrupted, “You give me
gummy bears, I’ll take 42 years . . . .” Defense counsel told
Daniels, “Dionte, don’t joke about taking the 42 years.”
The court stated to Daniels, “You can look at those folks
right now, these deputies who are here. Are you telling me that
you are not going to cause a problem in court? Is that what
you’re saying?” Daniels responded, apparently referring to a
deputy in the courtroom, “You a sister. I’m not going to put my
hands on you.”
The trial court then queried, “I’m going to ask you straight
up because we’re having this conversation. So here’s what we’re
doing, straight up, are you going to go off during the trial? Yes or
no? Yes or no?” Daniels responded, “Lower your voice.” The
court again asked, “Yes or no?” Daniels replied, “Just lower your
voice. Let’s calm down. We’re both men here. Let’s keep the
respect level—.” The court interjected, “I’m going to ask that
Mr. Daniels be removed. All right. We have to take some steps
here.”
Defense counsel requested the trial court allow Daniels to
remain in the courtroom, explaining she did not feel Daniels was
a threat to her. Daniels added, “Oh, Lord. I thought we was
going to cross that bridge like Shrek and Donkey. Did you see
that movie? Shrek, I’m looking down.” The trial court explained
its decision to remove Daniels from the courtroom: “First,
Mr. Daniels has previously said, on at least two occasions now
according to the deputies, that he was going to go off, depending
on what happened in this courtroom. He confirmed to me just

19
now that he couldn’t guarantee he wasn’t going to go off. He
confirmed having made those statements to the deputy. [¶] He’s
behaving, right now, in a manner that is seemingly friendly, is
pretty irrational, and is erratic.” The court added that Daniels’s
“behavior in this courtroom has become increasingly erratic, not
necessarily threatening, it’s always laughing, but he’ll hold up his
fist, he’ll make gestures, he’ll try and engage with me in the
manner that is too casual.”
The prosecutor added, “I understand that during the
proceedings, especially when the attorneys and Your Honor go
into a sidebar, that the defendant has a tendency to speak
audibly under his breath and make comments that other staff
members have heard, and I’m sure that the jurors have heard
that. He has repeatedly, spontaneously put his arms up into the
air in front of the room full of jurors. [¶] One juror actually
brought it to our attention that it was distracting and potentially
prejudicial to her and she would assume other jurors as well, that
over the lunch hour, I think that some of his behavior in lockup
was even more erratic than it had been prior to today.”
The trial court then inquired of the courtroom deputy, who
responded, “Before we broke for lunch, [Daniels] stated that he
ha[d] nothing to lose.” The deputy also recounted Daniels had
said something to another deputy, who responded, “Are you
threatening me?” The deputy reported further that during the
lunch break Daniels “took his clothes off and he threw them out
of the door and began kicking.” Daniels asked for his attorney
and kicked against the door for about 15 minutes.
The trial court concluded based on “the totality of these
circumstances, the defendant has been deemed to have
voluntarily absented himself from these proceedings.” But the

20
court ordered Daniels to be brought back every day. The court
stated, “If he is in a different state of mind when he comes back
tomorrow, he might be allowed to stay with the restraint that we
have been using, the lap belt.”
Daniels was not present in the courtroom for remainder of
the afternoon session on October 24, 2018. When the jurors
returned to the courtroom, the court inquired whether the
prosecutor and defense counsel wanted to exercise a peremptory
challenge. Both declined and accepted the panel. The prosecutor
and defense counsel also accepted the two alternative jurors.
Once the panel and alternates were sworn in, the jurors were
excused for the day.
Daniels was present in the courtroom the next morning
when defense counsel made a motion for him to remain in the
courtroom. Before ruling, the trial court heard from another
courtroom deputy who reported Daniels was “very hostile” and
“insinuated some type of threat towards” the deputy. The deputy
stated Daniels later calmed down and apologized. The deputy
opined Daniels was “a little more subdued today,” and if Daniels
was restrained by the lap belt, the deputy did not see any
security issue. After the court received confirmation from
Daniels he would control himself, the court allowed him to
remain in the courtroom for the rest of the trial.

2. Governing law
“‘“Broadly stated, a criminal defendant has a right to be
personally present at certain pretrial proceedings and at trial
under various provisions of law, including the confrontation
clause of the Sixth Amendment to the United States
Constitution, the due process clause of the Fourteenth

21
Amendment to the United States Constitution, section 15 of
article I of the California Constitution, and sections 977 and
1043.”’” (People v. Sandoval (2015) 62 Cal.4th 394, 431; accord,
Illinois v. Allen (1970) 397 U.S. 337, 338 [“One of the most basic
of the rights guaranteed by the Confrontation Clause is the
accused’s right to be present in the courtroom at every stage of
his trial . . . .”]; Bell, supra, 7 Cal.5th at p. 114 [“A criminal
defendant accused of a felony has the constitutional right to be
present at every critical stage of the trial.”]; see § 1043, subd. (a)
[“Except as otherwise provided in this section, the defendant in a
felony case shall be personally present at the trial.”].) “Voir dire
of prospective jurors is ‘a critical stage of the criminal proceeding,
during which the defendant has a constitutional right to be
present.’” (People v. Wall (2017) 3 Cal.5th 1048, 1059, quoting
Gomez v. United States (1989) 490 U.S. 858, 873.)
But a defendant’s constitutional right to be present “‘may
be lost by consent or at times even by misconduct.’” (People v.
Gutierrez (2003) 29 Cal.4th 1196, 1202; accord, Illinois v. Allen,
supra, 397 U.S. at p. 343 [“[A] defendant can lose his right to be
present at trial if, after he has been warned by the judge that he
will be removed if he continues his disruptive behavior, he
nevertheless insists on conducting himself in a manner so
disorderly, disruptive, and disrespectful of the court that his trial
cannot be carried on with him in the courtroom.”]; People v. Welch
(1999) 20 Cal.4th 701, 773 [“[A] defendant may waive his right to
be present at his trial by being disruptive at the trial, and
appellate courts must give considerable deference to the trial
court’s judgment as to when disruption has occurred or may
reasonably be anticipated.”]; see § 1043, subd. (b)(1) [“The
absence of the defendant in a felony case after the trial has

22
commenced in his presence shall not prevent continuing the trial
to, and including, the return of the verdict in any of the following
cases: [¶] (1) Any case in which the defendant, after he has been
warned by the judge that he will be removed if he continues his
disruptive behavior, nevertheless insists on conducting himself in
a manner so disorderly, disruptive, and disrespectful of the court
that the trial cannot be carried on with him in the courtroom.”].)
“‘On appeal, we apply the independent or de novo standard
of review to a trial court’s exclusion of a criminal defendant from
pretrial and trial proceedings, either in whole or in part, “insofar
as the trial court’s decision entails a measurement of the facts
against the law.”’” (People v. Virgil (2011) 51 Cal.4th 1210, 1235;
accord, People v. Perry (2006) 38 Cal.4th 302, 311-312.) “[W]e
evaluate federal constitutional error for harmlessness under the
Chapman beyond a reasonable doubt standard, and state law
error under the Watson reasonably probable standard.” (People v.
Perez (2018) 4 Cal.5th 421, 438, citing Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman) & People v. Watson (1956)
46 Cal.2d 818, 836 (Watson); accord, People v. Mendoza (2016)
62 Cal.4th 856, 901-902.)

3. The trial court properly excluded Daniels for part of
the voir dire, and any error was harmless
Daniels contends the trial court violated his state and
federal constitutional rights by removing him from the
courtroom, arguing he did not disrupt the trial with violence,
threats of violence, or abusive behavior. Removal of Daniels from
the courtroom did not violate his constitutional rights, and even if
there was a violation, any error was harmless.

23
 On the first day of jury selection, Daniels told a courtroom
deputy “he ha[d] nothing to lose,” and he made a statement to
another deputy that made the deputy feel threatened. During
the lunch break, Daniels “took his clothes off and he threw them
out of the door and began kicking.” Daniels requested his
attorney and continued to kick the door for about 15 minutes.
The prosecutor also reported that during voir dire that morning
Daniels had “repeatedly, spontaneously put his arms up into the
air in front of the room full of jurors” and that one juror had
informed the prosecutor Daniels’s conduct was distracting and
potentially prejudicial to her and other jurors.
Following the lunch break, the trial court warned Daniels
that he would be removed “if things get out of hand, and
especially if people start feeling threatened . . . .” The court
asked Daniels whether he had made another statement that he
was “going to go off.” Daniels confirmed that he did. As
discussed, Daniels had made a statement the prior day that if
“these white people don’t make the right decision, I’m going to go
off.” The court repeatedly asked Daniels to provide assurances he
would not “go off,” but Daniels refused, instead stating, “[W]e
have to cross that bridge when we get there.” When the court
emphasized the need to keep people in the courtroom safe,
Daniels responded, “I’m not safe,” and he again refused to commit
he would not “go off” later in the trial.
Further, Daniels made flippant remarks in response to the
court’s repeated inquiries, including offering to accept a 42-year
sentence if the court gave him gummy bears. When the court
again asked Daniels whether he was “going to go off during the
trial,” Daniels responded, “Just lower your voice. Let’s calm
down. We’re both men here. Let’s keep the respect level—.” The

24
court observed Daniels’s behavior had become increasingly
erratic, and Daniels had held up his fist and made gestures.
Given Daniels’s refusal to confirm he would behave appropriately
notwithstanding the trial court’s warning he would be removed if
“things get out of hand” and “if people start feeling threatened,”
and his erratic and disrespectful behavior, the trial court did not
err in removing Daniels from the courtroom during a portion of
the voir dire.
Further, any error in excluding Daniels from the courtroom
during the brief period of voir dire following the lunch break was
harmless beyond a reasonable doubt. (People v. Perez, supra,
4 Cal.5th at p. 438 [applying Chapman standard for federal
constitutional error]; People v. Mendoza, supra, 62 Cal.4th at
pp. 902-904 [error in excluding defendant was harmless under
Watson and Chapman].) By the time Daniels was removed from
the courtroom, the attorneys had completed their questioning of
prospective jurors. The portion of the voir dire conducted in his
absence included only the attorneys’ acceptance of the panel and
the alternates. On appeal, Daniels does not argue he did not
have an adequate opportunity to discuss the peremptory
challenges with his attorney, instead arguing he was prejudiced
by the jury believing from his absence that he was a violent
person who was likely guilty. But Daniels was present during
the remainder of the trial, including during all the witness
testimony and closing arguments. Further, the court properly
admonished the jury, “Mr. Daniels is with us for today. He was
not here for part of yesterday. Whether he’s here or not is a
nonfactor. It’s not part of the evidence and nothing you are
permitted to consider.” The court further instructed the jury,
“The defendant, Mr. Daniels, was not present during an early

25
portion of the trial. During your deliberations, you are not to
consider his absence for any purpose or speculate as to the
reasons for it.” We presume the jury understood and followed the
trial court’s instructions. (People v. Flores (2020) 9 Cal.5th 371,
405; People v. Frederickson (2020) 8 Cal.5th 963, 1026.)

C. The Trial Court Did Not Abuse Its Discretion in Admitting
the Challenged Evidence
1. The trial court did not abuse its discretion in
admitting Cindy’s testimony that Daniels called her
and Selina “rats” for testifying against his “homies”
Daniels contends the trial court abused its discretion in
admitting Cindy’s testimony that she and Selina had testified in
a 2013 case about being robbed at a hotel, and that Daniels told
them afterward they “were rats and . . . it was [their] fault that
his homies were in prison.” Cindy also testified Daniels’s
statement made her feel “very scared.” Daniels argues Cindy’s
reference to a robbery by Daniels’s “homies” showed his gang
affiliation and should have been excluded as more prejudicial
than probative under Evidence Code section 352. The trial court
did not abuse its discretion.
Prior to trial, defense counsel had sought to exclude this
testimony and testimony that Daniels was an 18th Street gang
member as more prejudicial than probative under Evidence Code
section 352. The trial court excluded any reference to the
18th Street gang, but it allowed Cindy to testify about the
robbery and that Daniels called her and Selina “rats” for
testifying about his “homies,” to show she feared Daniels and
therefore did not call the police.

26
 “‘The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.’ (Evid. Code, § 352.)”
(People v. Hardy (2018) 5 Cal.5th 56, 87; accord, Bryant, supra,
60 Cal.4th at pp. 405-407.) “‘[T]he prejudice which exclusion of
evidence under Evidence Code section 352 is designed to avoid is
not the prejudice or damage to a defense that naturally flows
from relevant, highly probative evidence. “[A]ll evidence which
tends to prove guilt is prejudicial or damaging to the defendant’s
case. The stronger the evidence, the more it is ‘prejudicial.’ The
‘prejudice’ referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on
the issues.”’” (People v. Jones (2017) 3 Cal.5th 583, 610; accord,
Bell, supra, 7 Cal.5th at p. 105 [“‘“Evidence is not prejudicial, as
that term is used in a [Evidence Code] section 352 context,
merely because it undermines the opponent’s position or shores
up that of the proponent.”’”].) “‘[T]he trial court is vested with
wide discretion in determining relevance and in weighing the
prejudicial effect of proffered evidence against its probative value.
Its rulings will not be overturned on appeal absent an abuse of
that discretion.’” (Hardy, at p. 87; accord, Bell, at p. 71.)
The trial court did not abuse its discretion in admitting the
evidence. Cindy did not implicate Daniels in the prior hotel
robbery or testify it was gang-related. Further, Sergeant Vargas
testified Daniels was not affiliated with any gang. Daniels’s
statement that Cindy and Selina were “rats” for testifying
against his “homies” was relevant to show Cindy’s fear of Daniels

27
and why she did not report the April 30, 2017 incident to the
police. The court did not abuse its discretion in finding the
minimal prejudice from the reference to Daniels’s “homies” was
outweighed by the probative value in showing why Cindy did not
call the police after the first sexual abuse incident.

2. The trial court did not abuse its discretion in
admitting Valle’s testimony that he had seen Daniels
use the same knife in a prior battery on Angela
Daniels contends the trial court abused its discretion in
admitting Valle’s testimony that he previously saw Daniels use
the same knife found in the tent in a prior battery on Angela
because the evidence improperly suggested that because Daniels
had used a knife before, he must have used it again in the May 2,
2017 alleged incident. In a pretrial hearing the trial court
overruled defense counsel’s objection, finding, “[T]he events
witnessed by Mr. Valle are relevant, both to show that the knife
belonged to Mr. Daniels and to explain why Cindy didn’t report
the event initially and to the elements of force and fear.” When
defense counsel renewed her objection at trial, the court
confirmed its prior ruling, stating “the prior incident is relevant
to show that Mr. Valle has seen the knife before and seen
Mr. Daniels wielding it.” The trial court did not abuse its
discretion.
“[Evidence Code s]ection 1101(a) ‘expressly prohibits the
use of an uncharged offense if the only theory of relevance is that
the accused has a propensity (or disposition) to commit the crime
charged and that this propensity is circumstantial proof that the
accused behaved accordingly on the occasion of the charged
offense.’ . . . Section 1101(b) provides for the admission of

28
uncharged acts when relevant to prove some other disputed fact.”
(Bryant, supra, 60 Cal.4th at p. 406, citations omitted; accord,
People v. Cage (2015) 62 Cal.4th 256, 273 (Cage) [“Evidence of
defendant’s commission of other crimes, civil wrongs or bad acts
is not admissible to show bad character or predisposition to
criminality, but may be admitted to prove some material fact at
issue such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident.”].)9 We
review the trial court’s evidentiary rulings for an abuse of
discretion. (Cage, at p. 274; Bryant, at p. 405.)
At trial, the prosecutor showed Valle the knife recovered
from under Cindy’s tent, and Valle testified he had seen the knife
before, stating, “I believe the day that [Daniels] grabbed Angela.
I believe he had it a couple more times after that.” Because
Valle’s testimony tended to prove the disputed fact that Daniels
had used the knife found under Cindy’s tent in the May 2, 2017
incident, it was not an abuse of discretion to admit the testimony
for that purpose, even though it arguably showed Daniels had a
propensity for violently using a knife. (Cage, supra, 62 Cal.4th at
p. 273; Bryant, supra, 60 Cal.4th at p. 406.)

9 Evidence Code section 1101, subdivision (a), provides that,
with specified exceptions, “evidence of a person’s character or a
trait of his or her character (whether in the form of an opinion,
evidence of reputation, or evidence of specific instances of his or
her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.” Evidence Code section 1101,
subdivision (b), provides admission of evidence a person
committed a crime or other act is not barred “when relevant to
prove some fact (such as motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident, . . .)
other than his or her disposition to commit such an act.”

29
 Daniels also argues Valle’s statement he believed it was the
same knife was equivocal, and thus it should have been excluded
because it had less probative value, and further, Selina’s
statement to police officers that she had placed the knife in the
tent undermined Valle’s testimony. But any uncertainty as to
whether it was the same knife goes to the weight of the evidence,
not its admissibility. (People v. Alcala (1992) 4 Cal.4th 742, 797
[“the trial court properly could determine that despite the
relatively weak probative value of the knife sets, they might have
some tendency to prove that defendant had access to, or
familiarity with, the particular brand of carving knife found near
the crime scene”]; People v. Clark (1992) 3 Cal.4th 41, 129
[although the two knives were not “directly or conclusively
connected to the offenses,” they “were circumstantially
relevant”].)

3. Cindy’s statements to Officer Luna were admissible as
spontaneous statements
Prior to trial, the prosecutor sought to admit Cindy’s initial
statements to Officer Luna made when Cindy exited the tent as
spontaneous statements pursuant to Evidence Code section 1240.
Defense counsel objected, arguing Cindy “will be able to testify as
to all of the activity that occurred, as well as her feelings and any
potential fear or force that she may have felt was being used.”
Defense counsel also argued the statements were unduly
prejudicial under Evidence Code section 352, adding “[i]t’s unfair
to Mr. Daniels because the witness is available and she can say
everything that is in that body cam video.” The trial court ruled
Cindy’s statements were admissible as spontaneous statements,
noting “[i]t’s actually, I think, fairer to Mr. Daniels precisely

30
because the witness is available and therefore can be cross-
examined as to the statements made at the scene.” At trial,
defense counsel renewed her objection on the same grounds, that
Cindy had testified to what had happened and the evidence was
more prejudicial than probative. The trial court again overruled
the objection, explaining “[t]he triggering events [are] not
only . . . the actual forcible oral copulation that she describes, but
it’s also with Mr. Daniels presumably armed with a knife and so
it’s an ongoing triggering event.”
On appeal, Daniels contends the admission of Cindy’s
statements to Officer Luna was erroneous because they were not
spontaneous statements. But Daniels forfeited his claim of error
because he failed to object on this ground at trial. (Evid. Code,
§ 353, subd. (a); Cage, supra, 62 Cal.4th at p. 282 [“Defendant
forfeited his claims by failing to object to any of the testimony on
the grounds he now raises.”]; People v. Fuiava (2012) 53 Cal.4th
622, 721 [“‘“In accordance with [section 353 of the Evidence
Code], we have consistently held that the ‘defendant’s failure to
make a timely and specific objection’ on the ground asserted on
appeal makes that ground not cognizable.”’”].)
Even if Daniels had not forfeited his evidentiary challenge,
the trial court acted within its discretion in admitting Cindy’s
statements to Officer Luna under the spontaneous statement
exception to the hearsay rule. “‘Evidence Code section 1240
provides that “[e]vidence of a statement is not made inadmissible
by the hearsay rule if the statement” “[p]urports to narrate,
describe, or explain an act, condition, or event perceived by the
declarant” and “[w]as made spontaneously while the declarant
was under the stress of excitement caused by such
perception.” . . . [¶] “To be admissible, ‘(1) there must be some

31
occurrence startling enough to produce . . . nervous excitement
and render the utterance spontaneous and unreflecting; (2) the
utterance must have been before there has been time to contrive
and misrepresent, i.e., while the nervous excitement may be
supposed still to dominate and the reflective powers to be yet in
abeyance; and (3) the utterance must relate to the circumstance
of the occurrence preceding it.’”’” (People v. Sanchez (2019)
7 Cal.5th 14, 39; accord, People v. Penunuri (2018) 5 Cal.5th 126,
156.)
Daniels contends Cindy’s statements are not spontaneous
statements within the meaning of Evidence Code section 1240
because Cindy spent hours lying in her tent with Daniels before
making statements to Officer Luna. But Daniels had a knife
within reach during that time and ordered Cindy to stay in the
tent after forcing her to perform oral sex at knifepoint. Daniels
did not permit Cindy to leave until the responding officers
arrived. “‘“‘[N]either lapse of time between the event and the
declarations nor the fact that the declarations were elicited by
questioning deprives the statements of spontaneity if it
nevertheless appears that they were made under the stress of
excitement and while the reflective powers were still in
abeyance.’”’” (People v. Penunuri, supra, 5 Cal.5th at p. 152
[declarant’s statement that defendant pointed a gun at him
which was made 20 to 40 minutes after his encounter with
defendant was spontaneous]; accord, People v. Brown (2003)
31 Cal.4th 518, 541 [statement “made about two and one-half
hours” after a shooting was spontaneous where declarant “could
not stop his body from shaking nor stem the flow of tears”];
People v. Raley (1992) 2 Cal.4th 870, 893-894 [victim’s statements
about sexual assault 18 hours later were spontaneous because

32
she “was in mental agony and in severe pain” and “in no
condition to fabricate”]; see People v. Sanchez, supra, 7 Cal.5th at
p. 39 [trial court did not abuse its discretion in admitting
statements by five-year-old boy to police officers while he was
emotional and crying one and a half hours after he witnessed the
killing of his mother].)
Cindy was crying and visibly distraught when she told
Officer Luna just after emerging from the tent that Daniels had
hit her and Selina, pulled down his pants, brandished a long
knife, and made them perform oral sex. According to Sergeant
Vargas, when Cindy arrived at the police station after leaving her
tent, she was still nervous and upset. The trial court did not
abuse its discretion in admitting Cindy’s statements as
spontaneous statements because the forcible oral copulation and
confinement were occurrences startling enough to produce
nervous excitement; the statements were made under the stress
of excitement without time to contrive them; and the statements
related to Daniels’s threats and forced oral copulation. (People v.
Sanchez, supra, 7 Cal.5th at p. 39; People v. Penunuri, supra,
5 Cal.5th at pp. 152-153.)

D. Any Violation of Daniels’s Miranda Rights Was Harmless
Error
1. The trial court proceedings
Before trial, the prosecutor sought to admit statements
Daniels made to Officer Carrillo as Daniels exited the tent and
walked out of the encampment toward the freeway for a field
showup. Defense counsel objected to admission of Daniels’s
statements on the basis they were made while Daniels was in
handcuffs in police custody. After viewing the video from Officer

33
Carrillo’s body camera, the trial court found there was no
custodial interrogation, reasoning, “There was custody.
Mr. Daniels was in handcuffs and being led up for a field show-
up. The tone throughout, however, is a pretty friendly one with—
between the officers who were familiar with Mr. Daniels and
Mr. Daniels. [¶] I can’t hear what exactly prompted him to begin
speaking. However, the officer said nothing more than to inform
him what one of the alleged victims said. Wasn’t asking him
about it. Didn’t ask him to explain it.”
During trial, the prosecutor played a video of Officer
Carrillo’s conversation with Daniels that was recorded by Officer
Carrillo’s body camera as Daniels walked with Officer Carrillo
and two other officers from Cindy’s tent through the encampment
toward the freeway for a field showup. Daniels told Officer
Carrillo, “You go. You can search. You can search me. I, I’m not
on probation or parole or anything, but you know [unintelligible]
I’ll waive my [F]ourth [Amendment] right willingly.” Daniels
reminded Officer Carrillo he “beat” the case in “the last incident.”
Daniels inquired, “Can you guys tell me what this is about,
Officers?” Daniels later asked, “Who called the police on me?
Who called the police?”
Daniels continued spontaneously to talk as he walked
through the encampment. He repeated, “Please tell me who
called—.” Officer Carrillo responded, “I’ll, you know what, I’ll tell
you. Someone said that you forced them to, and I quote from her
statements, . . . ‘To suck your dick.’” Daniels inquired, “Hmm? I
forced her to?” Officer Carrillo replied, “That’s what she said,
yes.” Daniels stated, “Oh, hold up, you talking about S[e]lina? I
knew she was going to—I said—oh, no, here’s what I said, I said,
‘Dude, I came back and there’s a naked-ass fucking man, uh,

34
where I sleep, in my spot. Bitch, you suck some dick right now,
whether you like it or not.” Officer Carrillo asked, “Is that what
happened?” Daniels answered, “On my mama. Because I came
back, there was another nigger like in my bed naked, and you got
breakfast cooked for him, and I just recycled, I bought your ass a
phone. Oh hell no, y’all bitches got me fucked up. . . . And then
liked it when she was doing it.” Daniels was laughing as he
described what had happened. Officer Carrillo queried,
“S[e]lina?” Daniels responded, “Yeah.” Daniels added, “Oh,
Cindy was there too.” Officer Carrillo stated, “Okay, we’ll talk to
her and see if we can get to the bottom of it.” Daniels continued,
“No, she—yeah, yeah, she was there. . . . I was like, wait a
minute, ’cause I’m sleeping down there.” Daniels added, “I come
back. I said, ‘Cindy, I’m, I’m trying to get to bed.’ So I, uh, and
she was cleaning up. She had a clothes brush. So I go down
there and sleep. I wake up. I see this nigger, Chavarro, wait,
wait, naked, I’m like, ‘What the fuck, nigger?’ Breakfast, and I’m
like, ‘Oh, what the—?’ like a nigger you know, that’s like
saying, . . . you know, I’m like ‘Wait a minute, huh?’” Officer
Carrillo stated, “That sounds super-disrespectful.” Daniels
responded, “Yeah, on my—I’m like, ‘Okay, these bitches—.’”
At that point Officer Carrillo interrupted to speak with
another officer to discuss the location of the field showup.
Daniels continued to talk, “Hell yeah, you said, she said that
sound very disrespectful.” Officer Carrillo answered, “Yeah.”
Daniels responded, “I was like, ‘Wait a minute, breakfast? I’m
out here recycling, hot and sweaty. I get—I pay your phone bill.’”
The police officers then communicated with other officers about
their location. Daniels continued without prompting,
“[Unintelligible] that bitch shit, it’s like the bitch shit, the bitch

35
shit, the lying, frustration, et cetera, et cetera. I want to fight.
They’ll pull a knife on me and then tell me they’ll press
charges . . . . Right there. I can’t, I can’t, I just can’t—you see
those two tents down there? I just kicked them out. I said, ‘I’m
tired of you’ ’cause they’re like bitches. I’m tired of you guys’
bitch shit. I’m tired of being humble. Once I bring the bitch at
you, and now, now, now you want to call the police
[unintelligible].” Officer Carrillo asked, “So this, this whole spot
is yours?” Daniels responded, “Huh? If I want it to be. But I
share, we, we share with other people. But now I’m kicking—I’m
done. Like I try to be nice and humble, but after today I’m tired.
I’m kicking you guys out. I’m kicking you guys out. Every time—
I don’t got to nothing, the police get called. I get knives pulled on
me.”
Daniels stated he was staying with Cindy and the tent he
just left belonged to Cindy. Daniels repeated he had been
“hustling, recycling” to pay for Cindy’s phone bill for the past
three days. Further, Cindy used his money to “get dope and
getting high with another nigger while” Daniels was gone.
Officer Carrillo commented, “That sounds terrible.” Daniels
replied, “Dude, now when I woke up, I saw—all I just saw—
where I, where I stay, sleep my head at, like this is a naked
nigger. Like I see—I look, there was eggs and shit. Wait a
minute, I haven’t gotten breakfast cooked for me in a fucking
minute. All I’ve been doing is getting yelled at for no fucking
reason. I’m pissed the fuck off . . . .”

36
 2. Governing law
Before the police can conduct a custodial interrogation, the
suspect must first be advised of his or her right to remain silent,
to the presence of an attorney, and to appointed counsel if
indigent. (Miranda, supra, 384 U.S. at p. 479; Young, supra,
7 Cal.5th at p. 923.) “A statement obtained in violation of a
suspect’s Miranda rights may not be admitted to establish guilt
in a criminal case.” (People v. Jackson (2016) 1 Cal.5th 269, 339;
accord, Young, at p. 923.)
“[T]he term ‘interrogation’ under Miranda refers not only to
express questioning, but also to any words or actions on the part
of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect. The latter
portion of this definition focuses primarily upon the perceptions
of the suspect, rather than the intent of the police. This focus
reflects the fact that the Miranda safeguards were designed to
vest a suspect in custody with an added measure of protection
against coercive police practices, without regard to objective proof
of the underlying intent of the police. A practice that the police
should know is reasonably likely to evoke an incriminating
response from a suspect thus amounts to interrogation. But,
since the police surely cannot be held accountable for the
unforeseeable results of their words or actions, the definition of
interrogation can extend only to words or actions on the part of
police officers that they should have known were reasonably
likely to elicit an incriminating response.” (Rhode Island v. Innis
(1980) 446 U.S. 291, 301-302, fns. omitted; accord, People v.
Hensley (2014) 59 Cal.4th 788, 810-811 [“‘The police may speak to
a suspect in custody as long as the speech would not reasonably

37
be construed as calling for an incriminating response.’”]; People v.
Gamache (2010) 48 Cal.4th 347, 387 (Gamache) [“‘“Interrogation”
consists of express questioning, or words or actions on the part of
the police that “are reasonably likely to elicit an incriminating
response from the suspect.”’”].)
“‘[S]tatements volunteered when not in response to an
interrogation are admissible against a defendant, even after an
initial assertion of the right to remain silent.’” (People v. Roldan
(2005) 35 Cal.4th 646, 735, disapproved on another ground in
People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22; accord,
Gamache, supra, 48 Cal.4th at p. 387.) “‘Where, as was the case
here, an interview is recorded, the facts surrounding the
admission or confession are undisputed and we may apply
independent review.’” (People v. Leon (2020) 8 Cal.5th 831, 843;
accord, People v. Jackson (2016) 1 Cal.5th 269, 339.)

3. Officer Carrillo’s initial conversation with Daniels
was not an interrogation under Miranda, and to the
extent the officer’s later questioning violated Miranda,
it was harmless error
Daniels argues Officer Carrillo’s banter with him was an
impermissible tactic used to soften him up to induce
incriminating statements without the benefit of Miranda
warnings, relying on People v. Gurule (2002) 28 Cal.4th 557, 602
and People v. Honeycutt (1977) 20 Cal.3d 150, 160-161. But in
Gurule, the Supreme Court rejected the defendant’s suggestion
“that by engaging in small talk [the officers] improperly
‘soften[ed] him up’ before extracting a Miranda waiver” because
they did not discuss the victim and there was no evidence
“suggesting that the manner in which [the officers] engaged in

38
small talk overbore defendant’s free will.” (Gurule, at p. 602.) By
contrast, in Honeycutt, a detective whom defendant “had known
through police contacts for about 10 years” engaged in “a half-
hour unrecorded discussion” with defendant about “unrelated
past events and former acquaintances and, finally, the victim,”
and the officer disparaged the victim. (Honeycutt, at p. 158.) The
Supreme Court held, “When the waiver results from a clever
softening-up of a defendant through disparagement of the victim
and ingratiating conversation, the subsequent decision to waive
without a Miranda warning must be deemed to be involuntary
for the same reason that an incriminating statement made under
police interrogation without a Miranda warning is deemed to be
involuntary.” (Id. at pp. 160-161.)
Here, Officer Carrillo had developed a rapport with Daniels
because they frequented the same convenience store and Officer
Carrillo had previously arrested Daniels. But in their initial
small talk, Officer Carrillo did not discuss Cindy or Selina or
engage in an “‘ingratiating conversation’” with Daniels
reasonably likely to elicit an incriminating statement. (Young,
supra, 7 Cal.5th at p. 925 [record “does not reveal any similarly
improper efforts at ‘ingratiating conversation’ concerning
unrelated topics or ‘disparagement of the victim[s]’”]; People v.
McCurdy (2014) 59 Cal.4th 1063, 1087 [questions by officers to
establish rapport with defendant did not constitute
interrogation]; People v. Scott (2011) 52 Cal.4th 452, 478
[distinguishing Honeycutt because interrogating officers did not
seek to ingratiate themselves with defendant by discussing
unrelated past events and acquaintances, or disparage the
victim].)

39
 Daniels can be seen in the body camera footage continuing
to talk as Officer Carrillo escorted him through the encampment
toward the freeway. Officer Carrillo did not mention Cindy or
Selina in their initial conversation. Officer Carrillo’s only
mention of the incident was in response to Daniels’s repeated
inquires as to who had called the police and why he was arrested.
That led Daniels to describe the incident, laughing as he
discussed having a naked man in his bed. Without prompting,
Daniels admitted he responded to the naked man being in his bed
by saying to Selina, “Bitch, you suck some dick right now,
whether you like it or not,” and “[Y]’all bitches got me fucked
up . . . . And then liked it when she was doing it.”
Officer Carrillo’s neutral inquiries in response to Daniels’s
spontaneous and continuing monologue did not convert Daniels’s
admissions into an interrogation. (See Gamache, supra,
48 Cal.4th at p. 388 [detective’s inquiry about defendant’s
military service “did not convert [defendant’s] volunteered
admissions into the product of interrogation”]; People v. Haley
(2004) 34 Cal.4th 283, 302 [“A brief statement informing an in-
custody defendant about the evidence that is against him is not
the functional equivalent of interrogation because it is not the
type of statement likely to elicit an incriminating response.”];
People v. Ray (1996) 13 Cal.4th 313, 338 [“The entire confession
was given in narrative, almost rambling form. To the extent [the
prison official] interrupted and asked questions, they were
merely ‘neutral inquir[ies]’ made for ‘the purpose of clarifying
[statements] or points that [he] did not understand.’ [Citation.]
Nothing in the substance or tone of such inquiries was reasonably
likely to elicit information that defendant did not otherwise
intend to freely provide.”].)

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 It was only after Daniels admitted that he ordered Selina to
“suck some dick right now, whether you like it or not,” that
Officer Carrillo asked, “Is that what happened?” This question
was more likely to elicit an incriminating response by asking
Daniels to confirm whether that was what had happened. But
even if this inquiry was in violation of Daniels’s Miranda rights,
admission of Daniels’s response was harmless error because
Daniels merely repeated his story that he saw a naked man in his
bed, with the additional detail that Cindy had made the man
breakfast. Although Daniel added that Selina and Cindy were in
the tent, this was never in dispute. Nor was it relevant that
Cindy had cooked the naked man breakfast. Under these
circumstances, any error in admitting Daniels’s statements
following Officer Carrillo’s further inquiry was harmless beyond a
reasonable doubt. (People v. Case (2018) 5 Cal.5th 1, 22
[admission of defendant’s pretrial statements in violation of
Miranda “‘reviewed for prejudice under the beyond a reasonable
doubt standard of Chapman v. California (1967) 386 U.S. 18 . . . .
That test requires the People . . . “to prove beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.”’”]; see People v. Cunningham (2001) 25 Cal.4th
926, 994 [admission of evidence in violation of Miranda was
harmless beyond a reasonable doubt].)

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 DISPOSITION

The judgment is modified to strike the personal use weapon
enhancement imposed and stayed on count 5. As modified, the
judgment is affirmed. The superior court is directed to prepare a
corrected abstract of judgment and to forward it to the
Department of Corrections and Rehabilitation.

FEUER, J.
We concur:

PERLUSS, P. J.

RICHARDSON, J.*

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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