Filed 11/19/20 P. v. Breed CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073674
v. (Super.Ct.No. FVI17000198)
RICHARD GARY BREED, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan K. Stodghill,
Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Richard Gary Breed of multiple sex offenses against his
granddaughter. He argues that the trial court erred by admitting his interview with law
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enforcement because his Miranda waiver was involuntary.1 He also argues that the court
erred by refusing to provide a hearing-impaired juror with a transcript of the interview
during jury deliberations. We conclude that both arguments lack merit, and we therefore
affirm.
BACKGROUND
Breed’s granddaughter lived with him and was around five or six years old when
he began sexually abusing her. On multiple occasions, he anally or vaginally penetrated
her with his penis, orally copulated her, or touched her genital area with his hand. He
also tried to make her orally copulate him and took a photo of her genital area. After
several years of abuse, Breed’s granddaughter disclosed the abuse to her mother.
The jury convicted Breed of one count of oral copulation or sexual penetration
with a child age 10 or younger, two counts of lewd act on a child under age 14, one count
of sexual intercourse or sodomy with a child age 10 or younger, and one count of
possession of child pornography. (Pen. Code, §§ 288, subd. (a), 288.7, subds. (a)-(b),
311.11, subd. (a); unlabeled statutory citations refer to the Penal Code.)
The trial court sentenced Breed to a total indeterminate term of 40 years to life in
prison and a concurrent determinate term of 13 years in prison.
1 Miranda v. Arizona (1966) 384 U.S. 436.
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DISCUSSION
I. Miranda Waiver
Breed argues that the trial court erred by admitting his interview with law
enforcement because the officers’ conduct rendered his Miranda waiver involuntary.
Breed contends that, under People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt), the
officers used “[i]mproper ‘softening-up’” techniques. The People argue that Breed
forfeited the contention by failing to object on that specific ground in the trial court.
Regardless of whether Breed forfeited the argument, the argument is meritless.
A. Background
Before trial, the court held a hearing under Evidence Code section 402 to decide
whether to admit Breed’s interview with the investigating detective. The parties adduced
the following facts at that hearing.
According to the investigating detective, Breed refused to speak with the deputy
who transported him to the sheriff’s station. Breed was arrested, and the detective
attempted to interview Breed the day after his arrest. Breed was angry, hostile, and
refused to speak to the detective. The detective offered several times to read Breed his
Miranda rights, but Breed continued to insist that he did not want to speak to the
detective. Breed was taken to a holding cell at the jail.
The next day, Breed’s wife called and left a message. The deputy on duty asked
Breed if he wanted to speak to his wife, and Breed said that he did. The deputy escorted
Breed to the phone and stood next to him while he called his wife. During the call, the
deputy heard a woman on the other end say, ‘“Tell the truth.”’ Breed was crying and
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responded, ‘“I’m sorry.”’ When the call ended, the deputy asked Breed if he wanted to
talk to anybody, including the detective. Breed said that he wanted to talk to the
detective. The detective advised Breed of his Miranda rights, and Breed waived them.
During the interview that followed, Breed admitted to orally copulating his
granddaughter, touching her genital area with his fingers, and making her rub his penis,
but he denied having intercourse with her.
According to Breed, the detective and deputies tried to interview him several times
before he finally talked to the detective. After four attempts, one of the deputies said that
if Breed told “them something, this will go away.” Breed interpreted that to mean that
the questioning and “harassment” would stop. He spoke with the detective because the
deputy said the questioning would stop. It had nothing to do with a conversation with his
wife. But he was concerned about her; she had several serious medical conditions, and
he was her sole caregiver.
Breed argued that his Miranda waiver was not voluntary or intelligent under the
circumstances. He asserted that he was distraught, concerned about his wife, and “broken
down” after two days in custody and numerous attempts to interrogate him. The court
found that Breed’s waiver was knowing and voluntary and ruled that his interview with
the detective was admissible.
B. Analysis
To be valid, a defendant’s waiver of Miranda rights must be voluntary, knowing,
and intelligent. (Miranda, 384 U.S. at pp. 444-445, 479.) In reviewing the trial court’s
decision on a motion to suppress, we review the trial court’s resolution of disputed facts
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for substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 918.) But we
independently determine whether the facts show a Miranda violation. (Ibid.)
Breed’s substantial evidence challenge is based entirely on our Supreme Court’s
decision in Honeycutt. In that case, two detectives attempted to interrogate Honeycutt.
(Honeycutt, supra, 20 Cal.3d at p. 158.) Honeycutt was hostile to the first detective, and
that detective left the room. (Ibid.) The second detective, who had known Honeycutt for
approximately 10 years, spoke to Honeycutt for 30 minutes about unrelated past events
and former acquaintances. (Ibid.) The detective also mentioned that the victim of
Honeycutt’s offense “had been a suspect in a homicide case and was thought to have
homosexual tendencies.” (Ibid.) The detective did not discuss Honeycutt’s offense
during that 30 minutes, but by the end of the conversation, Honeycutt had indicated that
he would talk about the offense. (Ibid.) Later, the detective advised Honeycutt of his
Miranda rights, and Honeycutt waived them. (Id. at p. 159.) He then confessed to
beating and stabbing the victim. (Ibid.)
The Supreme Court noted that the detective had persuaded Honeycutt to waive his
Miranda rights before the detective had even explained them. (Honeycutt, supra, 20
Cal.3d at p. 159.) The “critical question” was thus “what effect failure to give a timely
Miranda warning has on the voluntariness of a decision to waive which is induced prior
to the Miranda admonitions.” (Ibid.) The 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
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police interrogation without a Miranda warning is deemed to be involuntary.” (Id. at
pp. 160-161.) The court concluded that the trial court had erred by refusing to suppress
Honeycutt’s statements to the detective. (Id. at p. 161.)
Since Honeycutt, the Supreme Court has repeatedly distinguished the case and
refused to extend its holding beyond its unique facts. (People v. Krebs (2019) 8 Cal.5th
265, 306-307 (Krebs); People v. Molano (2019) 7 Cal.5th 620, 662-663; People v.
Scott (2011) 52 Cal.4th 452, 478; People v. Gurule (2002) 28 Cal.4th 557, 602; People v.
Kelly (1990) 51 Cal.3d 931, 954; People v. Jackson (1980) 28 Cal.3d 264, 298,
disapproved on another ground by People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
The “‘two salient features of Honeycutt’” were “(1) an interrogating officer who had a
prior relationship with the defendant and who sought to ‘ingratiate’ himself ‘by
discussing “unrelated past events and former acquaintances”’ and (2) the officer
disparaging the victim.” (Krebs, supra, at p. 306.) In the absence of those features,
reliance on Honeycutt is misplaced. (Id. at pp. 306-307; People v. Scott, supra, at
p. 478.)
The circumstances of Breed’s Miranda waiver are materially different from those
in Honeycutt. The officers involved did not have a preexisting relationship with Breed,
they did not try to ingratiate themselves with him by engaging in extended conversation
about unrelated matters, and they did not disparage his granddaughter. Accordingly, no
improper “softening-up” occurred. Breed claims that Honeycutt controls because the
officers ingratiated themselves with Breed by allowing him to call his wife. But
Honeycutt does not stand for the broad proposition that any arguable kindness toward the
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defendant renders a subsequent Miranda waiver involuntary. “Honeycutt has been
limited to its facts.” (Krebs, supra, 8 Cal.5th at p. 306.)
The investigating detective’s testimony constitutes substantial evidence of the
facts to which he testified, and Breed’s Miranda waiver was voluntary on those facts.
Apart from his reliance on Honeycutt, Breed does not argue to the contrary.
In sum, Breed fails to demonstrate that his Miranda waiver was involuntary. He
therefore has not demonstrated that the court erred by admitting his interview with the
detective.
II. Hearing-Impaired Juror’s Request for a Transcript
The People gave the jury transcripts of Breed’s interview with the detective when
the video recording was played during trial. During jury deliberations, the foreperson
sent a note requesting the transcript of Breed’s interview because a hearing-impaired
juror was “having audio issues.” Breed argues that the trial court erred by refusing to
provide the transcript. The argument lacks merit.
A. Background
In response to the foreperson’s note, the People did not object to the court
providing the requested transcript, but defense counsel objected. Counsel argued that the
court had not admitted the transcript into evidence and that the jurors needed to use the
video recording to determine what Breed said. The court suggested that it could provide
an assisted listening device to the juror in question, and the bailiff informed the court that
the juror already had the device in the jury room. The bailiff and the court also noted that
the juror had used the listening device throughout trial.
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The court responded to the jury that the video recording was the evidence of the
interview, the transcript was not in evidence, and the court could not provide the
transcript. The court also said that it could provide a listening device or “perhaps better
speakers” to review the evidence.
The bailiff delivered the court’s written response to the jury and returned with
some information from the hearing-impaired juror. The juror conveyed that “she could
hear but she was having problems making everything out” because of the different
pitches in Breed’s and the detective’s voices. The People asked the court to question the
juror to clarify whether she could hear all of the evidence. Defense counsel stated: “I
would submit with the Court’s position at this point.”
After the jury had received the court’s response and had been deliberating for
about an hour, the court summoned the jury to the courtroom. The hearing-impaired
juror confirmed that she had been using the listening device throughout trial. The court
asked whether she could hear the recording of the interview. The juror replied: “I was
able to put the device closer to the speaker and adjust the sound, and it did help yes, and
it’s just that particular audio. Everything else was fine.” The court asked whether there
was anything else the court could do to help her. The juror responded: “No. It was just
that unfortunately it picks up the tones very high, and so when the higher tones, when
[the detective] was speaking, I could hear him clearly and this particular tape the
defendant was very low and so there’s really nothing that can be adjusted. They all tried
really hard to get it fixed but it helped when I held it closer.” The court concluded by
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asking whether the juror was “able to deliberate and consider the evidence,” and the juror
said, “Yes.”
After the jury left the courtroom, the court explained to the parties that it had
researched the issue, and it had found case law indicating that the court could send the
transcript to the jury room with a limiting instruction. But the court believed that the
juror’s issue had been resolved and that such a step was unnecessary at that point.
Neither party objected to this approach.
The jury was still deliberating several days later. The People asked the court to
question the hearing-impaired juror again to clarify whether she could hear all of the trial
testimony. The People noted that the court had given the juror an enhanced listening
device before questioning her about her ability to hear the recording. But the People
were concerned about her ability to hear the trial testimony, which occurred before she
had the enhanced device. The court observed that it had “upgrade[d] some of the
listening equipment” but had not specifically asked whether the juror could hear the
earlier testimony, so it agreed to question the juror on that point. The juror indicated that
she did not have any problem hearing the evidence during trial.
B. Analysis
As a threshold matter, Breed forfeited the argument that the court erred by
refusing to provide the transcript. The doctrine of invited error prevents the defendant
from obtaining a reversal on appeal when the trial court erred at his or her request.
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) The doctrine applies when
defense counsel’s affirmative actions show that counsel induced the error for tactical
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reasons and not because of ignorance or mistake. (Ibid.) Under those circumstances, the
defendant forfeits the claim of error on appeal, “regardless of its merit.” (People v.
Williams (2008) 43 Cal.4th 584, 629.)
Defense counsel objected to the court giving the juror a transcript of Breed’s
interview, and the court adopted defense counsel’s reasoning in denying the request for a
transcript. Counsel had a clear tactical reason for objecting—the transcript showed Breed
unequivocally confessing to several of the sex offenses at issue. Consequently, if the
court erred, it was at Breed’s invitation, and he has forfeited the claim of error.
Moreover, even if Breed did not invite the claimed error, he failed to object after the
court questioned the juror and determined that the issue had been resolved. This too
constituted a forfeiture. (People v. Fuiava (2012) 53 Cal.4th 622, 653 [“Defendant
forfeited this claim by failing to raise this issue below, when the trial court could have
remedied the alleged shortcoming”].)
In any event, the court did not err. The court is required to provide hearing-
impaired jurors with “a functioning assistive listening system or a computer-aided
transcription system” upon their request. (Civ. Code, § 54.8, subds. (a), (g).) The record
discloses that the court gave the juror an assisted listening device for use during the trial,
and it upgraded that device during jury deliberations. The juror indicated that those
devices allowed her to hear the evidence, including the recording of Breed’s interview
with law enforcement. The record does not support Breed’s assertions that the juror
failed to hear “crucial testimony” (his confession) and that the assisted listening device
“was not functioning properly.” When questioned by the court after receiving the
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upgraded listening device, the juror stated that she was able to hear by moving the device
closer to the speakers and adjusting the sound.
For these reasons, Breed’s argument that the court erred by not providing the
transcript is meritless.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
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