Filed 2/1/22 P. v. Callender CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059527
v. (Super. Ct. No. 16NF2748)
ARTHUR WILLIAM ROBERT OPINION
CALLENDER,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Andre
Manssourian, Judge. Affirmed.
Thomas E. Robertson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Genevieve
Herbert, Deputy Attorneys General.
* * *
A jury found appellant Arthur William Robert Callender guilty of two
counts of sexual intercourse with a child 10 years of age or younger, in violation of Penal
Code section 288.7, subdivision (a), and he was sentenced to 50 years to life in state
prison. He appeals, contending the trial court prejudicially erred in denying his pretrial
motion to exclude his confession of sexual penetration, which he argued was obtained in
violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). As discussed below,
because appellant’s statements were not made during a custodial interrogation, we affirm
the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Motion to Exclude PreMirandized Statements
Before trial, appellant moved to exclude statements he made to law
enforcement before he was provided Miranda advisements. He argued he made the
statements in a custodial setting because he did not believe he could leave after the
officers had shown him their badges and taken him “outside the comfort of the home onto
the patio.” The District Attorney argued there was no custodial interrogation because the
officers were friendly and nonconfrontational, told appellant he was free to leave multiple
times, and never restricted his movement. The trial court denied the motion, concluding
appellant was not in custody during the interrogation.
B. Prosecution Evidence
The victim’s mother testified that, in May 2016, she was living together
with her husband, their three children, her in-laws, and several family relatives, including
her sister-in-law. During that time, appellant had been dating her sister-in-law for almost
three years. Appellant regularly visited and became so close to the family that they
trusted him to babysit her daughter, the two-year-old victim, on two occasions in August
2016.
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In October 2016, Special Agent Kelly Nowak from Homeland Security
Investigations and Investigator Sandra Longnecker from the Orange County Sheriff’s
Department were assigned to the Orange County Child Exploitation Task Force, which
investigates online child exploitation crimes. Nowak contacted Longnecker after
identifying the victim from explicit photographs posted on a Web site commonly used for
trading illicit images. The e-mail address linked to the profile of the person who posted
the photographs was associated with appellant’s phone number.
Nowak and Longnecker, accompanied by two other agents, went to the
victim’s residence to positively identity her as the child in the photographs and ensure her
safety. They did not know appellant would be present. Although the officers were
armed, they wore casual attire. After interviewing members of the victim’s family and
ensuring the victim was safe, the officers interviewed appellant on the front porch.
The audio of appellant’s recorded interview was admitted into evidence at
trial. Longnecker and Nowak first introduced themselves as part of a child exploitation
task force, and stated they had spoken with everyone else at the house and would like to
speak with him. Appellant indicated he wanted to speak on the porch, instead of in the
officers’ vehicle. The officers informed appellant he was not under arrest, and then
explained how photographs posted on a Web site were connected to an e-mail address
and a phone number associated with appellant. They showed him some of the
photographs; appellant claimed he did not recognize them. The officers asked appellant
about his phone number and e-mail address, and after he provided the number and several
e-mail addresses, they informed him that the phone number and third e-mail address were
linked to the user account that posted the photographs. Appellant responded he had not
used that e-mail address in a while.
Appellant had no explanation for photographs that were posted. Nowak
reiterated appellant was not under arrest, and expressed her consternation that they did
not have any other leads on who posted the photos. Appellant then admitted taking
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photos of the victim but denied taking any explicit pictures. Appellant also denied
having any knowledge of the Web site where the explicit pictures were posted.
Longnecker encouraged appellant to “tell the truth” even if he was scared,
and appellant relayed he feared authority due to his prior experiences with Immigration
and Customs Enforcement. He then acknowledged taking pictures and videos of the
victim when she was not fully clothed. He repeatedly stated he did not post the pictures
to the Web site, despite the account’s connection to his e-mail and phone number. In
response, Longnecker twice said, “Seriously?” Appellant then claimed he had not used
the e-mail account connected to the Web site in over a year.
Longnecker asked appellant if she could look through his cell phone,
including any application or the gallery, and he gave permission. While Nowak
conversed with appellant about his family and his relationship with the victim’s aunt,
Longnecker searched through appellant’s phone and discovered explicit videos of a penis
and a female child’s genitals dated August 16, 2016, and August 17, 2016. Longnecker
showed appellant the videos and asked for an explanation. Appellant stated, “Yikes.
That’s very unsettling,” and admitted it was his penis in the videos but denied ever
posting the videos online. Longnecker asked, “So you did this to her?” Appellant
replied, “Yes.” He also admitted that he had sexually abused the victim prior to the two
videos.
Longnecker told appellant she would be “right back,” and she and Nowak
stepped away from appellant to review the rest of the videos on his cell phone. Appellant
then told one of the other officers present that he wanted to speak with Longnecker and
Nowak. Longnecker asked appellant if he wished to speak away from the victim’s family
and appellant agreed to speak in Nowak’s vehicle. Longnecker asked appellant whom he
preferred to sit next to in the car, but appellant indicated he did not care. Longnecker told
appellant, “I’m going to close the door is that okay? Okay. Yeah, the doors are
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unlocked, and you’re free to leave at any time. Okay? Make sense?” Appellant replied,
“Yes.”
Appellant initiated the conversation with the officers by asking if they had
any comments, and Longnecker replied that he wanted to talk with them so “you can go
first.” Appellant then stated he had done “horrible things” and was “not proud of it.”
Nowak responded that they did not want to make him feel like a “bad guy,” but there was
an “arrow” pointing to him based on the “online stuff” and they only wanted honesty.
Appellant replied, “I do think that I’m [an] honest person, even if it takes a while to get to
honesty.”
Longnecker asked appellant if he would allow them to look at his
computer, and appellant agreed before stating there was a “hidden file where stuff was
stored,” but he had deleted it. Appellant stated he used the Web site to trade illicit
photographs of children. He admitted that the profile belonged to him and that he posted
the photographs of the victim on it. However, he claimed he never posted explicit
photographs; “[t]hat was only for me.”
The officers questioned appellant about his sexual abuse of the victim, and
he stated that he was “turned on while . . . sexually playing with her,” but “always felt
terrible afterwards.” Longnecker asked about the two explicit videos she previously had
shown to appellant, and appellant stated he “barely managed to get the tip” of his penis
into the victim’s vagina.
Appellant agreed to provide the passwords for his e-mail accounts and
signed a consent form permitting the officers to seize and search his computer and cell
phone at his residence. Nowak drove appellant to his home where the officers seized the
electronic devices.
Appellant was arrested, placed in handcuffs, and advised of his Miranda
rights. After appellant affirmatively acknowledged that he understood those rights, he
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again confessed to being in the videos with the victim and owning the account that posted
the explicit photos.
B. Defense Case
Appellant testified in his own defense. He admitted sexually abusing the
victim on August 16 and 17, 2016, when he was babysitting the child alone. He denied
ever pushing his penis into the victim’s genitalia, claiming he just rubbed his penis
against her genitalia before ejaculating on her. Appellant also acknowledged recording
both incidents.
On cross-examination, appellant acknowledged the videos showed the tip
of his penis rubbing in between the victim’s labia majora. He admitted the victim began
crying “as [he was] rubbing and pressing [his penis] in her vagina.”
II
DISCUSSION
In Miranda, the United States Supreme Court held that “the prosecution
may not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” (Miranda, supra, 384 U.S.
at p. 444.) “Absent ‘custodial interrogation,’ Miranda simply does not come into play.”
(People v. Mickey (1991) 54 Cal.3d 612, 648.) “On appeal, we accept the trial court’s
findings of historical fact if supported by substantial evidence but independently
determine whether the interrogation was ‘custodial.’” (People v. Aguilera (1996)
51 Cal.App.4th 1151, 1161 (Aguilera).) However, where the interrogation is recorded, as
is the case here, “the facts surrounding the admission are undisputed and [also] subject to
our independent review.” (People v. Torres (2018) 25 Cal.App.5th 162, 173.)
The parties do not dispute the trial court’s conclusion that the challenged
statements were obtained during an interrogation; the sole issue on appeal is whether
appellant was in custody when he was interrogated prior to the Miranda advisements
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being given. In determining whether a person is in custody for purposes of applying
Miranda, the issue is whether, in light of the “‘objective circumstances of the
interrogation,’ [citation], ‘a reasonable person [would] have felt he or she was not at
liberty to terminate the interrogation and leave.’” (Howes v. Fields (2012) 565 U.S. 499,
509 (Howes).) A person’s custody status can change during an interrogation. (People v.
Saldana (2018) 19 Cal.App.5th 432, 457 [although “the beginning of the interrogation
was not custodial,” by the time he confessed, “the circumstances had significantly
changed”].) Appellant contends that by the time he confessed to sexual penetration in
Nowak’s vehicle, the circumstances had significantly changed, and the interrogation had
become custodial.
The “circumstances of the interrogation,” (Howes, supra, 565 U.S. at
p. 509), include: “whether contact with law enforcement was initiated by the police or
the person interrogated, and if by the police, whether the person voluntarily agreed to an
interview; whether the express purpose of the interview was to question the person as a
witness or a suspect; where the interview took place; whether police informed the person
that he or she was under arrest or in custody; whether they informed the person that he or
she was free to terminate the interview and leave at any time and/or whether the person’s
conduct indicated an awareness of such freedom; whether there were restrictions on the
person’s freedom of movement during the interview; how long the interrogation lasted;
how many police officers participated; whether they dominated and controlled the course
of the interrogation; whether they manifested a belief that the person was culpable and
they had evidence to prove it; whether the police were aggressive, confrontational, and/or
accusatory; whether the police used interrogation techniques to pressure the suspect; and
whether the person was arrested at the end of the interrogation.” (Aguilera, supra,
51 Cal.App.4th at p. 1162.) “No one factor is dispositive. Rather, we look at the
interplay and combined effect of all the circumstances to determine whether on balance
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they created a coercive atmosphere such that a reasonable person would have experienced
a restraint tantamount to an arrest.” (Ibid.)
Here, in the context of the challenged statements made in Nowak’s vehicle,
the factors weighing against a custodial finding predominate. First, it was appellant who
initiated the questioning in Nowak’s vehicle. Although law enforcement initiated contact
with appellant, they had stopped questioning him after he admitted it was his penis in the
two videos. It was appellant who stated he wanted to speak with Longnecker and
Nowak. In addition, while in the vehicle, it was appellant who started the conversation
about his prior admission.
Second, appellant voluntarily agreed to be interviewed in Nowak’s vehicle
because he wanted to speak away from the family of the victim.
Third, immediately before the interrogation in Nowak’s vehicle, neither
Longnecker nor Nowak informed appellant that he was under arrest or in custody.
Moreover, minutes before on the front porch they expressly had informed appellant he
was not under arrest.
Fourth, after entering the vehicle, Longnecker informed appellant that
although she was closing the car’s doors, the doors were unlocked and he was free to
leave at any time. Appellant expressly acknowledged he understood those facts.
Fifth, there were no restrictions on appellant’s movement. He was not
handcuffed or restrained. Indeed, Longnecker asked appellant where he wanted to sit in
the vehicle.
Sixth, the entire interrogation, including the interrogation on the front
porch, lasted less than one hour.
Seventh, two officers participated in the interrogation in Nowak’s vehicle,
but it was appellant who specifically requested both officers.
Eighth, the officers were not aggressive, confrontational or accusatory.
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Ninth, they did not use interrogation techniques to pressure the suspect.
For example, they did not present false evidence.
Finally, appellant was not arrested at the end of the questioning in Nowak’s
vehicle.
In contrast, the factors weighing in favor of a custodial finding are mixed.
While the express purpose of the entire interrogation was to question appellant as a
suspect, the questioning in the vehicle was initiated by appellant to address any
“comments” the officers might have about his prior admission that it was his penis in the
videos. The officers did exert some control over the interrogation, for example directing
the conversation to the explicit videos, but it was appellant who started the conversation
by stating he had done horrible things that he was not proud of doing. Finally, by the
time he was questioned in Nowak’s vehicle, the officers “manifested a belief that
[appellant] was culpable and they had evidence to prove it,” (Aguilera, supra,
51 Cal.App.4th at p. 1162), but that belief and evidence was bolstered by appellant’s own
voluntary admission, made minutes before, that he was the person depicted in the explicit
videos. Indeed, the evidence suggests appellant thought the officers’ belief in his
culpability was reasonable based on his express desire to address that belief by
reinitiating conversation with the officers.
When all the above factors are viewed together, we conclude that under the
totality of the circumstances the interrogation was not custodial. Accordingly, the trial
court did not err in denying appellant’s motion to suppress the challenged statements.
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III
DISPOSITION
The judgment is affirmed.
ZELON, J.*
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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