Filed 2/8/22 P. v. Clark CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C076713
Plaintiff and Respondent, (Super. Ct. No. CM039031)
v.
DONALD GEORGE CLARK,
Defendant and Appellant.
A jury found defendant Donald George Clark guilty of three counts of murder and
one count of arson. He was sentenced to, inter alia, two terms of life without the
possibility of parole. On appeal, defendant contends the trial court erred in admitting his
confessions because (1) his initial confession was obtained without Miranda1 warnings,
1 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
1
and (2) his subsequent post-Miranda statements were obtained after the ineffective
Miranda advisements.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of the murder, defendant was 72 years old and lived alone as a
caretaker of large property outside of Chico. The victims were two young men, 17-year-
old R.J., 15-year-old R.L., and a 46-year-old woman, C.L., who was the mother of R.L.
Defendant was familiar with R.J., but did not know the others. A week after the murder,
defendant spoke with detectives and eventually admitted shooting the three victims in
self-defense.2
The Murders
As defendant told investigating detectives, R.J. had previously stolen property
from him and a neighbor. On the day of the shooting, the three victims drove to his
property asking for gas, and R.J. “started giving me a bunch of shit.” Defendant told
R.J., “he wasn’t wanted here,” and to, “get off.” R.J. replied, “You can’t kick me off . . .
you’re not the caretaker, I am.” Defendant asked, “Who gave you permission?”
When R.J. didn’t respond, defendant got his shotgun to scare them off the
property. But R.J. continued to mouth off as defendant told him to leave. Then — as
defendant explained to the detectives — while he was holding the gun, “[R.J.] took a big
step and grabbed the gun, and I, I pulled it out, and I, I went like this and it went off.
And then, the other guy, picked up the BB gun and was, like he was going to use it as a
club and he was going to hit me.” He said the girl came at him with a knife, so he shot
her.3
2 At trial, a recording of the interviews were played for the jury.
3 The prosecutor argued at closing: “My suggestion to you is [the 15-year-old victim]
and his mom, having just seen [the 17-year-old victim] murdered right in front of them,
2
Defendant then stripped their clothing and put them in their car, along with his
bike. He then drove a ways away, doused the bodies with gasoline, and set the car on
fire.4 He then rode his bike back home. He later threw the victims’ clothing in
dumpsters and put the shotgun and shells in his storage unit. He also scraped up the dirt
where blood had been shed and put the soiled dirt in his storage unit.
Verdict and Sentencing
The jury returned guilty verdicts for two counts of first degree murder, with
firearm enhancements for the killing of the 15-year-old victim and his mother. For R.J.,
the jury found defendant guilty of second degree murder, but found the firearm
enhancement as to that victim not true. It also found defendant guilty of arson of
property and found a multiple-murder special-circumstance allegation true.
The trial court sentenced defendant to two terms of life without the possibility of
parole for the first degree murder convictions. It also imposed two 25-year-to-life terms
for the firearm discharge enhancements, and a 15-year-to-life term for the second degree
murder conviction, as well as the three-year upper term for arson.
DISCUSSION
On appeal, defendant challenges the finding that he was not in custody when
police interrogated him. He maintains that based on the factors cited in People v.
Aguilera (1996) 51 Cal.App.4th 1151 (Aguilera), the interview was a custodial
interrogation, triggering the requirement of a Miranda admonishment and waiver.
Defendant argues that although he agreed to the interview, the voluntary nature
was diminished by the surrounding circumstances. According to defendant, the
were probably turning to run for their lives, and that’s why they suffered wounds to the
left sides of their bodies instead of from the front, which is what you would expect if they
had been shot while attacking [defendant].”
4A pathologist opined that R.J. was alive when the car was set ablaze based on carbon
monoxide found in his blood.
3
interview’s express purpose was to question him as a suspect. He was interrogated in a
small room far from his home. While he was told he was not under arrest “right now,”
the fact that his phone and money had been taken indicated his liberty had been restricted.
Similarly, the offer to leave was not viable because his money and phone were taken, and
he had only been offered a drive back to Chico, not his home. And while no explicit
restrictions on his freedom were made, the interrogation lasted two hours, he was
outnumbered three-to-one, and detectives dominated and controlled the interrogation.
Defendant also argues the detectives were aggressive, confrontational, and
accusatory, manifesting a belief defendant was culpable, asserting they had evidence to
prove it, and expressing skepticism of his answers. They also used interrogation
techniques including isolating defendant in a small room and attempting to ingratiate
themselves with conversational chit-chat and sympathy. Finally, though defendant was
not told he was under arrest after the interview, the detectives spoke of doing a crime
scene walk-through, gave a Miranda warning, and “maintained custody” of defendant —
suggesting custodial interrogation. Defendant argues that these circumstances establish
that he was subjected to custodial interrogation.
We disagree. At the outset, we emphasize that simply reading the interview
transcript and the appellate briefing does not reveal the entire picture. Indeed, by
focusing only on those things, one could very well gain an erroneous impression. The
recording of the interview, however, fully illuminates the picture to be discerned. And as
we shall discuss, based on the totality of the circumstances, we conclude defendant was
not in custody for purposes of Miranda during his initial interview with the police.
A. Additional Background
Before trial, defendant moved to suppress his statements made to investigating
officers. At the hearing, two detectives testified. In addition to the testimony, the trial
court watched the video recording of the interview.
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1. Testimony of Detective Matt Calkins
Sheriff’s detective Matt Calkins testified that he, along with 20 to 25 officers in
SWAT or riot gear, arrived at defendant’s hundred-acre-plus property to execute a search
warrant. When they executed the warrant, they were unsure how many people were on
the property.
At the scene, Calkins saw defendant being brought out of his residence, wearing
plastic flex cuffs with his hands in front of his body. Calkins testified that it is the
general practice to temporarily detain persons encountered while serving a search
warrant, particularly as part of a homicide investigation. Defendant remained handcuffed
for approximately five minutes; at that point District Attorney Investigator Patrick
McNelis had a SWAT officer remove the flexcuffs. Defendant was not questioned while
cuffed.
At some point, defendant was asked if he would accompany the detectives to the
sheriff’s department for an interview. Defendant agreed. Defendant was then driven to
the sheriff’s department in an unmarked Ford Expedition that had no screen enclosure.
He was neither restrained nor questioned during the drive.
At the sheriff’s facility, defendant was taken to the “soft interview room,” a room
with a couch, table, and a couple of chairs. The door to room was not locked, nor were
other doors leading to the outside. 5 When asked if defendant “could have gotten up and
walked out” “if [he] desired,” Calkins answered, “Yes.”
After about 10 minutes of discussing unrelated matters, the detective told
defendant he was not under arrest, he was free to leave, and they would give him a ride
back to Chico if he wanted. Calkins testified that defendant appeared to understand.
5 The room is located upstairs in the Sheriff’s department facility. To get there, one has
to go through two doors. The first door is unlocked to people entering and exiting. The
second door is unlocked to people exiting.
5
After the interview, defendant was not handcuffed. They drove defendant back to
his property, stopping on the way at a Starbucks in Chico for coffee and food. During the
suppression hearing, neither the prosecution nor the defense asked any questions
concerning what occurred at Starbucks or thereafter or anything about whether defendant
was restrained or when he was placed under arrest.
2. Testimony of District Attorney Investigator Patrick McNelis
District Attorney Investigator McNelis testified that he was part of the search of
defendant’s property and saw that defendant was restrained by flexible handcuffs for less
than five minutes. After the cuffs were removed, McNelis told defendant he was not
under arrest and was free to leave. Defendant, nevertheless, agreed to come to the
sheriff’s department for an interview.
3. The Trial Court’s Ruling
The trial court denied the suppression motion, finding defendant was not in
custody for Miranda purposes. Doing so, it noted that it had considered seven factors:
(1) whether formal arrest or its objective indicia are present; (2) the absence of formal
arrest; (3) the location of the interrogation; (4) the officer-to-suspect ratio; (5) the
officers’ demeanor; (6) the length, nature, and form of questioning; and (7) whether the
investigation was focused on the suspect.
As to those factors, the trial court found defendant had been detained on his
property for five minutes and released; he was not formally arrested. The length of
detention was unclear, though the court noted the recorded interview lasted two hours,
and the drive from defendant’s property was about 50 minutes. The site of the interview
was the Sheriff’s department’s “soft interview room,” which was unlocked, with people
freely moving in and out. And while the officer-to-suspect ratio at defendant’s property
was “high,” during the interview it was three-to-one.
The trial court found the demeanor during the interview was “conversational” and
“casual,” though the court noted it became “the most confrontational” before defendant
6
made admissions. Even then, the court found, “It’s still conversational in tone, but the
questions do come more quickly and the questions come from multiple sources.” The
court, however, noted the absence of raised voices, table pounding, or leaning into
defendant’s space. And as to the length, nature, and form of questions, the court found
the questions preceding the confession “very open-ended,” “inquisitive,” and while
pointed, gave defendant the opportunity to “tell what happened.”
Finally, the court found the interview questions did “not necessarily focus on
[defendant] as would have been perceived by a reasonable person” but were also
“inquisitive of other people that are involved or live on the property.” The court also
noted that defendant had been advised of his right to leave at any time appeared to be
supported by the fact defendant was not restrained and that he was offered “niceties” like
coffee and the ability to use the restroom.
B. The Recorded Interview6
We have reviewed the video recording. Present at various times during the
interview with defendant were Calkins, McNelis and Deputy District Attorney Marc
Noel. As the trial court noted, the tone was casual and conversational.
There was no testimony about the actual dimensions of the “soft interview room”
where the interview took place, but from the video recording, we note it contains a couch,
which appears to be a standard size with space enough for three adults to sit. There is a
chair and part of a table in view of the camera. The table appears to be the size of a
standard card table. There is a chair situated by the door, near the doorknob. The top
half of the door consists of a glass window. The window appears to be two-way glass;
people inside the room can see out into the hallway and vise versa. The door was not
6 There are discrepancies between the transcript and what can be heard on the video
recording. We note pertinent discrepancies in footnotes, post.
7
locked; the detectives freely exited and reentered during the interview without
manipulating the doorknob, and anyone sitting inside the room could see that.
The video recording begins with defendant and Noel walking into the room.
Defendant asks, “Where do you want me to sit?” Noel replied, “Anywhere you’re
comfortable.” Defendant chose the chair near the door. In doing so, he pointed to the
couch and stated, “If I sit in that I ain’t gonna get up.” Defendant was asked about
coffee, and coffee was provided. He was not handcuffed.
While awaiting the coffee, small talk, mostly initiated by defendant, ensued for a
few minutes between defendant and Noel. 7 During this time, the door was fully open.
Calkins and McNelis were not present. After a few minutes, McNelis brought defendant
coffee, Noel left to use the restroom and when defendant asked for cream, McNelis left to
look for some, leaving defendant in the room by himself with the door fully open.
When McNelis came back with cream, defendant asked, “who got my money?”
Calkins came in around that time. The two detectives respond, “Oh, it’s in the car,”
“Yeah. We got everything,” and, “It’s not going anywhere.” McNelis left. Calkins sat on
the couch. Calkins and defendant engaged in small talk, mostly about defendant’s
animals. The door remained fully open during this time. Noel came back in the room
during this time, and the door remained open. Small talk continued.
Shortly thereafter, McNelis returned. He shut the door, explaining to defendant
that he did that so they could hear. Defendant acknowledged by saying; “Yeah.”
McNelis took a seat out of view of the camera, on the side of the table adjacent to
defendant. Small talk continued, during which Calkins and McNelis asked about Ben,
one of the people residing on the property with defendant.
7 For example, defendant brought up the subject of his favorite part of the day being
early morning, his animals and a tavern he once ran.
8
McNelis then told defendant, “we appreciate you coming down here so we can …
[¶] … talk. I sure appreciate that.” Defendant responded, “I don’t know what for …”
and “I don’t know why you … couldn’t talk to me out there.” Calkins replied, “it’s just
too loud and too many people out there, you know?” To which, defendant responded,
“Oh.”8 Defendant’s demeanor as depicted in the video recording suggests he understood.
Calkins went on to say, “I like to sit down and be able to talk to you,” and further
explained, “We want to show you pictures and stuff like that.”
Noel joked about the way they had awoken defendant, and defendant
acknowledged hearing a helicopter and multiple people. Defendant said that instead of
the multiple deputies that had come to his property, one person would have been enough
because he was not dangerous. But then defendant acknowledged the deputies did not
know who was on the property. He implied he understood the need for the police
presence because his father had been a Highway Patrol officer and because of news
related to assaults and high speed chases he hears almost daily on the radio — “just all
kinds of bullshit.” He said he would not want to be a cop and added “it’s terrible.”
When Noel further explained the need for the number of deputies who arrived, saying
they “played it safe” because they did not know who might be on the property, defendant
responded, “ah, shit”9 and his demeanor suggests acknowledgment of what Noel was
saying.
Small talk ensued thereafter, including defendant making jokes the others laughed
at. When defendant mentioned having previously worked 20 years at a desk talking to
people on a phone and that he hates talking to people on the phone, Noel asked whether
8 The transcript says defendant responded, “No.” In our review of the recording, we hear
“Oh.”
9 The transcript says defendant responded, “Oh, shit.” We hear “ah, shit.”
9
he currently had a phone. Defendant, apparently joking said he had a phone “[b]ut
somebody stole it.”10 McNelis told him his phone was “in the car.”
Calkins, sitting on the couch in a relaxed posture with one leg crossed over the
other, then said, “Well, Don, you know you’re down here…and that you’re not under
arrest right now. You know that, right? We explained that to you out there.” Defendant
answered, “Yeah,” and nodded his head up and down. “And that you’re not under arrest
here right now, and … basically anytime you want to get up and go you can do that.
Okay? We can give you a ride back to Chico, okay? Defendant responded by nodding
his head down and up. It’s just stuff we want to talk about and we appreciate it if you’d
talk with us, okay?” Defendant replied, “Yeah, no problem,” again nodding affirmatively
and sipping coffee while he did so. Calkins then said, “So that’s—that’s why we’re
down here and, uh, we’re gonna go over everything and start hearing then about—about
what this is all about and, um, and—and go from there. So we just want to let you know
that you’re not under arrest and you—and you can go anytime you want. Okay?” Noel
said, “Right” and Calkins followed up with “Fair enough?” Defendant again sipped his
coffee and nodded his head up and down.
Noel said, “You were cuffed up briefly out there. As soon as everything got
secured, we knew you weren’t a threat and, you know, cut the cuffs off[,] you been-been
uncuffed and everything. . .” Defendant interjected, “What could a 72-year-old man do
against 20 or 30 guys?” McNelis said, “Exactly,” and “that’s why we took them off,
buddy.” Defendant then volunteered, “But . . . if I was mentally deranged” and then, as
an example talked about an unrelated incident he had observed involving the police
encountering a person with apparent mental health problems. He also mentioned hearing
stories from his father.
10 It appears defendant was joking, because he laughed when he said this.
10
After some additional small talk, defendant said, “So anyway, go ahead.”
McNelis told defendant, “we wanted to . . . clear some stuff up. . . and we need your —
your help and want to talk to you about some stuff and get your help so we can
understand some stuff. Calkins then said, “Yeah, That’s why we’re here. I mean, do
you have any idea why you’re here?” After defendant responded that he did not, Calkins
asked, “[has] anybody visited you on your property lately?” Defendant readily
responded, “Just . . . [R.J.] and his buddies.” Defendant was then asked questions
concerning his relationship with R.J. Defendant explained that R.J. had lived on the
property at one time. He explained that R.J. had stolen property from him and had a
reputation for stealing property from other people.
Thereafter, there was discussion about defendant’s encounter with R.J. and the
people who were with him the previous week when he came to the property. He said the
group, consisting of R.J. and a woman and two males, had asked him for gas. Defendant
said he told R.J. he would give him the gas, but he was not welcome there because he
stole property and he could not come back until he promised not to steal. Defendant said
he gave the group some gas and they drove off. Defendant said he thought R.J. thought
he was going to be able to stay on the property and had been taking things out of their
car.
Later, Calkins told defendant that R.J. was missing and nobody knew what had
happened to him. Defendant said his friend Eric, who sometimes stayed on the property,
had talked to R.J.’s mother and she had said R.J. was missing. Calkins told defendant,
“[T]hat’s the reason we’re up here is ‘cause nobody can find [R.J.] or the people he was
with. And the last place they were known to be headed was over to your property.
Calkins’s tone was conversational, and he was leaning back on the couch, almost
reclining, with his arms spread across the top of the couch and one leg crossed over the
other. Calkins, still in the same position and in the same conversational tone of voice
said, “And . . . this is the opportunity for you if . . . something happened up there. If
11
something went down. And now’s the time to tell us what happened.” Defendant
responded, “No. They got in their car and . . . drove off. You know.” Defendant denied
that the group had tried to steal from him. Calkins disparaged the group, saying they
were not “innocent kids,” they had criminal histories and the deputies knew R.J. had
stolen from people.
Thereafter, discussion focused on defendant’s friend Eric, his conversation with
R.J.’s mother about R.J. being missing, his connection to R.J., R.J.’s family, and the
neighbor and Eric’s connection to the property. Asked if anyone else was on the property
the day R.J. was there, defendant said Ben could have been there, but he was not sure.
Leaning back, with his hands resting on the back of his head, Calkins said they
had talked to people who said they heard gunshots that night. Defendant responded, “At
night?” His tone seemed to be one of surprise. Later, McNelis asked what type of guns
defendant owned and defendant said a .22 an “old 410.”
Later, asked if the CSI personnel would find blood on the property, defendant said
none that he knew of. Calkins, sitting stretched out, with one arm resting on the top of
the couch and the other on the arm, said, “I mean, you’re a real nice guy. You’re a real
smart guy. If something went down up there, you know we’re gonna find out about it
and I’d rather just hear the truth.” McNelis followed, “These are people that are up there
stealing stuff and, I mean, if something happened with one of them. . .” Calkins again
said, “They’re not innocent people.” Defendant responded, “No. It happened just like I
told you. I don’t — I can’t think of anything else.”
Noel suggested maybe “Ben[] [was] around someplace.” Defendant
acknowledged Ben could have been there but said he did not think Ben knew them.
Thereafter, there were more questions about Ben. McNelis asked if defendant wanted
more coffee and he and Calkins left. A few minutes later, McNelis returned with coffee
and resumed his seat. He joined in the conversation, asking about Ben, and when Ben
had last been on the property. McNelis then returned to questions about defendant’s
12
encounter with R.J. and the people in his group. Defendant mentioned they had brought
some things in and he helped them load them back into their car. The conversation then
again turned to other people, including Ben, Eric and the neighbor. Calkins returned to
the room a few minutes later.
Shortly after Calkins came back in, he asked defendant about a blood stain he
noticed on defendant’s pants. Defendant explained he had had a bloody nose and agreed
to let the deputies collect a sample, saying “that’s my blood.”
McNelis told defendant there were surveillance cameras in the area and those
cameras had only showed three people in the victims’ car, not four people as defendant
had said. Defendant said he did not know where the fourth person had been picked up.
He said they were on their way to buy marijuana and the fourth person talked like a local.
Later, Calkins asked whether Ben had “do[ne] something to these people” and
asked whether Ben had any guns. Defendant said he was unsure Ben even knew R.J.
Later, McNelis told defendant that deputies were on the property and asked
defendant whether they would find anything. Calkins, leaning back on the sofa with his
leg crossed, said, “We’re not trying to railroad you, Don. We just want the story. We
want to understand it.” Defendant responded he had told them what he knew. Calkins
responded, “No more to it, huh?” and defendant said, “I can’t think of anything.”
Thereafter, there was additional discussion about other people, including the
neighbor, Ben, and whether Eric was there that night. Around this time, Calkins left the
room. They also asked defendant about phone conversations he might have had that
night, including with Eric, and defendant volunteered that the deputies could check his
phone. When Calkins returned, they were still talking about other people.
After discussion about other people, McNelis asked if defendant knew about
DNA. Defendant said he did. McNelis asked if defendant went into R.J.’s car, and
defendant said he did. Defendant said he went into the back seat to get a BB gun. He
13
also said he had been in the front seat and trunk. Calkins left the room to answer a phone
call.
With Calkins still out of the room, McNelis said they had recovered a lot of DNA
throughout the car. Defendant said he was “helping them pack stuff,” and then he got the
BB gun. McNelis told defendant in a conversational tone: “Don, you’re a nice enough
guy. Likable guy. Very polite with us. I don’t have anything against you. You’re up
there doing your thing. You’re respectful. You’re polite to me. Had a nice conversation.
And it just . . . And, you know, sometimes things happen. And, things happen, and you
know, these people were up there thieving your shit. Things happen. You know that.
And I know that, too. And I’m not accusing you of being a bad person or anything. I
need to know the truth about that. You know, these people steal your shit, they come on
your property, you know, I know it’s hard. I know you probably want to tell me, but it’s
hard. Some shit went down, Don. Keeping it real, something happened.” Defendant
responded, “I don’t know anything else I can tell you.” McNelis responded, “We’ll let
you think about it for a second, okay? Let me get you some more coffee, and let you
think about it for a second.” As McNelis left the room, defendant asked for some more
sweetener as well.
Noel remained in the room, sitting back on the couch. Defendant said he knew
they did not believe him, and Noel told defendant, “it’s not necessarily that we don’t
believe you. . . . one and one equals two. And two plus one equals three . . . and right
now we’re having difficulty adding all the numbers and . . . trying to figure it out.” Noel
continued, “And right before they got to your property this last time they’ve been seen.
And we know that the car that they were in is found a few hours later burned with three
dead bodies in it.”
Around this time McNelis and Calkins came back in momentarily. McNelis
confirmed defendant still wanted coffee and the two detectives left the room. Noel
continued, saying they had to figure out what happened and hoped defendant “could fill
14
in some of those blanks for us so that stuff would add up.” He went on to say they had
heard about people hanging out the neighbor’s house.
Around this time McNelis and Calkins and returned and resumed their seats,
closing the door after they entered. McNelis asked defendant about another person.
McNelis then asked defendant why some of R.J.’s “stuff” was still on his property.
Defendant said he did not know.
Calkins, leaning forward asked in a conversational tone, “did you shoot them,
Don?” Defendant responded, “No. No, I didn’t.” Calkins then asked, “Do you know
who did? Defendant responded, “No,” and followed up with “I didn’t know they were
shot.” McNelis then said, “Don. This isn’t gonna go away, okay.” 11 Defendant
responded, “I realize that, but I . . .”12
McNelis remained and suggested to defendant that the group was trying to steal
from defendant and explained that law enforcement often responds to robberies where the
person who is being robbed shoots the robbers. Around this time Calkins and Noel left
the room. McNelis went on to say, “What I don’t understand is after this went down and
there’s three of them, and there’s one of you, and you’re an old man. Why didn’t you
just call us . . . I don’t understand why you didn’t just call us. It — it’s okay. Don[,] Just
tell me the truth. You’re not a bad person. I just don’t understand why you guys didn’t
call. Something went down, and I just don’t — I know. Your DNA . . . ”13 McNelis’s
11The transcript says: “Don. This isn’t gonna go right. Okay?” We hear: “This isn’t
gonna go away, okay.”
The transcript says defendant responded: “I know you don’t understand, but I . . .”
12
We hear: “I realize that, but I . . .”
13The transcript indicates Noel said the last four sentences in this quote. That is not
accurate; he and Calkins were not in the room at the time. McNelis said this.
15
tone remained conversational. Defendant interrupted, saying they “were being nice” and
he did not feel he was in danger.
Calkins and Noel reentered about a minute after leaving and Calkins took a seat
off camera apparently next to McNelis. McNelis said, “Don, just tell us what
happened.” Calkins said, still in a conversational tone, “You’re not a bad guy, Don, we
know that. But something happened. You got put in the position where you had — what
happened.” McNelis said, also in a conversational tone, “There’s stuff at your house.
They’re finding stuff as I speak.” Calkins said, “Get it off your chest, man.” McNelis
followed up, “Just put it out here, Don.” McNelis told defendant, “Don, you drove their
car. I didn’t just show up at your house today, Don. You were — you were in their car.
I mean, you were in their car. You put stuff in their car.” McNelis’s tone changed
slightly, but while it was pointed, it was still conversational. Defendant said, “yeah.”
McNelis followed up with, “I understand you’re not telling me all the information but
we’ve done our homework. You were in their car. Weren’t you?” Defendant replied, “I
said I was. I said I was.” Calkins, in a conversational voice said, “Don, I think you feel
bad about what happened.” Noel, in a conversational tone said the numbers were not
adding up and that there were pieces missing. He said they knew R.J.’s group was going
to defendant’s place.
After telling defendant there were video surveillance cameras owned by marijuana
growers and law enforcement in the area, McNelis said they knew only three people were
in R.J.’s car. He said they knew what cars defendant had driven. McNelis said
something happened and “You’re not telling me the truth.” Calkins, said, “Let’s just start
over, Don, and just — and just start over with the truth. Okay?” McNelis followed with,
“Please, Don” and told defendant his DNA was “all over that car.” Calkins said, “So
16
they show up on your property” and then asked, “How many people show up, Don? 14
McNelis said, “It’s on the steering wheel, the back seat, the front seat. So, please,
Don.”15 The tone remained conversational throughout this time, although McNelis’s
statement “please, Don” sounds like begging. Calkins asked again, “How many people
show up, Don?” Defendant took a sip of coffee and replied, “Okay. Three.” McNelis
said, “Okay, thank you.”
McNelis asked, “Did they try to rob you? What did they do? Defendant
explained, “[R.J.] got smart with me and he got me. . . . And I had the shotgun.” McNelis
asked where defendant shot R.J. and defendant said it happened down by the trailer and
the other two were shot at the same location. Calkins asked, “What’d they do?”
Defendant said, “[R.J.] grabbed the gun and I pulled it away from him and the gun went
off.” McNelis asked, “Why’d you shoot the other two afterwards?” Defendant
responded, “[T]he other guy picked up . . . a BB gun and was coming at me like he was
gonna hit me with it and swinging. Just swinging . . . you know. And so I shot him. And
then the girl come at me with a knife and I shot her.” Calkins asked if he felt bad and
defendant said he did, explaining, “I don’t wanna kill anybody. You know? . . . I didn’t
intend to kill them. But it happened.”
Defendant volunteered that he hid the shotgun he used in a storage unit in town.
He also volunteered to give the detectives the keys and take them to it.
Later, when asked what time this had happened, defendant said sometime after 12
noon, and stated, “And [R.J.] had . . . all this stuff. And they each had packs, and bags of
stuff. And quite a bit of stuff. And . . . so . . . I told him, ‘You’re not wanted here.’ I
said “You stole from me. You stole from [the neighbor]. You stole from everybody that
14 The transcript indicates McNelis asked this question, but it was Calkins.
15 The transcript indicates Noel said this, but it was McNelis.
17
you come into contact with.’ And he said. . . . ‘Well, I’m staying’ And I says, ‘No,
you’re not.’ And so I went and got the shotgun because I figured I can scare him off.
And that’s all I wanted to do was scare him off. I didn’t want to hurt nobody, you know?
And . . . he — I guess I wasn’t paying attention, but he grabbed the gun and I pulled it
out. And when I pulled it out it went off.” And the other male “picked up the — the BB
gun and was . . . swinging at me” and the woman came at defendant with a knife.
Discussion thereafter turned to other details, including what defendant did after the
shooting and burning the car.
Later, McNelis asked defendant if he would be willing to go up to where he
burned the car. Defendant replied: “Yeah, I guess.” Calkins said, “I know it’s a lot.”
Defendant replied, “I don’t have any choice,” and chuckled. Noel said it’s up to you,
and defendant said, “I’ll cooperate . . . with you as best I can.” He added, “Because . . .
you know, I got caught in a position that was . . . just self-defense and I got scared. You
know?” Later, when McNelis asked defendant about doing a walk through at his
property defendant agreed, stating, “I want you to understand.” Later, he again
explained, “I just got caught . . . in a situation and I was scared.”
Towards the end of the interview, McNelis indicated they were ready to go and
gave defendant the Miranda advisement, defendant said he understood each right, and
said “no problem” when asked whether he was willing talk to them. Defendant then said
“it’s something that happened. I didn’t want it to happen. I feel bad about it, but I can’t
control it,” adding, “like I say, I was scared.” Defendant was not handcuffed when they
later left the room.
What happened after the interview at the Sheriff’s facility was not developed
during the suppression hearing. Based on the trial record, following the interview at the
Sheriff’s facility, defendant showed the detectives where the shootings took place at the
property where he was residing. Their conversation was video-recorded and shown to the
jury at trial. Defendant then showed the detectives the airport storage unit where he hid
18
items related to the shooting. This conversation was also video-recorded and shown to
the jury at trial. Finally, defendant accompanied the detectives to the scene where the car
was burned, which was about eight or nine miles from the property where defendant
resided. This conversation was also video-recorded and shown to the jury at trial. They
discussed the events that took place at each of these locations. The record of the
suppression hearing does not reveal when defendant was placed under arrest.
C. Miranda and Custody Principles
An interrogation is custodial for Miranda purposes, “when ‘a person has been
taken into custody or otherwise deprived of his freedom of action in any significant way.’
[Citation.] Custody consists of a formal arrest or a restraint on freedom of movement of
the degree associated with a formal arrest. [Citation.] When there has been no formal
arrest, the question is how a reasonable person in the defendant’s position would have
understood his situation.” (People v. Moore (2011) 51 Cal.4th 386, 394-395 (Moore).)
The question to be resolved is “would a reasonable person in the suspect’s position
during the interrogation experience a restraint on his or her freedom of movement to the
degree normally associated with a formal arrest[?]” (People v. Bejasa (2012) 205
Cal.App.4th 26, 35 (Bejasa); Aguilera, supra, 51 Cal.App.4th at p. 1161.) “[W]e accept
the trial court’s findings of historical fact if supported by substantial evidence but
independently determine whether the interrogation was ‘custodial.’ ” (Aguilera, at
p. 1161.) We have done that here, based on the testimony developed at the Miranda
hearing and our review of the video recorded interview.
As defendant notes, the court in Aguilera, identified factors courts should consider
in determining the question of custody from the perspective of a reasonable person: “[1]
whether contact with law enforcement was initiated by the police or the person
interrogated, and if by the police, [2] whether the person voluntarily agreed to an
interview; [3] whether the express purpose of the interview was to question the person as
a witness or a suspect; [4]where the interview took place; [5] whether police informed the
19
person that he or she was under arrest or in custody; [6] 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; [7] whether there were
restrictions on the person’s freedom of movement during the interview; [8] how long the
interrogation lasted; [9] how many police officers participated; [10] whether they
dominated and controlled the course of the interrogation; [11] whether they manifested a
belief that the person was culpable and they had evidence to prove it; [12] whether the
police were aggressive, confrontational, and/or accusatory; [13] whether the police used
interrogation techniques to pressure the suspect; and [14] whether the person was arrested
at the end of the interrogation.” (Aguilera, supra, 51 Cal.App.4th at p. 1162.)
As the Aguilera court emphasized, “[n]o one factor is dispositive. Rather, we look
at the interplay and combined effect of all the circumstances to determine whether on
balance they created a coercive atmosphere such that a reasonable person would have
experienced a restraint tantamount to an arrest.” (Aguilera, supra, 51 Cal.App.4th at
p. 1162, italics added.)
D. Analysis
We conclude the trial court correctly found that defendant was not in Miranda
custody during the recorded interview at the Sheriff’s facility. There was no formal
arrest and looking at “the interplay and combined effect of all the circumstances,” we
conclude that “on balance they [did not create] a coercive atmosphere such that a
reasonable person would have experienced a restraint tantamount to an arrest.”
(Aguilera, supra, 51 Cal.App.4th at p. 1162.)
Looking to the Aguilera factors, we note the following: defendant voluntarily
agreed to an interview and voluntarily accompanied the detectives to the Sheriff’s
facility; contrary to defendant’s assertion, there was no “express purpose to interview
defendant as a suspect,” the detectives asked about a number of other people during the
20
interview and even asked defendant if he knew who shot the victims16; defendant was
never told he was under arrest; rather, he was told he was free to terminate the interview
and leave at any time and his conduct indicated an awareness of his ability to do so; the
detectives were not at all aggressive during the interview; the officer ratio was three to
one, but we find this insignificant given the conversational tone of the interview 17; and as
far as we can tell, defendant was not arrested until some point after the interview at the
sheriff’s facility took place. We discuss pertinent circumstances in more detail below
that demonstrate a reasonable person would not have “experienced a restraint tantamount
to an arrest.” (Aguilera, supra, 51 Cal.App.4th at p. 1162.)
16 This case is unlike People v. Saldana (2018) 19 Cal.App.5th 432 (Saldana), where
prior to the interview of the defendant about crimes of child sexual molestation, the
investigators had already interviewed all of the witnesses and victims and thus knew
about defendant’s culpability. Based on this, the court concluded: “the sole purpose of
the questioning was to obtain a confession.” (Id. at p. 456.) Here, while the detectives
thought something happened on the property, they did not know who was culpable or
who might simply have information about who was culpable. And a plausible scenario,
based on the record before us, was that R.J. and the people he was with came to the
property to steal. Moreover, although the detectives indicated they thought defendant had
information, they never expressly communicated to defendant that he was a suspect. As
to this, it is important to note that the United States Supreme Court stated some 27 years
ago: “We hold, not for the first time, that an officer’s subjective and undisclosed view
concerning whether the person being interrogated is a suspect is irrelevant to the
assessment whether the person is in custody.” (Stansbury v. California (1994) 511 U.S.
318, 319 [128 L.Ed.2d 293.)
17 Defendant asserts the detectives dominated the interview. The Aguilera court did cite
as a circumstance to consider “whether [the investigators] dominated and controlled the
course of the interrogation,” but this circumstance seems more pertinent where the tone is
aggressive and pressuring. In all interviews, the detectives will dominate and control the
course of the interview simply because they will be asking the questions and thereby
controlling the topics of conversation. In any event, we note that during the interview
here there were several times the detectives let defendant talk and joke about things that
were off topic.
21
1. The Initial Detention
Defendant makes much of the fact he was detained and placed into handcuffs at
his home. But this circumstance does not necessarily mean he was in custody for
purposes of Miranda when he gave the later statement at the Sheriff’s facility, attenuated
from the original detention. Indeed, courts have found circumstances to be noncustodial
when there is even less attenuation.
For example, in In re Joseph R. (1998) 65 Cal.App.4th 954 (Joseph R.), a CHP
officer, investigating a rock throwing incident perpetrated by juveniles showed up at the
minor’s house to investigate. The officer told the minor he did not have to talk, but
wanted to ask a few questions about the incident. (Id. at p. 957.) Thereafter, he told the
minor a witness had seen him throw the rock. (Ibid.) When the minor denied
involvement, the officer placed the minor in handcuffs and detained him in the back of
his patrol vehicle for about five minutes. (Ibid.) The officer then took the minor out of
the car, removed the handcuffs, and began asking him questions about the incident. The
questioning began with the officer telling the minor that was “ ‘a pretty stupid thing’ ” to
throw rocks at a bus and the minor made admissions, first agreeing with the officer’s
characterization of his conduct being stupid. (Ibid.) The Joseph R. court held that the
minor was not in Miranda custody at the time he made the incriminating response,
reasoning: “[the questions] were only put to [the minor] after he was released from the
police car and the handcuffs were removed. Moreover, the restraints were applied only
briefly—for five minutes—before questioning began. Never, during his contact with the
officer, was [the minor] told he was under arrest or that he would be placed under arrest
unless he cooperated with the officer’s investigation. On the contrary, he was told he was
under no obligation to answer any of the officer’s questions.” (Ibid.; see also People v.
Thomas (2011) 51 Cal.4th 449, 477-478 [citing Joseph R. with approval on this point].)
Here, during the search of the property where defendant resided, defendant was
handcuffed, but only briefly — five minutes — before being released. And he was not
22
questioned while handcuffed. As in Joseph R., there is no evidence indicating he was
told he was under arrest or that he would be placed under arrest unless he cooperated with
the investigation. (See Joseph R., supra, 65 Cal.App.4th at p. 957.) To the contrary,
once the handcuffs were removed, McNelis explicitly told defendant he was not under
arrest and he was free to leave.
Later, during the interview at the Sherriff’s facility, defendant was told why he
had been handcuffed — essentially that it had nothing to do with him, but rather it was
done for officer safety. A reasonable person after hearing this explanation would
understand the brief handcuffing did not signal an arrest. Indeed, defendant
acknowledged the need for the large police presence at his property and his detention,
volunteering that the deputies did not know who was on the property, suggesting that
they did not know whether there was a mentally disturbed person there and further
implying knowledge of why he had been temporarily detained based on his father having
been a CHP officer and stories he had told defendant.
We also find it significant that the restraints were never reapplied during the
interview. This circumstance would signal to a reasonable person that not only did the
original handcuffing have nothing to do with arrest, but also that while he remained
uncuffed, no similar restriction on his freedom was taking place.
2. The Environment Where the Interview Took Place
We begin here with an observation another panel of this court recently made:
“The fact that an interrogation occurred at the police station does not, by itself, render the
interrogation custodial.” (People v. Potter (2021) 66 Cal.App.5th 528, 540 (Potter).)
Defendant asserts that the room he was in was a “small,” implying that this
circumstance suggests custody. In our view, from a reasonable person’s perspective, the
room had the appearance of a break room. Furnished with a couch, table and chairs, the
room was large enough for four men to sit comfortably for two hours. It was not a
windowless interview room. It had a glass window in the top half of the door allowing
23
people inside to look out and people in the hallway to look in. The room was not
imposing or isolating.
Defendant argues that they went through doors at the Sheriff’s facility to get to the
interview room. But here, the evidence is that the two doors they went through were
unlocked for people leaving the area where the interview took place. Moreover, our high
court has recognized, even when an interview room is in a secure area of a police facility
that circumstance does not necessarily require a finding of custody. (People v. Ochoa
(1998) 19 Cal.4th 353, 403 [where defendant driven to the police facility in a police
vehicle]; see also Potter, supra, 66 Cal.App.5th at p. 540 [where defendant came to the
police facility on his own].)
Defendant was made to feel comfortable and provided coffee throughout the
interview. The detectives were accommodating, making sure to find him cream and
sweetener.
We do not find the environment where defendant was interviewed to be coercive
or to be one where a reasonable person would have “experienced a restraint tantamount to
an arrest.” (Aguilera, supra, 51 Cal.App.4th at p. 1162.)
3. The Initial Entry into the Room and Early Part of the Interview
When defendant first came into the room, he asked where they wanted him to sit
and was told anywhere he felt comfortable. Defendant picked the seat he wanted. This
circumstance cuts against a finding of Miranda custody.
For the first six minutes, the door was left fully open. And for a little over a
minute, defendant was left in the room alone with the door fully open while McNelis
went to get cream for the coffee defendant sipped while waiting. Leaving the door open
would communicate to a reasonable person that the earlier restraint at his residence was
not an arrest and he was not then in custody as he sat in the interview room; rather, a
reasonable person would feel he was free to leave, just as defendant had been told before
leaving his residence.
24
When the door was closed, defendant was told it was so they could hear.
Defendant’s response and demeanor as depicted in the video recording suggests he
believed McNelis when he said that. Again, the glass window allowed defendant to see
outside and allowed other people to look in. Even with the door closed, the environment
was not isolating or coercive. And, as noted, anyone in the room would have noticed that
the door was not locked as no manipulation of the doorknob was necessary as people left
the room. Under the circumstances, we conclude the fact the door was closed throughout
the interview did not signal custody.
4. What Defendant was Told about His Status
At the scene, McNelis told defendant he was not under arrest and was free to
leave. Defendant nevertheless agreed to accompany the detectives to the Sherriff’s
facility for an interview.
At the facility, what he had been told about being free to leave was reenforced.
Three times he was told he was not under arrest and free to leave: “Well, Don, you know
you’re down here . . . and that you’re not under arrest right now. You know that, right?”;
“you’re not under arrest . . . anytime you want to get up and go you can do that”; and
“you’re not under arrest and you . . . can go anytime you want. Okay?” Each time,
defendant responded affirmatively: “Yeah”; “Yeah, no problem”; “Right,” and nodded
affirmatively.
Defendant makes much of the 50 minute drive and the offer to take him back to
“Chico” as opposed to an express offer to take him home. But there is no indication
defendant took it to mean he would only be driven to Chico and not his residence if he
chose to leave. Nor is there anything to suggest a reasonable person familiar with the
area would believe a statement to take him back to Chico was not the same as saying they
would take him home. Indeed, while defendant lived in a rural area, both his motion to
suppress and the criminal complaint provided the address of his rural property, listing
Chico as the city.
25
Here, from the time defendant was told he was free to go, to the time he admitted
killing the victims in self-defense and then later Mirandized, neither the detectives nor the
deputy district attorney did anything that would cause a reasonable person “to experience
a restraint on his . . . freedom of movement to the degree normally associated with a
formal arrest.” (Bejasa, supra, 205 Cal.App.4th at p. 35; Aguilera, supra, 51 Cal.App.4th
at p. 1161.)
5. Defendant’s Money and Phone
Defendant asserts that his money and phone were “taken” from him and thus, he
was not free to leave. There is no evidence in the record that defendant’s money was
taken from him. When defendant asked about the whereabouts of his money, McNelis
told defendant his money was in the car and “It’s not going anywhere.” As for his phone,
there was only defendant’s apparent joke that it had been stolen from him. 18 McNelis
told him his phone was “in the car.” Based on this testimony, the inference to be drawn
is the money and phone were merely left in the car. This circumstance actually cuts
against a finding of Miranda custody. If the items had been brought inside to some
location to which defendant did not have access, that likely would have signaled to a
reasonable person that he was there to stay and not free to leave. Instead, because these
items were left in the car, that circumstance signaled that if defendant decided to leave
and take the detectives up on the offer to drive him back to Chico, those items would be
18 At oral argument, appellate counsel argued that defendant’s phone and money was
“seized” from him, but there is no evidentiary support for this claim. Counsel also
represented that defendant “complained” about his phone being taken from him. There is
no evidentiary support for that representation. As we have noted, the subject of
defendant’s phone first came up after defendant said he had worked at a desk job for 20
years where he was on the phone all the time and that he hated talking on the phone.
Noel asked defendant if he had a phone and defendant made an apparent joke that
someone had stolen it. (See fn. 10, ante.) Defendant never “complained” about his
phone being taken.
26
waiting for him in the vehicle. (Cf. People v. Delgado (2018) 27 Cal.App.5th 1092, 1105
[defendant in custody where he was told he was free to leave but an officer demanded
access to his cell phone before allowing him to leave].)
6. Nature of the Questioning
We agree with the trial court that the tone of the interview was conversational
throughout. Similar to our high court’s observation in Moore, supra, 51 Cal.4th 386,
“For a substantial period . . . the questioning did not convey any suspicion of defendant
or skepticism about his statements. [¶] After a while, to be sure, the detectives
interjected some more accusatory and skeptical questions.” (Id. at p. 402.) But as our
high court noted in Moore, “Miranda warnings are not required ‘simply because the
questioning takes place in the station house, or because the questioned person is one
whom the police suspect.’ [Citation.] While the nature of the police questioning is
relevant to the custody question, police expressions of suspicion, with no other evidence
of a restraint on the person’s freedom of movement, are not necessarily sufficient to
convert voluntary presence at an interview into custody.” (Ibid; see also Potter, supra,
66 Cal.App.5th at p. 541.)
In many cases, when the police engage in accusatory questioning, rejection of
denials and confrontation with evidence, this circumstance cuts in favor of a
determination of custody (at least from that point on). (See Saldana, supra, 19
Cal.App.5th at pp. 457-458 [“Where. . . police indicate to the defendant their resolute
belief he committed the crime, the custody inquiry becomes whether a reasonable person
in the defendant’s situation—i.e., having been told by the police that they know he
committed the crime—would think he was free to break off the interview and leave”].)
But that is not the case here. Even when the detectives confronted defendant with
evidence, they maintained their conversational demeanor. And thematically, they did not
accuse defendant of a crime; rather they suggested the victims had committed a crime
against him, and their statements to defendant focused on an innocent or legally
27
justifiable explanation for why he may have killed the victims. The detectives disparaged
the victims, implied they thought the victims had tried to rob defendant and that anything
defendant did would have been justified. At one point, McNelis seemed to beg defendant
to tell them what happened: “Please, Don.” A reasonable person in defendant’s position,
under these circumstances, would have felt the detectives were treating him as a victim,
not a suspect, and not experienced a restraint tantamount to an arrest.
Nor did the nature of defendant’s statements tip the scales. When a person
confesses to a crime, that circumstance in some situations might cause a reasonable
person to conclude his noncustodial status has changed. But here, defendant did not
confess to a crime regarding the victims. He said he acted in self-defense — he acted
because he was scared and had been attacked. Under the circumstances of this case,
given the exculpatory nature of defendant’s statements, we conclude that even after he
made these statements, a reasonable person would not have experienced a restraint
tantamount to an arrest. Indeed, after the interview was concluded, defendant was not
handcuffed, was not immediately advised he was under arrest, and instead he was taken
to Starbucks for food. 19
7. Conclusion
In sum, looking at the interplay and combined effect of the totality of the
circumstances, we conclude that, on balance, those circumstances did not create a
coercive atmosphere such that a reasonable person in defendant’s position would have
experienced a restraint on his freedom of movement to the degree normally associated
19 We reject defendant’s assertion in his briefing that the detectives “maintained custody
of defendant” after the interview. There was no evidence presented at the Miranda
hearing indicating they exerted any physical restraint on defendant after the interview at
the Sheriff’s facility.
28
with a formal arrest. (Bejasa, supra, 205 Cal.App.4th at p. 35; Aguilera, supra, 51
Cal.App.4th at pp. 1161, 1162.) Defendant’s contention thus fails. 20
DISPOSITION
The judgment is affirmed.
/s/
MURRAY, J.
We concur:
/s/
HULL, Acting P. J.
/s/
RENNER, J.
20 Having concluded the interrogation resulting in defendant’s confession was
noncustodial, we need not address defendant’s second contention that his post-Miranda
statements made after they left the Sheriff’s facility must be suppressed based on the
prior failure to provide a Miranda warning before the earlier statements were made.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
29