Filed 3/28/13 P. v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054132
v. (Super.Ct.No. RIF149879)
VICTOR LOPEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Graham Anderson
Cribbs, Judge. Affirmed.
Ellise R. Nicholson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Alana Cohen Butler and James D.
Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant Victor Lopez guilty of receiving stolen
property. (Pen. Code, § 496, subd. (a).) Defendant was thereafter sentenced to two years
in state prison with credit for time served. On appeal, defendant contends that the trial
court erred in denying his motion to suppress his in-custody statements to the police in
violation of his Miranda1 rights. We reject this contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 5, 2008, around 1:45 p.m., when the victim returned to her home,
she discovered her home had been ransacked and burglarized. Among other items, all of
her jewelry that was in her master bedroom had been stolen, including a diamond
horseshoe gold nugget ring valued at $3,000. The ring was later located about 11 miles
from her home at a coin shop.
The owner of the coin shop buys coins, jewelry, and other items for resale. When
he purchases an item from an individual, he verifies the seller’s photo identification and
fills out a California Department of Justice mandated form. The form contains the
seller’s driver’s license number, thumbprint, height, weight, date of birth, and address, as
well as an itemization of the personal property sold to the business.
On November 7, 2008, defendant sold seven pieces of jewelry, including the
stolen horseshoe gold ring, to the coin shop owner for a total price of $202. The price
was derived from the total weight in gold of the seven items. A sheriff’s department
fingerprint technician testified that defendant’s known fingerprint card, which was on file
1 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2
with the state’s fingerprint database (the CAL-ID system), matched the thumbprint on the
coin shop transaction form.
On November 18, 2008, Sergeant Mooney was contacted by the coin shop owner
about the stolen gold ring. Sergeant Mooney went to the coin shop, reviewed and
photographed the ring, and spoke with the victim and the coin shop owner. After
obtaining defendant’s address, the sergeant went to defendant’s address, but defendant
was not there.
On November 26, 2008, Sergeant Mooney and his partner located defendant and
conducted a taped interview.2 Defendant denied any involvement in the burglary of the
residence, but admitted buying the horseshoe ring for $30 from a guy across the street
from the coin shop and then selling it along with his own jewelry because he needed
money. He initially said that he did not know about the burglary and did not think the
ring was stolen. Later, defendant admitted that he knew the ring was real gold, and
asserted that he thought maybe the ring was stolen. Defendant then stated, “Yeah, yeah,
yeah, it was stolen, but I’m saying it didn’t fit me, either.”
DISCUSSION
During trial, defendant requested a foundation hearing as to the introduction of his
statements to Sergeant Mooney, claiming a Miranda violation. After the jury was
excused, Sergeant Mooney testified that prior to interviewing defendant, he read
2
The taped interview was played for the jury, and a transcription of the interview
was admitted into evidence.
3
defendant his Miranda rights from a card; and that defendant had agreed to speak with
him. The following colloquy occurred between defendant and Sergeant Mooney:
“MOONEY: Having these rights in mind, do you, will you talk to me and answer
some questions I have —
“[DEFENDANT]: Well —
“MOONEY: — of you?
“[DEFENDANT]: No.
“MOONEY: You don’t want to talk to me?
“[DEFENDANT]: No, uh, what did you say?
“MOONEY: I said having those rights in mind –
“[DEFENDANT]: Oh, Okay . . .
“MOONEY: Understanding those rights, will you talk to me if, if I, about, answer
some questions I have?
“[DEFENDANT]: Yeah.”
In response to defense counsel’s question, “But we just heard the tape and
[defendant] did say ‘No,’” Sergeant Mooney explained, “He—he looked like he was—
didn’t fully understand, and so that is why I repeated it to him.” Defendant subsequently
answered Sergeant Mooney’s questions about the offense; and at no time in the 27
minutes, 37 seconds interview did defendant invoke his right to counsel or his right to
remain silent.
After the trial court heard the pertinent part of the interview, defense counsel
submitted without argument. The trial court concluded that defendant’s Miranda rights
4
were not violated, finding that “the record is very clear that the admonition was given to
[defendant]; he indicated that ultimately he did understand in having those rights in mind,
that he did in fact wish to go ahead and talk to the interrogators.”
Defendant contends that the trial court erred in denying his motion to suppress his
in-custody statements because Sergeant Mooney did not honor his unambiguous
invocation of his right to remain silent and, therefore, his subsequent confession was
involuntary.
When reviewing a trial court’s decision denying a motion to suppress statements
purportedly obtained in violation of the defendant’s Fifth Amendment rights, we defer to
the court’s resolution of disputed facts if supported by substantial evidence. (People v.
Smith (2007) 40 Cal.4th 483, 502; People v. Stansbury (1995) 9 Cal.4th 824, 831.) Based
on those facts, as found, and the undisputed facts, we independently review the trial
court’s legal rulings. (Smith, at p. 502; People v. Weaver (2001) 26 Cal.4th 876, 918.)
“As a prophylactic safeguard to protect a suspect’s Fifth Amendment privilege
against self-incrimination, the United States Supreme Court, in Miranda, required law
enforcement agencies to advise a suspect, before any custodial law enforcement
questioning, that ‘he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires.’” (People v. Martinez (2010) 47 Cal.4th 911, 947 (Martinez), quoting
Miranda, supra, 384 U.S. at p. 479.) Once a suspect invokes his right to remain silent,
law enforcement must “‘scrupulously honor[ ]’” the invocation and cease questioning
5
him or her. (Michigan v. Mosley (1975) 423 U.S. 96, 103; accord, Berghuis v. Thompkins
(2010) ___ U.S. ___ [130 S.Ct. 2250, 2259] (Berghuis).)
The invocation of the right to remain silent, like the invocation of the right to
counsel, must be both unambiguous and unequivocal. (Berghuis, supra, 130 S.Ct. at
p. 2259; Martinez, supra, 47 Cal.4th at pp. 947-948.) As the United States Supreme
Court explained, “There is good reason to require an accused who wants to invoke his or
her right to remain silent to do so unambiguously. A requirement of an unambiguous
invocation of Miranda rights results in an objective inquiry that ‘avoid[s] difficulties of
proof and . . . provide[s] guidance to officers’ on how to proceed in the face of ambiguity.
[Citation.] If an ambiguous act, omission, or statement could require police to end the
interrogation, police would be required to make difficult decisions about an accused’s
unclear intent and face the consequence of suppression ‘if they guess wrong.’ [Citation.]
Suppression of a voluntary confession in these circumstances would place a significant
burden on society’s interest in prosecuting criminal activity. [Citations.] Treating an
ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights
‘might add marginally to Miranda’s goal of dispelling the compulsion inherent in
custodial interrogation.’ [Citation.] But, ‘as Miranda holds, full comprehension of the
rights to remain silent and request an attorney are sufficient to dispel whatever coercion is
inherent in the interrogation process.’” (Berghuis, at p. 2260; accord, Martinez, at
pp. 947-948 [“‘[i]n order to invoke the Fifth Amendment privilege after it has been
waived, and in order to halt police questioning after it has begun, the suspect “must
unambiguously” assert his right to silence’”]; People v. Stitely (2005) 35 Cal.4th 514, 535
6
[“It is not enough for a reasonable police officer to understand that the suspect might be
invoking his right. [Citation.] Faced with an ambiguous or equivocal statement, law
enforcement officers are not required . . . either to ask clarifying questions or to cease
questioning altogether”].)
Defendant contends he unambiguously invoked his right to remain silent when, in
response to Sergeant Mooney’s question, “Having these rights in mind, do you, will you
talk to me and answer some questions I have—” he said, “No.”3 We disagree. The
record shows that before the sergeant completed his compound question, defendant
interjected with “Well.” This support’s Sergeant Mooney’s testimony that defendant
appeared like he did not completely understand his rights or questions and, therefore,
repeated them. Following defendant’s “No,” response, Sergeant Mooney asked
defendant, “You don’t want to talk to me?” Defendant responded with, “No, uh, what
did you say?” After the sergeant repeated, “having those rights in mind” and
“[u]nderstanding those rights, will you talk to me,” defendant stated, “Oh, okay” and
“Yeah.” The record supports the trial court’s finding that defendant was momentarily
confused or did not fully understand Sergeant Mooney’s question rather than an
unambiguous invocation of the right to remain silent. (See People v. Stitely, supra, 35
3 Defendant asserts exclusively a Fifth Amendment challenge in accordance with
Miranda, supra, 384 U.S. 436, and does not argue (nor did he argue to the trial court) that
his confession was coerced in violation of his federal due process rights. (See, e.g.,
Dickerson v. United States (2000) 530 U.S. 428, 433-434 [admission at trial of a
defendant’s statements made involuntarily to government officials violates defendant’s
due process rights].) Accordingly, we do not consider that question.
7
Cal.4th at p. 535 [if the request is ambiguous, the officer may ask clarifying questions to
understand the defendant’s request].)
Indeed, courts have found ambiguity in statements such as “‘I think it’s about time
for me to stop talking’” (People v. Stitely, supra, 35 Cal.4th at p. 535) or “‘I’m not going
to answer any of your fucking questions’” and “‘Fuck this, I’m not staying here
anymore.’” (People v. Farnam (2002) 28 Cal.4th 107, 181.) The statements should be
interpreted in the context in which they were made based on the totality of the
circumstances. (Ibid.)
We find no constitutional violation here. When viewed in context, Sergeant
Mooney reasonably could have interpreted defendant’s “No” and “Well” responses as
defendant not fully understanding Sergeant Mooney’s question. Defendant’s statement
was not an unambiguous invocation of his right to be silent.
Nor can Sergeant Mooney’s brief statements here be reasonably construed as
repeated attempts, as defendant claims, “to wear down [defendant’s] resistance”
(Michigan v. Mosley, supra, 423 U.S. 96, 105-106), nor did he operate as such in light of
“the ‘totality of the circumstances.’” (Moran v. Burbine (1986) 475 U.S. 412, 421.) “In
evaluating a claim of psychological coercion, the ‘question posed . . . is whether the
influences brought to bear upon the accused were “such as to overbear [defendant’s] will
to resist and bring about confessions not freely self-determined. [Citations.]”’” (People
v. Kelly (1990) 51 Cal.3d 931, 952.) Sergeant Mooney repeatedly asking defendant
whether he wanted to talk to him and whether defendant understood his rights were not
calculated to exploit a particular psychological vulnerability of defendant or “wear down”
8
defendant’s resistance in an effort to make him change his mind. There was no evidence
that the sergeant tricked or coerced defendant into surrendering his rights. (See People v.
Riva (2003) 112 Cal.App.4th 981, 989.) Rather, the record demonstrates that defendant
knowingly and voluntarily waived his rights. An express waiver is not required where
defendant’s words and actions indicate that he intended to waive his rights. (People v.
Whitson (1998) 17 Cal.4th 229, 245-246, 250, citing North Carolina v. Butler (1979) 441
U.S. 369, 370-372, 374-375.)
Although we recognize defendant was not required to utter the exact word, he
never stated specifically that he “wanted to remain silent or that he did not want to talk
with the police.” (Berghuis, supra, 130 S.Ct. at p. 2260.) Significantly, defendant
continued to talk freely well beyond his first and only “No” statement. The
circumstances taken in their context, and defendant’s language and tone, failed to
objectively communicate an unequivocal right to remain silent. (See Whitson, supra, 17
Cal.4th at p. 249; People v. Clark (1993) 5 Cal.4th 950, 992, overruled on other grounds
as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn 22.)
The purpose of an exclusionary rule is to deter police misconduct. “Deterrence
acts against a will and implies that there is a being capable of choosing one of several
courses of action.” (People v. Neely (1999) 70 Cal.App.4th 767, 789.) But where, as
here, the police have no clear signal that they are making a bad choice, they will not be
deterred, and application of the exclusionary rule would be perverse. Requiring an
objectively unambiguous invocation of the right to silence, “‘avoid[s] difficulties of proof
and . . . provide[s] guidance to officers’ on how to proceed in the face of ambiguity.
9
[Citation.] If an ambiguous act, omission, or statement could require police to end the
interrogation, police would be required to make difficult decisions about an accused’s
unclear intent and face the consequence of suppression ‘if they guess wrong.’ [Citation.]
Suppression of a voluntary confession in these circumstances would place a significant
burden on society’s interest in prosecuting criminal activity.” (Berghuis, supra, 130 S.Ct.
at p. 2260; see also Martinez, supra, 47 Cal.4th at p. 949 [objective rule “provides a
‘bright line that can be applied by officers in the real world . . . without unduly hampering
the gathering of information’”].)
Defendant did not unambiguously state that he wanted to remain silent or that he
did not want to talk to Sergeant Mooney. Had he made either of these simple,
unambiguous statements, he would have invoked his “right to cut off questioning.”
(Miranda, supra, 384 U.S. at p. 474.) The trial court properly denied defendant’s motion
to suppress his in-custody statements.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
KING
J.
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P. v. Lopez CA4/2
Combined Opinion