Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Super. Ct. No. 04HF0106
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
A second amended information charged Romilien Antonio Fleming with five felonies: (1) assault with intent to commit rape and digital penetration in violation of Penal Code section 220 (count 1—victim Melanie K.); (2) sexual penetration by a foreign object of an unconscious person in violation of Penal Code section 289, subdivision (d) (count 2—victim Carissa H.); (3) first degree residential burglary with intent to commit a felony sexual offense or theft in violation of Penal Code sections 459 and 460, subdivision (a) (count 3—victim Courtney B.); (4) rape of an unconscious person in violation of Penal Code section 261, subdivision (a)(4) (count 4—victim Sabrina F.); and (5) rape of an unconscious person in violation of Penal Code section 261, subdivision (a)(4) (count 5—victim Christine R.) The information alleged as to count 3 a nonaccomplice was present in the residence when the burglary was committed (Pen. Code, § 667.5, subd. (c)(21)).
A jury convicted Fleming on counts 2, 3, and 5, and acquitted him on counts 1 and 4 (and on the lesser included offenses of counts 1 and 4). The jury set the burglary at first degree and found true the nonaccomplice allegation. The trial court sentenced Fleming to a prison term of nine years four months.
Fleming challenges the convictions on counts 2 and 5. In response to Fleming’s contentions, we conclude:
1. The trial court did not err by denying Fleming’s motion to suppress statements given during a police interview on August 7, 1998, relating to count 5.
2. The evidence was sufficient to establish Fleming was the perpetrator of the offense alleged in count 2.
3. The victim in count 5 was not an inherently incredible witness, and her testimony was not inherently improbable.
We therefore affirm.
Facts
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
I.
Count 2 (Victim Carissa H.)
On January 5, 2004, Ryan Banich celebrated his birthday with his girlfriend Carissa H. During the afternoon and evening, they ate and drank at several restaurants in Costa Mesa. They ended up, intoxicated, at Pierce Street Annex in Costa Mesa at about 11:45 p.m.
At about 1:30 a.m. on January 6, Carissa tried to get a cab at Pierce Street Annex. Fleming approached Carissa and offered her a ride. She ignored him at first. But after watching Fleming talk with Ryan and the bartender, Carissa changed her mind. She approached Fleming and accepted his offer for a ride. Carissa rode in the front passenger seat of Fleming’s Honda Accord, while Ryan sat in the rear seat.
Carissa and Ryan directed Fleming toward Ryan’s condominium in Costa Mesa, about two miles away. Fleming did not touch or flirt with Carissa during the drive. For safety reasons, Ryan asked Fleming to pull over about a block from where Ryan lived. Fleming persisted in asking Carissa and Ryan where he lived, and inched the car forward until it was in front of the driveway into the parking lot of Ryan’s condominium complex. Fleming stopped the car, and Ryan and Carissa got out. Ryan grabbed Carissa’s hand as they ran to the door of his condominium. Ryan took a key out from underneath the doormat, unlocked the door, and replaced the key under the mat before going inside.
Ryan and Carissa fell asleep in an upstairs bedroom about 3:00 a.m. About 4:45 a.m., Carissa awakened when she felt fingers moving inside her vagina. A few minutes later, she lifted her head and saw a silhouette of a man wearing a dark baseball cap sitting at the edge of the bed. When she moved, the man stopped touching her. She put her head back down out of fear and pretended to sleep. She pinched Ryan, who was asleep next to her, but he did not stir. When Carissa opened her eyes again, the bedroom door was open, and she heard someone leave the condominium.
Carissa screamed for Ryan to wake up. She got up, ran to another bedroom, and dialed 911. After police officers arrived, Carissa noticed the key was missing from underneath the doormat. She was taken to the hospital for a sexual assault examination.
On January 16, 2004, Costa Mesa Police Detective Michael Cacho conducted a photographic lineup for Carissa. She said she could not recognize the person who had been in the bedroom, but she selected Fleming’s photograph and wrote, “I think this is the man that took us home from the bar.” At trial, Carissa identified Fleming as the man who drove her home from Pierce Street Annex on January 6.
Robert Blackmore, the head of security at Pierce Street Annex, testified that Fleming frequented the bar. Fleming always came in alone and late at night, did not drink, and was one of the last patrons to leave. Near closing time, he tended to talk with women waiting for taxicabs. These women on occasion seemed “pretty intoxicated.”
II.
Count 3 (Victim Courtney B.)
A. The Incident Involving Celia Miller
During the night and early morning of January 14 and 15, 2004, Costa Mesa police officers went to Pierce Street Annex in plainclothes to keep an eye on Fleming. The bar staff identified Fleming to the officers. The officers watched Fleming talk with various people inside the bar and with several women on the dance floor.
After the closing announcement near 2:00 a.m. on January 15, Fleming walked outside the bar while conversing with a group of young women. He helped three of the women—Celia Miller and two of her friends—get into a taxi. Fleming earlier had spoken with at least two of the women on the dance floor.
In his Honda Accord, Fleming followed the taxi to a shopping center. Police officers monitored Fleming from unmarked cars and a helicopter. Fleming stopped in a dark area of the shopping center parking lot and turned off his car lights. Miller and one of her friends exited the taxi, got inside a parked car, and drove away.
Fleming followed Miller to a gated community in Newport Beach. Miller noticed she was being followed and sped through the security gate. Fleming drove through the gate before it closed. Miller parked across the street from her residence and turned off her car lights. Fleming also parked and turned off his car lights. Rather than drive into her garage, Miller drove away to see if the other car would follow her. Fleming got out of his car and walked up to the house in front of which Miller had been parked. He went to both sides of the house, peered over the fence, and then returned to his car.
Miller noticed the Honda had not followed her, so she drove back to her house. The Honda was still there. Miller drove away again. The Honda left, and drove past Miller and out of view. After waiting a few minutes, Miller returned home.
Fleming drove back to the area near the Pierce Street Annex and parked in an alley off of 17th Street. He walked to a nearby apartment complex on East 17th Place, entered a gate, and stood near a particular apartment. He seemed to notice one of the undercover surveillance officers. He returned to his car and drove to his home on El Toro Road.
B. Facts Leading to Count 3
The police officers resumed their surveillance of Fleming at around 12:00 midnight on January 16, 2004. They watched Fleming leave Pierce Street Annex about 1:35 a.m. on January 16. Fleming talked to some people before getting in his car.
Courtney B. lived in an apartment on East 17th Place in Costa Mesa with her roommate Haylee Coshow. During the evening of January 15, 2004, Courtney, her boyfriend Stephen Schaack, and Haylee went to a birthday party at a local restaurant. Courtney and Stephen returned home at 10:00 p.m. Courtney left her purse and keys on the table by the front door. They fell asleep between 11:00 and 11:30 p.m. Haylee returned home about 11:00 p.m. and went to bed around 12:30 a.m. She did not recall locking the front door before going to bed.
Sometime during the night, Courtney woke up, turned her head, and saw a man standing about four feet away from the bed. The man was pointing a flashlight toward her. He wore a dark-colored cap with light-colored contrasting trim, a long-sleeved sweatshirt with a fold-over collar, and light denim trousers. He was about six feet eight inches in height, had dark skin, and weighed between 185 and 210 pounds. The man slowly turned and walked out of the bedroom.
Courtney called 911, and the police arrived soon thereafter. The front door was unlocked, and there were no signs of forced entry into the apartment. Nothing appeared to be missing or disturbed.
Police officers saw Fleming leave the apartment complex on 17th Place in the early morning of January 16. A few minutes later, the officers stopped Fleming near the interchange of the 55, 73, and 405 freeways. In Fleming’s car, the officers found black gloves, a black leather jacket, a dark-colored baseball hat, and a silver-colored flashlight. Fleming wore a black fleece sweatshirt, a maroon undershirt, and a black hat.
A police officer took Courtney to the place where Fleming was detained to conduct a “field showup.” The dark-colored cap found in the Honda was placed on Fleming’s head. Courtney identified Fleming as the man she had seen in her bedroom earlier that morning.
C. The Police Interview of Fleming on January 16, 2004
Fleming was taken to a Costa Mesa police station, where Detective Michael Cacho and Investigator Tracy Jacobson interviewed him. Fleming was advised of, and waived, his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Fleming stated he went to an apartment complex near Pierce Street Annex to “hang out” with a guy he knew from the bar. Fleming said he knocked on an apartment door and, when nobody answered, returned to his car. At first, Fleming asserted he did not go inside any apartment. Later, after being told that helicopter surveillance saw him go in and come out of an apartment, Fleming admitted he went inside an apartment to “look[] around.” He said he walked into the apartment through an unlocked door. He walked into a bedroom, where he saw a man and a woman sleeping. According to Fleming, he walked around the bedroom, and then left. He denied touching anybody or taking anything. He admitted walking into the same apartment several months earlier.
Fleming admitted that he had followed someone home from a bar at least five times and that he walked into homes in the middle of the night to steal money. He liked to enter a home when the occupant was inside sleeping, despite the risk of being caught, because “most likely that’s when they are going [to] have their money and when people leave they take their money with them.” He denied ever going into a house while armed.
Fleming denied following Celia Miller in the early morning of January 15, contending he “was just driving around” and “wasn’t following them in particular[].” When told he had been surveilled, Fleming said, “[b]ut it’s not a crime, I didn’t do anything wrong.” Fleming admitted he drove to the gated community where Miller lived, parked his car, got out, changed his clothes, and walked around the perimeter of her house. When asked why he had been walking around a house in the middle of the night, Fleming responded, “I was checking out the neighborhood, . . . walking around the whole thing, I said this is a nice neighborhood and then I left.”
Regarding the January 6, 2004 incident, Fleming stated he drove a man and a woman home from Pierce Street Annex and fell asleep on the side of the road after dropping them off. He denied going into the house. He claimed did not touch the woman except in the car when they did “high fives” and held hands.
III.
Count 5 (Victim Christine R.)
A. Facts Leading to Count 5
In August 1998, 17-year-old Christine R. lived with her mother Janet R. in an apartment in Placentia. Christine had an alcohol abuse problem, smoked marijuana, and used methamphetamine and LSD. She was taking medication for bipolar disorder and, when she testified at trial, was taking several psychiatric medications.
During the afternoon of August 6, 1998, Christine got drunk and smoked marijuana with two friends. She was “really high and really drunk” when she returned to her apartment. Home alone, she walked outside to order a pizza from a pay phone and ran into Fleming. She had known Fleming for several years and would see him a couple of times a month.
Christine returned to her apartment. She sat on the bed with Fleming and he massaged her back. Christine and Fleming were not romantically involved. However, several months earlier, Fleming had stuck his fingers in Christine’s vagina while massaging her back. She had stopped him, and he apologized.
Christine passed out. When she awakened, the pizza had been delivered and Fleming was gone. Christine was dressed, but her vagina felt sore and had a burning sensation, as though she had had sexual intercourse. She showered, wrapped a sheet around herself, and fell asleep on a different bed. Later, she was awakened by Fleming. She yelled at him, asking what he did to her. Fleming denied doing anything improper. Christine told Fleming to get out. After he left, Christine (who was having her menstrual period) noticed bloodstains on a mattress.
Police technicians removed portions of the bloodstained mattress cover for testing. No test results were admitted into evidence at trial.
Later that day, Christine told Janet that Fleming had raped her. Janet did nothing because Christine was intoxicated and Janet “thought it was the alcohol.”
After talking to her mother, Christine left the apartment and went to the home of her friend’s mother. Christine told her friend’s mother and her boyfriend that Fleming had raped her. They gave her some advice, and she returned home.
Fleming telephoned Janet and said he wanted to explain the situation. Janet told him to come to her apartment to talk about it. When the conversation ended, Janet called the police.
About 9:00 p.m., Placentia Police Officer Jay Audiss arrived at the apartment and interviewed Janet and Christine. Fleming arrived during the interview, and Audiss recognized him as having accompanied Audiss on a police “ride-along” earlier that very evening. Audiss asked Fleming what was going on. Fleming replied he was there to speak with Janet about the situation with Christine. Audiss asked Fleming to walk to the police patrol car with him.
In the carport of the apartment complex, Fleming told Audiss that he had gone to the apartment earlier that day to collect $10 he had lent Christine. Fleming described Christine as extremely intoxicated. She did not have the money. They ordered pizza, and, after eating pizza together in the apartment, Christine passed out. Concerned for her safety, Fleming drove to the home of Christine’s aunt to get help. Unable to find the aunt, he returned to the apartment.
Fleming asserted that when Christine awakened, she accused him of sexually inappropriate conduct. Fleming told Audiss that “he didn’t do anything wrong and he didn’t need the accusations, so he left.” Fleming said he later returned to the apartment to explain the situation to Janet.
In the patrol car, Fleming directed Audiss to the home of Christine Lisk (C.L.), a possible witness. Audiss spoke briefly with C.L. and her mother, then drove the patrol car toward the police station. When Fleming expressed concern that his car might be towed, Audiss drove back to the apartment. In the apartment complex carport, Audiss spoke with Janet and asked her to bring Christine to the police station. Another police officer had arrived at the scene, and Audiss asked him to take care of Fleming’s car. Audiss then transported Fleming to the police station. Fleming was not under arrest that point.
At the police station, Audiss interviewed C.L., C.L.’s mother, and Christine. At Audiss’s request, Police Detective Daron Wyatt arrived around 10:20 p.m. Audiss briefed Wyatt on the situation and turned the investigation over to him.
B. The August 6, 1998 Police Interview of Christine
On August 6, 1998, Wyatt conducted a recorded interview of Christine starting at about 11:10 p.m. The interview lasted about 30 minutes. The tape of the interview was played during the prosecution’s case-in-chief, and transcripts were published to the jury.
After the interview, Christine was taken to a hospital and a sexual assault examination was conducted by Dr. Edward Mescher. Using toluidine blue dye, he found trauma in the folds of Christine’s vaginal opening, fourchette, and hymen that was consistent with unlubricated vaginal penetration. Dr. Mescher found a type of blue fiber in the fossa navicularis. Wet mount slides of secretions taken from the vaginal opening showed no spermatozoa.
DNA samples were obtained from Fleming and from Christine. Sperm fractions were extracted from vaginal swabs taken from Christine. Russell Baldwin, a forensic scientist, testified it was possible for physicians conducting sexual assault examinations not to detect sperm later detected during DNA testing. DNA testing conducted in 1998 showed a Caucasian most likely contributed to the sperm fraction from Christine’s vaginal swab. (Fleming is African-American.) A different test, using a new and more discriminating standard, was conducted in 2004. The 2004 test found a match between the sperm fraction from Christine’s vaginal swab and Fleming’s DNA. The population frequency of the profile determined from Christine’s vaginal swab is rarer than one in one trillion unrelated persons in the population groups examined. In other words, the likelihood of someone other than Fleming having the same DNA profile was one in one trillion.
C. The August 7, 1998 Police Interview of Fleming
Meanwhile, Fleming had been waiting alone in the police station administrative conference room. He was not handcuffed.
Wyatt returned to the station and escorted Fleming to the interview room. Wyatt began interviewing Fleming about 12:30 a.m. on August 7, 1998. Wyatt told Fleming he was not under arrest, his presence was “completely voluntary,” and he could “get up and leave at anytime.” Fleming said, “[n]o problem.” Wyatt did not read Fleming his rights pursuant to Miranda, supra, 384 U.S. 436.
Fleming was never placed under arrest during the interview. Wyatt never displayed a weapon. At one point, Fleming said he would stay at the police station and talk all night if necessary to clear things up.
Fleming told Wyatt the following
About a month earlier, Fleming lent Christine $7. He went to her apartment on August 6 to collect the money she owed him. There, Christine told Fleming she was high from marijuana and alcohol. She said she was going to order pizza and would repay Fleming from the change. They went outside to smoke some cigarettes. Christine went back inside. Fleming later went inside and found Christine “knocked out” on a couch. Christine rolled off the couch, so Fleming picked her up and put her on a mattress on the floor.
The pizza deliverer arrived and asked what was wrong with Christine, who was still unconscious. After checking Christine’s pulse, Fleming left to get help. Fleming did not think about calling 911. When Fleming returned to the apartment about 90 minutes later, Christine was lying unconscious on a different bed. Fleming shook Christine but she did not wake up until five to ten minutes later. Fleming told Christine, “you need to stop drinking and using the drugs.” She replied, “I don’t care, you know, I’m sorry, whatever.”
Christine said she was sore and asked Fleming what happened while she was sleeping. Fleming said he did not know. Christine became angry. Fleming did not want to be there, so he went to the home of Christine’s aunt. At the aunt’s house, Fleming found Janet, who told him, “I’m not worried about anything, you know, I know you didn’t do anything to her.”
A few moments later in the interview, Fleming said that when he came back inside the apartment after smoking a cigarette, Christine was lying in bed, undressed, with a sheet wrapped around her. She rolled off the bed onto the floor. Later in the interview, Fleming again claimed that when he went inside after smoking a cigarette, he found Christine “half in the couch and half in the floor.” He said he struggled with her, one leg and one arm at a time, for five minutes to move her onto the bed. He said his hands never slipped beneath her clothing. Later in the interview, Fleming said that after he moved Christine onto the bed, he left to find her sister, and, upon returning to the apartment, found Christine undressed and wrapped in a sheet.
Fleming denied ever touching Christine (except for a friendly hug) and said he did not find her appealing. Wyatt told Fleming, “[t]here’s some physical evidence of the fact that [Christine] was touched.” He responded by saying, “it’s not me.”
Wyatt said it was time to get down to “brass tacks” and “lay everything on the table.” Fleming said he masturbated before going over to Christine’s apartment and ejaculated on his hands. He did not wash his hands, but wiped them on his pants. When he arrived at the apartment, he sat on the edge of a bed and placed his hands behind him. He denied ejaculating while in Christine’s apartment.
Wyatt told Fleming that DNA testing had become precise and could be used to analyze any blood or semen found on the sheets. Fleming said he did not remember having blood on his hands, unless it was from Christine’s cat, which had been bleeding from a fight. Around 3:00 p.m., Fleming left the apartment and returned to the home of Christine’s aunt to let her know of Christine’s condition. He then went home, showered, and left about 4:00 p.m. to speak with Janet.
Wyatt confronted Fleming with a police report of a similar incident from the previous June. Fleming said he had been accused, but was not prosecuted. “I’m not [the] type of person to go around raping little girls,” Fleming said. Fleming repeatedly asserted his innocence and agreed to submit hair samples and penile swabs for DNA testing. “I’m willing to do anything to prove myself innocent, man. We can sit here all night long until we’re, you know, [’]til we’re blue in the face.”
Discussion
I.
The Trial Court Did Not Err by Denying Fleming’s Motion to Suppress.
Fleming asserts the trial court erred by denying his motion to suppress his statements made to Detective Wyatt during the interview at the police station on August 7, 1998, relating to count 5. Fleming argues the interview was a custodial interrogation and he was not advised of his constitutional rights under Miranda, supra, 384 U.S. 436.
We conclude Fleming was not in custody within the meaning of the Fifth Amendment to the United States Constitution during the interview. The trial court therefore did not err in denying his motion to suppress.
A. Background
At trial, Fleming orally moved to suppress his statements made to Detective Wyatt during the interview at the police station on August 6 and 7, 1998. The trial court held an evidentiary hearing on the motion at which Officer Audiss and Detective Wyatt testified.
1. Audiss’s Testimony
Audiss testified that on August 6, 1998 he responded to a call regarding an alleged rape. He arrived in uniform at Christine’s apartment and spoke with Janet, who mentioned Fleming as a possible suspect. While Audiss was inside the apartment speaking with Janet, Fleming knocked at the front door. Janet opened the door, and Audiss asked Fleming, “what’s going on?” Audiss recognized Fleming because he had participated in a police ride-along earlier that evening in Audiss’s patrol car. Fleming had told Audiss he was an applicant for police academy.
In response to Audiss’s question, Fleming said he was there to discuss a “situation” that had occurred involving Christine. Audiss walked outside the apartment and walked with Fleming to the patrol car. They stood next to the patrol car and spoke for 10 to 20 minutes. Nobody else was present. Audiss’s tone was “[i]nquisitive.” Fleming said he had gone to Christine’s apartment earlier that afternoon to collect money she owed him. Fleming described Christine as having been “intoxicated and . . . swaggering.” She said she wanted to get a pizza.
Audiss asked Fleming if he would be willing to go the police station and talk about the situation. Audiss also asked Fleming if anyone could corroborate his statements. Fleming said his friend C.L. knew about the situation and could provide “additional information.” Audiss drove Fleming in the patrol car to C.L.’s house. Fleming rode in the front passenger seat, where he had sat a few hours earlier during the ride-along. At that point, Audiss considered Fleming “a person of interest.”
Fleming stayed in the unlocked patrol car while Audiss got out and briefly spoke with C.L. Audiss asked C.L. and her mother to drive themselves to the police station. They agreed. Audiss returned to the patrol car and drove Fleming to the police station. Fleming voiced no objection to going to the station.
On the way, Fleming expressed concern that his car might be towed because it was parked without a permit at Christine’s apartment complex. Audiss contacted Officer Navarette to assist him, then returned to Christine’s apartment complex. There, Navarette stayed with Fleming in the patrol car while Audiss spoke with Christine and asked her to go to the police station. Audiss returned to his patrol car and drove Fleming to the police station. Navarette moved Fleming’s car.
At the station, Audiss asked Fleming to wait in a conference room. Fleming was not handcuffed or restrained; he had not been placed under arrest, and Audiss did not tell him he was not free to leave. Audiss did not pat search Fleming. Audiss left to interview Christine. As Audiss left the conference room, the door shut automatically, but did not lock.
After interviewing Christine for about 30 minutes, Audiss called Detective Wyatt and asked him to come down to the station. Audiss briefed Wyatt upon his arrival at the station. Wyatt asked Audiss to speak to C.L. and her mother.
2. Wyatt’s Testimony
Wyatt testified he arrived at the station about 10:20 p.m. on August 6, 1998. After Audiss briefed him, Wyatt interviewed Christine for about 30 minutes. He then left to examine the crime scene. Upon returning to the police station, Wyatt escorted Fleming from the conference room to an interview room, where the interview could be audio- and video-recorded. Wyatt began interviewing Fleming sometime between 12:00 midnight and 12:30 a.m. on August 7. The 92-page transcript of the interview was received in evidence for the court’s consideration in ruling on the motion to suppress.
At the outset of the interview, Wyatt told Fleming: “My name is DARRIN WYATT, I’m a Detective here and I’m assigned to the Crimes Against Persons Unit. And . . . um, you know that there’s an allegation that there’s some kind of sexual misconduct and . . . you’ve been pointed to as somebody who might’ve committed that, okay? Uh . . . first of all, do you understand that you’re not under arrest, okay? Your presence here is completely voluntary. You understand that?” Fleming responded, “[n]o problem. Yeah. I understand that.” Wyatt continued: “[Y]ou can get up and leave at anytime, . . . there’s a whole bunch of stuff I want to go through and ask you a bunch of questions on . . . and see if we can just get it sorted out. Okay?” Fleming said, “[n]o problem.” Wyatt did not give Fleming a Miranda advisement. Fleming told Wyatt he had graduated from police academy.
The interview lasted between two and two and one-half hours. Wyatt was dressed in plainclothes. He never displayed a weapon or placed Fleming under arrest. Fleming was talkative. He “denied any and all sexual contact with the victim.” At one point in the interview, Fleming said he would stay all night if necessary to “clear things up.”
About halfway through the interview, Wyatt left to take a break. He returned to the interview room with another police officer who could escort Fleming to the restroom or to get a drink. The police station was a secure facility, and anyone without a visitor’s pass had to be escorted by a police officer. During the break, Wyatt found a Fullerton police report alleging Fleming engaged in behavior similar to that being investigated. When the interview resumed, Wyatt confronted Fleming with that report and questioned his honesty. Wyatt did not find Fleming’s explanations to be credible. Fleming continued to deny any misconduct.
Near the end of the interview, Wyatt asked Fleming if he were willing to take a polygraph examination. Fleming replied, “I’m willing to do anything to prove myself innocent, man. We can sit here all night until . . . we’re blue in the face.” Fleming agreed to participate in a sexual assault suspect examination.
After signing a release form at 2:45 a.m., Fleming was escorted to another room where a sexual assault examination was performed and blood was drawn. Wyatt and another detective drove Fleming in an unmarked patrol car to his home to retrieve some clothing. They returned to the police station, where Fleming was given a receipt for his clothing. Another officer drove Fleming to his car. Fleming was not arrested.
3. The Trial Court’s Ruling
After hearing argument of counsel, the trial court denied the motion to suppress, stating its reasons at length. The trial court found these factors significant: (1) Fleming was cooperative; (2) Fleming was never told he was under arrest; (3) Fleming was never handcuffed; (4) Fleming was “never placed in a lock-down type of environment, and that includes both the patrol car and the location in the police department”; (5) Fleming voluntarily went to the police station; and (6) Fleming was never told he could not leave, and there was no evidence he was held against his will.
After reviewing the relevant case law, the trial court stated: “[W]hat puts the icing on the cake for the court in denying . . . your motion to exclude the statement and allowing the statement to come in, if there is an appropriate foundation, is on page 1 of the interview, the first thing out of Detective Wyatt’s mouth is: ‘You understand you’re not under arrest. Your presence here is completely voluntary. Do you understand that?’ And the defendant says, ‘no problem. Yeah. I understand that.’ And then the officer goes on and says, ‘you can get up and leave at any time.’ And the response there, and this is a quote from the defendant, ‘no problem.’ [¶] Whether [Fleming] had the [car] keys or not, you don’t base the decision on custody on whether his leaving the station would be more convenient because his car is there or he had a ride waiting. I am not really attaching any significance to that. I have to look at the totality of the circumstances. He could have walked right out of that conference room. He was not secured there. The door was not locked. Here he was familiar with the police department to some degree because he had already been there and had some association with law enforcement. [¶] But again, no cuffing, no ordering, you must remain. . . . [T]here is nothing here to suggest . . . that he was in custody. If anything, I find that there [are] many more facts to suggest that he wasn’t in custody. He was cooperative from the beginning all the way through until after the interview, and then some, when he assisted with the searching of the items. [¶] So I don’t even think this is a close call for the court.”
B. Relevant Legal Standards
Law enforcement officers “are not required to administer Miranda warnings to everyone whom they question.” (Oregon v. Mathiason (1977) 429 U.S. 492, 495, italics added.) Rather, law enforcement officers are required to administer Miranda warnings only to those subject to custodial interrogation: “‘Absent “custodial interrogation,” Miranda simply does not come into play.’” (People v. Ochoa (1998) 19 Cal.4th 353, 401 (Ochoa).) For purposes of Miranda, a person is in custody when there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. (Thompson v. Keohane (1995) 516 U.S. 99, 112; accord, Ochoa, supra, 19 Cal.4th at p. 401.) This is an objective test. (Thompson v. Keohane, supra, 516 U.S. at p. 112; accord, Ochoa, supra, 19 Cal.4th at p. 401.)
Whether a person is in custody for purposes of Miranda is a mixed question of fact and law requiring two “discrete inquiries.” (Thompson v. Keohane, supra, 516 U.S. at pp. 112-113; accord, Ochoa, supra, 19 Cal.4th at p. 401.) The first inquiry is “what were the circumstances surrounding the interrogation.” (Thompson v. Keohane, supra, 516 U.S. at p. 112; accord, Ochoa, supra, 19 Cal.4th at p. 401.) The second inquiry is, “given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” (Thompson v. Keohane, supra, 516 U.S. at p 112, fn. omitted; accord, Ochoa, supra, 19 Cal.4th at pp. 401-402.) “The first inquiry, all agree, is distinctly factual. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a ‘mixed question of law and fact.’” (Thompson v. Keohane, supra, 516 U.S. at pp. 112-113.)
We review under the substantial evidence standard the trial court’s findings of basic or historical facts. (Ochoa, supra, 19 Cal.4th at p. 402.) Looking at the totality of the circumstances (see California v. Beheler (1983) 463 U.S. 1121, 1125), we review de novo whether a reasonable person would have felt at liberty to terminate the interrogation and leave. (Ochoa, supra, 19 Cal.4th at p. 402.)
C. Fleming Was Not Subject to a Custodial Investigation
As to the first inquiry, substantial evidence fully supported the trial court’s factual findings in this case. The trial court’s findings indicate the court considered Audiss and Wyatt to be credible witnesses. The testimony of Audiss and Wyatt, with the transcript of Fleming’s police station interview, reconstructed the historical events of the night of August 6 and early morning of August 7, 1998.
As to the second inquiry, we conclude Fleming was not in custody when he was interviewed. Courts have identified a variety of factors to consider in making that determination. Those include: (1) “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;” (2) “whether the express purpose of the interview was to question the person as a witness or a suspect;” (3) “where the interview took place;” (4) “whether police informed the person that he or she was under arrest or in custody;” (5) “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;” (6) “whether there were restrictions on the person’s freedom of movement during the interview;” (7) “how long the interrogation lasted;” (8) “how many police officers participated;” (9) “whether [the police officers] dominated and controlled the course of the interrogation;” (10) “whether they manifested a belief that the person was culpable and they had evidence to prove it;” (11) “whether the police were aggressive, confrontational, and/or accusatory;” (12) “whether the police used interrogation techniques to pressure the suspect;” and (13) “whether the person was arrested at the end of the interrogation.” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 (Aguilera).) No one factor is dispositive. (Ibid.)
The evidence established Fleming voluntarily went to the police station to be interviewed. The police officers never handcuffed or restrained him. He was never placed under arrest. He rode, unrestrained, in the front seat of the patrol car to the police station, where he was placed in an unlocked conference room. He was left alone, unrestrained in the conference room for several hours before Wyatt interviewed him. At the outset of the interview, he was told he was free to leave at any time. Fleming acknowledged that his presence was voluntary and that he was free to leave.
Neither Officer Audiss nor Detective Wyatt brandished a weapon or used physical force. Only one officer at any given time interviewed Fleming. Fleming told Wyatt that he had graduated from police academy. He was talkative, “unfailingly cooperative,” and “remained eager to prove his veracity even after the interrogation began.” (Ford v. Superior Court (2001) 91 Cal.App.4th 112, 128.) The interview lasted over two hours, but Fleming stated he was willing to stay all night if necessary to clear his name. Although Fleming had to be escorted if he left the interview room, there is no evidence of any restraint on his movement within the interview room. Fleming was not arrested at the end of the interview. He voluntarily submitted to a sexual assault examination.
“Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” (Oregon v. Mathiason, supra, 429 U.S. at p. 495.) Fleming was questioned at a police station, and was at least a “person of interest” to the police. But “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.’” (California v. Beheler, supra, 463 U.S. 1121, 1125.)
Fleming argues the trial court erred by concluding it insignificant that he did not drive himself to the police station and did not have his car keys during the interview. While those facts do indicate some restriction on Fleming’s freedom, they are not dispositive, and must be considered with the other factors relevant to determining whether Fleming was subject to a custodial interrogation. The evidence established that Fleming agreed to ride with Officer Audiss, never asked to drive himself to the police station, and never asked for his car keys. Lack of car keys might have been an inconvenience, but, as the trial court found, it would not have prevented Fleming from terminating the interrogation and walking out of the police station.
Fleming argues this case has “many similarities” to Aguilera, supra, 51 Cal.App.4th 1151, in which the appellate court reversed a conviction due to a Miranda violation. There are factual similarities. In Aguilera, the defendant voluntarily went to the police station, where he was interviewed by two police officers for over two hours. (Id. at p. 1159.) The defendant was never restrained and was told he was not in custody. (Ibid.) When the interview was over, the police officers drove the defendant back to his home. (Ibid.)
More significant, however, are Aguilera’s dissimilarities. In Aguilera, the police officers did not tell the defendant he was free to leave, but told him they would take him home when they were finished, which depended on “‘how quickly you tell us the truth.’” (Aguilera, supra, 51 Cal.App.4th at p. 1159.) The officers accused the defendant of lying, told him his story was “‘bullshit,’” and falsely suggested they had fingerprint evidence implicating him in the crime. (Ibid.) When the defendant continued to deny involvement in the crime, the police officers became exasperated and told him that his lies and the evidence probably would lead to murder charges against him. (Ibid.) The defendant still denied involvement. (Id. at p. 1160.) The officers told the defendant that other police officers were with his mother, who would not corroborate his story, and told the defendant he owed the victim the “real story.” (Ibid.) The officers left the defendant alone for a while, but when the interrogation resumed, they pressured him to tell the truth and warned “‘lying isn’t gonna get you anything, nothing good. It’ll sink you, but it ain’t gonna save you.’” (Ibid.) After further pressuring, the defendant partially abandoned his story and claimed he was not involved in the crime because he had been with a girl. (Ibid.) One officer threatened, “‘[y]ou know [how] this is gonna work. You’re gonna tell us some girl’s name. We’re not gonna let you leave here until we go talk to the girl, and she’s not gonna be able to confirm the story.’” (Ibid.)
Fleming was never told he could not leave the police interview or the interview would end only when he told the truth. Detective Wyatt challenged Fleming’s story, but did not engage in the accusatory and aggressive interrogation tactics used in Aguilera. Fleming never succumbed to pressure by admitting wrongdoing.
Thus, considering the totality of the circumstances, we conclude a reasonable person in Fleming’s situation would have felt at liberty to terminate the interrogation and leave. Accordingly, Fleming was not subjected to a custodial interrogation, the police officers were not required to give him Miranda warnings, and the trial court did not err by denying Fleming’s motion to suppress.
II.
Substantial Evidence Supports the Conviction on Count 2.
Fleming argues the evidence was insufficient to identify him as the perpetrator of the offense alleged in count 2. We conclude substantial evidence supported the jury verdict on that count.
Because Fleming challenges the sufficiency of the evidence, we examine “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Thomas (1992) 2 Cal.4th 489, 514.) We view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier of fact reasonably could deduce from the evidence. (People v. Barnes, supra, 42 Cal.3d 284, 303.) “The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
The standard of review is the same when the prosecution relies on circumstantial evidence. (People v. Thomas, supra, 2 Cal.4th 489, 514.) Circumstantial evidence may be sufficient to prove the defendant’s guilt beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
As Fleming points out, there was no direct evidence identifying him as the perpetrator in count 2. Carissa, the victim, was unable to describe the person who had been in the bedroom: She could recall only that the person wore a dark baseball cap. Ryan testified he did not know whether Fleming was the man who drove them home from Pierce Street Annex. The prosecution presented no DNA or fingerprint evidence.
The circumstantial evidence was sufficient, however, to support the conviction on count 2. The evidence showed that Fleming drove Carissa and Ryan from Pierce Street Annex to Ryan’s condominium. When they neared the condominium, Carissa told Fleming to drop them off. But Fleming, as he inched the car forward, persisted in asking precisely which house they lived in. Fleming stopped the car in front of the driveway into Ryan’s condominium complex. As Ryan and Carissa ran to the condominium door, Carissa looked back and saw Fleming in his car. Ryan removed the front door key from beneath the doormat, unlocked the door, and placed the key under the mat. Soon thereafter, Ryan looked out on the street and saw a car stopped. After the police had arrived, Carissa noticed the key was missing from underneath the doormat.
A reasonable inference from that evidence is that the perpetrator knew the front door key was underneath the doormat and used that key to gain entry into the condominium unit. Another reasonable inference is that Fleming watched Ryan use the key to open the door to his condominium and replace the key under the doormat. The trier of fact could conclude from this evidence that Fleming knew the key was underneath the front door mat and used the key to gain entry into Ryan’s condominium.
In addition, evidence of Fleming’s acts of misconduct was admissible and supported the guilty verdict on count 2. Evidence Code section 1101, subdivision (b) authorizes admission of evidence of a defendant’s other acts of misconduct “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake of accident . . .) other than his or her disposition to commit such an act.” Evidence of uncharged misconduct is admissible only if it has substantial probative value, and “[t]he greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403-404 (Ewoldt).) “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts.” (Id. at p. 403.)
The prosecution presented evidence showing that Fleming befriended intoxicated young women near closing time at Pierce Street Annex, provided them rides or followed them home, gained unforced entry into their homes, and touched them sexually while they slept. The head of security at Pierce Street Annex testified that Fleming frequented the bar alone and late at night. Fleming did not drink, and was one of the last patrons to leave. Near closing time, he tended to talk with women waiting for taxicabs. These women on occasion seemed “pretty intoxicated.”
The prosecution presented evidence of two similar incidents. The first incident, alleged in count 1 (of which Fleming was acquitted) involved alleged victim Melanie K. She testified that on December 24, 2003 she went to Pierce Street Annex with a group of friends. Melanie, who was 24 years old at the time, was intoxicated when she left at 1:00 a.m. When she arrived home, she went to her bedroom, disrobed, and got into bed. Around 4:00 a.m., a rustling sound awakened her. She saw an African-American man sitting on her bed. He was touching her chest and vaginal area from both over and under the comforter that covered her. He was dressed in black and wore a black ski hat. Melanie squirmed and yelled at the man to leave. He complied and left without incident. About a month later, Melanie identified Fleming’s photograph in a photographic lineup as “the closest in appearance to the suspect.” At trial, Melanie also identified Fleming as the perpetrator.
Although the jury acquitted Fleming of count 1, other misconduct need only be proven by a preponderance of the evidence. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1444.) The prosecution proved by a preponderance of the evidence that Fleming committed the offense charged in count 1 against Melanie.
The second incident involved Celia Miller. The evidence showed that in the early morning of January 15, 2004, Fleming helped Miller and two of her friends get into a taxi at Pierce Street Annex. Fleming followed Miller to her gated community in Newport Beach. Fleming sped through the security gate before it closed behind Miller’s car. Miller parked across the street from her residence and turned off her car lights. Fleming also parked and turned off his car lights. Miller drove away to see if the Honda would follow her. Fleming got out of his car and walked up to the house in front of which Miller had been parked. He went to both sides of the house, peered over the fence, and then returned to his car.
Miller noticed the Honda had not followed her, so she drove back to her house. The Honda was still there. Miller drove away again. The Honda left, and drove past Miller and out of view. After waiting a few minutes, Miller returned home.
There are differences among the incident with Melanie, the incident with Miller, and the incident with Carissa. But the three incidents “share common features that are sufficiently distinctive so as to support the inference that the same person committed [all three] acts.” (Ewoldt, supra, 7 Cal.4th 380, 403.) Fleming chatted with Carissa near closing time at Pierce Street Annex, as he did with Miller. Carissa, like Melanie and Miller, was young and somewhat intoxicated at the time. Fleming learned where Melanie and Miller lived by following them; he learned where Carissa lived by giving her a ride home. He gained unforced entry into Ryan’s condominium, just as he had gained unforced entry into Melanie’s home and tried to gain entry into Miller’s home. Fleming touched Carissa sexually while she slept, as he had similarly touched Melanie while she slept. In the case of both Melanie and Carissa, Fleming left quietly.
Evidence of the incidents of misconduct had “‘substantial probative value’” (Ewoldt, supra, 7 Cal.4th at p. 404) and therefore was admissible to prove identity, motive, and modus operandi. This evidence, together with other circumstantial evidence linking Fleming to the offense against Carissa, was sufficient to support the jury verdict on count 2.
III.
Christine Was Not an Inherently Incredible Witness, and Her Testimony Was Not Inherently Improbable.
Fleming argues Christine was an inherently incredible witness and her testimony was inherently improbable due to her drug and alcohol use, juvenile arrest record, and history of mental illness. As a result, Fleming argues, a reasonable trier of fact could not have found him guilty on count 5. We disagree. Since Christine’s testimony was not inherently improbable, we will not disturb the jury’s assessment of her credibility.
The jury is the exclusive judge of witness credibility, and we will not “reweigh credibility determinations made by the jury.” (In re Roberts (2003) 29 Cal.4th 726, 744.) However, an exception arises when there is “a physical impossibility that the testimony is true or that the falsity is apparent without resorting to inferences or deductions.” (People v. Swanson (1962) 204 Cal.App.2d. 169, 173.) This case does not fit into that exception.
Testimony is inherently improbable when the act asserted is impossible under the circumstances (People v. Swanson, supra, 204 Cal.App.2d. 169, 172); that is, when “what was related or described could not have occurred” (People v. Gardner (1957) 147 Cal.App.2d 530, 536). Testimony is not inherently improbable when: (1) the testimony is merely contradictory or inconsistent (People v. Swanson, supra, 204 Cal.App.2d at p. 172); (2) the testimony is merely “subject to justifiable suspicion” (People v. Gardner, supra, 147 Cal.App.2d at p. 536); or (3) the testimony merely describes “unusual circumstances” (People v. Gunn (1959) 170 Cal.App.2d 234, 238). Unless the testimony is physically impossible, the appellate court cannot reject the “statements given by a witness who has been believed by a trial court.” (People v. Gunn, supra, 170 Cal.App.2d at pp. 238-239.)
Christine’s testimony that Fleming raped her was not inherently improbable because what took place was not physically impossible given the facts. Fleming was with Christine while she was drunk and high on marijuana. She passed out and upon awakening she felt a pain in her vagina. Fleming had already left the apartment. Fleming returned some time later to awaken Christine after she had fallen asleep the second time. It was not physically impossible for Fleming to have raped Christine while she was asleep. The fact Christine was under the influence of drugs and alcohol did not make it physically improbable for Fleming to have raped her.
Christine’s drug use, intoxication, juvenile arrest record, and history of mental illness did not make her an inherently incredible witness. The jury considered those factors affecting her credibility. In finding Fleming guilty on count 5, the jury necessarily determined Christine was credible. We will not disturb that determination.
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.