Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County, No. FVI022475, Margaret A. Powers, Judge.
David P. Lampkin, 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, Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Robert Garcia appeals from the judgment entered after a jury convicted him of continuous sexual abuse of a child and three counts of solicitation of murder (to murder the abuse victim, her sister, and mother). On appeal, Garcia contends the trial court violated his constitutional rights by excluding the testimony of a witness who demonstrated during an Evidence Code section 402 hearing a willingness to answer questions raised by the defense but not the prosecution. He also claims the court should have granted his motion to suppress statements he made to an officer during a custodial interrogation because he had not yet been advised of his Miranda rights. Garcia maintains two of the three solicitation convictions should be stricken because the jury returned a special verdict finding the three counts were but “one single crime.” Garcia also raises two challenges to his sentence: (1) the court and prosecution were estopped from sentencing him under a statutory provision not mentioned during plea negotiations; and (2) the court’s imposition of the upper term for his convictions violated Cunningham v. California (2007) 549 U.S. 270 (Cunningham). We conclude his contentions lack merit, except for his argument the two solicitation convictions should be stricken. As so modified, we affirm the judgment.
All further statutory references are to the Evidence Code, unless otherwise indicated.
Miranda v. Arizona (1966) 384 U.S. 436.
Facts
Garcia’s issues on appeal do not concern the conviction regarding the continuous sexual abuse of his girlfriend’s seven-year-old sister, E.P. (hereafter referred to by the pseudonym Ellen to protect her privacy), and therefore our recitation of those facts will be brief. For over one year, Garcia terrorized Ellen by sexually attacking her whenever she was alone in her bedroom, when she was playing in her dollhouse, or when they once drove alone together. He repeatedly fondled her vagina and anus, rubbed his penis against her, licked her vagina, tried to make Ellen masturbate him, took photographs of her vagina, raped her, and sodomized her. Ellen did not tell her mother, Sandra C. (hereafter Sandra), right away because she was scared. Ellen would often see blood on her sheets and said the rapes felt like a shark biting her. The pediatrician who examined Ellen found multiple indicators of the sexual abuse described by the child.
Twenty-two-year old Garcia shared a room at the house with Ellen’s 17-year-old sister, Sabrina C. (hereafter Sabrina). Garcia and Sabrina were not married but had a daughter together when Sabrina was 16 years old. When Sabrina was in the hospital after giving birth to their second daughter in July 2005, Garcia raped Ellen again. Soon thereafter, Ellen told Sandra about the abuse. Ellen told the social worker Garcia told her that he wanted to get her pregnant.
In September 2005, Garcia agreed to talk to the police and his interview was videotaped. Garcia initially denied sexually molesting Ellen. He later admitted penetrating her vagina on a few occasions but claimed it was only because Ellen would climb on top of him, and Ellen initiated all their contact. Garcia admitted he did not know why he had done it, and conceded it was his fault because she was just a little girl.
When Garcia was in custody, he admitted to another inmate, referred to at trial as Mr. C, that he had sexual intercourse with Ellen. He was not remorseful but rather claimed he loved Ellen and she had “the tightest vagina that he ever had.” Mr. C’s jail cell was next to Garcia’s cell, and they conversed through a vent between the cells, at the door of Garcia’s cell when Mr. C was let out briefly each day, and in the detention center’s yard. In the fall of 2006, Garcia told Mr. C he wanted someone to kill Ellen, Sandra, Sabrina, and Sabrina’s ex-boyfriend. Garcia explained he wanted Ellen killed because she was the key witness against him. He asked Mr. C if he knew a “‘hit man’” to kill the family before his trial date. Garcia stated his family was in the Mafia. He gave Mr. C the telephone numbers of his sister, Eileen, his grandfather, and his aunt, Gloria Ortiz, who he said was “the shot caller on everything....” He also gave Mr. C information about the cars Sandra and Sabrina drove and their current address. Because Garcia was on telephone restriction, he often asked Mr. C to make calls for him. Mr. C also stated he sometimes made calls for Garcia when they were in the yard because the telephones in Garcia’s area were turned off due to Garcia being on phone restriction.
Mr. C was a police informant, having felony convictions for a drug sale, forgery, statutory rape, and spousal battery. He asked two detectives (Steven Burgraff and Casey Jiles) for a deal on his own case in exchange for information about Garcia. Although he was not offered a deal, Mr. C told the detectives about Garcia’s plan for murder. He turned over the names, addresses, and telephone numbers Garcia had provided, which Burgraff later determined were all accurate.
Working with a plan created by the detectives, Mr. C told Garcia he knew someone named Mike who would commit the murders. Burgraff asked undercover officer, Special Deputy Michael French, to meet Garcia and pretend to be “Mike the hit man.” It was arranged for Garcia and French to meet in the jail’s visiting area. The conversation was recorded and played for the jury. After introducing themselves, French told Garcia he heard there was a need for some mechanic work. French testified “mechanic work” is street slang for a contract killing. Garcia held up a handwritten note containing Sabrina’s name and current address. French was led to believe Garcia wanted everyone residing at that address to be killed. French stated he would need to get some parts (which was street slang for a weapon) and money to take care of the work. Garcia responded it would not be a problem because he had people on the outside that would take care of that. Garcia gave French his sister Eileen’s telephone number and said she would provide the gun and pay $4,000.
French asked Garcia several questions to confirm he was serious about soliciting murder. The first time he asked, “‘Are you sure you want this engine pulled,’ and [Garcia] said, ‘Yes.’” The second time he asked Garcia during the negotiation of the price if he was sure he had the money. Garcia assured French he had the money and, moreover, there would be help from his people on the outside. Later, French asked Garcia, “‘Are you sure you’re not just mad for the moment?’” Garcia said he was not and indicated he had been in custody for a long time. Before leaving, Garcia asked for and received French’s telephone number.
After the meeting, Mr. C recalled Garcia was very happy to have found a contract killer. He appreciated Mr. C’s efforts to get the “‘ball rolling’” and said he loved Mr. C like a brother. He told Mr. C the job was going to get done and he was going to get out of jail.
A few days later, French and Garcia met again in the visitor center. French told Garcia he had called Eileen and left several messages. When they finally spoke, Eileen told French she did not know what he was calling about, and asked him not to call again. Garcia said he was restricted from telephone usage but urged French to call his friend “Julia.” French told Garcia the price was going up, and Garcia agreed to pay more money. Garcia told French “‘to take out anyone inside’” the house except for his own children. He showed French a picture of his two young children so that French would not make a mistake. After the meeting, French contacted Julia, and she was supposed to contact Eileen about helping French. French never heard from her.
The next day, French and Garcia met again and French complained Eileen had not contacted him as promised. Garcia replied he asked Eileen to meet them that day so they could be properly introduced and for her to receive instructions about giving French money and firearms. Eileen did not come to the visitor center. Garcia again showed French pictures of his children, and told French he wanted the killings done before he went to court. French testified he had no doubt Garcia was asking him to kill Ellen, Sabrina, Sandra, and a man French thought was Sabrina’s boyfriend. At the time, Sabrina was dating a man, with whom she recently had a baby.
Ortiz testified on behalf of the defense. Ortiz stated she was a mortgage loan processor and had not discussed any kind of financing with Garcia. Sabrina testified she had never seen Garcia touch Ellen inappropriately, and provided Garcia with an alibi for several days when Ellen stated she was sexually assaulted. Garcia’s grandfather testified he was not a member of the Mexican Mafia and Garcia never mentioned wanting to hire someone to murder Ellen and her family. Similarly, Garcia’s sister, Eileen testified she had not heard Garcia had hired someone to kill Ellen and her family. She recalled receiving a telephone call from someone named Mike, who asked about mechanic work and money. Eileen said she did not know what he was talking about.
Discussion
A. The Court’s Exclusion of Witness Ray Darrett
During trial, the prosecutor informed the court she wanted to call an inmate, Ray Darrett, to testify about his conversations with Garcia in jail about the ability to avoid prosecution if there were suddenly no witnesses. She requested a section 402 hearing because she was concerned Darrett might refuse to answer her questions. After Darrett was sworn, the prosecutor asked him if he recalled meeting Garcia in custody. He replied, “Yes.” However, to every other question thereafter Darrett responded, “No comment.” This included questions about whether Darrett met with the police after he and Garcia discussed his plans to eliminate the witnesses in Garcia’s case.
Defense counsel then cross-examined Darrett and discovered the witness had negative things to say about Mr. C. For example, Darrett stated Mr. C mentioned he was planning on setting up Garcia and said, “‘I’m going to get his sorry ass.’” Darrett said he did not know why Mr. C wanted to “get” Garcia and he only knew Mr. C intended to testify for the prosecution in Garcia’s trial. Darrett also testified any conversation through the cell vents could have been heard by many inmates, which made questionable Mr. C’s claim he spoke with Garcia about sensitive matters through the vents. Darrett also undermined Mr. C’s assertion he made telephone calls for Garcia when they were in the yard because the telephones in Garcia’s area were turned off. Darrett stated he was familiar with the jail’s telephone system and all the telephones were on the same switch.
The prosecution argued Darrett should be excluded as a witness due to his refusal to answer her questions about what he knew about the murder solicitation plans. She asserted Darrett’s testimony about Mr. C’s motives was unfair because Mr. C probably knew Darrett was helping the police too, and therefore, Mr. C believed he was speaking to a “compadre.” The prosecution asserted that pursuant to the “Rule of Completeness” contained in section 356, Darrett’s statements to the police about his conversations with Garcia should be admitted if his statements attempting to “dirty up Mr. C” were allowed.
Defense counsel argued Darrett’s testimony relating to Mr. C was highly probative to the defense. Counsel added it was pure speculation to assert Mr. C knew Darrett had spoken to the police. To the contrary, Darrett testified he did not know why Mr. C, who he did not previously know, wanted to talk to him about Garcia. Mr. C, who had testified earlier in the case, was not asked about his relationship with Darrett. Counsel argued Darrett’s statements to the police about Garcia’s crime involved a completely separate conversation unrelated to his encounter with Mr. C, and consequently, the Rule of Completeness would not apply.
The trial court concluded it did not “think that it would be in the interest of truth and fairness to let... Darrett testify to one portion of this whole situation and not to the entire circumstances. It just doesn’t serve the interest [of] truth. [¶] So unless... Darrett decides he’s going to answer all questions, unless, of course, there is some self-incrimination involved here that we can talk about, but he hasn’t brought that up. Otherwise, then I don’t think the [c]ourt is going to allow him to testify.” The court denied the prosecutor’s motion to compel Darrett to testify, and denied defense counsel’s motion to permit his partial testimony.
Garcia argues it is his federal constitutional right (pursuant to the Sixth and Fourteenth Amendments) to present evidence in his defense. He asserts the court’s ruling deprived him of the opportunity to impeach an important witness i.e., Mr. C. Garcia notes Mr. C’s testimony was vital because in the recorded conversations between French and himself, they used code words to avoid detection. He contends the sole interpretation of this ambiguous evidence was provided by Mr. C.
The Attorney General argues the court had ample discretion under sections 356 or 352 to prohibit Darrett from testifying. The Attorney General contends it would be unfair to the prosecution to allow Darrett’s unfavorable testimony about Mr. C unless the jury could also hear Darrett’s testimony about his conversations with the police and Garcia implicating Garcia of soliciting murder. However, section 356 has the function of admitting evidence so the factfinder will not be presented with a distorted picture; it does not authorize excluding evidence when other evidence is unavailable. The Attorney General cites to no authority, and we found none, holding the court can exclude evidence when a witness is only willing to reveal some of what he or she knows.
Section 356 provides, “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
As for section 352, there is no evidence the court underwent the balancing test necessary for such a finding. Darrett’s testimony, which would have been subject to cross-examination, would not have consumed an unreasonable amount of time, or confused, mislead, or prejudiced the jury. The prejudice to the prosecution’s case potentially caused by Darrett’s refusal to answer questions about his knowledge of Garcia’s murder plans is not the level of prejudice contemplated by section 352. Mr. C and French had both already testified Garcia was making plans to murder Ellen and her family. “‘Prejudic[ial]’ in... section 352 does not mean ‘damaging’ to a party’s case, it means evoking an emotional response that has very little to do with the issue on which the evidence is offered. (People v. Karis (1988) 46 Cal.3d 612, 638.) Evidence which has probative value must be excluded under section 352 only if it is ‘undu[ly]’ prejudicial despite its legitimate probative value. (People v. Waidla [(2000)] 22 Cal.4th [690,] 724 [if it ‘poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome”’].)” (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 597.) As for questions raised about Mr. C’s motivation for testifying, Mr. C (not Darrett) was the best person to supply the reasons why he approached Darrett and discussed Garcia’s case. Darrett already indicated he did not know why Mr. C spoke to him. Darrett’s private conversation with the police would not have shed any light on Mr. C’s motivation.
We conclude the court erred in excluding Darrett as a witness. The court failed to balance two competing rights in this case. On one hand was Garcia’s Sixth Amendment constitutional right to present evidence/witnesses in his favor: Darrett had information to share that arguably served to challenge Mr. C’s credibility as the prosecution’s key witness. On the other hand was the People’s constitutional right to due process (Cal. Const., art. I, § 29), which necessarily includes the right to full and effective cross-examination of defense witnesses. (See Chambers v. Mississippi (1973) 410 U.S. 284, 294 [cross-examination essential component of due process].) “The state’s right to cross-examine defense witnesses is not based upon the Sixth Amendment; rather, it is required for the accurate determination of guilt or innocence and in order to prevent fraud upon the court.” (81 Am.Jur.2d (2004) Witnesses, § 772, p. 678.)
In this case, the prosecutor never suggested there was evidence to impeach Darrett. She did not present evidence linking Darrett’s statements to the police to his statements about Mr. C. “It is generally recognized that the scope of cross-examination should be confined to matters which have been elicited from the witness on direct examination. [Citation.]” (People v. Watson (1956) 46 Cal.2d 818, 826.) Thus, the prosecution’s due process right to cross-examine Darrett did not trump Garcia’s Sixth Amendment constitutional rights to have Darrett testify. The court’s reasoning that it would not be in the “interest of truth and fairness” to have testimony on only “one portion of this whole situation” does not outweigh Garcia’s basic constitutional rights to have the jury hear a witness in his favor.
We asked the parties to submit supplemental briefing on the above theory because neither party discussed it in their briefing. We asked the parties to address the following question: “Did the court properly exclude witness... Darrett pursuant to its authority to strike the testimony of a witness who refuses to answer questions on cross-examination? (See Fost v. Superior Court (2000) 80 Cal.App.4th 724, 736 [‘Where a witness refuses to submit to proper cross-examination regarding material issues, the striking out or partial striking out of direct testimony is common, and has been allowed even where the result was to deprive a criminal defendant of the fundamental constitutional right to testify in his own behalf’]; see also People v. Price (1991) 1 Cal.4th 324, 421 (Price); People v. Reynolds (1984) 152 Cal.App.3d 42, 46-47.)”
Garcia’s counsel replies the answer is no. The court could not exclude the witness because, “Darrett’s refusal to testify about his conversation with [Garcia] did not impair the prosecutor’s ability to cross examine him about the matters that would have been within the scope of direct examination.” Garcia asserts the testimony Darrett proposed to give on direct would be limited in scope to impeach Mr. C’s statements about the cell vents and the yard phones. Darrett would not have been questioned about his conversations with the police or Garcia, and therefore any cross-examination regarding those conversations would have been objected to as beyond the scope of direct examination. (§ 761.)
The Attorney General’s response is that the answer is yes, of course, the court had discretion to strike Darrett’s direct examination due to the materiality of information the witness was refusing to discuss. It maintains Darrett refused to answer all questions about his knowledge of Garcia’s murder solicitation plans, which would have “significantly impeded” the prosecutor’s examination of Darrett. The Attorney General notes Darrett had no legitimate reason to refuse to answer these questions. It adds that Darrett’s testimony “would have put into context Mr. C’s statements” and would have explained Mr. C was not just trying to get Garcia for no reason. It concludes “[A]llowing Darrett to testify to only one side of the story would have deprived the prosecutor of presenting what she believed to be a complete picture to the jury and her examination was not merely collateral, but went directly to the heart of Darrett’s proposed answers to [Garcia’s] questions.” Finally, the Attorney General recognizes there was no cross-examination in this case, but since the court was able to determine in advance the witness would refuse to answer questions, it could decline to admit the testimony in the first instance. (Price, supra, 1 Cal.4th at p. 421.)
We have carefully reviewed the reporter’s transcript of the hearing and disagree with the Attorney General’s contentions. The prosecutor accepted Darrett’s testimony Mr. C was out to get Garcia but wanted Darrett to testify he knew about Garcia’s crime. She believed Mr. C approached Darrett because Mr. C thought Darrett shared his antagonism to Garcia. But this theory was speculative. Garcia’s admission to Darrett does not explain why Mr. C approached Darrett to talk about the case. The prosecution needed evidence Mr. C somehow knew Garcia had confessed to Darrett. She did not make an adequate offer of proof, and without one, we can not “‘“knowledgeably rule upon an evidentiary issue presented”’” for review. (Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83, 93.)
As Garcia’s counsel notes, the record gives no reason to think an inquiry about Darrett’s conversation with the police or Garcia could be designed to impeach Darrett (we recognize the need for impeachment would have significantly broadened the scope of cross-examination). There was no question about whether Darrett remembered the events, he simply refused to comment on them. If Darrett had cooperated and testified about Garcia, it would not be an impeachment. Accordingly, the well-settled rules limiting the scope of cross-examination would have applied.
This is a hollow victory for Garcia for we conclude the error was harmless under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (reversal required unless error harmless beyond reasonable doubt). The evidence against Garcia on the murder solicitation charge was overwhelming. In addition to Mr. C’s testimony, the undercover police officer testified he clearly understood Garcia was hiring him to murder Ellen and her family (without harming his own biological children). Garcia’s conduct corroborated his intent. He provided both Mr. C and French tangible and accurate information (telephone numbers, addresses, & photographs) to carry out the task. Mr. C’s testimony was secondary to the very compelling conversations recorded in the jail’s visitor center between French and Garcia, which were played for the jury.
Garcia asserts Mr. C’s testimony was “necessary to give substance to the recorded conversations....” He argues if the evidence of the solicitation had been limited to just the recordings, the jury “would have been hard-pressed to conclude beyond a reasonable doubt that what they were hearing was solicitation.” He maintains the recorded conversation was too “oblique and highly ambiguous” to support a conviction. We disagree.
Garcia overlooks there was a second witness, French, who gave “substance” to the recorded conversations. He clarified any ambiguities in the recording. For example, French explained the meaning of the slang terminology they used to discuss a contract killing. Moreover, the recordings themselves supported French’s and Mr. C’s testimony. We have reviewed the transcripts of the three meetings and conclude the jury would have easily understood the conversations were about something more sinister than scheduling a car repair job. First, no evidence showed Garcia actually had a car that needed repair work. Second, the record shows Garcia and French would often have slip-ups and discuss matters obviously unrelated to fixing an engine. For example, diverting from the original context of hiring French to work on Garcia’s “Sebring” car, the two men also discussed: (1) whether “there would be four” and somebody would tell French “who they are”; (2) if it mattered how old the car was because Garcia had a smaller car that “might be at the house” and to him “it doesn’t matter who it is”; (3) if Garcia was “just pissed for the moment” and really needed an “engine just fucking pulled, right”; (4) why it was dangerous for them to meet multiple times in the jail’s visitor center; (5) did Garcia’s sister have a good reason for not speaking to French about providing car parts and money for the mechanic work; (6) could Garcia think of unique personal information about him that would get his sister to talk to French on the telephone; (7) if there was the need to talk to a different family member about the job; (8) the urgency of having the work completed before Garcia’s trial; and (9) the possibility Garcia’s children would likely “be there” and French would need a photograph to identify them.
The jury also saw the several notes Garcia wrote and gave to French. For example, at their first meeting Garcia held up a note containing an address and two names. Referring to the note, Garcia told French, “[T]his is the name though, that one that’s on there isn’t, I had to disguise it. That’s the one.” French asked, “Okay what’s the other name there?” and Garcia replied, “That’s my baby’s mom.” The jury saw the note with Ellen’s address and the names Sandy and Sabrina written on it. Why would Garcia have to disguise a name on a note if he was truly simply arranging for his car to be repaired? French testified the note originally included words like, “‘Take out anyone inside,’” and that Garcia then partially erased those words and they could not be seen on the copy of the note.
Garcia’s theory on appeal that he could have been “either play-acting or delusional” when contracting for the murders is not supported by the record. French confirmed several times with Garcia if he wanted Ellen and the others killed. Garcia calmly denied he was acting out of anger. The recorded conversations show Garcia was steadfast with his plan. He provided names, addresses, and a source for payment. He unequivocally wanted the murders to occur before his trial date because he believed he could not be prosecuted without witnesses. It is very telling that Garcia had the presence of mind to show the “hit man” pictures of his own young children on two separate occasions to ensure they were identifiable and not killed. Given the quantity and length of Garcia’s meetings with French, and the serious nature of their conversations, we find it highly implausible Garcia’s decision to hire a hit man was done in jest or as part of a delusional game. Mr. C had no doubt as to Garcia’s plans and sought police intervention. Moreover, French testified he had no doubt as to what Garcia had hired him to do.
Finally, we note Mr. C was by no means a star witness and had already been partially impeached. Even without Darrett’s information questioning Mr. C’s motives, the jury had ample reason to question Mr. C’s veracity because they learned he had a significant criminal background and he had requested a deal in exchange for information about Garcia. That Mr. C may have had less than pure motives would not likely have come as a surprise to the jury. And even if the jury had accepted Darrett’s testimony Mr. C was out to get Garcia, it would not necessarily conclude Mr. C was lying. Mr. C “got” Garcia by revealing Garcia’s murder solicitation plans to the police. Regardless of Mr. C’s motives, the jury could reasonably believe his testimony because much of it was independently corroborated. Mr. C turned over to the police correct names, telephone numbers, and addresses. He could accurately provide descriptions of the intended victims’ cars. There is no suggestion he could have obtained this information from anywhere or anyone other than Garcia. Mr. C said Garcia asked for a contract killer, and when Mr. C purportedly arranged for Garcia to meet a hit man, Garcia did not seem taken aback. There was no evidence Garcia perceived the meeting as a surprise, a set up, or something he did not want.
In sum, we are confident that had the jurors heard evidence Mr. C’s testimony was suspect, they would not have concluded Garcia did not intend to solicit the murder of his young victim and her family before his trial. Any error in excluding the evidence was harmless beyond a reasonable doubt.
B. The Number of Solicitation Convictions
Garcia was charged with four counts of solicitation of murder. After the evidentiary phase of trial, but before the jury was instructed, defense counsel moved under Penal Code section 1118 to dismiss all but one of the solicitation counts, arguing all the murders were part of one common plan to prevent witnesses from testifying. The prosecutor argued the issue was for the jury to decide, and asserted there were facts suggesting four separate crimes. The court denied the motion stating the issue was one for the jury and everyone needed to make sure the instruction adequately addressed the issue.
When it came time to discuss the instruction, the court and parties discussed how the jury verdict should be phrased. The court instructed the jury with Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 441, which discussed the factors to consider when determining whether there were one or more solicitations. In addition to the verdict forms for each count (counts 2-5), the jury received a special verdict form containing the finding the crimes were separate or “one single crime.” The parties and the court discussed and agreed on the language used in the special verdict form.
The jury found Garcia guilty of soliciting the murders of Ellen, Sandra, and Sabrina, but not her ex-boyfriend. It also concluded the solicitations were “one single crime.” At sentencing, the court designated count 2, relating to soliciting Ellen’s murder the principal count, and imposed concurrent midterms for the other two solicitation counts. These terms were doubled due to Garcia’s strike prior but then stayed under Penal Code section 654.
Garcia argues the court used the finding of “one single crime” to support staying the concurrent sentences on two of three counts pursuant to Penal Code section 654 but should have “gone farther and stricken two of the three convictions....” He argues “due process and fundamental fairness preclude more than one conviction of “‘one single crime.’” We agree.
Despite the prosecution’s full agreement and participation in crafting the special jury instruction used below, and despite its concession below it was a factual question, the Attorney General on appeal argues “it was not a question for the jury,” and therefore, the court properly imposed concurrent terms for the convictions. As recognized by both parties, there is a split of authority on whether the number of solicitations is a question for the jury. The Attorney General requests this court follow the holding of People v. Davis (1989) 211 Cal.App.3d 317 (Davis), holding the number of solicitations to murder is not a question of fact. Garcia argues the more persuasive line of cases follows People v. Cook (1984) 151 Cal.App.3d 1142 (Cook), holding it is a factual inquiry requiring consideration of whether the requested crimes involved different motives and were to occur at different times by different means. (See People v. Williams (1988) 201 Cal.App.3d 439, 445; People v. Morocco (1987) 191 Cal.App.3d 1449, 1452 (Morocco); People v. Miley (1984) 158 Cal.App.3d 25, 33-34.)
Morocco, supra, 191 Cal.App.3d 1449, is instructive. Defendant was convicted of two counts of solicitation of murder based on his trying to hire a police informant to kill his ex-wife and her current husband. The court analogized between the crimes of solicitation and conspiracy and concluded defendant could only be properly convicted of one count of solicitation. (Id. at p. 1454.)
The Morocco court explained there was a conceptual relationship between conspiracy and solicitation. “Just as the ‘gist’ of a conspiracy is the agreement [citation] the gist of a solicitation is the request. The conceptual underpinnings of the two crimes are quite similar in that both serve as vehicles to punish planned crimes before they reach the stage of an attempted crime. In many respects, the difference between solicitation and conspiracy lies in the response to the solicitee. If he agrees to cooperate in committing the crime, a conspiracy is formed and he becomes a coconspirator. If he reports the planned crime to authorities, he is an informant and the crime is ‘merely’ a solicitation.” (Morocco, supra, 191 Cal.App.3d at p. 1453.) The court, continuing the analogy to conspiracy, reasoned, “Where two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts ‘were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.’ [Citations.] We believe a similar test is applicable in determining whether multiple solicitations have occurred. It is well-settled law that ‘the question whether one or multiple conspiracies are present is a question of fact, to be resolved by a properly instructed jury’ [citation], just as the court in Cook[, supra, 151 Cal.App.3d at page 1146,] concluded that the question whether one or multiple solicitations took place is a question of fact.... In making this determination, the jury should be instructed to consider whether the multiple crimes requested by the defendant were part of a ‘larger, all-inclusive’ plan with a single objective and/or motive. [Citations.]” (Morocco, supra, 191 Cal.App.3d at p. 1453.)
In concluding one of the convictions must be reversed, the Morocco court noted, “The jury here received no instructions on the issue of single verses multiple solicitation(s). Arguably, that fact in itself would mandate reversal for a retrial. The parties, however, have ignored the instructional issue and have focused instead on whether substantial evidence supports the jury’s guilty verdict on two counts of solicitation. We find it unnecessary to reverse for a retrial because we agree with [defendant] that the evidence, even when viewed in the light most favorable to the prosecution, establishes but a single crime of solicitation. The potential victims were a husband and wife. They were to be killed at the same time, presumably by the same means. The record is very unclear as to [defendant’s] motive in soliciting the killings, but there is certainly no suggestion of an independent motive or objective as to each victim. Whatever the distorted plan [defendant] fashioned, it appears to have encompassed both [husband and wife].” (Morocco, supra, 191 Cal.App.3dat p.1454.)
In Davis, supra, 211 Cal.App.3d 317, on the other hand, the court rejected the conclusion the number of solicitations is a factual question for the jury, concluding a person may be convicted and sentenced separately for multiple counts of solicitation depending simply on the number of victims the person intended to have murdered. It analogized solicitation of murder to robbery cases, specifically, “People v. Ramos (1982) 30 Cal.3d 553, 589,... [reversed] on another ground [California v. Ramos] (1983) 463 U.S. 992..., in which the Supreme Court of California reject[ed] the notion ‘that a single taking from two victims constitutes but one robbery,’ and [held] that ‘if force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper.’ (Fn. omitted.)” (Davis, supra, 211 Cal.App.3d at p. 322.)
Recognizing the court in Cook rejected such a simplistic approach to solicitation cases, the Davis court embraced the easy formula used in robbery cases, stating, “We believe that the simplistic theory is the correct theory. One of the purposes of [Penal Code] section 653f is ‘to prevent solicitations from resulting in the commission of the crimes solicited.’ [Citation.] The commission of several murders results in more harm than the commission of a single murder. Thus, solicitation to commit several murders is a more serious wrong than solicitation to commit a single murder, no matter to what extent the solicitation constitutes a package deal for the accomplishment of a single purpose. We believe the law to be that the prosecutor may charge and, upon proper findings of guilt, the trial court may convict on, as many counts of solicitation to murder as there are identifiable victims. We express no opinion as to what rule might apply in cases where the defendant proposes one victim, but approaches several solicitees.” (Davis, supra, 211 Cal.App.3d at p. 323.) The court held the trial court did not err “in failing to instruct the jury to determine whether there were one or two solicitations, in entering judgments of conviction on both counts, or in imposing sentence on both counts.” (Id. at p. 324.)
After considering the body of case authority on this issue, we conclude the Davis court’s “simplistic” formula used in robbery cases overlooks the unique nature of the offense of solicitation. We find faulty the premise that robbery (where this is an actual victim of a violent crime) is analogous to solicitation (where there is not) and conclude this comparison unfairly expands the law.
Solicitation is not a crime of violence against a person but rather is an offense against the state. The purpose of Penal Code section 653f is both “to protect individuals from being exposed to inducement to commit or join in the commission of crimes” and to prevent the crime solicited. (Cook, supra, 151 Cal.App.3d at p. 1145.) It is complete when the solicitation is made. Because there is no act of violence, the focus is not on the number of people named, but on the underlying facts of the solicitation. “If the solicitor believes that the act can be committed ‘it is immaterial that the crime urged is not possible of fulfillment at the time when the words are spoken’ or becomes impossible at a later time.... Solicitation itself is the evil prohibited by the Legislature, and prosecution therefore is particularly appropriate for the very case in which the crime solicited does not take place.” (Benson v. Superior Court (1962) 57 Cal.2d 240, 243.) That the solicitation to murder two people is worse than the solicitation to murder one may be accounted for when the court exercises its discretion in selecting the sentence to be imposed.
We conclude the jury was properly asked to consider the factual question of whether Garcia committed one or more acts of solicitation. Based on the jury’s conclusion there was but “one single crime,” the trial court should have struck two of the three solicitation convictions. Contrary to the Attorney General’s contention, we cannot reweigh the evidence and make a factual determination there were three separate crimes to affirm to trial court’s sentence. Because there is no suggestion there was insufficient evidence to support the jury’s finding of “one single crime,” it must be affirmed. Accordingly, two of the three solicitation for murder convictions must be stricken.
C. Sentencing Under a Statutory Scheme with Higher Maximum Term Than the One Discussed During Plea Negotiations
Before trial, the prosecutor offered Garcia a 24-year prison sentence in exchange for his guilty plea. The prosecutor stated she had calculated his maximum exposure to be 53 years pursuant to Penal Code section 1170.1. During trial, the prosecutor stated on the record she would agree to a 37-year prison term in exchange for Garcia’s guilty plea. Again, she had calculated Garcia’s maximum exposure was 53 years. At sentencing, the prosecution requested the court impose a sentence under Penal Code section 667.8, subdivision (c), under which Garcia’s maximum exposure was 55 years. The court imposed a 50-year sentence.
Garcia does not contend the sentence was unauthorized but that the prosecution and trial court were judicially estopped from sentencing him under Penal Code section 667.6. We find the doctrine of judicial estoppel is not applicable. “The doctrine of judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process.... The policies underlying preclusion of inconsistent positions are general consideration[s] of the orderly administration of justice and regard for the dignity of judicial proceedings.... Judicial estoppel is intended to protect against a litigant playing fast and loose with the courts. It seems patently wrong to allow a person to abuse the judicial process by first [advocating] one position, and later, if it becomes beneficial, to assert the opposite.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181, internal quotation marks and citations omitted.) The prosecution was not playing fast and loose with the court when it sought sentencing under a different statutory scheme than the one she relied upon when discussing plea negotiations with Garcia. We do not find the prosecutor’s calculations were inconsistent positions, only a modification of an existing position, i.e., Garcia should be punished by a lengthy prison term. Seeking additional time in no way interfered with the orderly administration of justice or adversely impacted the judicial process.
The tradition of informing a defendant about his or her potential maximum term of confinement originates from the Supreme Court’s decision In re Alvernaz (1992) 2 Cal.4th 924. In that case, our Supreme Court observed claims of ineffective assistance of defense counsel would be discouraged in future cases if parties began “to memorialize in some fashion prior to trial (1) the fact that a plea bargain offer was made, and (2) that the defendant was advised of the offer, its precise terms, and the maximum and minimum punishment the defendant would face if the plea bargain offer were accepted or, alternatively, if it were rejected and the case proceeded to trial, and (3) the defendant’s response to the plea bargain offer.” (Id. at p. 938, fn. 7.) Thus, the practice of memorializing the plea negotiations is to show defense counsel provided accurate information to defendant. Garcia does not allege his defense counsel gave him inaccurate information concerning the consequences of rejecting the plea bargain. Garcia received a 50-year sentence, which was better than the maximum sentence of 53 years discussed during the plea negotiations, and better than the maximum sentence of 55 years suggested by the prosecutor during sentencing. As noted by the Attorney General, it is well settled Garcia was not entitled to the same sentence he would have received if he had pled guilty, and the trial court’s discretion is not limited by the negotiated plea. (See People v. Szeto (1981) 29 Cal.3d 20, 35; In re Lewallen (1979) 23 Cal.3d 274, 280.) We find no error.
D. The Sentence
Garcia contends the trial court violated the federal Constitution by sentencing him to the upper term absent “jury findings or proof beyond a reasonable doubt as to aggravating factors.” (See Blakely v. Washington (2004) 542 U.S. 296 (Blakely).) We reject his contention.
A jury found Garcia guilty of one count of continuous sexual assault of a child and three counts of solicitation of murder. The trial court found true Garcia’s strike prior. At sentencing, the court acknowledged it had received the probation officer’s report and the prosecutor’s sentencing memorandum. The court also considered the parties’ arguments regarding whether it should dismiss the strike prior.
The probation officer’s report and the prosecutor’s sentencing brief alleged numerous aggravating factors, including that the solicitation of murder offense involved great violence, great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, and callousness. Specifically, the victim was particularly vulnerable, Garcia threatened witnesses, and he illegally interfered with the judicial process. The manner in which Garcia carried out the crime indicated planning, sophistication, or professionalism. Garcia took advantage of a position of trust or confidence to commit the crime. He engaged in violent conduct, which indicated he is a serious danger to society. Finally, the report noted Garcia’s numerous adult convictions were of increasing seriousness. He had served a prior prison term, and he was on parole at the time the current offenses were committed. Both reports concluded there were no mitigating factors.
The court imposed the upper term for both the continuous sexual abuse of a child and the solicitation of murder convictions. In selecting the upper term, the court highlighted several aggravating factors: Garcia’s callousness (Cal. Rules of Court, rule 4.421(a)(1)); the victim was vulnerable (Cal. Rules of Court, rule 4.421(a)(3)); and Garcia took advantage of a position of trust (Cal. Rules of Court, rule 4.421(a)(11)).
The sentencing issue has not been waived due to either Garcia’s assent to a court trial on the charges or his failure to object at his sentencing hearing to the lack of a jury trial on the aggravating factors. (People v. Black (2007) 41 Cal.4th 799, 810 (Black II).)
In Cunningham v. California (2007) 549 U.S. 270, 274-275 (Cunningham), the United States Supreme Court held California’s determinate sentencing scheme violates the Sixth Amendment, applying the rule it articulated in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and its progeny that “the [f]ederal Constitution’s jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” Garcia correctly notes the reasons the court stated on the record for imposing the upper term were not Apprendi-compliant. Its determination Garcia was callous, he took advantage of a position of trust, and the victim was particularly vulnerable, were not findings implicit in the verdict.
Garcia acknowledges the Supreme Court in Black II, supra, 41 Cal.4th at page 805, concluded defendants with a prior felony conviction are eligible for the upper term as a matter of law. In Black II, our Supreme Court responded to how Cunningham applies when an upper term is based on multiple factors and only some of them violate Cunningham. It held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi[, supra, 530 U.S. 466] and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.) Our Supreme Court further held: “It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
Black II made it clear that, consistent with Apprendi, aggravating circumstances justifying the upper term may be established “based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Further, “‘[r]ecidivism... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Id. at p. 818.) Black II held the prior conviction exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.]” (Id. at p. 819, fn. omitted.) “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Black II, supra, 41 Cal.4th. at pp. 819-820, fn. omitted.)
Garcia “respectfully disputes” the Supreme Court’s determination a defendant who has a prior conviction is automatically eligible for the upper term. He asserts the court should only impose the upper term after having engaged in a weighing process to determine if the aggravating circumstances outweigh the mitigating circumstances. Garcia argues it cannot be reasonably be said that a prior conviction will always and in every case outweigh existing mitigating factors. We were dismayed to see the Attorney General completely failed to address this argument. We will take up the “laboring oar” to analyze this argument.
Garcia has confused the two distinct functions of aggravating circumstances. As explained in Black II,“Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the DSL (California Determinate Sentencing Law) does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function.” (Black II, supra, 41 Cal.4th at pp. 815-816.) Contrary to Garcia’s contention, Black II did not hold an upper term is automatic if defendant has a prior conviction. To the contrary, the court determined “Cunningham and its antecedents do not prohibit a judge from making the factual findings that lead to the selection of a particular sentence.... The issue to be determined in each case is whether the trial court’s fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Id. at pp. 814-815.) In Black III, the court expressly considered on the record defendant’s prior criminal history when imposing the upper term, which was then affirmed.
The reports reviewed by the trial court established Garcia’s prior “convictions... are numerous [and] of increasing seriousness[,]” which is an Apprendi-compliant aggravating factor (Cal. Rules of Court, rule 4.421(b)(2)). In the years preceding the underlying crimes, Garcia had been convicted of misdemeanors for unlawful sexual intercourse (Pen. Code, § 261.5) counterfeiting money (Pen. Code, § 648) and possessing a controlled substance. (Health & Saf. Code, § 11377.) In 2002, he was convicted of a residential burglary (Pen. Code, § 459), and spent two years in jail. Under the binding and well-reasoned analysis of Black II, we conclude that in this case, imposition of the upper term did not infringe upon Garcia’s constitutional right to a jury trial because we have found at least one legally sufficient aggravating circumstance based on Garcia’s criminal history.
Alternatively, Garcia argues that even if the trial court could have imposed the upper term based on his prior conviction, it was not the choice the court actually made. The record shows the court selected the upper term based primarily on Garcia’s perceived callousness. The Attorney General points out the trial court was presumably aware of Garcia’s prior conviction discussed in the prosecution’s sentencing report and the probation report. But that showing is not enough to affirm the upper term. It matters that the court never stated it was relying on Garcia’s criminal history when it decided to impose the upper terms for counts 1 and 2.
We find instructive People v. Wilson (2008) 44 Cal.4th 758, 811 (Wilson), holding defendant had time to reflect between the two rapes of the victim, justifying the imposition of full consecutive terms. The court reasoned, “The sentences for the two rape counts require different analyses. Taking the second crime first—count III, the rape of L.R. in the kitchen—the trial court justified its sentence choice of the upper term in part by mentioning that ‘the defendant’s criminal background is appalling and shows a history and pattern of increasingly serious and violent conduct.’” (Ibid.) Our Supreme Court concluded, “As in [Black II], we conclude this evidence of defendant’s criminal history establishes an aggravating circumstance that independently satisfies the Sixth Amendment to the United States Constitution.... [R]ule 4.421(b)(2) of the California Rules of Court provides that it is a circumstance in aggravation if a ‘defendant’s prior convictions as an adult... are numerous or of increasing seriousness.’ Defendant’s criminal history adequately proves this point.... The trial court thus did not err in sentencing him to the upper term for count III.” (Wilson, supra, 44 Cal.4th at p. 812.)
Our Supreme Court engaged in a different analysis with respect to reviewing the court’s decision to sentence defendant to the upper term for the first rape (count II). (Wilson, supra, 44 Cal.4th at p. 812.) It reasoned this sentence “require[d] a somewhat different analysis because in choosing the upper term the court did not state it was relying on defendant’s criminal history. The sentencing court’s failure expressly to cite defendant’s criminal history as an aggravating factor when sentencing for this crime arguably should make no difference, for his criminal history was the same for both rapes. We need not reach the question of error, however, because even assuming the court erred in sentencing defendant to the upper term on this count, the error was harmless beyond a reasonable doubt. [Citations.]” (Ibid.)
The Wilson court provided the following standard of appellate review: “To determine whether such error is harmless, we ask ‘whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.’ [Citation.] More precisely, we must ask whether we can conclude, ‘beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.’ [Citation.]” (Wilson, supra, 44 Cal.4th at p. 812.)
Given our record in which the court did not state it was relying on Garcia’s criminal history, we must decide if the error was harmless. The trial court primarily focused on evidence of Garcia’s callousness, but also mentioned it found Garcia took advantage of a position of trust and the vulnerability of his young victim. There was overwhelming evidence of these factors. Garcia repeatedly molested a seven-year-old girl for seven months. He was a trusted member of the victim’s family, having fathered the victim’s sister’s two children. He was allowed to live in the victim’s home and was often left alone with Ellen, taking advantage of his position of trust. After he was arrested, Garcia showed no remorse but rather planned and coldly arranged for a hit man to murder the people he claimed to love. The trial court aptly surmised, “That callousness is an important part of lack of remorse, and the fact that [Garcia] did not show any kind of concern for his victims here at all, except that he wanted to make sure they couldn’t testify against him.” The jury believed Ellen’s allegations and the physical evidence she suffered scarring and abnormalities to her genitalia from the repeated sexual abuse. The jury believed the undercover police officer’s testimony Garcia plotted and then asked him to murder Ellen, her mother, and her sister. Under these circumstances, had the issue of Garcia’s callousness or Ellen’s vulnerability been tendered to the jury, we conclude beyond a reasonable doubt that the jury, applying the same standard, would have sustained the allegation. Accordingly, any error with respect to the court imposing the upper terms on counts 1 and 2 was harmless beyond a reasonable doubt.
E. Miranda Rights Violation
In a supplemental appellant’s opening brief, Garcia maintains the court erroneously denied his motion to suppress admissions he made to a police officer following a polygraph examination. Garcia claims he was in custody at the time he made the admissions but had not yet been informed of his Miranda rights.
The court held a section 402 hearing to address the Miranda violation claim. Polygraph examiner Robert Heard and Detective Rod MacDonald both testified. MacDonald stated he was the lead detective on the case and he asked Garcia to take a polygraph examination at the sheriff’s headquarters. Garcia drove himself to the headquarters with his girlfriend and her mother. Heard met Garcia in the lobby and introduced himself. They then walked together to the polygraph suite, which was located approximately 175 feet away from the lobby. The suite was a 10 by 12-foot soundproof room, equipped with a desk, three chairs, and audio and video equipment. MacDonald left Garcia in the room with Heard, who is not a police officer.
Before starting the polygraph examination, Heard explained to Garcia the reason he was there and how the polygraph examination would be conducted. He gave Garcia a written waiver form stating he was free to leave or stop the exam at any time, he was there voluntarily, and he had not come to the examination under coercion or duress. He told Garcia several times he was not under arrest, and the door to the room was not locked.
Heard momentarily left the room to have the polygraph questions approved by a supervisor, and he left a copy of the waiver and the examination questions with Garcia. When he was gone, Garcia was looking at his cell phone. When Heard returned, he saw Garcia had printed his name at the top of the waiver and had signed the bottom.
Garcia moved to the polygraph chair to be hooked up to the machine. Heard conducted two examinations and determined Garcia had lied when he answered questions about Ellen. Heard removed the polygraph attachments and asked Garcia to move to the chair by the examiner’s desk. He told Garcia he had failed the examination. Garcia responded by admitting some sexual contact with Ellen. MacDonald, who had been monitoring the examination in another room by watching closed circuit television, confirmed Heard’s version of the events. MacDonald testified he overheard Heard tell Garcia that he was not under arrest and was free to leave anytime.
After hearing Garcia’s admission, Heard called MacDonald into the room. MacDonald, who was wearing street clothes, knocked on the door and entered after Heard invited him in. Heard discussed the situation with MacDonald for a few minutes and then left the room. MacDonald sat in the chair where Heard had been sitting. The elapsed time from the beginning of the interview until Heard left the room was approximately one hour and 25 minutes.
MacDonald and Garcia proceeded to have a “conversation” during which MacDonald asked Garcia questions about his sexual contact with Ellen. When the interview ended, Garcia had been at the station for approximately another 90 minutes. MacDonald did not ever tell Garcia he was free to leave. MacDonald and Garcia then moved to another interview room, where MacDonald left Garcia to tell another detective about Garcia’s admissions. Garcia was not questioned in the interview room. The record does not indicate if Garcia was arrested that day.
Garcia filed a motion to suppress only his statements to MacDonald (not those to Heard) on the ground they were obtained in violation of Miranda. The court denied the motion. A recording of the interview was played for the jury during the prosecution’s case-in-chief and in closing arguments. Garcia claims admission of the tape was reversible error. We disagree.
“The now familiar rule in Miranda relies on the Fifth Amendment to the federal Constitution to preclude the evidentiary use of statements made pursuant to a custodial interrogation unless the suspect has knowingly and intelligently waived the rights to remain silent and to the presence and assistance of an attorney, the latter provided at state expense for indigent suspects.” (People v. Roldan (2005) 35 Cal.4th 646, 735, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)
“Miranda warnings are required ‘as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.”’ [Citation.] This determination presents a mixed question of law and fact. [Citation.] We apply a deferential substantial evidence standard to the trial court’s factual findings, but independently determine whether the interrogation was custodial. [Citation.] [¶] Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citations.] Although no one factor is controlling, the following circumstances should be considered: ‘(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.’ [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404, fn. omitted (Pilster).)
Garcia acknowledges his conversation with Heard did not amount to a custodial interrogation. Garcia voluntarily drove himself to the sheriff’s headquarters, and agreed to take the polygraph test and speak with Heard. Garcia does not dispute he was told he was free to leave and offered breaks during the polygraph exam. In addition, Garcia signed a written waiver expressly stating he was under no obligation to be there, he could stop the examination at any time, he was there voluntarily, and he was free to leave. Garcia was never physically restrained. Heard was not a police officer.
Garcia maintains the situation turned custodial when MacDonald entered the polygraph suite. He claims a reasonable person would no longer have felt free to leave once MacDonald arrived and Heard departed, “signif[ying] a transfer of authority ....” Garcia contends, “The importance of [his] admitting sexual offenses against [Ellen] before... MacDonald entered the interview room cannot be overstated.” He notes a comparison of Heard’s repeated advice to Garcia he was free to leave, with MacDonald’s “deafening” silence on the point, reasonably led Garcia to believe a custodial interrogation had started. He argues a reasonable person would not have believed Heard’s previous assurances and the statements on the waiver form would apply after MacDonald entered the room. We disagree with Garcia. The trial court got it right.
The record shows MacDonald did not arrest Garcia, and based on a review of all the factors, we conclude Garcia’s freedom of action was not curtailed to a degree associated with a formal arrest. (Pilster, supra, 138 Cal.App.4th at p. 1403 [inquiry is whether “a reasonable person [would] interpret the restraints used by the police as tantamount to a formal arrest?”].) Garcia was never told he was detained, he was not free to leave, or he was under arrest. He was never handcuffed. Garcia agreed to converse with both Heard and MacDonald separately. And for only a brief time all three were in the suite together. His admission of sexual misconduct to Heard was voluntary and the statement was not in response to an interrogation. Although MacDonald’s subsequent conversation sounded like typical police questioning, MacDonald was not wearing a uniform, he was seated behind the same desk as Heard, and the evidence showed he spoke with Garcia in a normal tone of voice. MacDonald’s entry into the room did not automatically change the setting into a custodial interrogation. To the contrary, Heard’s exit from the room leaving just one officer with Garcia would not indicate to a reasonable person they were suddenly under arrest. We recognize the length of the interview with MacDonald was rather long (see People v. Forster (1994) 29 Cal.App.4th 1746, 1753 [one hour and five minute detention relatively long]), but Garcia remained seated in the polygraph suite and was not moved to a more intimidating interrogation room. Earlier in the day, he had signed a waiver form stating he had no obligation to stay in the suite, and he had been told repeatedly he was free to leave. He was no longer attached to the polygraph machine. Additionally, there is no evidence either Heard or MacDonald were aggressive, confrontational, accusatory, or pressured him into making a statement. Finally, there is no evidence suggesting the officer arrested Garcia at the conclusion of the questioning in the suite. If the nature of the questioning during such a lengthy interview had been more aggressive, or if Garcia had been moved to an interrogation room by MacDonald, we would have had serious concerns about whether Garcia’s encounter was transformed into a constructive arrest. However, in light of the record before us, we conclude the trial court properly denied Garcia’s motion to suppress the statements he made to MacDonald.
Disposition
The judgment is modified to strike the convictions on counts 3 and 4 (solicitation (Pen. Code, § 653f, subd. (b)). This results in no change to the imposed sentence. As modified, the judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.