People v. Potter

• Decision Date: 13 July 2021
• Docket Number: C088889
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert William POTTER, Defendant and Appellant.

66 Cal.App.5th 528

281 Cal.Rptr.3d 273

The PEOPLE, Plaintiff and Respondent,

v.Robert William POTTER, Defendant and Appellant.

C088889

Court of Appeal, Third District, California.

Filed July 13, 2021

As Modified on Denial of Rehearing July 29, 2021

Certified for Partial Publication.^*

Laurel Thorpe and Jacquelyn Larson, Auburn, under appointments by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.

HOCH, J.

Defendant Robert William Potter sexually abused his daughter, H., when she was five years old. He admitted the abuse during an interrogation at the police station. Convicted of one count of oral copulation with a child 10 years of age or younger, defendant was sentenced to serve an indeterminate term of 15 years to life in state prison.¹

On appeal, defendant contends: (1) his confession should have been excluded because it was unlawfully obtained during custodial interrogation without Miranda² warnings; (2) defendant's trial counsel provided constitutionally deficient assistance by failing to object to H.’s testimony on competency grounds; (3) the trial court prejudicially abused its discretion and violated defendant's federal constitutional rights by allowing the prosecution to amend the information during trial; and (4) the trial court's determination that defendant possessed the ability to pay a $5,000 restitution fine, as well as court security and court operations assessments of $30 and $40, respectively, is not supported by substantial evidence and violates his federal constitutional rights.

We affirm. As we shall explain, despite being at the police station when questioned by police, the totality of the circumstances reveal defendant was not in custody during that interrogation, and therefore Miranda warnings were not required. Defendant's trial counsel did not provide constitutionally deficient assistance by failing to object to H.’s testimony because a reasonable attorney could have concluded H. was competent to testify and further questioning regarding her competency would have so established. The information was also properly amended. Finally, we conclude the trial court's ability to pay determination is supported by substantial evidence.

BACKGROUND

As previously stated, defendant sexually abused his daughter, H., when she was five years old. At trial, H. testified to the details of the abuse. The nature of the contentions raised in this appeal do not require recitation of those details here. Instead, we shall set forth the circumstances surrounding defendant's confession to having sexually abused his daughter.

Phone Call with Detective Wirtz

In March 2017, H. disclosed the sexual abuse to her mother and provided additional details regarding that abuse to a police officer who responded to H.’s grandmother's house to take her statement. About a month later, she revealed further details during an interview at the special assault forensic evaluation (SAFE) center.

Thereafter, Detective Jenny Wirtz called defendant to ask him whether he would agree to come down to the police station for an interview. Defendant apparently missed that phone call and called Wirtz back. Their phone conversation took place on December 5, 2017.

After some preliminary questions, Detective Wirtz asked defendant whether he had been sexually assaulted in his past. Defendant acknowledged that was true. The detective asked him to tell her about it. Defendant revealed that his uncle had molested him when he was 12 or 13 years old. After some follow-up questions, Wirtz told defendant that she believed "some things have been goin’ on with some other family members" that "kinda stems from" defendant's prior abuse. Defendant admitted engaging in inappropriate sexual contact with his brother and sister when he was still a child, and "one more on sister" when he was older, but claimed "[t]hat was a one-time thing." The detective then directed the questioning towards defendant's relationship with H. and informed defendant: "There's been some allegations." Defendant responded that he had not spoken to H.’s mother since she "took ‘em away," referring to H. and K., another child defendant had with H.’s mother, adding: "So I - I have no information on anything."

We briefly pause our summary of the phone call to note that H.’s mother took H. and K. away from defendant in October 2015 for reasons unrelated to the sexual abuse. However, this was not the first time H. was taken away from defendant. H.’s mother did so when she was three years old after H. told her mother that defendant had played a "Popsicle game" with her and described defendant putting his penis in her mouth. H.’s mother immediately called child protective services, law enforcement became involved, and H. was interviewed at the SAFE center. Because H. was unable to answer any questions regarding the alleged abuse, criminal charges were not pursued. After about two years of keeping defendant's children away from him, H.’s mother ran into him at a fast food restaurant. Defendant denied abusing his daughter, H.’s mother believed him, and defendant reentered their lives.

Returning to the phone call between Detective Wirtz and defendant, the detective asked him to confirm that H.’s mother had taken H. away from him once before, which he did, prompting the detective to ask, "what was that about?" Defendant responded, "it was supposedly the same thing." Wirtz asked: "Which is what?" Defendant answered, "you called me about the sexual allegations." He then explained that H. had previously told her mother that "some bad man" had done "somethin’ " to her, and that H.’s mother assumed it was defendant because he was "[t]he only man she was around," but defendant did not know any of the details. The detective responded: "And you didn't ask?" Defendant answered: "I don't care. I - all I cares about is seein’ my daughter. I don't care about you tryin’ to accuse me of somethin’ if I know I didn't do it, and I'm tellin’ you I didn't do it." Defendant then explained that what his uncle had done to him "messed up" his life, adding: "I'll be damned if I wanna mess up ... my own kids at that."

At this point in the conversation, Detective Wirtz told defendant: "I think that you probably -- because of what you went through -- you know, would want your daughter to get the help that she needs." Defendant agreed. The detective then suggested defendant start with "telling the truth about what happened," adding: "You're essentially calling her a liar." The conversation became more and more contentious from this point forward, with defendant repeatedly denying having abused his daughter and the detective insisting that H. was telling the truth.

Eventually, Detective Wirtz asked defendant if he would be willing to come down to the police station to take a polygraph examination. Defendant agreed, but said he did not know when he would be able to do so. After further arguing over when that examination would take place, defendant said he would call back the next day to set up a time.

Prepolygraph Interview with Detective VonSchoech

Two weeks after the phone conversation with Detective Wirtz, on December 19, defendant came down to the police station for the polygraph examination. He was placed in an interview room with Detective Konrad VonSchoech for a prepolygraph interview. The interview lasted about 30 minutes. At the start of the interview, VonSchoech informed defendant that the interview was completely voluntary, adding "you don't have to talk to me if you don't want." Defendant responded: "I got you." The detective advised defendant: "You can stop this anytime you want and walk out, there's the door." He then acknowledged that the door was closed, but explained that was "for privacy, but it's unlocked." Defendant stated: "Right I know what you mean." The detective continued: "You can walk out anytime you want, right?"

Detective VonSchoech then explained how a polygraph examination is conducted and told defendant: "I'm working here for you today, okay? I'm on your side and I want you to pass. I'm not here to judge you." VonSchoech then told defendant the purpose of the prepolygraph interview was to "come up with the right questions to ask you so that you can pass." The detective asked defendant why he was there. Defendant explained he was accused of molesting his daughter. After some background questions regarding H., VonSchoech asked what she accused defendant of doing. Defendant explained that a detective had told him that H. accused him of sexually assaulting or molesting her. After further background questions regarding where defendant grew up and various other family members, VonSchoech asked about defendant's relationship with H.’s mother and the frequency with which he spent time with H. Defendant acknowledged he had H. "every weekend" for an unspecified amount of time when she was five years old.

Detective VonSchoech again asked defendant whether he knew what H. had accused him of doing to her. Defendant explained that a detective told him "a little bit about it" and also talked to him about his past. VonSchoech responded: "What - what about your past?" Defendant answered: "Um, yeah, I was molested." In response to follow-up questioning, defendant provided details about that abuse and acknowledged abusing his brother and sister when he was still a child. The detective said "that kind of puts things into perspective a little bit" and added: "I think a lot of these, um, incidents, um, you know, people do not want to hurt the other person. Um, a lot of it is learned behavior. Um, a lot of it is familiarity. Um, it's comforting to some degree." VonSchoech told defendant "nothing you say is going to shock me" and again stated that he wanted defendant to pass the polygraph examination.

The questioning then turned to the allegations of...