People v. Valdivia
| Decision Date | 30 April 1986 |
| Citation | 180 Cal.App.3d 657,226 Cal.Rptr. 144 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Jose Nuno VALDIVIA, Defendant and Appellant. G001973. |
Is a Miranda warning necessarily defective for failure to specifically include an advisement of a right to an attorney during, as well as before, questioning? 1 To this and several related issues, we conclude not.
The bullet-punctured corpse of a male adult was found on the sidewalk in front of the Siete Leguas Bar in Santa Ana in the early morning hours of October 1, 1983. A white Chevrolet was parked nearby. The barmaid told investigating officers the driver of the vehicle had a gun and argued with the victim that evening. She was able to give them a physical description of the man, but not his name. The victim's roommate identified the car's owner as Jose Valdivia, however, and said he worked in the same pizza restaurant as the victim.
A Department of Motor Vehicles check confirmed the vehicle was registered to a Jose Valdivia, and the manager of the restaurant where he was employed gave officers a photograph of him. They also obtained several possible addresses from different sources. None proved fruitful until they were invited into the home of Juan Roman, who officers believed was Valdivia's brother. Just as they were explaining to Roman why they were there, Valdivia walked out of a bathroom. An officer recognized him from the photograph. He asked Valdivia his name. At Roman's prompting in Spanish, Valdivia responded, "Damasio Cruz." Valdivia denied knowing of the shooting, owning a white Chevrolet, or working at the pizza restaurant; but the officers were not persuaded.
Valdivia was handcuffed and transported to the Santa Ana Police Department. Officers tape-recorded the Miranda warning, which was given in Spanish. The translated transcription reads: Valdivia eventually admitted shooting the victim, but claimed it was in self-defense.
Valdivia's Penal Code section 1538.5 motion to suppress his statements at Roman's home and after the Miranda advisement was denied. Other pretrial and midtrial procedures to exclude the evidence also failed, and his prearrest statements were repeated for the jury and the transcription of his in-custody interview was read into the record.
Valdivia was convicted of voluntary manslaughter. He contends the pre-Miranda statements in his brother's house should have been excluded. The in-custody interview is also flawed, he argues, because the Miranda advisement was incomplete and misleading, although he has yet to claim he was confused or misled.
Because the officers had probable cause to arrest him on sight, Valdivia contends they were obliged to give the Miranda warning before asking any questions at his brother's home. Not so. Although he was obviously not free to go until the officers resolved the question of his identity, Valdivia was not advised of that: "Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.' " (Oregon v. Mathiason (1977) 429 U.S. 492, 495, 97 S.Ct. 711, 713, 50 L.Ed.2d 714.) Our Supreme Court expressed the principle in a similar fashion: (People v. Leach (1975) 15 Cal.3d 419, 443, 124 Cal.Rptr. 752, 541 P.2d 296.) Thus, custody, as the cases define it, contains two elements: actual restraint of freedom combined with the suspect's understanding of that restraint. Only the former occurred here.
Although Valdivia was a suspect when the initial questioning occurred, the contact came in the home of his brother, who was also present. The officers did not draw their weapons or place him under arrest. Thus, the encounter was not coercive.
Moreover, Valdivia was not subjected to an interrogation designed to elicit a confession. He was asked but a few preliminary and general identification questions which were not in themselves coercive. Questioning for the purpose of establishing an individual's identity need not be preceded by Miranda warnings (California v. Byers (1971) 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9; People v. Powell (1986) 178 Cal.App.3d 36, 223 Cal.Rptr. 475), although information obtained at booking "cannot be put to any incriminatory uses." (People v. Rucker (1980) 26 Cal.3d 368, 389, 162 Cal.Rptr. 13, 605 P.2d 843.)
Finally, even were we to conclude the statements were improperly received, reversal would not be required here. Valdivia's denials of knowledge of the killing or of his own car and employment at the initial contact were no more damning than his use of a false name, which was obviously admissible. They proved but the same thing, his consciousness of guilt.
As noted above, the Miranda warning given to Valdivia in Spanish at the police station was taped, translated, and transcribed. Relying on United States v. Noti (9th Cir.1984) 731 F.2d 610, he contends the in-custody interview should have been suppressed. Noti was told only that he had "the right to the services of an attorney before questioning...." (Id., at p. 614.) A divided panel of the Ninth Circuit determined that warning was inadequate because the officer failed to advise of his right to counsel both before and during questioning. In so holding, the Noti majority relied on an earlier Fifth Circuit opinion, Windsor v. United States (5th Cir.1968) 389 F.2d 530. (But see United States v. Pheaster (9th Cir.1976) 544 F.2d 353 and People v. Winkler (1986) 178 Cal.App.3d 750, 224 Cal.Rptr. 28.)
In Windsor the defendant was arrested one day after the Supreme Court announced its decision in Miranda. When FBI agents contacted him, they advised "he was not under arrest and was not being detained in any way and was not to construe this as being detained; that he did not have to make a statement; ... and that he could speak to an attorney or anyone else before he said anything at all." (Id., 389 F.2d at p. 532.) The Fifth Circuit reversed his conviction because "[m]erely telling him that he could speak with an attorney or anyone else before he said anything at all is not the same as informing him that he is entitled to the presence of an attorney during interrogation and that one will be appointed if he cannot afford one." (Id., at p. 533.)
Not all federal circuits are in agreement with this position, however. Although the precise warnings given to the defendant in United States v. Adams (7th Cir.1973) 484 F.2d 357 were not available to the appellate court, the panel assumed "the card did not include the warning regarding the presence of an attorney...." (Id., at pp. 361-362.) Even so, the court found the warning to be sufficient.
Earlier, the Second and Seventh Circuits reached similar results. The warning in United States v. Lamia (2nd Cir.1970) 429 F.2d 373 included only the statement that the defendant "had a right to an attorney, if he wasn't able to afford an attorney, an attorney would be appointed by the court." (Id., at pp. 374-375.) The court noted the defendant (Id., at p. 377; see also California v. Prysock (1981) 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696.)
In Tasby v. United States (8th Cir.1971) 451 F.2d 394, the defendant was advised only that an attorney would be appointed " 'at the proper time.' " (Id., at p. 398.) The Seventh Circuit panel agreed this admonition, "even though a slight deviation from the Miranda prescription, [did] not negate the over-all effectiveness of the warning" and affirmed the convictions. (Id., at pp. 398-399.)
Finally, we turn to the language of Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 itself. There, the Supreme Court announced, (Id., 384 U.S. at p. 444, 86 S.Ct. at p. 1612, 16 L.Ed.2d at pp. 706-707.)
While the warning given to Valdivia deviated somewhat from the accepted...
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