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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Mickey Lee HATT, Defendant and Appellant.

No. AO39643.

Decided: November 14, 1988

Rene Torres, First Dist. Appellate Project, San Francisco, Gary Brett Beeler, San Ramon, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Ronald E. Niver, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

The case at bench grew out of sales of narcotics to Officer John Hayes, an undercover police agent who was engaged in buying controlled substances through intermediaries, Deborah Larkin and Sean Love, her boyfriend.   The narcotic transactions eventually led to defendant Mickey Lee Hatt (appellant) as the source of the contraband.   Based upon these buys the police obtained a warrant to search appellant's residence at 912 Santa Cruz Drive, Pleasant Hill, California;  the search yielded a vast amount of contraband (including narcotics, narcotics paraphernalia, a .44 caliber Magnum revolver and cash).   After appellant's Miranda 1 motion to suppress his confession was denied, he was found guilty by jury of conspiracy to sell cocaine (count I) and possession of cocaine for sale (count III);  he was acquitted of a charge of sale of cocaine (count II).   Appellant was placed on probation on condition he serve 270 days in county jail.   Since the appeal at bench is centered upon the validity of appellant's confession, we set out only those facts that pertain to that issue.

At the Miranda hearing conducted on June 1, 1987, Officer Hayes testified that about 9:20 p.m. on November 13, 1986, he and eight police officers went to appellant's house to conduct a search pursuant to a warrant.   The warrant was served on appellant in the living room.   After finding contraband (cocaine, marijuana, packaging materials, cutting devices, gun, scale, etc.), appellant and his girlfriend were arrested.   In order to save him from discomfort and embarrassment, Officer Hayes asked appellant to follow him into the garage and to discuss the matter in private rather than in front of the people present in the living room.   Once in the garage, Officer Hayes asked if appellant knew why he was under arrest.   Appellant pretended as if he did not and tried “playing dumb.”   Thereupon, the officer explained that appellant was arrested for possession of cocaine for sale based upon the contraband found in the bedroom and appellant's prior sale of cocaine.   Appellant then initiated a discussion concerning why the officer thought he was in possession of narcotics for sale.   In reply, Officer Hayes pointed to the large amount of cocaine, the scale, the packaging materials, the weight equivalency charts, weapon and the cash, already found in the apartment.   However, when the conversation drifted away from the result of the search into prior sales, Officer Hayes immediately stopped appellant and called his attention to his constitutional rights.   Appellant answered that he knew his rights and upon the officer's request, he recited them from memory.   To be sure that appellant understood his constitutional rights, Officer Hayes delivered him the Miranda warnings and then asked appellant if “With those rights in mind, do you wish to talk to me?”   Appellant replied he did and agreed to talk.   Appellant then opened up and admitted that he supplied the one-eighth ounce of cocaine Officer Hayes had purchased from Ms. Larkin and Sean Love on October 29, 1986.   Appellant likewise conceded that he had been selling cocaine for approximately a year in amounts of a couple of eighths of an ounce a week and sometimes in larger amounts.

Appellant, who also testified at the Miranda hearing, admitted that he was warned about his constitutional rights at some point of the conversation;  that he understood and recited those rights to Officer Hayes;  and that he agreed to talk to the officer.   However, appellant claimed that he had made the incriminating statements (i.e., admitting the possession of the gun;  revealing the location of narcotics) before being warned about his rights.   He furthermore insisted that the officer used abusive language during the discussion;  that he was never correctly advised of his rights by the officer (i.e., Officer Hayes did not read back the Miranda warnings to him);  and that he was neither asked to, nor waived his Miranda rights.

After carefully resolving the conflict in evidence the trial court found that:  (1) any statements made by appellant in response to the officer's initial question, “Do you know why you're arrested?” were inadmissible because Officer Hayes had not advised appellant of his constitutional rights at that point;  (2) the officer subsequently did clearly convey to appellant his rights under Miranda;  (3) the incriminating statements were made by appellant after the Miranda warnings;  (4) appellant's subsequent statements incriminating himself were not the product of his earlier unadmonished denials;  and (5) appellant's indication that he understood his rights and was willing to talk to the officer amounted to a waiver.   Consistent therewith, with the exception cited, the trial court denied appellant's motion to suppress evidence.

Appellant contends on appeal that his confession to the police was inadmissible in evidence because (a) the waiver of his Miranda rights was not voluntary (People v. Honeycutt (1977) 20 Cal.3d 150, 141 Cal.Rptr. 698, 570 P.2d 1050);  (b) the record fails to show that he waived his rights explicitly;  and (c) the confession at bench was the result of abusive language and pressure on the part of Officer Hayes.   In addition, appellant claims that he did not receive adequate legal assistance inasmuch as his trial counsel failed to argue that in determining the voluntariness of the confession the proper legal standard is proof beyond a reasonable doubt.  (People v. Jimenez (1978) 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672.)   We find no merit to any of these contentions and affirm the judgment.

I. Appellant's Confession was Admissible in Evidence

A. The Waiver of Miranda Rights was Voluntary

The record shows without equivocation that appellant made the incriminating statements to the officer after he had been advised per Miranda, and that he explicitly agreed to talk to the police with full knowledge of his rights.   Nonetheless appellant argues that the waiver at bench was involuntary because it arose from a “conversation-warning-interrogation” sequence which under People v. Honeycutt, supra, 20 Cal.3d 150, 141 Cal.Rptr. 698, 570 P.2d 1050 and its progeny is deemed involuntary.   Appellant claims that Officer Hayes took him into the garage in order to draw him into a conversation and thus soften him up in order to elicit incriminating statements from him.   We find Honeycutt factually distinguishable and therefor inapplicable.

In Honeycutt, Detective Williams, the investigating officer, was an old acquaintance of the defendant who was arrested for suspicion of murder.   Prior to giving the Miranda warnings, the officer engaged the defendant in a lengthy conversation during which they discussed unrelated past events, former acquaintances and the victim.   For the apparent purpose of endearing himself to the defendant, the officer mentioned that the victim had been a suspect in a homicide case and was thought to have homosexual tendencies.   Significantly enough, Detective Williams openly admitted at the Miranda hearing that the very purpose of initiating the conversation with the defendant was to soften him up and get him to talk.   The Miranda admonishment was read to the defendant only after he had already been softened up and had expressed his willingness to talk about the murder.   Under those circumstances the Supreme Court agreed with the defendant that the waiver of his rights was neither knowing nor voluntary and held that “When the waiver results from a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation, the subsequent decision to waive without a Miranda warning must be deemed involuntary․”  (People v. Honeycutt, supra, 20 Cal.3d at p. 160, 141 Cal.Rptr. 698, 570 P.2d 1050.)   In so holding, the court placed special emphasis on the fact that “the conversation-warning-interrogation sequence was intended to elicit a confession from the inception of the conversation.”  (Id., at p. 159, 141 Cal.Rptr. 698, 570 P.2d 1050.)

 None of the Honeycutt evidence is present here.   The trial court made specific findings contrary to the evidence in Honeycutt.   And the evidence herein supports those findings.   For example, Officer Hayes testified (1) that he took appellant into the garage to make him feel more comfortable;  and (2) that he advised appellant of his rights after a brief conversation explaining why he was being arrested for possession of cocaine for sale.2  The trial court did not find and, indeed, the evidence would not support the critical conclusion found by the Supreme Court in Honeycutt —that the half-hour unrecorded conversation with an old acquaintance (i.e., the detective) softened up the defendant sufficiently so that his decision to waive was induced prior to the Miranda admonitions.   Furthermore, there was no finding and no evidence that the “softening up” involved disparagement of the victim and ingratiating conversation as found in Honeycutt.   Under these circumstances appellant's contention that the waiver of his Miranda rights was the result of the proscribed “conversation-warning-interrogation” sequence and thus involuntary, is entirely unfounded.

B. The Waiver of Miranda Rights Need not be Explicit

Appellant's next argument that the waiver at bench should be deemed infirm because the record fails to show that he signed a waiver form or in another way explicitly relinquished his Miranda rights, is likewise devoid of merit.

 It is well established that express waiver of Miranda rights is not required under either the federal or state Constitutions or Miranda.  (North Carolina v. Butler (1979) 441 U.S. 369, 375–376, 99 S.Ct. 1755, 1758–1759, 60 L.Ed.2d 286;  People v. Mitchell (1982) 132 Cal.App.3d 389, 406, 183 Cal.Rptr. 166.)   Rather, the issue of waiver must be determined under the peculiar facts and circumstances of each case, taking into account the background, experience and conduct of the defendant.  (People v. Brockman (1969) 2 Cal.App.3d 1002, 1008, 83 Cal.Rptr. 70.)   In accordance therewith, it has been repeatedly held that the waiver was valid when, after being advised of his Miranda rights, the defendant stated he understood them and was willing to discuss the matter without requesting an attorney.   (People v. Mitchell, supra, 132 Cal.App.3d at p. 404, 183 Cal.Rptr. 166;  People v. Brockman, supra, 2 Cal.App.3d at p. 1009, 83 Cal.Rptr. 70;  People v. Chambers (1969) 276 Cal.App.2d 89, 106, 80 Cal.Rptr. 672.)

The case at bench falls squarely within the above stated premises.   The record shows that appellant was fully aware of his Miranda rights;  as a matter of fact, he was able to recite those rights from memory.   Thereafter, in order to avoid any confusion, Officer Hayes himself repeated the Miranda warnings to appellant, asked him if he understood those rights and was willing to talk to the officer.   Importantly enough, the questioning continued only after appellant gave affirmative replies to the latter questions and expressed his willingness to talk to the officer.3  It is, of course, elementary that the issue of a waiver is a factual question to be determined by the trial judge and his ruling will not be disturbed on appeal where, as here, it is supported by substantial evidence.  (People v. Brockman, supra, 2 Cal.App.3d at p. 1008, 83 Cal.Rptr. 70.)

C. The Confession was not Coerced

 Appellant's last suggestion that the incriminating statements at bench were the result of abusive language and pressure on the part of the police, requires only a brief reply.   It is black letter law that the voluntariness of the confession must be assessed in the totality of the circumstances (People v. Lara (1967) 67 Cal.2d 365, 383–384, 62 Cal.Rptr. 586, 432 P.2d 202;  In re Walker (1974) 10 Cal.3d 764, 777, 112 Cal.Rptr. 177, 518 P.2d 1129), and that in case of conflicting evidence we must accept the version of the events which is most favorable to the respondent (People v. McClary (1977) 20 Cal.3d 218, 227, 142 Cal.Rptr. 163, 571 P.2d 620;  People v. Duck Wong (1976) 18 Cal.3d 178, 187, 133 Cal.Rptr. 511, 555 P.2d 297).   When so viewed, the evidence clearly reveals that appellant made his statements after having been properly advised and waived his Miranda rights and that he was not threatened, pressured or tricked into a waiver.   Thus, the record shows that the discussion prior to the Miranda warning was short, not exceeding 10 to 20 minutes.   The conversation took place at appellant's residence rather than the police station.   That the atmosphere of the discussion was not threatening or intimidating is further demonstrated by the fact that before reciting Miranda appellant joked with Officer Hayes and told him the street version of the Miranda warning.   The record as a whole thus abundantly supports the trial court's finding that the waiver given by appellant was voluntary, free from coercion.   As succinctly stated in Miranda v. Arizona, supra, 384 U.S. at p. 478, 86 S.Ct. at p. 1630:  “In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible.   Confessions remain a proper element in law enforcement.   Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.   The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated․  Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”  (Emphasis added.)

II. Appellant was not Denied Effective Assistance of Counsel

Appellant's alternative argument rests on the claim of inadequate legal representation.   Appellant complains that he was denied effective legal assistance because his trial counsel failed to argue that the compliance with Miranda and the voluntariness of the confession must be proved beyond a reasonable doubt.  (People v. Jimenez, supra, 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672.)   Appellant insists that the rule announced in Jimenez has survived the passage of Proposition 8.  (Cal. Const., art. I, § 28, subd. (d);  People v. Azure (1986) 178 Cal.App.3d 591, 603–605, 224 Cal.Rptr. 158;  People v. Barrios (1985) 166 Cal.App.3d 732, 736–742, 212 Cal.Rptr. 644.)   We disagree.

 It is well settled that under the federal authorities the voluntariness of the confession must be proven only by a preponderance of evidence.  (Lego v. Twomey (1972) 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618;  Colorado v. Connelly (1986) 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473.)   While Jimenez, based upon independent state grounds (i.e., Cal. Const., art. I, § 15), raised the prosecution's burden of proof beyond a reasonable doubt (People v. Jimenez, supra, 21 Cal.3d at pp. 605, 608, 147 Cal.Rptr. 172, 580 P.2d 672), this rule has been changed by the adoption of Proposition 8.  Article I, section 28, subdivision (d) of the California Constitution (which incorporates the Truth in Evidence provision of Proposition 8) provides in relevant part that “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.”   In interpreting the above provision, our Supreme Court held that “in the absence of express statutory authority therefor courts may not exclude evidence seized in violation of either the state or federal Constitution unless exclusion is compelled by the federal Constitution.”  (In re Lance W. (1985) 37 Cal.3d 873, 888–889, 210 Cal.Rptr. 631, 694 P.2d 744.)

That the above holding applies also to evidence obtained in violation of Miranda, is demonstrated by People v. May (1988) 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307, a recently decided Supreme Court case.   In May, the prosecution sought to introduce defendant's statement, obtained in violation of his privilege against self-incrimination, for the purpose of impeachment.   Such statement is admissible under the federal law (Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1), but inadmissible under the California law (People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272).   The trial court admitted the disputed evidence holding that Proposition 8 has abrogated Disbrow and rendered the federal law applicable.   On appeal the defendant contended that the privilege exception set out in section 28, subdivision (d) of the California Constitution prevailed and, hence, the state law remained in force.   The Supreme Court rejected such contention and held that Evidence Code section 940 which provides that a person has a privilege to refuse to disclose any matter that may tend to incriminate him relates only to substantive, not remedial rights.   The court further emphasized that section 28, subdivision (d), requires the abrogation of the judicially declared rule for a constitutional violation based on police misconduct (i.e., the type of rule announced in Jimenez ) and also that under that section, evidence must be excluded only if that result is required by the United States Constitution.   (People v. May, supra, 44 Cal.3d at pp. 316–318, 243 Cal.Rptr. 369, 748 P.2d 307.)

We briefly observe that both People v. Azure, supra, 178 Cal.App.3d 591, 224 Cal.Rptr. 158 and People v. Barrios, supra, 166 Cal.App.3d 732, 212 Cal.Rptr. 644 relied on an erroneous interpretation of Evidence Code section 940 in reaching the conclusion that Jimenez has continued validity despite the passage of Proposition 8.   It follows that they are deemed superseded by the Supreme Court holding in May.

The above discussion makes it manifest that in California the proper legal test of determining the voluntariness of confession is proof by a preponderance of evidence.   As a consequence, appellant cannot well complain that he was deprived of effective legal assistance by his trial counsel's failure to raise the inapplicable and legally erroneous Jimenez standard.   (Strickland v. Washington (1984) 466 U.S. 668, 688–690, 104 S.Ct. 2052, 2064–2066, 80 L.Ed.2d 674;  People v. Ledesma (1987) 43 Cal.3d 171, 216–218, 233 Cal.Rptr. 404, 729 P.2d 839.)

The judgment is affirmed.


1.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

2.   It is well settled that brief comments on the strength of the evidence against the suspect do not amount to a violation of either the letter or the spirit of Miranda.  (People v. Patterson (1979) 88 Cal.App.3d 742, 749–752, 152 Cal.Rptr. 183;  People v. Kyllingstad (1978) 85 Cal.App.3d 562, 565–566, 149 Cal.Rptr. 637.)

3.   The illustrative parts of the record read as follows:  “[Testimony of Officer Hayes:]  MR. PETERSON:  Officer Hayes, what Miranda rights did you advise the defendant of?  [¶] OFFICER HAYES:  I told him you have the right to remain silent.   Anything that you say can be used against you in Court.  [¶] You have the right to an attorney, to have him present with you while your being questioned.   If you cannot afford an attorney, one will be appointed to represent you before any questions if you wish one.”“Q. Then he [appellant] gave you what you felt was the correct Miranda, and then what did you do?   What was the very next thing you did?  [¶] A.   After he recited the correct Miranda rights?  [¶] Q.   Okay.  [¶] A.   I said, ‘Okay to make sure there's no confusion, let me repeat them back to you.’   So I repeated them back to him, stating them the way I would say them.  [¶] Q.   And did you ask him if he understood each of those rights at some point in time?  [¶] A.   I asked if he understood and he said he did and I asked him if he would talk to me and he said he would.  [¶] Q.   Did you ask him about a waiver or just would he talk to you?  [¶] A.   I believe what was said was, ‘Do you understand those rights?’  [¶] And he said, ‘Yes.’  [¶] And I said, ‘Do you want to talk to me?’  [¶] And he said, ‘Yes.’ ”  (Emphasis added.)“[Appellant's testimony:]  Q.   Now you—just like you recited your rights here—Miranda rights here in Court—is how you responded to Officer Hayes?  [¶] A.   Pretty much, yeah.  [¶] Q.   And you told him you understood those rights?  [¶] A.   Pretty much so, yeah.  [¶] Q.   And he asked if you would talk to him and you said— [¶] A.   He said, ‘Will you talk to me?’   And I said ‘Yeah, I will talk to you.’ ”  (Emphasis added.)

ANDERSON, Presiding Justice.

CHANNELL and PERLEY, JJ., concur.

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