Not to be published in the official reports


I. The Question First Technique



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I. The Question First Technique

Outside the presence of the jury, the trial court heard Officer Lopez’s testimony concerning the question first technique. Lopez testified that during the pre-Miranda phase of the interview, defendant was only asked to provide biographical information for herself, her son, and her spouse. According to Lopez, these were foundational questions “that would typically be asked as part of the booking process” and, because they were unrelated to the crime itself, did not require a Miranda warning.11

After hearing Lopez’s testimony, the trial court held that the pre-Miranda questions did not constitute an interrogation and, therefore, no Miranda warning was required for that phase of the interview. The trial court stated: “In this particular situation involving Ms. Rios, questions were asked about family members, friends, phone numbers and addresses. I would note there were no questions asked about the circumstances of this case. In my view the facts of Ms. Rios’ case, this case, are quite a bit different than the facts of the Seibert case. I don’t believe there is any sort of interrogation . . . pre-Miranda which is meant to elicit an incriminating response.”

On appeal, defendant contends, as she did below, the pre-Miranda questions constituted an improper custodial interrogation. Specifically, she argues that because the officers were aware that her son was a suspect in the killing, the pre-Miranda questions concerning her son’s name and phone number were designed to “establish her connection to the other suspect in the crime.” (Internal record reference omitted.) Defendant argues: “The only time appellant told the officers her son’s name, date of birth, and phone number was during the pre-Miranda questioning. After she was Mirandized, the officers repeatedly adverted to the pre-Miranda information she had provided about her son to challenge her responses to their questions. [¶] Lopez acknowledged that the phone number Motto said Giovanni gave to police was the number of the phone appellant had when she was arrested, and therefore she could not have called that number from her phone. The only other phone number for Giovanni that was discussed during the interrogation was the number appellant provided during the pre-Miranda portion of the interrogation.” (Internal record references omitted.)

For the reasons that follow, we conclude that no Miranda warning was required for the initial phase of the interview.
A. General Miranda Principles

In People v. Andreasen (2013) 214 Cal.App.4th 70, the appellate court set forth the following general principles concerning the Miranda rule.

“To protect the constitutional privilege against self-incrimination, the Miranda rule requires that before the police may question the defendant during a custodial interrogation, the defendant must be advised of the right to remain silent and to an attorney and that any statements may be used against him or her in court. (People v. Gomez (2011) 192 Cal.App.4th 609, 627.) If the defendant invokes the right to silence or to an attorney, the interrogation must cease. (People v. Davis [(2009)] 46 Cal.4th [539,] 585.)

“Generally, statements elicited in violation of these Miranda principles may not be used against the defendant at trial (People v. Gomez, supra, 192 Cal.App.4th at p. 627), . . . ). This exclusionary rule is applied in prophylactic fashion to deter coercive investigative questioning and advance the trustworthiness of trial evidence, even if the defendant’s statements were voluntary apart from the Miranda violation. (See Smith v. Illinois (1984) 469 U.S. 91, 95, fn. 2, 99, fn. 8; People v. Bradford (1997) 14 Cal.4th 1005, 1033.)

“The prophylactic Miranda protections are triggered only if a defendant is subjected to a custodial interrogation. (People v. Ochoa (1998) 19 Cal.4th 353, 401.) Interrogation refers not only to express questioning, but also to its functional equivalent; i.e., ‘“any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”’ (Pennsylvania v. Muniz (1990) 496 U.S. 582, 600-601 (Muniz), italics added.) However, not all police questioning of a person in custody constitutes interrogation. (People v. Franzen (2012) 210 Cal.App.4th 1193, 1201.) The exclusion for communications ‘normally attendant to arrest and custody’ recognizes that the police may properly perform their normal administrative duties that are distinct from their investigatory function without giving rise to Miranda protections. (Muniz, supra, 496 U.S. at pp. 600-602; see People v. Hall (1988) 199 Cal.App.3d 914, 921 . . . .)

“For example, under the ‘“routine booking question” exception’ to the Miranda rule, the police need not provide Miranda warnings prior to asking routine booking questions to secure biographical information. (Muniz, supra, 496 U.S. at pp. 601-602; see People v. Quiroga (1993) 16 Cal.App.4th 961, 967; People v. Hall, supra, 199 Cal.App.3d at p. 921.) Also, the Miranda requirements are generally not implicated when the police ask questions related to safety concerns that arise during the arrest or booking process. (People v. Gomez, supra, 192 Cal.App.4th at pp. 634-635 [Miranda not triggered during routine booking question about gang affiliation designed to ensure safety of jail placement]; People v. Jones (1979) 96 Cal.App.3d 820, 827-828 [Miranda not triggered by arrest question related to defendant’s medical condition].) Similarly, casual conversations or ‘smalltalk’ unrelated to the offense do not typically constitute a Miranda interrogation. (People v. Gamache (2010) 48 Cal.4th 347, 388; People v. Lewis (1990) 50 Cal.3d 262, 274-275; People v. Franzen, supra, 210 Cal.App.4th at pp. 1201-1203 . . . .)

“The fact that information gathered from these routine questions or casual conversations turns out to be incriminating does not alone render the statements inadmissible. (See People v. Gomez, supra, 192 Cal.App.4th at p. 629.) This principle excluding routine or casual communications from Mirandas coverage can apply even when a defendant has already received Miranda warnings and invoked his or her rights. (U.S. v. Foster [(2000)] 227 F.3d [1096,] 1103-1104; Commonwealth of Pennsylvania v. Abdul-Salaam [(1996)] 678 A.2d [342,] 350-351.)

“However, a Miranda interrogation may emerge during routine or casual exchanges if the police ask questions ‘“that are designed to elicit incriminatory admissions.”’ (Muniz, supra, 496 U.S. at p. 602, fn. 14; see People v. Gomez, supra, 192 Cal.App.4th at p. 627.) For example, the Muniz court held that although a defendant’s confused manner of answering routine biographical questions was admissible to prove his intoxication at the time of his arrest for drunk driving, the defendant’s inability to answer a more specific question about his birth date that went beyond a routine booking question was inadmissible. (Muniz, supra, 496 U.S. at pp. 585-586, 592-593, 598-602 [due to absence of Miranda warnings, defendant’s inability to state the date of his sixth birthday was inadmissible to show confused mental state]; see U.S. v. Hinckley (D.D.C. 1982) 217 U.S. App.D.C. 262 [672 F.2d 115, 118-126] [due to Miranda violation, prosecution could not rebut insanity defense with defendant’s responses to federal agents’ investigatory questioning about defendant’s social, employment, educational, and medical background].)

“The courts caution that the facts of any routine questioning or casual conversation must be carefully scrutinized to ensure that the police are not using the communication as a pretext for eliciting incriminating information. (See People v. Gomez, supra, 192 Cal.App.4th at p. 630.) This cautious approach is particularly appropriate when a defendant has invoked his or her Miranda rights before the communication. (U.S. v. Foster, supra, 227 F.3d at p. 1103 [‘conversations occurring after a person invokes his or her Miranda rights must be viewed with suspicion and introduced at trial only with the utmost caution’].) When evaluating whether the Miranda requirements should apply during noninvestigative routine or casual exchanges, relevant factors to consider include the nature of the questions, the context of the questioning, the knowledge and intent of the officer asking the questions, the relationship between the questions and the crime, the administrative need for the questions, and any other indications that the questions were designed to elicit incriminating evidence. (People v. Gomez, supra, 192 Cal.App.4th at pp. 630-631.)

“On appeal from the denial of a Miranda exclusionary motion, we defer to the trial court’s factual and credibility findings if supported by substantial evidence, and independently determine whether the challenged statements were illegally obtained. (People v. Ochoa, supra, 19 Cal.4th at pp. 401-402; People v. Gomez, supra, 192 Cal.App.4th at p. 627.)” (People v. Andreasen, supra, 214 Cal.App.4th at pp. 86-88, fn. omitted.)





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