Filed 8/28/13 P. v. Kotz CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055975

v.                                                                       (Super.Ct.No. FVA1000704)

SANDRA LEE KOTZ,                                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Arthur Harrison,

Judge. Affirmed.

         Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, James D. Dutton and Donald W.

Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
         A jury found defendant and appellant Sandra Lee Kotz guilty of first degree

murder (Pen. Code, § 187, subd. (a), count 1)1 and found true the enhancement allegation

that she personally and intentionally discharged a firearm causing death. (§§ 12022.53,

subd. (d).) The trial court sentenced defendant to a total indeterminate term of 50 years

to life in state prison.

         On appeal, defendant contends that the trial court erred in denying her motion in

limine to suppress statements she made to police officers at the scene and at the police

station. We disagree and affirm.

                                  FACTUAL BACKGROUND

         Prosecution Evidence

         The victim was defendant’s sister-in-law. Around May 1, 2010, the victim let

defendant move in with her and was helping her to find a job.

         At 2:00 a.m. on May 2, 2010, Officer Joseph Maltese responded to a dispatch call

regarding a person driving around in a car, possibly with a body inside of it. When he

arrived at the location, he observed defendant sitting on a curb near the end of a cul-de-

sac, with two duffel bags next to her. Officer Maltese drove past defendant and turned

around in the cul-de-sac and then saw her standing by a trash can, closing the lid. He

stopped his car and turned on his alley light to illuminate the area. Defendant started

walking toward the police car. Officer Maltese got out of the patrol car and noticed that

defendant was crying and very distraught. He asked her name and what was wrong. She

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


                                                2
replied, “You know what’s wrong.” Because of the nature of the dispatch call, Officer

Maltese asked for her purse, set it down, and patted her down for weapons. He then

started recording their conversation. The recording was played for the jury at trial.

Defendant said her mother told her to just turn herself in. Officer Maltese asked her what

was wrong and what happened. She mentioned something about torture, so he asked who

was torturing her. He then asked what color the car was. She said, “You know what

color it is.” He told her he only saw her sitting “there” and that she looked like she

needed help. He said, “That’s why I’m here. Okay. What’s wrong? You shot

somebody? Who did you shoot?” Defendant responded that her sister-in-law was

torturing her. Officer Maltese asked again where the car was located. She said it was in

the field, and that the car was white. Officer Maltese repeated that the police were there

to help her. Defendant said she had been driving around for 10 hours and did not know

what to do. He asked what kind of car it was and who it belonged to. She said it was

“hers.” Defendant then started talking about her ex-husband and her divorce, and she

said that the victim was out of her mind. Officer Maltese said it was going to be okay,

and defendant said, “No it’s not. Now they’re gonna know that I don’t have a gun and

they’ll hurt me now.”

       Officer Maltese handcuffed defendant, read defendant her Miranda2 rights, and

asked if she understood them. Defendant said, “No, you said it too fast.” Officer Maltese

began to repeat them, when defendant said, “I already told you almost everything.”


       2   Miranda v. Arizona (1966) 384 U.S. 436.


                                             3
Meanwhile, another officer found a gun in the nearby trashcan. Officer Maltese finished

reading defendant her rights and asked if she understood them. She then asked him if the

officer found “[her] other one.” She said she thought she put another gun in the trashcan.

Defendant said her brain was “hurting” and she could not think straight. Officer Maltese

said he would give her some time. Defendant said she could not take anymore, and then

said, “That’s my sister calling me to tell me to turn myself in.” Officer Maltese tried to

tell her everything was okay, but defendant said, “If I run, will you just shoot me so I

don’t have to go to jail?” Officer Maltese told her she was not going to run and said,

“[W]e’re gonna help you as much as we can.” Defendant said the police did not help her

with her divorce, and then she talked about her daughter.

       Officer Maltese asked for the identity of the person in the back of the car, and

defendant said it was her sister-in-law. He asked her questions about whether she put the

bag with the guns in the trashcan when she saw him. She said, “I put it in the trashcan so

that if you didn’t know you didn’t know.” Defendant kept begging Officer Maltese to

shoot her if she ran. He kept trying to calm her down. Throughout the rest of the

conversation, defendant mentioned that she had rifles in her car at another location, asked

if the other officers retrieved both of her bags out of the trashcan, and said her head hurt

and that she had been disoriented since her divorce. When Officer Maltese asked

whether she put her sister-in-law in the trunk, the backseat, or the front seat, defendant

said the victim was driving and she asked her to pull over. Defendant said the victim was

being “really evil” and she “could not take anymore.” Defendant said, “[S]he won’t be

lying anymore. She won’t. She will never say that to me again. Never. And she’s


                                              4
bipolar. She should be taken and killed all the time to keep from making everybody

around her crazy. . . .” Defendant then rambled on about her ex-husband and her in-laws.

Near the end of the discussion, as defendant was being placed in the police car, she

asked, “Will you call me an attorney?”3

       Police officers at the scene located a set of keys on the sidewalk behind defendant.

One of the keys was a car key; the officers walked around the street pressing the button

on the key to see if they could get any feedback from one of the cars. When none of the

cars on the surrounding streets responded, they went into the nearby field. When they

pushed the button, they saw lights flash and found a car in the field. They found the

victim’s body in the car.

       Defendant was transported to the police station. Officer Cindi Sandona took

defendant into the restroom to have her change out of her clothes and into a paper suit so

her clothes could be collected as evidence. After defendant changed, she asked Officer

Sandona if she was going to die by lethal injection. Officer Sandona asked her what she

was talking about, and defendant said she had just shot her sister-in-law. Officer

Sandona took defendant into an interview room that did not have any recording

equipment. However, Officer Sandona decided to move her into a room with recording

equipment because defendant kept making spontaneous statements about shooting her

sister-in-law. Their discussion was recorded, and the recording was played for the jury at

trial. At the beginning of the recording, Officer Sandona complimented defendant on the

       3 A transcript of this request is not included in the clerk’s transcript since the trial
court excluded all statements made after the request.


                                               5
color of her hair, and they talked about the hair dye she used. Defendant then started

saying something about how “[s]he deserved it,” and about “[a]ll the lies” her sister-in-

law was telling. Officer Sandona listened but then started asking questions about

defendant’s hair color. Officer Sandona noted that it was funny that defendant

remembered dying her hair, and defendant said it was because her fingernails were dirty.

Defendant started talking about how her father went into the hospital.

       At trial, Martin Bocanegra testified. He said defendant called him on May 1,

2010, after not having heard from her in 15 years. Defendant said her sister told her to

call him. Defendant asked how to get rid of a dead body and how to get fingerprints off a

dead body. He suggested kicking the body out of a car or throwing it in a lake, and to use

WD40 for the fingerprints. Defendant eventually told him she had shot someone.

       Defense Evidence

       Defendant testified on her own behalf at trial. She said she was best friends with

the victim, and she moved in with her on the last day of April 2010. The morning after

she moved in, the victim was out in the morning and returned home. At first, the victim

was fine, but then she went into the bathroom and came out angry. Defendant tried to

leave, but the victim slammed the door shut, pulled defendant by the hair, and slammed

her into the couch. The victim pinned her to the floor and started slamming her head into

the ground. The victim eventually got off of her and helped her to the bathroom. The

victim “beat [her] up two more times,” and then defendant talked her into driving her to

her friend’s house. The victim drove defendant in her car, but they could not find the

friend’s house. The victim was angry and hit defendant with her arm several times. The


                                             6
victim started screaming at defendant, and she grabbed an antenna and hit defendant in

the stomach with it. The victim pulled the car over and tried to poke defendant in the

face with it. The victim told defendant to look for her address book. The victim started

stabbing defendant with the antenna. Defendant looked in her bag for the address book.

She had a gun in her bag so she pulled it out and shot the victim. Defendant then moved

the body over and started driving around, trying to figure out what to do. She stopped at

Walmart and bought some hair dye. She went back to the victim’s house and dyed her

hair. After that, she got back into the victim’s car and called her sister. Defendant was

looking for a hospital, and her sister told her to go to Bocanegra’s house so he could help

her. Bocanegra tried to revive the victim, but could not. He told defendant to drive to the

store, where she bought some food and WD40. Bocanegra said he did not want his

fingerprints on the victim’s body and said he could wipe them off with WD40 so he

would not get in trouble. Bocanegra directed defendant to drive to a field near his house,

and he wiped the car and body with WD40 and suggested they burn the body. Defendant

was disgusted with that idea. Bocanegra and defendant walked away from the car, and

Bocanegra disappeared. She walked around looking for him, and ran into the police.

Defendant recalled being contacted by Officer Maltese and pleading with him to shoot

her. On cross-examination, the prosecutor asked her if, at that time, she knew what she

did was wrong. Defendant said she knew that hurting somebody was wrong, but she

could not remember what had happened before the shooting. The prosecutor then stated

that she could not remember any of the details on the morning of the shooting, but she

remembered all the details two years later, at the trial. Defendant replied, “Yes.”


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                                        ANALYSIS

      The Trial Court Properly Admitted Defendant’s Statements to Police Officers

       Defendant argues that the evidence of her statements to Officer Maltese at the

scene and to Officer Sandona at the police station were improperly admitted in violation

of her rights under Miranda. We conclude that the court properly admitted the

statements.

       A. Standard of Review

       “‘In applying Miranda . . . one normally begins by asking whether custodial

interrogation has taken place. “The phrase ‘custodial interrogation’ is crucial. The

adjective [custodial] encompasses any situation in which ‘a person has been taken into

custody or otherwise deprived of his freedom of action in any significant way.’”’

[Citation.] ‘Absent “custodial interrogation,” Miranda simply does not come into play.’

[Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) The question of whether

defendant was in custody for the purposes of Miranda is a mixed question of law and

fact. (Ibid.) The first inquiry is factual—the trial court simply needs to ascertain the

factual circumstances surrounding the interrogation. (Id. at p. 402.) Once the relevant

facts are ascertained, the trial court must determine whether, under the relevant legal

principles, defendant was in custody for the purposes of Miranda. (Ibid.) On appeal, we

review the trial court’s factual findings under the substantial evidence standard of review.

(Ibid.) However, we review the trial court’s legal determination of the custody issue

independently. (Ibid.)




                                              8
       B. Procedural Background Regarding the Field Interview

       Defendant made an oral motion, pursuant to Evidence Code section 402, regarding

the admissibility of her statements made to Officer Maltese at the scene. Defense counsel

acknowledged that Officer Maltese Mirandized her, but argued that there was “an issue of

whether she actually acquiesced understanding.” The court conducted a hearing during

which Officer Maltese testified. He testified that, on the morning of May 2, 2010, he

responded to a dispatch call and saw defendant sitting down, seeming distraught. He

turned on the alley light to illuminate the area, got out of his patrol car, and asked

defendant her name, and if she was okay. He started recording the conversation. Officer

Maltese heard some radio traffic during which other officers at the scene advised that a

body had been found in a vehicle. Officer Maltese then handcuffed defendant and read

her the Miranda rights. When he asked if she understood, defendant said, “No, you said

it too fast.” He started to repeat her rights, when she said, “I already told you almost

everything.” He continued reciting her rights. Defendant did not verbally acknowledge

that she understood, but she continued to talk to him and nodded her head like she

understood her rights. Officer Maltese believed that she understood what he was saying

to her. He also told another officer that came on the scene that she had been Mirandized.

Defendant continued to talk to Officer Maltese, but at one point, she said to him, “Will

you call me an attorney?”

       Prior to making its ruling, the court took a recess and listened to the recording of

the discussion between defendant and Officer Maltese. Defense counsel argued that there

was no express acknowledgment that defendant understood her rights, even though the


                                              9
Officer indicated that defendant nodded her head. Defense counsel requested that

everything after the advisement be stricken. The prosecution argued that defendant was

advised orally at least twice. He further argued that an explicit waiver was not needed

but, rather, case law held that the court needed to consider the totality of the

circumstances. The prosecutor pointed out that defendant first said that Officer Maltese

advised her too quickly, which clearly indicated that she was trying to listen to him. The

prosecutor also pointed out that defendant said she already told Officer Maltese “almost

everything,” and that Officer Maltese told another officer she had been Mirandized.

Moreover, at the end of the recording, defendant asked if Officer Maltese could call her

an attorney, which indicated that she knew she had the right to an attorney, but had

continued to speak.

       The court ruled that defendant was adequately advised and there was an implied

waiver. The court concluded that the entire conversation was admissible up to the point

where defendant asked the officer to call her an attorney.

       C. Defendant Was Not in Custody at the Scene

       Defendant contends that she was in custody when she made statements to Officer

Maltese at the scene; thus, her statements should have been excluded since she was not

advised of her rights under Miranda prior to questioning. She acknowledges that Officer

Maltese eventually handcuffed her and advised her of her Miranda rights. However, she

argues that since the initial interrogation was unconstitutional, her subsequent implied

waiver must be evaluated for voluntariness. She asserts that her waiver was involuntary.




                                              10
Therefore, she claims that all of her statements to Officer Maltese should have been

excluded. We disagree.

       “Custodial interrogation has two components. First, it requires that the person

being questioned be in custody. Custody, for these purposes, means that the person has

been taken into custody or otherwise deprived of his freedom in any significant way.

[Citation.] Furthermore, in determining if a person is in custody for Miranda purposes

the trial court must apply an objective legal standard and decide if a reasonable person in

the suspect’s position would believe his freedom of movement was restrained to a degree

normally associated with formal arrest. [Citation.]” (People v. Mosley (1999) 73

Cal.App.4th 1081, 1088 (Mosley).) “The totality of the circumstances surrounding an

incident must be considered as a whole. [Citation.]” (People v. Pilster (2006) 138

Cal.App.4th 1395, 1403, fn. omitted.) Objective indicia of custody for Miranda purposes

include: “(1) whether 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.” (People v. Forster

(1994) 29 Cal.App.4th 1746, 1753.)

       “The second component of custodial interrogation is obviously interrogation. For

Miranda purposes, interrogation is defined as any words or actions on the part of the

police that the police should know are reasonably likely to elicit an incriminating

response. [Citation.]” (Mosley, supra, 73 Cal.App.4th at p. 1089.)

       Here, defendant has failed to demonstrate that she was subjected to restraints

comparable to those associated with a formal arrest. When Officer Maltese initially


                                              11
questioned her, she had not been formally arrested. Defendant was questioned at the

scene, not a police station. The questioning occurred in public, on the side of the road, in

plain view of anyone in the vicinity. Officer Maltese was the only officer questioning

defendant, and the questions were open-ended, non-accusatory, and investigative. The

officer simply asked questions to aid his investigation (i.e., What is wrong? What did

they say? What color is the car? You shot somebody? Where is the car?). Officer

Maltese was not aggressive or confrontational. Defendant asserts that she was distraught

and disoriented. Even so, the record shows that Officer Maltese did not pressure her, and

she readily talked to him. Furthermore, there were no restrictions on defendant’s

freedom of movement. Considering the totality of the circumstances surrounding the

initial contact between defendant and Officer Maltese, we conclude she was not in

custody, and there was no Miranda violation.

       Defendant was not actually in custody until the point when Officer Maltese

handcuffed her and advised her of her Miranda rights. She impliedly waived her rights

when she nodded her head, indicating that she understood her rights. She then continued

to talk with Officer Maltese. (See Berghuis v. Thompkins (2010) 560 U.S. 370,        [130

S.Ct. 2250, 2261].) Indeed, defendant acknowledges in her opening brief that she

impliedly waived her Miranda rights by continuing to talk to Officer Maltese. However,

she claims that her waiver was not voluntary, since she was distraught and disoriented,

the interrogation prior to her arrest was illegal, she was handcuffed, and she knew the

“cat was out of the bag.” As we have already discussed, there was no Miranda violation

regarding the initial questioning. Furthermore, the record shows that when Officer


                                             12
Maltese advised defendant of her Miranda rights, she asked him to repeat them, which

indicated her interest in fully understanding her rights. After reading her rights a second

time, Officer Maltese asked defendant whether she understood her rights, and she

nodded, indicating that she understood. As the court noted, there was no reluctance to

talk during the interview. Her waiver was voluntary. As to defendant’s claim that she

had already let “the cat out of the bag” and, therefore, her waiver was somehow

involuntary, we disagree. After answering some questions, defendant asked the officer to

call her an attorney, which indicated that she understood her rights, and that she had

voluntarily continued to speak up until that point.

       We conclude that the court properly admitted defendant’s statements made to

Officer Maltese.

       D. Procedural Background Regarding the Station Interview

       Prior to trial, defendant made an oral motion to exclude the interview with Officer

Sandona that was recorded at the police station. The court conducted a hearing during

which Officer Sandona testified. She testified that she was introduced to defendant and

asked to assist with her needs and to stand by while she changed her clothes. Officer

Sandona went into the restroom with defendant and provided her with a paper suit and

feminine products. In the restroom, Officer Sandona did not say anything to defendant to

elicit a response, but defendant started talking and asked if she was going to die by lethal

injection. Officer Sandona asked what she was talking about, and defendant said she had

killed or shot her sister-in-law, so she wanted to know if her punishment was going to be




                                             13
a lethal injection.4 Nothing else was said at that point, and Officer Sandona brought

defendant into an interview room. Officer Sandona then told defendant she liked her hair

color, and defendant said she dyed her hair to cover it up, since she felt “dirty” from

killing her sister-in-law. Officer Sandona moved defendant over to an interview room

that had digital recording because she realized that defendant was going to freely talk

about what happened; she wanted everything recorded to make it clear that she was not

asking defendant any investigative questions, but was only talking about things that were

unrelated to the homicide.

       Prior to making its ruling, the court listened to the recording of the discussion that

took place in the interview room. The court found there was a Miranda violation and

ruled to admit a certain portion of the tape and exclude the rest. Specifically, the court

found that at the start of the recording, the conversation was not an interrogation since

Officer Sandona did not ask any questions to elicit incriminating information. The court

determined that about 16 pages into the transcript, Officer Sandona asked, “So then, what

did he say?” The court considered that question to be the beginning of several questions

that were interrogative. Thus, the court ruled to admit the first 16 pages of the

conversation, but excluded the rest of the conversation as being in violation of Miranda.




       4   Officer Sandona said “sister,” but apparently meant to say “sister-in-law.”


                                              14
         E. Miranda Was Not Implicated During the Outset of Defendant’s Conversation

with Officer Sandona, Since There Was No Interrogation

         Defendant now claims that Officer Sandona’s initial question of “What are you

talking about?” after defendant asked if she was going to die by lethal injection,

constituted an interrogation under the totality of the circumstances. Thus, she argues that

the trial court erred in admitting “all but the first of [her] statements [i.e., the question

regarding lethal injection].” At the outset, we note that defendant failed to make this

specific objection below. Rather, she previously moved to exclude the statements she

made during the conversation in the interview room, which was recorded. “‘The general

rule is that a defendant must make a specific objection on Miranda grounds at the trial

level in order to raise a Miranda claim on appeal.’ [Citations.]” (People v. Mattson

(1990) 50 Cal.3d 826, 854.) Defendant has forfeited this issue on appeal. (People v.

Rogers (1993) 21 Cal.3d 542, 548.) In any event, we find the argument to be without

merit.

         “Miranda does not ‘prohibit the police from merely listening to . . . voluntary,

volunteered statements’ uttered by a person, whether or not in custody, . . .” (People v.

Mickey (1991) 54 Cal.3d 612, 648 (Mickey).) “[A] statement is involuntary if it is the

product of coercion or, more generally, ‘overreaching’; involuntariness requires coercive

activity on the part of the state or its agents . . . .” (Id. at p. 647.)

         Here, shortly before defendant arrived at the police station, she was advised of her

Miranda rights, impliedly waived them and continued to talk to the police. She

eventually asked the officer to call her an attorney. After arriving at the police station,


                                                 15
defendant was introduced to Officer Sandona, who accompanied her into the restroom

and stood by while she changed her clothes. While in the restroom, defendant started

talking and asked Officer Sandona if she was going to die by lethal injection. Officer

Sandona had not said anything to defendant to elicit a response, so she asked defendant

what she was talking about. Defendant said she had killed or shot her sister-in-law, so

she wanted to know if her punishment was going to be a lethal injection. The record

clearly demonstrates that defendant initiated communication with Officer Sandona

regarding what she had done. In other words, “it was generally defendant who was active

and [Officer Sandona] who [was] passive: [defendant] opened discussion and directed its

course; [Officer Sandona] essentially responded.” (Mickey, supra, 54 Cal.3d at p. 650.)

Officer Sandona did not “overreach” in any way when she simply asked defendant what

she was talking about. Moreover, after defendant admitted the shooting, Officer Sandona

did not inquire further regarding the incident, or say anything that would be likely to

elicit an incriminating response. Defendant’s admission was voluntary, since there was

no coercive activity by Officer Sandona.

       In view of the totality of the circumstances, we conclude that Officer Sandona’s

question asking defendant what she was talking about did not amount to an interrogation,

and the court properly admitted the evidence of that portion of their conversation.

       In any event, the admission of evidence of the first portion of defendant’s

conversation with Officer Sandona, even if erroneous under Miranda, was harmless

beyond a reasonable doubt. (People v. Samayoa (1997) 15 Cal.4th 795, 831.) The

evidence against defendant was overwhelming. When the police found her, she was


                                             16
crying and distraught. She told Officer Maltese that the victim was torturing her and was

being evil, and that she “could not take anymore.” Defendant told the police that the

victim, “will never say that to me again” and that the victim “should be taken and killed

all the time to keep from making everybody around her crazy.” The police found the

victim’s car keys and the victim’s body in the car, near defendant. Defendant identified

the dead body as her sister-in-law, and she told the police where she hid her guns.

Defendant also kept asking Officer Maltese if he would shoot her so she would not have

to go to jail. In addition, Martin Bocanegra testified that defendant told him she had shot

someone and asked him how to get rid of a dead body and how to get fingerprints off a

dead body.

       In view of the evidence, we conclude that the admission of the first portion of

Officer Sandona’s conversation with defendant was not prejudicial.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               HOLLENHORST
                                                                         Acting P. J.
We concur:


McKINSTER
                          J.


MILLER
                          J.


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