Filed 4/2/15 P. v. Albarran CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B256275

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. KA102993)
         v.

FERNANDO MARRON ALBARRAN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Douglas Sortino, Judge. Affirmed.
         Law Office of Eduardo Paredes and Eduardo Paredes for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters Assistant Attorney General, Chung L. Mar
and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
       Fernando Marron Albarran appeals from the judgment entered following his
no contest plea to one count of continuous sexual abuse of a child (Pen. Code,
§ 288.5, subd. (a))1 and one count of oral copulation of a person under 14 (§ 288a,
subd. (c)(1)). He challenges the trial court’s denial of his motion to suppress
statements he made to police, on the basis that they stemmed from an illegal search
and seizure and were taken in violation of his Miranda rights. (Miranda v. Arizona
(1966) 384 U.S. 436.) We disagree and affirm.


               FACTUAL AND PROCEDURAL BACKGROUND2
       On August 28, 2013, City of El Monte Police Officer Jonathan Edwards
responded to a call regarding a sexual assault on a child. When Officer Edwards
arrived at the home, the victim’s aunt said that appellant, the victim’s stepfather,
had confessed to the family. Destiny, the victim, was 17 years old at the time. She
told Officer Edwards that appellant had engaged in numerous acts of sodomy and
oral copulation with her from the time she was in fourth grade until May 2013.
       While Officer Edwards was interviewing Destiny, appellant walked into the
house. Officer Edwards confirmed appellant’s identity, and his partner, Officer
Pedro Yanez, conducted a pat-down search of appellant. The officers did not
restrain appellant or tell him he was not free to leave. Officer Yanez asked
appellant to sit in the living room where he would not have a direct view of
Destiny while Officer Edwards interviewed her.




1
       All further statutory references are to the Penal Code.
2
       The facts of the underlying offense are not relevant to the issue raised on appeal
and therefore are not set forth in detail. Instead, we set forth the evidence presented at
the hearing on appellant’s motion to suppress.
                                               2
      Officer Edwards did not tell appellant he was under arrest or advise him of
his right to counsel because he had not decided to arrest appellant. Instead, he told
appellant they were discussing an issue regarding sexual abuse of Destiny. Officer
Yanez asked appellant if he was willing to go to the police station and speak to
detectives. Appellant was very cooperative and said he wanted to give a statement
regarding the allegations.
      Appellant wanted to take a shower before going to the police station.
Officer Edwards testified that this was an unusual request, but appellant was
cooperative, so they decided to allow it. Officer Yanez searched the bathroom for
weapons and told appellant he would leave the door open and stand outside the
door while appellant showered.
      After appellant showered, Destiny and her family got in their own car to
drive to the police station. Officer Yanez asked appellant if he was willing to ride
in the police car, and appellant said yes. The officers explained to appellant that
they were required to handcuff him during transport, but that the handcuffs would
be removed when they arrived at the police station. The officers did not hold
appellant’s arm or restrain him in any way while they walked from the house to the
car. Before getting in the police car, appellant turned around and placed his hands
behind his back for the handcuffs, and Officer Yanez handcuffed him.
      When they arrived at the police station parking lot, Officer Yanez removed
the handcuffs and told appellant to go to the lobby and wait for the detective to
speak to him. Officer Edwards directed appellant to the lobby, which was a public
waiting area, and appellant walked to the lobby. The officers did not remain with
appellant or arrange for any officer to watch appellant to ensure he remained in the
lobby. Appellant waited in the lobby approximately two hours before being



                                          3
interviewed. There were no officers waiting with him, and nothing was done to
prevent him from leaving.
       Detective Jake Fisher interviewed Destiny for about 45 minutes while
appellant waited in the lobby. Destiny told Detective Fisher that she was molested
and sodomized by appellant numerous times starting from when she was nine years
old.
       After interviewing Destiny, Detective Fisher interviewed appellant.
Detective Fisher asked Detective Nafarette, who spoke Spanish, to participate in
appellant’s interview in case translation was needed. Appellant was not restrained
by handcuffs or in any other way during the interview, and he was cooperative
throughout. Appellant was advised of his Miranda rights. During the interview,
appellant confessed to numerous acts of sexual abuse of Destiny from the time she
was nine years old. Appellant was placed under arrest at the end of the interview.
       Appellant was charged in an amended information with seven counts of
sodomy of a person under 14 and more than 10 years younger (§ 286, subd. (c)(1)),
one count of continuous sexual abuse of a child (§ 288.5, subd. (a)), and one count
of oral copulation of a person under 14 (§ 288a, subd. (c)(1)). Appellant filed a
motion to suppress the statements he made at the police station, asserting that they
were obtained in violation of his Fourth Amendment rights and his Miranda rights.
Appellant contended that he was arrested when he first walked into his home and
thus should have been advised of his Miranda rights at that time. He further
contended that the detectives advised him of his Miranda rights but did not ask if
he waived those rights.
       After conducting a hearing, the trial court denied the motion to suppress.
The court found that appellant was not in custody until the end of the interview
with Detectives Fisher and Nafarette. The court cited the testimony that appellant

                                          4
was never handcuffed in the house and was handcuffed only during transport to the
police station and then released from the handcuffs as soon as they reached the
police station parking lot. The court further pointed out that appellant waited in the
lobby of the police station for two hours with no supervision and was unrestrained
in the interview room.
      Regarding the Miranda waiver, the court found that appellant was properly
advised and indicated that he understood his rights. By continuing to speak to the
detectives after being advised, appellant impliedly waived his Miranda rights.
      Appellant agreed to plead no contest to one count of continuous sexual
abuse of a child and one count of oral copulation of a child less than 14. Pursuant
to the plea agreement, the court sentenced appellant to a total term of 18 years in
state prison and dismissed the remaining counts. Appellant filed a notice of
appeal, challenging the denial of the motion to suppress.


                                   DISCUSSION
I.    Appellant Was Not Placed In Custody At His Home
      Appellant contends that the trial court erred in denying his motion to
suppress because he was in custody from the moment he was approached by the
officers in his home and thus should have been advised of his Miranda rights at
that time. We disagree. Based on the evidence presented at the suppression
hearing, we conclude that the trial court properly found that appellant was not in
custody until the end of his interview with Detectives Fisher and Nafarette.
      “On appeal, we defer to the trial court’s factual findings supported by
substantial evidence and independently determine from the factual findings
whether appellant was in custody for Miranda purposes. [Citation.] It is settled



                                          5
that Miranda advisements are required only when a person is subjected to
‘custodial interrogation.’ [Citations.] . . .
      “Whether a person is in custody is an objective test: the pertinent inquiry is
whether there was a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest. [Citation.] The totality of the
circumstances is considered and includes ‘(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.’ [Citation.] Additional factors are whether
the officer informed the person he or she was considered a witness or suspect,
whether there were restrictions on the suspect’s freedom of movement, whether the
police were aggressive, confrontational, and/or accusatory, and whether the police
used interrogation techniques to pressure the suspect. [Citation.]” (People v.
Davidson (2013) 221 Cal.App.4th 966, 970-972.)
      We agree with the trial court that the totality of the circumstances indicates
that appellant was not in custody at his house or at the police station before he was
interviewed. When appellant first arrived at the house, Officer Yanez asked if
there were any weapons in the house or if he had any weapons on him. Officer
Yanez asked permission to pat appellant down, and appellant complied. Officer
Yanez did this because he was concerned about officer safety, and he never
touched appellant again after the pat-down.
      While in the house, the officers did not restrain appellant or place him in
handcuffs. They never told him he was under arrest or not free to leave, and
appellant never said he wanted to leave. They never raised their voices, became
physically aggressive, or drew their weapons. They told him they were



                                            6
investigating the sexual abuse allegations and asked if he was willing to go speak
to detectives at the police station.
      Appellant argues that Officer Yanez’s standing guard while he showered
indicates that he was in custody, but this is not true. Officer Yanez’s search of the
bathroom for weapons and his position outside the door was sensible conduct to
ensure the safety of the officers and others in the home and did not indicate that
appellant was in custody.
      Although appellant was handcuffed during transport to the police station,
this was per department policy, and the officers handcuffed him only for the short,
five to seven minute ride. They removed the handcuffs as soon as they arrived in
the parking lot before they even entered the police station, and they allowed
appellant to walk unaccompanied to the police station lobby. The officers did not
remain with appellant or ask any other officer to watch appellant during his two-
hour wait for his interview. The evidence overwhelmingly supports the trial
court’s conclusion that appellant was not placed in custody at his home or at the
police station prior to his interview by the detectives.


II.   Appellant Waived His Miranda Rights
      Appellant contends that his Miranda rights were violated because Detective
Fisher failed to ask appellant explicitly if he waived his rights. We agree with the
trial court that appellant waived his rights by continuing to speak with the
detectives after being advised of his Miranda rights.
      “‘[A] suspect who desires to waive his Miranda rights and submit to
interrogation by law enforcement authorities need not do so with any particular
words or phrases. A valid waiver need not be of predetermined form, but instead
must reflect that the suspect in fact knowingly and voluntarily waived the rights

                                           7
delineated in the Miranda decision. [Citation.] . . . [A] valid waiver of Miranda
rights may be express or implied. [Citations.] A suspect’s expressed willingness
to answer questions after acknowledging an understanding of his or her Miranda
rights has itself been held sufficient to constitute an implied waiver of such rights.
[Citations.] . . .
        “Ultimately, the question becomes whether the Miranda waiver is shown by
a preponderance of the evidence to be voluntary, knowing and intelligent under the
totality of the circumstances surrounding the interrogation. [Citations.] The
waiver must be ‘voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception’ [citation], and
knowing in the sense that it was ‘made with a full awareness of both the nature of
the right being abandoned and the consequences of the decision to abandon it.’
[Citation.]” (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218-219
(Sauceda-Contreras).)
        “In considering a claim on appeal that a statement or confession is
inadmissible because it was obtained in violation of a defendant’s Miranda rights,
we ‘review independently the trial court’s legal determinations . . . . We evaluate
the trial court’s factual findings regarding the circumstances surrounding the
defendant’s statements and waivers, and “‘accept the trial court’s resolution of
disputed facts and inferences, and its evaluations of credibility, if supported by
substantial evidence.’”’ [Citation.]” (People v. Dykes (2009) 46 Cal.4th 731,
751.)
        Detective Fisher began the interview by clarifying whether appellant
preferred to speak English or Spanish and telling him that Detective Nafarette
spoke Spanish if he needed anything translated. Detective Fisher advised appellant
of his Miranda rights and confirmed that appellant understood each one. After

                                           8
some preliminary discussion, Detective Fisher told appellant, “All I’m supposed to
do is get the information. I just get the information.” Detective Nafarette
reiterated, “That’s all we do. Just gather information.” Appellant said, “Okay.”
The following conversation ensued:
      “[Fisher]: Okay, so . . . we’re talking about Destiny, right?
      “[Appellant]: Mm-hmm, yes.
      “[Fisher]: Okay. And Destiny is your stepdaughter, okay, and she’s about
17 now. . . . [¶] . . . so talk to me about why—why we’re here.
      “[Appellant]: I had forgotten all this for so many years. . . . [¶] But it came
out, um, yesterday.
      “[Fisher]: Okay.
      “[Appellant]: They wanted to ask me. I um, I said yes, I did something. I
forgot details and stuff. I don’t know why I did it, but it happened. . . . [¶] I
abused her. . . . [¶] And that’s why I’m here, I mean. . . . [¶] You want details. I
don’t know how much details, but –
      “[Fisher]: Okay. Well, um, we’re going to have to get into some details. I
don’t need to know every tiny little thing, but – but there will be some details that
obviously you would remember, um, that we’re going to have to talk about. . . . [¶]
So we’re going to have to kind of delve into that a little bit . . . when did this all
start, more or less, with Destiny?”
      Appellant then proceeded to describe abuse of Destiny that began when she
was nine years old. He explained that the situation had come to light the day
before when Destiny ran away from home. Appellant’s wife confronted him and
told him that she had called the police, and appellant said that he would speak to
the police.



                                            9
      The totality of the circumstances shows that appellant knowingly and
voluntarily waived his Miranda rights. After acknowledging that he understood
his Miranda rights, appellant continued to indicate his willingness to speak with
the detectives. The detectives did not intimidate or coerce him but merely told him
they were seeking information about the allegations. Appellant then gave the
details of the abuse, responding to clarification questions from the detectives.
Moreover, appellant explained that he had confessed to the family, his wife told
him the police were coming, and he told her he was going to tell the police what
happened. These circumstances further indicate that his decision to confess “‘was
the product of a free and deliberate choice rather than intimidation, coercion, or
deception’ [citation] . . . .” (Sauceda-Contreras, supra, 55 Cal.4th at p. 219.) The
trial court thus properly denied appellant’s motion to suppress evidence.


                                  DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               WILLHITE, Acting P.J.




             We concur:




             MANELLA, J.                       COLLINS, J.

                                          10
