Filed 11/20/15 P. v. Valladares CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A134585
v.
EUSEBIO VALLADARES,                                                  (San Mateo County
                                                                     Super. Ct. No. SC071474A)
         Defendant and Appellant.


         Defendant Eusebio Valladares appeals from the judgment following his conviction
for 16 counts of lewd and lascivious conduct against a child under 14 years of age, and
one count of unlawful sexual intercourse or sodomy against a victim 10 years old or
younger. He argues that statements he made to police and used against him at trial were
obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and that to
the extent his Miranda-related arguments were not made to the trial court, his trial
counsel was ineffective for failing to raise them. He also argues that his constitutional
right to a public trial was violated when the trial judge locked the courtroom while
instructing the jury. We will affirm the judgment.
                                                 BACKGROUND
         Defendant, age 61 at the time of his arrest, lived with his wife in a rented room in
a house in Redwood City. The owner of the house also lived there, as did her 10-year-old
and 8-year-old daughters, who are two of the four young victims in this case.
         The incidents in this case came to light on March 13, 2010, when an 11-year-old
girl reported to her mother about sexual contact with defendant that occurred when the


                                                             1
girl was visiting the landlord’s 10-year-old and 8-year-old daughters two days earlier.
Officer Jason Gamble of the Redwood City Police Department spoke to two of the girls
on the evening of March 13, apparently in response to a report of child abuse. Afterward,
Gamble and Officer Oscar Poveda contacted defendant at the house he resided in, either
in his bedroom or in a common area of the house. Poveda asked defendant in Spanish if
he would voluntarily come down to the police station to talk about the reason he and
Gamble were at the house. Poveda testified at trial that defendant was cooperative and
said he wanted to come to the police station and tell his story.
       Defendant was transported to the police station in the front passenger seat of a
patrol car. At the police station, defendant went into an interview room with Poveda and
Gamble. The record on appeal contains almost no details about what happened between
the time defendant left his house and entered the interview room.
Defendant’s Statements to Police
       A timestamp on a video of the interview indicates the questioning began at 1:31
a.m. on March 14. The video shows that defendant was not handcuffed or otherwise
restrained. During the interview, Poveda asked defendant questions in Spanish. Gamble
would sometimes ask a question in English, which Poveda would translate to Spanish for
defendant. Defendant responded in Spanish, and Poveda translated defendant’s answers
to English.
       The following description of the interview is taken from a written transcript
submitted to the trial court in connection with defendant’s motion to suppress his
statements. The transcript contains a Spanish transcription and English translation of the
interview.
       Poveda began the interview by telling defendant the door behind defendant was
open and that he was free to leave at anytime. Defendant said he understood. The video
shows that Poveda demonstrated to defendant that the door was unlocked and that
defendant stood up and observed Poveda. After briefly talking to defendant about his
background, Poveda asked defendant if he knew why the police wanted to talk to him.
Defendant said he heard the police were called because “supposedly, I had kissed the


                                              2
girl.” Defendant then described an incident at his house the previous Thursday where the
owner’s 10-year-old daughter and another girl pushed defendant back-and-forth into each
other, causing defendant to touch one girl’s breasts and the other girl’s leg or groin area.
Defendant also told the officers that when he used the bathroom, the “children” would
touch him “In front, and even from behind,” although it is unclear if defendant was
referring to the previous Thursday or another time. The officers expressed skepticism
over defendant’s story, with Poveda asking defendant if other people would think he was
telling the truth.
       Referring again to the previous Thursday, Poveda asked defendant “at what time
did you take out your penis and show it to the girls?” Defendant denied exposing his
penis. Poveda said he thought defendant was lying and could tell by defendant’s body
language. Defendant responded that “I’m going to talk to you directly.”
       Defendant explained that the owner of the house would send her 10-year-old
daughter into defendant’s bedroom “completely naked” to ask for money. Poveda asked
defendant for more details and was confused by defendant’s responses, telling defendant
“I’m asking you a question!” and “Look at me!”1 Defendant said he saw the daughter
without her clothes on “a lot of times” and, after being told to be more specific, said “five
times.” Poveda also asked how many times “did the little girls see you naked?”
Defendant responded at least two or three times.
       Poveda returned to asking defendant about the incident from Thursday, with
defendant explaining again that the two girls pushed him back and forth. Defendant said
he touched one girl’s legs and the other girl’s breasts during this incident. Poveda told
defendant that he thought defendant was lying and asked defendant if he wanted to take a
lie detector test. Defendant said he did not know if he would be willing to take a lie
detector test. Poveda responded that “we think that you’re not telling the whole truth.”
He then told defendant that “we’re not saying that you’re under arrest, Ok? But, no, and


       1
        Although the transcript of the interview attaches exclamation points to Poveda’s
statements, the video shows that he did not significantly raise his voice.


                                              3
you can leave whenever you want, but we want to know the truth.” Defendant said “It’s
difficult to get to that place” and “What are the motives? What are the motives from the
beginning? For someone.” Poveda did not understand these responses. He eventually
asked defendant, “part of what you’re saying is the truth. Right?” Defendant responded
“Uh, yes.” Poveda asked, “what is the thing that’s not the truth, that you said?” Poveda
also told defendant that “seeing you, how you’re moving and everything, and talking, we
know that you’re not telling the truth.”
       Defendant then told Poveda that the owner’s 10-year-old daughter would come to
him and ask for money in return for sex. Defendant then admitted he had sex with the
owner’s 10-year-old daughter. Poveda asked defendant when this occurred, and
defendant responded “about a month ago. But I really don’t remember.” Poveda asked
defendant if he put his penis in her vagina, and defendant said he did.
       Officer Gamble briefly left the room and, upon returning, told Officer Poveda to
read defendant his Miranda rights, which Poveda proceeded to do in Spanish. This
occurred one hour and three minutes after the questioning began. Poveda (referred to as
“Interpreter” in the transcript) explained defendant’s right to an attorney at no cost as
follows:
       “INTERPRETER: If you cannot pay for an attorney one will be given to you at no
cost, uh, from any . . . if you talk . . . [Clears his throat] . . . before we ask, ask any
questions if you let us. You understand? Yes or no?
       “VALLADARES: Any questions.
       “INTERPRETER: If you cannot pay for an attorney, one will be given to you at
no cost from any . . . we ask any questions if you let us. You understand?
       “VALLADARES: Yes.”
       Defendant was then given a written form that listed his Miranda rights in Spanish.
A translated version of the Spanish form, which was offered in evidence at the
suppression hearing, listed the Miranda warnings as follows:
       “1.     You have the right to remain silent. [¶] Do you understand?



                                                 4
       “2.    Anything that you say can be used against you in a court of law. [¶] Do
you understand?
       “3.    You have the right to an attorney present before and during any questions
that are asked of you. [¶] Do you understand?
       “4.    If you do not have means to pay for an attorney, you will be given one
without cost before being asked any questions, if you so desire. [¶] Do you understand?”
       Next to each warning was a space where defendant could mark “Si” or “No”
regarding whether he understood.
       Referring to the form he had given defendant, Poveda said “Those are the
questions I told you about regarding your rights” and “Read it and mark yes, if you
understand.” After defendant read the third warning, the following colloquy ensued:
       “VALLADARES: “I can’t answer this one because I don’t know how much they
are going to charge me.
       “INTERPRETER: No. Read, read that one too.
       “VALLADARES: Ok.
       “INTERPRETER: More, more or less it’s what you read and understand if, if you
under-, you would be within your, your rights, you mark yes. And you can sign it here
please and put your name down.”
       “VALLADARES: My signature over here?
       “INTERPRETER: Yes, sign here and put your name. And, um, if you understand
this right. Yes or no?
       “VALLADARES: Yes.
       “INTERPRETER: Ok.”
       The written form shows that defendant wrote “Si” in the space next to each
admonition asking whether he understood his rights. Defendant also signed the bottom of
the form in a space designated for his signature.
       Poveda then continued to question defendant about having sex with the landlord’s
10-year-old daughter. Defendant stated they first had sex about two years earlier. He
said the last time they had sex was 15 days earlier, and that he paid her 20 dollars. He


                                             5
also described an incident in which a group of girls, including three of the victims in this
case, threw defendant onto his bed, then tried to take off his pants and orally copulate
him.
          Poveda ended the interview by asking defendant if he wanted to write an apology
letter to one of the victims. Defendant agreed, and wrote a letter stating, “I feel very bad
for what happened to your friend and [one of the victim’s]. I won’t do it again.”
Defendant was arrested after the interview.
          Two days later on March 16, defendant was interviewed by David Cirina, a
Redwood City police detective. Cirina spoke to defendant primarily in Spanish. Cirina
advised defendant of his Miranda rights. Defendant told Cirina that he understood each
of the rights and waived them. During the subsequent questioning, defendant said he had
sexual intercourse with his landlord’s 10-year old daughter on three separate occasions,
and also admitted to having sexual intercourse with the landlord’s 8-year-old daughter.
He also said he engaged in a sexual act with another 10-year-old girl.
Pretrial Proceedings
          Defendant was charged with 28 counts of lewd and lascivious conduct against a
child under 14 years of age (Pen. Code, § 288, subd. (a)),2 one count of lewd and
lascivious conduct against a child under 14 years of age by use of force or fear (§ 288,
subd. (b)), and one count of unlawful sexual intercourse or sodomy against a victim 10
years old or younger (§ 288.7, subd. (a)). There were four alleged victims, including the
three girls with whom defendant admitted to engaging in sexual acts when questioned by
police.
          Before trial, defendant’s counsel made an oral motion “to suppress [defendant’s]
statement as it was in violation of Miranda.” The motion focused solely on the March 14
interview. Defendant’s counsel stated: “The Miranda admonition given by the police
officer was garbled and confusing, and I believe the Court already has a transcript of the
Miranda given. And in light of the garbled nature of the admonition, we think that also,

          2
              All further unspecified statutory references are to the Penal Code.


                                                  6
in effect, the later written admonition that my client signed, especially since the transcript
shows that he was confused about whether or not he wouldn’t know how much it would
cost for an attorney, so––and in addition to that, we’re moving to suppress his statement,
and my client would like to testify and explain to the Court how it was that his statement
was involuntarily [sic] because of the pressure he was put under by the police.”
       Defendant then testified at the suppression hearing. When his attorney asked “did
the Redwood City Police pressure you into making a statement?”, he responded: “Not
pressure, but the motive of that statement and the four signatures that I signed in the
form––my spirits were down. I was not competent very well to listen very well.”
Regarding the written form that he signed on March 14, defendant said that a police
officer “made me sign.” However, defendant then said that the officer “did not force me,
but he did speak to me very fast with a very forceful way about him. His character was
somewhat in a desperate way was making me nervous.” Defendant described how the
officer explained the Miranda form to defendant and said the officer told him “if you did
this, say yes. And if you did not, say no.” Although defendant acknowledged on the
written form that he understood each of his Miranda rights and then signed the bottom of
the form, defendant testified that he did not read the Miranda rights listed on the form.
He said the officer’s “character was quite strong” and “[v]ery quickly he said sign, sign
it. And that is the reason or the motive why I signed.” Defendant also said that the
police lied to get him out of his home without being prepared ahead of time with an
attorney. Defendant, however, was unable to state what the specific lie was. After
defendant’s counsel finished his questioning, he offered in evidence the transcript of the
March 14 interrogation and the written Miranda form.
       The prosecutor did not cross-examine defendant. The prosecutor presented the
People’s case by way of an offer of proof,3 stating that defendant was contacted at his
house by Officers Poveda and Gamble, and asked by a Spanish-speaking officer whether

       3
         The prosecutor began by noting that “just for the record, the Court has allowed
me to proceed by way of offers of proof[.]” The reason for this procedure is not apparent
in the record and was not objected to by defendant’s counsel.


                                              7
he would accompany them to the Redwood City police station. Defendant agreed, and
was driven to the police station in the front passenger seat of a patrol car, “meaning that
he was able to unlock and exit that door, unlike the rear seat of a police car.” At the
police station, the officers pointed out the exits and told defendant that although a key is
required to enter the station, no key is required to leave. Once they were in the
interrogation room, they offered defendant water and reminded him he was free to leave.
       The prosecutor then argued that there were no defects with the oral Miranda
warnings and that the Miranda warnings in the written form were “perfect.” The
prosecutor also argued that, by defendant’s own admission, he was never pressured by
the officers, and that there was no basis to find any coercion on the part of the officers.
Defendant’s counsel did not present further evidence or argument in response.
       The trial court denied the suppression motion. The court stated that it had
reviewed the transcript of the March 14 interrogation and the written Miranda form
signed by defendant and considered defendant’s testimony. The court noted that
defendant, by his own admission, “indicate[d] that the police did not pressure him.” With
respect to the written Miranda form, the court said that defendant admitted he was not
forced to sign the form, and that “[w]ith respect to the particular form itself, [defendant]
indicated that the officer said, if you did this, say yes. If you did not do this, say no.
There was nothing by that particular statement that would indicate to the Court there was
any coercion taking place.” The court said that it “can find no actions on the part of the
police that would seem to indicate in the slightest that they coerced [defendant] into
either waiving his rights verbally . . . or in signing the form . . . .” As to defendant’s
statement that the officers wanted him to sign quickly, the trial court said it “does not find
that to be supported by the evidence.” The court concluded: “Based on all of the above
and based on the totality of the circumstances, the Court does not find that the officers
engaged in any inappropriate behavior. The Court does not find the actions of the
officers amounted to coercion. [¶] In fact, the Court finds that the waiver of the rights on
behalf of [defendant] was voluntary and consensual. [¶] And based upon all of that, the
Court will deny the defense motion to exclude [defendant’s] statement.”


                                               8
Trial Proceedings
       A jury trial commenced on November 21, 2011. After the close of evidence, the
trial court granted the prosecution’s motion to dismiss two of the counts for lewd and
lascivious conduct.
       While the jury was deliberating, defendant moved for a mistrial upon learning that
the courtroom had been locked when the jury was instructed earlier that day. The trial
court denied the motion.
       The jury found defendant guilty of 16 counts of lewd and lascivious conduct
against a child under 14 years of age (§ 288, subd. (a)), and one count of unlawful sexual
intercourse or sodomy against a victim 10 years old or younger (§ 288.7, subd. (a)). It
also found true the multiple-victim allegation attendant to each of the counts. The jury
was unable to reach a verdict as to four of the counts for lewd and lascivious conduct.
The court declared a mistrial on those counts and granted the prosecution’s motion to
dismiss them. As to the remaining counts, the jury acquitted defendant of lewd and
lascivious conduct, but convicted him of three lesser-included offenses: assault (§ 240),
battery (§ 242), and attempted lewd and lascivious conduct (§§ 664; 288, subd. (a)).
Prior to sentencing, the trial court granted the prosecution’s motion to dismiss those
remaining counts in the interest of justice.
       The trial court sentenced defendant to 70 years to life in prison. He timely filed
this appeal.
                                       DISCUSSION
                      I.     Admission of Defendant’s Statements
       Defendant argues that the statements he made to police on March 14 and March 16
were obtained in violation of Miranda and his Fifth Amendment rights, and should have
been suppressed. He argues that the statements he made on March 14 prior to receiving
Miranda warnings should have been suppressed because he was subject to custodial
interrogation during that time. He argues that his post-warning statements on March 14
should have been suppressed because the Miranda warnings eventually read to him were
inadequate, and he did not knowingly waive them. Finally, he argues that his post-


                                               9
warning statements on March 14 and all of his statements on March 16 should have been
suppressed because they were obtained as part of a two-step interrogation technique
prohibited by the United States Supreme Court’s opinion in Missouri v. Seibert (2004)
542 U.S. 600 (Seibert). Defendant argues that to the extent these arguments were not
raised to the trial court, his trial counsel was ineffective for failing to raise them.
A.     Standard of Review
       “The rule of Miranda is well established: ‘[W]hen an individual is taken into
custody or otherwise deprived of his freedom by the authorities in any significant way
and is subjected to questioning, the privilege against self-incrimination is jeopardized.
Procedural safeguards must be employed to protect the privilege, and unless other fully
effective means are adopted to notify the person of his right of silence and to assure that
the exercise of the right will be scrupulously honored, the following measures are
required. He must be warned prior to any questioning that he has the right to remain
silent, that anything he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires. Opportunity to exercise these
rights must be afforded to him throughout the interrogation. After such warnings have
been given, and such opportunity afforded him, the individual may knowingly and
intelligently waive these rights and agree to answer questions or make a statement. But
unless and until such warnings and waiver are demonstrated by the prosecution at trial,
no evidence obtained as a result of interrogation can be used against him.’ [Citation.]”
(People v. Jennings (1988) 46 Cal.3d 963, 976.) “In reviewing a trial court’s Miranda
ruling, we accept the court’s resolution of disputed facts and inferences and its
evaluations of credibility, if supported by substantial evidence, and we independently
determine, from the undisputed facts and facts properly found by the trial court, whether
the challenged statement was illegally obtained. [Citation.]” (People v. Bacon (2010) 50
Cal.4th 1082, 1105.)
       A defendant arguing on appeal that his trial counsel was ineffective for failing to
raise an argument has the burden of showing that trial counsel’s representation


                                               10
“ ‘ “ ‘ “fell below an objective standard of reasonableness . . . under prevailing
professional norms.” ’ ” ’ ” (People v. Vines (2011) 51 Cal.4th 830, 875.) “Reviewing
courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective
assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.’ [Citation.]” (People v.
Lucas (1995) 12 Cal.4th 415, 436-437.) “ ‘ “ ‘Reviewing courts will reverse convictions
[on direct appeal] on the ground of inadequate counsel only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or
omission.’ ” [Citation.]’ [Citation.] If the record on appeal ‘ “ ‘sheds no light on why
counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,’ the claim on appeal must be rejected,” ’ and the ‘claim of
ineffective assistance in such a case is more appropriately decided in a habeas corpus
proceeding.’ [Citation.]” (People v. Vines, supra, 51 Cal.4th at p. 876.) “Counsel does
not render ineffective assistance by failing to make motions or objections that counsel
reasonably determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387.)
B.     Defendant’s Pre-Miranda Statements on March 14
       Defendant argues that prior to any admission he made at the police station on
March 14, he was “subjected to custodial interrogation requiring Miranda warnings be
given.” As such, he argues that the statements he made before he was read his Miranda
rights approximately one hour into the interview should have been suppressed.
Defendant concedes that his trial counsel did not raise this argument to the trial court, but
argues that trial counsel’s failure to do so constitutes ineffective assistance of counsel.
       The Attorney General argues that defendant has forfeited this argument on appeal
because it was not raised to the trial court. The Attorney General also argues that
defendant has not shown his trial counsel was ineffective for failing to raise this argument
because the argument would have failed. The Attorney General does not dispute that
defendant was subject to interrogation once at the police station, but argues that he was



                                              11
not in custody when the interview began and, as such, the officers were not required to
read him his rights earlier than they did.
       Because defendant did not argue to the trial court that he was in custody before
making any admissions, this argument is forfeited on appeal. (People v. Haley (2004) 34
Cal.4th 283, 300.) Furthermore, we cannot conclude on the record before us that
defendant’s trial counsel was ineffective for failing to argue that defendant was in
custody prior to making any admissions.
       “An appellate court should not declare that a police officer acted unlawfully,
suppress relevant evidence, set aside a jury verdict, and brand a defense attorney
incompetent unless it can be truly confident all the relevant facts have been developed
and the police and prosecution had a full opportunity to defend the admissibility of the
evidence.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) The relevant facts for
determining whether defendant was in custody relate to whether a reasonable person in
defendant’s position would believe there was “a restraint on [his] freedom of movement
of the degree associated with a formal arrest.” (People v. Moore (2011) 51 Cal.4th 386,
395.) The record on appeal is lacking information that is critical to this analysis because
it contains hardly any facts about what happened between the time police contacted
defendant at his house on the evening of March 13 and interviewed him on the morning
of March 14. Officers Poveda and Gamble did not testify at the suppression hearing, and
defendant’s testimony during the hearing was primarily focused on the interview with
police, not what happened before the interview.4 Defendant’s testimony during the



       4
         Poveda and Gamble testified at trial, but their testimony shed little light on what
happened before they and defendant entered the interview room. Poveda testified that he
contacted defendant in his bedroom and asked him in Spanish if he would voluntarily
come down to the police station “and talk to us about the reason we were there,” although
Poveda did not testify what the reason was. Defendant responded that he wanted to tell
his side of his story, grabbed his bible, and rode with Poveda in a patrol car to the police
station. Gamble testified that he and Poveda went to defendant’s house in response to a
report of child abuse and encountered defendant outside of his bedroom. Defendant was
not placed under arrest at the house. He was transported to the police station in the front

                                             12
suppression hearing was primarily focused on the interview with police, not what
happened before the interview. As such, we know very little about what happened at
defendant’s house after police contacted him, in the police car, or at the police station
before defendant entered the interview room.
       It could be that trial counsel discovered that defendant was cooperating with the
officers before the interview and wanted to tell his side of the story to the officers, as
Officer Poveda testified was the case at trial. This would be a “satisfactory explanation”
for trial counsel’s decision not to argue that defendant was in custody. (People v. Vines,
supra, 51 Cal.4th at p. 875-876.) But it could also be the case that trial counsel had no
good reason for failing to argue that defendant was in custody. The bottom line is that we
do not know. In such a situation, we must reject defendant’s contention that his trial
counsel was ineffective for not making a custody argument. (People v. Mendoza Tello,
supra, 15 Cal.4th at p. 267.) The claim is “more appropriately decided in a habeas corpus
proceeding.” (Ibid.)
C.     The Miranda Warnings on March 14
       Defendant argues on appeal that he did not receive adequate Miranda warnings
during the March 14 questioning, and that he did not knowingly waive his rights.
Focusing specifically on his right to an attorney at no cost, defendant contends that the
verbal warning was given “in a way that no reasonable person could understand.” He
further contends that his “lack of understanding that he was entitled to a free lawyer
before any questioning could begin was obvious” because as he was reading the written
Miranda form, he said “I can’t answer this one because I don’t know how much they are
going to charge me.” The Attorney General contends that this argument is without merit
because defendant was adequately informed of his rights both orally and in writing, and
indicated that he understood his rights.




seat of Poveda’s patrol car, which could be unlocked from the inside, and entered the
police station through the front doors with the officers.


                                              13
       “In determining whether police officers adequately conveyed the four [Miranda]
warnings . . . reviewing courts are not required to examine the words employed ‘as if
construing a will or defining the terms of an easement. The inquiry is simply whether the
warnings reasonably “conve[y] to [a suspect] his rights as required by Miranda.” ’
[Citations.]” (Florida v. Powell (2010) 559 U.S. 50, 60.) “ ‘[A]lthough there is a
threshold presumption against finding a waiver of Miranda rights [citation], ultimately
the question becomes whether the Miranda waiver was [voluntary,] knowing[,] and
intelligent under the totality of the circumstances surrounding the interrogation.’
[Citation.]” (People v. Williams (2010) 49 Cal.4th 405, 425.) The waiver must have
been “ ‘ “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. Gonzales
(2012) 54 Cal.4th 1234, 1269.) The California Supreme Court “has long recognized that
a defendant’s decision to answer questions after indicating that he or she understands the
Miranda rights may support a finding of implied waiver, under the totality of the
circumstances.” (Ibid.)
       Here, the police reasonably conveyed to defendant that he had the right to an
attorney present before and during any questioning, and that he would be given an
attorney at no cost if he could not afford one. Officer Poveda, albeit inartfully, verbally
admonished defendant as to these rights. When asked if he understood these rights,
defendant responded “Yes.” Any ambiguity with the verbal admonition was clarified by
the written Miranda form provided to defendant, which was unequivocal. The form
stated in Spanish: “You have the right to have an attorney present before and during any
questions that are asked of you.” Defendant appeared to hesitate after reading this right
and told Poveda, “I can’t answer this one because I don’t know how much they are going
to charge me.” Poveda addressed defendant’s question by directing him to the final
admonition on the form, telling him “No. Read, read that one too.” This last admonition
was unequivocal. It stated in Spanish: “If you do not have means to pay for an attorney,
you will be given one without cost before being asked any questions, if you so desire.”
Poveda asked defendant “if you understand this right. Yes or no?” Defendant orally


                                             14
responded “Yes.” Defendant then indicated on the form that he understood all of his
rights, including his right to an attorney present during questioning, and his right to an
attorney at no cost should he be unable to afford one. These circumstances establish that
defendant understood his Miranda rights, including his right to an attorney at no cost.
Because defendant continued speaking with the officers after acknowledging his Miranda
rights, the record supports a finding that he waived those rights. (People v. Gonzales,
supra, 54 Cal.4th at p. 1269.)5
D.     Defendant’s March 14 Post-Miranda Statements and March 16 Statements
       Defendant argues that the statements he made after receiving Miranda warnings
on March 14 and all of his statements on March 16 should have been suppressed because
they were obtained as part of a two-step interrogation technique prohibited by the United
States Supreme Court’s opinion in Seibert, supra, 542 U.S. 600. He concedes that this
argument was not raised to the trial court, but argues that trial counsel’s failure to make
this argument constituted ineffective assistance of counsel.
       The Attorney General argues that defendant’s Seibert argument is forfeited on
appeal because it was never raised to the trial court. The Attorney General also argues
that defendant’s trial counsel was not ineffective for failing to make a Seibert argument



       5
         Our conclusion that defendant knowingly waived his Miranda rights is bolstered
by the video of the March 14 interview, which is part of the record on appeal and was
shown in large part to the jury, but apparently not considered in connection with
defendant’s suppression motion. The video shows defendant was presented with the
written form, took several seconds to read the first two warnings, and acknowledged on
the form that he understood those warnings. After reading the third warning––the right to
an attorney—defendant said, “I can’t answer this one because I don’t know how much
they are going to charge me.” When Poveda responded, “No. Read, read that one too,”
he was apparently referring defendant to the fourth warning––the right to an attorney at
no cost. Defendant took several seconds to read that warning, and then acknowledged on
the form that he understood it. Realizing that defendant did not acknowledge the third
warning, Poveda referred him back to it and asked “if you understand this right. Yes or
no?” Defendant took several seconds to read the third warning again, then signed it.
Contrary to defendant’s testimony at the suppression hearing, it does not appear that the
officers rushed defendant as he was reading the form.


                                             15
because Seibert is inapplicable to the circumstance of the March 14 and March 16
questioning.
       Defendant has forfeited his Seibert argument on appeal because he did not raise it
to the trial court. (People v. Haley, supra, 34 Cal.4th at p. 300.) We also reject
defendant’s claim of ineffective assistance of counsel because, as was the case with his
custody argument, the relevant facts have not been sufficiently developed for us
determine whether Seibert applies.
       In Seibert, the defendant was arrested on suspicions of murdering a mentally
disabled child, then subjected to aggressive questioning that was “systematic, exhaustive,
and managed with psychological skill” without being read Miranda warnings. (Seibert,
supra, 542 U.S. at p. 616.) After Seibert admitted that she intended for the child to die,
the police gave her a 20–minute coffee and cigarette break, administered Miranda
warnings, and got her to repeat her admission. (Id. at p. 605.) An officer later testified
that “he made a ‘conscious decision’ to withhold Miranda warnings, thus resorting to an
interrogation technique he had been taught: question first, then give the warnings, and
then repeat the question ‘until I get the answer that she's already provided once.’ ” (Id. at
pp. 605-606.)
       The United States Supreme Court held that Seibert’s post-warning statements were
inadmissible. (Seibert, supra, 542 U.S. at p. 617.) A plurality of the court noted that
Miranda’s purpose was to address “ ‘interrogation practices . . . likely . . . to disable [an
individual] from making a free and rational choice’ about speaking,” and that “[t]he
object of question-first is to render Miranda warnings ineffective by waiting for a
particularly opportune time to give them, after the suspect has already confessed.” (Id. at
p. 611.) According to the plurality, “[t]he threshold issue when interrogators question
first and warn later is thus whether it would be reasonable to find that in these
circumstances the warnings could function ‘effectively’ as Miranda requires.” (Id. at pp.
611-612.) The plurality concluded that “because the facts here do not reasonably support
a conclusion that the warnings given could have served their purpose, Seibert's
postwarning statements are inadmissible.” (Id. at p. 617.)


                                              16
       In a concurring opinion, Justice Kennedy stated that the “plurality opinion is
correct to conclude that statements obtained through the use of this technique are
inadmissible.” (Seibert, supra, 542 U.S. at p. 618 (conc. opn. of Kennedy J.).) Justice
Kennedy, however, believed that the plurality opinion “cuts too broadly” because it
applied in “case[s] of both intentional and unintentional two-stage interrogations.” (Id. at
p. 621.) Justice Kennedy stated he “would apply a narrower test applicable only in the
infrequent case, such as we have here, in which the two-step interrogation technique was
used in a calculated way to undermine the Miranda warning.” (Id. at p. 622.) He
concluded that “[w]hen an interrogator uses this deliberate, two-step strategy, predicated
upon violating Miranda during an extended interview, postwarning statements that are
related to the substance of prewarning statements must be excluded absent specific,
curative steps.” (Id. at p. 621.) We agree with the many courts that have determined that
Justice Kennedy’s concurrence represents Seibert’s holding because he concurred in the
judgment on the narrowest grounds. (E.g. People v. Camino (2010) 188 Cal.App.4th
1359, 1370; United States v. Williams (2006) 435 F.3d 1148, 1157.)
       Facts relevant to whether Poveda and Gamble used a “deliberate, two-step
strategy, predicated upon violating Miranda” have not been developed, at least in the
record before us on appeal. (Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy
J.).) Defendant’s trial counsel did not examine Poveda and Gamble during the
suppression hearing to elicit testimony about their strategy for interviewing defendant.
Nor is there any evidence regarding how Poveda and Gamble were trained to interview
potential suspects.6 It is possible that defendant’s trial counsel researched these facts
before the suppression hearing and concluded that the officers did not use a technique
that violated Seibert. Or perhaps he never thought of the issue. Since we do not know, it



       6
         Defendant, citing a law review article, argues that police officers are trained to
tell suspects they are free to leave an interview in order to avoid giving Miranda
warnings. Defendant, however, has not cited anything in the record showing that Poveda
and Gamble were given such training.


                                             17
would be inappropriate to determine that trial counsel was ineffective for failing to raise a
Seibert argument. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
    II.       The Trial Court’s Locking of the Courtroom During Jury Instructions
          Defendant argues that his constitutional right to a public trial was violated when
the trial judge locked the courtroom while instructing the jury.
          The jury was instructed on the morning of November 28, 2011. The clerk’s
minutes indicate that the instructions lasted no more than 50 minutes. The minutes and
the reporter’s transcript contain no indication that the trial judge locked the courtroom
when the jury was instructed. In the afternoon session on November 28 after the jury was
excused to deliberate, defendant’s counsel moved for a mistrial. The sum total of the
record on this issue is as follows:
          “THE COURT: All right. And then, Mr. Devoy [defendant’s counsel], I
understand you have a motion.
          “MR. DEVOY: Yes. It’s been reported to me that two attorneys or at least two––
well two . . . [¶] ––attorneys attempted to come in during the morning session and the
door was locked, and so I’m moving for a mistrial because that denies Mr. Valladares his
right to a Sixth Amendment trial in open court. Submitted.
          “THE COURT: Okay. Before I rule on the motion, I should state that it’s this
Court’s policy to have the door locked while the Court instructs. [¶] And Deputy Bates,
in accordance with the Court’s policy, did lock the doors while the Court was instructing,
and this Court actually observed Deputy Bates unlock the doors after the instructions
were completed, and he came back in with a sign that is posted at the time that––in
addition to locking the door, he puts a sign out indicating that the Court is instructing.
[¶] So unless Deputy Bates has something otherwise to say, this Court is informed and
believes that the doors were unlocked at all other times including when the counsel was
making the closing arguments. [¶] Deputy Bates; is that correct?
          “THE BAILIFF: That’s correct.
          “THE COURT: Okay. Based on that, the Court will deny the motion for
mistrial.”


                                               18
       Defendant contends that the trial judge was required to “articulate an ‘overriding
interest’ as to why the court should be closed to the public” during jury instructions and
“ensure that the closure was no broader than necessary,” and, having failed to do so,
committed structural error that requires reversal without a showing of prejudice. The
Attorney General argues that defendant’s right to a public trial was not violated because
locking the courtroom during instructions was a “de minimis” closure that did not rise to
the level of a constitutional violation.
       “Every person charged with a criminal offense has a constitutional right to a
public trial, that is, a trial which is open to the general public at all times. (See U.S.
Const., amends. VI, XIV; Cal. Const., art. I, § 15; see also Pen. Code § 686, subd. 1.)”
(People v. Woodward (1992) 4 Cal.4th 376, 382.) As explained by the United States
Supreme Court in Waller v. Georgia (1984) 467 U.S. 39, “ ‘ “ ‘[t]he requirement of a
public trial is for the benefit of the accused; that the public may see he is fairly dealt with
and not unjustly condemned, and that the presence of interested spectators may keep his
triers keenly alive to a sense of their responsibility and to the importance of their
functions. . . .’ ” ’ ” (Id. at p. 46.) “In addition to ensuring that judge and prosecutor
carry out their duties responsibly, a public trial encourages witnesses to come forward
and discourages perjury.” (Ibid.) The Waller court held that the right to a public trial
creates a “ ‘presumption of openness’ ” that “ ‘may be overcome only by an overriding
interest based on findings that closure is essential to preserve higher values and is
narrowly tailored to serve that interest.’ ” (Id. at p. 45.) When such a “ ‘higher value[]’ ”
is advanced, it must be “ ‘articulated along with findings specific enough that a reviewing
court can determine whether the closure order was properly entered.’ ” (Ibid.)
       In People v. Woodward, supra, 4 Cal.4th at pp. 384-385, the California Supreme
Court stated that certain courtroom closures are so “trivial” or “de minimis” that they do
not implicate the principles identified in Waller. In Woodward, the trial court closed and
locked the courtroom during closing argument, and placed a sign on the courtroom door
reading: “Trial in progress—Please do not enter . . . .” (Id. at p. 380.) Defense counsel
observed the sign during a recess and promptly moved for a mistrial. (Ibid.) The trial


                                              19
court denied the motion, although it agreed to take the sign down and unlock the
courtroom. (Ibid.) The trial court stated that it locked the courtroom because it was
located next to the probate department and lawyers seeking ex parte orders “were apt to
cause ‘constant interruptions.’ ” (Ibid.) The trial court also “stated for the record a
further reason supporting the temporary closure of the courtroom to additional spectators
namely, that defendant’s trial posed unusual security risks.” (Ibid.) It also stated that
members of the public were present during the closing argument, and that additional
spectators could enter the courtroom during specified recesses. (Id. at pp. 380, 385.) The
Supreme Court determined that this “temporary closure” was “de minimis” and did not
implicate the interests identified in Waller. (Id. at pp. 384-385.) It held that “the closure
of the courtroom doors to additional spectators during part of the prosecutor’s arguments,
being both temporary in duration and motivated by legitimate concerns to maintain
security and prevent continuous interruptions of closing arguments, and not involving the
exclusion of preexisting spectators, did not constitute a denial of defendant’s public trial
right.” (Id. at p. 381.)
       One of the cases cited in Woodward was People v. Buck (1941) 46 Cal.App.2d
558, which, like this case, concerned whether a defendant was deprived of his right to a
public trial when the trial court closed the courtroom as the jury was being instructed.
(Id. at p. 562.) The appellate court in Buck held the closure did not violate defendant’s
right to a public trial, stating: “It is apparent that the order was made for the convenience
of the court and all others present, including the appellant. It was made to facilitate the
instructing of the jury and to obviate the disturbance and distraction which is made by
spectators entering or leaving while the court is giving its instructions. This seemingly
was the view taken at the time by the appellant and his counsel for no complaint was
made during the trial. The court did not order anyone to leave the courtroom. It merely
attempted to keep the spectators from moving in or out during the period of instruction.
In this particular instance it is to be observed that the court instructed the jury before the
argument of counsel and that the doors of the courtroom were opened during the
argument.” (Ibid.)


                                              20
       Courts in other jurisdictions have also held that a courtroom closure during jury
instructions did not violate the right to a public trial. In State v. Brown (Minn. 2012) 815
N.W.2d 609, a trial court in Minnesota ordered the courtroom locked for the duration of
jury instructions. (Id. at p. 614.) The Minnesota Supreme Court held that the closure was
“ ‘ “trivial” ’ ” and did not violate defendant’s right to a public trial. It reasoned: “While
the trial court did lock the courtroom doors during jury instructions, the courtroom was
never cleared of all spectators, and the judge in fact told the people in the courtroom that
they were ‘welcome to s[t]ay.’ The trial remained open to the public and press already in
the courtroom and the trial court never ordered the removal of any member of the public,
the press, or the defendant’s family. In addition, the jury instructions did not comprise a
proportionately large portion of the trial proceedings. All of these circumstances, taken
together, convince us that the trial court’s conduct did not implicate [defendant’s] right to
a public trial.” (Id. at pp. 617-618, fn. omitted.) The court in United States v. Scott (1st
Cir. 2009) 564 F.3d 34, reached a similar conclusion. There, the district court closed the
courtroom during jury instructions, “presumably to avoid distracting the jury during the
‘lengthy’ and complex charge.” (Id. at p. 37.) The district court also invited members of
the public to remain in the courtroom (at least some of whom did remain), and there was
no evidence that any member of the public who sought entry into the courtroom was
denied access. (Id. at p. 38.) Under these circumstances, the court held that “no closure
occurred in this case.” (Ibid.)
       Consistent with those cases, we conclude that the closure in this case was “de
minimis” and did not violate defendant’s right to a public trial. (People v. Woodward,
supra, 4 Cal.4th at p. 385.) The closure occurred while the jury was being instructed and
lasted less than an hour, making it “temporary in duration.” (Id. at p. 381.) There is no
indication that the courtroom was closed at any other point during the trial, nor any
indication that the trial court ordered the removal of any member of the public prior to
instructing the jury and locking the courtroom.
       Defendant argues that the de minimis principle is inapplicable to this case because
the trial court, unlike the trial court in Woodward, did not state any reasons on the record


                                              21
justifying its decision to lock the courtroom. Certainly, it would have been preferable for
the trial court to provide a reason for locking the courtroom instead of merely stating it
was the court’s “policy.” Nevertheless, we may presume that the trial court had a
legitimate reason for locking the courtroom, namely, to avoid the risk that the jury would
be distracted or interrupted. (Evid. Code, § 664.) Nothing in the record indicates that the
trial court’s “policy” was based on a different or improper purpose. We also note that
other courts upholding a courtroom closure during jury instructions did so despite the
trial court’s failure to state on the record why it closed the courtroom. (State v. Brown,
supra, 815 N.W.2d at p. 618 [“To facilitate appellate review in future cases, we conclude
the better practice is for the trial court to expressly state on the record why the court is
locking the courtroom doors.”]; United States v. Scott, supra, 564 F.3d at p. 37
[presuming that district court closed courtroom to avoid distracting the jury].)
       Defendant also argues that the de minimis principle does not apply here because
there was no showing that members of the public were in the courtroom prior to it being
locked. In fact, defendant argues, it is likely that no member of the public was in the
courtroom during jury instructions because the instructions began shortly after the trial
court commenced its morning session. This is pure speculation, but even if we assume
that no members of the public attended this portion of defendant’s trial, that fact alone
cannot be the basis for determining whether the court erred by locking the courtroom
during jury instructions.
       Although the record before us does not support a finding that defendant’s right to a
public trial was violated, we do not condone the trial court’s actions. Trial courts should
not lock their courtrooms as a matter of course while instructing a jury. Such actions,
even if not unconstitutional, may create the appearance that our courts are closed to the
public. The better practice is to make an individualized determination in each case. If,
after making an individualized determination, a trial court decides to lock its courtroom
during jury instructions, it should announce its decision on the record in advance,
provide specific reasons supporting its decision, and give the parties a chance to be heard.



                                              22
                            DISPOSITION
The judgment is affirmed.




                                23
                                     _________________________
                                     Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




A134585, People v. Valladares




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