Filed 7/30/14 P. v. Wolcott CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136484
v.
OLIVER E. WOLCOTT,                                                   (San Francisco City & County
                                                                     Super. Ct. No. 217788)
         Defendant and Appellant.


         Defendant Oliver E. Wolcott was convicted of attempted robbery and aggravated
assault after he struck a woman waiting at a bus stop and grabbed her cell phone. He
contends the trial court erred in refusing to suppress statements from his police interview,
permitting the introduction of those statements as rebuttal evidence, limiting the scope of
testimony regarding his mental disorder, and denying him probation. We affirm.
                                                 BACKGROUND
         Defendant was charged in an information, filed April 12, 2012, with second
degree robbery (Pen. Code, § 211) and assault with force likely to cause great bodily
injury (Pen. Code, § 254, subd. (a)(4)). An enhancement allegation that defendant caused
great bodily injury was later stricken by the district attorney’s office.
         At a bus stop, defendant sat down next to a woman who was speaking on a cell
phone. As the woman ended the call, defendant hit her and grabbed for the phone. The
victim held on, and they struggled. When defendant rose to leave the shelter, the victim
grabbed his shoulders and was dragged several feet before losing her grip and landing



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awkwardly on the sidewalk. The cell phone flew into the air, landing on the ground
nearby, and defendant began to run. Onlookers chased him down.
       Defendant was interviewed at a police station. The officers did not deliver the
Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)) until
approximately seven minutes into the interview, after preliminary questions about
defendant’s background, criminal history, and activities on the morning of the assault.
When told he had the right to remain silent and cautioned his statements could be used
against him, defendant told the officers he understood. This colloquy followed:
       “[Officer]: You have the right to talk to a lawyer and have him present before and
during questioning. Do you understand?
       “[Defendant]: Yeah. But you’re still, you’re already questioning me, so where is
my lawyer?
       “[Officer]: Ah, you have a right to one if you’d wish.
       “[Defendant]: I can’t afford it.
       “[Officer]: If you can’t afford it—
       “[Defendant]: Then what?
       “[Officer]: One would be present before you [sic] before and during questioning
and then we would stop. And I’d only hear one side of the story and that would be it. Do
you understand your right to have a lawyer?
       “[Defendant]: No, because I don’t have a lawyer ‘cause I can’t afford one.
       “[Officer]: So what are you tryin’ to tell me here?
       “[Defendant]: What I’m saying is I guess I’ll trust you to read my Miranda rights
. . . but I can’t afford a lawyer anyway.
       “[Officer]: Do you want a lawyer? Is that what you’re telling me?
       “[Defendant]: No. I’m gonna say if you guys gonna let me go—I have a court
appearance tomorrow in, it’s in Pittsburg though.
       “[Officer]: Oh.
       “[Defendant]: Just so you know . . . In Pittsburg I have a court appearance, so the
sooner I get outta here, the quicker I show up there.


                                              2
      “[Officer]: Okay. But it still isn’t really clear. You answer my question.
      “[Defendant]: But I don’t , I can’t—
      “[Officer]: You don’t?
      “[Defendant]: Afford a lawyer.
      “[Officer]: Well, if you can’t afford one, one can be present before and being
questioned which, if you can’t afford one, one will be appointed to represent you before
and during questioning, if you wish one.
      “[Defendant]: I don’t want a lawyer. I wanna go home and eat.
      “[Officer]: So do you understand that right I just read you? If you cannot afford
to hire a lawyer, one will be appointed to represent you before and during questioning?
      “[Defendant]: Yes but—
      “[Officer]: Okay.
      “[Defendant]: Yeah.
      “[Officer]: Yeah. It’s cool that—
      “[Defendant]: It was before or during questioning ‘cause you’re questioning me
now, so—
      “[Officer]: Yeah.
      “[Defendant]: If you—if I can’t afford one, where is he?
      “[Officer]: Right. Well, that’s why I’m asking you. You want a lawyer?
      “[Defendant]: No.
      “[Officer]: No.
      “[Defendant]: I do wanna go home and eat . . . .
      [¶] . . . [¶]
      “[Officer]: Okay. Let me read you your last right. You can decide at any time to
exercise these rights and not answer any questions or make any statements. Do you
understand?
      [¶] . . . [¶]
      “[Defendant]: Yes, I do.
      “[Officer]: Do you understand each of these rights that I have explained to you?


                                             3
       “[Defendant]: Yeah.
       “[Officer]: Having these rights in mind, do you wish to talk to us now?
       “[Defendant]: Ah, you know, like, yeah, I know, I’m good.
       “[Officer]: So that’s a yes?
       “[Defendant]: Yes, I’m good.”
       Following this colloquy, defendant discussed the day’s events, acknowledging that
he “tried,” but failed to steal the phone and denied any assault.
       Defendant moved to suppress his statements during the interview. The trial court
held a hearing at which one of the officers present at the interview testified briefly.
Although the court excluded a statement by defendant about his criminal history given
prior to the discussion of Miranda rights, the court otherwise found that defendant “knew
what his Miranda rights were and he knowingly, intelligently and voluntarily waived
those rights and chose to talk to the officers.” The court noted that defendant was
educated and well spoken, questioned the officers about his rights, and was given
straightforward answers by the officers.
       At trial, defendant was allowed to present testimony by a psychiatrist who
diagnosed him as suffering from a mental disorder. The prosecution had moved in limine
to exclude testimony about defendant’s psychiatric problems, contending the evidence
was irrelevant to defendant’s formation of the specific intent for the crime of robbery.
The court initially deferred a ruling on the admissibility of defendant’s evidence,
concerned the psychiatrist’s report made no direct connection between defendant’s
symptoms and his formation of the required intent. It ultimately permitted the testimony
after submission of a revised statement from the psychiatrist that addressed this issue.
       Prior to the expert’s testimony, the court granted a prosecution motion under
Evidence Code section 352 to limit his testimony about defendant’s psychological history
to five years before the alleged crime, thereby ruling inadmissible evidence about
defendant’s life before he developed the symptoms of his mental illness. In return, the
prosecution agreed not to dispute the fact of defendant’s mental disorder. As the court
explained its ruling, “It appears that what the defense is trying to do is get in a lot of


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marginally relevant information that is multiple levels of hearsay, but the sole purpose of
which is to play to the sympathies of the jury, rather than having them look at this case
and what the defense is.”
       Closer in time to the psychiatrist’s testimony, the prosecution sought to exclude
the testimony of three family members of defendant about his development of psychotic
symptoms and the expression of those symptoms in his daily life. Defense counsel
argued the testimony was relevant because the psychiatrist had relied on interviews with
these witnesses in reaching his diagnosis. Examining communications from the
psychiatrist, the trial court noted that the expert formed his diagnosis before he had
spoken to family members and noted in an e-mail, “ ‘The collateral interviews [with
family members] only corroborated my impressions from the interview and the medical
records available indicating that [defendant] suffers from a psychotic disorder not
otherwise specified.’ ” Given what it believed to be the “collateral” nature of the family
interviews to the psychiatrist’s diagnosis, the court ruled their testimony inadmissible
under Evidence Code section 352 and limited the psychiatrist’s testimony about the basis
for his opinions to his interview with defendant and review of medical records. Although
the psychiatrist was not permitted to discuss the content of the interviews, he was allowed
to state that they corroborated his diagnosis.
       The prosecution did not introduce evidence of the police interview in its case-in-
chief. Following defendant’s presentation of expert testimony regarding his ability to
form the specific intent for the crime, however, the prosecution announced its intention to
introduce the recording of the interview, arguing defendant’s conduct and statements
during the interview demonstrated he was capable of forming a specific intent to steal.
The prosecutor explained that she did not present the interview in her case-in-chief
because defendant’s admission during the interview that he tried, but failed to steal the
phone was not consistent with the prosecution’s theory of a completed robbery. The
court permitted introduction of the recording, subject to an instruction limiting its
consideration to the issue of defendant’s state of mind. As the court explained, “[t]he
statements made immediately after this incident, the manner in which the defendant was


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logically able to respond and follow that, given what [the psychiatrist] testified about, . . .
this tape is a part of the evidence that this jury can consider in making that determination.
[¶] The Court would also note again there was no report by [the psychiatrist]. The People
have had some idea about what he would testify about in this case, but it was not until
after his testimony was completed that the People were aware of the extent of the
testimony.”
       Defendant was convicted of attempted second degree robbery and assault with
force likely to cause great bodily injury. The trial court denied probation and sentenced
defendant to the mitigated term of two years on the assault conviction. In explaining its
decision to deny probation, the court acknowledged the role of defendant’s mental illness
in his crime, but it noted, “there would not be a likelihood that the defendant would
succeed upon a grant of probation. More specifically, the Court notes that this offense
happened within a month of defendant being granted probation from the State of Oregon.
Th[at] crime also involved a degree of violence, and the defendant has had misdemeanor
conduct, but it went from a DUI to harassment, to this conduct. So the Court sees the
conduct actually escalating, and so for those reasons the Court is going to deny the
defendant’s request for probation.”
                                       DISCUSSION
A. Miranda
       Defendant contends the recording of his police interview should have been
suppressed because his waiver of Miranda rights was not knowing and voluntary and
police engaged in impermissible “softening up” before informing him of his rights.
       “ ‘Miranda v. Arizona[, supra, 384 U.S. 436], and its progeny protect the privilege
against self-incrimination by precluding suspects from being subjected to custodial
interrogation unless and until they have knowingly and voluntarily waived their rights to
remain silent, to have an attorney present, and, if indigent, to have counsel appointed.
[Citations.] . . .’ ‘To establish a valid Miranda waiver, the prosecution bears the burden
of establishing by a preponderance of the evidence that the waiver was knowing,
intelligent, and voluntary under the totality of the circumstances of the interrogation.’ ”


                                               6
(People v. Duff (2014) 58 Cal.4th 527, 551.) “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.’ ” (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219.)
       Defendant contends his statements during the portion of the interview quoted
above demonstrate confusion about his right to counsel and the consequences of his
decision to proceed without counsel.1 In that portion, defendant appeared to have
difficulty understanding why an attorney was not present. Contrary to his contention,
these comments do not suggest he was confused about his right to a lawyer. Rather, they
appeared to arise in response to the officer’s statement that if defendant could not afford a
lawyer, “one will be appointed to represent you before and during questioning.” Taken
literally, the statement implied that an appointed attorney should already have been
present, since defendant was unable to afford a lawyer and the questioning had begun
several minutes earlier. Given this right, defendant wondered why an appointed attorney
was not already at the table.
       We do not regard this confusion, assuming it was genuine, to represent an inability
to understand “both the nature of the right being abandoned and the consequences of the
decision to abandon it.” (People v. Sauceda-Contreras, supra, 55 Cal.4th at p. 219.)
There is no reason to doubt defendant when he told the officers that he understood he had
the right to refuse to speak and to have an appointed attorney present. Rather than
demonstrating confusion about his rights, defendant’s expectation that an attorney should
already have been appointed for him reflects his understanding of these rights. In
confirming his understanding, defendant was firm in responding several times that he did




       1
       There is no reason to question defendant’s understanding of the three other
warnings. When they were given, he confirmed his understanding in a manner that gave
no suggestion of confusion.

                                              7
not want to have an attorney present. We agree with the trial court that this waiver was
knowing and intelligent.2
       Citing People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt), defendant also
argues the officers “ ‘softened him up’ ” by waiting for approximately seven minutes
before beginning the Miranda admonitions and making various friendly comments, such
as discussing the virtues of Oregon and telling defendant his prior offenses were not
particularly serious. In Honeycutt, the officers, faced with an angry and recalcitrant
suspect, admittedly engaged in a deliberate process of “softening [him] up” by speaking
with the suspect for 30 minutes before beginning the Miranda warnings, discussing
mutual acquaintances, insulting the victim, and generally ingratiating themselves. (Id. at
p. 160.) The court found the conduct “violated . . . the spirit of Miranda.” (Ibid.)
       In the nearly 40 years since Honeycutt was decided, it has been confined
repeatedly to its facts, which involved deliberate conduct to erode the defendant’s will
through ingratiating conversation and disparagement of the victim. (See People v. Scott
(2011) 52 Cal.4th 452, 477–478 (Scott); People v. Michaels (2002) 28 Cal.4th 486, 511
(Michaels); People v. Gurule (2002) 28 Cal.4th 557, 602 (Gurule); People v. Kelly
(1990) 51 Cal.3d 931, 954 (Kelly).) In particular, it has been held that Honeycutt does
not announce a general ban on small talk between police and a suspect. (See Gurule, at
p. 602.) Further, there is no requirement that police give the Miranda warnings at the
very beginning of an interview; rather, they must be given before any question that could
reasonably be construed as calling for an incriminating response. (People v. Gamache
(2010) 48 Cal.4th 347, 388.) The empathetic comments cited by defendant are not the
type of “egregious misconduct” (Kelly, at p. 954) necessary to invalidate a defendant’s
waiver. (See Scott, at p. 477 [discussion of school, roommates and hobbies acceptable];
Michaels, at p. 511 [comment “two sides to every story” acceptable].) There is no reason


       2
        Defendant also contends he was “lulled into believing” he would be let go after
the admonition. While defendant did express the expectation he would be released at
some point, there is no indication the police created this expectation or that defendant’s
decision to speak without counsel was in some way based on this expectation.

                                             8
to believe the officers’ friendly manner lulled defendant into an involuntary waiver of his
rights, nor is there any reason to believe their conduct was intended to do so.
B. Limitations On Mental Health Testimony
       Defendant contends the trial court erred and denied him due process of law when
it excluded under Evidence Code section 352 expert and lay testimony of specific
examples of the manner in which his mental disorder has affected his conduct and
thought processes.
       A defendant is “free to offer evidence that he suffered from a mental disease or
defect as well as evidence about that disease or defect” in order to demonstrate that he did
not form the intent necessary for a particular crime. (People v. Coddington (2000) 23
Cal.4th 529, 583, disapproved on other grounds in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13.) “Sections 28 and 29 permit introduction of evidence of
mental illness when relevant to whether a defendant actually formed a mental state that is
an element of a charged offense, but do not permit an expert to offer an opinion on
whether a defendant had the mental capacity to form a specific mental state or whether
the defendant actually harbored such a mental state.” (Id. at p. 582, fns. omitted.)
       “Evidence Code section 352 provides that ‘[t]he court in its discretion may
exclude evidence if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.’ . . . ‘[T]he
trial court enjoys broad discretion in assessing whether the probative value of particular
evidence is outweighed by concerns of undue prejudice, confusion or consumption of
time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial
court, its exercise of that discretion “must not be disturbed on appeal except on a showing
that the court exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice. [Citations.]” ’ ” (People v. Williams
(2013) 58 Cal.4th 197, 270–271 (Williams).)
       Defendant contends the excluded evidence would have provided a “historical
understanding of the impact of [his] disorder on his thoughts and actions” and would


                                              9
have informed the jury how his mental disorder “had affected his intent to act in other
situations.” In evaluating this argument in the context of a section 352 analysis, it is
important to recognize that the psychiatrist was permitted to testify, without dispute from
the prosecution, that defendant suffered from a mental disorder and to describe the
manner in which such a disorder generally affects a person’s thought processes and
behavior. A description of the history of defendant’s disorder was only tangentially
relevant to the matter at issue, which was the present impact of the disorder on his ability
to form the requisite intent—the topic about which the expert was permitted to testify. It
is conceivable that evidence of defendant’s conduct in another situation might have been
relevant, if the circumstances were sufficiently similar, but defendant made no offer of
proof of a closely parallel circumstance. Accounts of the general manner in which the
disorder affected defendant’s conduct would have demonstrated only that he conformed
to the general description of the disorder provided by the psychiatrist. In other words,
they would have confirmed a diagnosis that the prosecution did not dispute. Given the
marginal relevance of such evidence in light of the expert’s testimony, the trial court did
not abuse its discretion in concluding that its probative value did not outweigh the time
required for its presentation and the risk of undue prejudice. We cannot say the trial
court’s ruling was “ ‘ “arbitrary, capricious or patently absurd [or] resulted in a manifest
miscarriage of justice.” ’ ” (Williams, supra, 58 Cal.4th at pp. 270–271.)
       Defendant relies most heavily on this court’s decision in People v. Larsen (2012)
205 Cal.App.4th 810 (Larsen), in which we found the trial court’s failure to give a jury
instruction addressing a mental disorder to be harmless error. (Id. at p. 834.) That
instruction, CALCRIM No. 3428, was provided at defendant’s trial. Beyond recognizing
the importance of expert testimony in these circumstances, Larsen does not otherwise
address the particular issue presented here.3



       3
        Defendant also takes issue with the trial court’s purported ruling that defendant
had not provided a sufficient proffer to demonstrate the relevance of the evidence.
Because we find the evidence properly excludable under section 352, we do not address

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C. Rebuttal Evidence
       Defendant contends it was improper for the prosecution to introduce evidence of
his police interview for the first time in its rebuttal case.
       “[I]t is improper for a prosecutor to withhold ‘crucial evidence properly belonging
in the case-in-chief’ [citations], and to present it in rebuttal to take unfair advantage of a
defendant.” (People v. Nunez and Satele (2013) 57 Cal.4th 1, 30.) “ ‘[P]roper rebuttal
evidence does not include a material part of the case in the prosecution’s possession that
tends to establish the defendant’s commission of the crime. It is restricted to evidence
made necessary by the defendant’s case in the sense that he has introduced new evidence
or made assertions that were not implicit in his denial of guilt.’ Restrictions are imposed
on rebuttal evidence (1) to ensure the presentation of evidence is orderly and avoids
confusion of the jury; (2) to prevent the prosecution from unduly emphasizing the
importance of certain evidence by introducing it at the end of the trial; and (3) to avoid
‘unfair surprise’ to the defendant from confrontation with crucial evidence late in the
trial.” (People v. Young (2005) 34 Cal.4th 1149, 1199 (Young).) “Rebuttal evidence . . .
‘ “must be specific, and evidence presented or argued as rebuttal must relate directly to a
particular incident or character trait defendant offers in his own behalf.” ’ [Citation].
‘The admission of evidence in rebuttal is a matter left to the sound discretion of the trial
court. [Citation.] The court’s decision in this regard will not be disturbed on appeal in
the absence of “palpable abuse.” ’ ” (People v. Brown (2003) 31 Cal.4th 518, 579.)
       While it is true the inculpatory statements could have been introduced in the
prosecution’s case-in-chief, the admissions cannot be considered “crucial evidence” in
light of the various eyewitness accounts available. Further, as the prosecutor explained,
the admissions were not entirely consistent with the prosecution’s theory. Yet the
manner in which defendant conducted himself during the interview and his
acknowledgement of an intent to steal responded directly to the primary issue raised in
defendant’s case, his ability to form such an intent. The trial court could, therefore,

this issue. Defendant’s due process claim fails with his state law claim. (People v.
Vangelder (2013) 58 Cal.4th 1, 38, fn. 31.)

                                               11
reasonably conclude the evidence was proper rebuttal evidence, since it addressed a
specific issue raised in the defense presentation, rather than the more general issue of
defendant’s guilt. (See Young, supra, 34 Cal.4th at p. 1199 [“Testimony that repeats or
fortifies a part of the prosecution’s case that has been impeached by defense evidence
may properly be admitted in rebuttal”]; People v. Mayfield (1997) 14 Cal.4th 668, 761–
762 [evidence partially inconsistent with the prosecution case can be introduced in
rebuttal if it directly addresses facts impeached in the defense case].) We find no
palpable abuse of discretion in the trial court’s decision.4
D. Denial of Probation
       Defendant contends the trial court erred in denying him probation because the
court failed properly to consider the alternative of an “individualized mental health
treatment program.”
       “A trial court has broad discretion to determine whether a defendant is suitable for
probation. [Citation.] [A]n appellant bears a heavy burden when attempting to show an
abuse of such discretion. [Citation.] To establish abuse, the defendant must show that,
under all the circumstances, the denial of probation was arbitrary, capricious or exceeded
the bounds of reason.” (People v. Bradley (2012) 208 Cal.App.4th 64, 89.) In deciding
whether to grant probation, the trial court should consider the various factors enumerated
in California Rules of Court, rule 4.414, although it can consider other factors as well.
(People v. Weaver (2007) 149 Cal.App.4th 1301, 1312–1313.)
       In denying probation, the trial court recognized the impact of defendant’s mental
illness on his conduct, but it concluded he was unlikely to succeed on probation, had
committed the offense while on probation elsewhere, and was developing a pattern of
criminal activity. These are appropriate factors under California Rules of Court, rule
4.414. (Rule 4.414(b)(1), (2), (4).) Defendant does not even attempt to demonstrate that
the denial of probation was “arbitrary” or “exceeded the bounds of reason,” which it
plainly was not. Defendant merely argues the trial court should have exercised its

       4
       We need not address defendant’s claim of prejudicial cumulative error, since
defendant has failed to demonstrate error.

                                              12
discretion in a different manner. Our standard of review does not permit the second-
guessing of a reasoned decision arrived at upon a consideration of relevant factors.
                                     DISPOSITION
       The judgment of the trial court is affirmed.




                                                 ______________________
                                                  Becton, J.*


We concur:


______________________
 Margulies, Acting P.J.

______________________
 Banke, J.




* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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