Filed 4/29/14 P. v. Sumi CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063418

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN281314)

DEBBIE PACHECO SUMI,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Runston G. Maino, Judge. Affirmed.



         John L. Dodd, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland, and

Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
       Debbie Pacheco Sumi appeals the judgment sentencing her to prison for 10 years

after a jury found her guilty of killing three people as a result of drunk driving. Sumi

contends the trial court erroneously admitted a statement she made after release from

custody that confirmed a prior statement she made while in custody and without having

been given the warnings required by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

We affirm.

                                             I.

                               FACTUAL BACKGROUND

       Sumi and Larry Alvarez were traveling at approximately 65 miles per hour in a

Jeep Cherokee when it crashed into another vehicle parked on the shoulder of a freeway.

As a result of the crash, Sumi was thrown from the Jeep onto the freeway, Alvarez was

thrust partially through the windshield of the Jeep and killed, and two passengers from

the parked vehicle were struck and killed. Sumi was transported to a hospital where she

was diagnosed with acute alcohol intoxication, blunt chest and abdominal trauma, a

broken rib, and several broken vertebrae.

       While Sumi was in the hospital, California Highway Patrol Sergeant Michael Bush

and Officer Bill Ochoa contacted her as part of an investigation of the crash. Sumi was

the main suspect, and Ochoa placed her under arrest, but neither officer administered

Miranda warnings.1 Bush then questioned Sumi about the crash. Sumi stated she was



1      Under Miranda, supra, 384 U.S. at page 444, "the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial interrogation of
the defendant unless it demonstrates the use of procedural safeguards effective to secure
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driving the Jeep and Alvarez was in the passenger seat. After she learned Alvarez died in

the crash, however, Sumi told Bush and Ochoa that Alvarez was driving, and explained

that she initially said she was driving because she did not want Alvarez to get in trouble.

Bush and Ochoa released Sumi from custody after questioning her, apparently so that the

state would not have to pay for her hospitalization. They also gave Sumi a business card

with a telephone number to call if she remembered additional details about the crash.

       Later that day, Sumi telephoned the California Highway Patrol and spoke to

Sergeant William Payson. Sumi told Payson she was in the hospital after a car accident

and "needed to know the circumstances surrounding the accident." Payson asked her

what she knew about the accident. Sumi responded that she and Alvarez went to two

bars and had drinks, and that she drove to both bars but was uncertain about who was

driving after they left the second bar. Payson then reminded Sumi that earlier at the

hospital she had told Bush she was driving, and then changed her story to say Alvarez

was driving only after she learned he was dead. Sumi admitted that she had made the

earlier statement to Bush, but explained that she had done so to protect Alvarez because

he had a prior felony conviction. When Payson continued to press Sumi on the point, she

replied that "maybe" she was driving but "just couldn't be sure." Sumi "sounded coherent

to [Payson] on the telephone."




the privilege against self-incrimination. . . . Prior to any questioning, the person must be
warned that he has a right to remain silent, that any statement he does make may be used
as evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed."
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                                            II.

                            PROCEDURAL BACKGROUND

       The People charged Sumi with three counts of gross vehicular manslaughter while

intoxicated. (Pen. Code, § 191.5, subd. (a).)

       Before trial commenced, Sumi objected to the admissibility of the statements she

made to Bush and Payson about who was driving the Jeep at the time of the crash. At a

hearing on the issue, the parties called no witnesses and agreed Sumi made the statements

under the circumstances recounted in section I., ante. Based on the agreed facts, Sumi

argued both statements should be excluded under Miranda. The People conceded the

statement to Bush was inadmissible, but argued the statement to Payson was admissible.

The trial court ruled that Miranda prohibited admission of Sumi's statement to Bush but

not her statement to Payson.

       A jury found Payson guilty on all counts, and the trial court sentenced her to an

aggregate prison term of 10 years.

                                            III.

                                      DISCUSSION

       Sumi contends the trial court committed prejudicial error by admitting her

statement to Payson that she was driving the Jeep when it crashed into the other vehicle.

Specifically, Sumi argues that because her earlier statement to Bush that she was the

driver was obtained in violation of Miranda, her subsequent confirmation of that

statement to Payson was tainted by the violation and consequently inadmissible. We

disagree.

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       An appellate court applies a de novo standard of review to a trial court's ruling on

a motion to exclude a statement under Miranda where, as here, the trial court applied the

law to undisputed facts. (People v. Waidla (2000) 22 Cal.4th 690, 730; People v. Riva

(2003) 112 Cal.App.4th 981, 988.) "Although we review the record and independently

decide whether the challenged statements were obtained in violation of Miranda . . . , we

may ' "give great weight to the considered conclusions" ' of the trial court." (People v.

Nelson (2012) 53 Cal.4th 367, 380.) Here, the trial court ruled Sumi's statement to Bush

that she was driving the Jeep at the time of the crash was inadmissible under Miranda;

but her later statement to Payson confirming the earlier statement to Bush was admissible

because Sumi was not in custody when "she voluntarily called [Payson] and voluntarily

made [the] statement to [him]." As we shall explain, the court ruled correctly.

       The Miranda exclusionary rule protects the Fifth Amendment right of a person not

to "be compelled in any criminal case to be a witness against himself." (U.S. Const., 5th

Amend.; see Malloy v. Hogan (1964) 378 U.S. 1, 6 [5th Amend. privilege against self-

incrimination applies to states through 14th Amend.].) "[T]he Fifth Amendment

privilege is available outside of criminal court proceedings and serves to protect persons

in all settings in which their freedom of action is curtailed in any significant way from

being compelled to incriminate themselves." (Miranda, supra, 384 U.S. at p. 467.)

"Failure to administer Miranda warnings creates a presumption of compulsion.

Consequently, unwarned statements that are otherwise voluntary within the meaning of

the Fifth Amendment must nevertheless be excluded from evidence under Miranda."

(Oregon v. Elstad (1985) 470 U.S. 298, 307 (Elstad).)

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       Here, the parties agree that Sumi was under arrest but received no Miranda

warnings before Bush questioned her at the hospital and she admitted driving the Jeep

when it crashed into the other vehicle. "When police ask questions of a suspect in

custody without administering the required warnings, Miranda dictates that the answers

received be presumed compelled and that they be excluded from evidence at trial in the

State's case in chief." (Elstad, supra, 470 U.S. at p. 317; see Miranda, supra, 384 U.S. at

p. 444.) Hence, the trial court properly excluded Sumi's statement to Bush.

       The inadmissibility of Sumi's statement to Bush did not necessarily render her

later confirmation of that statement to Payson inadmissible, however. "[T]he Miranda

presumption, though irrebuttable for purposes of the prosecution's case in chief, does not

require that the statements and their fruits be discarded as inherently tainted." (Elstad,

supra, 470 U.S. at p. 307.) "Though Miranda requires that the unwarned admission must

be suppressed, the admissibility of any subsequent statement should turn in these

circumstances solely on whether it is knowingly and voluntarily made." (Id. at p. 309.)

In other words, "[e]ven when a first statement is taken in the absence of proper

advisements and is incriminating, so long as the first statement was voluntary a

subsequent voluntary confession ordinarily is not tainted simply because it was procured

after a Miranda violation. . . . 'The relevant inquiry is whether, in fact, the second

statement was also voluntarily made.' " (People v. Williams (2010) 49 Cal.4th 405, 448

(Williams).) Thus, we "must determine (1) whether the statements obtained in violation

of Miranda were otherwise voluntary; and (2) whether, under the totality of the

circumstances, defendant's subsequent statements also were voluntarily made. If both

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tests are met and the subsequent statements were not themselves directly in response to

further non-Miranda interrogation, they are admissible against the defendant." (People v.

Torres (1989) 213 Cal.App.3d 1248, 1255 (Torres).)

       Here, the record indicates Sumi's responses to Bush's questions were obtained in

violation of Miranda but were otherwise voluntary. Although Ochoa had arrested Sumi

before she told Bush she was driving the Jeep at the time of the crash, she was not

confined at a police station but was in a hospital being attended by medical personnel.

The presence of two law enforcement officers did not convert the hospital into "an

interrogation environment . . . created for no purpose other than to subjugate the

individual to the will of his examiner." (Miranda, supra, 384 U.S. at p. 457; see People

v. Mosley (1999) 73 Cal.App.4th 1081, 1090 [noting hospital was not "a police-

dominated atmosphere" where "incommunicado interrogation" of suspects occurred].)

Sumi introduced no evidence that Bush or Ochoa beat, threatened, intimidated, tricked, or

otherwise pressured her physically or psychologically. On this record, there is no

suggestion that the questioning of Sumi involved "coercion of a confession by physical

violence or other deliberate means calculated to break the suspect's will." (Elstad, supra,

470 U.S. at p. 312.) We thus conclude Sumi's statement to Bush that she was driving the

Jeep when it crashed into the other vehicle was voluntary.

       We also conclude Sumi's subsequent statement confirming that statement to

Payson was voluntary and, therefore, admissible. "As an initial matter, the telephonic

conversation did not take place under conditions constituting a custodial interrogation or

its functional equivalent." (People v. Terrell (2006) 141 Cal.App.4th 1371, 1386

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(Terrell).) When Sumi telephoned Payson, she had been released from custody and was

in her hospital room. She was not physically restrained by any law enforcement officer,

and no officer was there asking her questions. Rather, Sumi freely initiated the telephone

call to Payson in an effort to obtain more information about the crash; and in the course

of the call, she seemed coherent and admitted having told Bush she was driving the Jeep

when Payson reminded her of her prior statement. Such " ' "an intervening independent

act by the defendant" ' " breaks the causal chain between the two confessions and

dissipates any taint the first might have left on the second. (People v. McWhorter (2009)

47 Cal.4th 318, 360 (McWhorter); accord, Terrell, at p. 1386.) Since "the totality of the

circumstances" indicates Sumi's statements to Payson about who was driving the Jeep at

the time of the crash were "the product of [her] free will and rational intellect," the trial

court properly admitted them. (Torres, supra, 213 Cal.App.3d at pp. 1255, 1256.)

       Sumi contends her statements to Payson were not admissible because she never

received Miranda warnings that would have " 'purge[d] the taint' from the earlier

improper questioning" by Bush. We disagree, for two reasons. First, no Miranda

warnings were required when Sumi talked to Payson over the telephone because she was

not then in custody or otherwise restrained by law enforcement. Miranda warnings "need

be administered only after the person is taken into 'custody' or his freedom has otherwise

been significantly restrained." (Elstad, supra, 470 U.S. at p. 309.) Second, although the

high court held that "subsequent administration of Miranda warnings to a suspect who

has given a voluntary but unwarned statement ordinarily should suffice to remove the

conditions that precluded admission of the earlier statement" (Elstad, at p. 314, italics

                                               8
added), "the court did not hold that a Miranda advisement and waiver are prerequisites

for finding [subsequent] statements to be voluntary" (Torres, supra, 213 Cal.App.3d at

p. 1255, italics added). "Rather, the trier of fact must examine the totality of the

surrounding circumstances and the entire course of police conduct in evaluating the

voluntariness of statements which follow a noncoercive Miranda violation." (Torres, at

p. 1255.) As we have explained, the record here shows that Sumi's statements to Payson

about who was driving the Jeep when it crashed into the other vehicle were voluntary and

thus admissible.

       Sumi also argues her statements to Payson should have been excluded because

"she did not make a new, independent confession," and the effect of admitting those

statements was simply to introduce the original confession Bush obtained in violation of

Miranda. We reject Sumi's contention, which, if adopted, would effectively preclude

admission of a subsequent confession that references a prior confession whenever the

prior confession was obtained in violation of Miranda. Once a suspect has "let the cat

out of the bag by confessing, . . . he is never thereafter free of the psychological and

practical disadvantages of having confessed. He can never get the cat back in the bag.

The secret is out for good. In such a sense, a later confession always may be looked upon

as fruit of the first." (United States v. Bayer (1947) 331 U.S. 532, 540.) But " ' "no court

has ever 'gone so far as to hold that making a confession under circumstances which

preclude its use, perpetually disables the confessor from making a usable one after those

conditions have been removed.' " ' " (McWhorter, supra, 47 Cal.4th at p. 359, quoting

Bayer, at pp. 540-541.) Rather, recognizing that "little justification exists for permitting

                                              9
the highly probative evidence of a voluntary confession to be irretrievably lost to the

factfinder" when "neither the initial nor the subsequent admission is coerced" (Elstad,

supra, 470 U.S. at p. 312), courts have held that after an initial confession is obtained in

violation of Miranda, a subsequent confession not so obtained is admissible as long as

the initial one was not actually coerced and the subsequent one was given voluntarily

(see, e.g., Elstad, at p. 309; Williams, supra, 49 Cal.4th at p. 448; Torres, supra, 213

Cal.App.3d at p. 1255). As we have explained, that is the situation here.

       Finally, the cases Sumi cites do not support her argument that her statements to

Payson should have been excluded at trial. Missouri v. Seibert (2004) 542 U.S. 600, 604,

condemned a deliberate police practice of taking a suspect into custody, not giving

Miranda warnings, obtaining a confession, and then giving Miranda warnings and having

the suspect repeat the confession. "Unlike Seibert, there is no evidence here that the

officers were 'following a policy of disregarding the teaching of Miranda.' " (People v.

Scott (2011) 52 Cal.4th 452, 478.) People v. Neal (2003) 31 Cal.4th 63, 68, held

confessions were involuntary and inadmissible when police ignored the defendant's

repeated requests for counsel; badgered him; and kept him in jail overnight without

access to food, drink, or toilet facilities. No comparable abusive tactics by law

enforcement were used in this case. People v. Storm (2002) 28 Cal.4th 1007, 1012-1013,

considered whether a break in custody allowed police to recontact a suspect who had

invoked his right to counsel while in custody, an issue not involved in this appeal.

Seibert, Neal, and Storm are thus not on point. Other cases cited by Sumi actually

support our conclusion that her statements to Payson were voluntary and properly

                                             10
admitted at trial. (See Terrell, supra, 141 Cal.App.4th 1371; Torres, supra, 213

Cal.App.3d 1248.)

                                     DISPOSITION

      The judgment is affirmed.



                                                                                   IRION, J.

WE CONCUR:



BENKE, Acting P. J.



AARON, J.




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