Filed 5/18/15 P. v. Morris CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                            C074119

                   Plaintiff and Respondent,                               (Super. Ct. No. 12F00027)

         v.

STEVEN WAYNE MORRIS, JR.,

                   Defendant and Appellant.




         A jury convicted defendant Steven Wayne Morris, Jr., of 30 counts of lewd and
lascivious acts with a child under the age of 14 years and found that he engaged in
substantial sexual conduct with the victim. The trial court sentenced defendant to state
prison for an aggregate sentence of 40 years.

         Defendant appeals, challenging the trial court’s refusal to exclude incriminating
statements he made to law enforcement officers. Defendant contends his waiver of rights
under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) was not



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voluntary in that law enforcement engaged in “softening him up” prior to his waiver, and
his statements were obtained in violation of his Sixth Amendment right to counsel. We
shall affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In view of defendant’s contention, a detailed recitation of the facts is not
warranted. Suffice it to say that defendant had sexual intercourse with the victim, his
family’s babysitter, when she was 12 and 13 years of age and he was 25 and 26 years of
age. He freely confessed to his ex-fiancée and then to law enforcement about having had
sexual intercourse with the victim 30 times. Defendant did not feel he had done anything
wrong and professed his love for the victim.

       An information charged defendant with 30 counts of committing lewd and
lascivious acts on a child under the age of 14 in violation of Penal Code section 288,
subdivision (a) and an enhancement allegation of substantial sexual conduct pursuant to
Penal Code section 1203.066, subdivision (a)(8).1

       Prior to trial, defense counsel filed a motion in limine, seeking, inter alia, to
exclude the incriminating statements defendant gave to law enforcement during an
interrogation. Attached to his motion, defense counsel submitted the first three pages of a
transcript of the interrogation of defendant by two detectives on March 1, 2012.

       The detectives begin by talking with defendant about his arrest and transfer to
Shasta County. Defendant explained that he was “picked” up on “Tuesday working” in
Antioch, went to Martinez the next morning, then to Sacramento for transfer to Redding.
The detective asked defendant why he was in Antioch and defendant explained that he
lived there with his father and that his sister and mother lived nearby. Defendant then


1 The information also alleged a use of force allegation (Pen. Code, § 1203.066, subd.
(a)(1)) that was later dismissed by the prosecution at the commencement of trial.


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volunteered a lot more, claiming he went to Antioch because there had been “accusations
and threats between [his ex-fiancée] and her neighbors and stuff” but then after he went
to Antioch, his ex-fiancée wanted to bring the children to Antioch and did so for a while,
all staying with his father. After a few months of defendant and his ex-fiancée fighting
and the police being called on a disturbance, defendant’s father had had “enough.”
Defendant drove his ex-fiancée to Anderson along with the children. The detective
interrupted and asked about the children, their ages, and the name of his ex-fiancée.
Defendant claimed he had been with his ex-fiancée for seven years and that she had
“depression problems” and “gets really batty sometimes.” The detective interjected and
asked about when, how long, and where defendant and his family had lived in Redding.
In answering, defendant mentioned “Clay Street.” The detective commented that was
“rough up on [C]lay” and asked how defendant liked it there. Defendant commented
there had been “587 calls fricken what one year,” and they all laughed. The detective
then asked defendant about his employment. Defendant started explaining and then
digressed about his ex-fiancée again, complaining that she had him “falsely arrested” for
breaking her phone but then he admitted having done so. Defendant claimed his
ex-fiancée needed a “psychiatri[c] evaluation” but had not been diagnosed, used
methamphetamine like it was “weed,” and that her sister had tried to put her (ex-fiancée)
in “lock down.” The detective commented that “marijuana” had changed and was more
potent and then asked defendant how old he was. The detective asked if defendant or his
ex-fiancée had a medical marijuana recommendation and defendant explained that he had
been smoking it since he was 15 years of age, that he had nerve damage in his neck, and
that he had been unable to get the recommendation due to finances. His ex-fiancée did
not have a recommendation and did not use marijuana. The detective asked if the
ex-fiancée got angry when defendant used even though for medical reasons, and
defendant denied that she did. When asked when defendant had last seen his ex-fiancée
and his children, defendant claimed it had been about a week. The detective then stated,

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“Well listen we want to talk to you today, since you are in custody it seems that you have
a probation violation and a warrant. . . . Before I talk to you I want to advise you of your
rights. . . .” The transcript of the interview defense counsel submitted with the motion in
limine then ends abruptly.

       Defense counsel represented that the three pages covered about seven minutes of
the interrogation. The complaint charging defendant with the current offenses had been
filed on January 31, 2012, and the interrogation occurred in the morning on March 1,
2012, prior to defendant’s arraignment later that day.

       Defense counsel argued, in relevant part, that defendant’s subsequent statements
after waiving Miranda were “tainted” and inadmissible because the Miranda warning did
not occur at the beginning of the interview; the detectives knew that they were seeking
incriminating responses; defendant did not knowingly and voluntarily waive his rights
under Miranda; the officers “did everything in their power to make [defendant]
comfortable enough to waive” his rights and obtain incriminating statements; defendant’s
statements were “Fruit of the Poisonous Tree”; and his statements were obtained in
violation of his Sixth Amendment right to counsel.

       The People responded that defendant’s confession was properly obtained and
voluntary, representing that after defendant was advised of his rights, he stated that he
was familiar with the warnings, confirmed that he understood them, and freely answered
questions by both detectives. Citing Montejo v. Louisiana (2009) 556 U.S. 778
[173 L.Ed.2d 955] (Montejo), the prosecutor argued that defendant waived his right to
counsel when he waived his rights under Miranda.

       At the hearing, the trial court summarized defendant’s argument as claiming “there
was some sort of softening up of [defendant] by the police officer” prior to giving the
warnings pursuant to Miranda “that would have in some fashion coerced or induced the
admissions made by [defendant].” Defense counsel noted that the interview occurred

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after the detectives had already spoken to the victim, the victim’s mother, and
defendant’s ex-fiancée and that the intent of the detectives was to “[e]licit an
incriminating response.” The prosecutor responded that it was a “common practice for
officers to talk to a suspect, make them feel comfortable” and that there was “nothing
coercive about what either of them said.” The prosecutor claimed defendant waived his
rights and his confession was admissible.

       Based on the transcript pages submitted in support of defendant’s motion in
limine, the trial court determined that there was no violation of defendant’s rights.

                                       DISCUSSION

                               I. Alleged Miranda Violation

       Defendant first contends that the trial court prejudicially erred in finding that his
waiver of his rights pursuant to Miranda, supra, 384 U.S. 436 [16 L.Ed.2d 694] was
voluntary, claiming the court’s consideration of the issue of whether the detectives
“softened” him up was “perfunctory” in that it did not consider the totality of the
circumstances but instead considered only the words spoken by the detectives.
Defendant relies primarily upon People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt) in
arguing that the detectives’ “rapport building” induced his waiver.

       “When reviewing a trial court’s decision on a motion that a statement was
collected in violation of the defendant’s rights under Miranda . . . , we defer to the trial
court’s resolution of disputed facts, including the credibility of witnesses, if that
resolution is supported by substantial evidence. [Citation.] Considering those facts, as
found, together with the undisputed facts, we independently determine whether the
challenged statement was obtained in violation of Miranda’s rules [citation], that is,
whether (assuming the defendant was in custody) the statement was preceded by the
now-famous admonition of Miranda rights: the defendant has the right to remain silent,



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any statement he might make can be used against him, he has the right to the presence of
an attorney, and an attorney will be provided at state expense if he cannot afford one.
[Citation.] [¶] If a custodial defendant requests counsel, all questioning must cease.
[Citation.] Statements made by a custodial defendant in the absence of Miranda
warnings are inadmissible in the prosecution’s case-in-chief.” (People v. Weaver (2001)
26 Cal.4th 876, 918.) “ ‘Critically, however, a suspect can waive these rights.’ ” (People
v. Nelson (2012) 53 Cal.4th 367, 374.)

       “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.)

       “A criminal conviction may not be founded upon an involuntary confession.
[Citation.] The prosecution has the burden of establishing voluntariness by a
preponderance of the evidence. Whether a confession was voluntary depends upon the
totality of the circumstances. We accept a trial court’s factual findings, provided they are
supported by substantial evidence, but we independently review the ultimate legal
question.” (People v. Scott (2011) 52 Cal.4th 452, 480.)

       In Honeycutt, the detective recognized the defendant from police contacts over 10
years. In an interview room at the station, the detective spoke with the defendant about
“unrelated past events and former acquaintances and, finally, the [murder] victim.”
(Honeycutt, supra, 20 Cal.3d at p. 158.) The detective also “mentioned that the victim
had been a suspect in a homicide case and was thought to have homosexual tendencies.”
(Ibid.) In questioning the defendant, the detective testified that he was trying to get the
defendant to talk about the murder of the victim and after an unrecorded half-hour
conversation, the defendant “indicated that he would talk about the homicide.” (Ibid.)


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Three hours after the defendant’s arrest, he was advised of his rights pursuant to
Miranda. (Honeycutt, at p. 159.) He waived his rights and then confessed. (Ibid.)
Honeycutt determined that the detective “had, prior to explaining the Miranda rights,
already succeeded in persuading [the] defendant to waive such rights.” (Ibid.)

       “When the waiver results from a clever softening-up of a defendant through
disparagement of the victim and ingratiating conversation, the subsequent decision to
waive without a Miranda warning must be deemed to be involuntary for the same reason
that an incriminating statement made under police interrogation without a Miranda
warning is deemed to be involuntary.” (Honeycutt, supra, 20 Cal.3d at pp. 160-161.)

       Here, the preadvisement conversation was recorded. The detectives appeared to
have had no prior relationship with defendant and did not ingratiate themselves with him.
Unlike the detective in Honeycutt, the detectives here never discussed the victim. One
detective asked defendant about his arrest and transfer and why he had been in Antioch.
Defendant volunteered more information than had been asked and the detective
interrupted to ask defendant about his children, their ages, and the name of defendant’s
ex-fiancée. Defendant once again volunteered more information than had been asked and
added his opinion about his ex-fiancée’s mental health. One detective interjected and
asked about defendant’s living arrangements in Redding. When defendant mentioned a
particular street, the detective made a comment about the neighborhood, defendant
responded and they all laughed. When one detective asked defendant about his
employment, defendant again volunteered much more information than had been asked
and started to complain, again, about his ex-fiancée and her use of drugs. After
commenting about the potency of marijuana, the detective asked defendant for his age
and if either he or his ex-fiancée had a medical marijuana recommendation. Defendant
responded and explained his use of marijuana and lack of a recommendation. The
detective asked defendant when he had last seen his ex-fiancée and children and after


                                             7
defendant responded, the detective then stated, “Well listen we want to talk to you today,
since you are in custody it seems that you have a probation violation and a warrant. . . .
Before I talk to you I want to advise you of your rights. . . .”

       We conclude that the seven minutes of conversation between the detectives and
defendant has no resemblance to the conversation-warning-interrogation sequence
condemned in Honeycutt. We reject defendant’s argument that “rapport building” is “just
another way of saying that [the detective] intentionally ‘softened up’ [defendant],
creating a nonthreatening environment where [defendant] was more inclined to waive his
Miranda rights.” We disagree with defendant’s claim that the detective engaged him in
ingratiating conversation, aligned himself with defendant and against defendant’s
ex-fiancée, and sanctioned defendant’s use of marijuana to “create[] the appearance that
he was someone that [defendant] could safely confide in about his personal life.” Unlike
in Honeycutt, the detectives here never used any deceptive statements during the seven
minutes of “introductory questions [that] were likely designed to establish a rapport with
defendant[] but[,] even if they were successful, this does not establish that defendant’s
free will was overborne.” (People v. McCurdy (2014) 59 Cal.4th 1063, 1088, citing
Honeycutt, supra, 20 Cal.3d at p. 160.)

       Defendant cites other circumstances (his learning disability, lack of formal
education, lack of experience with police interrogation), which he argues support a
finding of an involuntary waiver. Defendant presented only a transcript of the
preadvisement interrogation. The video and a full transcript of the interrogation were not
presented to the trial court nor were the now claimed circumstances. Defendant did not
mention the circumstances in his motion or at the hearing on his motion. Defendant’s
argument below focused on being “softened up,” which rendered his confession
involuntary. Defendant cannot present these circumstances or his new argument for the
first time on appeal.


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       Although defense counsel did not present the transcript showing the advisement
and waiver of rights, he did not dispute the prosecutor’s representation that when advised
of his rights, defendant stated that he was familiar with the warnings, confirmed that he
understood them, and freely answered questions by both detectives thereafter. Based on
what had been presented, the trial court properly concluded that defendant was not
softened up and that he voluntarily waived his rights. (See People v. Sauceda-Contreras,
supra, 55 Cal.4th at p. 219.)

                          II. Sixth Amendment Right to Counsel

       Defendant contends he was interrogated in violation of his Sixth Amendment right
to counsel and that the trial court did not decide whether he validly waived his right. We
reject this contention.

       Before the trial court defendant simply argued that since a complaint charging the
current offenses had been filed prior to the police interview (defendant had not been
arraigned), his right to counsel attached and an attorney should have been present from
the get-go of the interrogation. Although defendant’s right to counsel attached once the
complaint had been filed (Montejo, supra, 556 U.S. at pp. 786, 791 [173 L.Ed.2d at
pp. 963, 966]; Massiah v. United States (1964) 377 U.S. 201, 204-205 [12 L.Ed.2d 246,
249-250]; People v. Viray (2005) 134 Cal.App.4th 1186, 1194-1195), “the Sixth
Amendment right to counsel may be waived by a defendant, so long as relinquishment of
the right is voluntary, knowing, and intelligent.” (Montejo, supra, 556 U.S. at pp. 786,
795 [173 L.Ed.2d at pp. 963, 969].)

       Defendant submitted three pages of the transcript of his interrogation, which ended
just when one detective stated he wanted to advise defendant of his rights. Again, the
prosecutor represented that defendant, when advised of his rights, stated that he was




                                             9
familiar with the warnings, confirmed that he understood them, and freely answered
questions by both detectives thereafter. Defendant did not dispute this.2

       Defendant waived his Sixth Amendment right to counsel when he voluntarily
spoke to the detectives after having been given Miranda warnings. (See Montejo, supra,
556 U.S. at p. 786 [173 L.Ed.2d at p. 963] [“Our precedents . . . place beyond doubt that
the Sixth Amendment right to counsel may be waived by a defendant, so long as
relinquishment of the right is voluntary, knowing, and intelligent. [Citations.] The
defendant may waive the right whether or not he is already represented by counsel; the
decision to waive need not itself be counseled. [Citation.] And when a defendant is read
his Miranda rights (which include the right to have counsel present during interrogation)
and agrees to waive those rights, that typically does the trick, even though the Miranda
rights purportedly have their source in the Fifth Amendment”].)

       We disagree with defendant’s claim that the trial court misconstrued the law and
the facts. Based on what was presented, the trial court properly concluded that defendant
waived his right to counsel, and that there was no Sixth Amendment violation.




2 And rightly so. The rest of the transcript of the interrogation was introduced at trial
and reflects that defendant was advised that before the detective talked to him, the
detective needed to advise him of his “Miranda rights.” When asked if defendant had
heard of those rights before, defendant responded, “Yeah, I know.” The detective then
advised defendant that he had the “right to remain silent,” that “[a]nything you say may
be used against you in court,” that “you have the right to talk to [an] attorney before or
during any questioning.” The detective asked if defendant understood that and defendant
responded, “Mm-hm.” The detective then stated that if defendant could not afford an
attorney, one would be “appointed to represent you before any questioning.” Defendant
then answered the detectives’ questions about the victim and the charged offenses.
Defendant implicitly waived his rights, including his right to an attorney, by willingly
answering questions after acknowledging that he understood his rights. (People v.
Nelson, supra, 53 Cal.4th at p. 375.) There was no Sixth Amendment violation.


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                       III. Corrections to Abstract of Judgment

       We note an error in preparation of the first amended abstract of judgment. The
abstract consists of four pages in order to accommodate the 30 convictions. While the
entries are correct for each offense, not all of the totals are correct. The court imposed 16
years for counts 1 through 6, 24 years for counts 7 through 18, and concurrent terms for
counts 19 through 30. On the first page of the abstract, it correctly shows at item No. 8
that the court imposed 16 years for counts 1 through 6 but then incorrectly shows at item
No. 6 that the court imposed 78 years for the remaining counts on the attached pages.
Page 3 of the abstract correctly reflects that the trial court imposed 24 years for counts 7
through 18 and concurrent terms for counts 19 through 21. Page four of the abstract
incorrectly reflects that the trial court imposed a total of 54 years for counts 21 through
30 when the court imposed concurrent terms. We will order the trial court to prepare a
corrected abstract accordingly.

                                      DISPOSITION

       The trial court is directed to prepare a corrected abstract of judgment to reflect the
aggregate 40-year sentence, and to forward a certified copy to the Department of
Corrections and Rehabilitation. The judgment is affirmed.


                                                         BUTZ                  , J.


We concur:



      NICHOLSON             , Acting P. J.



      ROBIE                 , J.



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