Filed 6/29/15 P. v. Belton 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                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C075998

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F08376)

         v.

CASSONDRA LADAWNYA BELTON,

                   Defendant and Appellant.




         A jury found defendant Cassondra Ladawnya Belton guilty of first degree murder,
robbery, and car theft, and found true a robbery-murder special circumstance. (Pen.
Code, §§ 187, subd. (a), 190.2, subd. (a)(17), 211; Veh. Code, § 10851, subd. (a).) The
trial court sentenced defendant to prison for life without parole. Defendant timely filed
this appeal.




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       On appeal, defendant contends some of her pretrial statements should not have
been introduced as evidence because they were involuntary, were obtained in violation of
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]), and--to the extent that any of
her claims were not raised in the trial court--her trial counsel was ineffective because
there was no rational tactical reason not to move to suppress her statements on all
possible grounds. Disagreeing, we shall affirm.
                                     BACKGROUND
       Defendant was involved in robbing and killing the victim, Baljinder Kumar, on or
about December 16, 2010. Defendant and two juveniles, Kevin Hjellum (also referred to
as Nathaniel L. or Nate) and Monica Elizabeth Ortiz, discussed robbing Kumar, a drug
dealer, in his car. Kumar was strangled and his body was left near Hood-Franklin Road
in rural Sacramento County.1
       Defendant spoke to a California Highway Patrol (CHP) officer when she was
arrested in Oroville while driving Kumar’s car on December 19, 2010, the day after
Kumar’s body was found. She told the officer that her father gave her the car to drive.
Early the next morning she told the same story to Sacramento detectives. In a later
interrogation that day, she admitted strangling Kumar and helping to dump his body.
       At trial, defendant testified she did not kill Kumar. Although she knew Hjellum
and Ortiz discussed robbing him during a fake drug deal, she did not take them seriously.
However, she got into Kumar’s car with them, and put a belt around Kumar’s neck,
because she thought Hjellum was going to hit her with a rock. Then Hjellum jumped in
the back and began to strangle Kumar. At that point, defendant got out of the car and




1 Ortiz and Hjellum, originally codefendants, each pled no contest to second degree
murder before defendant’s suppression motion was heard. It does not appear that Ortiz
ever appealed, and we previously denied Hjellum’s request to deem his belated notice of
appeal to be timely. (See People v. Hjellum, 3 Crim. No. C075886.)

                                             2
walked away. She looked back and saw Ortiz waving toward her, so she returned, to find
Kumar dead or in extremis. She obeyed Hjellum’s direction to drive the car away, and
watched the other two roll his body down a hill. She accepted money they found in
Kumar’s car, totaling “a couple thousand” dollars. Defendant was scared when
questioned and lied to the officers.
                                       DISCUSSION
       On appeal, defendant claims (1) the detectives undermined her Miranda waiver,
and (2) her statements were involuntary. Recognizing that neither of these claims was
directly presented to the trial court, she contends she may raise the voluntariness claim
absent a trial court objection, and that her trial counsel was ineffective to the extent he
failed to preserve her claims. Although the Attorney General appears to be correct that
these new claims are forfeited, “it is within our discretion to address a forfeited claim to
avoid the inevitable ineffective assistance of counsel claim.” (People v. Guillen (2014)
227 Cal.App.4th 934, 1028.) We reach defendant’s claims.
                                               I
                                  The Suppression Hearing
       The People moved in limine to admit all of defendant’s statements to the police.
Defense counsel filed a counter motion to exclude only the portion of the last
interrogation after she mentioned an attorney, which counsel characterized as a request
for an attorney that had been ignored by the detectives. Defendant’s more inculpatory
statements were made after she mentioned an attorney.
       The issue was submitted to the trial court based on transcripts of the
interrogations, not the recordings later played at trial. This means the trial court was not
asked to make any determination regarding physically intimidating conduct by the
officers or the effect of any of their conduct on defendant’s demeanor (e.g., whether she
was crying, recoiling from them, etc.).



                                              3
       During the last interrogation, one detective emphasized that they wanted to know
who had done what and what the intentions had been, given that some of the
circumstances suggested torture. He added that they had heard what other people had
said but wanted to know defendant’s side. Defendant replied: “Uh, well I don’t know if
this is a question for you guys or if I should ask an attorney or something, but, um, how
do you go about sentencing us if you - if you can’t exactly find out . . . who actually
killed him?” The detectives then continued with the interrogation, and defendant freely
answered questions, detailing the planning of the robbery, the killing, and its aftermath.
       At the in limine hearing, defense counsel represented that defendant was young,
lacked sophistication, and had no criminal record, and contended her reference to an
attorney invoked her right to counsel. Defense counsel also contended that when the
detectives segued from discussing the car theft to the killing, defendant should have been
re-Mirandized.
       The trial court ruled defendant had been properly Mirandized, did not invoke her
right to counsel, and “continued talking . . . for a good while openly and, apparently [in] a
very cordial conversation, said a few things.” Defendant was not “forced to [talk] . . .
without certain warnings or put in any kind of duress.”
                                             II
                                    Defendant’s Claims
       Defendant contends the detectives undermined her Miranda waiver and through
their purported misconduct rendered her statements involuntary. We disagree. 2




2 Defendant does not challenge the finding that she did not invoke her right to counsel.
(See Davis v. United States (1994) 512 U.S. 452, 458-459 [129 L.Ed.2d 362, 371];
People v. Nelson (2012) 53 Cal.4th 367, 376-384 (Nelson).)

                                             4
       A. Miranda Waiver
       A suspect’s waiver of Miranda rights must be knowing, intelligent, and voluntary,
but may be expressed or implied. (See Nelson, supra, 53 Cal.4th at pp. 374-375;
People v. Roquemore (2005) 131 Cal.App.4th 11, 22-23.) “On appeal, we conduct an
independent review of the trial court’s legal determination and rely upon the trial court’s
findings on disputed facts if supported by substantial evidence.” (People v. Williams
(2010) 49 Cal.4th 405, 425 (Williams).)
       The record shows defendant was Mirandized before the first recorded
interrogation, and re-Mirandized at the beginning of the second recorded interrogation.3
After being told her rights at the beginning of the second interrogation, defendant spoke
freely with the officers at length. She asked the officers questions, and listened to their
questions. In short, this appears to have been a mundane, routine, interrogation. Indeed,
the fact defendant was advised of and waived her rights multiple times bolsters the view
that she knowingly and voluntarily waived them. (Cf. Williams, supra, 49 Cal.4th at p.
434 [“After a valid Miranda waiver, readvisement prior to continued custodial
interrogation is unnecessary ‘so long as a proper warning has been given, and “the
subsequent interrogation is ‘reasonably contemporaneous’ with the prior knowing and
intelligent waiver” ’ ”].)
       Defendant contends the “tactics” of the police vitiated her waiver, specifically,
that the detectives suggested “her jury would infer guilt from her failure to speak with the
police,” thereby telling her that her “right to remain silent was meaningless.” She likens
this to cases where the Miranda rights are not clearly communicated or are negated by
official conduct.



3 At trial there was testimony that defendant had also been Mirandized by the CHP
officer when she was arrested, said she understood her rights, and first told the false story
about receiving Kumar’s car from her father.

                                              5
       For example, defendant emphasizes United States v. Harrison (1994) 34 F.3d 886,
at page 891 (Harrison) which states in part: “Although the agents thinly veiled their
implied message behind a rhetorical question, Harrison could only conclude that she
might suffer for her silence.” Harrison opened the door of her home to find some 15
federal agents with guns drawn, who searched her house and arrested her and her
companion. She was advised of her Miranda rights, but after a brief silence, an agent
described the evidence against her and said that she could face a 20-year sentence. The
agent then asked whether Harrison thought it would be better if the judge were told that
she had cooperated or had not cooperated. Harrison said it would be better if she talked
to the agents and they told the judge she had cooperated, then she made an inculpatory
statement. (Id. at p. 890.) In reversing her conviction, the Harrison court emphasized the
impropriety of the implication that the agents would tell the judge or prosecutor that
Harrison had not cooperated if she exercised her right to silence. (Id. at pp. 891-892
[“there are no circumstances in which law enforcement officers may suggest that a
suspect’s exercise of the right to remain silent may result in harsher treatment by a court
or prosecutor”].) Defendant also points to Doody v. Ryan (9th Cir. 2011) 649 F.3d 986, a
habeas corpus case holding that a state court had unreasonably found a valid Miranda
waiver. There, the rights were read in a confusing manner, so that “[w]hat began as the
reading of a single-page Miranda form morphed into a twelve-page exposition that
negated the intended effect of the Miranda warning.” (Id. at p. 991, italics added; see
also id. at pp. 1024-1028 (conc. opn. of Kozinski, C.J.) [“unlike voluntariness [which
may be debatable], ‘a warning is a clearcut fact’ ”; the officer muddled the warnings by
suggesting Doody was entitled to a lawyer only if he were involved in the crime, not
merely suspected of involvement, therefore “The warning given in this case was far
worse than no warning at all”].)




                                             6
       But Harrison and Doody are inapposite: Here, defendant chose to waive her right
to silence and speak to the officers long before any of the officers’ challenged remarks
were made. There was no infirmity at the time the Miranda warnings were given, as in
Harrison and Doody. Defendant contends the references to her silence vitiated her
Miranda advisement: “By suggesting . . . that her jury would infer guilt from her failure
to speak with the police, Detective Tracy effectively told [defendant] that her right to
remain silent was meaningless.” But Detective Tracy said no such thing. He said the
jury would speculate about her intentions if she did not explain herself. He also said it
would look bad for her if the only statement the jury had from her was her statement to
the CHP and earlier to the detectives, to the effect that her father gave her Kumar’s car to
drive. That was an accurate and common sense observation; at the time the officer made
the statement the police had caught one of defendant’s relatives trying to dispose of
Kumar’s belongings from her house. They knew defendant’s claim that her father gave
her the car was false. We see nothing about pointing out this circumstance that would
undermine defendant’s ability to stand on her rights and end the interrogation.
       Defendant contends the officers “openly confronted her” with information that in
between the two recorded interrogations, they had searched her home, caught a relative
trying to dispose of items belonging to Kumar, and told her that her juvenile companions
had been talking and said nobody intended to kill Kumar. Further, a detective suggested
the killing was a mistake and an unfortunate accident. All of this is correct. Also, in
response to an inquiry from defendant about determining her sentence, the detective
replied he could not say, and that was for the prosecutor and the judge to determine. His
job was to gather the facts impartially. Shortly thereafter, he told her the only person
who could explain defendant’s state of mind was defendant, which is why the detectives
came to Oroville from Sacramento to talk to her. She replied, “So maybe present that
question, I’ll be able to tell you what happened.” They asked her what happened and she
told them about the planning and execution of the robbery and disposal of the corpse.

                                             7
       Once Miranda rights are clearly communicated, as they were here, and are waived
by the suspect, officers may continue with a non-coercive custodial interrogation unless
and until the suspect invokes her or his right to silence or right to counsel, and in this case
defendant impliedly concedes she did neither. (See fn. 2, ante.) After all, “it is the
Miranda warnings themselves, which—when given to the suspect and waived prior to
questioning—are ‘ “sufficient to dispel whatever coercion is inherent in the interrogation
process.” ’ ” (Nelson, supra, 53 Cal.4th at p. 377.) We fail to see how any or all of
defendant’s points about the successful interrogation techniques used in this case after
defendant knowingly and freely waived her Miranda rights undermined her knowledge of
those rights or implicated her decision to waive them.
       Accordingly, assuming the point is not forfeited, defendant has not demonstrated
that her Miranda waiver was vitiated by the detectives.
       B. Voluntariness4
       “The prosecution has the burden of establishing by a preponderance of the
evidence that a defendant’s confession was voluntarily made. [Citations.] In determining
whether a confession was voluntary, ‘ “[t]he question is whether defendant’s choice to
confess was not ‘essentially free’ because his [or her] will was overborne.” ’ [Citation.]
Whether the confession was voluntary depends upon the totality of the circumstances.
[Citations.] ‘ “On appeal, the trial court’s findings as to the circumstances surrounding
the confession are upheld if supported by substantial evidence, but the trial court’s
finding as to the voluntariness of the confession is subject to independent review.” ’ ”
(People v. Carrington (2009) 47 Cal.4th 145, 169 (Carrington).)




4As will become evident, several of the sub-points raised by defendant as to her
Miranda waiver are also used by her to attempt to show her statements were involuntary.
We will not duplicate all of our analysis of these common points.

                                              8
         “Here, there is no dispute as to the historical facts, no claim of physical
intimidation or deprivation, and no assertion of coercive tactics other than the contents of
the interrogation itself.” (People v Holloway (2004) 33 Cal.4th 96, 114.) Only the
transcripts were submitted for the trial court’s consideration. Defendant partly contends
that the actions of the officers “and the surrounding circumstances” rendered her
statements involuntary. She emphasizes that she had asked about her sentence,
suggesting that this equated to a request for legal advice, that is, for a lawyer’s advice.
However, she does not contest the trial court’s ruling that her question was not an
unequivocal invocation of the right to counsel. She faults the officers for wrongly
suggesting her intent was at issue, although this case was prosecuted as a felony-murder
case. But “[t]he policeman is not a fiduciary of the suspect. The police are allowed to
play on a suspect’s ignorance, his anxieties, his fears, and his uncertainties; they just are
not allowed to magnify those fears, uncertainties, and so forth to the point where rational
decision becomes impossible.” (United States v. Rutledge (7th Cir. 1990) 900 F.2d 1127,
1130.)
         In any event, under current standards, “telling a suspect falsehoods regarding the
status of the case against him is widely accepted.” (3 Ringel, Searches & Seizures,
Arrests and Confessions (2d ed. 2011) Voluntariness of Confessions and Admissions,
§ 25:8, pp. 25–38; see 2 LaFave, et al., Criminal Procedure (3d ed. 2007) Interrogation
and Confessions, § 6.2(c), pp. 629-633.) “Where the deception is not of a type
reasonably likely to procure an untrue statement, a finding of involuntariness is
unwarranted.” (People v. Farnam (2002) 28 Cal.4th 107, 182; see 1 Witkin, Cal.
Evidence (4th ed. 2000) Hearsay, § 69, p. 760.) Here, the conduct was not likely to
induce a false confession. (Cf. People v. Steger (1976) 16 Cal.3d 539, 550.)
         Defendant’s reliance on People v. Cahill (1993) 5 Cal.4th 478 is unpersuasive. In
that case, our Supreme Court accepted for purposes of argument a lower court’s
determination that various police statements, including a misstatement about felony

                                                9
murder, amounted to an implied promise of lenity, rendering a confession involuntary (id.
at pp. 483-485). The high court did not hold that misstating the law about felony murder
was coercive in all cases. Instead, the statements by the officers must be assessed to
determine whether they would be likely to cause a false confession. (People v. Farnam,
supra, 28 Cal.4th at p. 182.) The transcript herein contains no such statements.
       Similarly, defendant’s claims that the officers improperly suggested the jurors
would infer guilt if defendant did not talk and minimized the crime by suggesting it might
have been an accident are unpersuasive, because such conduct would not tend to coerce
an innocent person to admit to murder. Further, suggesting the killing was an accident
does not compel a finding that defendant’s will was overborne. As held in an analogous
case, “suggestions that the . . . homicide might have been an accident, a self-defensive
reaction, or the product of fear, were not coercive; they merely suggested possible
explanations of the events and offered defendant an opportunity to provide the details of
the crime. This tactic is permissible.” (Carrington, supra, 47 Cal.4th at p. 171; see
Williams, supra, 49 Cal.4th at p. 444 [“suggestions made by the interrogating officers
that defendant may not have been the actual killer, or may not have intended that the
victim die, were not coercive”]; People v. Holloway, supra, 33 Cal.4th at p. 116
[“suggestions that the killings might have been accidental or resulted from an
uncontrollable fit of rage during a drunken blackout, and that such circumstances could
‘make[] a lot of difference,’ fall far short of being promises of lenient treatment in
exchange for cooperation”].) “ ‘ “Once a suspect has been properly advised of his [or
her] rights, he [or she] may be questioned freely so long as the questioner does not
threaten harm or falsely promise benefits. Questioning may include exchanges of
information, summaries of evidence, outline of theories of events, confrontation with
contradictory facts, even debate between police and suspect.” ’ ” (Carrington, supra, 47
Cal.4th at p. 170.)



                                             10
       Nor did the detectives improperly suggest defendant did not have a realistic right
to silence, because of the jury’s eventual view of her false statements about how she got
the car. “[T]here is nothing improper in pointing out that a jury probably will be more
favorably impressed by a confession and a show of remorse than by demonstrably false
denials. ‘No constitutional principle forbids the suggestion by authorities that it is worse
for a defendant to lie in light of overwhelming incriminating evidence.’ [Citation.]
Absent improper threats or promises, law enforcement officers are permitted to urge that
it would be better to tell the truth.” (Williams, supra, 49 Cal.4th at p. 444.)
       Nor, contrary to defendant’s claim were there any improper promises of lenity.
While promises of lenity in exchange for a confession may render a particular statement
involuntary (see, e.g., In re Shawn D. (1993) 20 Cal.App.4th 200, 214), mere
exhortations to tell the truth are permissible. (See Carrington, supra, 47 Cal.4th at p. 174
[“The interviewing officers did not suggest they could influence the decisions of the
district attorney, but simply informed defendant that full cooperation might be beneficial
in an unspecified way. Indeed, defendant understood that punishment decisions were not
within the control of the police officers”]; People v. Howard (1988) 44 Cal.3d 375, 398
[“ ‘ “[w]hen the benefit pointed out by the police . . . is merely that which flows naturally
from a truthful and honest course of conduct,” the subsequent statement will not be
considered involuntarily made’ ”].) Here, the detectives suggested the prosecutor, judge,
or jury would speculate about defendant’s silence, given her prior lies. The detectives
never mentioned particular outcomes, and disavowed any control over the punishment
defendant might receive. Their statements are more properly characterized as urging
defendant to tell the truth rather than making improper promises of lenity, or threats of
penal harm if defendant did not keep talking.
       Although not directly asked to rule on voluntariness, the trial court found that
defendant was not “put in any kind of duress.” That finding, which equates to a finding
of voluntariness, is amply supported by the record.

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                                  DISPOSITION
     The judgment is affirmed.




                                                DUARTE   , J.



We concur:



     RAYE               , P. J.



     HOCH               , J.




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