Filed 8/15/16 P. v. Virk 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C079777

                   Plaintiff and Respondent,                                   (Super. Ct. No. CRF 13-4302)

         v.

SHAWN VIRK,

                   Defendant and Appellant.



         After the trial court denied defendant Shawn Virk’s motion to suppress his
statement to the police (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]
(Miranda)) and his subsequent motion to dismiss the information (Pen. Code, § 995)1 on
the same basis, defendant pleaded no contest to one count of first degree burglary (§ 459)
in August 2014 as part of an agreement resolving three pending cases.2 The trial court
granted three years’ formal probation, with various terms and conditions.


1   Undesignated statutory references are to the Penal Code.
2 The plea encompassed case Nos. 13-4302 (§ 459), 13-3804 (§ 496), and 13-4189
(Health & Saf. Code, § 11350 [count 1]; §§ 484/488 [count 2]). The plea included a

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          In February 2015, the trial court revoked defendant’s probation because of a
probation violation. Thereafter, defendant successfully moved to withdraw his plea so as
to preserve the Miranda issue for appeal.
          After a bench trial conducted, by stipulation of the parties, on the preliminary
hearing evidence and the police report, the trial court found defendant guilty of
residential burglary as originally charged. The court reimposed defendant’s probation.
          Defendant contends his motion to suppress his statements should have been
granted because (1) the interrogating officer disregarded his invocation of his Miranda
rights; (2) assuming the invocation was ambiguous, the officer failed to seek clarification;
and (3) the record fails to show that defendant understood his right to counsel. We shall
affirm.
                     FACTUAL AND PROCEDURAL BACKGROUND
          According to the evidence considered by the trial court at bench trial, defendant
admitted stealing bicycles from an open garage in the city of Davis in order to support his
heroin habit.
          Defendant moved to suppress the statements he made during his custodial
interrogation, attaching a partial transcript of the interrogation as an exhibit. The People
opposed the motion, attaching a more complete transcript. At the preliminary hearing,
the trial court (Judge Stephen Mock) played a compact disc (CD) recording of
defendant’s interview and admitted the People’s transcript in evidence. After the court
denied defendant’s motion, the parties submitted on the evidence contained in the police
report, and the court held defendant to answer on all the pending cases.




deferred entry of judgment as to count 1 in case No. 13-4189, contingent on successful
completion of a 90-day residential drug treatment program.

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        The Interview
        We set out in full the portion of the transcript the parties quote in their appellate
briefs, then summarize further parts of the interview also cited by the trial court in its
ruling. The transcript begins as follows:
        “SERGEANT BEZUGLOV: My name is Sergeant Bezuglov in charge of
investigation division, this is my business card if you need for future references. Um,
before we start conversating, let me read your rights then I’ll explain to you what’s going
on then if you decide to talk to us, we’ll clarify some stuff. Okay? I’m a little tired dude,
I speak with an accent so if you don’t understand me . . .
        “[DEFENDANT]: Oh no [unclear]
        “SERGEANT BEZUGLOV: I’m just, it’s like eighteen hours up, so I’m-I’m
gonna be, I’m not the brightest guy to begin with, now I’m gonna be real, real slow so
just bare with me.
        “[DEFENDANT]: Yeah, I’m tired too.
        “SERGEANT BEZUGLOV: Uh, so . . .
        “[DEFENDANT]: Before you read them, if you promise I don’t go to Yolo
tonight, I’ll tell you whatever you want to hear.
        “SERGEANT BEZUGLOV: Okay, I. Let me read them to you, that’s got nothing
to do, it’s like . . .
        “[DEFENDANT]: Cause I mean if you read em to me . . .
        “SERGEANT BEZUGLOV: It’s apples . . .
        “[DEFENDANT]: What I’ve heard from my dad is to get a lawyer, so I’m not
going to say anything to you cause I . . .
        “SERGEANT BEZUGLOV: It’s gonna be up to you too but my thing is I cannot,
I can’t ask you questions until I read it to you. That’s one of those things, you can ask for
a lawyer at any moment, you can talk to me at this point at hey you know what, at this
point, I don’t, I don’t really want to talk to you, whatever you want to do I’m, one of the

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things that everybody who knows me, I’m not playing tricks, I’m not playing questions,
you can ask me straight up, hey what’s gonna happen and I’m gonna tell you without
lying. I’m not gonna try to be a con artist, I mean I’ll be honest. One thing that I’m not
gonna lie, that’s I’m not gonna lie.
           “[DEFENDANT]: Okay.
           “SERGEANT BEZUGLOV: Everything, you know everything that’s been with
me, I don’t need, I don’t need tricks to get people to talk to me cause honesty I think is
the best policy.
           “[DEFENDANT]: No, I mean, if someone’s straight forward with me, I’ll be
straight forward.


           “SERGEANT BEZUGLOV: I’m gonna be straight forward with you, but my
thing is this is a protocol. I can’t-I can’t even ask you any questions until you will listen
to that.
           “[DEFENDANT]: Okay.
           “SERGEANT BEZUGLOV: Okay?
           “[DEFENDANT]: Alright.
           “SERGEANT BEZUGLOV: Okay, so you have the right to remain silent. Do
you understand? Anything you say may be used against you in the court of law, do you
understand that?
           “[DEFENDANT]: Yeah.
           “SERGEANT BEZUGLOV: You have the right to the presence of an attorney
before and during questioning. Do you understand that? If you can’t afford to hire an
attorney, one will be appointed for you free of charge before any questioning if you want.
Do you understand that?
           “[DEFENDANT]: Yeah, but that would probably take like a couple of hours for
like a lawyer to get here.

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       “SERGEANT BEZUGLOV: Well, he’s not gonna get here, at three o’clock in the
morning, yeah that’s not gonna happen. Honestly saying . . .
       “[DEFENDANT]: Okay.
       “SERGEANT BEZUGLOV: I mean, unless you got one on the speed dial, ya
know. Honestly saying.
       “[DEFENDANT]: Alright.
       “SERGEANT BEZUGLOV: So, do you understand all these questions?
       “[DEFENDANT]: Yeah.
       “SERGEANT BEZUGLOV: Okay. Do you understand what is going on with
you tonight?
       “[DEFENDANT]: With me?
       “SERGEANT BEZUGLOV: Yeah.
       “[DEFENDANT]: The [gist] of it, I think.” (Italics added.)
       Sergeant Bezuglov then told defendant they had probable cause to arrest him for
possession of stolen property in another suspect’s case, and they had found heroin in
defendant’s car. Defendant asked: “Where was it?” Sergeant Bezuglov said: “[I]n the
middle console.” Defendant said: “Oh wow.” Sergeant Bezuglov said: “So I’m just
telling you what the charges are.” Defendant said: “I didn’t know it was all that.”
       Sergeant Bezuglov asked where defendant was getting his heroin from. Defendant
said: “I know, I know the guy.”
       Sergeant Bezuglov asked: “[W]hat’s your concern? What . . . do you want to hear
from me? Just the, for you to start answering the questions.” Defendant said: “That I’m
not going to jail tonight.” Sergeant Bezuglov said: “Okay, that’s, I can’t, I can’t control
that. I can’t erase the felony charges. What I can do is and again that’s not gonna be up
to me, it’s gonna be up to the DA is what charges is gonna be presented in court and
depending on you know, what we can work out. But it’s one of the things is, I’ll be



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honest with you is um, my work with informants before for any felony charges you
facing, it[’]s gotta be something very significant that you can provide.”
       After further back and forth on this point, defendant asked: “There’s no way, is
there any way I’m going to sleep in my bed tonight?” Sergeant Bezuglov said: “No. [¶]
. . . [¶] . . . [I]f it’s a felony charge I have to book you.”
       The Trial Court’s Ruling
       Counsel argued the motion, focusing on the passages we have italicized. The trial
court then ruled as follows:
       “The Courts have repeatedly said that in order to determine whether an in-custody
defendant has made an unequivocal assertion of his rights, the Court needs to do a
contextual analysis of the interaction between the officer and the defendant. And that’s
even more important than what might normally be in this particular situation.
       “When one looks at the entire context of the interaction between Bezuglov and the
defendant, it is clear that the defendant is attempting to negotiate with the police officer.
The defendant starts that negotiation by saying, you know, if you promise I won’t go to
jail, that’s what I assume Yolo means, then I’ll tell you anything you want to know.
       “So his reference to what his father told him has to be read in that context. And
when one reads the entire sentence, which starts with the words, cause, I mean, if you
read them to me, and then it follows, what I’ve heard from my dad is to get a lawyer, so
I’m not going to say anything to you cause, that is an equivocal comment about his rights,
even more equivocal because it . . . succeeds the beginning of the process of the
negotiations in this case.
       “Thereafter, Bezuglov does indeed advise the defendant of all of his constitutional
rights, his Miranda rights, and the defendant says that he understands those rights.
       “There is an argument offered by the defendant suggesting that when the
defendant says that, that is getting a lawyer, will probably take a couple hours, and the
officer says he’s not going to get here at 3:00 o’clock in the morning, that’s just not going

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to happen, that somehow that is an assertion of the defendant’s right to counsel. The
cases have held that as long as the officer’s explanation of when someone will be
provided with counsel is factually accurate and is not intended to somehow talk the
defendant out of asserting his right to counsel, then there’s nothing untoward in making
such a comment.
       “In this case, we know that the conversation does start at 3:00 o’clock in the
morning. I don’t know of any lawyer who would immediately be available at 3:00
o’clock in the morning at the Davis Police Department. So the statement made by
Bezuglov is indeed an accurate statement. So that cannot be read as an assertion of the
defendant’s right to counsel.
       “The defendant continues to try to negotiate even after that[,] asking again
whether there’s any way he can avoid going to jail that particular night, and the officers
tell him, quite correctly, that there’s nothing they can do, he’s been arrested for a felony,
he does have to go to the jail.
       “So to summarize, I find that the defendant’s comments are part of a negotiation
that he has initiated between himself and the police officer and can best be described as
equivocal comments that might suggest he wanted to assert his right to remain silent.
The officer thereafter advised him of all of his Miranda rights, emphasized that the
defendant could say at that very moment that he didn’t want to talk, but the defendant
chose to continue to talk. So I find that this interaction shows a willingness by the
defendant to waive his Miranda rights, and that Officer Bezuglov and the other officer,
who is part of this interview, did nothing to undercut the defendant’s willingness to talk.
       “So I would deny the motion to suppress the statement made by the defendant to
Officer Bezuglov.”
       The Section 995 Motion
       After being held to answer, defendant filed a motion to dismiss the information in
case No. 13-4302 pursuant to section 995, arguing that his statements should have been

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suppressed. The People opposed the motion. The trial court (Judge David Rosenberg)
denied it, finding there was no Miranda violation.
                                      DISCUSSION
       Defendant contends: (1) He invoked his Miranda rights, requiring Officer
Bezuglov to cease interrogation. (2) Even if defendant’s invocation was ambiguous,
Officer Bezuglov improperly failed to seek clarification. (3) A waiver cannot be
established in any event because the record fails to show defendant understood his right
to counsel. (4) The erroneous admission of defendant’s statements was prejudicial under
the standard of Chapman v. California (1968) 386 U.S. 18, 24 [17 L.Ed.2d 705]. We are
not persuaded.
       “ ‘Miranda . . . 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.] “If a suspect indicates
‘in any manner and at any stage of the process,’ prior to or during questioning, that he or
she wishes to consult with an attorney, the defendant may not be interrogated.”
[Citations.]’ [Citation.]” (People v. Duff (2014) 58 Cal.4th 527, 551 (Duff).) To cut off
interrogation, a defendant’s invocation of Miranda rights must be unequivocal and
unambiguous, meaning that a reasonable police officer would understand that the
defendant had invoked the right to silence or requested an attorney. (People v. Bacon
(2010) 50 Cal.4th 1082, 1105-1108 & fn. 5, citing Davis v. United States (1994) 512 U.S.
452, 459, 461 [129 L.Ed.2d 362] [right to counsel] & Berghuis v. Thompkins (2010)
560 U.S. 370, 381 [176 L.Ed.2d 1098] (Berghuis) [right to remain silent].) “A suspect’s
expressed willingness to answer questions after acknowledging an understanding of his
or her Miranda rights has itself been held sufficient to constitute an implied waiver of
such rights. [Citations.]” (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218-219
(Sauceda-Contreras).)

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        In reviewing the denial of a motion to suppress a statement on Miranda grounds,
we accept the trial court’s resolution of the facts if supported by substantial evidence, but
independently determine whether the statement was illegally obtained. Where the
statement was recorded, the facts surrounding the statement are undisputed and we apply
independent review. (Duff, supra, 58 Cal.4th at p. 551.)
        Defendant Did Not Unequivocally and Unambiguously Invoke His Rights
        Without citing any authority on point, defendant asserts that the following
statement was an unequivocal and unambiguous invocation of his rights: “What I’ve
heard from my dad is to get a lawyer, so I’m not going to say anything to you cause
I . . . .” It was not.
        Immediately before defendant said this, he had offered to tell the police whatever
they wanted to know, so long as he did not have to go to jail that night. The second
statement cannot be viewed apart from the first. At the very least, the statements together
made it ambiguous whether defendant truly wished to invoke his rights or was merely
trying to “negotiate” with the officer, as the trial court put it.3
        This is especially so because, even standing alone, defendant’s statement did not
assert a clear, unequivocal determination to remain silent. Rather, after citing his father’s


3  Defendant asserts under another heading in his opening brief: “[T]he trial court’s . . .
finding of ambiguity was based on an analysis of the exchange beyond the point where
[defendant] invoked his rights. However, precedent makes clear the error in this
approach, as the statements should only be evaluated for ambiguity in the context of the
circumstances leading up to the request. (Smith v. Illinois (1984) 469 U.S. 91, 98
[83 L.Ed.2d 488, 495].) Based on the relevant conversation up to the point that
[defendant] said he was not going to say anything, no ambiguity can be found.” So far as
defendant claims the trial court did not base its analysis on his statements before his
purported invocation of rights, he is mistaken.
       As we have shown, the very first point the court made was that immediately
before defendant’s purported invocation, he offered to tell the officers whatever they
wanted to know if they could assure him he would not go to jail that night. The court
mentioned defendant’s later statements about his wish to avoid jail only to show that they
were consistent with his original statement.

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advice, it broke off (according to the transcript) amidst an apparent attempt to give
reasons for silence, which might have included some qualification or hedge on the lines
of his already-expressed wish to stay out of jail.
       Furthermore, although the transcript makes it appear that the officer cut off
defendant in midsentence, the CD reveals that at this point in the interview defendant and
the officer repeatedly talked over each other, and some of what each said is unintelligible.
Thus, what is already ambiguous in the transcript is even more so on the CD.
       For all these reasons, we reject defendant’s claim that he unambiguously invoked
his Miranda rights.
       Officer Bezuglov’s Conduct Before Reading the Miranda Rights Was Proper
       “In the face of an initial equivocal reference to counsel, . . . an officer is permitted
to clarify the suspect’s intentions and desire to waive his or her Miranda rights.
[Citation.]” (Duff, supra, 58 Cal.4th at p. 553.) However, “[a]lthough officers may seek
clarification of an ambiguous request, they are not required to do so. [Citation.]”
(People v. McCurdy (2014) 59 Cal.4th 1063, 1087 (McCurdy).)4



4  Duff notes, without expressly resolving, the tension between Ninth Circuit and
California Supreme Court holdings that the officer not only may but must clarify the
suspect’s intentions before initiating substantive questioning (United States v. Rodriguez
(9th Cir. 2008) 518 F.3d 1072, 1080; People v. Box (2000) 23 Cal.4th 1153, 1194) and
the United States Supreme Court’s post-Rodriguez rejection of any such bright-line rule.
(Berghuis, supra, 560 U.S. at p. 387 [Miranda satisfied, even without a clear waiver
before questioning, if “ ‘suspect receives adequate Miranda warnings, understands them,
and has an opportunity to invoke the rights before giving any answers or admissions’ ”].)
(Duff, supra, 58 Cal.4th at pp. 553-554 & fn. 10.)
        Defendant asserts that Duff holds the officer “was limited at that point to asking
clarifying questions” and that this court must follow that holding (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450). Defendant is mistaken. By citing to Berghuis
on this issue with a “but cf.” signal (Duff, supra, 58 Cal.4th at p. 553; Id. at p. 553, fn.
10), Duff made clear that the Rodriguez-Box rule stood on shaky ground. And after Duff
our Supreme Court itself impliedly rejected that rule. (McCurdy, supra, 59 Cal.4th at
p. 1087.)

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       Defendant asserts that Officer Bezuglov not only did not clarify defendant’s
intentions, but “ignore[d]” defendant’s invocation by “interspers[ing]” his reading of
defendant’s Miranda rights “with discussion of his honesty and forthrightness,” which
“was obviously an attempt to induce a waiver by building trust, not an effort to seek
clarification.” This argument fails to show any Miranda violation.
       After defendant’s initial equivocal reference to counsel, Officer Bezuglov repeated
over and over that he could not ask any substantive questions until he had read the
Miranda rights to defendant. He then read out each of the rights fully and obtained
defendant’s agreement that he understood them. So far as defendant claims that anything
the officer said was improper because it did not attempt explicitly to clarify defendant’s
intentions, McCurdy rebuts that claim. (McCurdy, supra, 59 Cal.4th at p. 1087.)
Furthermore, defendant cites no authority holding that an officer seeking to obtain a
Miranda waiver may not make comments designed to win a suspect’s trust, or that such
comments somehow vitiate a waiver once obtained, and we have found no such authority.
       Defendant Has Not Shown That He Failed to Understand His Right to Counsel
       Even though defendant said “Yeah” when the officer asked if defendant
understood his right to counsel, defendant asserts that we may not find a valid Miranda
waiver because the officer “inadequately explained” the right. According to defendant,
the fact that the officer said a lawyer would not be able to come to the station at 3:00 a.m.
shows that the officer’s advisement was “too ambiguous to clearly apprise [defendant] of
the nature of the right he was waiving” because it did not specify the exact period of time
defendant would have to wait. We are not persuaded.
       “Miranda does not require that attorneys be producible on call, or that police ‘keep
a suspect abreast of his various options for legal representation.’ (People v. Bradford
[1997] 14 Cal.4th [1005,] 1046.)” (People v. Smith (2007) 40 Cal.4th 483, 503.) All
Miranda requires on this point is that a suspect be informed that he has the right to an
attorney before and during questioning, and that one will be appointed for him if he

                                                11
cannot afford one. (Smith, at p. 503.) The officer gave defendant exactly that
information, and defendant said he understood it. Furthermore, as the trial court noted,
there was no reason to doubt that the officer spoke accurately when he said a lawyer
could not be available at 3:00 a.m. It was clear in context that defendant understood he
could have counsel in the near future. It is also clear that he impliedly waived that right,
like the other Miranda rights, by proceeding to answer the officer’s substantive questions.
(Sauceda-Contreras, supra, 55 Cal.4th at pp. 218-219.)
       The only supposedly contrary authority defendant cites is inapposite. In United
States v. Bin Laden (S.D.N.Y. 2001) 132 F.Supp.2d 168, a suspect detained outside the
United States was wrongly advised that he had no right to counsel so long as he remained
on foreign soil. (Id. at pp. 190-191 & fn. 22.) This case does not stand for the
proposition that defendant could not knowingly and intelligently waive the right to
counsel merely because he was accurately informed that a lawyer could not materialize
immediately at the station in the wee hours of the morning.
                                      DISPOSITION
       The order denying defendant’s motion to suppress his statements is affirmed.



                                                    /s/
                                                  Blease, Acting P. J.

We concur:



  /s/
Butz, J.



  /s/
Renner, J.


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