Filed 11/7/14 P. v. Colin CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064745

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN310433)

SOCORRO VIDAL COLIN,

         Defendant and Appellant.


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

von Kalinowski, Judge. Affirmed.

         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.

         A jury convicted defendant Socorro Vidal Colin of possession of heroin for sale

(Health & Saf. Code, § 11351), two counts of felonious child abuse (Pen. Code, § 273a,
subd. (a)), and possession of methadone (Health & Saf. Code, § 11350, subd. (a)). On

appeal, Colin argues the court erred by admitting certain statements she made to police

when she was initially arrested because those statements were obtained in violation of her

Miranda1 rights.

                               FACTUAL BACKGROUND

       The parties contested the admissibility of specific statements made by Colin to a

detective after she had been placed in custody, and the trial court conducted a pretrial

hearing under Evidence Code section 402 to determine admissibility. At the hearing,

Detective Arnotti testified he contacted Colin at a vehicle stop initiated by another

officer. Arnotti ultimately removed her from her vehicle and handcuffed her. He then

admonished her with her Miranda rights, which he read line-by-line from his police

department's handbook and, after reading her each right, he asked Colin if she understood

the right read to her, and she said "yes." He then told her she was being arrested on an

outstanding traffic warrant. He asked whether there were any drugs in her vehicle, and

she responded there was drug paraphernalia. Just prior to or while he searched the car, he

also asked her other questions that elicited additional statements admitted against her at

trial. The court found the Miranda admonitions adequately apprised Colin of her

Miranda rights, and she knowingly and voluntarily waived those rights by her conduct in

speaking to the detective after receiving those warnings.




1      Miranda v. Arizona (1966) 384 U.S. 436.
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                                 LEGAL FRAMEWORK

       In People v. Williams (2010) 49 Cal.4th 405, 425, the California Supreme Court

provided a summary of the law governing Miranda claims:

          "The [United States Supreme Court] has stated in summary that to
          counteract the coercive pressure inherent in custodial surroundings,
          'Miranda announced that police officers must warn a suspect prior to
          questioning that he has a right to remain silent, and a right to the
          presence of an attorney. [Citation.] . . . Critically, however, a
          suspect can waive these rights. [Citation.] To establish a valid
          waiver, the State must show that the waiver was knowing,
          intelligent, and voluntary under the "high standar[d] of proof for the
          waiver of constitutional rights [set forth in] Johnson v. Zerbst [1938]
          304 U.S. 458 . . . ." ' "

       In Berghuis v. Thompkins (2010) 560 U.S. 370, 384 (Berghuis), the United States

Supreme Court held, "Where the prosecution shows that a Miranda warning was given

and that it was understood by the accused, an accused's uncoerced statement establishes

an implied waiver of the right to remain silent." The Berghuis court acknowledged that,

"Some language in Miranda could be read to indicate that waivers are difficult to

establish absent an explicit written waiver or a formal, express oral statement" (id. at

p. 383), but then explained, "The course of decisions since Miranda, informed by the

application of Miranda warnings in the whole course of law enforcement, demonstrates

that waivers can be established even absent formal or express statements of waiver that

would be expected in, say, a judicial hearing to determine if a guilty plea has been

properly entered." (Ibid.) Berghuis explained prior case law established that courts may

find an implied waiver of Miranda rights, and therefore held, "The prosecution therefore

does not need to show that a waiver of Miranda rights was express. An 'implicit waiver'


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of the 'right to remain silent' is sufficient to admit a suspect's statement into evidence."

(Berghuis, at p. 384.)

       The Berghuis court emphasized the key to finding an implied waiver of Miranda

rights where a Miranda warning has been given is evidence that the accused understood

those rights: "If the State establishes that a Miranda warning was given and the accused

made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate

'a valid waiver' of Miranda rights. [Citation.] The prosecution must make the additional

showing that the accused understood these rights." (Berghuis, supra, 560 U.S. at p. 384.)

The Berghuis court summarized its holding by stating, "In sum, a suspect who has

received and understood the Miranda warnings, and has not invoked his Miranda rights,

waives the right to remain silent by making an uncoerced statement to the police." (Id. at

pp. 388-389.)

       In the Miranda arena, " '[t]he prosecution bears the burden of demonstrating the

validity of the defendant's waiver by a preponderance of the evidence.' [Citations.] In

addition, '[a]lthough there is a threshold presumption against finding a waiver of Miranda

rights [citation], ultimately the question becomes whether the Miranda waiver was

[voluntary,] knowing [,] and intelligent under the totality of the circumstances

surrounding the interrogation.' [Citation.] 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, supra, 49 Cal.4th at

p. 425.)



                                               4
                                       ANALYSIS

       At the Evidence Code section 402 hearing, the People presented evidence that

Detective Arnotti read a full and proper Miranda admonishment to Colin, she understood

the admonishment, and she provided uncoerced statements to Arnotti immediately after

being advised of those rights. These facts strongly support a finding of waiver. (See

Berghuis, supra, 560 U.S. at pp. 388-389 ["In sum, a suspect who has received and

understood the Miranda warnings, and has not invoked his Miranda rights, waives the

right to remain silent by making an uncoerced statement to the police"]; accord, People v.

Nelson (2012) 53 Cal.4th 367, 375 ["Fifteen-year-old defendant's] voluntary responses to

the deputies' subsequent questions indicate he understood his Miranda rights and waived

them."]; People v. Lessie (2010) 47 Cal.4th 1152, 1169 ["While defendant did not

expressly waive his Miranda rights, he did so implicitly by willingly answering questions

after acknowledging that he understood those rights."].)

       Colin attempts to distinguish Berghuis and other cases that have found implied

waiver under closely analogous facts, arguing that because there was no evidence Colin

knew how to exercise her right to remain silent or knew responding to police questions

would permit introduction of those statements at trial, there was no evidence she

intentionally waived her right to remain silent or to counsel. Detective Arnotti told her,

"You have the right to say nothing," and then asked, "Do you understand?" and she

replied, "Yes." He also told her, "Anything you say may be used against you in court,"

and then asked, "Do you understand?" and she again replied, "Yes." He then told her,

"You have the right to an attorney and have an attorney present before and during

                                             5
questioning," and then asked, "Do you understand?" and she again replied, "Yes." There

was ample evidence Colin knew she could remain silent, responding to police questions

would permit introduction of those statements at trial, and that she was entitled to an

attorney who would be present before and during questioning. Her conduct of answering

his questions, despite knowing and understanding these rights, persuades us she

knowingly and voluntarily waived her right to remain silent or to counsel even though

she did not expressly say she wanted to waive those rights.

                                      DISPOSITION

       The judgment is affirmed.




                                                                           McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


IRION, J.




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