The People v. Kotz CA4/2 ( 2013 )

Filed 8/28/13 P. v. Kotz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055975
v. (Super.Ct.No. FVA1000704)
SANDRA LEE KOTZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison,
Judge. Affirmed.
Brett Harding Duxbury, 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, Assistant Attorney General, James D. Dutton and Donald W.
Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant Sandra Lee Kotz guilty of first degree
murder (Pen. Code, § 187, subd. (a), count 1)1 and found true the enhancement allegation
that she personally and intentionally discharged a firearm causing death. (§§ 12022.53,
subd. (d).) The trial court sentenced defendant to a total indeterminate term of 50 years
to life in state prison.
On appeal, defendant contends that the trial court erred in denying her motion in
limine to suppress statements she made to police officers at the scene and at the police
station. We disagree and affirm.
FACTUAL BACKGROUND
Prosecution Evidence
The victim was defendant’s sister-in-law. Around May 1, 2010, the victim let
defendant move in with her and was helping her to find a job.
At 2:00 a.m. on May 2, 2010, Officer Joseph Maltese responded to a dispatch call
regarding a person driving around in a car, possibly with a body inside of it. When he
arrived at the location, he observed defendant sitting on a curb near the end of a cul-de-
sac, with two duffel bags next to her. Officer Maltese drove past defendant and turned
around in the cul-de-sac and then saw her standing by a trash can, closing the lid. He
stopped his car and turned on his alley light to illuminate the area. Defendant started
walking toward the police car. Officer Maltese got out of the patrol car and noticed that
defendant was crying and very distraught. He asked her name and what was wrong. She
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2
replied, “You know what’s wrong.” Because of the nature of the dispatch call, Officer
Maltese asked for her purse, set it down, and patted her down for weapons. He then
started recording their conversation. The recording was played for the jury at trial.
Defendant said her mother told her to just turn herself in. Officer Maltese asked her what
was wrong and what happened. She mentioned something about torture, so he asked who
was torturing her. He then asked what color the car was. She said, “You know what
color it is.” He told her he only saw her sitting “there” and that she looked like she
needed help. He said, “That’s why I’m here. Okay. What’s wrong? You shot
somebody? Who did you shoot?” Defendant responded that her sister-in-law was
torturing her. Officer Maltese asked again where the car was located. She said it was in
the field, and that the car was white. Officer Maltese repeated that the police were there
to help her. Defendant said she had been driving around for 10 hours and did not know
what to do. He asked what kind of car it was and who it belonged to. She said it was
“hers.” Defendant then started talking about her ex-husband and her divorce, and she
said that the victim was out of her mind. Officer Maltese said it was going to be okay,
and defendant said, “No it’s not. Now they’re gonna know that I don’t have a gun and
they’ll hurt me now.”
Officer Maltese handcuffed defendant, read defendant her Miranda2 rights, and
asked if she understood them. Defendant said, “No, you said it too fast.” Officer Maltese
began to repeat them, when defendant said, “I already told you almost everything.”
2 Miranda v. Arizona (1966) 384 U.S. 436.
3
Meanwhile, another officer found a gun in the nearby trashcan. Officer Maltese finished
reading defendant her rights and asked if she understood them. She then asked him if the
officer found “[her] other one.” She said she thought she put another gun in the trashcan.
Defendant said her brain was “hurting” and she could not think straight. Officer Maltese
said he would give her some time. Defendant said she could not take anymore, and then
said, “That’s my sister calling me to tell me to turn myself in.” Officer Maltese tried to
tell her everything was okay, but defendant said, “If I run, will you just shoot me so I
don’t have to go to jail?” Officer Maltese told her she was not going to run and said,
“[W]e’re gonna help you as much as we can.” Defendant said the police did not help her
with her divorce, and then she talked about her daughter.
Officer Maltese asked for the identity of the person in the back of the car, and
defendant said it was her sister-in-law. He asked her questions about whether she put the
bag with the guns in the trashcan when she saw him. She said, “I put it in the trashcan so
that if you didn’t know you didn’t know.” Defendant kept begging Officer Maltese to
shoot her if she ran. He kept trying to calm her down. Throughout the rest of the
conversation, defendant mentioned that she had rifles in her car at another location, asked
if the other officers retrieved both of her bags out of the trashcan, and said her head hurt
and that she had been disoriented since her divorce. When Officer Maltese asked
whether she put her sister-in-law in the trunk, the backseat, or the front seat, defendant
said the victim was driving and she asked her to pull over. Defendant said the victim was
being “really evil” and she “could not take anymore.” Defendant said, “[S]he won’t be
lying anymore. She won’t. She will never say that to me again. Never. And she’s
4
bipolar. She should be taken and killed all the time to keep from making everybody
around her crazy. . . .” Defendant then rambled on about her ex-husband and her in-laws.
Near the end of the discussion, as defendant was being placed in the police car, she
asked, “Will you call me an attorney?”3
Police officers at the scene located a set of keys on the sidewalk behind defendant.
One of the keys was a car key; the officers walked around the street pressing the button
on the key to see if they could get any feedback from one of the cars. When none of the
cars on the surrounding streets responded, they went into the nearby field. When they
pushed the button, they saw lights flash and found a car in the field. They found the
victim’s body in the car.
Defendant was transported to the police station. Officer Cindi Sandona took
defendant into the restroom to have her change out of her clothes and into a paper suit so
her clothes could be collected as evidence. After defendant changed, she asked Officer
Sandona if she was going to die by lethal injection. Officer Sandona asked her what she
was talking about, and defendant said she had just shot her sister-in-law. Officer
Sandona took defendant into an interview room that did not have any recording
equipment. However, Officer Sandona decided to move her into a room with recording
equipment because defendant kept making spontaneous statements about shooting her
sister-in-law. Their discussion was recorded, and the recording was played for the jury at
trial. At the beginning of the recording, Officer Sandona complimented defendant on the
3 A transcript of this request is not included in the clerk’s transcript since the trial
court excluded all statements made after the request.
5
color of her hair, and they talked about the hair dye she used. Defendant then started
saying something about how “[s]he deserved it,” and about “[a]ll the lies” her sister-in-
law was telling. Officer Sandona listened but then started asking questions about
defendant’s hair color. Officer Sandona noted that it was funny that defendant
remembered dying her hair, and defendant said it was because her fingernails were dirty.
Defendant started talking about how her father went into the hospital.
At trial, Martin Bocanegra testified. He said defendant called him on May 1,
2010, after not having heard from her in 15 years. Defendant said her sister told her to
call him. Defendant asked how to get rid of a dead body and how to get fingerprints off a
dead body. He suggested kicking the body out of a car or throwing it in a lake, and to use
WD40 for the fingerprints. Defendant eventually told him she had shot someone.
Defense Evidence
Defendant testified on her own behalf at trial. She said she was best friends with
the victim, and she moved in with her on the last day of April 2010. The morning after
she moved in, the victim was out in the morning and returned home. At first, the victim
was fine, but then she went into the bathroom and came out angry. Defendant tried to
leave, but the victim slammed the door shut, pulled defendant by the hair, and slammed
her into the couch. The victim pinned her to the floor and started slamming her head into
the ground. The victim eventually got off of her and helped her to the bathroom. The
victim “beat [her] up two more times,” and then defendant talked her into driving her to
her friend’s house. The victim drove defendant in her car, but they could not find the
friend’s house. The victim was angry and hit defendant with her arm several times. The
6
victim started screaming at defendant, and she grabbed an antenna and hit defendant in
the stomach with it. The victim pulled the car over and tried to poke defendant in the
face with it. The victim told defendant to look for her address book. The victim started
stabbing defendant with the antenna. Defendant looked in her bag for the address book.
She had a gun in her bag so she pulled it out and shot the victim. Defendant then moved
the body over and started driving around, trying to figure out what to do. She stopped at
Walmart and bought some hair dye. She went back to the victim’s house and dyed her
hair. After that, she got back into the victim’s car and called her sister. Defendant was
looking for a hospital, and her sister told her to go to Bocanegra’s house so he could help
her. Bocanegra tried to revive the victim, but could not. He told defendant to drive to the
store, where she bought some food and WD40. Bocanegra said he did not want his
fingerprints on the victim’s body and said he could wipe them off with WD40 so he
would not get in trouble. Bocanegra directed defendant to drive to a field near his house,
and he wiped the car and body with WD40 and suggested they burn the body. Defendant
was disgusted with that idea. Bocanegra and defendant walked away from the car, and
Bocanegra disappeared. She walked around looking for him, and ran into the police.
Defendant recalled being contacted by Officer Maltese and pleading with him to shoot
her. On cross-examination, the prosecutor asked her if, at that time, she knew what she
did was wrong. Defendant said she knew that hurting somebody was wrong, but she
could not remember what had happened before the shooting. The prosecutor then stated
that she could not remember any of the details on the morning of the shooting, but she
remembered all the details two years later, at the trial. Defendant replied, “Yes.”
7
ANALYSIS
The Trial Court Properly Admitted Defendant’s Statements to Police Officers
Defendant argues that the evidence of her statements to Officer Maltese at the
scene and to Officer Sandona at the police station were improperly admitted in violation
of her rights under Miranda. We conclude that the court properly admitted the
statements.
A. Standard of Review
“‘In applying Miranda . . . one normally begins by asking whether custodial
interrogation has taken place. “The phrase ‘custodial interrogation’ is crucial. The
adjective [custodial] encompasses any situation in which ‘a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.’”’
[Citation.] ‘Absent “custodial interrogation,” Miranda simply does not come into play.’
[Citation.]” (People v. Ochoa (1998) 19 Cal. 4th 353, 401.) The question of whether
defendant was in custody for the purposes of Miranda is a mixed question of law and
fact. (Ibid.) The first inquiry is factual—the trial court simply needs to ascertain the
factual circumstances surrounding the interrogation. (Id. at p. 402.) Once the relevant
facts are ascertained, the trial court must determine whether, under the relevant legal
principles, defendant was in custody for the purposes of Miranda. (Ibid.) On appeal, we
review the trial court’s factual findings under the substantial evidence standard of review.
(Ibid.) However, we review the trial court’s legal determination of the custody issue
independently. (Ibid.)
8
B. Procedural Background Regarding the Field Interview
Defendant made an oral motion, pursuant to Evidence Code section 402, regarding
the admissibility of her statements made to Officer Maltese at the scene. Defense counsel
acknowledged that Officer Maltese Mirandized her, but argued that there was “an issue of
whether she actually acquiesced understanding.” The court conducted a hearing during
which Officer Maltese testified. He testified that, on the morning of May 2, 2010, he
responded to a dispatch call and saw defendant sitting down, seeming distraught. He
turned on the alley light to illuminate the area, got out of his patrol car, and asked
defendant her name, and if she was okay. He started recording the conversation. Officer
Maltese heard some radio traffic during which other officers at the scene advised that a
body had been found in a vehicle. Officer Maltese then handcuffed defendant and read
her the Miranda rights. When he asked if she understood, defendant said, “No, you said
it too fast.” He started to repeat her rights, when she said, “I already told you almost
everything.” He continued reciting her rights. Defendant did not verbally acknowledge
that she understood, but she continued to talk to him and nodded her head like she
understood her rights. Officer Maltese believed that she understood what he was saying
to her. He also told another officer that came on the scene that she had been Mirandized.
Defendant continued to talk to Officer Maltese, but at one point, she said to him, “Will
you call me an attorney?”
Prior to making its ruling, the court took a recess and listened to the recording of
the discussion between defendant and Officer Maltese. Defense counsel argued that there
was no express acknowledgment that defendant understood her rights, even though the
9
Officer indicated that defendant nodded her head. Defense counsel requested that
everything after the advisement be stricken. The prosecution argued that defendant was
advised orally at least twice. He further argued that an explicit waiver was not needed
but, rather, case law held that the court needed to consider the totality of the
circumstances. The prosecutor pointed out that defendant first said that Officer Maltese
advised her too quickly, which clearly indicated that she was trying to listen to him. The
prosecutor also pointed out that defendant said she already told Officer Maltese “almost
everything,” and that Officer Maltese told another officer she had been Mirandized.
Moreover, at the end of the recording, defendant asked if Officer Maltese could call her
an attorney, which indicated that she knew she had the right to an attorney, but had
continued to speak.
The court ruled that defendant was adequately advised and there was an implied
waiver. The court concluded that the entire conversation was admissible up to the point
where defendant asked the officer to call her an attorney.
C. Defendant Was Not in Custody at the Scene
Defendant contends that she was in custody when she made statements to Officer
Maltese at the scene; thus, her statements should have been excluded since she was not
advised of her rights under Miranda prior to questioning. She acknowledges that Officer
Maltese eventually handcuffed her and advised her of her Miranda rights. However, she
argues that since the initial interrogation was unconstitutional, her subsequent implied
waiver must be evaluated for voluntariness. She asserts that her waiver was involuntary.
10
Therefore, she claims that all of her statements to Officer Maltese should have been
excluded. We disagree.
“Custodial interrogation has two components. First, it requires that the person
being questioned be in custody. Custody, for these purposes, means that the person has
been taken into custody or otherwise deprived of his freedom in any significant way.
[Citation.] Furthermore, in determining if a person is in custody for Miranda purposes
the trial court must apply an objective legal standard and decide if a reasonable person in
the suspect’s position would believe his freedom of movement was restrained to a degree
normally associated with formal arrest. [Citation.]” (People v. Mosley (1999) 73
Cal. App. 4th 1081, 1088 (Mosley).) “The totality of the circumstances surrounding an
incident must be considered as a whole. [Citation.]” (People v. Pilster (2006) 138
Cal. App. 4th 1395, 1403, fn. omitted.) Objective indicia of custody for Miranda purposes
include: “(1) whether the suspect has been formally arrested; (2) absent formal arrest, the
length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the
demeanor of the officer, including the nature of the questioning.” (People v. Forster
(1994) 29 Cal. App. 4th 1746, 1753.)
“The second component of custodial interrogation is obviously interrogation. For
Miranda purposes, interrogation is defined as any words or actions on the part of the
police that the police should know are reasonably likely to elicit an incriminating
response. [Citation.]” (Mosley, supra, 73 Cal.App.4th at p. 1089.)
Here, defendant has failed to demonstrate that she was subjected to restraints
comparable to those associated with a formal arrest. When Officer Maltese initially
11
questioned her, she had not been formally arrested. Defendant was questioned at the
scene, not a police station. The questioning occurred in public, on the side of the road, in
plain view of anyone in the vicinity. Officer Maltese was the only officer questioning
defendant, and the questions were open-ended, non-accusatory, and investigative. The
officer simply asked questions to aid his investigation (i.e., What is wrong? What did
they say? What color is the car? You shot somebody? Where is the car?). Officer
Maltese was not aggressive or confrontational. Defendant asserts that she was distraught
and disoriented. Even so, the record shows that Officer Maltese did not pressure her, and
she readily talked to him. Furthermore, there were no restrictions on defendant’s
freedom of movement. Considering the totality of the circumstances surrounding the
initial contact between defendant and Officer Maltese, we conclude she was not in
custody, and there was no Miranda violation.
Defendant was not actually in custody until the point when Officer Maltese
handcuffed her and advised her of her Miranda rights. She impliedly waived her rights
when she nodded her head, indicating that she understood her rights. She then continued
to talk with Officer Maltese. (See Berghuis v. Thompkins (2010) 560 U.S. 370, [130
S. Ct. 2250, 2261].) Indeed, defendant acknowledges in her opening brief that she
impliedly waived her Miranda rights by continuing to talk to Officer Maltese. However,
she claims that her waiver was not voluntary, since she was distraught and disoriented,
the interrogation prior to her arrest was illegal, she was handcuffed, and she knew the
“cat was out of the bag.” As we have already discussed, there was no Miranda violation
regarding the initial questioning. Furthermore, the record shows that when Officer
12
Maltese advised defendant of her Miranda rights, she asked him to repeat them, which
indicated her interest in fully understanding her rights. After reading her rights a second
time, Officer Maltese asked defendant whether she understood her rights, and she
nodded, indicating that she understood. As the court noted, there was no reluctance to
talk during the interview. Her waiver was voluntary. As to defendant’s claim that she
had already let “the cat out of the bag” and, therefore, her waiver was somehow
involuntary, we disagree. After answering some questions, defendant asked the officer to
call her an attorney, which indicated that she understood her rights, and that she had
voluntarily continued to speak up until that point.
We conclude that the court properly admitted defendant’s statements made to
Officer Maltese.
D. Procedural Background Regarding the Station Interview
Prior to trial, defendant made an oral motion to exclude the interview with Officer
Sandona that was recorded at the police station. The court conducted a hearing during
which Officer Sandona testified. She testified that she was introduced to defendant and
asked to assist with her needs and to stand by while she changed her clothes. Officer
Sandona went into the restroom with defendant and provided her with a paper suit and
feminine products. In the restroom, Officer Sandona did not say anything to defendant to
elicit a response, but defendant started talking and asked if she was going to die by lethal
injection. Officer Sandona asked what she was talking about, and defendant said she had
killed or shot her sister-in-law, so she wanted to know if her punishment was going to be
13
a lethal injection.4 Nothing else was said at that point, and Officer Sandona brought
defendant into an interview room. Officer Sandona then told defendant she liked her hair
color, and defendant said she dyed her hair to cover it up, since she felt “dirty” from
killing her sister-in-law. Officer Sandona moved defendant over to an interview room
that had digital recording because she realized that defendant was going to freely talk
about what happened; she wanted everything recorded to make it clear that she was not
asking defendant any investigative questions, but was only talking about things that were
unrelated to the homicide.
Prior to making its ruling, the court listened to the recording of the discussion that
took place in the interview room. The court found there was a Miranda violation and
ruled to admit a certain portion of the tape and exclude the rest. Specifically, the court
found that at the start of the recording, the conversation was not an interrogation since
Officer Sandona did not ask any questions to elicit incriminating information. The court
determined that about 16 pages into the transcript, Officer Sandona asked, “So then, what
did he say?” The court considered that question to be the beginning of several questions
that were interrogative. Thus, the court ruled to admit the first 16 pages of the
conversation, but excluded the rest of the conversation as being in violation of Miranda.
4 Officer Sandona said “sister,” but apparently meant to say “sister-in-law.”
14
E. Miranda Was Not Implicated During the Outset of Defendant’s Conversation
with Officer Sandona, Since There Was No Interrogation
Defendant now claims that Officer Sandona’s initial question of “What are you
talking about?” after defendant asked if she was going to die by lethal injection,
constituted an interrogation under the totality of the circumstances. Thus, she argues that
the trial court erred in admitting “all but the first of [her] statements [i.e., the question
regarding lethal injection].” At the outset, we note that defendant failed to make this
specific objection below. Rather, she previously moved to exclude the statements she
made during the conversation in the interview room, which was recorded. “‘The general
rule is that a defendant must make a specific objection on Miranda grounds at the trial
level in order to raise a Miranda claim on appeal.’ [Citations.]” (People v. Mattson
(1990) 50 Cal. 3d 826, 854.) Defendant has forfeited this issue on appeal. (People v.
Rogers (1993) 21 Cal. 3d 542, 548.) In any event, we find the argument to be without
merit.
“Miranda does not ‘prohibit the police from merely listening to . . . voluntary,
volunteered statements’ uttered by a person, whether or not in custody, . . .” (People v.
Mickey (1991) 54 Cal. 3d 612, 648 (Mickey).) “[A] statement is involuntary if it is the
product of coercion or, more generally, ‘overreaching’; involuntariness requires coercive
activity on the part of the state or its agents . . . .” (Id. at p. 647.)
Here, shortly before defendant arrived at the police station, she was advised of her
Miranda rights, impliedly waived them and continued to talk to the police. She
eventually asked the officer to call her an attorney. After arriving at the police station,
15
defendant was introduced to Officer Sandona, who accompanied her into the restroom
and stood by while she changed her clothes. While in the restroom, defendant started
talking and asked Officer Sandona if she was going to die by lethal injection. Officer
Sandona had not said anything to defendant to elicit a response, so she asked defendant
what she was talking about. Defendant said she had killed or shot her sister-in-law, so
she wanted to know if her punishment was going to be a lethal injection. The record
clearly demonstrates that defendant initiated communication with Officer Sandona
regarding what she had done. In other words, “it was generally defendant who was active
and [Officer Sandona] who [was] passive: [defendant] opened discussion and directed its
course; [Officer Sandona] essentially responded.” (Mickey, supra, 54 Cal.3d at p. 650.)
Officer Sandona did not “overreach” in any way when she simply asked defendant what
she was talking about. Moreover, after defendant admitted the shooting, Officer Sandona
did not inquire further regarding the incident, or say anything that would be likely to
elicit an incriminating response. Defendant’s admission was voluntary, since there was
no coercive activity by Officer Sandona.
In view of the totality of the circumstances, we conclude that Officer Sandona’s
question asking defendant what she was talking about did not amount to an interrogation,
and the court properly admitted the evidence of that portion of their conversation.
In any event, the admission of evidence of the first portion of defendant’s
conversation with Officer Sandona, even if erroneous under Miranda, was harmless
beyond a reasonable doubt. (People v. Samayoa (1997) 15 Cal. 4th 795, 831.) The
evidence against defendant was overwhelming. When the police found her, she was
16
crying and distraught. She told Officer Maltese that the victim was torturing her and was
being evil, and that she “could not take anymore.” Defendant told the police that the
victim, “will never say that to me again” and that the victim “should be taken and killed
all the time to keep from making everybody around her crazy.” The police found the
victim’s car keys and the victim’s body in the car, near defendant. Defendant identified
the dead body as her sister-in-law, and she told the police where she hid her guns.
Defendant also kept asking Officer Maltese if he would shoot her so she would not have
to go to jail. In addition, Martin Bocanegra testified that defendant told him she had shot
someone and asked him how to get rid of a dead body and how to get fingerprints off a
dead body.
In view of the evidence, we conclude that the admission of the first portion of
Officer Sandona’s conversation with defendant was not prejudicial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
MILLER
J.
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