Original Proceeding Superior Riverside County Super. Ct. No. CR60158, Gordon R. Burkhart, Judge.
Diane E. Berley, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Anne Featherman Fraser and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): Diane E. Berley, Lise S. Jacobson, Deputy Attorney General
CANTIL-SAKAUYE, C. J.
A jury convicted defendant Daniel Andrew Linton of the 1994 first degree murder of 12-year-old Melissa Middleton (Pen. Code, § 187) and found true the special circumstance allegations that the murder was committed during the commission of a first degree burglary, a forcible lewd act with a child under the age of 14 years, and the commission or attempted commission of rape (§ 190.2, former subd. (a)(17)(iii), (v), (vii), added by initiative, Gen. Elec. (Nov. 7, 1978), Prop. 7, now subd. (a)(17)(C), (E), (G)). The jury also convicted defendant of three offenses relating to a prior assault on Melissa — residential burglary (§ 459), attempted rape (§§ 664/261, subd. (a)), and a forcible lewd act on a child under the age of 14 years (§ 288, subd. (b)). The jury returned a verdict of death for Melissa’s murder.
The trial court denied defendant’s motion for new trial and his motion to modify the verdict. The trial court sentenced defendant to death. The court also imposed on defendant a determinate sentence of six years in prison for his conviction of a forcible lewd act on a child under the age of 14 and a concurrent term of four years for his conviction of attempted rape. The trial court imposed, but stayed pursuant to section 654, an 18-month sentence for defendant’s conviction of burglary. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
A. Guilt phase evidence
At trial it was undisputed that defendant strangled and killed 12-year-old Melissa Middleton. The defense theory was that defendant did so as a result of a panic attack, which was consistent with his cognitive psychological functioning, and as a result defendant lacked the specific intent necessary for the charged murder. Contending defendant was coerced into false admissions and confessions by his interrogators, the defense disputed the special circumstance allegations that defendant murdered Melissa during the commission of a burglary, a lewd act on a child or attempted rape, as well as the offenses charged in connection with the alleged prior assault involving Melissa.
1. The prosecution’s case-in-chief
In the fall of 1994, Linda and Robert Middleton lived with their 12-year-old daughter Melissa in a two-story home in San Jacinto, California. Carl and Jean Linton lived next door with their two children, 20-year-old defendant Daniel Linton and eight-year-old Stacey. The two families had been next door neighbors for about seven years and their daughters were close friends.
The Middletons hired defendant to take care of their pets while they were away on vacation. After their last family vacation in April 1994, the Middletons forgot to retrieve from defendant the keys they had given him for their house. Defendant did not, however, have permission to be in the Middleton house anytime after their vacation.
b. Prior attack: late September – early October 1994
Around 2:00 a.m. one night in late September or early October 1994, Melissa came into her parents’ bedroom upset and crying. Melissa told her parents that a man had been on top of her in her bedroom, choking her with his hands. Melissa told them she did not know what the man looked like.
While Linda comforted Melissa, Robert went to check the house. The doors were locked and there were no signs of a break-in. He walked around the neighborhood, looking for anything unusual. As Robert passed the Linton house, he noticed a light was on and he saw through a window Joseph Montero working on a computer. Montero was a friend of defendant’s who lived with the Lintons for a month in the fall of 1994. Robert spoke with Montero and told him that Melissa thought someone had been in the Middleton house. Montero told Robert he had not seen anyone. According to Montero, defendant was not home when Montero spoke with Robert. Defendant returned home approximately 15 to 20 minutes later, out of breath, and looking frightened.
Melissa had already fallen back asleep by the time Robert returned to their home. Linda and Robert discussed the incident and concluded Melissa must have had a nightmare. The next morning Melissa denied that it was a nightmare and said the man had been nude.
Linda believed this incident occurred about two months prior to November 29, 1994. Robert also believed the attack occurred about that time, but in any event, he was certain there was only one such prior incident.
c. The death of Melissa on November 29, 1994
Melissa was sick and stayed home from school on November 29, 1994. Linda told Melissa to stay in bed, sleep, and take her medicine. Linda locked the front door and left for work. Robert had already left.
Around noon, Linda telephoned Melissa to check on her. There was no answer. This worried Linda, but she concluded Melissa was probably sleeping and did not hear the phone.
Linda returned home from work around mid-afternoon, unlocked the door, and called for Melissa. There was no response, but everything looked normal. Linda went upstairs. Melissa was not in her bedroom. When Linda went to the master bedroom, she saw Melissa sitting on the floor at the foot of the bed with her legs crossed, her “arms kind of out, ” and her head to one side. Melissa was wearing shorts, one sock, and the same shirt that she had been wearing that morning. Melissa’s shorts were unbuttoned and unzipped. Linda called Melissa’s name a couple of times, touched her, and realized she was dead. After an unsuccessful resuscitation attempt, Linda ran to the home of a neighbor, asked for help, and called 911.
San Jacinto Police Detective Michael Lynn arrived at the Middleton home a short time later. He found no signs of forced entry into the house and no indication that the home had been burglarized. Lynn went up to the master bedroom, where Melissa had been placed on the floor. He observed red bruise lines on Melissa’s neck, including a red line leading from the middle of her throat up to behind her right earlobe area. Believing the injuries were suspicious, Lynn declared the area a homicide crime scene. Lynn collected a pair of stereo headphones with a broken cord, which was located near Melissa at the bottom of the bed. Lynn believed the cord could have been used to cause the injury on Melissa’s neck.
Dr. Joseph Choi, a forensic pathologist working for the coroner’s office, subsequently performed an autopsy of Melissa. He determined that Melissa died of asphyxiation due to strangulation. Melissa’s body had signs of both ligature and manual strangulation. Choi opined that the linear abrasion on Melissa’s neck could have been caused by a cable, cord, or headphone wire. Melissa’s injuries were consistent with someone pulling on the ligature from behind, not someone putting the ligature around her neck, crossing it in front and pulling it. Alternatively, the linear marks on Melissa’s neck could have resulted from a cord placed around Melissa’s neck if her hair was between the cord and her neck and if the ligature was pulled from one side. In addition to the linear abrasion, Choi found a large bruise on Melissa’s neck that could have been caused by a thumb or finger. Melissa also had signs of hemorrhaging that were consistent with strangulation.
Swabs from Melissa’s mouth, anus and vagina tested negative for sperm, and Choi found no injuries or abnormalities on her genitalia. The DNA profile found on two fragments of fingernail clippings from Melissa’s left hand was consistent with defendant’s profile. The DNA could have come from Melissa having scratched the defendant.
d. Defendant’s statements to police
Shortly after 4:30 p.m. on November 29, Detective Glenn Stotz began to canvas neighbors regarding Melissa’s death. His first stop was the Linton home, where defendant answered the door. Stotz introduced himself and asked defendant if he had heard what happened next door. Defendant indicated he had already heard Melissa had been killed. Defendant told Stotz that he had been home all day, but he did not see or hear anything out of the ordinary. He said he did not know Melissa well, although she was a good friend of defendant’s sister. Defendant asked Stotz how Melissa was killed and Stotz told him that it appeared she was choked to death. Stotz did not provide any further information.
After canvassing other residences, Detective Stotz went back with Detective Lynn to the Linton residence. Defendant and his sister Stacey answered the door. Defendant had changed his clothes. Stotz asked defendant to confirm that he did not know Melissa very well. Defendant responded that he hardly knew her. Stacey interjected, “Uh-huh. You used to fight with her all the time.” Defendant looked at Stacey and, according to the detectives, he appeared to be “shocked” and “appalled.” Stotz then spoke with defendant alone.
Defendant continued to claim he did not know Melissa well. Detective Stotz asked defendant if he knew anything about an incident in which Melissa had told her parents that she had been attacked in her room in the middle of the night. Defendant initially denied any knowledge of the previous assault, but later told Stotz about an occasion when two or three weeks earlier he woke up in his front yard around midnight wearing jeans and underwear, but no shirt or socks. Defendant thought he might have been sleepwalking. Stotz asked to look at defendant’s hands. When defendant held out his hands, Stotz noticed defendant had scratch and gouge marks on his lower right forearm. He was visibly nervous. His arms and hands were shaking and his palms were extremely sweaty. Defendant claimed he received the marks earlier in the day when playing with his cat.
In the evening a few hours later, Detective Stotz returned to the Linton home, accompanied by Deputy District Attorney William Mitchell. Defendant agreed to speak with them and they went back to defendant’s bedroom.
Defendant spoke with Stotz and Mitchell for about a half-hour. Defendant claimed he was at home all morning and that he did not see Melissa that day. He had not been to the Middleton home since he last took care of their animals about three months earlier, and he had returned their keys at that time. When asked if he heard what happened to Melissa that day, defendant said that he heard she had been strangled with a cord and that she was found dead on the floor in her parent’s room. Stotz had not told defendant these details. Stotz asked defendant if he had talked to anyone other than Stotz about Melissa’s death. Defendant said he had not. Mitchell and Stotz asked defendant if he would agree to speak with investigators the next day and defendant agreed.
Stotz telephoned defendant the next morning and defendant again agreed to speak with investigators. Detectives Stotz and Lynn picked defendant up from his home. During the drive to the police station, defendant said to the officers, “I’m sorry I wasted your time. I wanted to turn myself in last night, but I couldn’t do it in front of my parents.” Defendant also said, “I wasn’t sure I could admit it.” Defendant was crying and shaking. He appeared remorseful and sad. The officers asked him if he was willing to go to the office for a formal interview and he said “Yeah. I’ll tell you everything.”
At the police station, defendant was advised of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and agreed to answer questions. He gave a simplified account of the killing. He told Stotz that he went to the Middleton house about 10:00 or 11:00 the previous morning and noticed the front door was unlocked. He said he did not know why he went over to the house and he denied he had a key for the house. He said he had given the key back two months earlier after he watched the family’s pets. Defendant said that when he went inside the house, he heard a noise and thought Linda was home. He went upstairs and found Melissa instead. Melissa told defendant she was going to call the police and as he was getting ready to leave, she started screaming. Defendant grabbed her by the throat and she stopped screaming. He did not really notice “how far [he] had gone until it was, until it was too late.”
After a long pause waiting for defendant to add anything further, Detective Stotz asked defendant if it would be easier for defendant if Stotz asked some questions. Defendant said, “Yeah.” Stotz proceeded to elicit additional details about the murder and the prior assault by further questioning of defendant.
Defendant said when Melissa started screaming, she ran into her parents’ room to call the police. Stotz asked defendant if he had any idea why Melissa started screaming as soon as she saw him and wondered whether Melissa was afraid of defendant. Defendant agreed that she might have been afraid of him because of the incident that happened a couple of weeks earlier. Defendant said that after Melissa started screaming, he followed her into her parents’ bedroom, pushed her onto the bed so that she could not reach the telephone, grabbed her throat with both hands and started choking her. As Melissa struggled and gasped for air, defendant grabbed the headphones that were on the nightstand by the bed. He did not recall how he put the cord around Melissa’s neck, although he was certain he was standing in front of her. He thought he may have put it around the back of her neck, crisscrossed it in front of her throat, and pulled. After a few seconds, the cord broke and defendant resumed choking Melissa with his hands. After she fell off the foot of the bed and was no longer “awake, ” defendant sat her up against the bed. He then picked up a rag and wiped the headphone cord, the stair rail, and the doorknobs on the front door to get rid of fingerprints.
Stotz returned several times to the question of why defendant went over to the Middleton house. At first defendant said he went into the house just to look around. Later he admitted going into the home to look for money. Defendant said he needed money because someone had taken $100 from him. He unsuccessfully searched the downstairs area of the Middleton home before going upstairs. Defendant said he had also gone to the Middleton house in the prior incident because he needed money then as well.
Defendant repeatedly denied any sexual relationship with or sexual interest in Melissa as a motive for going over to the house. He specifically denied raping Melissa. Defendant denied trying to have sex with Melissa during the incident that he thought was two weeks prior to the killing, not two months earlier. He said he was half asleep at that time, although he did remember going up to Melissa’s room and then choking her when it seemed like she was going to wake her parents. Asked to explain how Melissa’s shorts came to be unbuttoned and unzipped on the day of her death, defendant initially suggested she might have been changing them and said that if he had noticed her zipper was down, he would have zipped it up. Later he suggested her pants may have been tight and that was why the zipper came undone. At another point, he speculated that she may have needed to use the toilet and that she saw him as she was on her way to or from the bathroom. Eventually, defendant admitted he had unzipped Melissa’s shorts during the struggle and said the thought crossed his mind to have sex with her, but he claimed it was more to scare her so she would not say anything. Finally, during an afternoon interview with Detectives Stotz and Fred Rodriguez, defendant admitted he tried to rape Melissa during the previous incident “whenever it was.” He also admitted that on the day of the killing, the thought crossed his mind to rape Melissa, but after he undid her zipper, he changed his mind.
Defendant said that after the killing, he returned home, took a shower, changed and washed his clothes. He also threw away the Middletons’ keys, which he ultimately admitted to using in order to gain entry into the Middleton house on both the previous day and on the prior occasion. He told Stotz they were still in the trash can at his house.
During a subsequent search of defendant’s home, Stotz found the Middletons’ house keys, one of Melissa’s rings, and a pair of Melissa’s soiled underpants in the kitchen trash can. Melissa’s DNA was found on the crotch of the underpants. Defendant’s DNA was found in sperm and semen on the front and back of the underpants. There was no semen on the clothes Melissa was wearing when she was murdered.
2. The defense case
Defendant did not testify. To challenge the special circumstance allegations and the charges relating to the previous incident, the defense presented the testimony of several experts as well as a neighbor and the deputy district attorney who questioned defendant at the police station.
Dr. Werner Spitz, a forensic pathologist, reviewed autopsy photographs of Melissa and from them concluded Melissa was not strangled to death in the manner described by the prosecution. Spitz believed the marks on Melissa’s neck were consistent with someone grabbing and twisting Melissa’s shirt around her neck, thereby cutting off the blood flow to her brain. Spitz attributed the large bruise on her neck to a knuckle going into her neck as part of this twisting process. He theorized that Melissa may have lost consciousness and died within 20 to 30 seconds.
The defense called Deputy District Attorney John Chessell and questioned him regarding his participation with Detective Stotz in defendant’s interrogation at the police station. Chessell denied that he tried to plant in defendant’s mind the answers the prosecution wanted. Chessell admitted that, contrary to some of his previous testimony, there may have been some brief conversation with defendant that was not tape-recorded because it occurred while the cassette was being turned over.
The defense called Dr. Craig Rath, a licensed clinical psychologist, to testify regarding his interview and psychological testing of defendant at the police station on November 30, 1994. Rath interviewed and tested defendant that day at the request of the prosecution for the purpose of determining defendant’s mental functioning and mental status. According to Rath, defendant was generally alert and answered virtually all of Rath’s questions, although Rath found defendant’s affect to be flat. Rath and defendant discussed some of defendant’s medical, school, and family history. They discussed some of the details regarding defendant’s killing of Melissa and the previous incident occurring at her house. Rath found no indication defendant was insane, had brain damage, suffered any deficits in cognitive function or had any major mental illness. Defendant scored high on social introversion and depression on the Minnesota Multiphasic Personality Inventory (MMPI) test administered by Rath. Defendant’s MMPI responses indicated he had low energy, particularly for a 20-year-old man. His MMPI score was statistically elevated on the psychopathic deviant scale, but defendant did not meet the diagnostic criteria for a sociopath.
Melody Morris, a nurse living next door to the Lintons, testified that defendant was socially awkward and that she suspected defendant was physically abused by his father.
Dr. Cecil Whiting, a licensed psychologist, performed a psychological evaluation of defendant in 1997, three years after Melissa’s death. Whiting spent 15 hours with defendant during six meetings and administered several psychological tests to him, including a version of the MMPI and the Luria-Nebraska Neuropsychological Battery. Whiting listened to defendant’s interviews with the detectives and Dr. Rath, reviewed Rath’s written report and defendant’s school and medical records, and spoke to some of defendant’s family members.
Dr. Whiting was critical of Dr. Rath’s interview methods and results, although he felt Rath’s testing supported his own diagnosis. Whiting concluded defendant had neuropsychological impairment and suffered from depression, social phobia (manic panic disorder with manic attacks based on right temporal lobe damage), and avoidant personality disorder featuring social phobia and panic attacks. The most prominent part of defendant’s personality was self-isolation. According to Whiting, defendant’s social introversion and low level of energy may have lowered his ability to withstand the pressures of interrogation and increased his suggestibility.
Dr. Whiting opined defendant’s statements during his interviews with police about his loss of perception of time and fear during the killing of Melissa, as well as his inability to fully recall the earlier incident at the Middleton home, were consistent with his suffering a panic attack during both the killing and the prior incident. Whiting testified that a person experiencing a panic attack rarely can describe everything that was happening at the time. Such a person may fill in the blank spaces of his or her memory with a description of what logically should have happened.
3. The prosecution’s rebuttal case
Linda Middleton was recalled and testified that the button and zipper on Melissa’s shorts were in working order when she last saw them and that Melissa did not have the habit of wearing clothes in disrepair.
Robert Middleton was recalled and testified that the cord of his headphones was not damaged before Melissa’s death.
B. Penalty phase evidence
1. The prosecution’s case
Both of Melissa’s parents, Linda and Robert Middleton, testified about Melissa’s sweet and friendly personality, musical talent, and interests in horseback riding, bicycling, Girl Scouts, camping, and dancing. They testified about how hard her death was on them, their son (Melissa’s older brother), and Melissa’s grandparents. They testified to a number of fond memories of Melissa and their regret that they will never see her graduate, marry, or become a teacher. They no longer celebrate Thanksgiving or Christmas. Robert lives with images of Melissa being hurt and pleading for her life. He feels guilty about not protecting her and thinking that the prior assault had been a nightmare. The Middletons sought psychiatric assistance for a year after the murder and tried different support groups until they found a group of parents of murdered children with whom they felt comfortable. Their son moved to Washington State and said he would never be able to live in California again.
Two of Melissa’s close school friends testified concerning the impact of her murder on them. They testified that Melissa was a very loving and cheerful person who always tried to make others feel better. They gave examples of the fun they had together. They testified to the shock and fear they felt when they learned of her murder, and said they still miss her.
The Christmas parade at Melissa’s middle school was dedicated to Melissa after her death. The school also recognized her with a memorial plaque beneath the school flagpole and an empty chair at graduation, on which students placed flowers.
The prosecution presented 13 still photographs that showed Melissa at various stages of her life, the memorial plaque at her school, and the empty chair at graduation.
2. The defense case
The defense presented the testimony of the two school psychologists who evaluated defendant when he was in kindergarten and when he was in third grade. Both described defendant’s behavior and opined that defendant was a significantly emotionally disturbed child. They testified that children with such problems identified so early in life have a high probability of continuing to experience them into adulthood.
Defendant was in a special education class for emotionally disturbed children for both second and third grade. His teacher testified to defendant’s withdrawn nature and social isolation. Defendant was one of the more disturbed children — in the top five — that she had encountered in her career. She related an incident of suspected physical abuse of defendant by his father.
Although defendant was subsequently transferred to a private school and then to a regular classroom in public school, defendant finished high school in a continuation high school because he fell behind in credits. The lead teacher at the continuation high school testified that defendant continued to be a loner, his only friend being Montero. When defendant graduated, he was unprepared to go on to a four-year college.
The defense established, through the testimony of defendant’s father and other family members, that (a) from an early age defendant was subjected to harsh and inappropriate physical discipline from his father, who had a quick and fiery temper, (b) defendant was very shy, submissive and fearful, (c) although defendant’s parents treated their daughter Stacey preferentially, defendant did not act resentfully of their favoritism, and (d) defendant was not aggressive or violent, but kind and loving. Defendant’s grandmother testified that defendant had matured since his incarceration. She stated that he felt dreadful about Melissa.
The leader of a live action role-playing game club testified regarding defendant’s participation in the club’s weekly games for several years prior to his arrest. Defendant was shy and lacked confidence. He was a follower, who did not handle pressure well. Defendant could be talked into doing something he might not have wanted to do in the first place and then could become convinced it was his own idea.
The custodian of records for the Riverside County Jail testified that the only disciplinary marker defendant received while in jail prior to and during trial in this case was for his possession of dice in violation of facility rules.
II. Guilt Phase Issues
A. The admissibility of defendant’s admissions and confessions
Defendant unsuccessfully moved at his preliminary hearing to suppress his taped-recorded admissions and confessions on the ground that they were coerced by a promise of leniency. He later renewed his suppression motion, claiming his statements to police were involuntary under the totality of the circumstances, that the police and Dr. Rath failed to respect his invocation of his right to remain silent in violation of Miranda, supra, 384 U.S. 436, and that Rath failed to inform him of his rights in violation of Miranda. Defendant’s motion was ultimately heard as a pretrial motion in limine and after an extended evidentiary hearing, it was denied. The trial court found defendant’s statements were freely and voluntarily made and that there was no Miranda violation. The trial court denied defendant’s motion for reconsideration made during the prosecution’s case-in-chief and denied defendant’s new trial motion, which included a claim that his statements were wrongly admitted.
On appeal, defendant contends the trial court violated his rights to due process and against self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the California Constitution, when it overruled his legal challenges to the police interrogation tactics, which he claims vitiated his Miranda waiver, overbore his will and rendered his confessions involuntary. We reject defendant’s contentions.
1. Defendant’s claim regarding the interview in his bedroom
Defendant first contends his interrogation by Detective Stotz and Deputy District Attorney Mitchell in his bedroom on the evening of the killing was custodial and because he was not read and did not waive his Miranda rights, his responses should have been suppressed.
a. Additional factual background
Detective Stotz first spoke with defendant on the day of the killing for about 10 minutes at defendant’s front door. Stotz went on to canvass other neighbors. He learned that Melissa had confided in a 13-year-old neighbor that, two or three weeks before the murder, defendant had entered the Middleton home around midnight, tried to rape Melissa and then choked her.
Detective Stotz returned to defendant’s home with Detective Lynn, where they spoke with defendant and his sister Stacey. After defendant misrepresented the level of his acquaintance with Melissa, Lynn asked Stacey to step away from defendant so he could talk to her in private. Stotz stayed with defendant and continued to talk with him. Stotz again questioned defendant about his relationship with Melissa and asked defendant if he knew anything about the alleged prior attack on Melissa. Defendant initially denied any knowledge of the alleged prior attack, but later said he thought he knew what Stotz was referring to. Defendant told Stotz about an incident, which he thought occurred two or three weeks earlier, where he woke up in his front yard around midnight wearing jeans and underwear, but no shirt or socks.
Detective Stotz returned to the Linton home around 8:00 p.m., accompanied by Mitchell, who was identified to defendant as a deputy district attorney. Mitchell was wearing a suit and tie. Stotz was in plain clothes. Stotz and Mitchell asked defendant to speak with them a little more, making it clear that defendant was not required to speak with them and that defendant was not under arrest. Defendant agreed to speak with them and invited them into his house. Defendant wanted to speak to Stotz and Mitchell away from his parents. Defendant led Stotz and Mitchell back into his bedroom, where all three sat, Stotz and Mitchell in chairs next to each other, and defendant in a chair facing them, four to five feet away. Defendant was not handcuffed or restrained. Stotz repeated that defendant was not under arrest and that he was not required to speak with them.
During the ensuing interview, which Detective Stotz covertly tape-recorded by means of a microcassette recorder in his pocket, defendant denied seeing Melissa on the day of the killing. He denied any involvement in her death. When Stotz returned to the subject of the prior incident of sleepwalking that defendant had earlier recounted, defendant confirmed he had woken up outside of his house two or three weeks earlier, standing there in his pants and underwear. He stated that this occurred about the same time as he last saw Melissa. When Deputy District Attorney Mitchell asked defendant what he had heard happened to Melissa, defendant asserted Stotz had told him that Melissa was strangled with a cord, that she was found dead on the floor of her parent’s bedroom, and that there were some fingerprints. Defendant denied speaking to anyone besides Stotz. The interview concluded after approximately a half-hour with defendant’s agreement to take a polygraph test and to speak with investigators again the next day.
Defendant did not challenge the admissibility of the statements he made during the bedroom interview on the ground that the interview was custodial for purposes of Miranda. As a consequence, the theory was not litigated and no opportunity was presented to the trial court to resolve any material factual disputes and make necessary factual findings. In fact, defense counsel was not merely silent regarding this issue; in response to trial court comments about defendant being questioned in his bedroom, defense counsel affirmatively conceded defendant was not in custody at the time. Accordingly, defendant has waived his claim that the interview of him in his bedroom constituted custodial interrogation in violation of Miranda. (People v. Cruz (2008) 44 Cal.4th 636, 669; People v. Combs (2004) 34 Cal.4th 821, 845.)
Defendant argues we should nevertheless consider the merits of his claim because it asserts a deprivation of his fundamental constitutional rights. (People v. Vera (1997) 15 Cal.4th 269, 277.) As we have recently explained, however, the dictum in Vera on which defendant relies “was not intended to provide defendants with an ‘end run’ around the forfeiture rule, ” but was limited to a narrow class of constitutional rights, none of which are involved here. (People v. Tully (2012) 54 Cal.4th 952, 980, fn. 9.)
Defendant asserts that, if a waiver is found, his counsel’s concession of the issue had no tactical basis and therefore amounted to ineffective assistance of trial counsel. To establish ineffective assistance, defendant must show both that his counsel’s performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Defendant fails to establish any deficient performance by his counsel on the record before us.
“An interrogation is custodial, for purposes of requiring advisements under Miranda, when ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” (People v. Moore (2011) 51 Cal.4th 386, 394-395, quoting Miranda, supra, 384 U.S. at p. 444.) Whether a person is in custody is an objective test; the pertinent question being whether the person was formally arrested or subject to a restraint on freedom of movement of the degree associated with a formal arrest. (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) “[C]ustody must be determined based on how a reasonable person in the suspect’s situation would perceive his circumstances.” (Yarborough v. Alvarado (2004) 541 U.S. 652, 662.)
The record on appeal reflects that Detective Stotz spoke with defendant twice at his front door as part of a canvass of the neighborhood after Melissa was found dead in her parents’ bedroom. Defendant appeared nervous, misrepresented his prior interaction with Melissa, had suspicious injuries on his arm, and connected himself to the prior nighttime incident with Melissa by offering his recollection of himself sleepwalking. Obviously Stotz’s suspicions were aroused, but Miranda warnings are not required simply because a person has become a suspect in the officer’s mind. (Oregon v. Mathiason (1977) 429 U.S. 492, 495; People v. Moore, supra, 51 Cal.4th at p. 402.)
Detective Stotz returned with Deputy District Attorney Mitchell to the Linton home around 8:00 p.m. Stotz and Mitchell were not dressed in a manner that asserted official authority. After Mitchell identified himself to defendant, they asked to speak with him, making it clear that defendant did not have to do so and that he was not under arrest. Defendant invited them into his house, taking them into his bedroom. There is no evidence that either Stotz or Mitchell was armed, or if armed, that any weapon was visible to defendant. There is no evidence that they blocked defendant’s exit from the bedroom to which defendant took them. Defendant was not restrained. All three of them sat in chairs. Stotz and Mitchell repeated that defendant was under no obligation to speak to them and that he was not under arrest. Stotz and Mitchell proceeded to talk with defendant for about a half-hour. The nature of their questioning does not appear to have been aggressive or particularly confrontational. (See People v. Stansbury (1993) 4 Cal.4th 1017, 1050, revd. on other grounds in Stansbury v. California (1994) 511 U.S. 318, 325-326; see also People v. Lopez (1985) 163 Cal.App.3d 602, 608 & fn. 4.) A reasonable person in defendant’s situation would have understood he was free to stop the interview and ask Stotz and Mitchell to leave at any time. Defendant was not in custody.
Defendant’s argument that the totality of the circumstances here is analogous to United States v. Craighead (9th Cir. 2008) 539 F.3d 1073 lacks merit. In Craighead, FBI agents obtained a warrant to search Craighead’s home for child pornography. (Id. at p. 1078.) Eight law enforcement officers from three different agencies participated in the subsequent search. All of the officers were armed, some wore protective gear, and some unholstered their guns in Craighead’s presence. (Ibid.) Although one of the FBI agents stated that they would like to talk with Craighead, “that he was not under arrest, that any statement he might make would be voluntary, and that he would not be arrested that day regardless of the information he provided, ” she and another officer “directed” Craighead to a cluttered storage room at the back of the house for a private conversation while other officers proceeded with the search of his home. (Ibid.) The second officer, who was dressed in a flak jacket and was visibly armed, stood leaning against the wall near the storage room door, in such a manner as to block Craighead’s exit from the room. (Id. at pp. 1078-1079.) The Ninth Circuit Court of Appeals found the totality of these circumstances “turned the otherwise comfortable and familiar surroundings of the home into ‘a police-dominated atmosphere’ ” that amounted to custody for purposes of Miranda. (United States v. Craighead, supra, at p. 1083.) No similar police-dominated atmosphere was shown here.
Because there appears to have been no sound basis for counsel to have objected to the admission of defendant’s bedroom statements on the grounds of a Miranda violation, no deficient performance by counsel has been established. (People v. Lewis (2001) 26 Cal.4th 334, 359 [“Where ‘there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance.’ ”].)
2. Defendant’s claim regarding his Miranda waiver at the police station
Defendant contends Detective Stotz and Deputy District Attorney Mitchell made a false promise of leniency during their interview of him in his bedroom and that such promise vitiated his subsequent waiver of Miranda rights the next morning. Specifically, defendant claims his Miranda waiver at the police station was not knowing and intelligent and, therefore, was invalid, because it was based on the misrepresentation by Stotz and Mitchell on the previous evening that defendant would not get into trouble for admitting the prior assault on Melissa or admitting a sexual interest in or sexual conduct with Melissa.
a. Additional factual background
During the course of the interview of defendant in his bedroom on the night of Melissa’s death, defendant told Detective Stotz and Deputy District Attorney Mitchell that he had no recent fights or problems with Melissa, but that he had heard Melissa did not like him. Stotz asked defendant why, if Melissa did not like him, she would tell her friends that she and defendant had “messed around.” Stotz asked defendant if he and Melissa had ever kissed and defendant said “[n]o, I never.” Stotz continued, “or made out” and told defendant “you’re not gonna get in trouble for that, y’know, we just wanna know [that].” Defendant asked Stotz: “why wouldn’t I get in trouble for that?” Stotz replied: “Well, because, frankly, because she’s no longer living, y’know. Nothing would happen to you if — if you had kissed her or grabbed her or touched her or even had sex with her. Y’know, at this point she’s — she’s no longer the victim wouldn’t be her. She’s no longer with us. [S]o nothing would happen to you. We just need to know because — okay.” Defendant responded: “Okay. Of course you know I’m not confessing to that.” Stotz and Mitchell both explained that they had a responsibility to inquire.
Later in the interview, Mitchell asked defendant what he had heard happened to Melissa. Defendant provided details regarding the circumstances of Melissa’s death that Stotz had not told him. Defendant denied speaking to anyone else.
Deputy District Attorney Mitchell informed defendant that in order to clear everybody from the neighborhood of suspicion, they were going to ask all the neighbors who were home at the time of the murder to take a polygraph test. When Mitchell started to ask defendant if he was willing to take the test, defendant expressed concern that if he was nervous, the polygraph would be “set off.” Asked if he had something to be nervous about, defendant said he was just very nervous. Detective Stotz assured defendant that he would be told all the questions in advance and have a chance to go over them. Defendant could tell the examiner if he had any concerns.
Mitchell then stated: “Like, if — if you and Melissa had had some problems sexually in the past and you’re trying to hide that, that might set if off, so you’d have to tell us about that ahead of time. What we’re interested in, the murder, of course, we don’t care about anything else that happened, if you and Melissa, she stopped coming over here, ’kay, that’s something that’s water under the bridge now. We’re looking for only the murderer, if you didn’t do that, take a polygraph and prove it with your background, with her as long as there isn’t something you’re hiding, worried about whether or not they’re gonna ask questions about this one area, if you actually didn’t do the murder but you’re trying to hide this other information or problems that you’ve had with her, that could kind’a skew the results one way or the other.”
Defendant eventually agreed to take a polygraph test and speak with investigators the next day, but asked that his parents not be told about it. He asked to be telephoned the next day after his parents left the house. Defendant continued to deny being at the Middleton house the day of the murder and asserted he had nothing to do with Melissa’s death.
Stotz telephoned defendant the next morning, as arranged, after defendant’s parents left for work. Defendant agreed to meet with investigators. Detectives Lynn and Stotz retrieved defendant from his home in an unmarked car. As noted earlier, during the drive, defendant told the detectives that there was no need for a polygraph test and apologized for wasting their time. He said that he had wanted to turn himself in the previous night, but was not sure he could admit it and he did not want to confess in front of his parents. The officers asked defendant if he was willing to go to the office for a formal interview and he said “Yeah. I’ll tell you everything.”
At the police station, defendant was taken to Detective Lynn’s office while Detective Stotz gathered the equipment necessary for a taped interview. When Stotz returned to the office, Lynn left. Stotz spent a few minutes answering defendant’s questions, one of which was whether defendant would be getting the death penalty. Stotz told defendant that he only made recommendations to the district attorney’s office, that the district attorney’s office actually decided what charges to file and penalties to seek, and that the court determined the penalty. Stotz explained to defendant the interview procedure that would be followed. He then turned on the tape recorder and started the interview by ...