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Filed 11/20/15 P. v. Valladares CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EUSEBIO VALLADARES,

Defendant and Appellant.

 A134585

 (San Mateo County

 Super. Ct. No. SC071474A)

Defendant Eusebio Valladares appeals from the judgment following his conviction 

for 16 counts of lewd and lascivious conduct against a child under 14 years of age, and 

one count of unlawful sexual intercourse or sodomy against a victim 10 years old or 

younger. He argues that statements he made to police and used against him at trial were 

obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and that to 

the extent his Miranda-related arguments were not made to the trial court, his trial 

counsel was ineffective for failing to raise them. He also argues that his constitutional

right to a public trial was violated when the trial judge locked the courtroom while

instructing the jury. We will affirm the judgment. 

BACKGROUND

Defendant, age 61 at the time of his arrest, lived with his wife in a rented room in 

a house in Redwood City. The owner of the house also lived there, as did her 10-year-old 

and 8-year-old daughters, who are two of the four young victims in this case.

The incidents in this case came to light on March 13, 2010, when an 11-year-old 

girl reported to her mother about sexual contact with defendant that occurred when the 
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girl was visiting the landlord’s 10-year-old and 8-year-old daughters two days earlier. 

Officer Jason Gamble of the Redwood City Police Department spoke to two of the girls 

on the evening of March 13, apparently in response to a report of child abuse. Afterward, 

Gamble and Officer Oscar Poveda contacted defendant at the house he resided in, either 

in his bedroom or in a common area of the house. Poveda asked defendant in Spanish if 

he would voluntarily come down to the police station to talk about the reason he and 

Gamble were at the house. Poveda testified at trial that defendant was cooperative and 

said he wanted to come to the police station and tell his story. 

Defendant was transported to the police station in the front passenger seat of a 

patrol car. At the police station, defendant went into an interview room with Poveda and 

Gamble. The record on appeal contains almost no details about what happened between 

the time defendant left his house and entered the interview room. 

Defendant’s Statements to Police

A timestamp on a video of the interview indicates the questioning began at 1:31 

a.m. on March 14. The video shows that defendant was not handcuffed or otherwise 

restrained. During the interview, Poveda asked defendant questions in Spanish. Gamble

would sometimes ask a question in English, which Poveda would translate to Spanish for 

defendant. Defendant responded in Spanish, and Poveda translated defendant’s answers 

to English. 

The following description of the interview is taken from a written transcript 

submitted to the trial court in connection with defendant’s motion to suppress his 

statements. The transcript contains a Spanish transcription and English translation of the 

interview. 

Poveda began the interview by telling defendant the door behind defendant was 

open and that he was free to leave at anytime. Defendant said he understood. The video 

shows that Poveda demonstrated to defendant that the door was unlocked and that

defendant stood up and observed Poveda. After briefly talking to defendant about his 

background, Poveda asked defendant if he knew why the police wanted to talk to him. 

Defendant said he heard the police were called because “supposedly, I had kissed the 
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girl.” Defendant then described an incident at his house the previous Thursday where the 

owner’s 10-year-old daughter and another girl pushed defendant back-and-forth into each 

other, causing defendant to touch one girl’s breasts and the other girl’s leg or groin area. 

Defendant also told the officers that when he used the bathroom, the “children” would 

touch him “In front, and even from behind,” although it is unclear if defendant was 

referring to the previous Thursday or another time. The officers expressed skepticism 

over defendant’s story, with Poveda asking defendant if other people would think he was 

telling the truth. 

Referring again to the previous Thursday, Poveda asked defendant “at what time 

did you take out your penis and show it to the girls?” Defendant denied exposing his 

penis. Poveda said he thought defendant was lying and could tell by defendant’s body 

language. Defendant responded that “I’m going to talk to you directly.” 

Defendant explained that the owner of the house would send her 10-year-old 

daughter into defendant’s bedroom “completely naked” to ask for money. Poveda asked 

defendant for more details and was confused by defendant’s responses, telling defendant 

“I’m asking you a question!” and “Look at me!”1 Defendant said he saw the daughter 

without her clothes on “a lot of times” and, after being told to be more specific, said “five 

times.” Poveda also asked how many times “did the little girls see you naked?” 

Defendant responded at least two or three times. 

Poveda returned to asking defendant about the incident from Thursday, with 

defendant explaining again that the two girls pushed him back and forth. Defendant said 

he touched one girl’s legs and the other girl’s breasts during this incident. Poveda told 

defendant that he thought defendant was lying and asked defendant if he wanted to take a 

lie detector test. Defendant said he did not know if he would be willing to take a lie 

detector test. Poveda responded that “we think that you’re not telling the whole truth.”

He then told defendant that “we’re not saying that you’re under arrest, Ok? But, no, and 

 

1 Although the transcript of the interview attaches exclamation points to Poveda’s 

statements, the video shows that he did not significantly raise his voice. 
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you can leave whenever you want, but we want to know the truth.” Defendant said “It’s 

difficult to get to that place” and “What are the motives? What are the motives from the 

beginning? For someone.” Poveda did not understand these responses. He eventually 

asked defendant, “part of what you’re saying is the truth. Right?” Defendant responded 

“Uh, yes.” Poveda asked, “what is the thing that’s not the truth, that you said?” Poveda 

also told defendant that “seeing you, how you’re moving and everything, and talking, we 

know that you’re not telling the truth.”

Defendant then told Poveda that the owner’s 10-year-old daughter would come to 

him and ask for money in return for sex. Defendant then admitted he had sex with the 

owner’s 10-year-old daughter. Poveda asked defendant when this occurred, and 

defendant responded “about a month ago. But I really don’t remember.” Poveda asked 

defendant if he put his penis in her vagina, and defendant said he did. 

Officer Gamble briefly left the room and, upon returning, told Officer Poveda to 

read defendant his Miranda rights, which Poveda proceeded to do in Spanish. This 

occurred one hour and three minutes after the questioning began. Poveda (referred to as 

“Interpreter” in the transcript) explained defendant’s right to an attorney at no cost as 

follows: 

“INTERPRETER: If you cannot pay for an attorney one will be given to you at no 

cost, uh, from any . . . if you talk . . . [Clears his throat] . . . before we ask, ask any 

questions if you let us. You understand? Yes or no?

“VALLADARES: Any questions. 

“INTERPRETER: If you cannot pay for an attorney, one will be given to you at 

no cost from any . . . we ask any questions if you let us. You understand? 

“VALLADARES: Yes.” 

Defendant was then given a written form that listed his Miranda rights in Spanish. 

A translated version of the Spanish form, which was offered in evidence at the 

suppression hearing, listed the Miranda warnings as follows:

“1. You have the right to remain silent. [¶] Do you understand? 
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“2. Anything that you say can be used against you in a court of law. [¶] Do 

you understand? 

“3. You have the right to an attorney present before and during any questions 

that are asked of you. [¶] Do you understand? 

“4. If you do not have means to pay for an attorney, you will be given one 

without cost before being asked any questions, if you so desire. [¶] Do you understand?” 

Next to each warning was a space where defendant could mark “Si” or “No” 

regarding whether he understood. 

Referring to the form he had given defendant, Poveda said “Those are the 

questions I told you about regarding your rights” and “Read it and mark yes, if you 

understand.” After defendant read the third warning, the following colloquy ensued: 

“VALLADARES: “I can’t answer this one because I don’t know how much they 

are going to charge me.

“INTERPRETER: No. Read, read that one too.

“VALLADARES: Ok. 

“INTERPRETER: More, more or less it’s what you read and understand if, if you 

under-, you would be within your, your rights, you mark yes. And you can sign it here 

please and put your name down.”

“VALLADARES: My signature over here?

“INTERPRETER: Yes, sign here and put your name. And, um, if you understand 

this right. Yes or no?

“VALLADARES: Yes. 

“INTERPRETER: Ok.” 

The written form shows that defendant wrote “Si” in the space next to each 

admonition asking whether he understood his rights. Defendant also signed the bottom of 

the form in a space designated for his signature. 

Poveda then continued to question defendant about having sex with the landlord’s

10-year-old daughter. Defendant stated they first had sex about two years earlier. He 

said the last time they had sex was 15 days earlier, and that he paid her 20 dollars. He 
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also described an incident in which a group of girls, including three of the victims in this 

case, threw defendant onto his bed, then tried to take off his pants and orally copulate 

him. 

Poveda ended the interview by asking defendant if he wanted to write an apology 

letter to one of the victims. Defendant agreed, and wrote a letter stating, “I feel very bad 

for what happened to your friend and [one of the victim’s]. I won’t do it again.” 

Defendant was arrested after the interview. 

Two days later on March 16, defendant was interviewed by David Cirina, a 

Redwood City police detective. Cirina spoke to defendant primarily in Spanish. Cirina 

advised defendant of his Miranda rights. Defendant told Cirina that he understood each 

of the rights and waived them. During the subsequent questioning, defendant said he had 

sexual intercourse with his landlord’s 10-year old daughter on three separate occasions, 

and also admitted to having sexual intercourse with the landlord’s 8-year-old daughter. 

He also said he engaged in a sexual act with another 10-year-old girl. 

Pretrial Proceedings

Defendant was charged with 28 counts of lewd and lascivious conduct against a 

child under 14 years of age (Pen. Code, § 288, subd. (a)),2one count of lewd and 

lascivious conduct against a child under 14 years of age by use of force or fear (§ 288, 

subd. (b)), and one count of unlawful sexual intercourse or sodomy against a victim 10 

years old or younger (§ 288.7, subd. (a)). There were four alleged victims, including the 

three girls with whom defendant admitted to engaging in sexual acts when questioned by 

police.

Before trial, defendant’s counsel made an oral motion “to suppress [defendant’s] 

statement as it was in violation of Miranda.” The motion focused solely on the March 14 

interview. Defendant’s counsel stated: “The Miranda admonition given by the police 

officer was garbled and confusing, and I believe the Court already has a transcript of the 

Miranda given. And in light of the garbled nature of the admonition, we think that also, 

 

2 All further unspecified statutory references are to the Penal Code.
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in effect, the later written admonition that my client signed, especially since the transcript 

shows that he was confused about whether or not he wouldn’t know how much it would 

cost for an attorney, so––and in addition to that, we’re moving to suppress his statement, 

and my client would like to testify and explain to the Court how it was that his statement 

was involuntarily [sic] because of the pressure he was put under by the police.” 

Defendant then testified at the suppression hearing. When his attorney asked “did 

the Redwood City Police pressure you into making a statement?”, he responded: “Not 

pressure, but the motive of that statement and the four signatures that I signed in the 

form––my spirits were down. I was not competent very well to listen very well.” 

Regarding the written form that he signed on March 14, defendant said that a police 

officer “made me sign.” However, defendant then said that the officer “did not force me, 

but he did speak to me very fast with a very forceful way about him. His character was 

somewhat in a desperate way was making me nervous.” Defendant described how the 

officer explained the Miranda form to defendant and said the officer told him “if you did 

this, say yes. And if you did not, say no.” Although defendant acknowledged on the 

written form that he understood each of his Miranda rights and then signed the bottom of 

the form, defendant testified that he did not read the Miranda rights listed on the form. 

He said the officer’s “character was quite strong” and “[v]ery quickly he said sign, sign 

it. And that is the reason or the motive why I signed.” Defendant also said that the 

police lied to get him out of his home without being prepared ahead of time with an 

attorney. Defendant, however, was unable to state what the specific lie was. After 

defendant’s counsel finished his questioning, he offered in evidence the transcript of the 

March 14 interrogation and the written Miranda form. 

The prosecutor did not cross-examine defendant. The prosecutor presented the 

People’s case by way of an offer of proof,

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stating that defendant was contacted at his 

house by Officers Poveda and Gamble, and asked by a Spanish-speaking officer whether 

 

3

The prosecutor began by noting that “just for the record, the Court has allowed 

me to proceed by way of offers of proof[.]” The reason for this procedure is not apparent 

in the record and was not objected to by defendant’s counsel. 
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he would accompany them to the Redwood City police station. Defendant agreed, and 

was driven to the police station in the front passenger seat of a patrol car, “meaning that 

he was able to unlock and exit that door, unlike the rear seat of a police car.” At the 

police station, the officers pointed out the exits and told defendant that although a key is 

required to enter the station, no key is required to leave. Once they were in the 

interrogation room, they offered defendant water and reminded him he was free to leave. 

The prosecutor then argued that there were no defects with the oral Miranda 

warnings and that the Miranda warnings in the written form were “perfect.” The 

prosecutor also argued that, by defendant’s own admission, he was never pressured by 

the officers, and that there was no basis to find any coercion on the part of the officers. 

Defendant’s counsel did not present further evidence or argument in response. 

The trial court denied the suppression motion. The court stated that it had

reviewed the transcript of the March 14 interrogation and the written Miranda form 

signed by defendant and considered defendant’s testimony. The court noted that 

defendant, by his own admission, “indicate[d] that the police did not pressure him.” With 

respect to the written Miranda form, the court said that defendant admitted he was not 

forced to sign the form, and that “[w]ith respect to the particular form itself, [defendant] 

indicated that the officer said, if you did this, say yes. If you did not do this, say no. 

There was nothing by that particular statement that would indicate to the Court there was

any coercion taking place.” The court said that it “can find no actions on the part of the 

police that would seem to indicate in the slightest that they coerced [defendant] into 

either waiving his rights verbally . . . or in signing the form . . . .” As to defendant’s 

statement that the officers wanted him to sign quickly, the trial court said it “does not find 

that to be supported by the evidence.” The court concluded: “Based on all of the above 

and based on the totality of the circumstances, the Court does not find that the officers 

engaged in any inappropriate behavior. The Court does not find the actions of the 

officers amounted to coercion. [¶] In fact, the Court finds that the waiver of the rights on 

behalf of [defendant] was voluntary and consensual. [¶] And based upon all of that, the 

Court will deny the defense motion to exclude [defendant’s] statement.” 
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Trial Proceedings

A jury trial commenced on November 21, 2011. After the close of evidence, the 

trial court granted the prosecution’s motion to dismiss two of the counts for lewd and 

lascivious conduct. 

While the jury was deliberating, defendant moved for a mistrial upon learning that 

the courtroom had been locked when the jury was instructed earlier that day. The trial 

court denied the motion. 

The jury found defendant guilty of 16 counts of lewd and lascivious conduct 

against a child under 14 years of age (§ 288, subd. (a)), and one count of unlawful sexual 

intercourse or sodomy against a victim 10 years old or younger (§ 288.7, subd. (a)). It 

also found true the multiple-victim allegation attendant to each of the counts. The jury 

was unable to reach a verdict as to four of the counts for lewd and lascivious conduct. 

The court declared a mistrial on those counts and granted the prosecution’s motion to 

dismiss them. As to the remaining counts, the jury acquitted defendant of lewd and 

lascivious conduct, but convicted him of three lesser-included offenses: assault (§ 240), 

battery (§ 242), and attempted lewd and lascivious conduct (§§ 664; 288, subd. (a)). 

Prior to sentencing, the trial court granted the prosecution’s motion to dismiss those 

remaining counts in the interest of justice. 

The trial court sentenced defendant to 70 years to life in prison. He timely filed 

this appeal. 

DISCUSSION

I. Admission of Defendant’s Statements

Defendant argues that the statements he made to police on March 14 and March 16 

were obtained in violation of Miranda and his Fifth Amendment rights, and should have 

been suppressed. He argues that the statements he made on March 14 prior to receiving 

Miranda warnings should have been suppressed because he was subject to custodial 

interrogation during that time. He argues that his post-warning statements on March 14 

should have been suppressed because the Miranda warnings eventually read to him were 

inadequate, and he did not knowingly waive them. Finally, he argues that his post-
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warning statements on March 14 and all of his statements on March 16 should have been 

suppressed because they were obtained as part of a two-step interrogation technique 

prohibited by the United States Supreme Court’s opinion in Missouri v. Seibert (2004) 

542 U.S. 600 (Seibert). Defendant argues that to the extent these arguments were not 

raised to the trial court, his trial counsel was ineffective for failing to raise them. 

A. Standard of Review

“The rule of Miranda is well established: ‘[W]hen an individual is taken into 

custody or otherwise deprived of his freedom by the authorities in any significant way 

and is subjected to questioning, the privilege against self-incrimination is jeopardized. 

Procedural safeguards must be employed to protect the privilege, and unless other fully 

effective means are adopted to notify the person of his right of silence and to assure that 

the exercise of the right will be scrupulously honored, the following measures are 

required. He must be warned prior to any questioning that he has the right to remain 

silent, that anything he says can be used against him in a court of law, that he has the 

right to the presence of an attorney, and that if he cannot afford an attorney one will be 

appointed for him prior to any questioning if he so desires. Opportunity to exercise these 

rights must be afforded to him throughout the interrogation. After such warnings have 

been given, and such opportunity afforded him, the individual may knowingly and 

intelligently waive these rights and agree to answer questions or make a statement. But 

unless and until such warnings and waiver are demonstrated by the prosecution at trial, 

no evidence obtained as a result of interrogation can be used against him.’ [Citation.]” 

(People v. Jennings (1988) 46 Cal.3d 963, 976.) “In reviewing a trial court’s Miranda

ruling, we accept the court’s resolution of disputed facts and inferences and its 

evaluations of credibility, if supported by substantial evidence, and we independently 

determine, from the undisputed facts and facts properly found by the trial court, whether 

the challenged statement was illegally obtained. [Citation.]” (People v. Bacon (2010) 50 

Cal.4th 1082, 1105.) 

A defendant arguing on appeal that his trial counsel was ineffective for failing to 

raise an argument has the burden of showing that trial counsel’s representation 
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“ ‘ “ ‘ “fell below an objective standard of reasonableness . . . under prevailing 

professional norms.” ’ ” ’ ” (People v. Vines (2011) 51 Cal.4th 830, 875.) “Reviewing 

courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective 

assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct 

falls within the wide range of reasonable professional assistance.’ [Citation.]” (People v. 

Lucas (1995) 12 Cal.4th 415, 436-437.) “ ‘ “ ‘Reviewing courts will reverse convictions 

[on direct appeal] on the ground of inadequate counsel only if the record on appeal 

affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or 

omission.’ ” [Citation.]’ [Citation.] If the record on appeal ‘ “ ‘sheds no light on why 

counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked 

for an explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation,’ the claim on appeal must be rejected,” ’ and the ‘claim of 

ineffective assistance in such a case is more appropriately decided in a habeas corpus 

proceeding.’ [Citation.]” (People v. Vines, supra, 51 Cal.4th at p. 876.) “Counsel does 

not render ineffective assistance by failing to make motions or objections that counsel 

reasonably determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387.) 

B. Defendant’s Pre-Miranda Statements on March 14

Defendant argues that prior to any admission he made at the police station on 

March 14, he was “subjected to custodial interrogation requiring Miranda warnings be 

given.” As such, he argues that the statements he made before he was read his Miranda 

rights approximately one hour into the interview should have been suppressed. 

Defendant concedes that his trial counsel did not raise this argument to the trial court, but 

argues that trial counsel’s failure to do so constitutes ineffective assistance of counsel.

The Attorney General argues that defendant has forfeited this argument on appeal 

because it was not raised to the trial court. The Attorney General also argues that 

defendant has not shown his trial counsel was ineffective for failing to raise this argument 

because the argument would have failed. The Attorney General does not dispute that 

defendant was subject to interrogation once at the police station, but argues that he was 
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not in custody when the interview began and, as such, the officers were not required to 

read him his rights earlier than they did. 

Because defendant did not argue to the trial court that he was in custody before 

making any admissions, this argument is forfeited on appeal. (People v. Haley (2004) 34

Cal.4th 283, 300.) Furthermore, we cannot conclude on the record before us that 

defendant’s trial counsel was ineffective for failing to argue that defendant was in 

custody prior to making any admissions. 

“An appellate court should not declare that a police officer acted unlawfully, 

suppress relevant evidence, set aside a jury verdict, and brand a defense attorney 

incompetent unless it can be truly confident all the relevant facts have been developed 

and the police and prosecution had a full opportunity to defend the admissibility of the 

evidence.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) The relevant facts for 

determining whether defendant was in custody relate to whether a reasonable person in 

defendant’s position would believe there was “a restraint on [his] freedom of movement 

of the degree associated with a formal arrest.” (People v. Moore (2011) 51 Cal.4th 386, 

395.) The record on appeal is lacking information that is critical to this analysis because 

it contains hardly any facts about what happened between the time police contacted 

defendant at his house on the evening of March 13 and interviewed him on the morning 

of March 14. Officers Poveda and Gamble did not testify at the suppression hearing, and 

defendant’s testimony during the hearing was primarily focused on the interview with 

police, not what happened before the interview.

4

 Defendant’s testimony during the 

 

4

Poveda and Gamble testified at trial, but their testimony shed little light on what 

happened before they and defendant entered the interview room. Poveda testified that he 

contacted defendant in his bedroom and asked him in Spanish if he would voluntarily 

come down to the police station “and talk to us about the reason we were there,” although 

Poveda did not testify what the reason was. Defendant responded that he wanted to tell 

his side of his story, grabbed his bible, and rode with Poveda in a patrol car to the police 

station. Gamble testified that he and Poveda went to defendant’s house in response to a 

report of child abuse and encountered defendant outside of his bedroom. Defendant was 

not placed under arrest at the house. He was transported to the police station in the front 
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suppression hearing was primarily focused on the interview with police, not what 

happened before the interview. As such, we know very little about what happened at 

defendant’s house after police contacted him, in the police car, or at the police station 

before defendant entered the interview room. 

It could be that trial counsel discovered that defendant was cooperating with the 

officers before the interview and wanted to tell his side of the story to the officers, as

Officer Poveda testified was the case at trial. This would be a “satisfactory explanation” 

for trial counsel’s decision not to argue that defendant was in custody. (People v. Vines, 

supra, 51 Cal.4th at p. 875-876.) But it could also be the case that trial counsel had no 

good reason for failing to argue that defendant was in custody. The bottom line is that we 

do not know. In such a situation, we must reject defendant’s contention that his trial 

counsel was ineffective for not making a custody argument. (People v. Mendoza Tello, 

supra, 15 Cal.4th at p. 267.) The claim is “more appropriately decided in a habeas corpus 

proceeding.” (Ibid.)

C. The Miranda Warnings on March 14

Defendant argues on appeal that he did not receive adequate Miranda warnings 

during the March 14 questioning, and that he did not knowingly waive his rights. 

Focusing specifically on his right to an attorney at no cost, defendant contends that the 

verbal warning was given “in a way that no reasonable person could understand.” He 

further contends that his “lack of understanding that he was entitled to a free lawyer 

before any questioning could begin was obvious” because as he was reading the written 

Miranda form, he said “I can’t answer this one because I don’t know how much they are 

going to charge me.” The Attorney General contends that this argument is without merit

because defendant was adequately informed of his rights both orally and in writing, and 

indicated that he understood his rights. 

 

seat of Poveda’s patrol car, which could be unlocked from the inside, and entered the 

police station through the front doors with the officers.
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“In determining whether police officers adequately conveyed the four [Miranda]

warnings . . . reviewing courts are not required to examine the words employed ‘as if 

construing a will or defining the terms of an easement. The inquiry is simply whether the 

warnings reasonably “conve[y] to [a suspect] his rights as required by Miranda.” ’

[Citations.]” (Florida v. Powell (2010) 559 U.S. 50, 60.) “ ‘[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.]” (People v. Williams (2010) 49 Cal.4th 405, 425.) The waiver must have 

been “ ‘ “made with a full awareness of both the nature of the right being abandoned and 

the consequences of the decision to abandon it.” ’ [Citation.]” (People v. Gonzales

(2012) 54 Cal.4th 1234, 1269.) The California Supreme Court “has long recognized that 

a defendant’s decision to answer questions after indicating that he or she understands the 

Miranda rights may support a finding of implied waiver, under the totality of the 

circumstances.” (Ibid.)

Here, the police reasonably conveyed to defendant that he had the right to an 

attorney present before and during any questioning, and that he would be given an 

attorney at no cost if he could not afford one. Officer Poveda, albeit inartfully, verbally 

admonished defendant as to these rights. When asked if he understood these rights, 

defendant responded “Yes.” Any ambiguity with the verbal admonition was clarified by 

the written Miranda form provided to defendant, which was unequivocal. The form 

stated in Spanish: “You have the right to have an attorney present before and during any 

questions that are asked of you.” Defendant appeared to hesitate after reading this right 

and told Poveda, “I can’t answer this one because I don’t know how much they are going 

to charge me.” Poveda addressed defendant’s question by directing him to the final 

admonition on the form, telling him “No. Read, read that one too.” This last admonition 

was unequivocal. It stated in Spanish: “If you do not have means to pay for an attorney, 

you will be given one without cost before being asked any questions, if you so desire.” 

Poveda asked defendant “if you understand this right. Yes or no?” Defendant orally 
15

responded “Yes.” Defendant then indicated on the form that he understood all of his 

rights, including his right to an attorney present during questioning, and his right to an 

attorney at no cost should he be unable to afford one. These circumstances establish that 

defendant understood his Miranda rights, including his right to an attorney at no cost. 

Because defendant continued speaking with the officers after acknowledging his Miranda 

rights, the record supports a finding that he waived those rights. (People v. Gonzales, 

supra, 54 Cal.4th at p. 1269.)5

D. Defendant’s March 14 Post-Miranda Statements and March 16 Statements

Defendant argues that the statements he made after receiving Miranda warnings 

on March 14 and all of his statements on March 16 should have been suppressed because 

they were obtained as part of a two-step interrogation technique prohibited by the United 

States Supreme Court’s opinion in Seibert, supra, 542 U.S. 600. He concedes that this 

argument was not raised to the trial court, but argues that trial counsel’s failure to make 

this argument constituted ineffective assistance of counsel. 

The Attorney General argues that defendant’s Seibert argument is forfeited on 

appeal because it was never raised to the trial court. The Attorney General also argues 

that defendant’s trial counsel was not ineffective for failing to make a Seibert argument 

 

5 Our conclusion that defendant knowingly waived his Miranda rights is bolstered 

by the video of the March 14 interview, which is part of the record on appeal and was 

shown in large part to the jury, but apparently not considered in connection with

defendant’s suppression motion. The video shows defendant was presented with the 

written form, took several seconds to read the first two warnings, and acknowledged on 

the form that he understood those warnings. After reading the third warning––the right to 

an attorney—defendant said, “I can’t answer this one because I don’t know how much 

they are going to charge me.” When Poveda responded, “No. Read, read that one too,” 

he was apparently referring defendant to the fourth warning––the right to an attorney at 

no cost. Defendant took several seconds to read that warning, and then acknowledged on 

the form that he understood it. Realizing that defendant did not acknowledge the third 

warning, Poveda referred him back to it and asked “if you understand this right. Yes or 

no?” Defendant took several seconds to read the third warning again, then signed it. 

Contrary to defendant’s testimony at the suppression hearing, it does not appear that the 

officers rushed defendant as he was reading the form. 
16

because Seibert is inapplicable to the circumstance of the March 14 and March 16 

questioning.

Defendant has forfeited his Seibert argument on appeal because he did not raise it 

to the trial court. (People v. Haley, supra, 34 Cal.4th at p. 300.) We also reject 

defendant’s claim of ineffective assistance of counsel because, as was the case with his 

custody argument, the relevant facts have not been sufficiently developed for us 

determine whether Seibert applies. 

In Seibert, the defendant was arrested on suspicions of murdering a mentally 

disabled child, then subjected to aggressive questioning that was “systematic, exhaustive, 

and managed with psychological skill” without being read Miranda warnings. (Seibert, 

supra, 542 U.S. at p. 616.) After Seibert admitted that she intended for the child to die, 

the police gave her a 20–minute coffee and cigarette break, administered Miranda

warnings, and got her to repeat her admission. (Id. at p. 605.) An officer later testified 

that “he made a ‘conscious decision’ to withhold Miranda warnings, thus resorting to an 

interrogation technique he had been taught: question first, then give the warnings, and 

then repeat the question ‘until I get the answer that she's already provided once.’ ” (Id. at 

pp. 605-606.) 

The United States Supreme Court held that Seibert’s post-warning statements were 

inadmissible. (Seibert, supra, 542 U.S. at p. 617.) A plurality of the court noted that 

Miranda’s purpose was to address “ ‘interrogation practices . . . likely . . . to disable [an 

individual] from making a free and rational choice’ about speaking,” and that “[t]he 

object of question-first is to render Miranda warnings ineffective by waiting for a 

particularly opportune time to give them, after the suspect has already confessed.” (Id. at 

p. 611.) According to the plurality, “[t]he threshold issue when interrogators question 

first and warn later is thus whether it would be reasonable to find that in these 

circumstances the warnings could function ‘effectively’ as Miranda requires.” (Id. at pp. 

611-612.) The plurality concluded that “because the facts here do not reasonably support 

a conclusion that the warnings given could have served their purpose, Seibert's 

postwarning statements are inadmissible.” (Id. at p. 617.) 
17

In a concurring opinion, Justice Kennedy stated that the “plurality opinion is 

correct to conclude that statements obtained through the use of this technique are 

inadmissible.” (Seibert, supra, 542 U.S. at p. 618 (conc. opn. of Kennedy J.).) Justice 

Kennedy, however, believed that the plurality opinion “cuts too broadly” because it 

applied in “case[s] of both intentional and unintentional two-stage interrogations.” (Id. at 

p. 621.) Justice Kennedy stated he “would apply a narrower test applicable only in the 

infrequent case, such as we have here, in which the two-step interrogation technique was 

used in a calculated way to undermine the Miranda warning.” (Id. at p. 622.) He 

concluded that “[w]hen an interrogator uses this deliberate, two-step strategy, predicated 

upon violating Miranda during an extended interview, postwarning statements that are 

related to the substance of prewarning statements must be excluded absent specific, 

curative steps.” (Id. at p. 621.) We agree with the many courts that have determined that 

Justice Kennedy’s concurrence represents Seibert’s holding because he concurred in the 

judgment on the narrowest grounds. (E.g. People v. Camino (2010) 188 Cal.App.4th 

1359, 1370; United States v. Williams (2006) 435 F.3d 1148, 1157.) 

Facts relevant to whether Poveda and Gamble used a “deliberate, two-step 

strategy, predicated upon violating Miranda” have not been developed, at least in the 

record before us on appeal. (Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy 

J.).) Defendant’s trial counsel did not examine Poveda and Gamble during the 

suppression hearing to elicit testimony about their strategy for interviewing defendant. 

Nor is there any evidence regarding how Poveda and Gamble were trained to interview 

potential suspects.6 It is possible that defendant’s trial counsel researched these facts 

before the suppression hearing and concluded that the officers did not use a technique 

that violated Seibert. Or perhaps he never thought of the issue. Since we do not know, it 

 

6 Defendant, citing a law review article, argues that police officers are trained to 

tell suspects they are free to leave an interview in order to avoid giving Miranda 

warnings. Defendant, however, has not cited anything in the record showing that Poveda 

and Gamble were given such training. 
18

would be inappropriate to determine that trial counsel was ineffective for failing to raise a 

Seibert argument. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)

II. The Trial Court’s Locking of the Courtroom During Jury Instructions

Defendant argues that his constitutional right to a public trial was violated when 

the trial judge locked the courtroom while instructing the jury. 

The jury was instructed on the morning of November 28, 2011. The clerk’s 

minutes indicate that the instructions lasted no more than 50 minutes. The minutes and 

the reporter’s transcript contain no indication that the trial judge locked the courtroom 

when the jury was instructed. In the afternoon session on November 28 after the jury was 

excused to deliberate, defendant’s counsel moved for a mistrial. The sum total of the 

record on this issue is as follows:

“THE COURT: All right. And then, Mr. Devoy [defendant’s counsel], I 

understand you have a motion.

“MR. DEVOY: Yes. It’s been reported to me that two attorneys or at least two––

well two . . . [¶] ––attorneys attempted to come in during the morning session and the 

door was locked, and so I’m moving for a mistrial because that denies Mr. Valladares his 

right to a Sixth Amendment trial in open court. Submitted. 

“THE COURT: Okay. Before I rule on the motion, I should state that it’s this 

Court’s policy to have the door locked while the Court instructs. [¶] And Deputy Bates, 

in accordance with the Court’s policy, did lock the doors while the Court was instructing, 

and this Court actually observed Deputy Bates unlock the doors after the instructions 

were completed, and he came back in with a sign that is posted at the time that––in 

addition to locking the door, he puts a sign out indicating that the Court is instructing. 

[¶] So unless Deputy Bates has something otherwise to say, this Court is informed and 

believes that the doors were unlocked at all other times including when the counsel was 

making the closing arguments. [¶] Deputy Bates; is that correct? 

“THE BAILIFF: That’s correct. 

“THE COURT: Okay. Based on that, the Court will deny the motion for 

mistrial.” 
19

Defendant contends that the trial judge was required to “articulate an ‘overriding 

interest’ as to why the court should be closed to the public” during jury instructions and 

“ensure that the closure was no broader than necessary,” and, having failed to do so, 

committed structural error that requires reversal without a showing of prejudice. The 

Attorney General argues that defendant’s right to a public trial was not violated because 

locking the courtroom during instructions was a “de minimis” closure that did not rise to 

the level of a constitutional violation. 

“Every person charged with a criminal offense has a constitutional right to a 

public trial, that is, a trial which is open to the general public at all times. (See U.S. 

Const., amends. VI, XIV; Cal. Const., art. I, § 15; see also Pen. Code § 686, subd. 1.)” 

(People v. Woodward (1992) 4 Cal.4th 376, 382.) As explained by the United States 

Supreme Court in Waller v. Georgia (1984) 467 U.S. 39, “ ‘ “ ‘[t]he requirement of a 

public trial is for the benefit of the accused; that the public may see he is fairly dealt with 

and not unjustly condemned, and that the presence of interested spectators may keep his 

triers keenly alive to a sense of their responsibility and to the importance of their 

functions. . . .’ ” ’ ” (Id. at p. 46.) “In addition to ensuring that judge and prosecutor 

carry out their duties responsibly, a public trial encourages witnesses to come forward 

and discourages perjury.” (Ibid.) The Waller court held that the right to a public trial 

creates a “ ‘presumption of openness’ ” that “ ‘may be overcome only by an overriding 

interest based on findings that closure is essential to preserve higher values and is 

narrowly tailored to serve that interest.’ ” (Id. at p. 45.) When such a “ ‘higher value[]’ ”

is advanced, it must be “ ‘articulated along with findings specific enough that a reviewing 

court can determine whether the closure order was properly entered.’ ” (Ibid.) 

In People v. Woodward, supra, 4 Cal.4th at pp. 384-385, the California Supreme 

Court stated that certain courtroom closures are so “trivial” or “de minimis” that they do 

not implicate the principles identified in Waller. In Woodward, the trial court closed and 

locked the courtroom during closing argument, and placed a sign on the courtroom door 

reading: “Trial in progress—Please do not enter . . . .” (Id. at p. 380.) Defense counsel 

observed the sign during a recess and promptly moved for a mistrial. (Ibid.) The trial 
20

court denied the motion, although it agreed to take the sign down and unlock the 

courtroom. (Ibid.) The trial court stated that it locked the courtroom because it was 

located next to the probate department and lawyers seeking ex parte orders “were apt to 

cause ‘constant interruptions.’ ” (Ibid.) The trial court also “stated for the record a 

further reason supporting the temporary closure of the courtroom to additional spectators 

namely, that defendant’s trial posed unusual security risks.” (Ibid.) It also stated that 

members of the public were present during the closing argument, and that additional 

spectators could enter the courtroom during specified recesses. (Id. at pp. 380, 385.) The

Supreme Court determined that this “temporary closure” was “de minimis” and did not 

implicate the interests identified in Waller. (Id. at pp. 384-385.) It held that “the closure 

of the courtroom doors to additional spectators during part of the prosecutor’s arguments, 

being both temporary in duration and motivated by legitimate concerns to maintain 

security and prevent continuous interruptions of closing arguments, and not involving the 

exclusion of preexisting spectators, did not constitute a denial of defendant’s public trial 

right.” (Id. at p. 381.) 

One of the cases cited in Woodward was People v. Buck (1941) 46 Cal.App.2d 

558, which, like this case, concerned whether a defendant was deprived of his right to a 

public trial when the trial court closed the courtroom as the jury was being instructed. 

(Id. at p. 562.) The appellate court in Buck held the closure did not violate defendant’s 

right to a public trial, stating: “It is apparent that the order was made for the convenience 

of the court and all others present, including the appellant. It was made to facilitate the 

instructing of the jury and to obviate the disturbance and distraction which is made by 

spectators entering or leaving while the court is giving its instructions. This seemingly 

was the view taken at the time by the appellant and his counsel for no complaint was 

made during the trial. The court did not order anyone to leave the courtroom. It merely 

attempted to keep the spectators from moving in or out during the period of instruction.

In this particular instance it is to be observed that the court instructed the jury before the 

argument of counsel and that the doors of the courtroom were opened during the 

argument.” (Ibid.) 
21

Courts in other jurisdictions have also held that a courtroom closure during jury 

instructions did not violate the right to a public trial. In State v. Brown (Minn. 2012) 815 

N.W.2d 609, a trial court in Minnesota ordered the courtroom locked for the duration of 

jury instructions. (Id. at p. 614.) The Minnesota Supreme Court held that the closure was 

“ ‘ “trivial” ’ ” and did not violate defendant’s right to a public trial. It reasoned: “While 

the trial court did lock the courtroom doors during jury instructions, the courtroom was 

never cleared of all spectators, and the judge in fact told the people in the courtroom that 

they were ‘welcome to s[t]ay.’ The trial remained open to the public and press already in 

the courtroom and the trial court never ordered the removal of any member of the public, 

the press, or the defendant’s family. In addition, the jury instructions did not comprise a 

proportionately large portion of the trial proceedings. All of these circumstances, taken 

together, convince us that the trial court’s conduct did not implicate [defendant’s] right to 

a public trial.” (Id. at pp. 617-618, fn. omitted.) The court in United States v. Scott (1st 

Cir. 2009) 564 F.3d 34, reached a similar conclusion. There, the district court closed the 

courtroom during jury instructions, “presumably to avoid distracting the jury during the 

‘lengthy’ and complex charge.” (Id. at p. 37.) The district court also invited members of 

the public to remain in the courtroom (at least some of whom did remain), and there was 

no evidence that any member of the public who sought entry into the courtroom was 

denied access. (Id. at p. 38.) Under these circumstances, the court held that “no closure 

occurred in this case.” (Ibid.)

Consistent with those cases, we conclude that the closure in this case was “de 

minimis” and did not violate defendant’s right to a public trial. (People v. Woodward, 

supra, 4 Cal.4th at p. 385.) The closure occurred while the jury was being instructed and 

lasted less than an hour, making it “temporary in duration.” (Id. at p. 381.) There is no 

indication that the courtroom was closed at any other point during the trial, nor any

indication that the trial court ordered the removal of any member of the public prior to 

instructing the jury and locking the courtroom. 

Defendant argues that the de minimis principle is inapplicable to this case because

the trial court, unlike the trial court in Woodward, did not state any reasons on the record 
22

justifying its decision to lock the courtroom. Certainly, it would have been preferable for 

the trial court to provide a reason for locking the courtroom instead of merely stating it 

was the court’s “policy.” Nevertheless, we may presume that the trial court had a 

legitimate reason for locking the courtroom, namely, to avoid the risk that the jury would 

be distracted or interrupted. (Evid. Code, § 664.) Nothing in the record indicates that the 

trial court’s “policy” was based on a different or improper purpose. We also note that

other courts upholding a courtroom closure during jury instructions did so despite the 

trial court’s failure to state on the record why it closed the courtroom. (State v. Brown, 

supra, 815 N.W.2d at p. 618 [“To facilitate appellate review in future cases, we conclude 

the better practice is for the trial court to expressly state on the record why the court is 

locking the courtroom doors.”]; United States v. Scott, supra, 564 F.3d at p. 37 

[presuming that district court closed courtroom to avoid distracting the jury].) 

Defendant also argues that the de minimis principle does not apply here because 

there was no showing that members of the public were in the courtroom prior to it being 

locked. In fact, defendant argues, it is likely that no member of the public was in the 

courtroom during jury instructions because the instructions began shortly after the trial 

court commenced its morning session. This is pure speculation, but even if we assume 

that no members of the public attended this portion of defendant’s trial, that fact alone 

cannot be the basis for determining whether the court erred by locking the courtroom 

during jury instructions. 

Although the record before us does not support a finding that defendant’s right to a 

public trial was violated, we do not condone the trial court’s actions. Trial courts should 

not lock their courtrooms as a matter of course while instructing a jury. Such actions, 

even if not unconstitutional, may create the appearance that our courts are closed to the 

public. The better practice is to make an individualized determination in each case. If, 

after making an individualized determination, a trial court decides to lock its courtroom 

during jury instructions, it should announce its decision on the record in advance, 

provide specific reasons supporting its decision, and give the parties a chance to be heard. 
23

DISPOSITION

The judgment is affirmed. 
24

_________________________

Miller, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

A134585, People v. Valladares