P. v. Warren

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Filed 8/29/19 P. v. Warren CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
NEAL BIENICK WARREN,
Defendant and Appellant.
A152902
(Del Norte County
Super. Ct. No. CRF179273)
A jury convicted defendant Neal Bienick Warren of one count of second-degree
burglary. (Pen. Code, § 459.1) On appeal, defendant contends his conviction should be
reversed because the jury should not have heard: (1) testimony by a sheriff’s sergeant
relating to two stolen vehicles and to drug addict profiling; and (2) his allegedly coerced
admissions during an interrogation by two sheriff’s deputies. We disagree and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As relevant here, the evidence at trial included the following.
On September 19, 2016, Deputy Sheriff Neal Oilar responded to a report that a
deceased person was in a Crescent City residence and that people were taking things from
the home. Oilar entered Deborah Fillman’s locked home through an open bedroom
window, where he found Fillman dead on the floor. The room appeared to have been
ransacked. Fillman’s Honda vehicle was not at the residence, and there were exposed
1 All statutory references are to this code unless otherwise indicated.

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cables under the living room television. Although the deputies initially investigated the
case as a homicide, the autopsy ultimately revealed, months later, that Fillman had died
of natural causes.
On September 20, 2016, officers stopped Robert Sinnott Jones (Sinnott) and
Tabitha (his girlfriend) in Fillman’s Honda in Eureka. Sinnott was arrested. A lighter
bearing the name “Neal” was found on the floorboard of the Honda.
On September 21, 2016, Sergeant Richard Griffin stopped defendant in Crescent
City as he started to enter a blue Ford truck at a gas station. Defendant was arrested as a
main suspect in the Fillman homicide investigation, which was ongoing at the time, and
on an outstanding warrant. A prescription bottle containing 19 morphine pills was found
in defendant’s pocket with the label removed. On his person, defendant also had keys to
the Fillman residence, to Fillman’s Honda, and to the Ford truck. It was later determined
that the Ford truck had been stolen from a storage facility in Crescent City, but it was not
known how the vehicle came into defendant’s possession.
Pursuant to a warrant, the deputies searched the motorhome where defendant was
living. They found the following items taken from Fillman’s house: a weed trimmer, an
Atari game console, a spoon with blue residue and hypodermic needles, a television, a
blue bag with Fillman’s prescription bottles containing hydrocodone and other pills, some
marijuana, 12 other prescription bottles belonging to Fillman that contained various pills
and medications, and a purse containing a $500 check made payable to Fillman. An
investigation indicated the motorhome had been stolen from a storage facility in Del
Norte County the previous year and was registered to a Florida owner.
The jury was shown a videotaped interrogation of defendant that was conducted
three hours after his arrest. After being advised of his Miranda rights at the outset of the
interrogation, defendant admitted he entered the Fillman house through a window, saw
Fillman’s body, ate ice cream, and got her prescription pills. Consistent with statements
that Sinnott gave during his interview with deputies, defendant stated that he went to
Fillman’s house for drugs, then left and returned to Fillman’s house with Sinnott to take
items.

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Defendant took the stand and testified to the following. Defendant was best
friends with Fillman’s husband Steve, who died in 2015, and he had promised Steve he
would look after Fillman. Defendant claimed he went to Fillman’s house to check on her
and also to buy pills because he and his friends were sick. When no one answered his
knocking at the front door, defendant crawled into an open bedroom window and found
Fillman dead on the floor. Defendant was “tripping” and “couldn’t handle it,” so he ate
ice cream to soothe his stomach. He saw a pill bottle on a table and grabbed it on his way
out. Defendant denied entering Fillman’s house with the intent of stealing.
Defendant explained that, upon exiting Fillman’s house, he saw Sinnott and asked
him for help with a dead body. While Sinnott went into Fillman’s house, defendant used
drugs in the motorhome, which was parked out front. Defendant then obtained Fillman’s
dog from Sinnott and took off after telling Amber (defendant’s girlfriend) to bring the
motorhome to “Larry’s” house. Sometime later at Larry’s place, defendant entered the
motorhome and saw an Atari and a television inside that he had not seen there before. He
denied taking the Atari from Fillman’s house and believed either Sinnott, Tabitha, or
Amber was responsible. The last time defendant saw Fillman’s Honda was in Eureka
where Sinnott had the car. Defendant may have left his lighter in the Honda when he
previously drove Fillman in her car.
Defendant testified the motorhome was Amber’s, and she may have obtained it
from another man. Defendant borrowed the Ford truck from Sinnott and denied knowing
it was reported stolen.
Defendant also testified he was “sick and delusional” when Sergeant Griffin
interrogated him. Defendant couldn’t think straight, and his skin was crawling.
A jury convicted defendant of second-degree burglary and found true two prior
felony conviction allegations and one prior prison term allegation. The trial court
sentenced him to state prison for an aggregate term of seven years and imposed various
statutory fines.

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DISCUSSION
A. Evidence of the Stolen Vehicles and Drug Addict Testimony
Defendant claims his trial counsel was ineffective in failing to object to portions of
Sergeant Griffin’s testimony that purportedly connected defendant to the theft of the
motorhome where he lived and the theft of the Ford truck parked at the gas station. In
particular, defendant points to Griffin’s testimony that after the motorhome was seized in
connection with this case and transported to the sheriff’s storage facility, and after
defendant’s temporary release from custody, it was “extremely bold” for defendant to
show up to the storage facility to pick up a stolen motorhome. In defendant’s view,
Griffin’s testimony regarding the motorhome and the Ford truck was irrelevant to the
charged burglary and highly prejudicial.
To prevail on a claim of ineffective assistance of counsel, a defendant must show
“both deficient performance under an objective standard of professional reasonableness
and prejudice under a test of reasonable probability of a different outcome.” (People v.
Jones (1998) 17 Cal.4th 279, 309 (Jones).) “ ‘Whether to object to inadmissible evidence
is a tactical decision; because trial counsel’s tactical decisions are accorded substantial
deference [citations], failure to object seldom establishes counsel’s incompetence.’ ”
(People v. Riel (2000) 22 Cal.4th 1153, 1185.) Thus, “where counsel’s trial tactics or
strategic reasons for challenged decisions do not appear on the record, we will not find
ineffective assistance of counsel on appeal unless there could be no conceivable reason
for counsel’s acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926
(Weaver).)
Here, the appellate record does not disclose counsel’s reasons for not objecting to
Sergeant Griffin’s testimony regarding the stolen motorhome and Ford truck. That
testimony, however, helped explain the deputies’ investigation of the case leading up to
defendant’s apprehension and arrest. At the same time, Griffin’s testimony was neither
inflammatory nor substantially likely to elicit an impermissible emotional response from
the jury (Evid. Code, § 352; see People v. Mendoza (2011) 52 Cal.4th 1056, 1091–1092),
and he acknowledged he did not know how defendant came into possession of the truck

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or how the Florida-registered motorhome came to be in Del Norte County. Under these
circumstances, defendant’s counsel may reasonably have concluded not to object as a
tactical matter.
Defendant additionally asserts his counsel was incompetent for not objecting to a
portion of Sergeant Griffin’s testimony estimating that 90 percent of all crimes in Del
Norte County are drug-related and that many theft crimes are committed by drug users to
support their habits. Relying on People v. Robbie (2001) 92 Cal.App.4th 1075, People v.
Castaneda (1997) 55 Cal.App.4th 1067, and People v. Martinez (1992) 10 Cal.App.4th
1001, defendant argues such testimony was irrelevant to the charged burglary and highly
prejudicial in that it profiled him as a thieving drug addict. We are not persuaded.
First of all, defendant’s authorities addressing the misuse of profile evidence are
inapposite because Griffin did not testify or otherwise imply that defendant was guilty of
burglary because he fit the profile of a thieving drug addict in Del Norte County. Nor did
the prosecution rely on such an inference in making its case to the jury. Indeed,
defendant’s own description of his drug use and actions at Fillman’s home provided
ample probative evidence of his intent, motive, and opportunity to burglarize.
In any case, the appellate record does not disclose counsel’s reasons for not
objecting to this brief portion of Sergeant Griffin’s testimony, and the record suggests
several reasonable explanations for counsel’s omission. Notably, evidence that defendant
was a drug addict and user was important to his defense. Defendant offered such
evidence to explain why he initially went to Fillman’s home (he and his friends were
“coming down from their drugs,” and he wanted to buy pills from his deceased friend’s
wife); why he grabbed Fillman’s bottle of morphine pills as he left her house (morphine
is the second best thing to heroin for a drug user, and he took the pills on the spur of the
moment but denied having entered the house with the intent to steal); and why he
incriminated himself during the videotaped interrogation (because the interrogation
occurred while he was “sick and delusional” from withdrawal and could not “think
straight”).

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Likewise, Sergeant Griffin’s testimony that many theft crimes are committed by
drug users appeared consistent with defendant’s attempt to deflect responsibility for the
theft of Fillman’s belongings toward his three drug using friends, particularly Sinnott.
Defendant’s interrogation statements and trial testimony emphasized his long-standing
personal friendship with Fillman’s husband, his promise to look after Fillman, and his
deep upset about Fillman’s death. Thus, defendant’s counsel may well have decided,
strategically and quite reasonably, to forgo objection to the subject testimony because it
was consistent with the implication that Sinnott possessed a motive and intent to commit
burglary and theft that defendant—who was friends with Fillman and her late husband—
did not share. On this record, we cannot assume counsel had no conceivable reason for
failing to object to the perceived improper profiling evidence. (Weaver, supra,
26 Cal.4th at p. 926.)
In sum, the record on appeal does not demonstrate that counsel’s omissions,
considered individually or in combination, were professionally unreasonable. (Jones,
supra, 17 Cal.4th at p. 309.)
B. Defendant’s Interrogation
Sergeant Griffin testified that defendant was arrested on a parolee-at-large warrant
and interviewed three hours after his arrest. Griffin testified as to the details of that
interview, and a videotaped recording of the interrogation was introduced into evidence.
Defendant claims the trial court should have excluded the videotape and Griffin’s related
testimony in light of a combination of circumstances, including the following: (1) Griffin
knew the psychological and physical effects of drug withdrawal on addicts and was
aware that defendant was “dope sick” at the time of the interrogation; (2) at the time of
arrest, Griffin stepped on defendant’s head and rammed it into the ground, resulting in a
skinned nose and broken cartilage; (3) on a scale of 1 to 100, defendant was at 40 in
feeling sick when arrested and at 80 when interrogated—he was hallucinating, unable to
think straight, and his skin was crawling; (4) during the interrogation, Griffin and his
partner repeatedly used the threat of a homicide prosecution to pressure defendant into
admitting to a burglary; and (5) the two deputies continued to question defendant after he

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told them he was tired and sick and made no effort to fathom the extent of his dope
sickness. According to defendant, these circumstances rendered his statements in that
interrogation coerced and involuntary.
Defendant, however, acknowledges that his counsel never objected to the
admission of the videotaped recording or Sergeant Griffin’s related testimony. But
because defendant’s counsel made no objections, “the parties had no incentive to fully
litigate this theory below, and the trial court had no opportunity to resolve material
factual disputes and make necessary factual findings.” (People v. Ray (1996) 13 Cal.4th
313, 339.) Given these circumstances, appellate review of this claim has been forfeited.
(Ibid.)
Alternatively, defendant urges that his counsel’s omissions violated his
constitutional right to effective assistance of counsel. Because counsel’s reasons for not
objecting do not appear on the record, defendant’s ineffective assistance claim cannot
succeed on appeal “unless there could be no conceivable reason” for counsel’s omissions.
(Weaver, supra, 26 Cal.4th at p. 926.) Here, it is entirely conceivable that counsel made
no objections for tactical reasons.
The law governing the admissibility of an accused’s confessional statements is
well settled. “A criminal conviction may not be founded upon an involuntary
confession.” (People v. Scott (2011) 52 Cal.4th 452, 480.) “In determining whether a
confession was voluntary, ‘ “[t]he question is whether defendant’s choice to confess was
not ‘essentially free’ because his [or her] will was overborne.” ’ ” (People v. Carrington
(2009) 47 Cal. 4th 145, 169 (Carrington).) Whether a confession was voluntary depends
on the totality of the circumstances, including the length, location, and continuity of the
interrogation, and defendant’s maturity, education, physical condition, and mental health.
(People v. Cunningham (2015) 61 Cal.4th 609, 642–643 (Cunningham).)
Here, the record does not reflect that the deputies engaged in coercive activity,
which “ ‘is a necessary predicate to the finding that a confession is not “voluntary.” ’ ”
(People v. Hensley (2014) 59 Cal.4th 788, 814.) The videotaped interrogation does not
show the deputies engaging in “ ‘ “psychological ploys which, under all the

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circumstances, are so coercive that they tend to produce a statement that is both
involuntary and unreliable.” ’ ” (Cunningham, supra, 61 Cal.4th at p. 643.) Having
properly secured defendant’s waiver of his Miranda rights, the deputies were free to
question him, which they did without threatening harm or falsely promising benefits.
(Carrington, supra, 47 Cal.4th at p. 170.) In this regard, the deputies were permitted to,
and did, ask tough questions, outline theories of the events, urge him to tell the truth, and
confront, contradict, and debate with defendant. (Ibid.; People v. Williams (2010)
49 Cal.4th 405, 444; see, e.g., People v. Spencer (2018) 5 Cal.5th 642, 674.)
Significantly, the videotaped interrogation reflects that defendant appeared
rational, physically coordinated, and sufficiently mentally alert to answer questions in a
coherent manner. Fairly viewed, the videotape does not show that defendant was so
impaired by drug withdrawal symptoms, disorientation, physical pain, or discomfort that
he did not freely and deliberately choose to speak with the deputies. (See Hensley, supra,
59 Cal.4th at p. 814 [“ ‘while mental condition is surely relevant to an individual’s
susceptibility to police coercion, mere examination of the confessant’s state of mind can
never conclude the due process inquiry’ ”]; see, e.g., United States v. Coleman (9th Cir.
2000) 208 F.3d 786, 791 [heroin withdrawal symptoms—i.e., lethargy and physical
discomfort—not enough to establish involuntariness of confession].)
Likewise, the record reflects none of other factors recognized as relevant to a
finding of involuntariness. (See Cunningham, supra, 61 Cal.4th at p. 642.) There
appeared nothing particularly coercive about the location or circumstances of the
interrogation, which occurred at the Sheriff’s office in a single session lasting only one
hour. Although defendant had restraints on his ankles, his hands were free and he was
provided water at the outset of questioning. Defendant was an adult who demonstrated
no difficulty understanding the deputies’ questions. Defendant also had several prior
contacts with law enforcement and apparently was familiar with the criminal justice
system, having suffered two prior felony conviction and served one prior prison term.
As indicated, defendant contends he made admissions relevant to the burglary
count in response to the deputies’ repeated threats of a homicide prosecution. But the

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videotape does not show that the deputies improperly threatened him with a potential
homicide charge unless he admitted to burglary. Although the deputies referred to a
possible homicide prosecution in their repeated efforts to get defendant to be truthful, it
bears emphasizing that a homicide had not been ruled out at the time of the interrogation.
(Cf. People v. Badgett (1995) 10 Cal.4th 330, 355 [“ ‘[t]here is nothing improper in
confronting a suspect with the predicament he is in’ ”].) Moreover, one could reasonably
infer from the videotape that defendant wanted to give his version of the relevant events
after the deputies informed him they already knew all the facts from their investigation
and from interviews with Sinnott and Amber. Additionally, when the deputies continued
to accuse defendant of not being completely truthful, defendant demonstrated he was
perfectly capable of exercising a rational intellect and free will by emphatically declaring,
“I’m done here,” and stopping the interrogation at the one-hour mark.
Our review of the videotaped interrogation discloses that the deputies did not
transgress the bounds of lawful conduct. Indeed, to the extent defendant complains that
the deputies pressured him into falsely admitting the burglary, we note many of his
admissions were corroborated by independent evidence including information obtained
from Sinnott and the discovery of Fillman’s belongings on defendant’s person and in the
motorhome where he lived.
In sum, it appears from the videotape that the statements given by defendant were
the product of a rational intellect and a free will. The videotape also reflects the deputies
conducted the interrogation in a manner that appeared lawful and unlikely to produce a
false confession. Because defendant’s counsel could conceivably have made a tactical
decision to forgo making objections that had little or no chance of success, we reject
defendant’s ineffective assistance claim. (Weaver, supra, 26 Cal.4th at p. 926.)
DISPOSITION
The judgment is affirmed.

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_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Siggins, P.J.
_________________________
Petrou, J.
A152902

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