Opinion
F076078
06-01-2020
THE PEOPLE, Plaintiff and Respondent, v. KEITH MAJUSIAK, Defendant and Appellant.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF154756A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Keith Majusiak was involved in a traffic collision that resulted in fatal injuries to another driver and nonfatal injuries to her passenger. Defendant's blood-alcohol content (BAC) was 0.09 percent approximately 90 minutes after the collision. He was arrested and charged with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a); count 1), driving under the influence of alcohol and causing bodily injury to another (Veh. Code, § 23153, subd. (a); count 2), and driving with a BAC of 0.08 percent or more and causing bodily injury to another (Veh. Code, § 23153, subd. (b); count 3). An enhancement for causing death or bodily injury to more than one victim was attached to counts 1 through 3, and an enhancement for infliction of great bodily injury to a person 70 years or older was attached to counts 2 and 3. (Veh. Code, § 23558; Pen. Code, § 12022.7, subd. (c).)
All further statutory references are to the Penal Code unless otherwise specified.
Following a jury trial, defendant was acquitted on count 1 and convicted on counts 2 and 3 of the lesser included offenses of misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and driving with a BAC of 0.08 percent or more (Veh. Code, § 23152, subd. (b)), respectively. On count 2, the trial court placed defendant on probation for five years subject to certain terms and conditions, including serving 60 days in custody. On count 3, the court imposed the same sentence and stayed it under section 654.
On count 1, the jury was instructed on gross vehicular manslaughter while intoxicated, vehicular manslaughter while intoxicated, gross vehicular manslaughter without intoxication, and vehicular manslaughter without intoxication. (§§ 191.5, subds. (a), (b), 192, subd. (c)(1), (c)(2).)
On appeal, defendant claims the trial court erred when it denied his motion to exclude his pretrial statements to law enforcement. He contends the roadside questioning prior to his arrest constituted a custodial interrogation, entitling him to advisement of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); his subsequent post-Miranda statement should also have been excluded because the circumstances in this case are analogous to the "question-first tactic" found unconstitutional in Missouri v. Seibert (2004) 542 U.S. 600, 617 (Seibert); and the error in admitting his statements was prejudicial.
The People contend there was no error and, assuming error for the sake of argument, the admission of defendant's statements was harmless.
We agree with the People. We find no error in the admission of defendant's pre-Miranda statements because he was not in custody, we reject his claim that his post-Miranda statement should have been excluded pursuant to Seibert and we conclude that even if we assume error in admitting his pre-Miranda statements, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Accordingly, we affirm the judgment.
FACTUAL SUMMARY
I. Traffic Collision
On April 23, 2014, at approximately 3:00 p.m., defendant, who was employed as a locksmith, was driving his work van northbound on Calloway Drive, a multi-lane road in Bakersfield with a speed limit of 55 miles per hour. Joan Z. was driving westbound on Marby Grange Way, a residential cross street with a speed limit of 25 miles per hour. The intersection of Calloway and Marby Grange was controlled by stoplights. As defendant entered the intersection at approximately 55 miles per hour, the front of his van collided with the driver's side of Joan's compact sedan. Although defendant stated his brakes failed when he attempted to apply them, data retrieved from the van showed the brakes were activated only in the last second before the collision and no mechanical defects were found when the van was inspected.
Defendant's speed was established through vehicle data extraction.
Joan was critically injured in the collision and never regained consciousness. After being transferred to UCLA Medical Center and undergoing multiple surgeries, she was taken off life support 12 days after the collision and passed away from multiple blunt force trauma to her head and neck. Joan's 75 year old husband, Larry Z., was a passenger in the car at the time of the collision. Larry, who had predementia, suffered some bruising, abrasions and pain, and he was hospitalized for seven to nine days, approximately. His and Joan's daughter testified that he was unable to walk following the collision, his preexisting heart issues were exacerbated and his mental state declined.
Due to Larry's deteriorated mental state, he was unable to testify at trial, but he had recovered from his other injuries.
Joan's urinalysis screening, performed at the hospital following the collision, was positive for opiates, although the analysis was qualitative rather than quantitative, indicating only that the opiate level in her urine was 300 nanograms per milliliter or above. Joan had hip pain from a fall two months prior to the collision and had a pending appointment to see an orthopedic surgeon. She had been prescribed Norco for the pain, which is a combination of the opiate hydrocodone and Tylenol. There was also evidence that Joan had glaucoma in both eyes.
Joan's daughter testified that Joan was prescribed five-milligram Norco, which is the lowest strength and, although she did not know what dosage was prescribed, the standard dosage is usually one Norco every four to six hours. Joan's physician did not recall prescribing Joan Norco for hip pain, but she testified that a therapeutic dose for a patient suffering pain such as Joan would be five milligrams of hydrocodone and 325 milligrams of acetaminophen.
Defendant, who sustained only a minor injury to his arm, was contacted at the scene by Officer Kiser with the Bakersfield Police Department. During the course of Kiser's preliminary investigation into the collision, defendant stated that he thought his northbound stoplight was red and that his brakes failed. Kiser did not observe any obvious physical signs of intoxication, such as slurred speech, unsteady gait, odor of alcohol or red, watery eyes, but to rule out impairment as a factor, he asked if defendant would participate in field sobriety testing and consent to chemical breath testing. Defendant agreed and he performed the one-leg stand and walk-and-turn tests without sign of impairment, but Kiser observed lack of smooth pursuit and nystagmus during the horizontal gaze nystagmus test, which Kiser testified is an indication of alcohol impairment. The two chemical breath tests conducted approximately 90 minutes after the collision returned results of 0.09 percent BAC. Two and one-half hours after the collision and his arrest, defendant submitted to a blood draw. Two tests were run, the results of which were 0.05 percent and 0.06 percent BAC.
II. Percipient Witness Testimony Regarding Stoplight
The prosecutor theorized that defendant ran a red traffic light while impaired by alcohol and hit Joan's car, but there was conflicting evidence regarding whether the northbound traffic light was red or green when defendant entered the intersection at the speed limit. Four third-party witnesses to the collision testified at trial, all of whom were in vehicles at the intersection of Calloway and Marby Grange when the collision occurred. The first witness, Jenny H., was in the far righthand lane of northbound Calloway, stopped at the red light. Jenny was in the fourth car back from the stoplight, approximately, and she heard the collision but did not see it happen. She was certain that she was at a complete stop for a red light and she was "[v]ery sure" the light was still red when the collision occurred.
Esther R. was driving the first vehicle in the left turn lane of northbound Calloway and was stopped for a red light. She testified that the light for the traffic lanes continuing northbound on Calloway was also red. In her rearview mirror, Esther saw a van in the number two lane of northbound Calloway approaching the intersection at approximately 40 miles per hour. She testified the van broadsided a silver car that was turning left on Calloway from westbound Marby Grange. Esther thought the driver of the silver car was a mother accompanied by her daughter, as the passenger was small and appeared to be a child. She did not have a clear view of the passenger, however. After calling 911, Esther departed, but she gave a recorded statement to Detective Diederich approximately 10 days later.
In a declaration signed three months after the collision, Esther stated that she "'presumed the northbound traffic [light] was still red because the silver car was entering the intersection and the southbound traffic on Calloway Drive had now started to proceed.'" She also stated that she did not look at the stoplight at the time of or right after the collision. At trial, however, Esther said she was confused at the time of the declaration and she was certain the stoplights for the left turn lane and for the traffic continuing northbound on Calloway were red because she looked.
Finally, defense witnesses Eugenea G. and her husband, Alan G., were traveling northbound on Calloway and they were in the first vehicle at the limit line in their lane. The light at Calloway and Marby Grange was red for traffic going northbound on Calloway. Eugenea and Alan both testified that defendant's van was rapidly approaching them from behind, swerved into the lane to the right of them, entered the intersection and struck Joan's vehicle.
At trial, Eugenea, whose reluctance to testify is apparent from the record, equivocated in her testimony regarding the light when defendant entered the intersection. She initially testified that defendant entered the intersection on a red light and it turned green when his van collided with Joan's car as Joan was making a left turn from westbound Marby Grange to southbound Calloway. She subsequently testified first that the light turned green as defendant reached the limit line and then that she was unable to say whether the light was red or green. She also clarified that Joan was making a right turn onto northbound Calloway and stated that defendant "was [in the] wrong" and traveling "at a high rate of speed."
In her statement at the scene and in her DMV hearing testimony, however, Eugenea was positive the light was green when defendant entered the intersection, but expressed her opinion that defendant was going too fast for a light that had just turned green. At the scene, she stated, "It was definitely her fault for pulling out there but he was hauling ass."
Alan testified, also reluctantly, that the stoplight turned green as defendant's van moved into the lane to their right and passed the right quarter panel of their vehicle. At the scene, Alan stated that he thought defendant was traveling so fast that Joan did not see his van and she might have entered the intersection on a yellow light, but defendant had the green light.
DISCUSSION
I. Admission of Statements Not Error Under Miranda
A. Legal Standard
"'Under the Fifth Amendment to the federal Constitution, as applied to the states through the Fourteenth Amendment, "[n]o person ... shall be compelled in any criminal case to be a witness against himself ...."'" (People v. Nelson (2012) 53 Cal.4th 367, 374.). In Miranda, the United States Supreme Court identified "prophylactic measures to protect an individual's right against self-incrimination from curtailment under the 'inherently compelling pressures' of custodial interrogation." (People v. Frederickson (2020) 8 Cal.5th 963, 1009-1010; accord, People v. Hoyt (2020) 8 Cal.5th 892, 931-932.) "[S]tatements made by a defendant subject to custodial interrogation are inadmissible (for certain purposes) unless the defendant was 'warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.'" (People v. Krebs (2019) 8 Cal.5th 265, 299, quoting Miranda, supra, 384 U.S. at p. 444; accord, People v. Frederickson, at pp. 1009-1010.) "'Absent "custodial interrogation," [however,] Miranda simply does not come into play.'" (People v. Ochoa (1998) 19 Cal.4th 353, 401, quoting People v. Mickey (1991) 54 Cal.3d 612, 648.)
"'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.'" (People v. Linton (2013) 56 Cal.4th 1146, 1167, quoting Yarborough v. Alvarado (2004) 541 U.S. 652, 662; accord, People v. Kopatz (2015) 61 Cal.4th 62, 80.)
"Miranda warnings are not required simply because a person has become a suspect in the officer's mind." (People v. Linton, supra, 56 Cal.4th at p. 1167.) "'[E]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the ... issue, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officer's degree of suspicion will depend upon the facts and circumstances of the particular case.'" (People v. Zamudio (2008) 43 Cal.4th 327, 345, quoting Stansbury v. California (1994) 511 U.S. 318, 325 (Stansbury).)
B. Standard of Review
"Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] 'When reviewing a trial court's determination that a defendant did not undergo custodial interrogation,' an appellate court accepts the trial court's findings of historical fact if supported by substantial evidence but independently determines 'whether, given those circumstances,' the interrogation was custodial." (People v. Kopatz, supra, 61 Cal.4th at p. 80, citing People v. Leonard, supra, 40 Cal.4th at p. 1400; accord People v. Frederickson, supra, 8 Cal.5th at p. 1010.)
C. Analysis
1. Background
a. Pre-Miranda Statements at Scene
Defendant remained at the scene of the collision, where he was contacted by Officer Kiser. After ascertaining that defendant was an involved party, Kiser asked if defendant had a driver's license and cell phone. Defendant provided his license and two cell phones, one personal and one for work, and he was agreeable with Kiser's request to maintain possession of his license and phones. Kiser informed defendant there was an active medical and collision investigation and requested that defendant remain on the scene. Defendant agreed. This interaction lasted only a few minutes and was not recorded. Kiser then had a similar conversation with Jenny, one of the witnesses to the collision. She provided him with her driver's license and also agreed to remain at the scene.
Kiser returned to his patrol car, retrieved his recorder and contacted defendant a second time to question him regarding the circumstances of the collision. Although there were other people, including law enforcement officers, in the general area, Kiser spoke to defendant alone. This interaction lasted approximately 10 or 15 minutes. Defendant stated that he thought the stoplight for northbound Calloway traffic was red, but he could not remember, and that he attempted to apply his brakes, but they did not work. Afterward, Kiser informed defendant that investigating officers might have additional questions and asked if he would remain on the scene. Defendant agreed and Kiser left to take Jenny's recorded statement.
Approximately 30 minutes after taking defendant's recorded statement, Kiser contacted defendant a third time at the lead investigator's direction to evaluate defendant for possible impairment. Kiser asked defendant field sobriety test questions and then asked defendant if he would participate in field sobriety testing. Defendant agreed and, during the testing, Kiser detected what he thought was a slight odor of alcohol on defendant's breath and he observed defendant's eyes were slightly droopy and watery. Defendant also agreed to submit to two chemical breath tests, which showed a BAC of 0.09 percent. Defendant was thereafter arrested for driving under the influence of alcohol.
b. Post-Miranda Statement at Hospital
After defendant was arrested, he was taken to Kern Medical Center, where Detective Diederich advised him of his rights under Miranda. Defendant waived his rights and Diederich questioned him. Relevant to defendant's claim on appeal, he told Diederich he drank approximately eight to 10 beers between 10:30 p.m. and 4:00 a.m., at which time he went to sleep. After briefly waking around 7:00 a.m. to have a cigarette with his mother, defendant went back to sleep. He awoke again when he received a work call and he left his house between 12:00 p.m. and 1:00 p.m. on the day of the collision.
c. Trial Court's Ruling
Prior to trial, defendant moved to exclude his statements to Officer Kiser and Detective Diederich as obtained in violation of Miranda. Following hearings under Evidence Code section 402 and argument by the parties, the court denied defendant's motion to exclude his statements. The court noted that Kiser questioned defendant in a public setting in response to a collision involving major injuries, he was polite and nonaccusatory, and he requested that defendant remain at the scene for the purpose of investigating the collision. The court considered Kiser's possession of defendant's license and cell phones, but concluded that Kiser's on-scene investigation of the collision was analogous to a temporary detention in conjunction with a traffic stop. (Berkemer v. McCarty (1984) 468 U.S. 420, 440 [temporary detention during ordinary traffic stop does not render motorist "'in custody' for purposes of Miranda"].) With respect to defendant's statement to Diederich, the court found nothing improper, observing that defendant was under arrest at the time, he was properly advised of his rights under Miranda and he expressly waived those rights.
2. Defendant Not in Custody at Scene of Collision
As previously stated, in determining whether defendant was in custody when he spoke to Officer Kiser at the scene of the collision, we "'examine all of the circumstances surrounding the interrogation,' [citation], including any circumstance that 'would have affected how a reasonable person' in the suspect's position 'would perceive his or her freedom to leave,' [citation]." (J.D.B. v. North Carolina (2011) 564 U.S. 261, 270-271, quoting Stansbury, supra, 511 U.S. at pp. 322, 325.) Relevant factors include "'whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom; whether there were restrictions on the person's freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation.'" (People v. Torres (2018) 25 Cal.App.5th 162, 172-173, quoting People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162; accord, In re Anthony L. (2019) 43 Cal.App.5th 438, 445.)
Officer Kiser and other officers responded to the scene of a collision resulting in major injuries. Kiser initiated contact with defendant in the course of investigating the collision and attempting to identify parties and witnesses. Defendant was not suspected of a crime at that point and had not been arrested, and Kiser did not expressly or impliedly communicate any information to the contrary through words or actions. (Stansbury, supra, 511 U.S. at p. 325 ["An officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned" and "they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her '"freedom of action."'".].) There is no evidence that Kiser was ever aggressive, confrontational or accusatory toward defendant, or that he applied pressure to defendant through any interrogation techniques. Defendant was questioned in the open, on a public street corner with bystanders in the vicinity. While there were other officers at the scene, they were not present for or involved with the questioning.
Defendant points out that he had not been evaluated by medical personnel despite being involved in a major collision and that Officer Kiser took his license and cell phones, which he contends "communicated to [defendant] that he did not have the right to refuse to participate in any test or ignore any order." However, there is no evidence that defendant sustained anything other than a minor abrasion to his arm or was in any other way vulnerable at the time of questioning, and "[o]fficers are not required to inform individuals of their right to refuse police requests." (People v. Kopatz, supra, 61 Cal.4th at p. 81, citing People v. Zamudio, supra, 43 Cal.4th at p. 346.) Further, Kiser politely requested rather than demanded that defendant turn over his license and phones, and Kiser did so at the very outset of the investigation, prior to detecting any sign of impairment. Defendant was agreeable to the request and there is no evidence he felt pressured to do so. (Cf. People v. Delgado (2018) 27 Cal.App.5th 1092, 1105 [during the course of a murder investigation, the defendant was back in custody when, after being arrested on the mistaken belief he had an outstanding warrant, transported to the police station and then told by a detective that he was free to leave, a different detective demanded access to his cell phone and conditioned his freedom to leave on completion of a data extraction].)
The allegedly prejudicial statement at issue in this appeal occurred during defendant's second interaction with Officer Kiser, but we note the circumstances surrounding his third interaction remained materially the same, save for the passage of more time and the presence of Officer Wimberly as "[a] cover officer" assisting with the field sobriety testing. Defendant does not argue that the on-scene investigation was unreasonably prolonged, that Officer Wimberly's presence during field sobriety testing was coercive or that, prior to his arrest for driving while intoxicated, there was any other change in circumstances that rendered the third interaction custodial. Moreover, custody status notwithstanding, Kiser's requests that defendant take a field sobriety test and chemical breath test to rule out impairment do not constitute an interrogation within the meaning of Miranda. (Pennsylvania v. Bruder (1988) 488 U.S. 9, 11; South Dakota v. Neville (1983) 459 U.S. 553, 564, fn. 15; People v. Cooper (2019) 37 Cal.App.5th 642, 652.)
In sum, the trial court's factual findings are supported by substantial evidence and it did not err in concluding that defendant was not in custody for the purposes of Miranda when he made pre-arrest statements to Officer Kiser. (People v. Tully (2012) 54 Cal.4th 952, 983 [while detained for a traffic violation and questioned about a vandalism incident, the defendant was not in custody for purposes of Miranda]; People v. Bellomo (1992) 10 Cal.App.4th 195, 200 [the defendant was not in custody during initial questions regarding accident investigation where officer did not stop him, did not make any effort to detain him and did not communicate to him any suspicions]; cf. People v. Bejasa (2012) 205 Cal.App.4th 26, 37-39 [the defendant was in custody at scene of traffic collision when he had already incriminated himself, and he was handcuffed, placed in a patrol car and informed "he was being 'detained for a possible parole violation,'" and although he was subsequently released from handcuffs and the patrol car, he remained in custody for Miranda purposes].)
3. No Seibert Violation
Our rejection of defendant's claim that he was in custody when Officer Kiser questioned him at the scene of the collision is necessarily fatal to his derivative claim that his post-Miranda statement to Detective Diederich should also be excluded in accordance Seibert. However, because defendant's reliance on Seibert is misplaced even if we had concluded he was in custody when questioned at the scene, we briefly address the argument.
In Seibert, the defendant's disabled son died in his sleep. (Seibert, supra, 542 U.S. at p. 604 (plur. opn. of Souter, J.).) To cover up the evidence of neglect, two of the defendant's other sons and their friends, with the defendant's knowledge, hatched a plan to burn the mobile home they lived in with their brother's body in it. (Ibid.) An unrelated teenage boy who lived with them was intentionally killed in the fire so that it would not appear their brother had been left alone. (Ibid.)
Days later, the defendant was awakened and arrested at 3:00 a.m. at the hospital, where one of her sons was being treated for burn injuries suffered in setting the fire. (Seibert, supra, 542 U.S. at p. 604 (plur. opn.).) The arresting officer intentionally withheld Miranda warnings and took the defendant to the police station, where she was left alone for 15 to 20 minutes. (Id. at pp. 604-605.) Thereafter, a different officer questioned the defendant for 30 to 40 minutes while squeezing her arm and repeating that the teenage victim was to die in his sleep. (Id. at p. 605.) After the defendant admitted knowing the victim was meant to die, she was given a 20-minute break. The officer then turned on a recorder, gave her the Miranda warnings, obtained a signed waiver of rights, and questioned her until she repeated her confession. (Ibid.)
The defendant was charged with murder and the trial court excluded her pre-Miranda statement, but not her post-Miranda statement. (Seibert, supra, 542 U.S. at p. 606 (plur. opn.).) The ruling was affirmed by the appellate court, but reversed by the Missouri Supreme Court. (Ibid.) The United States Supreme Court affirmed and held the warned confession was inadmissible, although "[t]he fractured nature of Seibert has given rise to a debate over whether it is the plurality's opinion or Justice Kennedy's concurrence that provides the controlling standard." (People v. Krebs, supra, 8 Cal.5th at p. 309.)
"[A]n initial Miranda violation does not necessarily require the exclusion of statements following proper advisements." (People v. Young (2019) 7 Cal.5th 905, 924.). However, in Seibert, "[a] plurality of four justices explained that 'when interrogators question first and warn later' ([Seibert, supra, 542 U.S.] at p. 611 (plur. opn.)), the later, warned confession is admissible only if 'in the circumstances the Miranda warnings given could reasonably be found effective.' (Id. at p. 612, fn. 4 (plur. opn.).) Under the facts of the case, the four justices concluded that the circumstances 'do not reasonably support a conclusion that the warnings given could have served their purpose,' and the postwarning statements therefore were inadmissible. (Id. at pp. 616-617 (plur. opn.).)" (People v. Krebs, supra, 8 Cal.5th at pp. 308-309.) In a concurring opinion, Justice Kennedy stated that he "'would apply a narrower test applicable only in the infrequent case, such as [in Seibert], in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.'" (Id. at p. 309, quoting Seibert, supra, at p. 622 (conc. opn. of Kennedy, J.).)
Irrespective of which standard controls, Seibert does not apply here. Seibert involved a situation where the interrogating officer intentionally withheld Miranda warnings in accordance with the department-sanctioned technique of questioning a suspect first, obtaining a confession, giving Miranda warnings and then questioning again until the suspect repeated the confession. (People v. Krebs, supra, 8 Cal.5th at p. 308, citing Seibert, supra, 542 U.S. at pp. 605-606 & 609 (plur. opn.).) In contrast with Seibert, here Officer Kiser's pre-arrest questions at the scene of the collision were investigatory and bore none of the hallmarks of a coercive interrogation. After defendant was arrested and transported to the hospital, Detective Diederich gave him the Miranda warnings and then initiated questioning. In addition to distinctions in the circumstances of surrounding the questioning here versus that in Seibert, the record is devoid of any evidence that Officer Kiser and Detective Diederich engaged in the impermissible two-step question first and warn later interrogation technique at issue in Seibert.
II. Any Error Harmless
Finally, even if we assume the trial court erred in admitting defendant's statements to Officer Kiser, we find the error harmless. Defendant argues that his "pretrial statements were an essential factor in the jury's determination of [his] guilt" and, therefore, the error was prejudicial. We do not agree.
Federal constitutional errors are reviewed under the standard set forth in Chapman. (Arizona v. Fulminante (1991) 499 U.S. 279, 309-312; People v. Elizalde (2015) 61 Cal.4th 523, 542; People v. Cahill (1993) 5 Cal.4th 478, 510.) Under Chapman, we "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Gonzalez (2012) 54 Cal.4th 643, 663). "'To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86; accord, People v. Leon (2016) 243 Cal.App.4th 1003, 1020.) We consider "not only the evidence that would support the judgment, but also the impact of the inadmissible evidence on the final outcome." (People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.)
Defendant did not admit to alcohol consumption during any of his interactions with Officer Kiser and the arguable prejudice flows from his statement that he thought the northbound stoplight was red. There was conflicting evidence on this point, however. Both Eugenea and Alan told Officer Wimbley at the scene that the light was green as defendant passed them and entered the intersection, and Alan's trial testimony was consistent with his observation at the scene.
Critically, the jury's verdict reflects its rejection of the prosecutor's theory that defendant committed the illegal act of failing to stop at a red light. The jury found that defendant drove a vehicle under the influence of an alcoholic beverage (count 2) and with a BAC of 0.08 percent or greater (count 3). Defendant fails to explain how these findings are attributable to the admission of his statements to Officer Kiser. It was undisputed that he was the driver of the van and his BAC was evidenced not by any statements at the scene, but through Kiser's observations, the field sobriety testing and the results of the chemical breath tests. Given that the jury found in defendant's favor on the issue of the stoplight, the admission of his on-scene statements was harmless beyond a reasonable doubt and we reject his contrary claim. (Chapman, supra, 386 U.S. at p. 24; People v. Merritt, supra, 2 Cal.5th at p. 831.)
DISPOSITION
The judgment is affirmed.
MEEHAN, J. WE CONCUR: HILL, P.J. LEVY, J.