Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. TA084128, Allen J. Webster, Jr., Judge. Affirmed.
Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Tautalafua.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant Lui Afusia.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P.J.
A jury convicted Anthony Tautalafua of two counts of second degree robbery, with findings as to both counts that he personally used a firearm. The same jury convicted Lui Afusia of one count of second degree robbery, with a finding that a principal was armed with a firearm. (Pen. Code, §§ 211; 12022.53, subd. (b); 12022, subd. (a)(1).) The trial court sentenced Tautalafua to state prison for 13 years. The trial court sentenced Afusia to state prison for 3 years. Tautalafua and Afusia appeal. We affirm.
All further section references are to the Penal Code except where otherwise noted. The amended information included two additional counts, but those charges are not involved in this appeal, and we ignore those counts in this opinion.
FACTS
The Song Robbery (Count 2)
On January 8, 2006, Tautalafua walked into a liquor store on Carson Street, pointed a gun at the store’s owner, Sung Song, and demanded money. Song gave $200 or $300 to Tautalafua, who then ran from the store.
Los Angeles County Deputy Sheriff Detective Joshua Stahl investigated the Song robbery. During the course of his investigation, Detective Stahl showed a “six-pack” photograph lineup to Song. (Exhibit No. 6B.) Song identified Tautalafua’s photograph by writing on the array, “I’m 90% sure this is the guy.”
At trial, Song testified that she was “positive that [the robber was] either one of [those] two” (referring to Tautalafua and Afusia who were seated at the defense table).
The Ruiz Robbery (Count 1)
On January 10, 2006, Ana Ruiz was inside her family’s burger restaurant in Carson when she noticed Michael Cabansag and another male walking back and forth outside the premises. Cabansag made a phone call, and then, a few minutes later, signaled to another man who appeared on the scene wearing a mask. Cabansag met the masked male in the middle of the street. The masked male then walked to the restaurant and kicked open the door while holding a gun. Although Ruiz could only see the masked man’s eyes, she recognized the man as Tautalafua, who was an occasional customer of the restaurant (he “would come there once in a while”). Tautalafua pointed the gun at Ruiz and told her to give him all the money. Ruiz gave about $85 to Tautalafua, who then escaped in a car that had been waiting outside the restaurant. Ruiz called the police.
Cabansag was charged in both robbery counts, along with Tautalafua and Afusia, but he is not a party to this appeal.
Maryfel Abales had been a customer in the Ruiz restaurant. When police responded to the scene, she told officers that she knew the people involved in the robbery. Abales showed officers where Cabansag lived.
Detective Joshua Stahl also investigated the Ruiz robbery. During the course of his investigation, Detective Stahl showed a series of “six-pack” photograph lineups to Ruiz (exhibit Nos. 12B and 17B) and Abales (exhibit No. 13B). Ruiz identified Cabansag from one six-pack as “the guy that signal[ed] the guy with the mask.” Ruiz identified Tautalafua as the robber from another six-pack, writing on the array, “sus ojos son los que llo mire” [“his eyes are the ones I saw”]. (Exhibit No. 17B.) Abales identified Afusia from another six-pack as “the look out.” Detective Stahl “put a want in the system” for Cabansag. Cabansag and Tautalafua were subsequently arrested during a vehicle stop.
Afusia later helped Detective Stahl recover a .25-caliber handgun.
Trial
In December, the People filed an amended information charging Tautalafua and Afusia with the second degree robbery of Ana Ruiz (count 1) and the second degree robbery of Sung Song (count 2). As to both counts, the information alleged that Tautalafua had personally used a firearm during the offenses, and that, as to Afusia, a principal had been armed with a firearm during the offenses. (§§ 211; 12022.53, subd. (b); 12022, subd. (a)(1).)
The charges were tried to a jury trial in late December, during which the People presented substantial evidence establishing the facts summarized above. The People also presented evidence showing that, after Tautalafua had been arrested, he waived his Miranda rights and confessed to the Song robbery and the Ruiz robbery. Additional evidence showed that Detective Stahl had also interviewed Afusia, who stated that he had acted as a lookout during the Ruiz robbery. Tautalafua and Afusia did not present any defense evidence.
On January 2, 2007, the jury returned verdicts convicting Tautalafua of the Ruiz and Song robberies (counts 1 and 2), with findings as to both crimes that he had personally used a firearm. The jury convicted Afusia of the Ruiz robbery (count 1), with a finding that a principal had been armed with a firearm. The jury found Afusia not guilty of the Song robbery (count 2).
DISCUSSION
Tautalafua’s Appeal
I.
Tautalafua contends his conviction for the robbery of Ana Ruiz (count 1) must be reversed because the trial court erred when it denied his motion pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602] to exclude evidence of a statement that he made to police at the time of his arrest. We disagree.
A.
Three days after the Ruiz robbery, Long Beach Police Department Officer Richard Armond and his partner stopped a Honda in which Afusia, Tautalafua, Cabansag, and Josiah Pouli were riding. Following an on-site investigation, the officers arrested Cabansag and Tautalafua. When the prosecutor called Officer Armond at trial to testify about the traffic stop, Tautalafua moved to exclude any evidence about a statement that Tautalafua had made during the traffic stop. The trial court conducted a hearing on the issue under Evidence Code section 402.
Officer Armond testified at the hearing that he and his partner were on patrol when they “ran” the license plate on a 1991 Honda Civic and “it returned with a wanted person [Cabansag] on the plate.” Based on this information, the officers initiated a traffic stop. There were four people in the car –– Afusia (the driver), Tautalafua, Cabansag, and another male. Upon identifying Cabansag, the officers removed him from the vehicle, and handcuffed and arrested him. The officers then removed Afusia, Tautalafua and the third male from the car and obtained their names and dates of birth in order to “run them on the computer.” The officers had the three males sit on the curb during this process. The officers did not handcuff the three males but did not consider them free to leave until the officers had identified them.
After learning that Afusia did not have a driver’s license, Officer Armond and his partner proceeded to impound the Honda. While searching the car, Officer Armond found a knit mask under the front passenger seat. Officer Armond held up the mask, and asked, “Whose is this?” and Tautalafua answered, “It's mine.” At some point during the traffic stop, Officer Armond talked to Detective Stahl by cell phone, and Detective Stahl asked Officer Armond to take Tautalafua into custody along with Cabansag.
Tautalafua’s testimony at the evidentiary hearing largely mirrored Officer Armond’s testimony but with one exception. According to Tautalafua, the police officers had handcuffed him, Afusia and Josiah before sitting them down on the curb, and “everybody” was still in handcuffs when Officer Armond searched the car, found the mask, and asked about its ownership.
After hearing argument, and explaining its understanding of the case law, the trial court found that the two officers had detained the four males in the car, that the detention had lasted between 25 and 30 minutes, that the police did not use coercive tactics or threatening gestures, and that, aside from Cabansag, who had a warrant for his arrest, the officers had no information that the other males were involved in any crimes.
The trial court denied Tautalafua’s motion to exclude evidence regarding his statement (“It’s mine”), ruling that Officer Armond’s question regarding the mask had not been a custodial interrogation because it had not been asked in circumstances tantamount to an arrest. As the court explained: “It was not a formal arrest or anything that would be even closely related to that. But basically an interview and investigation to get more information. And so whether they were handcuffed or not, and that's disputed, it does appear to the court that this is not any sort of coercive tactics, it is not an arrest and Miranda warnings need not [have been] given.”
B.
Tautalafua contends his original detention by traffic stop had “ripened into custody requiring a Miranda warning before [Officer Armond] held up the mask and asked . . . about its ownership.” It follows, argues Tautalafua, that the trial court erred when it denied his Miranda motion at his trial. We disagree.
C.
A defendant’s Miranda claim implicates two fundamental issues: first, had the police taken defendant into “custody” at the time defendant made a statement, and, second, did the police “interrogate” the defendant to elicit the statement. The element of “custody” encompasses both formal arrest and any situation in which a person has been ““‘otherwise deprived of his freedom of action in any significant way.’”” (People v. Mayfield (1997) 14 Cal.4th 668, 732, quoting Miranda.) Absent “custody,” Miranda “simply does not come into play.” (People v. Mickey (1991) 54 Cal.3d 612, 648.)
“‘[I]nterrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Rhode Island v. Innis (1980) 446 U.S. 291, 301, fns. omitted [100 S.Ct. 1682].)
Not all police inquiries, however, amount to “interrogation” requiring Miranda warnings. Preliminary investigative inquiries designed to obtain identifying information, or to confirm or dispel the suspicion of criminal conduct, may be outside the parameters requiring Miranda warnings. (People v. Morris (1991) 53 Cal.3d 152, 198 two brief questions to learn defendant's identity and his relationship to a vehicle used in connection with criminal activity did not violate Miranda; disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
The rule excluding preliminary inquiries from the scope of Miranda “recognizes the value of routine and nonintrusive police inquiry before arrests and accusations are made. Such inquiry serves to minimize mistakes and protect the innocent. . . . ‘One of the primary purposes of preliminary questioning is to separate a group of persons possibly involved in a crime into those who should and those who should not be arrested –– to decide whether all, some, or none should be charged. To turn all such questioning into custodial interrogation, requiring Miranda warnings in all cases, may help those eventually charged. But, it could also seriously interfere with the process of information gathering and on occasion force the police to cast their net of arrest too wide, significantly interfering with the liberty of the innocent.’” (People v. Morris, supra, 53 Cal.3d at p. 198.)
D.
Assuming that Tautalafua was factually and legally in “custody” within the meaning of Miranda, we find that Officer Armond did not “interrogate” Tautalafua. The setting for Officer Armond’s inquiry regarding the mask was on a public roadway. Up to the point in time of Officer Armond’s inquiry, the traffic stop had focused on Cabansag, and not on Tautalafua or any of the other occupants of the car. Officer Armond had no information that any one else in the car was a suspect in any criminal activity. Officer Armond’s general inquiry was brief and was not directed to any one particular occupant of the car. Officer Armond’s inquiry was not coercive. Officer Armond’s inquiry, at most, self-evidences an intent to do no more than separate out from a group of persons those who were possibly involved in a crime –– to decide whether all, some, or none should be charged. (People v. Morris, supra, 53 Cal.3d at p. 198.)
E.
Finally, assuming the trial court committed Miranda error by declining to exclude Tautalafua’s “It’s mine” statement, we find that the erroneous use of the statement in violation of Miranda was harmless beyond a reasonable doubt. (People v. Morris, supra, 53 Cal.3d at p. 198; and see also Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824]; Arizona v. Fulminante (1991) 499 U.S. 279, 310 [111 S.Ct. 1246.) Tautalafua’s prejudice argument focuses exclusively on his roadside statement. We are completely satisfied that the jury’s verdict did not hinge on Tautalafua’s roadside statement. Tautalafua ignores that, after his arrest, he waived his Miranda rights and expressly confessed to the Ruiz robbery. (Oregon v. Elstad (1985) 470 U.S. 298, 303-309 [105 S.Ct. 1285] [the “fruit of the poisonous tree” doctrine does not apply to a Miranda violation; only an initial statement itself must be excluded; any subsequent statement is admissible when given voluntarily]; cf. People v. Bradford (1997) 14 Cal.4th 1005, 1040 [a statement taken in violation of a defendant’s invocation of the right to counsel only justifies suppression of the statement itself, not other evidence obtained through the use of the unlawful but uncoerced statement].)
II.
Tautalafua contends his conviction for the robbery of Ana Ruiz must be reversed because the trial court violated his right of confrontation under the Sixth Amendment when it limited cross-examination of prosecution witness Maryfel Abales. We disagree.
A.
During cross-examination of Abales by Tautalafua’s counsel, Abales acknowledged that she could not see the face of the man who wore the mask during the Ruiz robbery and could not identify Tautalafua as the robber. Tautalafua’s counsel did not question Abales about her criminal history.
During cross-examination of Abales by Cabansag’s counsel, an issue arose about Abales’s criminal history. At a side-bar conference, the prosecutor said that Abales’s “rap sheets” showed that she had been arrested for misdemeanor petty theft in August 2005 but did not show whether she had been convicted. When Cabansag’s counsel suggested that Abales’s “crime” involved moral turpitude, the prosecutor responded that an arrest was not a crime, and that a conviction was needed for impeachment. The trial court instructed the lawyers to verify whether Abales had suffered a conviction.
Later that day (after Abales had been excused), Cabansag’s counsel advised the trial court that she and the prosecutor were working on a stipulation for the court to advise the jury that Abales had been convicted of petty theft in August 2005 for stealing clothing from a J.C. Penney store. (Cabansag’s counsel wanted the jury to hear that Abales had been convicted of “petty theft, a crime of moral turpitude,” not merely that she had been convicted of “petty theft.”) When Cabansag’s counsel requested that the jury also be informed that Abales was on probation, the court denied the request. Before the jury began its deliberations, the trial court instructed the jury to accept as fact the parties’ stipulation that Abales had been convicted of petty theft conviction in August 2005 for stealing clothing from a J.C. Penney store.
B.
The Confrontation Clause of the Sixth Amendment guarantees the accused in a criminal trial an “opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20 [106 S.Ct. 292].) Given this predicate, a trial court may limit cross-examination of a witness without running afoul a defendant’s right of confrontation, unless a reasonable juror “might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted. (People v. Quartermain (1997) 16 Cal.4th 600, 623-624, citing Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [106 S.Ct. 1431].)
C.
Assuming Tautalafua may complain on appeal about an issue which arose from cross-examination conducted by Cabansag’s trial counsel, we see no possibility that any reasonable juror would have received a significantly different impression of Abales’s credibility had Cabansag’s counsel been permitted to cross-examine Abales about her prior petty theft conviction.
First, the court –– pursuant to stipulation –– advised the jury about Abales’s conviction for petty theft. Second, the trial court did not abuse its discretion by excluding information about Abales’s probation status. We see no persuasive argument in Tautalafua’s opening brief on appeal which explains how the jury’s knowledge that Abales was on probation would have affected her credibility. There is nothing in the record to suggest that the prosecution offered Abales anything in exchange for her testimony regarding the Ruiz robbery. There is nothing in the record to suggest that Abales was granted probation in her own theft case in exchange for her testimony at Tautalafua’s trial. Indeed, Abales was convicted of petty theft in August 2005, months before the Ruiz robbery in January 2006. We see no constitutional error, and no possibility of prejudice in light of Tautalafua’s confession. (People v. Pensinger (1991) 52 Cal.3d 1210, 1272-1273; Delaware v. Van Arsdall, supra, 475 U.S. at pp. 680-683 [violation of right of confrontation at trial reviewed under Chapman harmless error standard].)
III.
For the reasons explained above, we reject Tautalafua’s contention that his conviction must be reversed for cumulative error comprising his Miranda claim and his Sixth Amendment claim.
Afusia’s Appeal
I.
Afusia contends the trial court failed to obtain a current probation report before sentencing. The court’s error, argues Afusia, means that his sentence must be vacated, and that he must be granted a new sentencing hearing. On a more practical level, Afusia contends his case should be remanded to the trial court in order for the court to reconsider whether to grant him probation. We disagree.
A.
Afusia’s probation report indicates that it was prepared as a “pre-conviction” report for a hearing scheduled on “4/21/2006.” The report’s recommendation provided: “If convicted, it is recommended that probation be denied, and that [Afusia] be sentenced to state prison.” The People filed the original information in August 2006. The People filed the operative amended information in December 2006. The jury returned its verdicts on January 2, 2007. Following the verdicts, a question arose whether the trial court was “going to [send the defendants] downstairs . . . to talk to probation for presentencing?” and the court answered: “No. No. They’ve all done all of that. [¶] There’s a preplea report. We don’t send them down again. . . .” The trial court sentenced Afusia on February 6, 2007. To make a long story short, Afusia’s probation report was 10 months old by the time of sentencing.
B.
Section 1203, subdivision (b)(1), provides: “[I]f a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court . . . upon the circumstances of the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment.” Subdivision (b)(3) provides that the court “shall consider the [probation report] and shall make a statement that it has considered the report” at the hearing to determine the suitability of probation. Subdivision (b)(4) provides: “The preparation of the report or the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court . . . .”
C.
Afusia’s arguments on appeal do not persuade us to vacate his sentence. A probation report was prepared in his case. The issue, therefore, is whether a second or supplemental report should have been prepared. Afusia did not request such an additional report. More importantly, the trial court permitted Afusia to present substantial input at the time of sentencing on the issue of probation. The court accepted letters which showed that Afusia had finished high school while he was in custody, and included a custody officer’s opinion that Afusia was “an outstanding young man.” Afusia spoke. His fiancé spoke. Several relatives appeared and were recognized.
After listening to Afusia’s presentation, the trial court denied probation for the following stated reasons: “The court did . . . preside over the trial and did hear the trial in its entirety, and believes that this is a pretty serious case. And this [was] a planned robbery with a gun. [¶] And I think all three defendants are basically good human beings, I just think basically their adrenalin got the best of them, plus the fact they kind of fed off each other’s negative influences and one thing led to another, consequently, they are where they are as a result of this unfortunate incident. And then they basically wrote a confession, . . . pretty much apologizing for doing these dastardly acts. [¶] Nevertheless, the court’s sentence is going to be [a prison term].”
Although Afusia may be correct that the trial court failed to follow the rules with precision –– e.g., it did not state that it had reviewed the probation report –– he has not convinced us to vacate his sentence. There is nothing in Afusia’s opening brief on appeal to show what further information he wanted to present at sentencing or wants to present to the trial court at resentencing. Given this context, we reject Afusia’s abstract arguments that resentencing is required to allow the trial court to exercise its discretion based upon a full consideration of all relevant sentencing factors. The bottom line is that Afusia has not shown that any purpose would be served by a new sentencing hearing because he has not shown that there is a reasonable probability that the trial court would have granted probation had it been presented with some further facts, or that it would grant probation if it is presented with some further facts. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1318-1319.)
DISPOSITION
The judgments are affirmed.
We concur: ROTHSCHILD, J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.