Opinion
G031495.
11-20-2003
In re SANTIAGO G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. SANTIAGO G., Defendant and Appellant.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela A. Ratner Soebeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court found Santiago G. committed three counts of robbery and one count each of grand theft and receiving stolen property. It also found he personally used a knife during two of the robberies. On appeal, Santiago contends the police violated his rights under the Fourth Amendment and Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We reject this contention, but we do agree with Santiago that the courts finding on the receiving stolen property count must be set aside and that the minute order of the dispositional hearing must be corrected. Other than that, we affirm the judgment.
* * *
In late 2001 and into 2002, Garden Grove and Westminster were hit by a series of robberies. While investigating the crimes, Detective Orlonzo Reyes learned that a man matching the robbers description was living in an apartment complex where two of the robberies had occurred. Reyes proceeded to the suspects apartment, where he was met by Santiagos mother Guadalupe. Reyes described the robber to her, and she said her son Oscar matched that description. However, she said Oscar was not home and no one other than herself and two toddlers were at the apartment. Nonetheless, Reyes asked if he could come in and look for anyone that might match the robbers description. Guadalupe said yes.
While searching the apartment, Reyes and his partner discovered Santiago in the east bedroom. Because he matched the robbers description, they took him into the living room and asked him if he knew anything about the robberies. Santiago said he did not. He then gave the officers consent to take his picture and search the east bedroom. Although Santiago said the bedroom was his, Reyes surmised it belonged to a female, based on the nature of its contents.
After searching the bedroom, Reyes returned to the living room and noticed a light coming from a door near the dining table. Reyes opened the door and discovered a closet that had been converted into a sleeping area. He asked Santiago if he slept there and if the items inside belonged to him. Santiago answered yes to both questions. He then gave Reyes permission to search the closet.
Inside, Reyes found several items that had been taken in the robberies, including checks, keys and jewelry. When Reyes asked Santiago about these items, he said he got them from his friends in exchange for some marijuana. At that point, Reyes arrested Santiago, read him his Miranda rights and took him into custody. When questioned at the police station, Santiago confessed to committing several of the robberies.
I
Santiago admits his mother gave the officers consent to search the apartment. However, he maintains her consent did not extend to a search of the closet where the stolen property was located. We disagree.
"[A]uthority to search pursuant to a consent must be limited to the scope of the consent." (People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 127.) "The standard for measuring the scope of a [persons] consent under the Fourth Amendment is that of `objective reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the [person]? [Citations]. . . . [¶] The scope of a search is generally defined by its expressed object. [Citation.]" (Florida v. Jimeno (1991) 500 U.S. 248, 251.)
In this case, the expressed object of the officers search was to look for anyone that matched the robbers description. Santiago argues that the officers should have halted their search once they found him inside the apartment. However, the fact he matched the robbers description certainly did not preclude the possibility there could have been other people inside the apartment that also matched the description. After all, he told the officers he knew nothing about the robberies. And Guadalupe had told them that her son Oscar also matched the robbers description. Although she said Oscar was not home, she also said she and the toddlers were the only ones inside the apartment, which, as it turned out, was not true.
The circumstances presented to the officers were, in short, very unsettled, and grew more suspicious with each passing minute. Utilizing the reasonable person standard to assess the officers actions, we do not believe they exceeded the scope of Guadalupes consent by continuing to look around the apartment after they discovered Santiago in the east bedroom. Rather, given the express scope of her consent and the circumstances that unfolded, Reyes acted correctly in opening the closet door to look for other suspects. And because he obtained Santiagos consent before entering and searching the closet, the items inside were lawfully seized. There was no violation of Santiagos Fourth Amendment rights.
II
Next, Santiago asserts the officers violated his Miranda rights at the apartment by asking him about the items found in the closet. Again we disagree.
An officers obligation to administer Miranda warnings does not arise until the suspect is in custody. (Stansbury v. California (1994) 511 U.S. 318, 322.) And the custody requirement is not triggered until "there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." (Ibid.) A temporary detention carried out for purposes of investigation does not meet this test. (People v. Clair (1992) 2 Cal.4th 629, 679.) "Such a detention . . . allows `the officer . . . [to] ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officers suspicions. [Citation.]" (Ibid.) As the Miranda court itself made clear, its decision was never intended to apply to "[g]eneral on-the-scene questioning as to facts surrounding a crime." (Miranda v. Arizona, supra, 384 U.S. at pp. 477-478.)
Despite this, Santiago argues that once the officers took his picture and found some of the stolen property the aura of suspicion was so great that "[a]ny juvenile in [his] position would have reasonably believed that he or she was not free to leave the apartment." However, "[e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue[.]" (Stansbury v. California, supra, 511 U.S. at p. 325.) The truth is, at the time Reyes initially asked Santiago about the stolen items in the closet, he had not accused Santiago of anything nor told him he was not free to leave. He had not handcuffed him, employed or displayed force, or taken any other action indicating Santiago was being deprived of his freedom in a manner associated with a formal arrest. They were still in Santiagos residence. Under these circumstances, we find Santiago was not in custody when Reyes briefly questioned him at the scene. Therefore, there was no Miranda violation at the apartment.
III
Santiago also claims Reyes violated his Miranda rights at the police station by ignoring his request to remain silent. The record does not support this claim.
After taking Santiago into the police station, Reyes reminded him that he was still under arrest and that his rights were still in effect. He also told Santiago it was important for him to tell the truth. That led to the following exchange:
"[Santiago]: Yes, now I would talk[], but I dont know to answer anything.
"[Reyes]: What?
"[Santiago]: I dont know to answer something because how am I supposed to answer, I dont know anything.
"[Reyes]: Okay. You do want to talk, right? Yes, you want to talk to me?
"[Santiago]: No, to talk we can talk.
"[Reyes]: Okay. So you dont have a problem if we talk. And you are going to tell me the truth. Yes?
"[Santiago]: Yes what?
"[Reyes]: That you are going to tell me the truth.
"[Santiago]: No, well.
"[Reyes]: Yes or no?
"[Santiago]: Well yes, well the truth — that is what you talk with — with the truth.
"[Reyes]: Okay. Okay. Okay, so you do not have a problem talking with me right now?
"[Santiago]: No, why would I have a problem?"
With that, Reyes began questioning Santiago about the robberies. At first, Santiago proclaimed his innocence, but he then admitted committing several of the robberies. Santiago claims his statements were inadmissible because he invoked his right to remain silent when he told Reyes, "No, to talk we can talk." The claim is not well taken. After a suspect is informed of his Miranda rights, the police may not interrogate him if he invokes his right to remain silent. (Miranda v. Arizona, supra, 384 U.S. at pp. 473-474.) However, if the invocation is ambiguous, the police may continue talking to the suspect in order to clarify whether he wants to invoke or waive his rights. (People v. Box (2000) 23 Cal.4th 1153, 1194.)
When Reyes asked Santiago whether he wanted to talk to him, Santiagos answer was patently ambiguous. He did utter the word no. But then he immediately said "we can talk." Given the contradictory nature of these responses, it was perfectly proper for Reyes to seek clarification on the issue. Santiago then made it clear he did not "have a problem" talking to Reyes. As this constituted a valid waiver of his right to remain silent, there was no Miranda violation. (See People v. Wash (1993) 6 Cal.4th 215, 238-239 [officers permissibly sought clarification of suspects intent after he told them, "I dont know if I wanna talk anymore."].)
IV
Next, Santiago argues the trial court improperly found he received stolen property. As the Attorney General admits, Santiago is correct because the property he allegedly received was the same property he stole during the robberies. (Pen. Code, § 496 [prohibiting multiple convictions for receiving stolen property and theft of the same property]; People v. Ortega (1998) 19 Cal.4th 686, 699 [robbery is a form of theft].) The courts finding on the receiving stolen property count must therefore be reversed.
V
Lastly, Santiago seeks a modification in the minute order of the dispositional hearing as it relates to the issue of victim restitution. We agree that the order should be modified.
At the dispositional hearing, the court placed Santiago under the care and supervision of the probation department and committed him to the local juvenile facility until he reaches the age of 19. The court also ordered Santiago to pay a $100 restitution fine and to "pay restitution to the victims" in an amount to be determined by the probation department.
The minute order of the dispositional hearing goes beyond this. It states, Santiago must "pay restitution on all counts, including those dismissed, as determined by [the] court and directed by probation, subject to a restitution hearing if [Santiago] requests." (Italics added.) The italicized phrase was apparently a reference to count four, a robbery count that was dismissed before trial. The problem is, Santiago was not found responsible for that robbery. Therefore, he could not be ordered to make restitution to the alleged victim in that count. (See Welf. & Inst. Code, § 730.6, subd. (a)(1) [limiting restitution to victims of conduct for which the minor is declared a ward of the court].)
The Attorney General does not take issue with this. Rather, he argues Santiago waived his right to challenge the minute order by failing to request a restitution hearing. It is true that the failure to challenge a discretionary sentencing decision generally constitutes a waiver for purposes of appeal. (See People v. Gonzalez (2003) 31 Cal.4th 745 .) But, in the absence of a stipulation, the court in this case was not authorized to order victim restitution with respect to a count that was dismissed. Because the minute order reflects an unlawful disposition, the waiver rule does not apply. (See People v. Scott (1994) 9 Cal.4th 331, 354.) Therefore, Santiagos failure to request a restitution hearing does not foreclose his successful challenge to the minute order.
DISPOSITION
The courts true finding on count six, receiving stolen property, is reversed. In addition, the clerk of the trial court is ordered to modify the minute order to reflect that Santiagos restitution obligation to the victims does not encompass any counts that the court dismissed. In all other respects, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.