Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. KA075749, George Genesta, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
The jury convicted defendant Michael Rudolph Camacho of failing to register as a sex offender. (Former Pen. Code, § 290, subd. (a)(1)(A).) Defendant contends on appeal that: (1) his right to due process under the federal and state Constitutions was violated by a 10-month delay between his arrest in another county for a related parole violation and the filing of this case in Los Angeles County for a section 290 violation; (2) the trial court should have declared a mistrial on its own motion for juror misconduct or, alternatively, his attorney was ineffective in addressing the misconduct issue; and (3) his pretrial statement elicited in violation of Miranda v. Arizona (1966) 384 U.S. 436 was inadmissible. We affirm the judgment.
All further undesignated statutory references are to the Penal Code. Former section 290, subdivision (a)(1)(A) provided: “Every person described in paragraph (2), for the rest of his or her life while residing in California, or while attending school or working in California, as described in subparagraph (G), shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides.” (Stats. 2006, ch. 337 (S.B. 1128).) All further references to section 290 are to this quoted version of the statute.
BACKGROUND
The sole disputed issue at trial was whether defendant, who owns a cabin in San Bernardino County, was maintaining a second residence at his girlfriend’s home in Los Angeles County during the first half of 2006. It was undisputed that although defendant was registered as a sex offender in San Bernardino County, he was not registered in Los Angeles County where his (now former) girlfriend lives.
The jury received the following stipulated evidence: (1) defendant was convicted of an undisclosed prior sex offense; (2) defendant knew that, as a result of his prior conviction, he must register in each county where he regularly resides and disclose each of his residence addresses; and (3) defendant never registered as a sex offender in Los Angeles County or disclosed his former girlfriend’s address in Los Angeles County.
The jury was informed that, by law, defendant was required to notify his parole officer before moving to another residence or establishing a second residence. The jury was also told that defendant had received and initialed a sex offender registration requirement form, which explained the dual residence registration requirement as follows: “If I have more than one residence address at which I regularly reside, regardless of how many days or nights, I must register all addresses and/or locations with the law enforcement agency or agencies having jurisdiction over them.”
Defendant’s former girlfriend, Lupita Bland, testified for the prosecution. She stated that during the six months before defendant’s arrest, defendant stayed at her “house for five, sometimes six days a week,” and returned to his cabin in Green Valley Lake only once a week. She claimed they “were living together” at her home. Defendant kept “[a]lmost all of his clothing [and] personal items” at her home, received mail at her home, and shared her Blockbuster account at a store near her home. Also, she had purchased a motorcycle for him that was registered in both their names at her address.
In defense, defendant attacked Bland’s credibility. Christopher Cole, defendant’s friend and coworker, testified that between 2004 and 2006, he had worked with defendant, a contractor, on numerous construction projects. During the first five months of 2006, Cole, who lives in Claremont, stayed with defendant every night at his cabin in Green Valley Lake. They carpooled to work in Cole’s truck, going first to Running Springs to do “a cabin remodel,” and then to Bland’s home in Diamond Bar or other job sites in Walnut. They then returned to Green Valley Lake and spent each night at defendant’s cabin. The drive from Running Springs to Diamond Bar took, “[w]ithout traffic, about an hour and 15 minutes, an hour and a half maybe.”
To establish Bland’s motive to lie, defendant’s father, Rudolph Camacho, testified that after defendant was arrested in 2006, Bland “was pretty angry at” defendant. “She said she never wanted to see him again.” “[I]t seemed to me there were . . . two reasons why she was angry. One was I guess her son and her daughter had made an ultimatum to her that it was either Michael [defendant] or them. . . . The other was she was angry about the status of her house. It wasn’t complete.” Defendant’s father further testified that he knew defendant was living at the cabin in Green Valley Lake because “[a]ll his stuff was there.” Defendant did not receive mail at the cabin, he explained, because “there’s a lot of difficulty to get mail up in that area. They have to go through a post office box.” “In fact, that’s why he gets a lot of mail at my house.”
In rebuttal, Bland’s next door neighbor, Charlene Clark, testified that during the first half of 2006, she saw defendant’s truck outside Bland’s home “pretty much every day” when she took her daughter to school at 8 a.m. She saw defendant working at Bland’s home “pretty much all day almost every day,” building a block wall and digging a swimming pool.
The jury, which began deliberating at 2:01 p.m., reached a guilty verdict by 3:18 p.m. the same day. Defendant, having waived his right to a jury trial on the prior felony conviction allegations (§§ 1170.12, subds. (a)-(d), 667, subd. (b)-(i), 667.5, subd. (b)), admitted his prior sex offense conviction. The trial court struck a prior prison term allegation and sentenced defendant to a two-year middle term, which was doubled under the Three Strikes Law, resulting in a four-year sentence. This appeal followed.
DISCUSSION
I. Due Process
Defendant contends that his right to due process was violated by the 10-month delay between his arrest for the parole violation and the filing of this case. For the following reasons, we reject his contention.
A. Relevant Facts
During the first half of 2006, defendant was supervised by his parole officer Eric Summers in San Bernardino County, where he was registered as a sex offender. On May 11, 2006, Summers became concerned because, after leaving a note on defendant’s cabin door on the evening of May 10 instructing him to be home the next morning, the note was still on the door of defendant’s empty cabin at 7:40 a.m. on May 11. Summers testified that defendant’s absence was unusual because he “was able to be there when I instructed him to be there on previous home visits.” Summers further explained that “[i]t’s unusual for someone to not comply with . . . an instruction from the parole agent.” Summers stated that although defendant was required to keep him informed of his employment, defendant never told him that he was working in Diamond Bar.
When Summers spoke with defendant by telephone on May 11, defendant claimed that he was home on the night of May 10, but had left home early on May 11 to return rental equipment to San Bernardino before 8 a.m. At Summers’s request, defendant went to the Twin Peaks station of the San Bernardino County Sheriff’s Department to speak with Deputy James Bergendahl on May 30, 2006. When Bergendahl asked defendant to empty his pockets, he found a Blockbuster Video card and vehicle insurance card with Bland’s name and address in Diamond Bar. Bergendahl asked defendant for Bland’s telephone number, which defendant refused to provide.
On May 30, 2006, defendant was arrested in San Bernardino County for violating the terms of his parole. The San Bernardino District Attorney’s Office refused to file charges under section 290 for defendant’s failure to register as a sex offender in Los Angeles County. The record is silent as to when or how this case was brought to the attention of the Los Angeles County District Attorney’s Office.
Following a parole revocation hearing, which resulted in the revocation of defendant’s parole, defendant was imprisoned for eight months.
In March 2007, as his release date was approaching, the Los Angeles County District Attorney charged defendant in this case with one count of violating section 290, subdivision (a)(1)(A). Defendant was held to answer following a preliminary hearing on April 16, 2007, and was arraigned on April 30, 2007.
On May 25, 2007, defendant moved to dismiss the present case, alleging that he was denied his rights to a speedy trial and due process under the state and federal Constitutions. He argued that his right to due process was violated by the delay between his arrest in San Bernardino County for violation of parole and the filing of the present case in Los Angeles County for failing to register as a sex offender.
As defendant is no longer arguing that his constitutional right to a speedy trial was violated, we will not discuss the issue on appeal.
Defense counsel submitted a declaration stating that because both Bergendahl and Summers were fully aware of the identical facts involved in the parole revocation hearing and the present case, defendant should not be “prosecuted now based on evidence which has been in the custody and control of the Government since the initial investigation of this case in May 2006. Nothing was done by the Government after the San Bernardino District Attorney rejected the case other than [revocate] [defendant’s] parole.” Defense counsel further attested that defendant “lost the opportunity to properly investigate and gather evidence on his behalf because he was effectively led to believe that the case was essentially over when the State Parole Board sentenced him to the State Penitentiary. [¶] . . . [Defendant] has been sentenced to and has served eight months in custody since the date of this incident and thereby has suffered loss of the opportunity of receiving concurrent time on this case or working out a favorable disposition thereby suffering actual prejudice.”
Defendant argued in his moving papers that he was prejudiced by the delay in prosecuting this case. He stated that “[d]ue to the delay on the part of the prosecution defendant has suffered a loss of memory and anxiety. In addition to this, potential witnesses have also likely suffered a loss in memory which will prevent them from recalling the events which transpired on the date of defendant’s arrest. Also physical evidence which should have been maintained cannot be found.” (Emphasis omitted.)
In opposition, the prosecution pointed out that defendant had not provided the Los Angeles County District Attorney with a section 1381 demand to be brought to trial in all pending cases within 90 days. Moreover, the prosecution argued, even if such a demand had been made, it would have been premature and the 90-day time period would not have commenced until charges were filed in the present case.
The trial court denied the motion on September 25, 2007. The trial court found that defendant was simply making “a bald assertion” of prejudice without providing a declaration in support of his claim of unavailable witnesses and faded memories. Moreover, the court stated that “defendant already knew, based upon a parole revocation hearing, of the need to have or locate witnesses.” In addition, the court pointed out that the record does not support a finding that the prosecution had delayed in filing this case.
B. Standard
“Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504-507; see also People v. Morris (1988) 46 Cal.3d 1, 37, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5; People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 910-912.) A claim based upon the federal Constitution also requires a showing that the delay was undertaken to gain a tactical advantage over the defendant. (See United States v. Lovasco (1977) 431 U.S. 783, 795; see also People v. Frazer (1999) 21 Cal.4th 737, 774 [overruled on other grounds in Stogner v. California (2003) 539 U.S. 607, 610].) We have observed that ‘[p]rejudice may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.’ (People v. Morris, supra, 46 Cal.3d at p. 37.)” (People v. Catlin (2001) 26 Cal.4th 81, 107.) Where the issue is one of fact, the trial court’s ruling is reviewed on appeal under the substantial evidence standard. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 912; People v. Mitchell (1972) 8 Cal.3d 164, 167.)
C. Application
Defendant was arrested in San Bernardino County for the parole violation on May 30, 2006, and was charged in Los Angeles County for failing to register as a sex offender in March 2007. Given that the record is silent as to how and when this matter was brought to the attention of the Los Angeles County District Attorney, there is no evidence to support an inference of a delay in prosecution. The mere fact that the present case was initiated 10 months after defendant was arrested for the parole violation in another county does not establish there was either a purposeful or negligent delay by the government in the filing of this case. We therefore may affirm the trial court’s ruling on this basis alone.
In any event, defendant has also failed to show any prejudice from the alleged delay. Although he referred in general to the fading of memories and the loss of physical evidence, as the trial court pointed out, he did not provide any declarations to support his “bald assertion” of prejudice. Even if we assume, for the sake of argument, that a delay had occurred, “[i]f defendant fails to show prejudice, the court need not inquire into the justification for the delay since there is nothing to ‘weigh’ such justification against. This is particularly true when there is no evidence the delay was for the purpose of weakening the defense. [Citation.]” (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.)
The trial transcript fails to support defendant’s contention that he was prejudiced by the alleged delay. The defense offered evidence that Bland had lied about their living together because she was angry with him. Cole testified that he was living with defendant in Green Valley Lake during the first half of 2006. Cole’s testimony on this point was clear and unequivocal. There is no indication in the record that Cole’s testimony was weakened by the passage of time. Moreover, there is no suggestion in the record or defendant’s argument on appeal that any relevant physical evidence was lost due to the passage of time. The loss of a possibility of concurrent sentencing does not in itself establish prejudice. (People v. Lowe (2007) 40 Cal.4th 937, 945.)
Defendant points out that several witnesses could not recall certain dates at the preliminary hearing or trial. For example, Cole could not remember at the preliminary hearing the exact date when he began working at Bland’s house; Bland’s neighbor Bruce Finn could not remember the exact dates when he saw defendant working at Bland’s house; and Bland could not remember the dates when defendant was arrested, when defendant finished the room addition, when she went to defendant’s cabin, and when she spoke with Bergendahl.
Given that defendant has failed to establish the existence of a prejudicial delay, the burden never shifted to the prosecution to show justification for the delay. (Scherling v. Superior Court, supra, 22 Cal.3d at p. 505.)
II. Juror Misconduct
Defendant contends that the trial court should have declared a mistrial on its own motion for juror misconduct or, alternatively, that his trial counsel was ineffective in addressing the misconduct issue. We disagree.
A. Relevant Facts
The jury heard evidence over two days. Before the noon recess on the first day, the trial court instructed the jury “not to converse among yourselves or with anyone else on any subject connected with this trial or form or express an opinion on it until it’s submitted to you.” After the jurors were excused for the noon recess, parole officer Summers reported to the prosecutor that while the jurors were leaving the courtroom, one of the jurors had said “something to the effect of ‘can’t we just convict him now?’” Summers did not see the juror who made the alleged remark and could not identify the voice as male or female.
Before the afternoon session resumed, the prosecutor informed the trial court and defense counsel of the alleged remark. Defense counsel argued that the alleged remark constituted evidence of possible juror misconduct, because “obviously, whoever made that statement is not following the court’s instructions to not even think about the evidence until everybody has gathered in the deliberation room and the case has been given to them.”
At defense counsel’s request, the trial court immediately questioned the jurors individually as to whether they had heard or made the alleged remark. After all of the jurors denied hearing or making the alleged remark, the trial court discussed the matter outside the jury’s presence. The trial court concluded that “[e]ither the parole agent was mistaken or the person making the statement or those who were in proximity to hear the statement aren’t admitting to such. So I’ll just give them a general admonition again when they return to the courtroom about the importance of reserving judgment until all the evidence is in and the case has been argued and submitted to them. And that’s all I can do at this point.” Both attorneys stated that they had nothing further on the subject. Neither attorney requested that Summers be brought in for questioning or that a mistrial be declared.
When the jurors returned to the courtroom, the trial court explained that it had received a report that an unidentified juror had made a remark about “not wanting to wait any further and wanted to reach a verdict.” After pointing out that “the person [who heard the alleged remark] may have misunderstood or misheard what was being said,” the trial court admonished the jury not to make any “snap judgments,” but to “wait until all the evidence is in, all the witnesses have been heard,” all the instructions have been given, and all the closing arguments have been made before beginning deliberations. “Up until that point in time, you may be processing individually and getting impressions of the evidence. But until all the evidence is in, you should not have any final impressions in terms of what you believe your verdict should be because you have not even heard the charge in terms of what the law is in terms of the elements of the crime.” “Having said that, I trust that each of you will continue to follow your duties as a juror and reserve judgment until it is time for you to begin deliberations.”
B. Standard
Section 1122, subdivision (a) provides in relevant part: “After the jury has been sworn and before the people’s opening address, the court shall instruct the jury generally concerning its basic functions, duties, and conduct. The instructions shall include, among other matters, admonitions that the jurors shall not converse among themselves, or with anyone else, on any subject connected with the trial . . . .” Subdivision (b) provides: “The jury shall also, at each adjournment of the court before the submission of the cause to the jury, whether permitted to separate or kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them.”
A violation of section 1122 is “serious misconduct.” (In re Hitchings (1993) 6 Cal.4th 97, 118.) When a trial court learns of possible misconduct, it “must investigate reports of juror misconduct to determine whether cause exists to replace an offending juror with a substitute. [¶] As we recently explained in People v. Burgener (1986) 41 Cal.3d 505 [disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743], ‘[s]ection 1123 gives the trial court the authority to discharge a juror “found to be unable to perform his duty.” [Fn. omitted.] Section 1089 provides for the substitution of an alternate juror in the event one of the original jurors is discharged. [Fn. omitted.] . . . California cases construing these statutes have established that, once a juror’s [inability to perform his duty] is called into question, a hearing to determine the facts is clearly contemplated. [Citations.] Failure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion subject to appellate review. [Citations.]’ (Pp. 519-520, italics added.)” (People v. Keenan (1988) 46 Cal.3d 478, 532, fn. omitted; People v. Jenkins (2000) 22 Cal.4th 900, 985.)
The trial court “has broad discretion as to the mode of investigation of allegations of juror misconduct. [Citations.] Even cases suggesting a ‘full investigation’ is necessary in such cases imply that this duty is satisfied by the court’s examination of pertinent witnesses. [Citation.]” (Keenan, supra, 46 Cal.3d at p. 539; Jenkins, supra, 22 Cal.4th at p. 985.) “Since the court has power to investigate and discharge jurors who refuse to adhere to their oaths, it may also take less drastic steps where appropriate to deter any misconduct or misunderstanding it has reason to suspect.” (Keenan, supra, at p. 533.)
C. Application
Preliminarily, we note that defendant assumes in his opening brief that the alleged remark constituted misconduct. He concludes that the juror who made the alleged remark was necessarily guilty of prejudging the case before hearing all of the evidence, expressing an opinion on the case before deliberations, and lying to the trial court during the investigation of the alleged remark. We disagree. There are any number of innocent explanations for the alleged remark, which might have been misheard or might have had nothing to do with the present case. The mere fact that the alleged remark was made does not establish that there was misconduct.
At most, the alleged remark constituted evidence of possible misconduct. Defense counsel timely objected on this basis and asked that the trial court investigate the matter, which it did. The investigation uncovered no evidence to warrant either a further investigation or a finding of misconduct. Satisfied that the jurors were capable of performing their duties and that any possible prejudice was curable by admonition, the trial court resumed the trial after again admonishing the jurors not to form or express an opinion regarding the trial before the cause was submitted to them for their consideration.
“A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. (People v. Woodberry (1970) 10 Cal.App.3d 695, 708.) Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (Illinois v. Somerville (1973) 410 U.S. 458, 461-462.) Accordingly, it would be a rare case in which the merits of a mistrial motion were so clear that counsel’s failure to make the motion would amount to ineffective assistance.” (People v. Haskett (1982) 30 Cal.3d 841, 854.)
On appeal, we necessarily rely on the trial court’s assessment of the jurors’ demeanor and responses to its inquiries. The record does not suggest that the purported remark, assuming it was made, was so prejudicial that it could not be cured by an admonition. After concluding its investigation, the trial court made it clear to the jury that the alleged remark, assuming it was made, was inappropriate. Having been individually questioned on the matter and clearly warned that they should not form or express an opinion before the cause was submitted for their consideration, the jurors were not likely to disregard the trial court’s instruction. (People v. Harris (1994) 9 Cal.4th 407, 431 [jurors are presumed to follow instructions].) Having found no basis to disqualify any of the jurors, the trial court was not obligated to reexamine them as to their ability to maintain an open mind. (See People v. McNeal (1979) 90 Cal.App.3d 830, 839.)
We reject defendant’s assertion that a further investigation was required. The record fails to suggest that a further investigation, such as questioning Summers about the alleged remark, was likely to be fruitful. Given that Summers did not see the person who made the alleged remark and could not identify the voice as male or female, he was unlikely to provide additional assistance.
As there was insufficient evidence to support a finding of juror misconduct, the trial court was under no obligation to declare a mistrial on its own motion. We similarly conclude that defense counsel had no obligation to bring a motion for a mistrial that had little probability of success. Defendant offers no evidence that trial counsel misunderstood or misapplied the law in failing to move for a mistrial. Regardless of whether defense counsel “assessed his chances of success on the motion as minimal,” or “refrained for fear that a second trial under less favorable circumstances would follow” (People v. Haskett, supra,30 Cal.3d at p. 855), the record fails to support defendant’s claim that his counsel provided constitutionally ineffective assistance at trial.
III. Miranda Violation
Before Bergendahl testified at trial, the trial court conducted an Evidence Code section 402 hearing to determine the admissibility of his testimony that defendant had refused to provide him with Bland’s telephone number. Defendant argued, as he does on appeal, that because he was placed in custody before being interviewed, he was entitled to a Miranda warning. We are not persuaded.
A. Relevant Facts
At the Evidence Code section 402 hearing, Bergendahl, the sole witness, testified that before he interviewed defendant, Summers had asked him to speak with defendant about the “possibility that [defendant] might have had multiple residences.” Summers and Bergendahl discussed whether defendant was “not registering or changing his address or living somewhere where he wasn’t supposed to,” in violation of section 290.
Bergendahl described his interview of defendant as follows. Defendant “had been told by Agent Summers to come in and see me, which he did. And I escorted him back to the jail area, had him sit on a bench. The cell door was open, and I had him empty his pockets, you know, knowing he’s on parole, just to make sure he didn’t have anything, weapons or contraband, on him. And, basically, it was in an investigatory mode at the time, just trying to do some fact-finding for the agent.” “After getting his wallet and the contents of his pockets, I was going through his wallet and then I found the Blockbuster card with Lupita Bland’s name on it and the Diamond Bar address, and I believe it was an insurance card for motor vehicles with her name on it and that address.” When Bergendahl asked defendant for Bland’s telephone number, defendant said that “[h]e wouldn’t give it to me.”
Bergendahl further testified that during the interview, defendant was not handcuffed or physically restrained, and was not in custody or under suspicion of a crime. Bergendahl stated that defendant was free to leave at any time, because he “had nothing to detain him or arrest him on at that time if he had not came back or followed me back into the cell.”
B. Standard
The Miranda rule applies only to custodial interrogations, which means, “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda, supra, 384 U.S. at p. 444.) The determination whether an individual was in custody requires an examination of the objective circumstances of the interrogation, rather than the subjective beliefs of the interrogating officer or the person being questioned. (Berkemer v. McCarty (1984) 468 U.S. 420, 442.)
The fact that an individual suspected of a crime was questioned by a police officer at a station house is not in itself determinative of whether the person was in custody. “Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” (Oregon v. Mathiason (1977) 429 U.S. 492, 495; In re Kenneth S. (2005) 133 Cal.App.4th 54, 65-66 [juvenile who voluntarily appeared for questioning at a station house was not in custody even though he was questioned in a room, with the door kept partially open, in a restricted area and needed a police escort in order to leave the area].)
C. Application
In this case, defendant voluntarily appeared for questioning at the sheriff’s station at his parole officer’s request. At the station, defendant was not handcuffed or otherwise restrained, the door to the cell where the interview occurred was left open, and no remarks were made by the officer that would have caused a reasonable person in defendant’s position to perceive that he was not free to leave. (See People v. Stansbury (1995) 9 Cal.4th 824, 830.) The mere fact that defendant was questioned in a jail cell with the door kept open does not lead to the conclusion that he was in custody. (See Oregon v. Mathiason, supra, 429 U.S. at p. 495; In re Kenneth S., supra, 133 Cal.App.4th at pp. 65-66.)
Although defendant contends that the instruction to empty his pockets was a strong indication that the interview was custodial, we conclude that a reasonable person in his position would have simply viewed the search as a condition of being released on parole. (Myers v. Superior Court (2004) 124 Cal.App.4th 1247, 1251-1252 [parolees who have agreed to a search and seizure condition have a severely diminished expectation of privacy].)
We conclude that the circumstances, viewed as a whole, fail to support defendant’s claim that he was subjected to a custodial interrogation.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.
Based on our review of the record, we find it inconceivable that any of these missing dates could have been prejudicial to defendant. The critical issue was whether defendant had established a second home with Bland. On this question, the jury had a clear-cut choice between Bland’s testimony that defendant was living at her home in Diamond Bar during the first six months of 2006, and Cole’s testimony that he was living with defendant, during the same period, at the cabin in Green Valley Lake.