Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles Super. Ct. No. SA061215
Pamela J. Voich, 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, Susan D. Martynec, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Carlos A. Castaneda appeals his conviction by jury of second degree robbery (Pen. Code, § 211) with special findings that he personally used a firearm (12022.53, subd. (b)), and special findings that a principal used a firearm during the commission of the offense. (§ 12022, subd. (a)(1)).) The trial court sentenced him to 12 years state prison: a two-year low term for robbery plus 10 years for personal use of a firearm. (§ 12022.53, subd. (b).) Appellant argues that his pre-arrest statements violate Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694])and the trial court erred in instructing the jury. We affirm,
Facts
At midnight on August 21, 2005, two masked men entered Snappy Food Liquor Market and ordered the owner, Michael Lee, to the ground. The men entered through an employee work door that accessed a back office, store safe, and cash register.
The assailant with a gray hooded sweatshirt (later identified as appellant) pointed a handgun at Lee's back. The second assailant was unarmed and wore a black hooded sweatshirt and bright orange gloves.
A store employee, Angel Ventura, was in the restroom. Lee heard whispers that sounded like Ventura and the assailants talking.
The assailants opened the cash register with no assistance, which was unusual because they had to push an unmarked button to open the register. They took $10,000 from the safe. They also took a $200 bottle of Patron. In order to open the safe, the assailants had to use two unmarked keys on a chain of 15 keys.
After the assailants left, Ventura called the police. Ventura used his cell phone rather than the store phone. Lee thought this was unusual. Before the robbery, Ventura was making personal calls on his cell phone and was "just kind of looking around like outside the window and stuff. It's unlike him."
Lee told the police that the assailant with the handgun had a high pitched, scratchy voice that sounded like "Carlos." Before the robbery, Carlos visited the store several times. On one occasion, Lee, Ventura, and Carlos went out drinking.
A year after the robbery, Los Angeles County Sheriff Detective John Hanson interviewed Ventura about another case. Los Angeles Police Department Detective Fielder told Detective Hanson that she was very suspicious of Ventura's activities before and after the August 21, 2005 Snappy robbery. Ventura's cell phone records indicated that calls were made to appellant's telephone five to ten minutes before the robbery. Detective Hanson also determined that Ventura and appellant worked as security guards at a casino in Gardena.
Detective Hanson spoke to Ventura at his work place (a Brinks Armored Car Vault facility) and discovered that appellant lived in the same apartment complex as Ventura. After Ventura confessed to the robbery and implicated appellant, Detective Hanson requested that a surveillance team detain appellant if he showed up outside the residence.
When Detective Hanson arrived 10 to 20 minutes later, appellant was handcuffed and sitting in the back of a police vehicle. Hanson identified himself and said he was investigating a case involving a bottle of Patron. He asked if appellant had a bottle of Patron in his apartment and whether appellant would consent to search.
Appellant signed a consent form, escorted Hanson and a second detective to the apartment, and opened the door with his key. After the detectives made a protective sweep, appellant and Hanson sat down at the kitchen table and discussed the Snappy robbery. The detective told him that Ventura had confessed and had implicated appellant.
Appellant said, "What robbery?" and "I want to talk to Angel." Ventura was brought downstairs and said, "Just tell them what happened. I already told them what happened."
Appellant admitted his participation in the robbery and said that the bottle of Patron was "long gone." Hanson showed him still photos from the store video surveillance camera. Appellant pointed to a photo and said, "That's me with the gray sweatshirt." However, at trial, he recanted and claimed that a friend of "Green Eyes" wielded the handgun and was wearing a gray pullover sweatshirt.
Custodial Interrogation
Appellant argues that his pre-arrest statements violated Miranda and should have been stricken. Appellant was detained by a surveillance team outside of his apartment building. Detective Hanson instructed the officers to take appellant out of the patrol car and personally removed the handcuffs. Appellant was told: "You're not under arrest. You're being detained at this point." The detective told appellant that he was investigating a bottle of Patron that must be in his apartment.
Appellant consented to the search and signed a search consent form for his apartment. He walked the detective to the apartment, unlocked the door, and stepped back to permit a cursory search for safety purposes. Appellant mentioned that he "had some marijuana growing in there." Detective Hanson said that it "was not a concern of mine" and asked about the bottle of Patron. Appellant replied, "It's not in there. You can search whatever you want."
Detective Hanson stated that he and appellant sat down at the kitchen table. He told appellant that Ventura had confessed to the robbery, that Ventura was upstairs, and that Ventura "told me the whole thing."
Appellant denied involvement and asked to speak to Ventura who was brought to the apartment. Ventura, who was still dressed in his Brinks uniform, said, "Carlos, I told them everything. It's going to help you out if you just cooperate."
Appellant looked down and said, "Okay. I'll tell you what you want to know." Appellant said that he wore a gray sweatshirt the night of the robbery and that the bottle of Patron was "long gone." Pointing to the surveillance camera photos, he said "That's me right there."
Appellant testified to a conflicting version of the events. He said that he was detained and handcuffed for about 20 minutes. Detective Hanson arrived, questioned him about the robbery, showed him photos, and said that Ventura had confessed and "pointed me out."
Appellant was still in handcuffs and said that that he consented to the search because Detective Hanson was only looking for the bottle of Patron. The detectives took him up to the apartment in handcuffs and opened the door with appellant's key. Appellant said that he signed the search form while handcuffed then changed his testimony to say the handcuffs were removed. Appellant also claimed that the handcuffs were removed in the kitchen where he was shown the robbery photos and told that Ventura had admitted everything.
Appellant testified that he told the detective that he was the guy wearing the orange gloves. Appellant said that he pointed to the wrong guy in the photo (i.e., the masked man wearing the gray sweatshirt) because Detective Hanson told him the guy with the orange gloves was the guy with the gun.
Crediting Detective Hanson's testimony, the trial court concluded that there was no custodial interrogation and that a Miranda admonition was not required.
The trial court stated: "Factually I find that there's a period of time between the initial demonstration of force by use of the guns, and the arrival of [Detective Hanson], by the defendant's own words, of as much as 20 minutes, and that the ultimate cop-out doesn't take place until the defendant has already been contacted, signed a consent form, the place has been sweeped or swept . . . for the other people, the gun has been located and cleared, the defendant has been confronted with Ventura's statement, the defendant denies involvement, Ventura's brought downstairs, and now the defendant cops out. Now, what's the period of time for all that? Could it be as much as 40 minutes or more? I think it's at least 30. I can't imagine it being less than that, and as I pointed out before, the defendant's in his own home. He's not isolated. He's not under restraint, and since he's already denied things he's actually not even being interrogated when he finally cops out.
On appeal, we apply a deferential substantial evidence standard to the trial court's factual findings and independently determine whether the interrogation was custodial. (People v. Ochoa (1998) 19 Cal.4th 353, 402.) It is settled that a suspect must be given Miranda warnings only when subjected to custodial interrogation. (People v. Mickey (1991) 54 Cal.3d 612, 648.) A custodial interrogation occurs when the individual has been take into custody or is otherwise deprived of his freedom of movement to a degree associated with a formal arrest. (People v. Ochoa, supra, 19 Cal.4th at p. 401.)
" '[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.' [Citation.]" (People v. Carpenter (1997) 15 Cal.4th 312, 384.) "[A]n officer's views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer's views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave." (Stansbury v. California (1994) 511 U.S. 318, 325 [128 L.Ed.2d 293, 300].)
The test for whether an individual is in custody is objective, i.e., was
" ' "there a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." ' [Citations.]" (People v. Ochoa, supra, 19 Cal.4th at p. 401.) The test involves two inquiries: " 'first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. . . . The first inquiry . . . is distinctly factual.' " (Id., at pp. 401-402.)
We concur in the trial court's determination that it was not a custodial interrogation. Appellant was removed from the police vehicle, was not handcuffed, and told that he was not under arrest. Detective Hanson only wanted to know if appellant had the bottle of Patron and tried to make him comfortable because he needed appellant's cooperation. Appellant consented to a search, signed a search form, and walked Detective Hanson to the apartment. The evidence supports the finding that appellant was not handcuffed when he signed the consent form and was not handcuffed when he opened the apartment door and sat down at the kitchen table.
It was only after Detective Hanson said that Ventura had confessed and implicated appellant, that appellant asked to speak to Ventura. It was an assertive act, inconsistent with appellant's testimony that it was a custodial interrogation. The trial court concluded that if appellant believed he was in custody or not free to leave, appellant would not have consented to a search, signed a consent form, opened the apartment door, or told the officers that he was growing marijuana and had a handgun in the apartment.
Detective Hanson's strategy was to solicit appellant's cooperation, tell him he was not under arrest, and get appellant to consent to a search of the apartment. The detective believed appellant "might have been good for a couple of different robberies" and did not want appellant to know he was investigating the Snappy robbery. The tactic worked. Appellant stated that he consented to the search because Detective Hanson "was only looking for the Patron bottle." "Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest." (Stansbury v. California, supra, 511 U.S. at p. 325 [128 L.Ed.2d at p. 300].)
Appellant argues that it was a custodial interrogation because the officers drew their weapons, put him in a police vehicle, and did not remove the handcuffs. Miranda warnings are not required every time an officer uses a weapon to effect an investigative stop. (People v. Taylor (1986) 178 Cal.App.3d 217, 230.) "For Miranda purposes, we think the crucial consideration is the degree of coercive restraint to which a reasonable citizen believes he is subject at the time of questioning. Police officers may sufficiently attenuate an initial display of force, used to effect an investigative stop, so that no Miranda warnings are required when questions are asked." (Ibid.)
The trial court found it would be illogical to keep appellant handcuffed and ask him to sign a search consent form. If appellant believed he was under arrest, he would not have consented to the search outside the building, opened the apartment for the officers, or demanded to see Ventura. Based on the totality of the circumstances, the trial court reasonably concluded that the officers were not required to give a Miranda warning before Ventura told appellant to "Just be straight up and tell" the detective what happened.
"[A] noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a 'coercive environment.' 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 questioned person is one whom the police suspect." (Oregon v. Mathiason (1977) 429 U.S. 492, 495 [50 L.Ed.2d 714, 719].)
CALJIC 2.11.5
Appellant contends that the trial court erred in instructing the jury not to speculate why an unjoined perpetrator was not being prosecuted. (CALJIC 2.11.5.) Appellant did not object, waiving the alleged error.
The jury was instructed: "There has been evidence in this case indicating that a person other than the defendant was involved in the crime for which the defendant is now on trial. [¶] There may be many reasons why that person is not here on trial in the same trial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether he had been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendant on trial."
Waiver aside, there was no instructional error or prejudice. Appellant admitted participating in the robbery and admitted that a principal was armed in the commission of the offense. The only contested issue was whether appellant personally used a firearm. (§ 12022.53, subd. (b).)
Appellant argues that CALJIC 2.11.5 violated his due process rights because the jury was instructed not to consider testimony that some one else (Green Eyes' friend) wielded the firearm. That is not what CALJIC 2.11.5 says. The jury was instructed that it was not to speculate why a person other than appellant "is not here on trial" and that "[y]our sole duty is to decide whether the People have proved the guilt of the defendant on trial." It is presumed that the jury understood and followed the instruction. (People v. Morales (2001) 25 Cal.4th 34, 47.)
There is no merit to the argument that the CALJIC 2.11.5 instruction, when considered with the other instructions, denied appellant a fair trial. (See e.g., People v. Cornwell (2005) 37 Cal.4th 50, 88-89.) The purpose of CALJIC 2.11.5 " 'is to discourage the jury from irrelevant speculation about the prosecution's reasons for not jointly prosecuting all those shown by the evidence to have participated in the perpetration of the charged offenses, and also to discourage speculation about the eventual fates of unjoined perpetrators.' [Citation.]" (People v. Lawley (2002) 27 Cal.4th 102, 162.)
As discussed in People v. Fanesca (2003) 105 Cal.App.4th 543, the potential prejudice in giving CALJIC 2.11.5 only arises where the unjoined coperpetrator testifies. The prejudice "lies not in the instruction itself, but in the rather remote possibility that the trial court would fail to give otherwise pertinent and required instructions on the issue of witness credibility. [Citations.]" (Id., at pp. 549-550.)
That did not occur here because CALJIC 2.11.5 was given with the full panoply of witness credibility and accomplice instructions. No accomplice or coperpetrator testified. Appellant makes no showing that he was prejudiced by the instruction or denied a fair trial.
The judgment is affirmed.
We concur: GILBERT, P.J. PERREN, J. Antonio Baretto Jr., Judge
What actually happens is Ventura tells him, 'You might as well come clean. It'll be better for you. Tell them what happened.' Then [appellant] says, "Okay. I'll talk to you.' Now the questioning starts, and is this still a product of nature of the actions of the officers who held him at gunpoint? The court finds that this earlier use of force was attenuated . . . ."