Opinion
D039836.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. DION RENE CLARK, Defendant and Appellant.
After a jury trial, Clark was convicted of being a felon in possession of a firearm. (Pen. Code, § 12021, subd. (a)(1).) The court placed him on three years probation. Clark appeals, contending the court erred by (1) admitting Clarks statements taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); and (2) denying Clarks request for a pinpoint jury instruction. We affirm.
FACTUAL AND PROCEDURAL HISTORY
About 7:15 a.m. on March 27, 2001, a team of five probation officers went to Clarks mobile home to conduct a Fourth Amendment waiver search. After entering the house, senior deputy probation officer Cathy Olow asked Clark if he lived in the house and whether he shared a bedroom. Clark said he lived in the house and shared a bedroom with his wife, Rosa Zamora.
Probation officer Douglas Gagliardo searched the larger of the two bedrooms, which contained a double or queen-sized bed made up with a bedspread, a dresser, and a wicker chest. Inside the wicker chest Gagliardo found a Winchester .22-caliber pump-action rifle that was determined to be inoperable.
The other bedroom was cluttered. It contained a bed, a computer and boxes. The bed could barely be seen because it was covered with boxes and clothes stacked about two feet high. It did not appear to have been slept in.
Zamora testified in Clarks defense that she was married to Clark but they had separated about two and one-half years ago. About a year ago, Clark moved back into Zamoras house because he was homeless. He slept in the second bedroom; Zamora did not allow him in her bedroom. A few days after Clark was arrested, Zamora cleaned the second bedroom, taking the boxes and clothes off the bed. She then took pictures of both bedrooms because Clark asked her to take them.
Zamora testified the rifle had belonged to her father. After her father died, Zamora took the rifle as a memento. It did not work when she took it in 1986. She never gave Clark the rifle to use. On cross-examination she denied telling Olow the rifle belonged to Clark. She also denied telling deputy probation officer Stephanie Stevens that Clarks grandfather gave him the rifle as a gift. She further testified Clark does not like guns, even though she had testified at the preliminary hearing that Clark does like guns. Zamora explained these discrepancies by stating that her English is bad.
On rebuttal, Olow testified Zamora had told her the rifle belonged to Clark and was his toy gun. Stevens testified that on the day Clark was arrested, Zamora told her the rifle belonged to Clark and was a gift from his grandfather. Zamora also told her the rifle was not dangerous because Clark played with it with her grandchildren.
DISCUSSION
I. Miranda Warnings
Clark contends the court erred by admitting statements Clark made to Olow because they were procured in violation of his Miranda rights. We review the courts findings of fact for substantial evidence and we review the courts ruling de novo. (People v. Clair (1992) 2 Cal.4th 629, 678 (Clair).)
The trial court conducted an evidentiary hearing pursuant to Evidence Code section 402. Olow testified that on March 27, 2001, she led a team of four armed probation officers to Clarks mobile home to conduct a Fourth Amendment waiver search for possible firearms, based upon a request from Clarks probation officer, Stephanie Stevens. After Clark admitted the officers into his home, Olow handcuffed Clark with his hands behind his back and sat with him on the living room couch. While the other officers performed a protective sweep of the home, Olow asked Clark if anyone else was in the house; how many rooms and bedrooms were in the house; and whether he shared a bedroom. In response, Clark told her he shared a bedroom with his wife, Rosa Zamora. In that bedroom, a probation officer found a rifle in a wicker chest. Olow brought the rifle to Clark and asked whether it was his. Clark said it was.
The court ruled the questions Olow asked Clark as to the people in the home, the number of rooms, and whether he shared a bedroom were necessary to insure the probation officers safety and did not rise to the level of interrogation. The court also ruled the question of whether Clark owned the rifle was interrogation and violated Miranda.
Miranda prohibits custodial interrogation unless the suspect "knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to an appointed counsel in the event the suspect is indigent." (People v. Sims (1993) 5 Cal.4th 405, 440.) Questioning during a temporary detention does not require Miranda warnings because the suspect is not custody. (Berkemer v. McCarty (1984) 468 U.S. 420, 435-440; Clair, supra, 2 Cal.4th at p. 679 [approaching with gun drawn]; People v. Haugland (1981) 115 Cal.App.3d 248, 256 [stopping, patting down & searching the suspects briefcase]; People v. Herrera (1970) 12 Cal.App.3d 629, 635 [traffic stop]; People v. Hubbard (1970) 9 Cal.App.3d 827, 835 [traffic stop]; People v. McLean (1970) 6 Cal.App.3d 300 [approaching suspect and asking for identification].) Unlike these cases, Clark was in custody when he was questioned. His hands were handcuffed behind his back and he was seated next to an armed parole officer.
We next determine whether Clark was subject to interrogation. "The standard is whether `under all the circumstances involved in a given case, the questions are "reasonably likely to elicit an incriminating response from the suspect." [Citation.] This is an objective standard. `The subjective intent of the [officer] is relevant but not conclusive. [Citation.] The relationship of the question asked to the crime suspected is highly relevant." (People v. Wader (1993) 5 Cal.4th 610, 637.) Inquiries "that are essentially `limited to the purpose of identifying a person found under suspicious circumstances or near the scene of a recent crime " are not interrogation. (Clair, supra, 2 Cal.4th at pp. 679-680.)
The court ruled Miranda did not apply because the questioning fell under the public safety exception. The public safety exception allows police officers to question suspects in custody without giving Miranda warnings "to the extent `necessary to secure their own safety or the safety of the public . . . . " (People v. Sims, supra, 5 Cal.4th at p. 450, quoting New York v. Quarles (1984) 467 U.S. 649, 659.) Although asking Clark if anyone else was in the mobile home falls under the public safety exception, asking Clark whether he shares a bedroom does not. Instead, whether he shares a bedroom is relevant to whether he had constructive possession of the firearm the officers believed would be found during the search. Further, this question did led to an incriminating response because Clark said he shared the bedroom in which the rifle was found.
We review the admission of a statement made in violation of Miranda under the test of Chapman v. California (1967) 386 U.S. 18, 24, which requires reversal unless the error was harmless beyond a reasonable doubt. (People v. Johnson (1993) 6 Cal.4th 1, 32-33.) An error is harmless when it does not contribute to the verdict because it is "unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62, 73, fn. 4.)
In this case the admission of Clarks statement that he shared a bedroom with Zamora was harmless because the evidence of his guilt was overwhelming. The second bedroom appeared to be a storage room; the bed was covered with so many boxes and clothes it could barely be seen. Zamoras testimony that Clark slept in that bedroom was impeached by her actions of cleaning up the room before taking pictures, which she admitted she did at Clarks request. Zamoras testimony that the rifle was hers was impeached by her statements to both Olow and Stephens that the rifle belonged to Clark.
II. Pinpoint Jury Instruction
We reject Clarks contention that the court erred by refusing to give an instruction pinpointing Clarks theory of the defense. The instruction, entitled "Dominion and Control — Jointly Occupied Premises," reads as follows: "In the crime charged in this case the prosecution has the burden of proving that the defendant either possessed the firearm, or with knowledge of its location, exercised either direct control over it or had the right to control it. [¶] Evidence has been presented by the defense that the defendant did not possess, control, or have the right to control the firearm. [¶] If after considering all the evidence you have a reasonable doubt that the defendant possessed, controlled, or had the right to control the firearm, you must give him the benefit of that doubt and find him not guilty. [& para;] Mere knowledge by the defendant of the presence of the firearm on the premises, in and of itself, is not sufficient to support a verdict of guilty in this case." The court refused to give the instruction because it contained a discussion of reasonable doubt, which was already covered by CALJIC No. 2.90, and its content was covered by CALJIC No. 12.44, both of which were given by the court.
Although "[a] criminal defendant is entitled, on request, to a[n] instruction `pinpointing the theory of his defense," People v. Wharton (1991) 53 Cal.3d 522, 570, a court may refuse to give an instruction that duplicates other instructions. (People v. Berryman (1993) 6 Cal.4th 1048, 1079, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823 fn. 1.) CALJIC No. 2.90 informs the jury of the prosecutions burden to prove the elements of the offense beyond a reasonable doubt. CALJIC No. 12.44 defines actual and constructive possession and provides the prosecution must prove both that the defendant possessed or controlled the rifle and knew of the rifles presence. The court also gave a special instruction offered by Clark that defined possession in jointly occupied premises. These instructions properly instructed the jury on the law contained in the proposed pinpoint instruction and covered Clarks theory of the case, which was that he did not have possession of the rifle.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., and BENKE, J.