Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC065784
Pollak, Acting P. J.
Defendant Edgardo Antonio Cuellar was convicted by a jury of one count of possessing cocaine. Imposition of sentence was suspended; he was placed on three months probation and ordered to undergo treatment under Proposition 36. Defendant’s attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record. We find no arguable issue and shall affirm.
Background
Before trial, defendant apparently moved to suppress his statement that the cocaine belonged to a friend. At the suppression hearing, the arresting officer testified that defendant was “straddling his bike” and “possibly under the influence of alcohol” when the officer encountered him. The officer asked defendant for identification and asked if he had cocaine on him because “it’s a fairly common occurrence” in the area. In response to the question, defendant looked down at his pocket. The officer searched defendant while he was still straddling the bicycle. “[D]uring the search [and] a sweep of his coin pocket, there was a twist [that] fell out . . . .” The officer “asked him no questions,” though he may have gestured or said, “ah,” when he saw the cocaine. While the officer was retrieving the “twist” of cocaine from the ground, defendant “blurts out something to the effect [of] ‘it’s my friend’s, that’s my friend’s.’ ”
Nowhere in the record is there a clear statement of what defendant sought to suppress.
Defendant testified at the suppression hearing that when the officer reached down to pick up the cocaine, “he raised it up and said, ‘oh, coke.’ ” Defendant replied that it belonged to “my friends.” It was “stipulated that [defendant] was under arrest at the time” that the officer picked up the cocaine.
At trial the arresting officer testified that he stopped defendant because he was riding his bicycle at night with “no lighting equipment . . . and [he] shouldn’t be on the sidewalk; and [it] really kind of stuck out in addition to that just how slow he was . . . riding his bicycle . . . almost to the point if he were going any slower he’d fall over.” When the officer shined a very bright light on defendant from the patrol car, a “reasonable person [would] probably look over and kind of wonder what was going on but [defendant] maintained just like he was [at] a real slow pace, straight ahead, didn’t acknowledge the light at all.” The officer drove ahead and got out of the car to speak with defendant. Defendant stopped and in responding to the request for his name, his speech “was kind of thick and slurred,” and the officer “couldn’t determine what he was saying.” Defendant could not tell the officer his birth date or where he lived because he was intoxicated. In response to the officer’s request for identification, defendant handed him “a foreign identification card.” In response to questions, defendant indicated that he had not been in custody before and was not on probation. The officer placed defendant “under arrest for public intoxication and also for being DUI on a bicycle.” After the exchange described at the suppression hearing during which the cocaine was found, defendant was handcuffed and transported to the police station.
The criminalist from the sheriff’s forensic laboratory testified that the “twist” recovered from defendant contained 0.07 grams of cocaine, which she classified as a usable quantity.
Defendant was charged by information with one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), and a jury found him guilty. The trial court immediately suspended imposition of sentence and placed defendant on three years’ supervised probation under Proposition 36. Defendant timely appealed.
Discussion
“Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” (Miranda v. Arizona (1966) 384 U.S. 436, 478.) “It is clear therefore that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” (Rhode Island v. Innis (1980) 446 U.S. 291, 300.)
Before arresting defendant, the arresting officer asked him if he had cocaine. Any comment that the officer made after the arrest and the search that preceded defendant’s statement that the cocaine belonged to a friend, whether, “ah,” or “oh, coke,” cannot be construed as an interrogation. The officer’s exclamation reflected no compulsion and was not likely to elicit an incriminating statement. The motion to suppress defendant’s statement was therefore properly denied.
Defendant was at all times represented by counsel. We find in the trial record no issues warranting further briefing or consideration.
Defendant has not been advised of his right to file a supplemental brief, as is required by People v. Wende, supra, 25 Cal.3d at page 440. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 [“a Wende opinion affirmatively should note that counsel filed a Wende brief raising no arguable issue, that the defendant was apprised of his or her right to file a supplemental brief, that the defendant did or did not file such a brief, and that the court has reviewed the entire record and found no arguable issue.” (Italics added.)].) Counsel has filed a declaration with this court stating, “I have been unable to write to Mr. Cuellar at his last known address, despite diligent attempts to locate a valid address, to advise him that a Wende brief would be filed in this case, because mail to that address has been returned. Mr. Cuellar is presumed deported.” This assumption is supported by the declaration in the notice of appeal that defendant was then “[c]urrently in custody of the San Mateo County Jail, but will shortly be in the custody of Immigration and Customs Enforcement (ICE) due to his status.” No further efforts on counsel’s part to notify defendant are required.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.