Opinion
A131935
01-25-2012
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN VICTOR FREDERICK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC069936)
A jury found defendant guilty of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), misdemeanor evasion of a pursuing peace officer (Veh. Code, § 2800.1, subd (a)), and misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). On appeal, defendant contends that we should reverse his conviction for driving under the influence because the trial court admitted into evidence admissions he made to the sergeant and the sergeant did not provide him his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We conclude that any alleged Miranda error was harmless and affirm the judgment.
BACKGROUND
Amended Information and Motion to Suppress
An amended information filed on January 24, 2011, charged defendant with felonious driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), driving with a blood-alcohol level at .08 percent or greater (Veh. Code, § 23152, subd. (b)), misdemeanor evasion of a pursuing peace officer (Veh. Code, § 2800.1, subd (a)), and misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). The information alleged prior convictions (Pen. Code, § 1203, subd. (e)(4)), two prior strikes (Pen. Code, § 1170.12, subd. (c)(2)), and one prior prison term commitment (Pen. Code, § 667.5, subd. (b)).
On January 25, 2011, the trial court held a hearing on various motions, including defendant's motion to suppress the statements he made to Sergeant Mark Kuykendall after Deputy Patrick Taylor had contacted defendant at his home. Taylor testified that on November 14, 2009, he pursued defendant in his car after he spotted him driving the wrong way on a one-way street. Taylor lost sight of defendant but later located his car parked in front of his home. Taylor placed handcuffs on defendant for the officers' safety since he did not know if defendant had a weapon.
Kuykendall, who had learned that defendant was on parole, went to defendant's home. When Kuykendall approached the front door of defendant's home, he saw four deputies in uniform and defendant at the front door. Defendant was in handcuffs. Kuykendall asked Taylor to take the handcuffs off defendant, and Taylor removed the handcuffs from defendant. Taylor maintained that defendant had the handcuffs on for a short time; "Just enough time to do the [pat] search." Kuykendall testified that defendant was not free to leave at that point, although he did not hear any deputy tell defendant he was not free to leave. He did not tell defendant that he was under arrest or that he was being detained for a driving under the influence investigation.
Kuykendall asked defendant to sit on the step or a chair, and defendant cooperated. Kuykendall asked defendant what he had to drink that evening, and defendant responded that he had wine. He then asked defendant "why he had run" and defendant answered that he did not want to get into trouble. Kuykendall then asked him whether he had consumed any alcohol inside his home. Defendant initially said, "No," but then said, "Yes," after pausing for about three seconds. Kuykendall told him to be honest, and defendant hung his head and said, "No." At that point, Taylor took defendant to perform field sobriety tests.
After hearing the evidence, the trial court ruled that defendant's statements to Kuykendall were admissible. The trial court stated that it believed that this was a close case but the court emphasized that defendant was in handcuffs for only a brief period of time. The court explained that "[t]he fact that he was ordered uncuffed by a superior officer is a very important factor to the court." The court elaborated: "And I think the fact that he was only briefly cuffed and then ordered uncuffed by a sergeant, goes a long way to removing the indicia of formal arrest." The court also considered that defendant was not taken to the patrol car or to the police station, but was permitted to remain on the porch of his house. The court explained that the questioning was very brief and that defendant's demeanor showed that he did not believe he was in a coercive atmosphere.
The trial court concluded: "So using that line of cases, with regard to [the driving under the influence] investigation questions, using the brief nature of the questioning, the order [sic] uncuffing by the superior officer, the demeanor of the defendant, I'm going to find by the preponderance of the evidence standard that the statements are admissible, notwithstanding the brief questioning that took place, notwithstanding the questioning that took place upon the road in connection with the [driving under the influence] investigation."
The Trial
The Prosecution
Taylor testified that at 9:19 p.m., on November 14, 2009, a car sped past him going the wrong direction on a one-way looped street on the Cañada College Campus. He noticed that the driving was erratic and that the driver did not seem to have control of the vehicle as he came around the corner. When the car came around the corner, "the vehicle came wide," and came close to hitting Taylor's vehicle. Taylor was in a marked sheriff's patrol car.
Taylor completed a U-turn and followed the vehicle. He was not able to close the distance between his car and defendant's car. Taylor stated that he had never observed another person driving the wrong way on the loop and that he had no knowledge that people ever drove the wrong way on the looped road as a shortcut. When he first started out, Taylor's vehicle was about 400 yards behind defendant's car and Taylor's vehicle had to go up to 90 miles in order for Taylor to get close to defendant's vehicle.
At a certain point, defendant stopped his car in the intersection. Defendant backed through the intersection and Taylor caught up to defendant's vehicle. The cars were perpendicular to each other and Taylor looked inside the car and saw defendant. Defendant was wearing a green baseball hat and a black top jacket or sweatshirt. Taylor turned on the lights of his car and pressed the siren for one or two seconds. At this point, 9:21 p.m., Taylor told dispatch about the incident and reported that he was attempting to make a traffic stop. Defendant drove away and Taylor pursued him in his patrol car.
Defendant drove between 25 and 45 miles per hour in a 25 mile-per-hour speed zone; he also drove his vehicle on both sides of the road. Taylor was able to see part of the license plate on defendant's car and reported to dispatch that he believed part of the license plate number was "4TCW." Taylor then lost sight of defendant's car. Taylor drove around looking for defendant's car.
At 9:32 p.m., Deputy Kristina Bell came on the radio and stated that she might have located the vehicle described on the radio by Taylor. Taylor went to Bell's location and saw a vehicle matching the description he had provided parked on the side of the road. Taylor touched the car's hood and it was hot. The license on the car was 3TWC573.
Bell had checked the license plate and learned that the car was associated with the residence where the car was parked and that the registered owner was defendant. Taylor asked dispatch to run a criminal history check on defendant and learned that defendant was on parole.
While other officers arrived and they were conversing outside, Andy Lee Frederick (Andy) emerged from the residence and identified himself as defendant's uncle. He reported that defendant was inside the house; he agreed to have defendant come outside.
At 9:42 p.m., when defendant stepped outside, Taylor recognized him as the driver of the car that had been speeding, driving erratically, and going the wrong way down the one-way street. At this time, defendant was not wearing the green hat or black top. Taylor was concerned that defendant might have a weapon so he placed handcuffs on him and conducted a pat search of him.
Sergeant Kuykendall arrived and told Taylor to remove the handcuffs from defendant, which Taylor did. Kuykendall spoke to defendant on the walkway next to the front door. Taylor noticed that defendant smelled of alcohol and had "red, bloodshot, and watery" eyes. Taylor believed defendant was under the influence of alcohol "[b]ased on [his] observations of [defendant's] driving and his person, [which included] the odor of alcohol, [and] the red, bloodshot, watery eyes."
Kuykendall asked defendant whether he had anything to drink that evening and defendant responded that he had wine with dinner. Defendant said that he was on parole, had run a stop sign, and did not want to get in trouble for running the stop sign. Kuykendall testified that he asked defendant whether he had anything to drink "from the time he was inside the residence to the time that the deputies arrived." Defendant first answered, "No," but about three seconds later defendant said, "Yes." Kuykendall asked defendant to be honest and defendant hung his head and replied, "No."
After Kuykendall asked defendant a few questions, Taylor asked defendant to walk down to the street to perform some field sobriety tests. Taylor asked defendant whether there was anything mechanically wrong with his car, whether he was sick or injured, whether he was diabetic or epileptic, whether he takes insulin, and whether he had any physical impairments, and defendant answered, "No," to all of the questions. When asked when he last slept, defendant responded that he had slept from midnight until 9:00 a.m. that morning. He reported last eating sausages at 7:00 p.m. Defendant admitted that he was driving the vehicle. Defendant told Taylor that he had three glasses of wine from 7:00 to 8:00 p.m. He refused to disclose where he had been drinking. Taylor did not ask defendant whether he had consumed any alcohol since he arrived home. Defendant said that he did not feel the effects of the drinks. Defendant denied being under the care of a physician, taking prescribed medications, having undergone recent surgery, or needing eye glasses. Taylor observed that defendant's speech was slow and "a little bit slurred."
Taylor administered the following tests: a one-legged stand, modified position of attention, horizontal gaze nystagmus, and a finger count. He determined that defendant failed all of the tests. The patrol car camera recorded the tests and the video recording was played for the jurors. During the field sobriety testing, Deputy David Padilla walked over to defendant and Taylor; Padilla had a green hat and a black jacket that he had found inside the residence. When Padilla showed Taylor the hat, defendant said, "Why you gotta bring that up here?" Taylor testified that the green hat and black jacket appeared to be the clothing that he had seen defendant wearing while driving the car.
A preliminary alcohol-screening test was administered at 10:00 p.m. and it resulted in a .122 percent blood-alcohol content. A few minutes later the test indicated a .113 percent blood-alcohol content. Taylor concluded that defendant had been under the influence of alcohol while operating his car, and he arrested defendant.
Taylor drove defendant to the county jail. While in the car, defendant said, "You're just going to charge me for a [driving under the influence], right? Don't charge me with evading. If you do, I'm definitely going back."
Once they arrived at the county jail, defendant chose to provide a blood sample instead of a breath sample. Criminalist Scott Rienhardt found defendant's blood sample contained alcohol at .12 percent. He opined that at .08 percent blood-alcohol content, people are too impaired to operate a motor vehicle. When given a hypothetical of a person's weight of 180 pounds who ate dinner between 7:00 and 8:00 p.m., Rienhardt opined that the person would have a blood-alcohol level ranging from .10 to .12 at 9:20 p.m.
On cross-examination, counsel asked Rienhardt what the blood-alcohol level at 9:30 p.m. would be if the person weighed 180 pounds and had two glasses of wine between 7:00 and 8:00 p.m. Rienhardt stated that it would be .03 percent if the person's stomach was empty and between .01 and .02 percent if the person's stomach was full. When the hypothetical was changed to three glasses of wine between 7:00 and 8:00 p.m., Rienhardt responded that the blood-alcohol on an empty stomach would be .058 percent at 9:30 p.m., and between .03 to .04 percent on a full stomach. If the person had three glasses of wine before dinner and one glass of wine with dinner, Rienhardt estimated that the blood-alcohol level at 9:30 p.m. would be .08 percent.
Andy, defendant's uncle estimated that defendant arrived home at 9:00 p.m., and the deputies arrived 10 to 15 minutes later. When he heard defendant come in and go to the kitchen, Andy went to the kitchen. He estimated that it was two or three minutes between the time he heard defendant come into the house and the time he saw him in the kitchen. Defendant quickly came up to Andy and said, "I've been here for 30 minutes." Andy testified that it had been 10 minutes at most since defendant had come inside the front door. Andy noticed that defendant smelled like "real heavy alcohol." Andy said that defendant smelled of wine and "was quite inebriated[.]" Andy reported that he could not tell what defendant had been doing in the kitchen prior to his seeing him there.
Andy was asked where in the house the alcohol was kept. He responded that there was a bottle of wine on a long table and a little hutch in the dining room where there is a bottle of whiskey. He stated that he was not aware of any other alcohol in the house and he did not see defendant drinking alcohol in the house on the night that the sheriff's deputies arrived. Andy did not find any empty alcohol containers in the house following the incident.
Deputy Sheriff James Goulart conducted a parole search of defendant's bedroom. He did not find any containers of alcohol in the bedroom.
The jury heard the recording of a phone call from defendant that he made to Andy while he was in jail. The call was made on November 14, 2009, at 11:43 p.m. Defendant stated, "Hey they give me a [driving under the influence]." Defendant's grandfather, Victor Frederick (Victor), got on the phone and defendant explained: "I just want to let you know that that's what they gave me, it's a [driving under the influence]. So I was driving drunk and that's what they gave me." Victor responded, "Well, that's what you deserve." Defendant replied: "I know. I just wanted to give you guys a heads up and let you know what's happening. Um, I know obviously, it's my fault but, I just want to let you know."
The jurors also heard a recording of a call where defendant asked Andy to make a call on his phone to Stephanie Nash. When asked whether Nash was his parole officer, defendant told Andy: "No. That's the girl whose house I left when I had four glasses of wine." The parties stipulated to the fact that Nash lived two to three minutes from where Taylor first spotted defendant driving the wrong way down a one-way street.
The Defense
Defendant testified that he was 25 years old, lived with his grandfather, and attended Cañada College. He admitted convictions for petty theft, sale of marijuana, and reckless evasion of a peace officer causing great bodily injury.
Defendant claimed that he was working with Nash, another student, at her house from 2:00 to 8:00 p.m. on November 14, 2009, He testified that they ate dinner at 6:00 p.m. and he drank four glasses of red wine during the evening. He said that he had one glass before dinner and three more with dinner and that he consumed the last glass of wine at 8:00 p.m. He left Nash's house at 9:20 because he was scheduled to work at 10:00 p.m.
Defendant admitted driving the wrong way on a one-way street and claimed that it was a shortcut that he took because he was late for work. He testified that he sped home after seeing the police car's red light. He claimed that he was afraid that his parole would be revoked. He insisted that he did not feel impaired when he was driving.
When defendant arrived home, he maintained that he went directly to his bedroom and drank four shots of whiskey and then removed the whiskey bottle and empty beer cans from his room. Defendant left his bedroom and acknowledged that he tried to get his uncle to provide him with an alibi but his uncle refused. Defendant returned to his bedroom and changed his pants because he had spilled wine on them earlier.
Forensic toxicologist Kenneth Mark testified that if a 180-pound male consumed 3.5 glasses of red wine beginning at 6:00 p.m., and then consumed food, that person would have a blood-alcohol content of about .02 percent at 9:30 p.m. Using this same hypothetical and adding the facts of consuming four shots of 80 proof liquor at 9:35 p.m., Mark opined that that the blood-alcohol level at 10:00 p.m. would be between .05 and .17 percent.
Nash testified that defendant was at her house on November 14, 2009, and he consumed a hamburger between 5:00 and 6:00 p.m. She saw him drink two glasses of red wine with dinner. She stated that defendant could have refilled his glass on his own. He left her residence at 9:00 or 9:30 p.m.
Jury Verdict, Sentence, and Appeal
The jury found defendant not guilty of driving with a blood-alcohol level at .08 percent or greater. It found him guilty of driving under the influence of alcohol, misdemeanor evasion of a pursuing peace officer, and misdemeanor resisting a peace officer. In a bench trial, the court found the prior prison commitment and one of the two prior strike allegations true. The court granted the prosecutor's motion to dismiss the second charged strike.
On April 29, 2011, the trial court denied defendant's motion to strike the strike. The court sentenced defendant to five years, which consisted of the doubling of the middle term of two years for the driving under the influence because of the prior strike, and the adding of one year for the prior prison commitment.
Defendant filed a timely notice of appeal.
DISCUSSION
I. The Law on Miranda Rights and the Standard of Review
Defendant contends the trial court erred by refusing to suppress his statements to Kuykendall because he made these statements without receiving his Miranda rights. He contends that his conviction for driving under the influence of alcohol should be reversed. He does not mount any challenge to his convictions for evasion of a pursuing peace officer and resisting a peace officer.
The Fifth Amendment of the United States Constitution provides that " 'no person "shall be compelled in any criminal case to be a witness against himself." ' " This provision applies to the states under the Fourteenth Amendment's due process clause. (Malloy v. Hogan (1964) 378 U.S. 1, 7.) The Fifth Amendment right against self-incrimination generally applies to preclude the admission of involuntary pretrial confessions or other incriminating statements made by a defendant during coercive police interrogation. (Dickerson v. U.S. (2000) 530 U.S. 428, 433-435; Oregon v. Elstad (1985) 470 U.S. 298, 304 (Elstad).) If a defendant's statements were obtained "by 'techniques and methods offensive to due process,' [citation] or under circumstances in which the [defendant] clearly had no opportunity to exercise 'a free and unconstrained will,' [citation] the statements would not be admitted." (Elstad, at p. 304.)
Miranda sets forth an exclusionary, prophylactic rule that unless certain warnings are given to a defendant, statements made by the defendant during custodial interrogation are presumed involuntary and are generally inadmissible at trial. (Miranda, supra, 384 U.S. at pp. 478-479; Elstad, supra, 470 U.S. at pp. 306-307.) "Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda." (Elstad, at p. 307.) Miranda stated that a defendant in custody "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." (Miranda, at p. 479.) Each of the four warnings is an "absolute prerequisite" (id. at p. 471) to the admission in court of the suspect's statements to police. (Id. at pp. 468, 471.)
The requirements of Miranda apply only to a custodial interrogation. (People v Morris (1991) 53 Cal.3d 152, 197, disapproved on another issue in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) "The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] 'Two discrete inquiries are essential to the determination: 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. Once the scene is . . . reconstructed, the court must apply an objective test to resolve "the ultimate inquiry": "[was] there a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." [Citations.] The first inquiry, all agree, is distinctly factual. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a "mixed question of law and fact" . . . .' [Citation.] Accordingly, we apply a deferential substantial evidence standard [citation] to the trial court's conclusions regarding ' "basic, primary, or historical facts: facts 'in the sense of recital of external events and the credibility of their narrators . . . .' " ' [Citation.] Having determined the propriety of the court's findings under that standard, we independently decide whether 'a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.)
The erroneous admission of extrajudicial statements obtained in violation of Miranda is not per se reversible error. (Arizona v. Fulminante (1991) 499 U.S. 279, 306-310.) We apply the harmless error analysis of Chapman v. California (1967) 386 U.S. 18, 24, and therefore the error is reversible unless the error is harmless beyond a reasonable doubt. (People v. Thomas (2011) 51 Cal.4th 449, 498.)
II. Any Alleged Error Was Harmless
We need not decide whether the lower court should have granted defendant's motion to suppress his statements to Kuykendall because any error in admitting these statements was harmless beyond a reasonable doubt. (Arizona v. Fulminante, supra, 499 U.S. at p. 310; People v. Thomas, supra, 51 Cal.4th at p. 498.)
Defendant argues that Kuykendall's testimony that defendant admitted to not drinking after arriving home "directly undercut" his defense and "struck at the very heart of" defendant's credibility. Defendant does not dispute that he was inebriated when the officers arrived at his home, but he claims that his defense was that he became drunk as a result of the alcohol he consumed in his home before the officers arrived. He maintains that the jury would have believed his testimony that he was not impaired while driving if the jury had not heard his admission to Kuykendall.
The jury found defendant guilty of driving a vehicle under the influence of alcohol (Veh. Code, § 23152, subd. (a)), and found him not guilty of driving with .08 percent or more alcohol in his blood (Veh. Code, § 23152, subd. (b)). Thus, the jury implicitly found that he might have consumed some alcohol when he arrived home and therefore the tests conducted after he was home did not establish his blood-alcohol level while driving from Nash's home.
Contrary to defendant's argument, it was not Kuykendall's testimony that "undercut" defendant's credibility. It was defendant's own inconsistent statements that undermined his credibility. After defendant was arrested, he called Andy and Victor on the telephone and the jury heard the recorded message. In one phone conversation, defendant told Victor, "So I was driving drunk and that's what they gave me." Victor responded that defendant deserved it and defendant replied: "I know. I just wanted to give you guys a heads up and let you know what's happening. Um, I know obviously, it's my fault but, I just want to let you know." These statements to Victor were admissions that he was under the influence while driving and directly contradicted his testimony that he was not impaired while driving.
In addition to defendant's own testimony, the record contained other strong evidence that defendant was driving under the influence when Taylor spotted his car. A person is under the influence of alcohol or a drug when, as a result of consuming it, that person's " 'physical or mental abilities are impaired' " such that he or she " 'no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.' " (McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677, 686-687.) The alcohol "must actually impair the individual's driving ability." (People v. Torres (2009) 173 Cal.App.4th 977, 983.) "[E]vidence of actual impairment may include the driver's appearance, an odor of alcohol, slurred speech, impaired motor skills, slowed or erratic mental processing, and impaired memory or judgment." (People v. McNeal (2009) 46 Cal.4th 1183, 1198.)
Here, defendant admitted that he had four glasses of wine at Nash's house, and Nash lived two to three minutes from where Taylor first spotted defendant driving the wrong way down a one-way street. Defendant's driving supported a conclusion that he was under the influence and still feeling the effects of the four glasses of wine while driving home. He drove the wrong way on a one-way street at a high rate of speed and almost hit Taylor's marked police vehicle. Defendant backed his car up through an intersection and refused to stop and pull over when Taylor turned the light of his car and followed defendant. During the pursuit, defendant drove his car on both sides of the road. Taylor asked defendant a series of questions that established that defendant did not have any physical or mental impairment that would have caused him to drive in such an irresponsible and erratic fashion and there were no mechanical problems with his car.
Defendant attempted to explain his driving the wrong way down the street by claiming it was a shortcut and he testified that he sped and fled because he was afraid his parole would be revoked. The explanation that he drove the wrong way down a one-way street because it was a shortcut supported a finding that his thinking was impaired. Furthermore, defendant did not explain his erratic driving, which included backing up through an intersection and almost hitting Taylor's vehicle prior to Taylor's pursuit of defendant.
The foregoing evidence establishes that even if the jury did not hear defendant's admission to Kuykendall that he had not consumed any alcohol during the 10 to 15 minutes he was home before the officers arrived, the jury would have heard defendant's admission to Victor that he was driving under the influence of alcohol and deserved to be charged with that violation. The jury also heard the evidence that showed defendant did not have the ability to drive his vehicle " 'with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.' " (McDonald v. Department of Motor Vehicles, supra, 77 Cal.App.4th at pp. 686-687.) We therefore conclude that any error in admitting defendant's statements to Kuykendall because defendant did not receive any Miranda warnings was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
Lambden, J. We concur: Haerle, Acting P.J. Richman, J.