Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 07CM3458 Thomas DeSantos, Judge.
Cathy A. Neff, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Doris Calandra and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury found Michael Alan Gray guilty of possession of marijuana for sale. The sole issue on appeal is whether the admission in evidence of statements he made during booking without Miranda warnings about past drug use was a prejudicial violation of his privilege against self-incrimination. We affirm.
Miranda v. Arizona (1966) 384 U.S. 436.
FACTUAL BACKGROUND
On October 18, 2007, a police officer patrolling near a high school saw Gray and a juvenile look at each other from opposite sides of a street and, after one motioned to the other, saw them both walk between two houses on one side of the street. After the officer saw Gray hand something to the juvenile, he asked the juvenile what he had in his hand. The juvenile showed him two small cigars. The officer patted down Gray, felt a bulge like a plastic baggie in his right front pants pocket, and, suspecting marijuana, withdrew the object from his pocket. Inside the baggie were ten smaller baggies, each of which contained marijuana.
PROCEDURAL BACKGROUND
On April 7, 2008, the district attorney filed an information charging Gray with felony possession of marijuana for sale (Health & Saf. Code, § 11359, subd. (a)) and with misdemeanor contributing to the delinquency of a minor (Pen. Code, § 272, subd. (a)(1)). The information alleged prior convictions of arson and burglary (Pen. Code, §§ 451, subd. (c), 459) as a prison term prior (Pen. Code, § 667.5, subd. (b)), and a prior conviction of arson (Pen. Code, § 451, subd. (c)) as a serious felony prior (Pen. Code, §§667, subd. (a)(1), 1192.7, subd. (c)(14)), within the scope of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). On June 9, 2008, the parties stipulated to bifurcation of the priors.
On June 10, 2008, a jury found Gray guilty as charged, and he admitted the prison term prior and serious felony prior allegations. On September 25, 2008, the court imposed an aggregate five-year prison sentence – a two-year (middle) term on the felony doubled to a four-year term under the three strikes law, a one-year consecutive term on the prison term prior enhancement, and a one-year concurrent term on the misdemeanor.
DISCUSSION
At an evidentiary hearing out of the presence of the jury, the arresting officer testified to a series of questions he asked Gray from a standard booking form during his booking on October 18, 2007. The medical questionnaire portion of the form asked questions about medical conditions, suicidal thoughts, hospital visits, and drug use. The officer did not advise Gray of his Miranda rights before he asked, and Gray answered, those questions.
Three questions and answers are at issue here. To the question, “Do you use alcohol or drugs?,” Gray replied, “Not any more.” To the question, “What type?,” he replied, “Marijuana.” To the question, “When was the last?,” he replied, “A week ago.” After argument, the court ruled those questions and answers admissible. At trial, the officer so testified.
Miranda’s safeguards “come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.” (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 (Innis).) “That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Id. at p. 301, italics added.) The high court emphasized that “since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Id. at pp. 301-302, italics in original.)
Although Innis defined an interrogation to exclude police “words or actions” that are “normally attendant to arrest and custody,” booking questions were not at issue in that case. Eight years later, adjudicating a challenge to evidence of an arrestee’s initial refusal to give his name to an arresting officer, the Court of Appeal, Sixth Appellate District, noted that the high court’s “specific exclusion of words and actions ‘normally attendant to arrest and custody’ from the definition of ‘interrogation’ suggests that routine booking inquiries are outside the scope of interrogation.” (People v. Hall (1988) 199 Cal.App.3d 914, 921 (Hall), quoting Innis, supra, 446 U.S. at p. 301.) Observing that “a majority of the federal circuit courts have held that incriminating evidence derived from a routine booking interview is admissible despite the fact that no Miranda warnings were given,” Hall found no error in the admission of the evidence at issue. (Hall, supra, at p. 921.)
A decade after Innis, the high court specifically addressed booking questions in Pennsylvania v. Muniz (1990) 496 U.S. 582 (Muniz)). “Without obtaining a waiver of the suspect’s Miranda rights,” the plurality opinion in Muniz noted, “the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.” (Muniz, supra, at p. 602, fn. 14, italics added (plur. opn. of Brennan, J.).) Questions and answers during booking about “name, address, height, weight, eye color, date of birth, and current age,” the plurality reasoned, are “admissible because the questions fall within a ‘routine booking question’ exception which exempts from Miranda’s coverage questions to secure the ‘biographical data necessary to complete booking or pretrial services.’” (Muniz, supra, at p. 601, quoting United States v. Horton (8th Cir. 1989) 873 F.2d 180, 181, fn. 2.)
Gray argues that the questions and answers at issue here “went far beyond the biographical data necessary to complete the booking process” and that the officer “was plainly aware that the information sought was directly relevant to the substantive offense charged and that the questions could, therefore, elicit an incriminating response.” The Attorney General argues that questions the police “routinely ask arrestees about alcohol and drug use” during booking are “designed to ascertain an arrestee’s medical condition” to “assure the health and safety of arrestees” and are “not designed to elicit incriminating responses.”
Argument by both counsel to the jury puts the disagreement between the parties into perspective. The prosecutor argued that Gray “told the officer he doesn’t even use [marijuana] any more” and that he “quit a week ago, yet, he’s carrying it around with him. So if you’re to believe what he told the officer, that he doesn’t use – which is probably a lie. He probably does use it, but he says he doesn’t – so why is he carrying it? Why is he carrying that amount? And why is he carrying it around in the middle of the day, next to the high school? Well, there’s only one reason. He’s carrying it around with the specific intent to sell it. He’s peddling his material out there. He’s in the area where his clientele is at.” In short, the prosecutor dismissed out of hand the notion that Gray’s statements during booking about past drug use were relevant.
Gray’s attorney argued to the jury that the prosecution was relying on the “same factors” to show “possession for sale” as the defense could rely on to “find a reasonable interpretation of possession for personal use.” He emphasized that Gray was “candid” by admitting he “personally used marijuana a week ago. That supports this reasonable interpretation for someone who’s using marijuana, not selling marijuana.” In short, his attorney used his same statements during booking about past drug use to buttress the defense argument that he was guilty of possession of marijuana for personal use, not of possession of marijuana for sale.
The key incriminating evidence against Gray was the officer’s eyewitness testimony about the transaction near the high school and a narcotics investigator’s expert opinion that possession of 9.86 grams of marijuana packaged into 10 individual baggies with a target clientele of high school students showed possession of marijuana for sale. As the evidence at trial and the arguments of both counsel to the jury show, the questions and answers at issue here were entirely peripheral.
On that record, we need not weigh in on the disagreement between the parties about whether the questions and answers at issue here were beyond the scope of Muniz’s routine booking question exception to Miranda. Assuming, without deciding, that they were, we conclude that error, if any, in the admission of that evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.