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People v. Hamlin

California Court of Appeals, Fourth District, First Division
Mar 4, 2008
No. D049040 (Cal. Ct. App. Mar. 4, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RICHARD L. HAMLIN, JR., Defendant and Appellant. D049040 California Court of Appeal, Fourth District, First Division March 4, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of San Diego County No. SCD195343, Browder A. Willis, III, Judge.

HUFFMAN, J.

Before trial, Richard L. Hamlin, Jr. pled guilty to possessing methamphetamine (meth). (Health & Saf. Code, § 11377, subd. (a); count 2.) A jury subsequently convicted Hamlin of battery against a cohabitant (Pen. Code, § 243, subd. (e)(1)), a lesser included offense of the charged count 1 crime of inflicting corporal injury against a cohabitant. (Pen. Code, § 273.5, subd. (a).) The trial court placed Hamlin on three-years formal probation and stayed imposition of a concurrent 180-day term in local custody for both convictions pending successful completion of probation. The court also stayed all terms and conditions of probation related to the domestic violence conviction, including one to complete a 52-week domestic violence rehabilitation program, pending this appeal.

On appeal, Hamlin essentially contends that the trial court prejudicially erred in admitting his statements obtained in violation of Miranda v. Arizona (l966) 384 U.S. 436 (Miranda) because he was subjected to custodial interrogation without first being advised of his rights, and in admitting evidence of a prior incident of domestic violence under Evidence Code section 1109, which he argues is not only unconstitutional, but for which the court improperly weighed the prejudice. Alternatively, Hamlin argues he was denied the effective assistance of counsel in this regard if we determine that the sections 352 and 1109 issues were waived by the failure of his trial counsel to object below on such grounds. We affirm.

All statutory references are to the Evidence Code unless otherwise specified.

FACTUAL AND PROCEDURAL BACKGROUND

Hamlin was arrested and charged with inflicting corporal injury against Lisia Ferguson on November 27, 2005 while she was in the process of moving out of his house after cohabiting with him for almost a year. Because meth was found in his pocket after his arrest, Hamlin was also charged with possession of that drug.

Ferguson was also referred to in the record as "Lisa."

Pretrial, Hamlin brought a motion to suppress "all evidence derived from the warrantless search and seizure of [his person] and his residence." After the motion was denied, the People then brought in limine motions to admit evidence of Hamlin's pre-Miranda statements made to police when they responded to a domestic violence call based on Ferguson's 911 call to police on November 27, 2005, to admit Hamlin's post-Miranda statements regarding the meth found in his possession after his arrest, and to admit evidence of a prior act of domestic violence the week before on November 19, 2005, that was based on Hamlin's statements in a subsequent 911 call he had made regarding the alleged theft of some of his property by Ferguson. After the court ruled that Hamlin's post-Miranda admissions regarding the meth would be admissible as well as his statements in the latter 911 tape and that the People could argue those statements from the tape showed a prior act of domestic violence, the court continued the matter of Hamlin's pre-Miranda statements for an evidentiary hearing. After that hearing, the specific facts of which will be recited later in the discussion of Hamlin's Miranda contention, the court granted the People's motion to admit those statements.

Before jury voir dire, Hamlin pled guilty to the possession of meth charge. The following evidence was then presented to the jury in the prosecution case.

At about 9:00 a.m. on November 27, 2005, San Diego Police Officers David Spitzer and Garrett Klugh responded to a domestic violence radio call regarding a woman having a fight with her boyfriend at a residence in the Allied Garden's area of San Diego. When the officers arrived, outside the home they encountered another officer, Robert Adams, who had also responded, and a woman named Ferguson, who was shaking and trembling, appeared to be scared and upset, and had visible injuries to one of her wrists, her arms and neck. She told the officers that she had been beaten by her boyfriend and that the marks on her body had been caused by him. When the officers asked Ferguson whether there were guns in the house, she replied that there were and that Hamlin was still inside the house in a back room or his office.

The officers then entered the house, looked through the kitchen and living room, and Klugh, who had his gun drawn, shouted out that they were San Diego police and ordered Hamlin to come out from the back room. When Hamlin did so, walking toward the officers at the end of the hallway, he was handcuffed immediately and frisked for firearms. In response to being told that the officers had just talked to Ferguson and wanted his side of the story, Hamlin told them he had been in a relationship with Ferguson for over a year, had been asking her to move out for over two months because she was cheating on him, and that morning he was trying to get her to actually do so. To this end, Hamlin had begun taking Ferguson's property outside while she was still asleep and continued to do so after she awoke. Hamlin acknowledged that there had been an argument and that he may have pushed her while he was moving some of her items. He denied that he had hit Ferguson or caused her injuries. He claimed she had kicked him several times in the "butt" and had thrown or kicked a glass coffee table top at him. Hamlin also told the officers that on the Saturday before this alleged incident when Ferguson was breaking his property, he had told her that "if [she broke] one more of [his] things, [he was] going to smack the shit out of [her]."

Spitzer testified Hamlin said there had been no violence that morning, but Klugh believed Hamlin had said he might have pushed her during the move that day.

After getting Hamlin's statements, Spitzer and Klugh went back outside to talk to Ferguson to reconfirm her story and get details of what she said had happened. Ferguson, who still appeared upset, told them that during the argument with Hamlin she had knocked the glass table top off with her knee; he had grabbed her by the neck and had pinned her up against the bathroom wall; he had also grabbed her by the wrist to force her outside; and he had even thrown several items at her, including her large jewelry box. The officers then formally arrested Hamlin.

One of Ferguson's wrists appeared to be swollen as compared to the other.

Another police officer was called to the scene to take photographs of Ferguson's injuries, which were shown to the jury at trial. At the time the officer was taking the photographs, Ferguson had asked the officer for information on obtaining a restraining order.

None of the police officers at Hamlin's residence that morning took any statements from a woman named Dora Fort who was outside the house along with Ferguson when the officers first arrived. Because Fort had told the officers when initially contacted that she had not seen anything regarding the incident between Ferguson and Hamlin, the officers did not interview her further.

Ferguson, who was called as a prosecution witness, recanted much of her story to the police that Hamlin had been violent with her and had caused her injuries on November 17, 2005. Ferguson testified about her romantic involvement with Hamlin and how it had soured a week earlier when she had cheated on him on her recent birthday. She conceded that they had heatedly argued on the morning of November 27, 2005, yelling and using profanity, because he was moving her property out of his house, that she had locked Hamlin out of the house at one point and that she had called her friend Fort as well as 911 that morning, but said that the argument had never turned physical, that her injuries were self-inflicted, and that she had called the police to remove Hamlin from his house so she could remove her own property without him there. She admitted she had told the police that Hamlin had two guns in the house.

The 911 tape was played for the jury at trial. Ferguson conceded that her voice was on the recording and that it accurately reflected her call, including telling the dispatcher that she was afraid to talk.

Ferguson explained that the injury on the back of her arm had happened the week before their argument when she was involved in a bar fight and that her wrist was not swollen but is regularly larger than the other because she is a cocktail server. Just before the police arrived, she had caused the redness on her neck by squeezing her shirt around her neck and had also inflicted "rug burns" on her wrists. Ferguson, who said she and Hamlin were still friends, that she still loved him and was in contact with him often, also admitted that she had taken property from Hamlin's house after his arrest, but returned a substantial portion of it the following week. She conceded that she had made statements to the police on November 27, 2005, "that were less than the complete truth" and that she had subsequently written a letter to the court to clarify her previous misstatements. Ferguson admitted her statement that Hamlin had beat her that morning was not truthful. She also testified that Hamlin had not pushed her at all the week before the incident. A San Diego police detective who conducted a follow-up interview with Ferguson testified that she told him that although she had an argument on November 27 with Hamlin, she could not remember the entire incident because she was taking Xanax. The detective also noted that Hamlin had reported a theft of some of his property after the November 27th incident, but that the investigation had been closed because Hamlin had not wanted to prosecute.

After the court interrupted Ferguson's testimony and appointed an attorney for her, the prosecutor offered her immunity from self-incriminating testimony. The court accepted the grant of use immunity and Ferguson completed her testimony.

The Defense Case

In addition to Hamlin testifying in his own defense, Fort and several friends of Hamlin's testified as to his character for truthfulness and nonviolence. Fort testified that Ferguson had called her on the morning of November 27, 2005, upset and crying, asking her to come to Hamlin's house to help her remove her belongings. She arrived there about 10 minutes before the police arrived. During that time, while helping Ferguson put some of her belongings back into the house from the front yard, Ferguson asked Fort to hit her so that the police would believe that Hamlin was hitting her. When Fort refused and went outside, Fort observed Ferguson rubbing her own arm, neck and wrist making red marks on them. Fort had never seen Hamlin hit Ferguson and had no reason to believe he had done so that morning.

Hamlin testified about his relationship with Ferguson and the fact that he had wanted her out of his house because of her cheating, which showed no signs of changing. He admitted that one week before the incident in this case, he had told Ferguson during an argument that if she broke one more thing he was getting up and "kick[ing] the you-know-what out of [her,]" but claimed such was only a "saying." When Ferguson then continued to break his property, he "escorted her out of [the] bedroom" and did not hit, push, or grab her in any way so as to leave a bruise. He merely "spun her around by her arms," taking three steps to get her out of the bedroom.

Hamlin stated that on the morning of November 27, 2005, when Ferguson saw that he was moving her property outside his house, she became enraged and kicked him twice in the "butt" as he carried a bag of her belongings down the hallway. She also hit him on the arm and on his ear with her hand. At one point, she even locked him out of his house and he reentered it through a window. As he continued to pack her property to move out, Ferguson knocked the glass top of a coffee table onto the back of his legs. After replacing the top on the table, Hamlin went to his office at the back of the house. At some point Fort showed up to help Ferguson. Hamlin claimed he did not know that the police had been called because he and Ferguson were yelling back and forth while he was on his computer in his office.

When the police arrived and called out to him, he walked into the hallway and was handcuffed, frisked and then questioned for three to four minutes. Still handcuffed, Hamlin was confined to a seat on his patio while the police went out and talked to Ferguson and then to his bedroom and obtained two rifles from his closet. After about 15 to 20 minutes, he was put in the police car.

Hamlin denied he ever hit, choked, fought, pushed or grabbed Ferguson on November 27, 2005. After he was released from jail, he discovered certain items gone from his house, including his safe. Although Ferguson brought most of the items back the next week, she did not return $750 in cash that had been in the safe. On cross-examination, Hamlin conceded that the police had treated him with respect when they contacted him, giving him an opportunity to comply with their commands, including giving them his side of the story. He also conceded that the officer never threatened him verbally, only with having a gun pointed at him before he was handcuffed and asked about the location of his guns.

Pertinent Jury Instruction Discussion and Arguments

After all evidence had been presented, outside the jury's presence, the prosecutor requested additional instructions regarding the lesser included offenses of battery against a cohabitant and simple battery. In addition to objecting to the giving of those lesser instructions, defense counsel requested an instruction on the defense of property regarding the physical contact with Ferguson that Hamlin had testified had occurred the week before the November 27, 2005 incident. The prosecutor noted that although he was limiting his arguments to the date of November 27, 2005 for conviction of the charged offense, he would be "discussing the prior acts of domestic violence under the law." Because a jury could find on its own, even absent the prosecutor's argument, that Hamlin had previously pushed Ferguson, which would satisfy the lesser crime of battery, defense counsel thought "maybe the better approach to the situation would be for the Court to instruct the jury [with] a limiting instruction to the effect that [the] incident . . . the week prior to November 27th should not be considered for determining whether Mr. Hamlin committed the crimes. It can only be considered as evidence of a prior act of domestic violence."

When the court disagreed that it should give such instruction, defense counsel stated, "I'm just thinking out loud that, in a sense, that's not a prior act of domestic violence if it's reasonable force used in defense of property. So I think, either way, your instruction is necessary." The trial judge responded that he would read the instruction "at [defense counsel's] own peril . . . ." When the court pre-instructed the jury, it included both instructions requested by defense counsel.

The People argued that Ferguson was a recanting witness and that the jury should concentrate on her 911 call and statements to the officers the morning of November 27, 2005 together with Hamlin's statements to the police about pushing Ferguson around the week before when they argued about her breaking his property, which showed his propensity to commit acts of domestic violence.

The defense argued Hamlin was not the type of person who would commit domestic violence, that Ferguson had lied to the police to get Hamlin out of the house and that she was now being truthful about causing her own injuries on November 27, 2005. Counsel further argued that Hamlin's touching of Ferguson the week earlier was not a prior instance of domestic violence that could be used against him, but rather his use of reasonable force to protect his property by "mov[ing] Ms. Ferguson out of his room when she was breaking his property."

The jury only convicted Hamlin of the lesser offense of battery on a cohabitant, and found him not guilty of inflicting corporal injury upon a cohabitant.

DISCUSSION

I

MOTION TO ADMIT PRE-MIRANDA STATEMENTS

Hamlin contends the trial court erred in granting the People's motion to admit incriminating statements he made to police during questioning when they arrived at his home in response to the 911 call regarding domestic violence because they were the product of a custodial interrogation and therefore obtained in violation of his rights under Miranda, supra, 384 U.S. 436. We disagree.

Background Facts

In response to the People's in limine motion to admit Hamlin's pre-Miranda statements made to Officers Klugh and Spitzer, the trial court conducted an evidentiary hearing under sections 402/403.

At that hearing Spitzer testified that around 9:00 a.m. on November 27, 2005, he received a radio dispatch in his patrol car to proceed to an address in Allied Gardens where a woman had just been beaten by her husband. As he and his partner, Klugh, were en route to the residence, they received further information from the dispatcher that the woman was named Ms. Hamlin, that she and her husband were fighting, that he had hit her and that she was afraid to talk. After parking near the residence, the officers approached on foot and saw a female standing out front waving toward them. She was upset, afraid and "kind of frantic." Spitzer noticed she was bright red around the neck and on the front of her chest. She told the officers that she had been beaten up by her boyfriend and that he was inside the house in the back bedroom.

When the woman said that her boyfriend had two firearms in the house, the officers "quickly came up with a plan as to how [they] were going to approach the house." They had the woman stay back as they, along with another officer, Bob Adams, entered the house. With Klugh and Adams positioned on either side of the main hallway and Spitzer standing "into the bathroom which is just inside the hallway," Klugh announced that "[t]his is the San Diego Police" and directed the man, identified as Hamlin, to "[c]ome on out with your hands up where we can see them. Step out towards me." Hamlin "did exactly what he was told." Klugh then placed Hamlin into handcuffs behind his back for everyone's safety because the officers did not know where the guns were located in the house. Spitzer stated that the officers were concerned about their own safety because "[d]omestic violence cases can be the most violent. There's been officers that have been killed every year. Tempers become flared. [¶] Even people that are victims can sometimes turn on you when you're arresting their significant other."

Spitzer said he calmly told Hamlin that he was not under arrest, but that he was only being detained while the officers investigated what was going on. Hamlin was calm and complied with the officers' requests. Hamlin was then placed in a chair about five feet away in the living room so Klugh could "control him" while Spitzer and Adams "cleared the rest of the house" to see if any other persons were present. No one else was found in the house. Spitzer along with Klugh then asked Hamlin "questions about what was going on" because they were "investigating the allegation that the female outside said that he beat her and [the officers] wanted to get his side of the story." Spitzer explained that he wanted to hear from Hamlin.

Hamlin told the officers that "there wasn't any violence that day, but there had been in the past." "He said that he and his girlfriend had broken up and the past Saturday, which was about eight days ago on the 19th [of November], she was breaking some of his property; and so, . . . he told her that if [she continued] to break [his] property he was going to harm her." Hamlin said that when she continued to break his property, he "pushed her around."

Spitzer said that once Hamlin had said there was no violence that day, he went back outside to talk to the female to reconfirm what she had told the officers when they first arrived. He estimated the conversation with Hamlin took about two minutes. His subsequent conversation with the female took about two additional minutes. At that time she reconfirmed there had been a fight and gave additional details that Hamlin "had put his hands around her neck and held her against the wall and had caused the bruises on her." Because Spitzer's observation of her injuries was consistent with her statements as to how she got them, he went back into the house and placed Hamlin under arrest.

Spitzer believed that the total time that Hamlin had been detained in handcuffs until the time he was arrested was five or six minutes. During that time, Hamlin appeared calm and no threats were made to him. Spitzer explained that none of the officers had raised their voice to Hamlin during the encounter and that "once we got him in some handcuffs and we realized that he was going with the program everybody started to calm down."

On cross-examination, Spitzer testified that once it was determined that Klugh was going to handle Hamlin's arrest, Officer Adams asked Hamlin where his guns were and the guns were then located after the arrest. Spitzer conceded that even though Hamlin had been detained in handcuffs based on the information the officers had from the female, i.e., that Hamlin had guns in the home, had possibly committed a felony and was in a violent state, he was never released from the handcuffs although he had no weapons on him when patted down and appeared calm and rational when encountered. Spitzer agreed that Hamlin was not free to leave his home after the officers arrived. Spitzer also noted that all three officers were in uniform and had firearms.

After considering Spitzer's testimony and counsel's arguments which centered on whether Hamlin was in custody for purposes of Miranda, supra, 384 U.S. 436, the trial judge ruled on the matter, stating:

"First off, I think the general principle is that all the surrounding circumstances have to be analyzed in this situation to make the determination as to the custody status, whether or not there was a detention for an arrest; and whether or not, Mr. Hamlin, you had a restraint on your freedom to the degree of a formal arrest. And again, that's an objective test. That's not a subjective test. [¶] It's [not] what the officers intended to do the moment they walked in the house, whether it was to check for guns, clear for their safety, and just maintain the situation or actually arrest you at that time. That is not the test. The test is the court is required to look at all the circumstances that were coming into play. It is a factual determination that I am required to make, and I'm required to look at a number of different things that the law spells out. [¶] One of those is that 'generally speaking it is a general principle of law that questioning in one's home is considered less intrusive and less likely to require Miranda. Handcuffs being placed on you or anybody else in that matter do not automatically elevate detentions to the point of arrest.' And questions, even if they appear to focus the investigation on you in this case . . . do not rise to the level of coercion [equaling] an arrest unless those questions are somewhat sustained and coercive using a general definition of coercive. [¶] What the officers knew, what Officer Spitzer knew that it was a 911 call. He encountered a female who said that you, her boyfriend or husband, whichever it is at that particular point in time, had been violent with her and that there was guns in the house. [¶] The officers went in, and yes, it was a show of force, three officers in your house. I don't know if guns were drawn or not in this instance, but they command you to come out of the back room. You are taken under their control at that point in time, handcuffed. You are placed on a seat and you are told at that time that you're being detained for an investigation; that you were not under arrest. This all seems to take place within a couple of minutes. It didn't seem to be a long, drawn out affair at this point in time. [¶] From what I understand, Officer Spitzer says that you're calm; therefore, their level of anxiety lessens. They're calm, whatever that means. And he tells you that he has a story of domestic violence from a victim. He needs your side of the story. There are two sides to every story and then you make your statements. [¶] Even after your statements he did not say that you're being placed under arrest. What he does, though, is -- and I'm not sure if he actually told you that he was going back to talk to the female, but he went back to talk to the female, leaving you with the other officers. Once he talks to the female, then he comes back in and advises you that you're being arrested and taken downtown. [¶] So when I look at all of these facts and circumstances, I conclude that you are temporarily detained for the investigation purposes; that you're not in custody for the purposes of Miranda; and that the statement is admissible."

Legal Principles

Miranda requires that a person questioned by police after being "taken into custody or otherwise deprived of his freedom of action in any significant way" must first "be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Miranda, supra, 384 U.S. at p. 444.) This "prophylactic" rule of Miranda is designed to insure the Fifth Amendment right against compulsory self-incrimination is protected. (Michigan v. Tucker (1974) 417 U.S. 433, 444, 446.) Statements obtained in violation of Miranda are inadmissible to prove the accused's guilt in a criminal prosecution. (Miranda, supra, at p. 444.)

Because Miranda warnings are only required when a person is subjected to custodial interrogation (People v. Mickey (1991) 54 Cal.3d 612, 648), when a person is subjected to questioning where there has been no formal arrest, the custodial issue turns on "how a reasonable man in the suspect's position would have understood his situation." (Berkemer v. McCarty (1984) 468 U.S. 420, 442; see also Yarborough v. Alvarado (2004) 541 U.S. 652 (Yarborough).) Custodial interrogation is " 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' " (Id. at p. 661, italics added, quoting Miranda, supra, 384 U.S. at p. 444.) "[T]he ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." (California v. Beheler (1983) 463 U.S. 1121, 1125; People v. Ochoa (1998) 19 Cal.4th 353, 401 (Ochoa).)

The test for determining whether a person is in custody is an objective one depending on the circumstances surrounding the interrogation. (Ochoa, supra, 19 Cal.4th at p. 401.) Neither the subjective views harbored by the interrogating officers or the defendant are generally relevant to such determination. (Stansbury v. California (1994) 511 U.S. 318, 323.) Only when an officer's subjective suspicions 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' or if such evidence is 'relevant in testing the credibility of [the officer's] account of what happened during an interrogation[,]' " are they relevant to the custody determination. (People v. Stansbury (1995) 9 Cal.4th 824, 830 (Stansbury); In re Joseph R. (1998) 65 Cal.App.4th 954, 960.) However, even when an officer has made a clear statement to a person under interrogation that he is a prime suspect or that he is not under arrest, such circumstance by itself is not dispositive of the custody issue. (Stansbury v. California, supra, 511 U.S. at p. 325.)

Rather, in assessing the custody issue the court must consider the totality of circumstances in deciding "whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest. [Citation.]" (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 (Aguilera).) For example, courts have not only considered the site of the interrogation and whether the investigation had focused on the subject, but also "whether the objective indicia of arrest are present, and . . . the length and form of questioning." (People v. Boyer (1989) 48 Cal.3d 247, 272 (Boyer), disapproved on another point in Stansbury, supra, 9 Cal.4th at p. 830, fn. 1.) Courts have further considered such other objective criteria as whether contact was initiated by law enforcement, whether the suspect voluntarily agreed to an interview, the ratio of officers to suspects during the interview, the officers' demeanor, whether the officers informed the suspect he was under arrest, whether the officers informed the suspect he was free to terminate the interview and leave, whether the officers dominated and controlled the course of the interrogation, whether the officers manifested a belief the person was culpable and they had evidence to prove it, whether techniques to pressure the suspect were employed, and whether the suspect was arrested at the close of the interview. (Aguilera, supra, 51 Cal.App.4th at p. 1162;People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) "[C]ourts [also] consider highly significant whether the questioning was brief, polite, and courteous or lengthy, aggressive, confrontational, threatening, intimidating, and accusatory." (Aguilera, supra, at p. 1164.) "No one factor is dispositive." (Id. at p. 1162.) "[P]olice officers are not required to administer Miranda warnings to everyone whom they question . . . . Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.' " (Oregon v. Mathiason (1977) 429 U.S. 492, 495.)

"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.]" (Ochoa, supra, 19 Cal.4th at pp. 401-402.) In other words, the totality of the circumstances aspect of the "in custody" determination does not mean deferential review is in order. (See Thompson v. Keohane (1995) 516 U.S. 99, 112, fn. 11.) Rather, this part of the inquiry is a question of law, involving application of the controlling legal standard to the historical facts. (Id. at p. 112; People v. Cunningham (2001) 25 Cal.4th 926, 992 (Cunningham).)

Analysis

Here, the parties have not raised any disputed facts about the circumstances of Hamlin's questioning by police and the trial court did not make any express factual findings concerning the issue of custody. Thus, the "historical" facts are without dispute. We therefore have independently reviewed the evidence before the trial court for the motion to suppress in its entirety to determine whether a reasonable person in Hamlin's position would have realized that he could end the questioning and be released at any time. Having done so, we are convinced the trial judge was correct that under an objective standard a reasonable person in Hamlin's position would not have "felt effectively under arrest during the interview." (Aguilera, supra, 51 Cal.App.4th at p. 1163.)

Although the police initiated contact with Hamlin, and apparently used a show of force to place him in handcuffs, he was in his own home when the officers questioned him, a factor tending to show that a suspect was not in custody at the time of questioning. (See People v. Breault (1990) 223 Cal.App.3d 125, 135.) The fact Hamlin was placed in handcuffs does not by itself show that he had been arrested or was in custody for purposes of Miranda. (See People v. Celis (2004) 33 Cal.4th 667, 676.) The questioning was brief (only between two and six minutes) and seemingly calm, without any threats or raised voices, with Hamlin merely being asked for his side of the story. At the end of that encounter, which does not appear to have been accusatory or coercive, Hamlin was not arrested. It was only after the officers talked again with Ferguson to get confirmation of her story and more details of the events that morning that Hamlin was then arrested. The whole sequence of events transpired very quickly, within about six minutes.

Looking at the interplay of all the relevant factors and their combined effect, a reasonable person in Hamlin's position would not have experienced a restraint tantamount to an arrest. Rather a reasonable person would have understood that the officers had received information from Ferguson that there had been a domestic violence incident at the residence that morning and the officers were trying to investigate as to what had happened, giving Hamlin the chance to clear himself as the perpetrator at an early stage before he was arrested. "General on-the-scene questioning may take place of persons temporarily detained by officers" as to facts surrounding a crime (People v. Milham (1984) 159 Cal.App.3d 487, 500) without violating the requirements of Miranda because such questioning is designed to "enable the police to quickly ascertain whether such person should be permitted to go about his business or held to answer charges." (Milham, supra, at p. 500.)

Hamlin's reliance on Orozco v. Texas (1969) 394 U.S. 324 to show that he was in custody because armed policemen questioned him in his home as in Orozco and one officer there testified as Spitzer did here that the suspect was not free to leave during the questioning, is misplaced. In addition to Orozco predating the totality of the circumstances test now used to establish whether a defendant is in custody for Miranda purposes (Yarborough, supra, 541 U.S. at p. 661), it is distinguished from Hamlin's case because there the officers asked the suspect incriminating questions during a follow-up investigation whereas here the officers did not ask incriminating questions while conducting an initial investigation to a domestic violence call. Moreover, the subjective view of the officer, unless somehow relayed to the suspect, is not relevant to the analysis.

In sum, under the totality of the circumstances, we find the objective facts "are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview" (Yarborough, supra, 541 U.S. at p. 665) and be released from any restraints at the conclusion of the officer's investigation, and conclude Hamlin was not in custody for purposes of Miranda. Accordingly, the protections of Miranda did not apply and the failure of the officers to give a Miranda warning did not make Hamlin's statements inadmissible.

II

SECTION 1109

In a related contention, Hamlin claims that part of his pre-Miranda statements concerning a prior incident of domestic violence should not have been admitted under section 1109, which permits a jury, subject to section 352, to consider prior incidents of domestic violence for the purpose of showing a defendant's propensity to commit offenses of the same type and essentially permits such evidence to be used in determining whether the defendant is guilty of the current charge of domestic violence. (§ 1109, subd. (d).) He argues that not only is section 1109 unconstitutional as violative of due process, but that the trial court should have excluded the statements under section 352. Although Hamlin concedes that the statements might have been excluded had his trial counsel made a timely objection on the grounds of inadmissibility under sections 1109 or 352, he asks this court to address the matter as an alternative to addressing the claim as one of ineffective assistance of his trial counsel. The People respond that the court did not admit those statements under section 1109 at trial and Hamlin has forfeited any claim regarding the matter by not objecting below.

Preliminarily, we note that although the record is confusing as to whether the trial court ruled on the prosecutor's pretrial motion to admit those pre-Miranda statements under section 1109, the court did rule upon another motion brought by the prosecutor to admit evidence of Hamlin's statements regarding an earlier act of domestic violence the week before the charged offense. Those statements concerned a telephone conversation Hamlin had had with police after he was released from jail in this case and returned home to discover some of his property missing. Defense counsel objected to the admission of those statements under section 1109 on grounds they were ambiguous as showing acts of earlier domestic violence because they merely mentioned there had been a scuffle at the residence and did not say who initiated the violence. Although the court, after weighing the probative versus the prejudicial value, ruled the statements would be admissible under section 1109, the prosecutor did not present those post-Miranda statements into evidence at trial.

Neither party subsequently raised the issue of admitting or not admitting certain of Hamlin's pre-Miranda statements as propensity evidence under section 1109. Rather the statements were presented in testimony via the officer's and Hamlin's testimony without any limiting instructions. Later, during jury instruction discussions, the matter of instructing on prior acts of domestic violence was brought up when defense counsel noted that the jury could possibly use Hamlin's pre-Miranda statements made to the officers as well as his own admissions when he testified at trial as evidence on the current charge. Consequently, as noted in the factual background, defense counsel requested and the court read CALCRIM No. 852 to limit the use of any evidence of domestic violence that was not charged in this case.

In light of this record, we conclude that Hamlin has forfeited the right to bring his challenges to section 1109 at this time and that he cannot show that his counsel was ineffective for failing to raise them below.

Generally, a defendant waives a federal constitutional claim on appeal if he did not argue for or against the exclusion of evidence based on that constitutional provision at the trial level. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3; People v. Davis (1995) 10 Cal.4th 463, 501, fn.1.) With regard to state evidentiary claims, such will be waived where a defendant does not specifically object below on the ground raised on appeal. (§ 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124.) Because Hamlin did not specifically object below under sections 352 and 1109 to the admission of the prior acts evidence that were part of his pre-Miranda statements, or on due process grounds, his appellate assertions regarding such claims are waived.

Moreover, we disagree that the record shows that Hamlin received ineffective assistance of counsel because his defense counsel failed to make such claims.

"To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (Cunningham, supra, 25 Cal.4th at p. 1003.)

Further, "[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

Here, the record is silent on why Hamlin's counsel did not make objections to the purported admission of Hamlin's pre-Miranda statements under section 1109 on grounds that section was unconstitutional or because its prejudicial value outweighed its probative value even though he had made the latter objection to similar statements Hamlin had made post-Miranda. However, even if there could be no satisfactory explanation for counsel's failures, Hamlin cannot show that a different result was reasonably probable absent those purported omissions in light of this record. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)

As noted earlier, the court had already ruled pretrial that similar statements made by Hamlin post-Miranda would be admissible under section 1109 regarding the same act of purported domestic violence the week before the current incident. We presume the trial court would have made the same ruling after properly weighing the matter regarding the admission of Hamlin's more specific statements or admissions regarding the earlier violence made in his pre-Miranda questioning had counsel objected to it under section 1109. In addition, numerous courts, including our own, have determined that section 1109 is constitutionally valid against due process claims. (See People v. Cabrera (2007) 152 Cal.App.4th 695, 704; People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097; People v. Brown (2000) 77 Cal.App.4th 1324, 1334-1338; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1030; People v. Johnson (2000) 77 Cal.App.4th 410, 420.) In light of these circumstances, a reasonably competent attorney would not be remiss in not objecting as Hamlin now claims his trial attorney should have objected. Counsel is not ineffective for failing to make frivolous motions. (People v. Weaver (2001) 26 Cal.4th 876, 931.)

Furthermore, the record reflects that even without the admission of Hamlin's statements regarding his prior incident of domestic violence, the jury had before it his admission on the 911 tape that he had kicked Ferguson in the legs and "ass" on November 27, 2005. Additionally, defense counsel made tactical decisions to request a limiting instruction for the prior domestic violence evidence as well as requesting another for defense of property to minimize the effect of such propensity evidence on the current charge. The jury returned a verdict finding Hamlin was guilty only of the lesser charge of battery on a cohabitant. On this record, Hamlin simply cannot show that but for counsel's purported omissions it is reasonably probable he would have received a more favorable result. (People v. Watson (1956) 46 Cal.2d 818, 836.)

For all the above reasons, we conclude Hamlin has forfeited his appellate assertions regarding section 1109 and reject his claim of ineffective assistance of counsel on appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: McCONNELL, P. J., IRION, J.


Summaries of

People v. Hamlin

California Court of Appeals, Fourth District, First Division
Mar 4, 2008
No. D049040 (Cal. Ct. App. Mar. 4, 2008)
Case details for

People v. Hamlin

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD L. HAMLIN, JR., Defendant…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 4, 2008

Citations

No. D049040 (Cal. Ct. App. Mar. 4, 2008)