From Casetext: Smarter Legal Research

People v. Jimenez

California Court of Appeals, Fourth District, Second Division
Jul 31, 2008
No. E043219 (Cal. Ct. App. Jul. 31, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIF129990 Gordon R. Burkhart, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzales, Supervising Deputy Attorney General, and Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

HOLLENHORST, Acting P. J.

A jury found defendant and appellant Antonio Jimenez guilty of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a), count 1) and misdemeanor possession of marijuana (§ 11357, subd. (b), count 3). The trial court placed defendant on probation for a period of three years.

All further statutory references will be to the Health and Safety Code, unless otherwise noted.

The jury could not reach a decision as to count 2 (misdemeanor possession of a loaded firearm in a vehicle (Pen. Code, § 12031, subd. (a)(1)). Thus, count 2 was dismissed.

On appeal, defendant contends that: 1) the trial court erred in denying his motion to suppress his confession that the drugs belonged to him, made after waiving his Miranda rights; and 2) the prosecution committed error under Griffin v. California (1965) 380 U.S. 609, 615 (Griffin). We disagree and affirm.

Miranda v. Arizona (1966) 384 U.S. 436.

FACTUAL BACKGROUND

On April 7, 2006, at approximately 11:40 p.m., Officers Eric Hibbard and Darrell Hill conducted a traffic stop on a vehicle for failing to use a turn signal. Defendant was the driver of the vehicle, and his brother was in the passenger seat. The car belonged to defendant’s brother. The officers asked defendant and his brother to exit the car, so they both got out and sat on the curb next to the patrol car. Officer Hibbard got consent to search the car. Officer Hill stayed with defendant and his brother, for officer safety reasons, while Officer Hibbard looked inside the car. Officer Hibbard saw some pants, shirts, and jackets “strewn out” in the backseat. He found a cigarette box in one of the jacket pockets. Inside the cigarette box, he found one baggie containing rock cocaine and one containing marijuana. After Officer Hibbard showed Officer Hill the items, Officer Hill searched the car and found a loaded .45 caliber handgun in the trunk.

The officers then separated defendant and his brother. Officer Hill read defendant his Miranda rights, and Officer Hibbard read defendant’s brother his rights. Defendant waived his Miranda rights, and then told Officer Hill that the rock cocaine and marijuana were his and that he would “take the fall for the handgun.” The police placed defendant under arrest. Officer Hibbard spoke with defendant’s brother and determined that the brother was not involved with any of the items found in the car. Defendant’s brother was released from the scene and given custody of the car.

ANALYSIS

I. The Trial Court Properly Denied Defendant’s Motion to Suppress His Post-Miranda Statements

Prior to trial, the trial court suppressed a statement that defendant made to Officer Hibbard that the clothes in the car belonged to defendant, since the police failed to read defendant his Miranda rights prior to asking if they were his. However, the court ruled that any statements made after defendant was given his Miranda rights were admissible. On appeal, defendant argues the court erred in admitting his statement that the drugs found in the car belonged to him, made after he waived his Miranda rights. Specifically, he invokes the “fruit of the poisonous tree” doctrine and claims his admission is the tainted “fruit” of the prior Miranda violation, when the officers should have read him his Miranda rights before asking him if the clothes belonged to him. Defendant contends that all of his statements must be seen as part of a “single, unwarned sequence of questioning,” under Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), to which the “fruit of the poisonous tree” doctrine applies. Defendant claims that because he had already “let the cat out of the bag” by admitting the clothes were his, he “felt he had no realistic choice but to say the drugs were his.” We reject these contentions.

A. Evidence Code Section 402 Hearing

Prior to trial, the court held a hearing pursuant to Evidence Code section 402 to determine whether defendant’s statement to Officer Hibbard that the clothes in the car belonged to him was admissible. Officers Hibbard and Hill, whose subsequent trial testimonies are presented above in the statement of facts, testified at the hearing. Officer Hill testified that after he pulled over the car which defendant was driving, he spoke to defendant and asked if there was anything illegal inside the car. Defendant said no. Officer Hill then asked if they could take a look inside the car to ensure that there was nothing illegal, and defendant consented. Officer Hill asked defendant to step out of the car and sit on the curb, next to the patrol car. Officer Hibbard asked defendant’s brother to do the same. Officer Hibbard testified that the standard procedure was to pat down the car occupants after asking them to get out of the car. Officer Hill performed the patdown search on defendant. Defendant and his brother were not handcuffed or under arrest when they sat on the curb. Officer Hibbard testified that, as he was standing outside the car looking in it, he saw the clothes in the backseat and asked defendant whether they belonged to him. Defendant said they did.

The prosecution argued that the officers received consent from defendant to search the car, and that defendant was not in custody and was free to leave at any time. The court remarked that defendant could not leave, since he was being detained for a traffic infraction. After hearing arguments from both sides, the court found that the patdown search was unlawful, since there was no articulable basis for it. The court also ruled that defendant was in a custodial setting. Thus, since the police did not read defendant his Miranda rights prior to asking him whether the clothes in the car belonged to him, the court suppressed his statement that the clothes belonged to him.

Officer Hill then testified that Officer Hibbard found a jacket in the car which had a cigarette package with two baggies in it — one containing rock cocaine and one containing marijuana. Officer Hill read defendant his Miranda rights from a preprinted Miranda card issued by the police department. Defendant voluntarily waived his rights and then admitted that the drugs belonged to him.

Defense counsel argued that, since the police improperly asked defendant whether the clothing was his, his subsequent admission that the drugs were his was “fruit of the poisonous tree.” The prosecution responded that, since defendant was given his Miranda warnings and voluntarily waived his rights, the chain was broken, and the admission was not fruit of the poisonous tree. The court agreed, denied the defense motion, and ruled that any statements defendant made after he waived his Miranda rights were admissible.

B. Defendant’s Statements Were Voluntary

The question of whether defendant’s statement that the drugs were his was the tainted product of his prior admission centers on whether each of these statements was voluntary. In Oregon v. Elstad (1985) 470 U.S. 298 (Elstad), the Supreme Court considered whether a defendant’s voluntary incriminating statement in custody, made pursuant to a waiver of Miranda rights, was nonetheless inadmissible because it followed an earlier incriminating statement obtained by custodial questioning without a Miranda warning. In Elstad, the police went to the defendant’s home and told defendant there had been a burglary, and that they believed he was involved. The defendant said, “‘“Yes, I was there.”’” (Id. at p. 301.) One hour later, at the sheriff’s station, the defendant was advised and waived his Miranda rights. He then provided a full confession. The trial court ruled that the statement, “‘I was there,’” had to be excluded because the defendant had not been advised of his Miranda rights. However, the confession made at the sheriff’s office was admitted in evidence. (Elstad, supra, at p. 302.)

In affirming the lower court’s decision, the Supreme Court in Elstad concluded that “absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.” (Elstad, supra, 470 U.S. at p. 314.) In other words, “[w]here a prior custodial statement, though obtained without Miranda warnings, was otherwise uncoerced, any taint upon a second statement is dissipated by a determination that the second statement was itself voluntary and obtained without a Miranda violation. [Citation.]” (People v. Storm (2002) 28 Cal.4th 1007, 1030 (Storm).)

Moreover, “a later statement obtained in compliance with Miranda, and without coercive methods of interrogation, is not to be presumed involuntary simply because the suspect has already incriminated himself.” (Storm, supra, 28 Cal.4th at p. 1030.) “‘[After] an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.’ [Citation]” (Elstad, supra, 470 U.S. at p. 311.)

Here, as in Elstad, defendant’s prior statement that the clothes were his, though obtained without Miranda warnings, was otherwise uncoerced. The record shows that the questioning as to whether the clothes belonged to defendant consisted of that sole question. Furthermore, defendant was given his Miranda warnings prior to making the statement that the drugs were his, and the record reasonably supports the conclusion that he made a rational and intelligent choice to waive his rights. (Elstad, supra, 470 U.S. at p. 314.) Contrary to defendant’s claim that he simply had no choice but to say the drugs were his, the record indicates that he freely waived his rights and voluntarily confessed. Therefore, the court properly admitted the statement.

Defendant’s reliance on Seibert, supra,is misplaced, since Seibert is distinguishable. In Seibert, the police woke the defendant up at 3:00 a.m., arrested her for murder, and took her to the police station for questioning. The police intentionally withheld the Miranda warnings and questioned the defendant for 30 to 40 minutes, until she confessed. Then they gave her Miranda warnings and continued the interrogation, confronted her with her prewarning statements, and essentially repeated the same questions until she confessed again. (Seibert, supra, 542 U.S. at pp. 604-606.) The Supreme Court found that the police used a “strategy adapted to undermine the Miranda warnings.” (Id. at p. 616.) The Court noted, “The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill.” (Ibid.) Furthermore, the same officer who conducted the first unwarned interview conducted the latter interview, and “said nothing to counter the probable misimpression that the advice that anything [the defendant] said could be used against her also applied to the details of the inculpatory statement previously elicited.” (Ibid.) Moreover, “[t]he impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given.” (Ibid.) The Court concluded that these circumstances challenged “the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.” (Seibert, supra, at p. 617.)

Here, unlike Seibert, there was no deliberate strategy to undermine Miranda. Rather, the circumstances indicate “a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine [defendant’s] ability to exercise his free will.” (Elstad, supra, 470 U.S. at p. 309.) Furthermore, the police asked the initial single question of whether the clothes belonged to him in order to gather information, at the time of investigating the scene. The post-Miranda questioning was not designed to get defendant to repeat the same statement made before, as in Seibert. The police simply questioned defendant about what they found during their search of the car. The police properly gave defendant his Miranda warnings before he admitted that the drugs belonged to him.

We conclude that the court properly admitted defendant’s post-Miranda statement.

II. There Was No Griffin Error

Defendant contends that the prosecution committed Griffin error during closing argument when he stated that defendant “didn’t bring anyone else to testify on his behalf,” and asked the rhetorical question, “[W]hat proof do you have that he didn’t do it?” We find no error.

“It is a bedrock principle in our jurisprudence that one accused of a crime cannot be compelled to testify against oneself. [Citations.] In order that an accused not be penalized for his invocation of this fundamental right, the prosecutor may neither comment on a defendant’s failure to testify nor urge the jury to infer guilt from such silence. (People v. Hardy (1992) 2 Cal.4th 86, 153-154, citing Griffin, supra, 380 U.S. 609.) The question is whether there is “a reasonable likelihood that any of the comments could have been understood, within its context, to refer to defendant’s failure to testify.” (People v. Clair (1992) 2 Cal.4th 629, 663 (Clair).) “Although Griffin prohibits reference to a defendant’s failure to take the stand in his own defense, that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citation.]” (People v. Szeto (1981) 29 Cal.3d 20, 34.)

Here, there is no reasonable likelihood that the prosecution’s comments would have been understood to refer to defendant’s failure to testify. The prosecution’s complete comment was, “Again, defendant did not have to testify, but they didn’t bring anyone else to testify on his behalf.” Rather than commenting on defendant’s failure to testify, the prosecution, in fact, confirmed that defendant did not need to testify. Moreover, the prosecution permissibly commented on the failure of the defense to call logical witnesses, namely defendant’s brother. In addition, the prosecution simply pointed out the obvious fact that there was no defense evidence presented. Accordingly, there was no Griffin error.

Assuming arguendo that the prosecution’s comments were improper, any error was harmless. In light of defendant’s admission that the drugs found in the car belonged to him, there is no possibility that the jury would have reached a more favorable verdict had the alleged not occurred. (See People v. Gionis (1995) 9 Cal.4th 1196, 1220.)

DISPOSITION

The judgment is affirmed.

We concur: RICHLI J., MILLER J.


Summaries of

People v. Jimenez

California Court of Appeals, Fourth District, Second Division
Jul 31, 2008
No. E043219 (Cal. Ct. App. Jul. 31, 2008)
Case details for

People v. Jimenez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTONIO JIMENEZ, Defendant and…

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

Date published: Jul 31, 2008

Citations

No. E043219 (Cal. Ct. App. Jul. 31, 2008)