Opinion
B160252.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. OSCAR LEON, Defendant and Appellant.
David Romley, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jeffrey B. Kahan and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
As Oscar Leon walked away from his aunts house on El Sereno Street in Pasadena, a passing police officer asked him "if he was okay." Leon ignored the officer, turned, and walked back toward the house. When the officer tried again ("Hey, man, lets talk"), Leon ran into the house. Before the officer could knock, the aunt opened the door and gave her permission for the officer to enter. Inside, he saw Leon walking away from a bathroom and down a hallway. With the aunts consent, the officer searched the bathroom and found a small baggy with .09 grams of methamphetamine on the floor between the sink and toilet. Leon was arrested, charged with possession of the methamphetamine, and convicted as charged. Probation was granted. Leon appeals, claiming his Miranda rights were violated and contending the trial court should not have admitted "gang" evidence. We affirm.
DISCUSSION
I.
Leon contends his "second `confession" was tainted by earlier questioning that occurred before he was advised of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) We disagree.
A.
At an Evidence Code section 402 hearing, Officer Javier Aguilar testified that when he first entered the house, he spoke to Leons aunt and uncle, who told him they did not know who "ran in," but Leon stepped out of a bathroom as they were talking, and the aunt said, "Thats my nephew." Officer Aguilar (by then joined by Officers Gomez and Mendenhall with whom he had been on patrol) found the drugs in the bathroom, and (while handcuffing Leon) mentioned that he had talked to Leons aunt and uncle, and told Leon "to be completely honest" with him. Officer Aguilar told Leon (who had not yet been advised of his Miranda rights) "that he didnt have to run and that I would charge him for possession or destruction of evidence." In response, Leon said "he didnt want to get caught. He wanted to get off the stuff [and] that it was methamphetamine and not coke."
Leon was arrested, placed in the patrol car, and advised of his Miranda rights, which he said he understood. On the way to the station, Leon told the officers that he "became nervous" when Officer Aguilar spoke to him on the street, turned around, and ran into the house "because he had a bag of methamphetamine. He ran into the bathroom and just threw the baggy of methamphetamine between the sink and the toilet." This statement was made about 15 to 20 minutes after the statement made in the house.
The trial court refused to admit Leons first statement but did admit the statement he made in the car, finding "beyond a reasonable doubt that [the second statement] was voluntary. [¶] I have no evidence that it was not. There was no coercion in the first statement. The officer was just very direct with him. . . . [¶] I do not find that the statement made after the Miranda warning is tainted, and therefore, again, I find beyond a reasonable doubt it is voluntary, and I will admit it into evidence."
At trial, Officer Gomez (who was in the car with Leon and Officer Aguilar) testified that Leon "stated that he saw us pull up to him, he heard Officer Aguilar calling out to him, asking him the various questions and making the various statements. But he got nervous because he had methamphetamine on his person, took off running to the house, and then dumped the methamphetamine in the restroom to avoid being arrested. [¶] He said that getting arrested or something would hurt his marriage, or cost him his marriage, so he was worried about that."
B.
"If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspects ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." (Oregon v. Elstad (1985) 470 U.S. 298, 309.)
We see no reason to respond to Leons lengthy discussion about the rules stated by the Oregon Court of Appeal or the Oregon Supreme Court as the case worked its way up to the United States Supreme Court — which of course has the final word on this subject.
Leons reliance on People v. Honeycutt (1977) 20 Cal.3d 150, is misplaced. In Honeycutt, there was "a clever softening-up of a defendant." (Id. at p. 160.) Here, there was no such thing, and the trial court specifically found the pre-Miranda questions by Officer Aguilar were not "to soften him up." As the trial court put it, the officer "was pretty direct" when he said he had talked to Leons aunt and uncle and said to Leon, "why dont you be honest with me" — but the court excluded the first statement only because Leon had not been advised of his rights and expressly found, beyond a reasonable doubt, "that it was voluntary." The evidence plainly supports the courts findings.
As our Supreme Court explained in People v. Storm (2002) 28 Cal.4th 1007, 1029-1030, the exclusion of an otherwise voluntary statement simply because it was obtained in violation of Miranda does not mean the fruits of such an otherwise voluntary statement are invariably tainted and inadmissible, and "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."
Leons second statement was properly admitted.
II.
Leon contends there were improper references to gangs. We disagree.
A.
Before trial (at the hearing referred to in Part I, ante), the prosecutor mentioned there was "a reference in the police report indicating that gang members hang out . . . at the location." After the prosecutor agreed that Leon is not a gang member, the trial court directed the prosecutor, "You wont make reference to that then." When the court was asked to "instruct the officer on the record so theres no confusion," the court (addressing Officer Aguilar, who was still on the witness stand), said: "I know that you go to these locations because of past arrests there and conduct. I dont want any mention of gangs because [Leon] is not a gang member in this arrest. . . ."
When Officer Aguilar was called as a witness at trial and asked about his background, he described it in detail and, toward the end of his answer, said this: "Ive made numerous arrests pertaining to just about everything under the Penal Code, and then just the assignment Im in right now, street level narcotics, gangs, Im assigned to, or actually, in charge of Hispanic gangs throughout the City of Pasadena." When he asked whether he should provide more information, the prosecutor asked him for his "training with regard to narcotics." Leon did not object.
Later, when Officer Gomez testified and was describing the initial contact, he said they were driving down El Sereno Avenue when Officer Aguilar saw Leon. Officer Gomez started to say more — "Officer Aguilar has had prior contacts with . . ." — but was interrupted by the prosecutor, and a defense motion for mistrial based on Officer Gomezs interrupted comment was denied. Officer Gomez did not mention gangs, and no defense objection referred to the gang "issue."
B.
We reject Leons contention that Officer Aguilar violated the trial courts ruling. In context, it is clear that the court did not want the officer to mention gangs in answer to a question about why he happened to call out to Leon in the first instance, or why the officer was on that particular street. No one told the officer not to fully describe his background, and no one objected when, in that context, he referred to gangs. We summarily reject Leons suggestion that the jurors somehow made a connection between Officer Aguilars description of his experience and Officer Gomezs statement that Officer Aguilar had a prior contact with some unnamed person. Leaving to one side the failure to object, this is not the stuff of prejudicial error.
DISPOSITION
The judgment is affirmed.
We concur: SPENCER, P.J. and MALLANO, J.