Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA088386. Cynthia Rayvis, Judge.
William M. Duncan, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Billy Don Lindley was convicted, following a jury trial, of one count of transportation of heroin in violation of Health and Safety Code section 11352 and one count of possession of heroin in violation of Health and Safety Code section 11350. The trial court sentenced appellant to the upper term of five years for the transportation conviction and stayed sentence on the possession conviction pursuant to Penal Code section 654.
Appellant was charged with possession for sale of heroin, but convicted of the lesser included offense of simple possession in violation of Health and Safety Code section 11350.
Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting his statement to police and further contending that the imposition of the upper term by the trial court violated his federal constitutional right to a jury trial as set forth in Cunningham v. California (2007) 549 U.S. ___. At our request, the parties submitted letter briefs addressing the effect of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. In his letter brief, appellant concedes that his sentence is proper under People v. Black, supra. He does not concede that Black is correct under the United States Constitution. We affirm the judgment of conviction.
Facts
On April 8, 2005, about 12:22 p.m., Maywood-Cudahy Police Officer Frank Garcia was on patrol with Sergeant Richardson in the 7600 block of Atlantic Boulevard. Officer Garcia noticed a black Cadillac with a broken right taillight. The officers turned on their sirens and emergency lights and pulled the Cadillac over for a traffic stop.
As Officer Garcia approached the car, he noticed that appellant, who was in the front passenger seat, was not wearing a seat belt. Officer Garcia also saw the driver place something inside his waistband. Officer Garcia ordered him to put his hands on the steering wheel.
Both appellant and the driver were asked to step out of the Cadillac. They did so. Another officer, Officer Guerrero searched the driver. During the search, a baggie fell out of the driver's shorts. It contained 168 balloons of a substance later determined to be heroin. The balloons had an average weight of .17 grams each.
Appellant was questioned briefly at the scene by Officer Garcia. Officer Garcia did not advise appellant of his Miranda rights before this questioning, and so appellant's statement was not admitted at trial.
Appellant and the driver were arrested. At the police station, appellant was advised of his Miranda rights by Officer Garcia. Appellant waived those rights and told the officer that he was picked up by the driver in Fullerton and drove with him to Los Angeles where the driver purchased the heroin. Appellant went along to protect the driver from robbery. He expected to be paid between $20 and $40. Appellant knew that the driver was going to buy narcotics. Appellant said that he had been using heroin intermittently since he was 18 years old. He was 54 at the time of the arrest.
Discussion
1. Motion to suppress
Appellant contends that the trial court erred in denying his motion to suppress his second statement to police, made at the police station after he was advised of and waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 467. He contends that the questioning at the police station was a continuation of the earlier unwarned interrogation which began during the traffic stop and that he did not make an informed choice to speak at the police station.
The scope of appellate review of constitutional claims of this nature is well established. The appellate court must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are supported by substantial evidence. The court makes an independent determination from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. (People v. Crittenden (1994) 9 Cal.4th 83, 128.)
"'[A] simple failure to administer the [Miranda] warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will,' [does] not 'so tain[t] 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.' [Citation.]" (Missouri v. Seibert (2004) 542 U.S. 600, 612, fn. 4, quoting Oregon v. Elstad (1985) 470 U.S. 298.) Thus, "'a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.' [Citation.]" (Missouri v. Seibert, supra, 542 U.S. at p. 612, fn. 4.)
Here, there is no evidence of any coercion at the scene of the traffic stop. Police did not point a gun at appellant or handcuff him. He was allowed to sit down because of his back problems. The questioning was brief and casual.
At the hearing on appellant's motion to suppress, Officer Garcia testified that while appellant was still in the Cadillac, Officer Garcia asked him if there were any narcotics or weapons in the vehicle. Appellant replied that he did not know or was not sure. Officer Garcia then asked appellant to step out of the car. He complied. Officer Garcia searched appellant, but found nothing. Appellant stated that he had some back and shoulder problems. Officer Garcia asked him if it would be better if he sat on a near-by planter, and then allowed him to do so. Once the drugs fell out of the driver's pants, Officer Garcia asked appellant if he knew anything about the drugs. Appellant replied that he had been paid $40 to accompany the driver while he purchased the drugs in Los Angeles.
There was likewise no evidence of any coercion at the police station which occurred at the police station about an hour after the traffic stop. There is nothing to suggest that appellant was isolated or denied food, water or access to a restroom. The interview lasted only a couple of minutes. Officer Garcia's questions were straightforward. Appellant answered some of the questions and claimed not to know the answers to other questions, particularly those concerning details of the driver's purchase of and plans for the heroin.
Appellant contends that his statement was nevertheless involuntary because his confession, like that of the defendant in Missouri v. Seibert, supra, 542 U.S. 600, was essentially a "sequential confession" and that Miranda warnings given in the middle of such a confession cannot be effective.
We see virtually no similarity between the questioning of appellant and that of the defendant in Seibert. In that case, the unwarned questioning lasted for 30 to 40 minutes and was "systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment." (Missouri v. Seibert, supra, 542 U.S. at p. 616.) Here, the initial questioning was brief, there was a gap of about an hour before the warned questioning began and that questioning took place in another location.
Another important difference is in the content of the second interview. The officer in Seibert began the questioning after the Miranda warnings by saying: "'[W]e've been talking for a little while about what happened on Wednesday the twelfth, haven't we?' App. 66. The 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." (Missouri v. Seibert, supra, 542 U.S. at p. 616.) The second interview essentially repeated the first interview and no new information was obtained. Here, the second interview began formally, by Officer Garcia introducing himself and then asking appellant his name. There are no references by Officer Garcia to the earlier interview. Officer Garcia attempted to obtain more information about the activities of the car's driver, although he was largely unsuccessful in that attempt.
The only similarity between appellant's questioning and that of the defendant in Seibert is that the same officer did the unwarned and warned questioning. That is not enough to render the Miranda warnings in this case ineffective.
2. Upper term
Appellant initially contended that the trial court's imposition of the upper term violated his right to a jury trial as set forth in Cunningham v. California, supra, 549 U.S. ____. In his letter brief submitted after the California Supreme Court's decision in People v. Black, supra, appellant concedes that his sentence is proper under Black. We agree that appellant's sentence is proper.
The California Supreme Court has explained the application of Cunningham to California's sentencing law: "[I]mposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (People v. Black, supra, 41 Cal.4th at pp. 815-816.)
The court has also explained that the "prior conviction" exception should not be read too narrowly. This exception includes "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (People v. Black, supra, 41 Cal.4th at p. 819.) Examples of related issues which fall within the exception are whether the convictions are numerous or of increasing seriousness. (Id. at pp. 819-820.)
In selecting the upper term, the trial court found that appellant had numerous prior convictions. The fact that a defendant has prior convictions and that those convictions are numerous is a constitutionally valid aggravating factor which does not require a jury trial. (People v. Black, supra, 41 Cal.4th at pp. 819-820.)
Appellant contends that contrary to the holding of Black, the U.S. Supreme Court's holding in Cunningham requires that all aggravating factors that the court relies on must be found true by a jury, with the exception of the fact of a prior conviction. He also contends that the fact of a prior conviction must be proved beyond a reasonable doubt and cannot be based on hearsay. He acknowledges that the California Supreme Court rejected identical claims. (People v. Black, supra, 41 Cal.4th at p. 820, fn. 9.) We are bound by the decision of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Presumably the trial court in this case applied a preponderance of the evidence standard of proof. (See Cal. Rules of Court, rule 4.420(b).) The trial court did rely on the probation report for the facts of the prior convictions.
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.