Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA082403 Allen J. Webster, Jr., Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Herbert Miller, appeals from the judgment entered following his conviction, by jury trial, for unlawful sexual intercourse, inducing a child to engage in lewd conduct, and attempting to dissuade a witness, with prior prison term and prior serious felony conviction findings (Pen. Code, §§ 261.5, subd. (d); 266j, 136.1, subd. (a)(2), 667.5, 667, subd. (a)–(i)). Sentenced to state prison for 85 years to life, Miller claims there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed in part, reversed in part, and remanded for resentencing.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Prosecution evidence.
Fourteen-year-old Michelle H. was living in a Compton apartment with her father and four siblings. Defendant Miller, who was 30 years’ old at the time, lived in the apartment next door. Michelle told Miller she was unhappy with her father because of his drinking. In early November, Miller convinced Michelle to leave home and stay with him in motels. On their first night together, Miller took Michelle to a motel room and then left for a short time. While he was gone, Michelle got a call from a friend who said Michelle’s father was looking for her and had called the police. The friend said that if Michelle returned home she would be arrested. Michelle believed this story. When Miller returned, Michelle told him about the call and he agreed she would go to jail if the police found her.
Michelle stayed in various motels with Miller for the next four or five weeks. She had left home without money or a change of clothes. Miller paid for the motel rooms, food, and new clothes. Miller told Michelle she had to repay him by engaging in prostitution. He took her to Long Beach Boulevard, told her to stand on a street corner, and directed her to charge $120 for intercourse. During those four or five weeks, Michelle had sex with 10 or 15 men. Each time, she gave Miller the money.
Michelle also had sexual intercourse with Miller two or three times. The first time occurred a few days after she left home and before she began working as a prostitute. She described this act as consensual. When Miller approached her a second time, she told him she didn’t want to have sex. He whipped her legs with a belt until she agreed. One time when Michelle was out on the street she refused to have sex with a customer. Miller got angry, told her to kneel down on the sidewalk and kicked her in the back.
Los Angeles County Sheriff’s Deputy Joseph Garrido and Sergeant Eliezer Vera were on patrol one night when they stopped Miller for speeding and not wearing a seatbelt. As he approached Miller’s car, Garrido smelled marijuana. A search of Miller’s car revealed a small amount of marijuana and a Motel 6 keycard. When the officers asked Miller if they could search the motel room, he said yes. The officers drove to the motel and started toward Miller’s room. Miller, whom they had left behind in the patrol car, yelled out that he wanted to go up to the room too. The officers agreed and got him out of the patrol car.
The officers knocked on the motel room door and it was opened by Michelle. Inside the room, they found Miller’s laptop computer, female clothing, some fast food and a small baggie of marijuana. After speaking to Michelle, Garrido told Miller he was going to be arrested. At that, Miller began yelling at Michelle, “saying, ‘Baby, I love you. Don’t say anything. Don’t say anything. Baby, I love you.’ ” The officers took Michelle to the police station, where she told them about having sex with Miller and working as a prostitute for him.
Two days later, Miller called Michelle and asked her to lie in court about what had happened. Thereafter, he called her almost every day, asking her to lie. In one call, Miller said his sister would give Michelle $100 if she lied in court. He later increased the offer to $300.
Michelle’s father, Joseph H., testified that during the time Michelle was missing Miller asked him a few times if he had heard anything from her. Miller never told Joseph he knew where Michelle was. Joseph also testified that the same day the police brought Michelle home, he got a telephone call from Miller: “He told me that I better write a letter stating that I gave him permission to have Michelle with him,” and that “if I didn’t write . . . what I was told to write, that something would happen to me.”
2. Defense evidence.
Miller testified he had nothing to do with Michelle’s decision to leave home. Several weeks after she ran away, a friend of hers contacted Miller and said Michelle needed his help. The friend asked Miller to drive to Orange County and pick Michelle up at a bus stop across the street from the motel where she was staying. The friend called Miller because she knew he was a religious man who helped people. When Miller arrived at the bus stop, Michelle was not there. He rented a motel room and put food in it so Michelle could get away from her alcoholic and abusive father. Some time later, he drove Michelle back to Compton. He did not call the police because Michelle did not want him to. Although he rented the room at the Motel 6, he never stayed there with Michelle.
Miller denied having had sex with Michelle or forcing her to work as a prostitute.
On cross-examination, Miller refused to answer any questions. At first, he responded to the prosecutor’s questions by quoting Bible passages; thereafter he simply refused to say anything.
3. Prosecution rebuttal evidence.
In 1984, Miller had been twice convicted of attempted robbery, and in 2000 he had been convicted of assault with a deadly weapon.
Detective James Charles testified Miller told him the motel room where Michelle was found “was their motel room,” and that he had been staying there with Michelle “just a couple of days.”
CONTENTIONS
1. Review of an in camera Pitchess proceeding is requested.
2. The trial court erred by not conducting a competency hearing.
3. Statements Miller made to the police were admitted in violation of Miranda.
4. The trial court erred by refusing to dismiss one or more of Miller’s Three Strikes prior convictions.
5. The trial court erroneously stayed two prior prison term (§ 667.5) enhancement findings. (Issue raised by the Attorney General.)
6. The trial court failed to impose a separate court security fee (§ 1465.8) for each of Miller’s convictions. (Issue raised by the Attorney General.)
DISCUSSION
1. Review of in camera Pitchess hearing.
Miller requests review of the trial court’s ruling on his motion seeking discovery under Pitchess v. Superior Court (1974)11 Cal.3d 531. Review of the in camera hearing by this court reveals no abuse of the trial court’s discretion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1232.)
2. Trial court did not err by failing to hold a competency hearing.
Miller contends the trial court erred by failing to hold a competency hearing after defense counsel told the court she had doubts about Miller’s competency. This claim is meritless.
a. Procedural background.
After all the testimony in this case had been presented, defense counsel addressed the trial court: “Your Honor, and I apologize to the court that this is coming at this stage of the proceeding, but I think it would be malpractice if I did not declare a doubt as to Mr. Miller’s mental competency pursuant to [section] 1368.” Defense counsel then gave a number of supporting reasons: “The way that I became appointed on this case is . . . Mr. Miller made a Marsden motion against Ms. Sullivan in Department D. And I wasn’t present but she told me that at that hearing, Mr. Miller got on his knees and begged Judge Cheroske for a new lawyer and made references to God, et cetera. And virtually every appearance I’ve made with Mr. Miller he has made Marsden motions. And his reasons for wanting a Marsden are mostly nonsensical. [¶] His conduct during voir dire, which I didn’t see because I was at side-bar, was he was fidgety and actually spoke to one of the excused jurors and asked to be taken back into lockup. And I’ve been practicing law for years and I have never had a client do that.”
People v. Marsden (1970) 2 Cal.3d 118.
Defense counsel said Miller decided to testify against her advice that the prosecution had not proved the charges beyond a reasonable doubt. Then, “[w]hen he took the stand, as the court knows, he started to quote scriptures and then he just didn’t answer any questions.” “And I think the thing that sealed this for me . . . was [when] he whispered to me and asked me if I could ask him the questions that [the prosecutor] had asked him and he could answer the questions. He wanted me to ask them. . . . [W]hich clearly shows that he doesn’t understand the proceedings. [¶] Your Honor, given that he’s facing over 100-years-to-life and the seriousness of this case, I think he needs to have a mental evaluation to see if he is truly competent to stand trial.”
The prosecutor opined Miller was fully aware of the proceedings and was just being manipulative. The prosecutor argued that on direct examination Miller had been “fully able to answer any questions that defense counsel asked him, and then when asked questions by the prosecution, just started quoting chapter and verse out of the Bible and then just sat stoic and refused to answer any of the questions. [¶] He didn’t look at me, he didn’t look at the court, he didn’t look at the jury when I was asking the questions. But on direct examination . . . [h]e made sure that he was making eye contact with each and every one of those jurors so that he could try to ingratiate himself into their good will in the hope that he could try to manipulate them.”
The trial court refused to hold a competency hearing because it appeared Miller understood “the nature of the charges against him and is basically more than competent to . . . understand and cooperate with the lawyer.” The court noted Miller had been conferring with defense counsel during the proceedings, had testified at an evidentiary hearing on his motion to suppress evidence, and that his trial testimony, although “somewhat contrived, somewhat dramatized by his, I guess, zeal to appeal to the jury,” had been very shrewd: “[E]very question that was asked of Mr. Miller, the court feels that Mr. Miller clearly knows the answer. Mr. Miller is a very bright man . . . . [¶] With respect to the [direct examination], he answered every question, looking at the jury, not looking at counsel or the judge, but looking at the jury to ingratiate himself with the jury. [¶] With regard to cross-examination, he appeared to be rather reluctant, didn’t want to answer the questions, he went into, basically, an emotional mode, quoting the Bible. . . . [A]s far as the court was concerned, he understood all of the questions, could answer them, but decided that he wouldn’t answer the questions. And so what he did, he started with the Bible and then he basically just didn’t say anything.”
The trial court concluded “that throughout these proceedings Mr. Miller has attempted to . . . manipulate, control, have things done his own way. When he can’t get his way, then he acts out . . . . [¶] The court does not believe there’s any substantial evidence or even any evidence of Mr. Miller’s inability . . . to understand the proceedings or to cooperate with . . . the lawyer.”
b. Legal principles.
“Trial of an incompetent defendant violates the due process clause of the Fourteenth Amendment to the United States Constitution [citation] and article I, section 15 of the California Constitution. Those protections are implemented by statute in California.” (People v. Hayes (1999) 21 Cal.4th 1211, 1281). “Under California law, a person is incompetent to stand trial ‘if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.’ (§ 1367, subd. (a).) A defendant is presumed to be mentally competent to stand trial. (§ 1369, subd. (f).) [¶] . . . [S]ection 1368 provides that if the trial court has any doubt as to the defendant’s competence to stand trial, it must state that doubt in the record and inquire of counsel whether, in his or her opinion, the defendant is mentally competent. (§ 1368, subd. (a).) The trial court is authorized to conduct a competency hearing on its own motion and at the request of counsel. (§ 1368, subd. (b).) [¶] . . . ‘[O]nce the accused has come forward with substantial evidence of incompetence to stand trial, due process requires that a full competence hearing be held as a matter of right. [Citation.] In that event, the trial judge has no discretion to exercise. [Citation.] As we also have noted, substantial evidence of incompetence is sufficient to require a full competence hearing even if the evidence is in conflict. [Citation.] We have concluded that where the substantial evidence test is satisfied and a full competence hearing is required but the trial court fails to hold one, the judgment must be reversed. [Citation.]’ ” (People v. Young (2005) 34 Cal.4th 1149, 1216-1217, fn. omitted.)
“In this context, substantial evidence means evidence that raises a reasonable doubt about the defendant’s ability to stand trial. [Citation.] The substantiality of the evidence is determined when the competence issue arises at any point in the proceedings. [Citation.] The court’s decision whether to grant a competency hearing is reviewed under an abuse of discretion standard. [Citations.] [¶] Substantial evidence of incompetence may arise from separate sources, including the defendant’s own behavior. For example, if a psychiatrist or psychologist ‘who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel, the substantial-evidence test is satisfied.’ ” (People v. Ramos (2004) 34 Cal.4th 494, 507-508; see People v. Welch (1999) 20 Cal.4th 701, 742 [“ ‘more s required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant’s ability to assist in his own defense [citation]’ ”].)
c. Discussion.
Miller argues the trial court was required to hold a competency hearing because there was substantial evidence he was incompetent to stand trial. We disagree. The record does not provide any substantial evidence to rebut the presumption Miller was competent to stand trial. For significant stretches of time, e.g., during his testimony at the suppression hearing and his direct examination by defense counsel, Miller was entirely lucid. His occasional bizarre conduct appears to have been merely an attempt to manipulate the trial process, rather than a manifestation of an inability to control himself.
Miller points to an incident which occurred before opening statements in which he “was described as singing, yelling, and crying in court.” The bailiff informed the trial court Miller had been singing “This Little Light of Mine,” but that “it wasn’t so much the singing, it was when he started crying, saying ‘You don’t know what I’m going through.’ Then we were trying to calm him down, he wouldn’t. He was just all over the place. Telling us we don’t understand.” The trial court admonished Miller about this outburst and advised him the sheriff wanted to put him in restraints, but said that wouldn’t be necessary if he could control himself. When the trial court asked, “[I]s that understood between us?”, Miller very politely replied, “Yes, sir,” and that was apparently the last time there was any mention of restraints.
Miller asserts one part of his trial testimony demonstrates “his tenuous grasp on reality” and his “disorganized thinking.” To the contrary, the cited passage shows Miller explaining that he did not report Michelle’s whereabouts to the police because, in a past similar situation, he had not been believed: “Because I went to the police before when these girls was telling me something was happening to them. And then when the police – school police came to the house . . . then the girls said I was drunk and I didn’t know what I was talking about.”
Miller cites as examples of “bizarre and self-destructive conduct throughout the trial” his “quoting biblical text in response to the prosecutor’s cross-examination questions, his repeated interruptions during the prosecutor[’s] closing argument and [the] court’s reading of final jury instructions, and request that the court order his castration at the sentencing hearing.” But all of this behavior was understandable when viewed in context.
It is readily apparent that, during cross-examination, Miller first quoted scripture and then refused to say anything because he did not want to answer the prosecutor’s questions. The trial court told Miller so at the time: “[Y]our credibility is on the line. And I don’t think you are impressing the jury, helping yourself by quoting biblical scriptures rather than answering these questions. You didn’t do that on direct, so why all of a sudden you are doing it on cross, only you can answer that question.” When Miller interrupted the trial court while it was reading the jury instructions, it was to communicate sympathetic information. For instance, Miller said, “You didn’t mention I was facing 130 to life. You didn’t mention that,” and “I’ve got a child, too.”
Similarly, when Miller interrupted the prosecutor’s closing statement to the jury, it was in order to present counter-arguments. When the prosecutor mocked Miller’s claim he only wanted to help Michelle, saying Miller “had his own perverted reasons for why [sic] he wanted to do with Michelle,” Miller interrupted to say, “Hey, I’m sorry. I got three sisters that’s been raped by my uncles. You can’t tell me nothing, dude, about nothing. I was too little then; I ain’t too little now. You can’t tell me nothing. . . . [¶] I do that. Anybody need helps, I’m going to be there. You can believe that.” When the prosecutor warned the jury Miller had “tried to manipulate you when he testified with his outrageous behavior. When he was answering defense counsel’s direct questions, he sat up here on this stand . . ., he looked right here at each and every one of you, answering the questions and looking at you,” Miller interrupted to say, “Because they care. You don’t.”
Miller’s remarks about castration appear to have been a canny, manipulative attempt to elicit the trial court’s sympathy at the sentencing hearing. Miller said: “The court has totally dishonored me. I feel ashamed. And if the court feel that this is who I am, I am some pervert dude that needs to tell some little girl that – [¶] – and oh, by the way, it was also another man put out of her house for allegedly supposed to have touching on her, and I believed, you know. If you seen in court, all that came to see me was women. I believed in the story that she told me. But if the court believes that I’m this sleaze, I ask the court to order my castration. Because I cannot live in this shame. And I’m saying this for the record and I am in my right state of mind. I do not want it, do not make – have me live in this humility [sic]. If you, this court, feels as if I did these – any of these things with this little child, I beg the court to order my castration.”
In sum, we agree with the trial court’s conclusion there was no evidence Miller was incompetent to stand trial. “[A] defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel.” (People v. Ramos, supra, 34 Cal.4th at p. 508; see also People v. Halvorsen (2007) 42 Cal.4th 379, 406 [“the record shows that defendant, despite his ‘bizarre actions’ and ‘bizarre statements,’ understood the proceedings and could assist in his defense”].) In the words of People v. Hayes, supra, 21 Cal.4th at p. 1282: “If appellant was in fact incompetent during any part of these proceedings that fact is not apparent on the face of this record.” (See also People v. Koontz (2002) 27 Cal.4th 1041, 1064 [“Even supposing defendant is correct that the various examples of his rambling, marginally relevant speeches cited in his briefing may constitute evidence of some form of mental illness, the record simply does not show that he lacked an understanding of the nature of the proceedings or the ability to assist in his defense.”].)
3. Miranda claim properly rejected.
Miller contends the trial court erred by rejecting his motion, under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602], to suppress evidence of the statements he made to the police after he was stopped for speeding. This claim is meritless.
a. The suppression hearing.
The trial court held an evidentiary hearing at which both Miller and the two police officers testified about the traffic stop.
Officer Garrido testified he stopped Miller on Long Beach Boulevard in Compton for speeding and driving without a seatbelt. As Garrido walked toward Miller’s car he smelled marijuana, so he asked Miller if he had marijuana in the car. When Miller said he did, Garrido asked him and his two passengers to get out of the car. He put them into the back seat of his patrol car. They were not handcuffed, although the patrol car door automatically locked once it was shut and could not be opened from the inside. Garrido then searched Miller’s car and found a small baggie of marijuana on the driver’s seat. He also found a keycard for a Motel 6 in Bellflower. Garrido asked Miller if he was staying at this motel and if there was any more marijuana in his room. Miller answered yes to both questions. Garrido then asked if he could search the motel room and Miller again said yes. The officers drove Miller to the motel, which was only a few minutes away. During the ride, Miller affirmed his consent to a search of the motel room.
Garrido described the baggie as a “nickel sack” that would typically hold an amount for personal use.
Vera testified he was the supervising officer that night. When Garrido told him Miller had consented to a search of the motel room, Vera spoke to Miller to double check. Miller repeated his consent in Vera’s presence. Vera testified Miller was not handcuffed at the site of the traffic stop.
Miller testified that after he handed Garrido his license and registration, Garrido told him to get out of the car. Miller complied. Garrido handcuffed him and put him into the back of the patrol car. Miller’s two passengers were also put in the patrol car, but they were not handcuffed. He denied giving consent for his car to be searched. The motel keycard was not inside the car; it was on Miller’s person and the officers took it from him. The officers never asked if there was more marijuana at the Motel 6 and Miller never gave them consent to search the motel room.
The trial court specifically determined the officers’ testimony was credible, but that Miller’s was not. The trial court ruled Miller had freely consented to the search of his motel room and that there had been no Miranda violation because, although Miller had been in custody when he was sitting in the back of the patrol car, he had not been interrogated.
b. Legal principles.
“The now familiar rule in Miranda relies on the Fifth Amendment to the federal Constitution to preclude the evidentiary use of statements made pursuant to a custodial interrogation unless the suspect has knowingly and intelligently waived the rights to remain silent and to the presence and assistance of an attorney, the latter provided at state expense for indigent suspects. . . . [¶] ‘An appellate court applies the independent or de novo standard of review, which by its nature is nondeferential, to a trial court’s granting or denial of a motion to suppress a statement under Miranda insofar as the trial court’s underlying decision entails a measurement of the facts against the law.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 735.)
A Miranda warning is only required at a custodial interrogation. “An interrogation is custodial when ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citation.] Whether a person is in custody is an objective test; the pertinent inquiry is whether there was ‘ “ ‘a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ ” ’ [Citation.] [¶] Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court’s determination that a defendant did not undergo custodial interrogation, an appellate court must ‘apply a deferential substantial evidence standard’ [citation] to the trial court’s factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, ‘a reasonable person in [the] defendant’s position would have felt free to end the questioning and leave’ [citation].” (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) “[T]he ultimate inquiry [on the in-custody element] is simply whether there is a ‘formal arrest or restraint of freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler (1983) 463 U.S. 1121, 1125 [103 S.Ct. 3517].) “In deciding the custody issue, the totality of circumstances is relevant, and no one factor is dispositive. [Citation.] However, the most important considerations include (1) the site of the interrogation, (2) whether the investigation has focused on the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form of questioning. [Citations.] As the People note, of course, Miranda is not invoked simply because questioning is conducted at a police station, even where suspicion has ‘focused’ on the subject.” (People v. Boyer (1989) 48 Cal.3d 247, 272; see Stansbury v. California (1994) 511 U.S. 318, 324 [114 S.Ct. 1529-1530] [“a police officers’ subjective view that the individual under questioning is [or is not] a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda”].)
Berkemer v. McCarty (1984) 468 U.S. 420, 439 [104 S.Ct. 3150], concluded “the usual traffic stop is more analogous to a so-called Terry stop,’. . . than to a formal arrest.” “Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” (Id. at pp. 439-440, fns. omitted; see People v. Aguilera (1996) 51 Cal.App.4th 1151, 1165 [Miranda generally inapplicable in traffic stop situation because restraint on liberty often occurs in nonthreatening or noncompulsive public environment and is of limited duration]; People v. Forster (1994) 29 Cal.App.4th 1746, 1753-1754 [although it took CHP officer almost an hour to arrive at federal customs office to contact defendant, as in Berkemer there were no objective indicia of arrest and therefore no custody for Miranda purposes].)
Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868].
c. Discussion.
While acknowledging that “a person temporarily detained and subjected to investigatory questions pursuant to a routine traffic stop is ordinarily not in custody for purposes of Miranda,” Miller argues Officer Garrido “went beyond the bounds of investigatory questions about the traffic infraction by asking appellant if there were drugs in the car. [¶] Even assuming appellant was not ‘in custody’ for Miranda purposes when Officer Garrido asked if there was marijuana in the car, the same was not true when the officer asked appellant about the presence of drugs in the motel room. Following appellant’s admission of marijuana in the car, Officer Garrido secured appellant in the back of the patrol car then searched appellant’s vehicle for crime evidence. The officer found marijuana and a motel key. While appellant was in custody and under the control of the police, Officer Garrido walked back to the patrol car and asked appellant if there was more marijuana in the motel room. The officer did not [give] appellant a Miranda advisement before asking this question.”
We disagree with Miller’s Miranda analysis. Once Garrido smelled the marijuana wafting from Miller’s car, the scope of the legitimate temporary detention was no longer limited to investigating a suspected traffic violation, but now included investigation of a suspected drug offense. (See United States v. Jackson (4th Cir. 2002) 280 F.3d 403, 405 [“Traffic stops . . . constitute Fourth Amendment seizures ‘so that when the purpose justifying the stop is exceeded, the detention becomes illegal unless a reasonable suspicion of some other crime exists.’. . . Officer Mills smelled a strong odor of marijuana as he approached the van, before he asked Jackson any questions. This provided Officer Mills with ‘a reasonable, articulable suspicion that criminal activity [wa]s afoot,’ [citation] which, in turn, justified a ‘brief, investigatory stop,’ [citations], allowing Officer Mills to ask whether Jackson had any drugs in the van.”].)
And once Garrido found the bag of marijuana in the car, along with the Motel 6 keycard, it was legitimate to ask if Miller had more marijuana back at the motel. When Miller admitted he did, Garrido legitimately asked if he would consent to a search of the motel room. (See United States v. Pruitt (11th Cir. 1999) 174 F.3d 1215, 1220 [“Lengthening the detention for further questioning beyond that related to the initial stop is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. [Citation.] Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter.”].)
Thus, Garrido did no more than permissibly ask Miller “a moderate number of questions . . . to try to obtain information confirming or dispelling [his] suspicions.” (Berkemer v. McCarty, supra, 468 U.S. at p. 439; see, e.g., People v. Clair (1992) 2 Cal.4th 629, 679-680 [where police officers investigating burglary found defendant hiding in a bed and questioned him at gunpoint, defendant was neither in custody nor subjected to interrogation: he had merely been subjected to legitimate questioning during temporary detention and, therefore, no Miranda warning was required].)
Although the trial court here concluded Miller was in custody, the following factors indicate he was not: the entire traffic stop apparently lasted just minutes; Miller was not handcuffed; only two officers were involved; there is no evidence the officers drew their guns; the officers did not tell Miller he was under arrest; there is no evidence the tone of the interaction was anything but moderate and conversational; although the traffic stop occurred around midnight, it took place on what was apparently a major thoroughfare, i.e., the same street on which Miller was having Michelle solicit acts of prostitution. Given all these circumstances, we conclude Miller was not in custody during this time and, therefore, no Miranda warning was required.
Although Garrido and Vera mentioned the presence of other officers, it appears from their testimony these other officers did not arrive until after Miller told Garrido there was marijuana in the car and more marijuana back at the motel room.
4. Trial court properly refused to dismiss Three Strikes allegations.
Miller contends the trial court erred by refusing to dismiss, for Three Strikes purposes under the authority of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, any of his prior serious felony convictions. This claim is meritless.
The factors to be considered in ruling on a Romero motion were set forth in People v. Williams (1998) 17 Cal.4th 148, 161: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.”
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citation.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 376.)
The trial court was aware of its discretion under section 1385, saying: “With respect to Romero, essentially Romero stands for cases that are outside the spirit of Three Strikes, it seems to the court [this] is not one of them.” The trial court commented Miller had “been very much involved with crime since he was a teenager.” This judgment was backed up by the probation report, which indicated Miller had juvenile adjudications for theft and receiving stolen property (1991), and attempted robbery (1993), as well as adult convictions for robbery (1995), possession of a controlled substance (1997), battery (1999), and assault with a deadly weapon (2000). The trial court concluded, “[T]his isn’t even close in terms of the court granting a Romero motion. Mr. Miller has lived a life of crime up until the time that he was arrested in this particular case. So there’s nothing that would even suggest that he comes anywhere near Romero, so that motion will be denied.”
Miller’s overall record and his recidivism constituted a sufficient basis for denying his Romero motion. (See People v. Carmony, supra, 33 Cal.4th at p. 377 [“trial court does not abuse its discretion [in denying Romero motion] unless its decision is so irrational or arbitrary that no reasonable person could agree with it”]; People v. Strong (2001) 87 Cal.App.4th 328, 338 [“the overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career:”].)
5. Incorrect sentencing on prior prison term findings.
The Attorney General contends the trial court impermissibly stayed two prior prison term (§ 667.5, subd. (b)) enhancement findings. We agree. Moreover, the trial court apparently also erred by failing to impose and stay execution of an enhancement term for a third prior prison term finding.
In connection with Miller’s conviction on count 7, the principal term, the trial court imposed and then stayed execution of two one-year prior prison term enhancements. The Attorney General correctly points out that, in general, a prior prison term enhancement must be either struck or imposed; it cannot simply be stayed. (People v. Campbell (1999) 76 Cal.App.4th 305, 311 [“Although not raised by either party, the record discloses an additional error – the court’s staying of the prison priors. On remand, assuming the prison priors are proven, the court must either impose the prior prison enhancements or strike them.”]; People v. Bradley (1998) 64 Cal.App.4th 386, 390 [“To neither strike nor impose a prior prison term enhancement is a legally unauthorized sentence; the power to strike a prior prison term enhancement pursuant to section 1385, subdivision (a) survived the adoption of sections 667, subdivisions (b) through (i) and 1170.12; effective January 1, 1998, there is no longer the authority to strike a prior prison term pursuant to former section 1170.1, subdivision (h); and remand is appropriate for the trial court to exercise discretion pursuant to section 1385 . . . .”].)
Citing People v. Jones (1993) 5 Cal.4th 1142, 1153 (trial court cannot impose both prior prison term enhancement and prior serious felony enhancement (§ 667, subd. (a)) based on same underlying prior conviction), Miller contends the trial court here properly stayed the two prior prison term findings under People v. Lopez (2004) 119 Cal.App.4th 355, 364 (in Jones situation, trial court should impose sentence on unused enhancement finding and then stay execution of that sentence), because “[t]he information charged [him] with the same prior convictions for purposes of a Three Strikes sentence, one-year enhancements under section 667.5, subdivision (b), and five-year enhancements under section 667, subdivision (a).”
People v. Lopez, supra, 119 Cal.App.4th at p. 364, reasoned: “Jones . . . did not actually discuss whether striking the unused enhancement finding was the appropriate remedy. . . . Moreover, it is not at all clear whether the court intended to strike the enhancement finding or the punishment for the enhancement. Since the trial court had sentenced the defendant to a separate and consecutive term for each enhancement, certainly the court had to do something to eliminate the excess punishment. Thus, Jones is not authority for the proposition that an unused enhancement finding must be stricken. [¶] The correct procedure would have been to impose a sentence on the barred enhancement, but then stay execution of that sentence. California Rules of Court, rule 4.447 . . . provides that: ‘No finding of an enhancement shall be stricken or dismissed because imposition of the term is either prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge shall impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and shall thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay shall become permanent upon the defendant’s service of the portion of the sentence not stayed.’ This rule is intended ‘to avoid violating a statutory prohibition or exceeding a statutory limitation, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence. [Citation.]’ (Advisory Com. com., 23 pt. 2 West’s Ann. Codes, Rules (2004 supp.) foll. rule 4.447, p. 143.)”
But Miller is mistaken. The three section 667, subdivision (a), serious felony conviction allegations did not entirely overlap with the three prior prison term (§ 667.5) allegations because one allegation in each category was different. Thus, after imposing two section 667, subdivision (a), enhancements based on the prior convictions in case Nos. TA026444 and NA020103, there was no reason for the trial court to stay execution, under Lopez, of section 667.5 enhancements based on the prior convictions in case Nos. MA014641 and MA019907 because there was no redundancy.
The amended information alleged prior prison term enhancements arising from convictions in case numbers TA026444, MA014641, and MA019907, but prior serious felony conviction enhancements arising from convictions in case numbers TA026444, MA019907, and NA020103.
Although Miller asserts the trial court used his “prior convictions in case Nos. TA026444 and NA020103 for the five-year enhancements under section 667, subdivision (a)” and then “correctly stayed the one-year allegations based on these same prior convictions” (italics added), what the trial court said it was doing was staying “two one-year priors, case number MA014641 and MA019907.”
Hence, the Attorney General is correct that the matter must be remanded so the trial court can resentence Miller on the two section 667.5 findings and either strike or impose those enhancements. In addition, it appears that under Lopez the trial court should have imposed a one-year sentence on the third section 667.5 finding, based on the prior conviction in TA026444, and then stayed execution of that sentence.
We will remand to the trial court for a limited resentencing.
6. Inadequate court security fee.
The Attorney General contends the trial court erred by imposing only one $20 court security fee (§ 1465.8) because the $20 fee must be imposed on each conviction suffered, not just once for the entire case. Miller properly acknowledges this claim has merit.
Section 1465.8, subdivision (a)(1) provides, in pertinent part: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . .” (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865 [“section 1465.8 unambiguously requires a fee to be imposed for each of defendant’s convictions”].) Because we are remanding for resentencing on the prior prison term findings, we will remand as well for the proper application of the court security fee statute.
DISPOSITION
The judgment is affirmed in part, reversed in part and remanded for resentencing. The sentences are vacated to the extent indicated in this opinion and the matter is remanded to the trial court for a limited resentencing.
We concur: KITCHING, J., ALDRICH, J.