Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Allan J. Preckel, Judge, Super. Ct. No. SCE253917.
O'ROURKE, J.
A jury convicted Anthony Robert Padilla of robbery (Pen. Code, § 211, count 1) and possession of a controlled substance (Health and Saf. Code, § 11350, subd. (a), count 2), finding true that in the commission of count 1, Padilla personally used a firearm (§§ 12022.53, subd. (b) and 12022.5, subd. (a)). The court sentenced Padilla to 13 years in prison.
All further statutory references are to the Penal code unless otherwise specified.
Padilla contends the trial court committed prejudicial error by denying his motion in limine to exclude evidence of his statements to the police in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and his motion to exclude testimony regarding his identification in a live lineup, which he claims was unduly suggestive. We affirm.
We grant Padilla's unopposed motion for judicial notice of court records in this case.
Donald Eighmy testified as follows: on September 3, 2005, at approximately 11:30 p.m., he pulled into the parking lot at the E-Z 8 Motel in La Mesa, and parked under an illuminated sign for the motel. As Eighmy got out of his car, a red pickup stopped behind his car, blocking it. A Hispanic man wearing a baseball cap, who was approximately 45 years old and had a mustache and a goatee, jumped out of the pickup. He told Eighmy from approximately seven feet away, "Give me your wallet." Eighmy replied that he didn't have one. The man moved closer to Eighmy, brought a gun forward and pointed it directly at Eighmy, who said he had money in the car, and returned to his car. The man stood in the doorway of Eighmy's car as Eighmy turned to give him money. The gun was pointed approximately three inches from Eighmy's face. The man said, "Is this all you've got?" Eighmy said "no;" took more money from his day planner; and handed the man approximately $85. The man returned $10 to Eighmy and, as Eighmy watched him, said something like, "when it comes to this and you talk about it, talk to the President about our high gas prices." The man returned to his pickup and sped away.
Eighmy jumped out of his car and managed to see five digits of the pickup's license plate number. Eighmy immediately went to the motel lobby and asked the clerk to write down the digits. La Mesa Police Officer Angela Desarro arrived at the motel, and Eighmy told her the pickup was a Ford or a Nissan, and gave her the partial license plate number and a description of the robber. Eighmy testified at trial he saw the robber for approximately 30 seconds during the entire incident. He also testified he had "tunnel vision" during the incident, particularly for the gun used, the robber's face, and the license plate of the vehicle.
Desarro testified she responded to a call at the motel on September 3, 2005, at approximately 11:42 p.m. Eighmy described the robber to her as having a black and gray goatee, and being "approximately 45 years old, six foot, thin build, wearing dark hat and dark clothing" He also gave her the description of the vehicle and the partial license plate number. Desarro relayed this information to dispatch.
La Mesa Police Detective Shawn Wray provided the following testimony at an evidentiary hearing pursuant to Evidence Code section 402 regarding Padilla's motions in limine, and subsequently at trial. As part of Wray's assignment to investigate the robbery, he entered the partial license plate number in the police database and received information that in May, 2005, the police had contacted Padilla, a Hispanic male, in a red Nissan. On September 6, 2005, at approximately 11:00 a.m., Wray and Sergeant Willis went to Padilla's residence to follow up on this lead.
Wray saw a red Nissan pickup truck in Padilla's driveway; the last five digits of its license plate number matched those provided by Eighmy. The officers knocked on the door of the house several times, but no one answered. Padilla's mother arrived at the house from shopping, and the officers, who were wearing plainclothes, identified themselves to her and told her they wanted to speak to Padilla. She went inside the house while the officers waited outside. She returned and said Padilla was sleeping. She invited the officers inside. Later, Padilla's mother walked back and forth throughout the house during the officers' visit.
Padilla came out of his bedroom and sat in the living room, in a recliner next to the Wray and Willis. They identified themselves to him and said they were investigating an incident that happened at the E-Z 8 Motel. They did not give him Miranda warnings. (Miranda, supra, 384 U.S. 436.) They told him he was not under arrest and was under no obligation to speak to them. Padilla indicated he understood. Wray testified Padilla appeared "eager to talk." They asked about his whereabouts on the night of the incident. He said he was at home watching television. Wray talked more about the incident, and possibly told Padilla he believed Padilla was at the motel the night of the incident and was involved in it. Padilla said he recalled being at the motel either the night of September 2 or 3, 2005, and he got into an altercation with some kids. Wray asked Padilla about the pickup truck in the driveway. Padilla responded that he had been in sole possession of it on both nights. Padilla denied any involvement in the robbery incident.
Wray informed Padilla he would search his bedroom for the handgun used in the incident, and asked if he had anything illegal. Padilla stated he had a small amount of cocaine, which was found in a baseball cap. Wray told Padilla the investigation was not finished, and they might return to his residence for further questioning. According to Wray's testimony, Padilla said "that was fine, as long as he was not under arrest then either." Wray was not confrontational with Padilla, but spoke to him in a normal tone throughout the entire contact. Wray and Willis left the residence after approximately 25 minutes on the premises, including the interview with Padilla, which lasted approximately 10 minutes. They declined to arrest Padilla at that time because their investigation was not concluded.
The police were aware that Padilla was on probation and had a Fourth Amendment waiver of searches.
The police officers returned to their vehicle and discussed the investigation. Approximately five minutes later, Padilla walked to the front driveway of his residence. The police approached him and placed him in custody.
Wray testified at trial as follows regarding the lineup: On September 7, 2005, Eighmy attended a live lineup involving six men, including Padilla. The men appeared to be Hispanic, and had some facial hair, although Padilla and another individual did not have mustaches or goatee. At the outset, Wray informed Eighmy that the suspect might or might not be in the lineup. Wray testified on cross-examination that Padilla had some gray in his hair; therefore, it appeared he was the oldest person in the lineup. Wray required the individuals in the lineup to say, "When it comes to this, talk to the president." Eighmy identified Padilla as the robber, and told Wray he recognized Padilla by his cheekbones.
Wray testified he did not conduct a photographic lineup because Eighmy was out of town on the date Wray got the investigation.
Eighmy had not previously told the detectives about Padilla's cheekbones.
The trial court denied the motion to suppress Padilla's statements to the police, ruling Padilla was not in custody. The court also denied the motion to exclude from evidence Padilla's identification, ruling, "[T]here's no requirement that a lineup be comprised of six identical sextuplets. And some differences are to be expected and accepted, but this is about as close as I've come to granting one of these motions." The court continued, "[I]n the totality of the circumstances, viewing the videotape, comparing and contrasting the individual photographs as I have, mindful of the applicable law, it's the Court's view that legally this lineup was not impermissibly suggestive. That is not to say that it was not suggestive, because I think it was." The Court stated it would give defense latitude to explore the manner in which the lineup was put together and conducted.
At trial, Padilla's mother, the only witness for the defense, testified that Padilla did not have a goatee or mustache around the time of the robbery or for approximately the previous two and a half years.
I.
Padilla contends the trial court prejudicially erred in refusing to suppress his statements made to the police at his residence. He asserts the statements were the product of a custodial interrogation, not prefaced by Miranda warnings.
A person interrogated by law enforcement officers after being taken into custody 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. 436.) Statements taken in violation of this rule are generally inadmissible. (Stansbury v. California (1994) 511 U.S. 318, 322.)
The pivotal determination is whether a reasonable person in appellant's position would have felt he was in custody. (Berkemer v. McCarty (1984) 468 U.S. 420, 442; People v. Stansbury (1995) 9 Cal.4th 824, 830.) The test for whether a defendant was in custody has been described as whether a reasonable person in that position would "have felt he or she was not at liberty to terminate the interrogation and leave." (Thompson v. Keohane (1995) 516 U.S. 99, 112.) "An accused is in custody when, even 'in the absence of an actual arrest, law enforcement officials act or speak in a manner that conveys the message that they would not permit the accused to leave.' " (U.S. v. Kirsh (2d Cir. 1995) 54 F.3d 1062, 1067.) Indicia of custody for Miranda purposes include: whether the suspect was formally arrested, what was communicated to the suspect about his detention, the length of the detention, the location, the ratio of officers to suspects and the demeanor and nature of the officer's questioning. (See People v. Lopez (1985) 163 Cal.App.3d 602, 608.)
It is the trial court's responsibility to resolve disputed facts about the circumstances surrounding the challenged statement and then determine whether the protections of Miranda's admonitions were required. On appeal, this court must accept the trial court's resolution of disputed facts, including the credibility of witnesses, as long as that resolution is supported by substantial evidence. " 'Considering those facts, as found, together with the undisputed facts, we independently determine whether the challenged statement was obtained in violation of Miranda's rules.' " (People v. Farnam (2002) 28 Cal.4th 107, 178.)
Here, under the totality of the circumstances, a reasonable person in Padilla's position would not have felt he or she was in custody, and therefore Miranda warnings were not required. (People v. Stansbury, supra, 9 Cal.4th at p. 830.) Factors which negate a finding Padilla was in custody include the following: The police visited him in the familiar setting of his residence, and at a reasonable hour of the morning. They specifically informed him he was not under arrest, and Padilla understood as much. He seemed eager to talk to the police, who did not use a confrontational questioning style. The interview lasted approximately 10 minutes, and Padilla's mother was walking throughout the house during the interview. At the end of the interview, Padilla even agreed to a follow-up interview with the police and mentioned as a condition that he again be not under arrest. The police left the residence without arresting Padilla.
Padilla contends Wray knew before the interview with Padilla started that Padilla was a suspect, based on the pickup in Padilla's driveway and Padilla's physical description that matched previous information obtained. Relying on Rhode Island v. Innis (1980) 446 U.S 291, 302-304, Padilla asserts that during the interview Wray asked him questions in a manner that Wray knew was reasonably likely to elicit an incriminating response; accordingly, Padilla was subjected to a custodial interrogation, and Miranda warnings were necessary.
The central issue remains that Padilla was not in custody, and therefore Miranda warnings were not required. The United States Supreme Court has held, "An officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. [Citations.] Those beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her ' "freedom of action." ' [Citation.] Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest." (Stansbury v. California, supra, 511 U.S. at p. 325.) Therefore, although Wray possibly told Padilla he suspected Padilla was the robber, this did not make the interview a custodial interrogation.
II.
Padilla contends the court erred in admitting evidence of the lineup because it was unduly suggestive as he looked like the oldest individual in the lineup.
"Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable." (People v. Yeoman (2003) 31 Cal.4th 93, 123.) To evaluate suggestiveness, " '[t]he question is whether anything caused defendant to "stand out" from the others in a way that would suggest the witness should select him.' " (People v. Cunningham (2001) 25 Cal.4th 926, 990.) Factors to be considered in determining the reliability of the identification include " 'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.' " (People v. Kennedy (2005) 36 Cal.4th 595, 610.) We review deferentially the trial court's findings of fact, which may involve credibility determinations; however, we independently review the trial court's ruling regarding whether a pretrial identification procedure was unduly suggestive. (Id. at p. 608-609.)
As requested, we have reviewed the videotape of the lineup and the photographs of the six men who were in the lineup. We conclude the identification evidence was properly admitted under the totality of the circumstances. (People v. Kennedy, supra,36 Cal.4th at p. 610.) We agree with the trial court that the lineup was somewhat suggestive because Padilla appeared older than the other individuals; however, applying the Kennedy factors here, it was not a violation of due process to admit into evidence the videotape of the lineup.
Eighmy had 30 seconds to directly view Padilla at the scene of the crime. Eighmy was in extremely close proximity to Padilla and the gun was pointed only three inches from Eighmy's face. Given that the area was lit, Eighmy managed to focus on Padilla with what he described as a "tunnel vision." Eighmy accurately described Padilla to the police as being Hispanic, in his mid-40's and with a mustache and goatee, and stated that Padilla wore a blue cap. The lineup occurred only four days after the crime, when the incident was still relatively fresh in Eighmy's mind. Eighmy confidently identified Padilla at the lineup, and subsequently at the preliminary hearing and at trial. It is also noteworthy that Eighmy's reliable recording of the partial license plate number led the police directly to Padilla.
At trial, Padilla was afforded an opportunity to attack the conditions under which the lineup was conducted. " 'Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification — including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.' " (Manson v. Brathwaite (1977) 432 U.S. 98, 113-114, fn. 14) Here, defense counsel cross-examined Wray in detail regarding the manner of selecting the individuals for the lineup and referred to the matter in closing argument. The jury was of course free to consider the inconsistencies in the various identifications when deciding what weight to afford the evidence. There was no denial of due process.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.