Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05F07502, 05F08220, 06F00523, 06F01178
SIMS, Acting P.J.
An amended consolidated information accused defendant Alexandr Poyras of 26 offenses, as follows:
Count 1 (on or about August 15, 2005): receiving stolen property (victim, Maria Oliver). (Pen. Code, § 496, subd. (a); undesignated section references are to the Penal Code.)
Count 2 (same occasion): possession of burglar tools. (§ 466.)
Count 3 (on or about September 12, 2005): unlawfully obtaining and using personal identifying information (victims, Jeff Compton and Alrz (sic) Kaoukab). (§ 530.5, subd. (a).)
Count 4 (same occasion): possessing a forged driver’s license or identification card with intent to use it to facilitate the commission of a felony. (§ 470b.)
Count 5 (on or about September 14, 2005): receiving stolen property (victims, Brian and Pamela Ellis). (§ 496, subd. (a).)
Count 6 (same occasion): receiving stolen property (victims, Theresa and Brenda Lee Boyte). (§ 496, subd. (a).)
Count 7 (same occasion): receiving stolen property (victim, Todd Sorenson). (§ 496, subd. (a).)
Count 8 (same occasion): unlawfully obtaining and possessing personal identifying information. (§ 530.5, subd. (d).)
Count 9 (same occasion): being a felon in possession of ammunition. (§ 12316, subd. (b)(1).)
Count 10 (on or about January 3, 2006): passing a forged check in the name of Benjamin Telly at Off Broadway Shoe Warehouse. (§ 470, subd. (d).)
Count 11 (same occasion): passing a forged check in the name of Telly at Ross Stores. (§ 470, subd. (d).)
Count 12 (same occasion): passing a forged check in the name of Telly at Target Stores. (§ 470, subd. (d.)
Count 13 (January 5, 2006): passing a forged check in the name of Telly at Bel Air Market. (§ 470, subd. (d).)
Count 14 (same occasion): second degree burglary at Raley’s Market. (§ 459.)
Count 15 (same occasion): passing a forged check in the name of Telly at Raley’s Market. (§ 470, subd. (d).)
Count 16 (January 6, 2006): unlawfully obtaining and using Telly’s personal identifying information at Trader Joe’s. (§ 530.5, subd. (a).)
Count 17 (on or about January 15, 2006): possessing methamphetamine while armed with a loaded, operable firearm. (Health & Saf. Code, § 11370.1, subd. (a).)
Count 18 (same occasion): being a felon in possession of a firearm. (§ 12021, subd. (a)(1).)
Count 19 (same occasion): unlawfully concealing a firearm within a vehicle. (§ 12025, subd. (a)(1).)
Count 20 (same occasion): unlawfully carrying a loaded firearm on one’s person or in a vehicle in a public place or on a public street. (§ 12031, subd. (a)(1).)
Count 21 (same occasion): possessing methamphetamine for purposes of sale. (Health & Saf. Code, § 11378.)
Count 22 (same occasion): being a felon in possession of ammunition. (§ 12316, subd. (b)(1).)
Count 23 (same occasion): possessing a forged driver’s license (victim, Telly). (§ 470b.)
Count 24 (same occasion): receiving stolen property (victims, Telly, Randy Beaver, Duteau Trucking, Brittany Baker, and others). (§ 496, subd. (a).)
Count 25 (same occasion): possessing an apparatus to counterfeit banknotes. (§ 480, subd. (a).)
Count 26 (same occasion): forging a driver’s license. (§ 470a).
The information alleged as an enhancement that defendant committed one or more offenses while released from custody and awaiting judgment on a primary offense. (§ 12022.1.) The information also alleged a prior strike for discharging a firearm in an inhabited dwelling with gross negligence. (§§ 246.3, 667, subds. (b)-(i), 1170.12.)
A jury convicted defendant as charged except on count 21, on which it convicted him of the lesser included offense of possessing methamphetamine for personal use. (Health & Saf. Code, § 11377, subd. (a).) The jury also found the section 12022.1 enhancement true as to all counts other than 1, 2, and 8. In a bifurcated proceeding, the trial court found the strike allegation true.
The trial court sentenced defendant to a state prison term of 21 years and four months, computed as follows: six years (the middle term, doubled under Three Strikes) on count 17; 16 months each (one-third the middle term, doubled under Three Strikes) on counts 1, 3, 5, 10, 11, 12, 13, 14, 16, and 21, all run consecutive to count 17; and two years for the section 12022.1 enhancement. (The court imposed concurrent sentences on counts 2, 7, 8, 9, and 22 through 26; the court also imposed but stayed sentence on counts 4, 15, 18, 19, and 20 under section 654.)
The abstract of judgment shows the correct total term, but fails to mention that it was computed under Three Strikes.
Defendant contends: (1) The trial court erred prejudicially by admitting statements obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda). (2) The trial court erred prejudicially by failing to give a unanimity instruction sua sponte as to counts 8, 21, and 24. (3) The trial court erred prejudicially by failing to instruct sua sponte that testimony about defendant’s out-of-court statements should be viewed with caution. (4) The trial court erred prejudicially in sentencing by failing to strike count 21, “a lesser included offense of count 17.” (5) The trial court erred prejudicially in sentencing as to counts 23, 24, and 26 by failing to stay two of those counts, and also as to count 8 by failing to stay that count. (6) Substantial evidence does not support the trial court’s strike finding. (7) The trial court violated defendant’s Sixth Amendment right to counsel by failing to hold a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) when defendant complained about counsel at sentencing. (8) Two of defendant’s convictions as to counts 5, 6, and 7 must be reversed because he could not suffer multiple convictions for possessing stolen property at a single time and place where the jury did not find that he received the property on separate occasions. (9) The trial court erred prejudicially by denying defendant’s request for a continuance of sentencing based on the supposed lack of merit of “an unintended and undeveloped motion for a new trial.” (10) Trial counsel provided ineffective assistance by failing to call a key witness. (11) Trial counsel failed to articulate and argue defendant’s desire for a continuance or a Marsden motion before sentencing.
Addressing these contentions in a different order, we shall conclude that two of defendant’s sentencing claims of error have merit. Therefore, we shall remand the matter for resentencing. In all other respects, we shall affirm the judgment.
FACTS
Counts 1 and 2
On the morning of August 15, 2005, Ann Adkins and Mary Oliver discovered that their cars, parked and locked in front of their Antelope homes overnight, had been broken into. Their purses, containing identification, credit cards, and debit cards, had been taken. Two containers of quarters, a work utility belt, and work keys were also missing from Oliver’s car.
Oliver reported to Golden One Credit Union that someone had made two fraudulent withdrawals from her account around 4:30 a.m. on August 15, 2005. A surveillance videotape of a Golden One ATM in Citrus Heights showed withdrawals at that time by a person wearing a Raiders’ cap.
Around 9:30 a.m. on that date, Sacramento County Sheriff’s Deputy Darryl Amos stopped a car with expired registration, driven by Chad Figueroa, on Greenback Lane. Deputy Amos saw defendant, sitting in the front passenger seat and wearing a Raiders’ cap, bend over toward the floorboard.
Deputy Amos found a driver’s license and three credit cards belonging to Oliver, plus a credit card belonging to Adkins, stacked neatly under the front passenger seat. Deputy Amos also found Oliver’s containers of quarters and her keys. A glass hole-punch tool, normally used by first responders to smash out car windows, was attached to the front passenger seat.
Defendant was arrested, but bailed out of jail on August 18, 2005.
Counts 3 through 9
On September 6, 2005, Christopher Malone discovered that his Lincoln Navigator, parked and locked in his driveway in Fair Oaks, was gone. The keys had been in his BMW, also parked there.
On September 7, 2005, Theresa Boyte, returning to her home in Sacramento, found the front door open, her belongings in disarray, and many items missing, including a laptop computer, electronics, movies, a DVD player, identification documents, checkbooks, and jewelry. Identification badges and expired driver’s licenses belonging to Theresa’s sister Brenda were also missing, as was the paperwork for the Honda owned by their mother, Penny.
On September 9, 2005, Placer County Sheriff’s Deputy Jeff Swearingen discovered that his fiancée’s Chrysler Sebring convertible had been cut open and her Toyota 4 Runner was missing. Swearingen got his department’s permission to investigate the use of her stolen credit cards.
On September 11, 2005, Todd Sorenson found that his locked company car, parked at his home in Folsom, had been broken into, and his tools and paperwork taken.
On the same date, Brian Ellis discovered that his truck and his wife’s Corvette, parked at his home in Folsom, had been broken into and property taken from them.
Around 10:30 p.m. on September 12, 2005, defendant rented a room at the Vagabond Inn in Sacramento for three days, paying cash and using a driver’s license which bore his photograph but the name and address of Jeff Compton. (Compton had not given anyone permission to use his name and address on a driver’s license or to check into a motel.) Around 3:30 or 4:00 a.m. on September 13, defendant borrowed an Internet cord from the front office.
On September 14, 2005, Deputy Swearingen’s investigation brought him to a Jack-in-the-Box across the street from a Motel 6, where he met Gerald Tadlock. After making a phone call in Swearingen’s presence, Tadlock drove a Lincoln Navigator to the Vagabond Inn. Deputy Swearingen called for backup, then got a photocopy of the driver’s license defendant had used to check in.
Along with other officers, Deputy Swearingen knocked on the door of room 106. Defendant, whom Swearingen recognized from the picture on the license, answered the knock. Swearingen asked if defendant was “Alex.” Saying that he was, defendant let him into the room, where Swearingen saw computers, a magnetic strip reader, objects that might be hotel card keys, an iPod, and storage bins full of paper. Defendant gave his full name, but did not spell it correctly; Swearingen could not find it in the system. Swearingen said that he was there strictly to identify defendant for Folsom detectives.
Defendant got Deputy Swearingen’s permission to use the bathroom, then closed the door behind him. Swearingen called a cell phone number he had been given, and the cell phone on the bed rang. With defendant’s permission, Swearingen inspected the iPod and noted its serial number. Swearingen eventually stepped outside to wait for Sacramento police officers, but watched defendant through the open room door.
On arriving at the motel, Sacramento Police Officer Steven Spilmer spoke briefly with Deputy Swearingen. After getting a copy of the driver’s license defendant used to register, returning to room 106, and talking again to Swearingen, Officer Spilmer entered the room with Sacramento Police Officer Todd Barnes. Under Spilmer’s questioning, defendant said he had rented the room; he was staying in it alone; and the property in it was his.
In the bathroom’s toilet tank, Officer Spilmer found a wallet holding business cards, papers, a debit card, a state contractor’s license card, and a Paragary’s gift card. Officer Barnes found a computer, an Apple laptop, an iPod, a card reader for renting movies, and blank credit stock cards lying on the bed. Between the bed and the wall was a backpack with papers in numerous people’s names. Storage bins in the room were filled with income tax returns, mortgage papers, and other financial documents, also in multiple names. Along with electronic equipment and wires, a bag near the window held ten live automatic rifle rounds.
Photographs taken during the search showed the papers, including documents belonging to Penny, Theresa, and Brenda Lee Boyte.
Defendant, who had a key to room 106 in his pocket, was arrested.
Christopher Malone, the Navigator theft victim, had just identified his stolen vehicle at a tow yard. It contained a phone bill in defendant’s name. Driving past the motel, he stopped to see if the police activity going on there was related to the theft of his vehicle. The police took him through room 106, where he found a CD case and CDs taken from the Navigator.
Shown the contents of room 106, Brian Ellis and Todd Sorenson also found numerous items from their vehicles.
The remaining counts
Dwight Duteau, a retired trucking company owner, and his wife moved to Copperopolis in late January 2006; Duteau had previously put his records in the garage of the Copperopolis house, which was still under construction. When the Duteaus moved in, his wife discovered that the business’s 2004 and 2005 records were missing.
In December 2005 and January 2006, more car break-ins and property thefts occurred. In December 2005, Randy Beaver, Steven Sexton, and Brittany Baker had personal identifying information, financial documents, and credit cards stolen from their cars. On January 2, 2006, Benjamin Telly’s checkbook was stolen from his car.
Around 4:30 a.m. on January 15, 2006, California Highway Patrol (CHP) Officer Aaron Kacalek stopped defendant, driving a Lexus, for a traffic violation in the parking lot of an apartment complex off Garfield Avenue in North Sacramento. Defendant said he was not carrying a driver’s license and could not recall his license number.
Defendant got out at Officer Kacalek’s request, but hesitated before denying that he was armed. Kacalek’s pat-search found a loaded nine-millimeter Smith and Wesson semiautomatic handgun, with serial numbers removed, concealed on defendant’s left hip.
After arresting defendant, Officer Kacalek found two containers which proved to hold methamphetamine (one holding .4 gram and the other holding 3.6 grams) and two smoking devices in defendant’s pockets. Officer Kacalek’s partner found a bill in defendant’s name, with the address 5216 Garfield Avenue, Apartment 37, in the Lexus’s glove compartment. The officers handcuffed defendant and put him in the back seat of another patrol car.
Defendant’s sister, Anna Poyras, appeared in the parking lot and looked toward the officers as she spoke on her cell phone before leaving the scene. Defendant’s ex-wife, Elmira Nizametdinova, then contacted Officer Kacalek and walked with the officers to Apartment 37; as she opened the door, she called Anna’s name.
Officer Kacalek found Anna in a bedroom/office, ripping modems and computer cable wire out of the closet wall while talking on her cell phone. As Kacalek ordered her to stop, he noticed two large bulges in her pockets. Searching her, he found two containers, one holding .4 gram of methamphetamine and the other holding 9.55 grams.
The officers found identification in defendant’s name and a photograph of him with Nizametdinova in the room.
After detaining Anna, Officer Kacalek found computer equipment, ink cartridges, papers, and scanners in the office, along with driver’s licenses that did not belong to defendant or Anna. Kacalek also found male clothing there. In a black bag, he found a case of ammunition matching that in defendant’s handgun.
A Raiders’ cap was found there by another officer.
Sacramento County Sheriff’s Detective Eric Pahlberg of the department’s identity theft task force described the evidence found in the apartment. There were a great many items belonging to named victims in the case, including wallets, financial documents, personal identification, personal and commercial driver’s licenses, credit cards, and Benjamin Telly’s checkbook. There were also numerous counterfeit checks and driver’s licenses (some bearing defendant’s photograph) in the victims’ names, along with the materials needed to create such documents. In addition, there were bleached dollar bills and devices for counterfeiting money.
Detective Pahlberg obtained electronic sales journals and surveillance videotapes from the stores where forged checks in Telly’s name were passed early in January 2006 (Off Broadway Shoe Warehouse, Ross, Target, Raley’s, Bel Air, and Trader Joe’s). Detective Pahlberg identified defendant on several of the videotapes.
Telly denied writing any of the checks, authorizing anyone to do so in his name, or granting permission to anyone to possess a driver’s license with his name and address on it.
Testifying under a grant of immunity, Anna Poyras stated that on the evening of January 15, 2006, she was in Apartment 37, 5216 Garfield Avenue, when she got a call saying that defendant was being arrested in the parking lot. She went out, saw what was happening, and returned to the apartment.
According to Anna, Nizametdinova lived there, but she did not know if defendant did. She rarely saw him there.
Because Anna wanted to help defendant, whom she knew to use drugs, she put containers of drugs she found on the coffee table into her pockets to throw them away. Seeing blank checks in the apartment for the first time, she figured that defendant was probably up to no good; therefore she panicked and started trying to pull a modem from the wall as she spoke to her mother on the phone.
After her arrest, she was convicted as an accessory to possession of methamphetamine for sale. She was convicted of auto theft after January 15, 2006.
Defendant was always on drugs when Anna saw him, but she had never seen him selling drugs or possessing false identity cards. She believed he had a business.
Defense
Testifying on his own behalf, defendant claimed that he was addicted to methamphetamine and possessed it for his own use when arrested on January 15, 2006. He also admitted using Benjamin Telly’s checkbook to make purchases earlier that month. He generally denied other guilt.
After immigrating from Ukraine in 1996 at the age of 21, defendant started a home remodeling and painting business. However, while he was imprisoned in 2004 for negligently discharging a firearm, others ruined the business. Discovering this on his release, he got depressed and started taking up to six or seven grams of methamphetamine per day. By 2005, his friends were mostly drug users.
When arrested in August 2005, he and his friend Chad Figueroa were going to a Chinese restaurant for breakfast when stopped in the parking lot. Figueroa’s car was messy, especially the floor. Defendant did not put anything under the seat and did not know about the glass-breaking device. He did not break into Mary Oliver’s car or use her ATM card.
In early September 2005, defendant was doing three or four grams of methamphetamine a day and did not have a permanent home. Friends, driving a Navigator, took him to the Vagabond Inn, where he rented a room. Lacking identification due to the theft of his wallet, he used a photocopy of a document (produced by a friend who was just fooling around) with defendant’s picture on someone else’s identification.
He had no idea that the Navigator was stolen. He might have accidentally left some bills in it.
After defendant had stayed there for two days, an acquaintance, “Turtle,” asked to store property in the room for a few hours. Defendant helped Turtle to bring in a couple of bins, not knowing then or later what they held. Turtle also gave defendant a laptop to use the morning he was arrested. Defendant did not know there was ammunition in the room. The wallet in the toilet tank was not defendant’s, although he used the bathroom while the police were there.
At the time of his last arrest, defendant was reconciling with Nizametdinova and moving back into the Garfield Avenue apartment. The office was his. He was not using it to manufacture fake driver’s licenses, however.
“Ryan,” a friend and drug supplier whose last name and address defendant did not know, gave him Benjamin Telly’s identification and checkbook. Defendant was acting as Ryan’s personal shopper on January 3, 2006, when he passed the first checks in Telly’s name; later, though, when he went to the Raley’s stores, he was shopping for himself. After he finished, he returned to the Garfield Avenue apartment and tossed Telly’s license and checkbook into a black bag. If defendant’s thinking had not been affected by methamphetamine, he would not have used a fake driver’s license to shop. Nevertheless, even though he knew he was using Telly’s license and signing checks in Telly’s name without permission, defendant did not think he was stealing.
Ryan had access to the apartment and owned most of the computer equipment in the office. Once he locked himself in there, and defendant did not know what he was doing.
Ryan also owned the black bag which held much of the evidence against defendant. The night before his last arrest, under the influence of methamphetamine, he had agreed to let Ryan leave the bag for a day, not knowing what was in it. Defendant did not know how some of his personal items got into it, but suspected that Ryan had stolen them. (Defendant also suspected that Ryan had slipped Brittany Baker’s Nordstrom credit cards into a wallet, a birthday present from defendant’s mother, which he was seen pulling out in the Target surveillance videotape.)
Defendant knew that there was methamphetamine and ammunition in the apartment. The methamphetamine, including what Anna found, was for his own use. He did not sell drugs.
When arrested on January 15, 2006, defendant was driving a Lexus (not his) with his friend Daniel. En route to Daniel’s home, defendant had stopped at a gas station. Spotting a gun on the ground, he put it in his waistband to take it to the nearest police station. But after he picked up Daniel and before he could get to a police station, a CHP officer stopped him. Defendant was completely candid with him, freely giving (and spelling) his name and admitting that he had the gun.
DISCUSSION
I
Defendant contends that the trial court erred prejudicially by denying his oral Miranda motion during trial to suppress his statements at the Vagabond Inn. We think the motion was properly denied, but even if it should have been granted any error was harmless.
Background
Deputy Swearingen, the lead investigative officer at the Vagabond Inn, testified in open court, as noted above, that he was pursuing an investigation into the use of stolen credit cards which led him toward defendant. Swearingen encountered a Gerald Tadlock, who was driving a Lincoln Navigator, and had a discussion with him which bore in some undescribed way on the investigation. Swearingen then followed Tadlock to the Vagabond Inn. On entering the motel, Swearingen called for backup and got a photocopy of the license defendant had used to check in. He recognized defendant’s picture and knew that his name was “Alex,” but the license bore a different name. Knocking on defendant’s door in the company of other officers, he asked if defendant was Alex; defendant said, “yes” and let Swearingen in. Swearingen did not ask any further questions, except to obtain permission to inspect an iPod in the room. He said he was there only to identify defendant for Folsom police officers. Although defendant gave his full name, he apparently did not give the correct spelling, and Swearingen could not find defendant’s name in the system.
Sacramento Police Officer Spilmer testified before the jury about arriving at the scene, speaking twice briefly with Deputy Swearingen, getting a photocopy of the driver’s license defendant used to check in, going to defendant’s room with fellow Sacramento Police Officer Barnes, and encountering defendant. But when the prosecutor asked if Spilmer had had a discussion with defendant, defense counsel objected on grounds of foundation and asked to approach the bench. The jury was excused.
Outside the jury’s presence, the trial court noted that defense counsel had raised a Miranda issue. Officer Spilmer then testified: Defendant was not in custody. Spilmer had not yet investigated whether defendant was involved in a crime or whether any item in the room might be stolen. Spilmer did not yet know who had possession of the room; he questioned defendant simply to find out. In response to Spilmer’s questions, defendant replied that it was his room, no one else was staying there with him, and the property in the room was his. Asked about a computer in the room, defendant said he was using it to chat with people.
On cross-examination, Officer Spilmer testified that he arrived at the motel in uniform in response to Deputy Swearingen’s call for assistance “with a further investigation with [sic] a stolen vehicle that was recovered in the parking lot of the Vagabond in [sic].” Swearingen said that items belonging to his fiancée had been stolen and he had reason to believe the person in the motel room had something to do with either the theft or the use of the property. But although Spilmer knew that a criminal investigation was going on, he did not know that it “specifically” involved defendant. Spilmer first talked to defendant when defendant was seated in a chair in the center of the room. Although defendant was not handcuffed, Spilmer did not think defendant was free to leave: “[W]e were going to keep him there and detain him until we had conducted a preliminary investigation as to the auto theft that Deputy Swearingen was there [on] to begin with.” Spilmer did not read defendant his Miranda rights.
Defendant asserts: “When Officer Spilmer interrogated appellant, he indicated that appellant was not free to leave.” Spilmer’s testimony, however, does not show that he conveyed his private view on this point to defendant.
On redirect, Officer Spilmer testified that he knew nothing about who was driving the stolen vehicle at that time, whether defendant had anything to do with it, or whether room 106 had anything to do with it: “That was what [sic] the investigation we were conducting.”
On recross, Officer Spilmer testified that his attention had been focused on room 106 and he had seen a copy of defendant’s fake driver’s license before going to talk to him. But Spilmer did not know if there was a connection between the stolen Navigator and the person in room 106. Asked about the connection to the items stolen from Swearingen’s fiancée, Spilmer said: “I don’t know about that. I was mainly concerned about the theft of the vehicle and what connection the room and the occupants of the room may have had to that. [¶] So I was trying to determine who the room was registered to, and that investigation came back to Mr. Poyras.” Spilmer did not remember whether he knew then or only later about the fraudulent use of items stolen from Swearingen’s fiancée.
Defense counsel argued: “The investigation had focus on at least the Navigator and potentially other crimes. They had talked to Mr. Poyras. He was not free to leave. The officer said they weren’t immediately -- that was the in custody officer [sic] said no Miranda was given. My position is at this point the statements do not come in.”
The trial court ruled: “The officer can detain for purposes of investigation as was the case. That’s what I believe, prior to giving Miranda rights. They’re trying to find out who he was and what his relationship was to the crime. He was not told he was under arrest. He was not handcuffed. While not free to go, certainly they could have detained him. No violation of Miranda. The officer -- what the officer did was proper.”
Analysis
In deciding whether Miranda was violated, we accept the trial court’s findings of fact (unchallenged here) if supported by substantial evidence. We independently determine whether the challenged evidence was properly admitted, but give great weight to the trial court’s considered conclusions. (People v. Cunningham (2001) 25 Cal.4th 926, 992; People v. Kelly (1990) 51 Cal.3d 931, 947.)
Miranda comes into play only if a suspect is in custody -- “that is, whether examining all the circumstances regarding the interrogation, there was a ‘“formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ (California v. Beheler (1983) 463 U.S. 1121, 1125.) As the United States Supreme Court has instructed, ‘the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation.’ (Berkemer v. McCarty (1984) 468 U.S. 420, 422, fn. omitted.)” (People v. Stansbury (1995) 9 Cal.4th 824, 830 (Stansbury).) This determination involves two separate inquiries: “first, what were the circumstances surrounding the interrogation; and second, given those circumstances [fn.], would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” (Thompson v. Keohane (1995) 516 U.S. 99, 112 [133 L.Ed.2d 383, 394].)
Objective indicia of custody include “(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.” (People v. Forster (1994) 29 Cal.App.4th 1746, 1753 (Forster); People v. Lopez (1985) 163 Cal.App.3d 602, 608 (Lopez).)
An investigative detention -- in which an officer who reasonably suspects a person’s connection to a completed or inchoate crime detains him to “ask . . . a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions” -- is not custody for Miranda purposes, and questioning during such a detention does not implicate Miranda. (Berkemer v. McCarty (1984)468 U.S. 420, 437-440 [82 L.Ed.2d 317, 332-335].) Therefore, we must determine whether, as the trial court found, defendant was merely detained for investigation when he made the challenged statements. We conclude that the trial court was correct.
Applying the criteria set out in Forster, supra, 29 Cal.App.4th 1746, when defendant made the statements: (1) He had not been formally arrested. (2) His detention lasted only a matter of minutes while the officers determined whether they had sufficient grounds for arrest. (3) He was not detained at a police station or any other intrinsically coercive location. (4) Though more than one officer was present, only one at a time questioned him. (5) The officers addressed him neutrally without accusatory questions or statements, seeking only to determine his identity and the nature of his relationship to the motel room and the Navigator. Thus these criteria point toward investigative detention, not custody.
Defendant asserts that Deputy Swearingen’s question whether defendant was “Alex” caused him to fear arrest, and his answer (confirming that he had used a fake driver’s license) created probable cause for arrest. But even if the officers privately believed defendant guilty from the beginning, they did not communicate that belief to him before his arrest. Because Miranda analysis is concerned only with how the objective facts would appear to a reasonable person in the suspect’s position, an officer’s uncommunicated subjective beliefs, like a suspect’s subjective beliefs, are irrelevant. (Stansbury, supra, 9 Cal.4th at p. 830 [officer’s uncommunicated suspicions]; Lopez, supra, 163 Cal.App.3d at p. 606 [officer’s uncommunicated belief in probable cause to arrest].)
Thus, defendant has not shown that the trial court’s ruling was erroneous, and we conclude the trial court’s ruling was correct.
But even if his statements should have been excluded, any error in admitting them was harmless beyond a reasonable doubt.
Abundant evidence aside from defendant’s statements showed that he checked into the motel with a false driver’s license, solely occupied a room full of stolen property and identity-theft tools, and left a bill in his name in the stolen Navigator. To credit his claim of innocence, the jury would have had to believe that unidentified or vaguely identified acquaintances mysteriously chose to put him in suspicious circumstances and saddle him with incriminating evidence, and he in turn chose to accept and retain it without showing the least curiosity about it. No rational jury could have believed all that, especially in light of his equally unconvincing attempts to explain away other evidence against him.
Defendant has shown no grounds for reversal on this issue.
II
Defendant contends that the trial court erred prejudicially as to counts 8, 21, and 24 by failing to give a unanimity instruction sua sponte. Any error was harmless.
When a single count encompasses more than one act on which a jury could find guilt, the People must elect to rely on one such act or the trial court must instruct the jury to convict only on unanimous agreement that the defendant did a particular act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) But if the acts are so closely connected that they form part of the same transaction, a unanimity instruction is not required. (People v. Jenkins (1994) 29 Cal.App.4th 287, 299.) Even if a unanimity instruction should have been given, its omission is harmless beyond a reasonable doubt if the jury could not reasonably have found that the defendant did some acts but not others charged in the same count. (People v. Deletto (1983) 147 Cal.App.3d 458, 471.)
Count 8 accused defendant of unauthorized possession of the personal identifying information of another, with the intent to defraud, on or about September 14, 2005. Count 21 accused him of possessing methamphetamine for purposes of sale on or about January 15, 2006. Count 24 accused him of receiving the stolen property of Randy Beaver, Benjamin Telly, Duteau Trucking, Brittany Baker and “others” on or about January 15, 2006. Defendant makes different arguments as to each count. We find them all unpersuasive.
As mentioned above, the jury convicted him only of possession of methamphetamine for personal use on this count.
On count 8, defendant correctly states that although the information did not name a particular victim, the evidence showed that he possessed several victims’ personal identifying information as of September 14, 2005, when the police searched his motel room. But his possession of those items, acquired at or near the same time for the same purpose, constituted a series of acts so closely connected as to amount to a single transaction. (People v. Jenkins, supra, 29 Cal.App.4th at p. 299.) In any event, the jury could not have reasonably found that he unlawfully possessed only some of those items: it was not disputed that he actually possessed all of them, and defendant does not suggest any lawful means by which he could have acquired any of them.
On count 21, defendant asserts that the jury could have convicted him of possession of methamphetamine for personal use based either on the drugs found on him or on those found on his sister on the same date, and that the prosecutor failed to elect one or the other. Defendant is wrong. The prosecutor told the jury that this count, charged as possession for purposes of sale, concerned the methamphetamine found in Anna Poyras’s pockets, which was in an amount too large for personal use.
For purposes of this discussion, it does not matter that the jury apparently rejected that argument. It matters only that the argument plainly shows an election by the prosecutor.
On count 24, the analysis is the same as on count 8. Defendant’s receipt of all of the victims’ stolen property at or near the same time constituted a series of acts so closely connected as to form a single transaction. Moreover, there was no way the jury could reasonably have found that defendant did only some of the charged acts.
Thus, even if the trial court erred, defendant suffered no prejudice.
III
Defendant contends that the trial court erred prejudicially by failing to instruct the jury sua sponte that evidence of his out-of-court statements must be viewed with caution. Again, any error was harmless.
The trial court instructed pursuant to CALCRIM No. 358: “You have heard evidence that the defendant made oral statements while the court was not in session. You must decide whether or not the defendant made any of these statements in whole or in part. If you decide that the defendant made such statements, consider the statements along with all the other evidence in reaching your verdict. It is up to you to decide how much importance to give to such statements.” The court did not give the instruction’s bracketed last sentence: “You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.” (CALCRIM (2008) p. 124.)
The trial court has a duty to give the bracketed sentence sua sponte as to evidence of a defendant’s inculpatory out-of-court oral statements, if not written or tape-recorded. (People v. Beagle (1972) 6 Cal.3d 441, 441-445 (Beagle); CALCRIM, supra, at p. 124.) But its omission is harmless error under the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836) if it is not reasonably probable that the defendant would have obtained a better result absent the error. (Beagle, supra, 6 Cal.3d at p. 455.)
Defendant asserts that the proper standard for harmless error on this issue is the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. But our Supreme Court has held otherwise in Beagle, supra, and we must follow that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, the error was harmless. First, the court instructed the jury that it must determine whether defendant actually made the out-of-court statements, which is the purpose of the omitted cautionary instruction. (Beagle, supra, 6 Cal.3d at p. 456.) Second, since overwhelming evidence established that when defendant allegedly made the statements he was solely occupying a motel room where he was found in unauthorized possession of other people’s property, and his innocent explanation of these facts was incredible, it is not reasonably probable that giving the omitted instruction would have changed the outcome.
IV
Defendant contends that the trial court erred prejudicially by failing to strike count 21, which he calls “a lesser included offense of count 17,” at sentencing. (See People v. Reed (2006) 38 Cal.4th 1224, 1229; People v. Montoya (2004) 33 Cal.4th 1031, 1033.) We disagree.
On count 17, which the trial court made the principal count in sentencing, defendant was convicted of possessing methamphetamine while armed with a loaded firearm on or about January 15, 2006. On count 21, which the court sentenced consecutively to count 17, defendant was charged with possession of methamphetamine for purposes of sale on that date, but was convicted only of possession for personal use, as discussed in part III above. The prosecutor told the jury that count 17 concerned the methamphetamine found on defendant’s person along with a loaded firearm during the traffic stop of January 15, 2006, while count 21 concerned the methamphetamine found later on the person of Anna Poyras.
Because one can possess methamphetamine while armed without possessing it for purposes of sale, and the information did not allege otherwise as to counts 17 and 21, count 21 was not a lesser included offense of count 17 under either the statutory or the pleading test. (See People v. Birks (1998) 19 Cal.4th 108, 117.) The fact that the jury convicted defendant only of a lesser offense on count 21 does not alter the analysis. The trial court did not err by not striking count 21 at sentencing.
V
Defendant contends that the trial court wrongly found his prior conviction under section 246.3 (grossly negligent discharge of firearm in a manner which could result in injury or death) to be a strike. We disagree.
Background
Defendant pled no contest to the prior on May 26, 2004, in Sacramento County Case No. 03F07726.
At the hearing on the strike allegation, the prosecutor proffered a certified copy of defendant’s prior conviction packet (§ 969b), then read out a portion of the change of plea transcript reciting the factual basis for the plea:
“On September 23rd, 2003, in the County of Sacramento, the defendant committed a felony violation of [section] 246.3 in that the defendant willfully and unlawfully discharged a firearm[,] to wit: [a]n SKS style assault rifle[,] in a grossly negligent manner.
“On that date while cleaning his firearm the defendant pulled the trigger causing a bullet to fire into the dwelling next door to him which grazed the head of a sleeping three-year-old boy causing an abrasion to his che[e]k, and a cut in his ear. The child sought medical attention and no serious injury occurred to the child.
“THE COURT: Have the People accurately summarized their evidence?
“MR. YANKEE [sic; Yankey]: Yes, sir.
“[¶] . . . [¶]
“THE COURT: Any comment or amendment?
“MR. YANKEE [sic]: No, sir.” (Italics added.)
The prosecutor added that defendant was in court during the proceedings and answered the judge’s questions.
Immediately preceding the quoted portion of the change of plea transcript, the following colloquy appears:
Asserting that the change of plea showed defendant did not know the firearm was loaded when he pulled the trigger, defense counsel in the instant case offered to submit the matter.
The trial court asked whether defendant (and counsel) adoptively admitted the truth of the alleged factual basis by remaining silent. The prosecutor said yes. Defense counsel argued that there was no adoptive admission unless defendant was asked directly for comment, because defendants normally let counsel speak for them.
The prosecutor called probation officer David Chandler, who wrote the prior probation report, to testify. As Chandler recalled, defendant had said that while cleaning the weapon he “dry fired” it and it discharged; since one cannot “dry fire” a loaded gun, defendant was saying that he thought the gun was unloaded.
Defense counsel again asserted that because defendant thought the gun was unloaded the prior was not a strike.
The trial court found: Defendant was convicted of the alleged felony; by not denying the factual basis for the plea when it was read out, he adoptively admitted that he had pulled the trigger; that made the offense a serious felony even if he thought the gun was unloaded. Therefore, the prior was a strike.
Analysis
A prior conviction counts as a strike if the offense is “defined in subdivision (c) of Section 1192.7 as a serious felony in this state.” (§ 667, subd. (d)(1).) “[A]ny felony in which the defendant personally . . . uses a firearm,” including section 246.3, is a serious felony. (§ 1192.7, subd. (c)(8); People v. Bautista (2005) 125 Cal.App.4th 646, 654 (Bautista).)
“In People v. Guerrero (1988) 44 Cal.3d 343, the Supreme Court concluded that a ‘court may look to the entire record of the conviction’ to determine the nature of a prior conviction allegation; but if the record fails to reflect ‘any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable . . . .’ (At p. 352.) A reporter’s transcript of a plea is considered part of the ‘record of conviction’ as that phrase was used in Guerrero. [Citation.] The prosecution has the burden of proving the prior. [Citation.]” (People v. Sohal (1997) 53 Cal.App.4th 911, 915 (Sohal).)
Defendant does not renew trial counsel’s incorrect argument that the prior was not a strike unless defendant knew the gun was loaded when he pulled the trigger. (Cf. Bautista, supra, 125 Cal.App.4th at p. 654.) Instead, he argues that even on a correct understanding of this issue, the People did not meet their burden of proof. We disagree.
In Sohal, supra, 53 Cal.App.4th 911, the prosecutor offered to prove the factual basis for the defendant’s prior conviction by presenting the reporter’s transcript of his plea, which recited facts showing that he had personally used a deadly or dangerous weapon. (§ 1192.7, subd. (c)(23).) Defense counsel in the prior case agreed that the prosecutor “could produce that evidence.” The defendant then entered his plea. (Sohal, supra, 53 Cal.App.4th at p. 914.) This court held that the prosecution had met its burden of proving the prior a strike and that defendant had made an adoptive admission of the truth of the facts underlying the plea. (Id. at pp. 914-916.)
Sohal controls. Here, the reporter’s transcript of defendant’s plea recited facts showing that he personally used a firearm in committing the prior. Admitting that this recital accurately summarized the prosecution’s evidence, defense counsel said he had no “comment or amendment” to offer. Before entering his plea, defendant confirmed on the record that he understood what the prosecutor had to prove and had discussed the matter fully with counsel -- which is more than the record showed in Sohal. As in Sohal, the prosecution met its burden of proof under Guerrero, and when defendant pled to the prior he and his counsel adoptively admitted the truth of the facts which prove the prior a strike.
Defendant “suggests” that Sohal, supra, 53 Cal.App.4th 911, was wrongly decided, but cites no contrary authority. Alternatively, he tries to distinguish Sohal by claiming that here “the prosecutor made no assertion that certain facts were true but only stated what she expected to present at trial.” This claim lacks merit. Here, as in Sohal, the prosecutor recited the factual allegations the People were prepared to prove at trial if the defendant had not admitted them. Here, as in Sohal, defendant and his counsel admitted, by entering a plea, that the prosecutor could prove those allegations beyond a reasonable doubt.
Defendant asserts that the trial court should not have admitted the probation officer’s testimony because it is not part of the record of conviction. However, the trial court did not rely on the probation officer’s testimony. And since the reporter’s transcript of the plea contained all that was necessary to the court’s ruling, we need not decide this question.
The trial court correctly found that defendant’s prior was a strike.
VI
Defendant raises a battery of contentions about the trial court’s pre-sentencing denial of what the court construed as either a request for a continuance or a new trial motion. Defendant claims that the court committed Marsden error and wrongly denied the continuance request “on the merits of an unintended and undeveloped motion for a new trial.” He also claims that trial counsel provided ineffective assistance by failing to call a key defense witness and by failing to articulate defendant’s desire for either a continuance or a Marsden motion before sentencing. We find all of these contentions meritless.
Background
On the date set for judgment and sentencing, when the trial court asked if defendant was ready to proceed, his counsel said: “Your Honor, as I mentioned this morning, Mr. Poyras would like to have an attorney appointed to represent him to look into the issue of a new trial.”
Counsel explained that defendant claimed counsel had provided ineffective assistance in investigating the case and in “the failure to call certain witnesses,” which could have affected the outcome on several counts. Specifically, as to counts 1 through 3 defendant claimed that if Chad Figueroa had been called as a witness, he would have testified that he was already carrying the property stolen from the first two named victims in his car when he picked up defendant in Antelope, and defendant did not know the contraband was there. Asked if defendant had raised anything else, counsel replied: “I believe that’s been the substance of Mr. Poyras’s comments.”
Nothing further was offered to explain the alleged inadequacy in investigating the case.
The prosecutor asserted that Figueroa had given several different statements, was a very impeachable witness, and other than in his interview with probation had never admitted any part in the crime. Defense counsel submitted the matter.
The trial court ruled: “One, I don’t feel the motion that he’s bringing is simply for purposes of delay. [¶] Two, in terms of ineffectiveness of counsel, you weren’t ineffective for what I saw you did; you did the best you could with the fact pattern and the law you had. [¶] And I am not going to give a continuance for that. And if it is a motion for new trial based upon your representation, that is denied.”
Analysis
Continuances may be granted only on a showing of good cause. (§ 1050, subd. (e).) A trial court has broad discretion whether to grant or deny a request for a continuance, and the appellant bears the burden of showing that denial was an abuse of discretion. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013; People v. Beeler (1995) 9 Cal.4th 953, 1003.)
“‘When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other had, the defendant’s claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a “colorable claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. [Citations.]’ [Citation.]” (People v. Smith (1993) 6 Cal.4th 684, 692-693 (Smith); accord, People v. Valdez (2004) 32 Cal.4th 73, 95.)
“Appointment of counsel for the purpose of arguing that previous counsel was incompetent, without an adequate showing by defendant, can have undesirable consequences.” (Smith, supra, 6 Cal.4th at p. 695.) Therefore, “substitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is[,] whenever, in the exercise of its discretion[,] the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (Id. at p. 696.) We review the trial court’s ruling on this issue for abuse of discretion. (Ibid.)
Here, so far as the record shows, defendant did not file a Marsden motion or a motion for new trial, but simply asked defense counsel to move orally for appointment of new counsel and a continuance at the last possible moment. Defendant’s only known ground for claiming ineffective assistance was counsel’s failure to call Figueroa, defendant’s confederate in the crimes charged in counts 1 through 3, as a witness. The prosecutor explained plausibly why the jury would probably not have credited Figueroa’s testimony (even if he had been available and had testified as defendant hoped), and nothing in the record shows otherwise. Because calling Figueroa would have been unhelpful at best, defense counsel had an obvious tactical reason not to call him. (Cf. People v. Jones (2003) 29 Cal.4th 1229, 1254 [ineffective assistance cannot be shown on direct appeal if counsel had a tactical reason for his actions].) Defendant, who was present in the courtroom, did not disagree with counsel’s remarks or add anything to the discussion; under the circumstances, the court could reasonably take defendant’s silence to mean that he had nothing more to offer.
The record shows that defendant filed two Marsden motions against the same counsel before trial, which the trial court heard and denied. Thus, it is clear that defendant knew how to make such a motion.
What defense counsel told the trial court gave it no grounds to appoint counsel to investigate a new trial motion. Because defendant did not volunteer anything more, the court lacked any other grounds to grant a continuance for such investigation. On this record, the court had no reason to find that counsel was ineffective; nor do we. Finally, we do not see any way in which counsel failed to articulate defendant’s desires, and we cannot imagine anything else counsel might have said which would have made the court more likely to grant a continuance. Defendant has not shown that the trial court’s ruling was an abuse of discretion.
VII
Finally, defendant raises two meritorious claims of sentencing error. First, he contends that the trial court erred prejudicially by failing to stay sentence on two of his three convictions on counts 23, 24, and 26, and on count 8, pursuant to section 654. Second, he contends that he could not properly suffer three convictions and sentences for receiving stolen property (counts 5 through 7) based on possessing stolen property at a single time and place, where the jury did not find that he received the property on different occasions; therefore, two of his convictions on those counts must be reversed. The People concede both points. We accept the People’s concessions.
Section 654 (counts 23-24, 26, 8)
Under section 654, a defendant may not suffer multiple punishment for multiple crimes arising out of a single act or omission or incident to a single intent and objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The counts at issue here defined offenses which come within section 654.
Count 23 alleged that defendant possessed a counterfeit driver’s license in the name of Benjamin Telly on or about January 15, 2006, with the intent that it be used to facilitate the commission of a forgery. Count 24 alleged that on the same date defendant received stolen property belonging to Telly among others. Count 26 alleged that on the same date defendant altered, falsified, forged, duplicated, reproduced, and counterfeited a government agency driver’s license and identification card with the intent that it be used to facilitate the commission of a forgery. These counts define a course of criminal conduct with the single intent and objective of passing checks forged in Telly’s name, “authenticated” by the display of a counterfeit driver’s license possessed for that purpose. Therefore the trial court should have stayed sentence on two of these counts under section 654.
Count 8 alleged, without naming any particular victim, that defendant possessed identifying information of another person on September 15, 2005, when the officers searched defendant’s motel room. Counts 5, 6, and 7 named victims whose stolen property defendant was alleged to have received on or about that date. Thus, those counts alleged the specifics of a course of criminal conduct that was also alleged generally in count 8.
The trial court sentenced defendant on count 5 to a consecutive term of one-third the middle term, doubled under Three Strikes to one year and four months, and also sentenced him to concurrent four-year terms (the middle term doubled) on counts 6 through 8. Instead, the court should have stayed sentence on count 8 under section 654.
Receiving stolen property (counts 5-7)
Counts 5 through 7, as indicated above, alleged the receipt of stolen property belonging to different victims (Brian and Pamela Ellis in count 5, Theresa and Brenda Lee Boyte in count 6, Todd Sorenson in count 7) on the same occasion (on or about September 12, 2005). (§ 496, subd. (a).) After the jury convicted defendant of all three counts, the trial court sentenced him to a consecutive term on count 5 and concurrent terms on counts 6 and 7.
Section 496 defines the crime of buying or receiving stolen property with knowledge that it has been stolen. “The gist of the offense is the purchase or receipt of the stolen goods with guilty knowledge[,] but the particular ownership of the goods is not an element of the crime. Neither the legal nor moral character of the act is affected in any way by the fact that the stolen property may have belonged to several persons rather than to a single person.” (People v. Smith (1945) 26 Cal.2d 854, 858-859; accord, People v. Marquez (2000) 78 Cal.App.4th 1302, 1309.) Therefore, a defendant may be convicted only once for committing this crime on a single occasion, even if he has received stolen property belonging to more than one person. (Ibid.)
As there was no evidence that defendant received the victims’ property on separate occasions, he could properly be convicted of only one offense on these counts. His convictions on two of these three counts must be stricken.
We shall remand the matter to the trial court for resentencing in accordance with the above.
VIII
We commend the veteran trial judge, the Honorable James L. Long, for doing a superb job on a complicated case.
DISPOSITION
The matter is remanded for resentencing as directed in part VII of the Discussion. The trial court is directed to prepare a corrected abstract of judgment reflecting the resentencing and to forward a certified copy thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: NICHOLSON , J., HULL , J.
As defendant notes, the prosecutor mistakenly called this charge “count 22.” But that slip could not have confused the jury. Count 22 charged the crime of being a felon in possession of ammunition. The jury received the correct count numbers in the written instructions and verdict forms. Therefore, the jury could not reasonably have thought the prosecutor was speaking of that count here.
“THE COURT: Have you discussed with him the elements of the charge, the possible defenses he would have?
“MR. YANKEY: I have, your Honor.
“THE COURT: Explained his rights and the direct consequences that will result from his plea?
“MR. YANKEY: I have, your Honor.
“THE COURT: Are you satisfied he understands?
“MR. YANKEY: I do [sic], your Honor.
“THE COURT: Do you understand what the District Attorney would have to prove to find you guilty of this, Mr. Poyras?
“THE DEFENDANT: Yes, sir.”
Later, when defendant personally entered his plea, the trial court asked: “Have you fully discussed it with Mr. Yankey?” Defendant answered: “Yes, sir.” The prosecutor in the present hearing eventually quoted this passage.