Opinion
D071745
12-08-2017
THE PEOPLE, Plaintiff and Respondent, v. FRED REED, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS288486) APPEAL from a judgment of the Superior Court of San Diego County, Thomas D. Glasser, Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Fred Reed appeals his jury-tried conviction for possessing stolen property valued above $950. (Pen. Code, §496, subd. (a).) He contends the court erroneously concluded he was not subjected to a custodial interrogation under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) when police questioned him about the stolen bicycle he was riding. We reject Reed's contention and affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Bicycle
In February or March 2016, Jeff F. purchased a new Specialized Fatboy bicycle for approximately $1,300. That bicycle, which retails for about $1,600, has a very large frame, extremely wide tires (about five inches across), and is designed for riding on snow or on sand. Jeff F. described the bicycle as "quite unique" and testified that "almost every time I take the bike out, people will stop me on the street" to ask how much it cost.
To protect privacy, we refer to victim and witnesses by first name and last initial. (Cal. Rules of Court, rule 8.90(b)(4), (10).)
B. Theft
Jeff F. kept that bicycle in a garage owned by Jacqueline M. in Imperial Beach. On August 10, 2016, Jacqueline M. discovered the bike had been stolen. That same day, she reported the theft to the San Diego County Sheriff's Office. Jeff F. also reported the theft to the store where he purchased the bike.
C. Detention
Two days later, on August 12, 2016, at about 10:50 a.m., San Diego Sheriff's Deputy Bogar Ortiz and his partner were on patrol when Deputy Ortiz saw a man (later identified by Deputy Ortiz as Reed) on a bicycle across the street from them make a U-turn against a red traffic light and ride away from their direction. The deputies caught up with Reed and pulled him over. The traffic stop was about five miles from where the bike was stolen.
Reed gave Deputy Ortiz his identification card. Deputy Ortiz asked Reed if he was on probation or parole. Reed said he was on summary probation.
At sentencing, the court commented that Reed's criminal record is "huge," encompassing a period over 20 years including "many types of felony and misdemeanor crimes" and that Reed "was on probation in two separate cases when the instant offense was committed."
Deputy Ortiz handcuffed Reed and "sat him down" on the curb because in Ortiz's experience, probationers "will run from us or fight with us" and Ortiz wanted to avoid "confrontations like that." Deputy Ortiz and his partner were the only law enforcement officers present.
Deputy Ortiz asked the sheriff's dispatcher to determine whether Reed was on probation. This usually takes two to five minutes.
While waiting for that information, and noting the bike Reed was riding was "very distinct" with "really big fat tries" and looked "brand new," Deputy Ortiz asked Reed where he got the bike. Deputy Ortiz testified (outside the jury's presence) that he was "just chitchatting" with Reed at this point because Reed had a "brand new looking bicycle." Reed replied that he got the bike at "the Chula Vista auction" for $150.
The bike had big letters that said "Specialized" and big wheels. Deputy Ortiz's partner checked the make and model of the bicycle on the Internet, and told Ortiz the bike was worth about $1,200 used. Deputy Ortiz again asked Reed how much he paid for the bike, and this time Reed said "about $100."
Outside the jury's presence, Deputy Ortiz testified that about this time, the dispatcher advised him that Reed was on probation and had two outstanding warrants.
Deputy Ortiz inspected the bike. He saw a sticker identifying the shop that sold the bicycle. Deputy Ortiz called the store, read the bike's serial number to the clerk there, and was informed that Jeff F. had purchased the bike. The clerk also gave Deputy Ortiz Jeff's telephone number.
Outside the jury's presence, Deputy Ortiz testified that at this point, he advised Reed that he had obtained the owner's name and asked Reed "if he wanted to tell me anything about the bike." Reed replied saying he "had the right to remain silent" and "knew his rights" and did not want to talk about the bike anymore. The deputies then arrested Reed for the outstanding warrants and transported him to jail.
Deputy Ortiz called Jeff F. and left a voicemail message. When Jeff F. returned the call, "the first words out of his mouth were, 'Did you find my bike?'" After getting the bike from the sheriff's department, Jeff F. noted the rear cargo rack had been removed, the bell was gone, the water basket was removed and a different shape of water basket was installed, "so it looked a little different . . . ."
Outside the jury's presence, Deputy Ortiz explained that Jeff F. returned his call while Ortiz was booking Reed for the outstanding warrants.
D. Motion in Limine
Before trial, Reed's attorney filed a motion in limine to exclude Reed's responses to Deputy Ortiz's questions about the bicycle on the grounds Ortiz asked those questions without first admonishing Reed under Miranda.
The court conducted a hearing outside the jury's presence where Deputy Ortiz testified regarding Reed's detention, as summarized above.
After hearing Deputy Ortiz's testimony and the attorneys' respective arguments, the court overruled Reed's Miranda objection. The court determined that Reed was in "custody" because he was "in handcuffs", but was not subjected to any interrogation because the deputy's questions were "purely investigatory."
E. Verdict
Reed did not testify. After about three hours of deliberations, the jury returned a verdict finding Reed guilty of possessing stolen property with a value more than $950. Subsequently, Reed admitted a prison prior under section 667.5, subdivision (b) and a strike prior (§§ 667, subd. (b)-(i) & 1170.12).
F. Sentencing
At sentencing, Reed submitted a handwritten letter to the court, stating in part: "Yes[,] Your Honor I am guilty, and today it's time for me to take responsibility for my actions." The court noted that Reed is 44 years old and "has led a criminal life for many of those years and spent much time incarcerated." Reed told the probation officer he supports his drug habit by theft. The court sentenced Reed to the midterm of two years, doubled based on the strike prior, plus one year based on the prison prior, for a total term of five years in prison. Apart from challenging his conviction, Reed does not challenge his sentence.
DISCUSSION
I. NO MIRANDA VIOLATION
A. Reed's Contention
Deputy Ortiz testified that Reed made two statements about the bicycle. First, Reed said he purchased the bike at auction for $150. A few minutes later, after being asked the same question, Reed stated he bought the bike for about $100.
On appeal, Reed concedes the first statement was properly received in evidence. However, he contends his "second statement"—that he purchased the bicycle for about $100 at auction—should have been excluded because it was elicited in response to a "custodial interrogation" without Miranda warnings. Reed contends this error was prejudicial because the second statement about price "provided a separate basis on which the jury could find Reed made an inconsistent statement about the bike," which was relevant to show Reed knew the bicycle was stolen.
B. No Forfeiture
The Attorney General contends Reed forfeited this issue because he "never objected to the admission of his second response on the theory now advanced." However, before conducting an Evidence Code section 402 hearing on the Miranda issue, the court asked Reed's lawyer, "And you're objecting to those statements on the basis of Miranda . . . ." Reed's lawyer replied, "That's correct, Your Honor." And immediately before ruling the court stated, "There is a Miranda objection here." Thus, before Deputy Ortiz testified in front of the jury, the court and the prosecutor knew Reed was objecting to this evidence on Miranda grounds.
Although defense counsel did not later contemporaneously object to the admission of Reed's statements during Deputy Ortiz's direct examination, he has adequately preserved the issue. In People v. Morris (1991) 53 Cal.3d 152 (disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1), the defendant moved in limine to exclude certain testimony on specified grounds. The trial court denied the motion, and the witnesses testified. (Morris, at p. 187.) On appeal, the defendant argued his motion in limine should have been granted. The People argued that the defendant had waived the issue because he had failed to renew his objection when the evidence was offered at trial. (Ibid.) The California Supreme Court disagreed, stating, "[W]e hold that a motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a motion is made and denied, the issue is preserved for appeal. On the other hand, if a motion in limine does not satisfy each of these requirements, a proper objection satisfying Evidence Code section 353 must be made to preserve the evidentiary issue for appeal." (Morris, at p. 190.)
Here, Reed's motion in limine satisfied each of the foregoing requirements: (1) the court acknowledged that Reed was objecting under Miranda; (2) the motion was directed to Reed's statements to Deputy Ortiz about the bicycle; and (3) given Deputy Ortiz's testimony in the Evidence Code section 402 hearing, the court was able to determine the evidentiary question in its appropriate context.
C. The Standard of Review
On appeal, we defer to the trial court's factual findings where supported by substantial evidence; however, we independently determine from those facts whether Reed was subjected to a custodial interrogation within the meaning of Miranda. (People v. Davidson (2013) 221 Cal.App.4th 966, 970 (Davidson).)
D. The Meaning of "Custody" for Purposes of Miranda
1. General principles
In Miranda, supra, 384 U.S. 436, the United States Supreme Court held that a person questioned by law enforcement after being "taken into custody" must first be warned that he or she has the right to remain silent, that any statements he or she makes may be used against him or her, and that he or she has a right to the presence of an attorney, either retained or appointed. (Id. at p. 444.) If the police take a suspect into custody and then interrogate the person without informing him or her of such rights, the person's responses cannot be introduced into evidence to establish his or her guilt. (Berkemer v. McCarty (1984) 468 U.S. 420, 429 (Berkemer).)
An officer's obligation to administer Miranda warnings attaches only when the person questioned is in "custody." (Stansbury v. California (1994) 511 U.S. 318, 322.) Custody for Miranda purposes "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." (Stansbury, at p. 323.)
In Miranda jurisprudence, custody is "a term of art that specifies circumstances that are thought generally to present a serious danger of coercion." (Howes v. Fields (2012) 565 U.S. 499, 508-509 (Howes).) Miranda, for example, involved "incommunicado interrogation of individuals in a police-dominated atmosphere" where the suspect was "cut off from the outside world" and held in "isolation and unfamiliar surroundings." (Miranda, supra, 384 U.S. at pp. 445, 450.) The appellants in Miranda were "run through menacing police interrogation procedures" in a police environment that was "created for no purpose other than to subjugate the individual to the will of his examiner." (Id. at p. 457.)
In Miranda, supra, 384 U.S. 436, the Supreme Court decided the appeals of four defendants, each raising the same issue but on different facts regarding custody. Ernesto Miranda was arrested in his home, taken to the police station, and interviewed for two hours without being advised of his Fifth Amendment rights. (Id. at pp. 491-492.) Michael Vignera was transported to two different police stations, questioned, formally arrested, transported to a third police station, and questioned again without being advised of his Fifth Amendment rights. (Id. at pp. 493-494.) Police arrested Carl Westover, placed him in a line-up, booked him, and interviewed him for more than two and one-half hours without advising him of his Fifth Amendment rights. (Id. at pp. 494-495.) Police arrested Roy Stewart in his home, then searched his home, arrested his wife and three others in the home, jailed him, and interrogated him nine times over five days without advising him of his rights. Except during the first interrogation session, when he was confronted with an accusing witness, Stewart was isolated with the police. (Id. at p. 497.)
If the defendant is not in custody, Miranda does not apply. (Bobby v. Dixon (2011) 565 U.S. 23, 28.) "'Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.'" (Howes, supra, 565 U.S. at p. 514.)
2. The two-step analysis
a. Step one—Is the person free to leave?
In determining whether a person is in custody for purposes of applying Miranda, the court must make two inquiries. The first is to ascertain whether, in light of the "'objective circumstances of the interrogation,'" a "'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.'" (Howes, supra, 565 U.S. at p. 509.) To determine how a suspect would have gauged his or her "'freedom of movement,'" courts must examine all the circumstances surrounding the interrogation, which include (1) the location of questioning, (2) its duration, (3) statements made during the interview, (4) the presence or absence of physical restraints during the questioning, and (5) the release of the interviewee at the end of the questioning. (Ibid.)
However, this is only the first step in the analysis, not the last. "The case books are full of scenarios in which a person is detained by law enforcement officers, is not free to go, but is not 'in custody' for Miranda purposes." (United States v. Butler (9th Cir. 2001) 249 F.3d 1094, 1098.)
b. Step two—Is the environment inherently coercive?
"Not all restraints on freedom of movement amount to custody for purposes of Miranda." (Howes, supra, 565 U.S. at p. 509.) Even if the person would not have felt free to leave, we must still consider "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." (Howes, supra, 565 U.S. at p. 509.)
For example, although a driver is not free to leave during a traffic stop, nor is a pedestrian free to leave during a Terry stop (see Terry v. Ohio (1968) 392 U.S. 1, 30-31), these "temporary and relatively nonthreatening" detentions "do[] not constitute Miranda custody." (Maryland v. Shatzer (2010) 559 U.S. 98, 113.) The United States Supreme Court has contrasted such detentions with stationhouse interrogation, "which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek," and in which the suspect "feels completely at the mercy of the police." (Berkemer, supra, 468 U.S. at p. 438.)
In making this second determination, courts consider the totality of the circumstances, which includes: "'(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.'" (Davidson, supra, 221 Cal.App.4th at p. 972.) "Additional factors are whether the officer informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement, whether the police were aggressive, confrontational, and/or accusatory, and whether the police used interrogation techniques to pressure the suspect." (Ibid.; see also People v. Bejasa (2012) 205 Cal.App.4th 26, 35-36.)
For example, in Berkemer, supra, 468 U.S. 420, the Supreme Court considered whether roadside questioning of a motorist detained on a routine traffic stop amounted to custodial interrogation for purposes of Miranda. (Berkemer, at pp. 423, 435.) At the outset, the court acknowledged that a traffic stop "significantly curtails the 'freedom of action' of the driver and the passengers, if any, of the detained vehicle." (Id. at p. 436.) "[F]ew motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so." (Ibid.) Nevertheless, the Berkemer court held that roadside questioning of a motorist detained on a traffic stop was not custodial interrogation for purposes of Miranda. (Berkemeyer, at pp. 438-440.) There were two reasons. First, such traffic stops are "presumptively temporary and brief," because even if guilty of a traffic infraction, most people just get a traffic ticket and go on their way. (Id. at p. 437.) "In this respect, questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek." (Id. at pp. 437-438.) Additionally, the brevity and spontaneity of an ordinary traffic stop reduces the danger that the suspect through "subterfuge will be made to incriminate himself." At a routine traffic stop, there is no time for police to set up and use various kinds of "trickery" to elicit confessions. (Id. at p. 438, fn. 27.)
Second, "circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police." (Berkemer, supra, 468 U.S. at p. 438.) The typical traffic stop is in a public place. "This exposure to public view both reduces the ability of an unscrupulous [police officer] to use illegitimate means to elicit self-incriminating statements and diminishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse." (Ibid.) Moreover, the fact the detained motorist typically is confronted by only one or two officers "further mutes his sense of vulnerability." (Ibid.)
For these reasons, the court in Berkemer, supra, 468 U.S. 420 held such questioning—which is "substantially less 'police dominated' than that surrounding the kinds of interrogation at issue in Miranda itself"—is not a custodial interrogation for Miranda purposes. (Berkemer, at p. 439.)
3. Application
Recently, in Davidson, supra, 221 Cal.App.4th 966, the appellate court applied these Miranda principles to the roadside questioning of a handcuffed suspect detained regarding a motorcycle theft. Substitute a Specialized Fatboy bicycle for a motorcycle, and the facts in Davidson are not far removed from those here.
In Davidson, supra, 221 Cal.App.4th 966, a police officer saw a man acting suspiciously, pushing a motorcycle down a street. The officer ordered Davidson to put the motorcycle down, remove his backpack and step towards him. Davidson put a flat-blade screwdriver on the seat. (Id. at p. 969.) Concerned for his safety and that Davidson might flee, the officer handcuffed Davidson. (Id. at pp. 969, 972) The officer asked Davidson, "Is this your vehicle?" Davidson replied that he found the motorcycle in some bushes. (Id. at p. 969.) This answer "was at variance with a reasonable explanation of why he was in possession of, and pushing, an inoperative but new motorcycle with wires hanging out of the ignition switch." (Ibid.)
Asserting the officer conducted a custodial interrogation, Davidson sought to exclude his statements at trial because the officer did not advise him of his Miranda rights. (Davidson, supra, 221 Cal.App.4th at pp. 970, 972.) The appellate court rejected that argument, determining that Davidson was not in custody for Miranda purposes because: (1) the detention lasted only a few minutes; (2) the police officer was alone, (3) the questioning occurred on a public sidewalk; and (4) there was no evidence the questioning was aggressive, confrontational, accusatory, coercive, or sustained; and (5) police handcuffed Davidson because of reasonable concerns for officer safety and that Davidson might flee. (Davidson, at pp. 972-973.) Because the custodial setting in Davidson was significantly different from an interrogation at a police station, the appellate court determined Davidson was not subject to a custodial interrogation, stating:
"Handcuffing a suspect during an investigative detention does not automatically make it custodial interrogation for purposes of Miranda. [Citations.] Here it is obvious that the reason for the handcuffing was [Davidson's] possessing a flat-blade screwdriver and the officer's belief that [Davidson] was about to flee." (Davidson, supra, 221 Cal.App.4th at p. 972.)
E. Reed Was Not In Custody
Citing Davidson, supra, 221 Cal.App.4th 966, the Attorney General contends Reed was not "in custody" at the time of his questioning and, therefore, the court properly received in evidence Reed's answers to Deputy Ortiz's questions about the bicycle, despite the absence of Miranda admonishments. Based on our independent review of the facts determined by the trial court, we agree with this contention.
After conducting a hearing on the Miranda issue outside the jury's presence, the court made these findings:
"[Reed] was riding a bicycle. He was at a red light area. [Reed] made a U-turn or something unusual, I think, that the officer perceived as running a red light. He did a traffic stop of [Reed] on his bicycle, asked him his name, et cetera, and then [Reed] said that he was on parole/probation, so he was detained, put in cuffs, and was told to sit down.
"The officer ran his name to verify probation, which usually takes two to five minutes. During that time, he [] 'chitchatted,' [] with [Reed] regarding the bike, which appeared to the officer to be new. The officer said he was not suspicious that the bike was stolen, and furthermore, he's not familiar with bikes.
"He asked the question of [Reed], 'Where did you get the bike?' [Reed] said, 'At the auction for—' I forget which auction. He said at an auction for $150. At that point, Officer Ortiz's partner went online and checked on the bike, determined that it cost approximately $1,200 used. Officer Ortiz told [Reed] that fact and then asked again where he got the bike again. At that point, [Reed] reiterated from an auction, but said the price was $100, not $150.
"The officer then got the information back from dispatch that [Reed] was on probation and had two outstanding warrants. The officer checked the bike for a serial number. Found the name of the bike shop. Called the bike shop. Obtained the name of the buyer, who bought it in March, 2016 for $1,600. Ortiz told [Reed] what he had learned and [Reed] then refused to talk, asserted his Fifth Amendment privilege. He was then arrested, taken to jail, and later, after the arrest and taken to jail [sic], only then did the officer determine that the bike had been stolen."
Step 1 of the custody analysis is whether a reasonable person in Reed's position would feel he was at liberty to terminate the interrogation and leave. (Howes, supra, 565 U.S. at p. 509.) Clearly Reed was not free to leave because he was handcuffed and told to sit on the curb. However, "[d]etermining whether an individual's freedom of movement was curtailed . . . is simply the first step in the analysis, not the last." (Ibid.)
Step 2 is whether the circumstances of Reed's detention were inherently coercive. (Howes, supra, 565 U.S. at pp. 508-510.) Custody for Miranda purposes requires an environment presenting "inherently coercive pressures" that threaten to subjugate the individual to the examiner's will. (Id. at p. 509.)
The circumstances of Reed's detention were not coercive. Law enforcement detailed him during daylight hours in a public place. (See Berkemer, supra, 468 U.S. at pp. 438-439 [explaining that "exposure to public view" offsets the dangers of coercion because it "both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the [person's] fear that, if he does not cooperate, he will be subject to abuse"].) Moreover, there were only two law enforcement officers involved, and only one of them, Deputy Ortiz, questioned Reed. (Id. at p. 438 ["The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability"].) There is no evidence that Deputy Ortiz exerted any psychological pressure on Reed or engaged in any misconduct whatsoever. Indeed, when Reed determined he no longer wished to answer questions, he told Deputy Ortiz he "knew his rights" and did not want to answer any more questions about the bicycle. The entire detention lasted about five minutes. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1404-1405.) Reed contends Miranda was triggered because he was not free to leave. However, whether a defendant is free to go is not the constitutional standard. In Berkemer, supra, 468 U.S. 420, the defendant argued that any traffic stop should be considered a custodial interrogation based upon language in Miranda referring to the defendant being "otherwise deprived of his freedom of action in any significant way." (Miranda, supra, 384 U.S. at p. 444.) The Berkemer court emphatically rejected this argument. (Id. at p. 437.) If the test was whether a person felt free to leave a traffic stop, then every traffic stop would be a custodial interrogation because "few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so." (Berkemer, supra, 468 U.S. at p. 436.) Not free to leave and custody are distinct concepts under Miranda jurisprudence.
Moreover, the "bare fact of physical restraint does not itself invoke the Miranda protections." (Wilson v. Coon (8th Cir. 1987) 808 F.2d 688, 689.) While an officer's use of handcuffs might in some situations weigh more heavily in favor of a finding that a detention had escalated into a de facto arrest, here there are numerous other factors weighing against such a determination in Reed's case. Although a reasonable person in Reed's situation would certainly have understood that he was not free to leave, the facts as found by the trial court show the detention lacked the coercive element necessary to convert it into custody for purposes of requiring Miranda admonishments. (See United States v. Fornia-Castillo (1st Cir. 2005) 408 F.3d 52, 64-65 [defendant handcuffed for 10 to 15 minutes, but not custodial arrest because interview occurred on a public street and questioning was not confrontational].) On the broad spectrum from getting a speeding ticket to a grilling in the squad room, the events here were squarely within the Berkemer, supra, 468 U.S. 420 and Davidson, supra, 221 Cal.App.4th 966 range and short of any de facto arrest or custodial interrogation. Because the circumstances were not inherently coercive, no Miranda warning was required.
Reed also contends that because there were two outstanding warrants for his arrest, there was no objective reason for him to believe that Deputy Ortiz would not arrest him. However, that the possible or probable outcome would be an arrest is not determinative. It was plain in Berkemer, supra, 468 U.S. 420 that the motorist's next stop was jail, because he was weaving all over the road and too impaired to perform a field sobriety test without falling down. (Id. at p. 423.) The officer decided as soon as he saw the man step out of his car, before he even talked to him, that he would be taken into custody. (Ibid.) And it was at least as clear that the officer's questions were likely to elicit incriminating answers. The officer asked the man if he had been using intoxicants, and he answered that he had drunk "'two beers'" and "'smoked several joints of marijuana.'" (Ibid.) Nevertheless, the United States Supreme Court held the questioning did not invoke Miranda protections because central to Miranda's concerns are prolonged interrogations intended to undermine a subject's will to resist self-incrimination. (Berkemer, supra, 468 U.S. at pp. 438-439.) The objective circumstances of Reed's brief curbside detention incident to the traffic stop here do not present inherently coercive pressures and did not trigger Miranda admonishments.
For Miranda purposes, interrogation refers to "'any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.'" (People v. Elizalde (2015) 61 Cal.4th 523, 531.) Because Reed was not in custody for purposes of Miranda, it is unnecessary to consider or decide whether the trial court correctly determined Deputy Ortiz's questioning was not an interrogation.
F. Harmless Error
In any event, even assuming without deciding that the court erred in receiving in evidence Reed's statement that he purchased the bicycle at auction for about $100, any such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) Reed had already told Deputy Ortiz he paid $150 for the bike at auction, and on appeal he does not challenge the admissibility of that statement. Deputies caught Reed riding the stolen bicycle just five miles away from where it was stolen—and only two days after the theft. The inescapable and compelling conclusion is two days would be an insufficient time for a $1,200 bicycle to be processed for auction and then sold to Reed.
Moreover, in other unchallenged testimony, Chula Vista Police Officer Leopoldo Banales testified that an expensive bicycle would only be sold at auction if the true owner could not be identified. Here, the owner was easily identified the same day with a simple telephone call.
Additionally, there was undisputed evidence the bicycle's appearance had been altered by removing the bell and cargo rack, replacing the water carrier, and adding a seat cover. In an instruction Reed does not challenge, the court instructed the jury it could consider, among other things, "any modification of the property" to show Reed knew the bicycle was stolen.
Using CALCRIM No. 376, the court instructed that in determining whether Reed knew the bicycle was stolen, the jury "may also consider whether [Reed] made false, contradictory or inconsistent statements; the time, place and manner of possession; whether the property was purchased at an inadequate price; and any modification of the property." --------
Reed contends the evidence of his statement to Deputy Ortiz about buying the bicycle for $100 was prejudicial because the prosecutor emphasized its inconsistency with Reed's earlier statement he paid $150. Reed characterizes this as "a central element of the prosecution's case" because in conjunction with CALCRIM No. 376, the prosecutor argued the inconsistency was one factor showing Reed knew the bike was stolen.
However, although the prosecutor commented several times on these inconsistent statements, this was not a central element of the prosecution's case. In closing argument, the prosecutor stated, "The time, place, and manner of the possession. This is hugely important. Our common sense says two days ago it was stolen out of a garage, and then five miles from there, someone is riding it." (Italics added.) The prosecutor also argued that at $150, "[t]he purchase price was completely inadequate. And it's not reasonable that an auction house would sell a $1,600 bike for 100 to 150 dollars. And it's not reasonable that an auction house would auction off stolen property." Any error in admitting the incriminating statement was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: BENKE, Acting P. J. HALLER, J.