Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. Nos. F06907132 and F05902510-7, W. Kent Levis, Jr., Judge.
Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
Appellant, Albert Sanchez, challenges his conviction for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). According to appellant, the trial court deprived him of his right to an impartial jury by failing to inquire into the alleged bias of one of the jurors. Appellant further asserts that his trial was tainted by judicial misconduct because the trial court incorrectly accused defense counsel of using an improper question during voir dire. Appellant also contends that statements he made were admitted in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Finally, appellant challenges his sentence on the ground that he is entitled to additional presentence custody credit.
As discussed below, appellant had unused peremptory challenges available when the jury was impaneled. Consequently, appellant did not preserve the juror bias issue for appeal. Further, contrary to appellant’s position, the trial court’s comments on defense counsel’s voir dire did not imply that counsel engaged in improper conduct. Moreover, the trial court correctly ruled that appellant was not in custody when he made the incriminating statements. Thus, no Miranda violation occurred. Accordingly, the conviction will be affirmed. However, appellant is entitled to additional presentence custody credit and the judgment will be modified accordingly.
BACKGROUND
On September 17, 2006, at approximately 11:30 p.m. police officers Brian Pierce and Timothy Edwards stopped a vehicle in which appellant was a passenger. Appellant identified himself to Officer Pierce as a parolee. When Officer Pierce searched appellant, he found a small baggie in appellant’s pocket. Officer Pierce asked appellant “What is this?” and appellant replied that it was methamphetamine. Appellant thereafter admitted the methamphetamine was his. Officer Pierce then placed appellant under arrest and gave him Miranda warnings.
Appellant was charged with one count of possessing methamphetamine. (Health & Saf. Code, § 1137, subd. (a).) The complaint also alleged that appellant had a prior “strike” serious felony conviction (Pen. Code, §§ 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)) and had served three prior prison terms (Pen. Code, § 667.5, subd. (b)).
At the time of his arrest, appellant was on probation for a conviction of various vehicle code violations in case No. F05902510-7.
On November 14, 2006, appellant entered a guilty plea to the drug possession count and admitted the prior “strike” conviction and three prior prison terms. As part of the plea agreement, appellant was promised no initial state prison time and placement in a one-year residential drug treatment program. The court indicated it would dismiss the “strike” and stay a two-year prison term. Further, in case No. F05902510-7, appellant would be found in violation of probation and the court would reinstate and extend probation at sentencing. The court accepted the plea, released appellant to enroll in the treatment program, and scheduled the sentencing hearing for January 31, 2007.
Appellant enrolled in the treatment program on November 20, but left the program on December 5, 2006, and did not return. Appellant did not appear at the sentencing hearing and a bench warrant was issued for his arrest.
Appellant was arrested on March 16, 2007. At a rescheduled sentencing hearing, appellant withdrew his guilty plea.
At trial, the prosecution relied primarily on Officer Pierce’s testimony regarding his search of appellant. In appellant’s defense, Katrina Sanchez testified that, on the day he was searched, appellant had spilled a plate of food on his pants while at her house and that she had loaned appellant a pair of pants that had previously belonged to her brother.
A jury convicted appellant of the drug count and appellant admitted the prior convictions. The court sentenced appellant to a total term of five years and eight months. Appellant was given presentence custody credit for 133 days served plus 66 days of conduct credit for a total of 199 days.
DISCUSSION
1. Appellant did not preserve the alleged juror bias issue for appeal.
During jury voir dire, defense counsel asked several questions aimed at ascertaining whether any of the prospective jurors were biased. As part of this line of questioning, defense counsel regularly asked the prospective jurors whether “if a loved one were sitting in [appellant’s] chair, would you want a juror with your mindset and your thinking … being a juror on that case?” Defense counsel questioned juror No. 5 regarding his experiences and possible biases but did not specifically ask him this question.
Juror No. 5 described himself as a self-employed dietician and health care consultant. He revealed that his home had been broken into twice and on one of those occasions “the guy had a drug habit.” When the court asked juror No. 5 if he would be able to set that aside, juror No. 5 answered “I would hope so.” Juror No. 5 also explained that he had once fought a traffic ticket and believed that the police officer had misstated “the particulars of the matter.” Juror No. 5 was passed for cause.
Later, defense counsel asked two other prospective jurors the above question. Shortly thereafter, juror No. 5 interjected:
“I’m sorry, you weren’t asking that question this morning, but did you -- and it blew past me as to would -- like you asked the gentlemen right here would you want somebody, if it was your family member, sit here, would you want somebody with your current mind set to be on that jury?
“[Defense counsel]: Yeah, absolutely.
“[Juror No. 5]: And I have to say that, you know, this morning, I’m sure I told the Judge that I can be fair and impartial, but as you sit here and contemplate your true feelings, I’d have to say that working in health care and seeing people come in who have the effects of the drug culture, and having worked with them and lots of times you see people with just [wasted] lives.
“And not to mention that [appellant] is in that group, but it does predispose me to what I’m going to call an extremely conservative point of view on that. And the whole situation of, you know, drugs and drug use and whether or not I can be impartial.
“THE COURT: Well, ****5, let me respond, if I may. You have already been passed for cause. So the responses are to come from the newly seated jurors, number one, and number two, that question is a question that has been -- that particular question has been ruled on by the appellate courts, and they have advised not to use that particular question on voir dire because it takes a potential juror and places them in the place of the defendant, and that’s improper. So that question cannot be asked.”
Defense counsel asked three additional questions and concluded her voir dire. The prosecutor had just begun to question the prospective jurors when the court asked:
“Can I interrupt you for just a moment?
“[Prosecutor]: Certainly.
“THE COURT: Ms. Harbottle [defense counsel], I did not mean to criticize. That is a question that I think every defense attorney that has come into my courtroom has asked of jurors, but I did want to advise you of that.
“[Defense counsel]: Okay. No I appreciate it, Your Honor.
“THE COURT: Just to let you know.
“[Defense counsel]: It’s okay.
“[Prosecutor]: Is that a new decision, Your Honor?
“THE COURT: Pardon me? No. It’s not a new decision.
“[Prosecutor]: It[’s] not? I need to know that too because I hear that every time and I can object from now on.”
Defense counsel exercised seven or her 10 peremptory challenges but did not challenge juror No. 5.
The next morning, defense counsel moved for a mistrial. According to counsel, when the court stated that her “mindset” question had been ruled inappropriate by the appellate courts, it “tainted the air against the defense” in that the jury is going to think “the defense is some sleazy attorney trying to circumvent the law.” Defense counsel further argued that, in trying to make it clear that no criticism of counsel was intended, the court only exacerbated the damage to her credibility. The court denied the motion.
Appellant contends he was denied a fair and impartial jury based on alleged trial court errors. According to appellant, when juror No. 5 expressed his concern that he might not be impartial regarding drug use in response to other prospective jurors being asked the “mindset” question, the trial court erred when it did not inquire further into these concerns.
Appellant is correct that the trial court’s response was error. “When a trial court is put on notice that good cause to discharge a juror may exist, ‘it is the court’s duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and failure to make this inquiry must be regarded as error.’” (People v. Farnam (2002) 28 Cal.4th 107, 141.) This rule applies at any time during the proceedings. (People v. Jablonski (2006) 37 Cal.4th 774, 807.) Moreover, the trial court incorrectly ruled that defense counsel’s “mindset” question was inappropriate. (People v. Bennett (1926) 79 Cal.App. 76, 92-93; People v. Love (1960) 53 Cal.2d 843, 851.)
Nevertheless, appellant did not preserve for appeal the issue of whether juror No. 5 should have been questioned further and possibly excused for cause. By not using all of his peremptory challenges, appellant has waived this claim. (People v. Ochoa (1998) 19 Cal.4th 353, 444.)
Further, appellant has not demonstrated that defense counsel’s acceptance of juror No. 5 violated his constitutional right to the effective assistance of counsel. To establish such a claim, a defendant must first show counsel’s performance was deficient under an objective standard of professional reasonableness. (People v. Ochoa, supra, 19 Cal.4th at p. 445.) Unless the defendant demonstrates otherwise, the appellate court presumes that counsel’s performance fell within the wide range of professional competence and that the challenged action or inaction can be explained as sound trial strategy. (People v. Lopez (2008) 42 Cal.4th 960, 966.) “‘If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.”’” (Ibid.) If the defendant meets this burden, he or she must also show prejudice under a test of reasonable probability of a different outcome. (People v. Ochoa, supra, 19 Cal.4th at p. 445.)
Here, defense counsel’s acceptance of juror No. 5 was a tactical choice that fell within the range of professional competence. As noted by the prosecutor during voir dire, it appeared that most of the potential jurors had strong feelings against drugs. Further, juror No. 5 believed that, during his own trial on a traffic ticket, the police officer made factual misstatements. Since the investigating police officer’s testimony was critical to the prosecution’s case, this past experience provides a satisfactory explanation for defense counsel’s decision to retain juror No. 5.
2. The trial court did not commit misconduct.
Appellant contends the trial court committed prejudicial judicial misconduct when it ruled sua sponte that defense counsel’s “mindset” question was contrary to authority and then explained to counsel a few minutes later that no criticism was intended but, rather, that in the court’s experience, every defense attorney asked that question. According to appellant, these comments implied that defense attorneys, including appellant’s attorney, routinely attempt to circumvent the law and resort to such improper tactics because their clients are guilty.
“A ‘trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression that it is allying itself with the prosecution.’” (People v. Sturm (2006) 37 Cal.4th 1218, 1233.) The court must be exceedingly discreet in what it says and does in the presence of the jury so as to not seem to lean toward or lend its influence to one side or the other. (Id. at p. 1237.) However, one or two disparaging remarks do not constitute reversible misconduct. (People v. Fatone (1985) 165 Cal.App.3d 1164, 1175.) Rather, a persistent pattern of hostility is required. (Ibid.)
As noted above, the trial court incorrectly ruled that defense counsel’s “mindset” question was inappropriate. Nevertheless, that ruling and the court’s subsequent apology can hardly be considered discourteous, disparaging, or hostile to defense counsel. Appellant reads far too much into the trial court’s error. Judicial misconduct did not occur.
3. Appellant’s statements to Officer Pierce were properly admitted.
Appellant moved to exclude the statements that he made to Officer Pierce at the time of his arrest under Evidence Code section 402. According to appellant, those statements were obtained in violation of his Miranda rights.
Officer Pierce testified that, during the parole search, he found a small baggie containing a substance in appellant’s left front pocket. Officer Pierce did not know conclusively what the substance was. He testified that it could have been three or four different things. Officer Pierce asked appellant what the substance was and appellant responded that it was methamphetamine. When Officer Pierce asked appellant who it belonged to, appellant said it was his. Appellant kept repeating that it was his methamphetamine. Officer Pierce added, “I actually didn’t have to ask him any questions, he kind of volunteered” “[t]he fact that it was meth and that it was his”. During the search, appellant was standing up, was not handcuffed, and was not under arrest. Officer Pierce thereafter arrested appellant and read him his Miranda rights.
The trial court concluded that appellant was not in custody when the above statements were made and that the officer’s question was part of an ongoing investigation. The court therefore ruled that those statements were admissible.
“Miranda warnings are due only when a suspect interrogated by the police is ‘in custody.’” (Thompson v. Keohane (1995) 516 U.S. 99, 102.) Custody encompasses any situation where a person has either been taken into custody or deprived of freedom of action in any significant way. (People v. Ochoa, supra, 19 Cal.4th at p. 401.) Further, there must be an interrogation. General on-the-scene questioning as to facts surrounding a crime does not fall within Miranda. Rather, interrogation requires either express questioning or words or actions on the part of police that the police should know are reasonably likely to elicit an incriminating response. (People v. Clair (1992) 2 Cal.4th 629, 679.)
The ultimate “‘in custody’” determination requires two discreet inquiries. First, “what were the circumstances surrounding the interrogation” and second, “given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” (Thompson v. Keohane, supra 516 U.S. at p. 112, fn. omitted.) Regarding the first inquiry, the appellate court accepts the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. (People v. Wash (1993) 6 Cal.4th 215, 235.) However, once the scene is accepted, the appellate court independently applies an objective test to resolve the ultimate inquiry, i.e., “‘“[was] there a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”’” (People v. Ochoa, supra, 19 Cal.4th at p. 402.)
“‘In deciding the custody issue, the totality of the circumstances is relevant, and no one factor is dispositive. [Citation.]’” (People v. Stansbury (1993) 4 Cal.4th 1017, 1050, revd. on other grounds in Stansbury v. California (1994) 511 U.S. 318.) The most important considerations include (1) the site of the interrogation, (2) whether the objective indicia of arrest are present, and (3) the length and form of questioning.’” (Ibid.) As the United States Supreme Court has recognized, “[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” (Oregon v. Mathiason (1977) 429 U.S. 492, 495.)
Here, Officer Pierce conducted a parole search following a traffic stop. The location of the initial questioning, i.e., at the side of a city street, suggests that the interrogation was not custodial. (Cf. People v. Morris (1991) 53 Cal.3d 152, 198, revd. on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [interrogation held noncustodial based in part on the fact that “[t]he inquiry did not take place in jail or on police premises, but in defendant’s own motel room .…”].) Further, when Officer Pierce pulled the baggie out of appellant’s pocket and asked him what it was, appellant was not restrained in any manner. Thus, no objective indicia of arrest were present. Finally, the initial questioning was very brief and was not coercive in any manner. The questions were not accusative and appellant was not directed to say or do anything. (Cf. People v. Robertson (1982) 33 Cal.3d 21, 38; People v. Valdivia (1986) 180 Cal.App.3d 657, 662.) Accordingly, no Miranda violation occurred and appellant’s statements were properly admitted into evidence.
Appellant relies on U.S. v. Hernandez (9th Cir. 2007) 476 F.3d 791to support his Miranda violation claim. However, we are not bound by the Ninth Circuit. Moreover, this case is distinguishable. In Hernandez, the defendant was subjected to an intensive secondary inspection at a port of entry from Mexico. In contrast here, appellant underwent a routine parole search following a traffic stop on a city street.
However, even if a Miranda violation did occur, reversal is not required. The admission of incriminatory evidence in violation of the Miranda rule does not require reversal if the error was harmless beyond a reasonable doubt. Under this standard, the People must prove beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Neal (2003) 31 Cal.4th 63, 86.) “‘To say that an error did not contribute to the ensuing verdict is … to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision.” (Ibid.)
Here, the jury found appellant to be in possession of a controlled substance. The essential elements of this offense are actual or constructive possession of a controlled substance in an amount sufficient to be used as a controlled substance with knowledge of its presence and its nature as a controlled substance. (People v. Rushing (1989) 209 Cal.App.3d 618, 621.)
While conducting the parole search, Officer Pierce found a suspicious substance in appellant’s front pocket. There is no dispute that this substance was methamphetamine. The location of the methamphetamine is compelling evidence that appellant possessed it. Appellant’s claim that he happened to be wearing someone else’s pants is inherently incredible. Under these circumstances, the admission of appellant’s statements that the substance was methamphetamine and belonged to him did not affect the verdict, thus rendering any error harmless beyond a reasonable doubt.
4. Appellant is entitled to additional presentence custody credit.
Penal Code section 2900.5 provides, in general, that a defendant sentenced to imprisonment shall receive credit for the presentence time spent in custody. (People v. Williams (1992) 10 Cal.App.4th 827, 831.) However, section 2900.5, subdivision (b), limits the circumstances in which presentence custody credit may be awarded. (People v. Pruitt (2008) 161 Cal.App.4th 637, 641.) Under this subdivision, “credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.…” Therefore, “where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a ‘but for’ cause of the earlier restraint.” (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194.)
Here, appellant was on probation at the time of his arrest. However, there is no record of appellant’s probation having been revoked while he was awaiting trial on the underlying possession charge. Rather, appellant was found to be in violation of probation and probation was revoked when appellant was sentenced on July 26, 2007, on the methamphetamine possession conviction. Similarly, there is no record of a parole hold or revocation. Accordingly, the time appellant spent in custody before he was sentenced on the possession conviction is directly attributable to that offense.
As discussed above, appellant was arrested on the night/morning of September 17 and 18, 2006. Appellant enrolled in a drug treatment plan on November 20 and a sentencing hearing was scheduled for January 31, 2007. The probation report prepared for that hearing calculated appellant’s presentence conduct credits to be 77 actual days and 38 days of conduct credit for a total of 115 days. This corresponds to the number of days appellant spent in county jail and in the drug treatment program before leaving the treatment program on December 5.
However, appellant did not appear for the sentencing hearing and was rearrested on March 16, 2007. Appellant remained in local custody until sentenced on July 26, 2007.
At sentencing, the court relied on the probation report that was prepared for the January 31, 2007, sentencing hearing. The court stated that the probation department had updated the presentence custody credits but no such update appears in the record. Nevertheless, rather than the 115 days of credit set forth in that probation report, the court awarded custody credit for 133 days served plus 66 days of conduct credit for a total of 199 days. This credit corresponds to the time appellant spent in custody from March 16, 2007, until the sentencing hearing on July 26, 2007. However, appellant is also entitled to credit for the 77 days served between September 18, 2006, and December 5, 2006, plus 38 days of conduct credit.
A failure to award legally mandated custody credit may be corrected when discovered. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Accordingly, we will award appellant 115 days of additional presentence custody credit and will direct the trial court to prepare a corrected abstract of judgment showing this award.
Appellant further contends that, because he was placed under arrest on September 17, 2006, he is entitled to one additional day of credit. However, credit for time served commences on the day a defendant is booked into jail. (People v. Ravaux (2006) 142 Cal.App.4th 914, 919-921.) Appellant has not provided any proof that he was processed into jail before midnight. Considering that the traffic stop did not occur until around 11:30 p.m. on September 17, it is extremely unlikely that the booking occurred on that date. Therefore, credit is to be awarded from September 18.
Appellant argues that we should not follow Ravaux. However, we conclude that Ravaux was properly decided and decline appellant’s invitation to reach a contrary result.
DISPOSITION
The judgment is affirmed. Appellant is awarded an additional 115 days of presentence custody credit for a total of 314 days. The trial court is directed to prepare a corrected abstract of judgment showing the amended award of custody credits and to forward a certified copy to the Department of Corrections.
WE CONCUR: Wiseman, Acting P.J., Gomes, J.