Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08SF0109, M. Marc Kelly, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, ACTING P. J.
A jury convicted defendant Enoch Matthew Thornbury of first degree residential burglary (Pen. Code, §§ 459, 460; all statutory references are to the Penal Code). Thornbury contends he was interrogated in custody without benefit of the warnings required by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). For the reasons expressed below, we affirm the judgment.
I
Factual and Procedural Background
In July 2007, Jorge Pacheco lived on Mayfair Street in Aliso Viejo. To help meet his expenses, Pacheco previously had rented a room to Caroline Wells, Thornbury’s girlfriend, for about six months. Wells had responded to Pacheco’s ad on Craigslist. Wells’ daughter, Christa, also would stay with her. Sometime before July, Pacheco asked Wells to move out because he felt uncomfortable around Thornbury, who visited Wells frequently. Thornbury helped her move using an older model, dark green Range Rover.
On July 6, Pacheco left for work about 6:45 a.m. He kept his Great Dane in the garage while at work, and left the garage door partially raised so the dog would not overheat during hot summer days. He also left the door leading from the garage into the home unlocked.
When he returned around 3:30 p.m., Pacheco discovered that someone had closed the garage door and stolen a plasma screen television and various audio/visual components from the family room. The thief had ransacked Pacheco’s bedroom and taken a second television, luggage, a laptop computer, jewelry, a mink coat, and other clothing from Pacheco’s bedroom. Pacheco later identified some of the property at a Laguna Hills public storage facility.
On the day of the burglary, Mary Davis, Pacheco’s neighbor, was working in her home office, which had windows facing Pacheco’s garage. Around 10:00 a.m., Davis observed a dark green or black sport utility vehicle (SUV) park next to Pacheco’s garage. Davis recognized the SUV, its male driver, and Wells, who got out of the SUV and walked toward the residence. Davis returned to work. When Davis looked out again, the SUV was parked in the driveway, the garage door was up, and she watched as the couple placed items into the SUV. She estimated the SUV was parked at the house for 45 minutes to an hour.
Deputy Sheriff Nanette Loft spoke to Pacheco the evening of the burglary. His information led her to the tavern where Thornbury worked as a bouncer, about two miles from Pacheco’s home. Thornbury acknowledged owning a dark-colored SUV and that he had been in possession of the vehicle the entire day. He admitted driving to work with Wells, but denied being near Pacheco’s Mayfair home that morning, claiming he had been in San Diego.
Deputy Michael Tanabe and other deputies searched Thornbury’s Mission Viejo residence on July 23, 2007. Deputies found some of the electronic equipment stolen from Pacheco.
Thornbury explained to Tanabe he had purchased the equipment from “Chrissy” for $400. He also claimed his uncle, Steve Thornbury, sold him a television for $600. Thornbury gave Tanabe his uncle’s telephone number at the officer’s request. After Tanabe talked to a person who identified himself as the uncle, Thornbury admitted he had lied.
Thornbury also admitted storing at a Laguna Hills storage facility additional property purchased from Chrissy. Thornbury claimed he met Chrissy while working at the tavern, and bought the property from her in the tavern’s parking lot about a month earlier. He explained that at one time he had lived with Chrissy’s mother, Wells, and acknowledged he spent some weekends with her when she lived at a residence on Mayfair. Chrissy had given him a mink coat for safekeeping. Investigators searched Thornbury’s rented storage unit and found more of Pacheco’s property, including his fur coat. During the July 23 interview, Thornbury did not mention he had a receipt for the mink coat. Three days after the search however, Thornbury called and claimed he had a receipt showing proof of purchase from Pacheco.
Thornbury came to the sheriff’s station on August 20, 2007, and spoke with Investigator Susan Edwards. Thornbury asserted he legitimately acquired the property seized by the deputies, and showed Edwards a copy of a receipt signed by “George Pacheco.” He also provided a second receipt purporting to show he purchased the mink coat from a Mike Perry in San Diego. This receipt did not list any seller contact information. To further support his explanation, Thornbury gave Edwards purported Craigslist ads listing the items for sale.
Pacheco testified he had never seen the receipt, nor had he placed any Craigslist advertisements concerning the items. The ads did not contain posting identification numbers. The parties stipulated at trial the ads never existed.
Following a trial in April 2010, a jury convicted Thornbury of first degree residential burglary. In May 2010, the trial court sentenced Thornbury to the mitigated prison term of two years.
II
Discussion
The Trial Court Did Not Violate Miranda by Admitting Thornbury’s Pretrial Statements to Deputy Tanabe
The trial court held a pretrial hearing to determine whether Thornbury’s Miranda rights were violated. Orange County Sheriff Deputy Michael Tanabe testified that on July 23, 2007, he and three other deputies conducted a probation search at Thornbury’s Mission Viejo residence. They were looking for property that had been reported stolen, including televisions, stereo equipment, and a mink coat.
Thornbury’s girlfriend, Liana Goffman, answered the door. Thornbury arrived a few minutes later and sat down in the living room. Tanabe informed Thornbury they were there for a probation search, but did not provide any details. Tanabe did not handcuff Thornbury or tell him he was under arrest.
Tanabe asked Thornbury about stereo equipment the deputies found in the hallway. Thornbury explained he bought it for $400 from Chrissy, who worked with him at an Aliso Viejo tavern. Thornbury also mentioned he had purchased a plasma screen television from his uncle for $600, which he kept in a Laguna Hills storage unit rented by Goffman. Tanabe asked for the uncle’s telephone number, and used Thornbury’s cell phone to call him. Thornbury admitted lying about receiving the television from his uncle when Tanabe told Thornbury the uncle denied selling or giving a plasma television to Thornbury.
At some point, Pacheco arrived and identified the stereo. Meanwhile, deputies searching the storage unit found several televisions and the fur coat. When Tanabe told Thornbury the property did not belong to Goffman, Thornbury suggested the property belonged to a woman he was dating, Caroline Wells, who was Chrissy’s mother.
About an hour after he first spoke to Thornbury, Tanabe read Thornbury his Miranda rights. Thornbury said he understood his rights and agreed to talk. Tanabe repeated his earlier questions, and Thornbury repeated his earlier explanation that he had purchased the stolen property from Chrissy for $400. The trial court denied Thornbury’s Miranda motion, finding that Thornbury was in custody, but that Tanabe had not interrogated him.
The trial court explained its decision on the custody issue as follows: “My analysis is focusing on the interrogation portion of it, whether or not that constitutes interrogation. I mean in terms of custody how a reasonable person in defendant’s position is going to understand the situation. To me it’s custodial. You have the — even though it’s inside his residence, hasn’t been a formal arrest. [¶] You know, there is other objective indicia of arrest. They had a list they were investigating concerning stolen property. There’s a number of police officers there pursuant to a search, a formal search. He is detained. You know, it’s not a brief detention. He was there for a while, over an hour. And the officer’s asking him questions in that setting where he’s seated on the couch, police officers searching the home. That to me is indicative of a custodial situation or a reasonable person would not be free to leave. [¶] So I’m going to focus on the interrogation portion of it....”
The trial court explained: “I don’t see this as an interrogation. I don’t see these questions as reason[ably] likely to elicit incriminating responses. Rather in my analysis of it they just appear to be investigatory; what is going on? Where did this come from? And then the defendant proceeds to give different information to the police that they tried to follow up on, gives them a number where he claims he got this TV, volunteers that info. He gives a number of his uncles that he tried to follow through with, that they’re trying to legitimately find out what is going on with the property in his house. [¶] So to me this is not coercive. Even though there were officers doing a probation search at the house and they had a list of property, they’re just trying to legitimately find out what’s going on and the defendant’s volunteering that information. That certainly doesn’t constitute any type of interrogation. The circumstances that are there for approximately an hour, some things are found, things are found, an explanation asked for and defendant gives them things, including volunteers information. So to me this doesn’t rise to the level of a confession. It doesn’t rise to the level of any type of interrogation....”
Miranda and its progeny apply to exclude a criminal suspect’s statements to police during a custodial interrogation if the suspect is not first advised of specific Fifth Amendment rights. (People v. Thornton (2007) 41 Cal.4th 391, 432; People v. Whitfield (1996) 46 Cal.App.4th 947, 953.) “‘Thus two requirements must be met before Miranda is applicable; the suspect must be in “custody, ” and the questioning must meet the legal definition of “interrogation.”’ [Citation.]” (Whitfield, at p. 953.) If either of these two requirements is lacking, Miranda does not apply. (People v. Ochoa (1998) 19 Cal.4th 353, 401 [“‘Absent “custodial interrogation, ” Miranda simply does not come into play’”].) The prosecution bears the burden of proving a custodial interrogation did not take place. (Whitfield, p. 953.) Whether an individual is in custody is a mixed question of law and fact. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster). We defer to the trial court’s findings of fact to the extent that they are supported by substantial evidence, but independently evaluate whether the defendant was in custody. (Ibid.)
Thornbury contends he was in custody when Tanabe interrogated him, and the trial court should have suppressed his statements because Tanabe did not provide Miranda warnings. We agree with the Attorney General that Thornbury was not in custody when Tanabe initially questioned him.
Thornbury points to the “‘objective indicia of arrest’” to support his argument he was in custody. These factors include (1) an investigation focusing on Thornbury’s connection to stolen property, (2) four deputies participated in the search, and (3) deputies detained Thornbury for over an hour.
Miranda warnings are required only when a suspect “has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda, supra, 384 U.S. at p. 444, fn. omitted.) The Supreme Court later explained that “Miranda become[s] applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’” (Berkemer v. McCarty (1984) 468 U.S. 420, 440 (Berkemer), quoting California v. Beheler (1983) 463 U.S. 1121, 1125; People v. Clair (1992) 2 Cal.4th 629, 678-680 [“custody” does not include general on-the-scene questioning and temporary detention to allow “‘officer... [to] ask detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions’”].) As one commentator has noted, the issue under Berkemer “is not whether a reasonable person would believe he was not free to leave, but rather whether such a person would believe he was in police custody of the degree associated with formal arrest.” (2 LaFave et al., Criminal Procedure (3d ed. 2007) Interrogation and Confessions, § 6.6(c), p. 729, original italics (hereafter LaFave); see In re Kenneth S. (2005) 133 Cal.App.4th 54, 65 [“officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because... the questioned person is one whom the police suspect”; Miranda warnings required only where there has been such a restriction on a person’s freedom as to render him in custody].)
“Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citations.] Although no one factor is controlling, the following circumstances should be considered: ‘(1) [W]hether 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.’ [Citation.]” (Pilster, supra, 138 Cal.App.4th at p. 1403, fn. omitted, internal quotation marks omitted.) “Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory, ’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (Id. at pp. 1403-1404.)
“[I]n the usual case, a person detained during the execution of a search warrant is not ‘in custody’ for purposes of Miranda.” (United States v. Burns (7th Cir. 1994) 37 F.3d 276, 281.) As the court in Burns observed, “Most detentions that occur during the execution of a search warrant, like most Terry stops [Terry v. Ohio (1968) 392 U.S. 1], are ‘comparatively nonthreatening.’ They are often short in duration.” (Burns, at p. 281.)
Significantly, Thornbury was detained in his home, not at the police station, where interrogation “frequently is prolonged, and... the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek.” (Berkemer, supra, 468 U.S. at p. 438.) Other factors show a reasonable person would not have believed he was under arrest. The deputies did not draw weapons, or subject Thornbury to the ongoing physical restraint of handcuffs, often a hallmark of a custodial arrest requiring Miranda warnings. (See, e.g., LaFave, supra, § 6.6(f), at p. 750, fns. omitted [earmarks pointing to custodial arrest include “handcuffing, drawing a gun, holding by the arm, or placing into a police car”].) Physical restrictions generally implicate Miranda because they convey to the suspect that he is “completely at the mercy of the police” (Berkemer, at p. 438) and his detention is not likely to be “temporary and brief” (id. at p. 437; but see Pilster, supra, 138 Cal.App.4th at p. 1404 [“brief handcuffing” for safety purposes not necessarily a formal arrest]; see also United States v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1289 [rejecting argument defendants “automatically” arrested when handcuffed]).
Citing several cases (People v. Sims (1980) 109 Cal.App.3d 900; People v. Layton (1972) 29 Cal.App.3d 349), Thornbury asserts courts have “repeatedly found custodial interrogation even where the defendant was not interrogated at the police station.” The place of interrogation is not determinative, but is a factor to consider. (Orozco v. Texas (1969) 394 U.S. 324 [defendant in custody where several officers entered the defendant’s bedroom around 4:00 a.m., and questioned him about a murder, where officer testified defendant was under arrest]; but see Beckwith v. United States (1976) 425 U.S. 341 [interview in a private home, in friendly, relaxed atmosphere, not deemed custodial].)
Although four deputies initially assisted in the search, two departed for the storage facility, and Thornbury’s only interaction with the deputies was through Tanabe. Tanabe’s questioning did not appear to be continuous, and nothing suggests Tanabe’s demeanor was aggressive, confrontational, or accusatory. Tanabe did not disclose the purpose of the visit, accuse Thornbury of burglary, or confront him with incriminating evidence. Nor did he convey, through deeds or words, that an arrest was imminent or inevitable. While Thornbury was not free to leave, there was no evidence Tanabe told Thornbury he had to remain in the living room during their conversation. Although Tanabe did not inform Thornbury he could refuse to answer questions, there is no indication Thornbury objected to the interview, felt compelled to answer Tanabe’s questions, or felt he could not end the conversation. As the trial court noted, the nature of Tanabe’s questioning was investigatory. Tanabe appeared genuinely interested in verifying Thornbury’s version of events, as evidenced by calling Thornbury’s uncle.
The overall length of the detention, approximately an hour, was fairly long, but the record fails to disclose exactly when during the encounter Thornbury made various statements, or when Pacheco arrived and identified his property.
We conclude Thornbury was not in custody for Miranda purposes at the time of his interview with Tanabe; therefore, Miranda did not preclude the admission of his statements from that interview.
III
Disposition
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.