Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI700388, Eric M. Nakata, Judge.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P. J.
Defendant and appellant David Scott Tompkins, Jr., seeks reversal of a jury conviction, because he claims the trial court erroneously denied his pretrial motion to exclude statements obtained by police interrogation in violation of his constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He also claims ineffective assistance of counsel because his trial attorney did not renew the motion to exclude his incriminating statements during trial when there was testimony suggesting he was handcuffed when questioned.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was arrested after a deputy sheriff and a parole officer conducting parole compliance operations found a loaded shotgun, a rifle, drugs, and drug paraphernalia at a residence where defendant was present. Defendant was charged by information with being a felon in possession of a shotgun in violation of Penal Code section 12021, subdivision (a)(1) (count 1); possession of amphetamine in violation of Health and Safety Code section 11377, subdivision (a) (count 2); possession of methamphetamine in violation of Health and Safety Code section 11550, subdivision (a) (count 3); and possession of an injection device in violation of Health and Safety Code section 11364, subdivision (a) (count 4). It was further alleged defendant previously suffered a conviction for a serious or violent felony within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), and served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
During the preliminary hearing and again at a pretrial hearing, the arresting deputy testified defendant admitted the loaded shotgun, the rifle, drugs, and drug paraphernalia were his. During both hearings, defense counsel argued the statements should be excluded, because defendant was “in custody” when questioned by the deputy but had not been advised of his rights as required by Miranda. The trial court ruled there was no Miranda violation and admitted the statements.
A jury found defendant guilty of all four counts. Defendant then admitted the prior convictions. The court sentenced defendant to nine years four months in prison.
DISCUSSION
Denial of Defendant’s Motion to Exclude
Defendant contends that the trial court erroneously denied his motion to exclude evidence because the record shows he was “in custody” and not free to leave when he gave incriminating responses to questions by the arresting deputy without first being advised of his rights as required by Miranda. According to defendant, Miranda warnings should have been given because the totality of circumstances show a reasonable person in his situation would have believed he was in custody when he was questioned by the deputy.
“Miranda warnings are required ‘as soon as a suspect’s freedom of action is curtailed to a “degree associated with a formal arrest.” ’ ” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403, quoting Berkemer v. McCarty (1984) 468 U.S. 420, 440.) “The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact.” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “We apply a deferential substantial evidence standard to the trial court’s factual findings, but independently determine whether the interrogation was custodial.” (Pilster, at p. 1403.)
“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. [Citation.] 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.] 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.]” (People v. Pilster, supra, 138 Cal.App.4th at pp. 1403-1404, fn. omitted.)
To resolve the Miranda issue, the trial court considered testimony by the deputy during the preliminary hearing and at a hearing conducted at the time of trial pursuant to Evidence Code section 402 (402 hearing). The deputy’s testimony was essentially the same at both of these hearings. However, at the close of the preliminary hearing, the trial court did not reach a definitive conclusion on the Miranda issue because the deputy did not testify when defendant was handcuffed and placed under arrest in relation to the challenged statements. At the 402 hearing, the deputy testified defendant was not handcuffed and/or placed under arrest until after the incriminating statements were made.
In pertinent part, the deputy testified he and a parole officer, along with two other deputies, went to a residence as part of a parole compliance operation to look for a specific parolee who had tested positive for drug use. At the location, there was a main residence with a trailer next to it. According to the deputy, he and the parole officer went to the trailer, and the two other deputies went to the main residence. While they were walking toward the trailer, the deputy noticed defendant who was walking away from them. Although he did not actually see defendant exit, it appeared he had just walked out of the trailer and left the door open. They called to defendant to come back to talk to them. At the preliminary hearing, the deputy testified he was watching defendant while he talked to the parole officer. He noticed defendant displayed symptoms of methamphetamine use, including tense muscles, “jerky motions,” a dry, sticky, cotton mouth, and profuse sweating. The deputy also testified the front door to the trailer was open and he noticed a shotgun inside. He then entered the trailer to secure the shotgun, which was loaded.
Although the deputy did not repeat this particular testimony during the section 402 hearing, he did offer consistent testimony to these facts during trial.
While inside the trailer, the deputy saw a woman asleep on a bed, who was later identified as Rebecca Simmons (Simmons). The deputy woke Simmons up and asked her whose shotgun it was. She told him it belonged to defendant. The deputy secured the shotgun, went outside, and asked defendant if there were any other weapons or drugs inside the trailer. Defendant responded by describing the locations of a second gun and some drugs inside a metal container. The deputy then had another conversation with the woman inside the trailer, who told him the trailer was hers, and defendant had been staying there for approximately four days. She gave him permission to search the trailer. He looked in the specific locations described by defendant and found a rifle on a shelf above the bed and a metal container next to the television containing drug paraphernalia and methamphetamine. After he found the rifle and methamphetamine, the deputy went back outside and asked defendant whether they were his, and he said, “Yes.” Defendant also said he did not want the woman to get in trouble for his “stupidity.” Defendant was then handcuffed by the parole officer and taken into custody.
At the conclusion of the 402 hearing, the trial court determined there was no Miranda violation even though there may have been a detention based on the discovery of the loaded shotgun, because the deputy was asking investigatory questions, the detention was not “custodial,” and defendant’s admissions were voluntary in that he indicated he made them to protect Simmons from getting into trouble with law enforcement. During trial, the deputy testified once again, and his testimony was consistent with what he said during the preliminary hearing and the 402 hearing.
Our review of the record convinces us there was no Miranda violation and it was appropriate for the trial court to admit the challenged statements through the deputy’s testimony. First, Miranda warnings “need not be given [by police] in every transitory, informal, or casual exchange.” (People v. Manis (1969) 268 Cal.App.2d 653, 668.) “General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by [the Miranda decision]. . . . In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” (Miranda, supra, 384 U.S. at pp. 477-478.)
Here, the circumstances are not indicative of the type of “custodial interrogation” addressed by the Supreme Court in Miranda. It is clear the encounter with defendant at the residence began as a brief, temporary, and minimally invasive exchange between law enforcement officers and a citizen solely for investigative purposes. The parole officer and the deputy encountered defendant outside the residence by chance while they were legitimately looking for someone else. Despite defendant’s contention he “did not agree to be interviewed” and was “commanded” or “ordered” to return to the front of the trailer, it is obvious defendant initially spoke to the deputy and the probation officer on a voluntary basis when they called to him. His freedom was not curtailed in any way at this time. It is also obvious they initially spoke to defendant only in an effort to locate a particular parolee they had reason to believe had been living there. At the preliminary hearing, the deputy testified the parole officer identified the parolee by name and asked defendant if he knew where the parolee was. Defendant’s mere presence at the location suggested he might have helpful information in this regard.
If defendant had not displayed visible symptoms of being under the influence of methamphetamine and had not left the loaded shotgun so it was easily seen by the deputy from outside, it is likely the encounter would have been nothing more than a brief, casual, transitory exchange between a citizen and police seeking information about a particular parolee. However, these circumstances not only created a threat to officer safety, but also gave the deputy reason to suspect defendant was involved in criminal activity.
Even if a suspect has already been placed under arrest, it is permissible for a police officer to ask questions that are reasonably prompted by a concern for the officer’s own safety without the need for the formality of Miranda warnings. (People v. Cressy (1996) 47 Cal.App.4th 981, 987.) Once the deputy spotted and secured the loaded shotgun, he was entitled to protect his own safety, as well as that of the parole officer, by asking defendant whether there were any more weapons inside without giving defendant Miranda warnings. Based on the situation as presented at that particular moment, the deputy’s questions about weapons or guns was not one that would necessarily elicit an incriminating response, because possession of a gun is only a crime under certain circumstances.
An officer who lacks probable cause for arrest but whose observations lead to a reasonable suspicion of criminal activity may also briefly detain a person in the field and ask a “modest number of questions” to “obtain information confirming or dispelling the officer’s suspicions” without the need for the formality of Miranda warnings. (Berkemer v. McCarty, supra, 468 U.S. at pp. 439-442.) Here, the deputy observed physical symptoms suggesting defendant was under the influence of methamphetamine. These physical symptoms indicative of drug use provided the deputy with reason to believe a crime had been committed and to have additional concerns about the presence of a loaded gun. The deputy asked a few simple questions narrowly tailored to either confirm or dispel his suspicions. First, he asked defendant if the loaded shotgun was his; defendant said, “Yes.” Second, he asked defendant whether there were any other weapons or drugs inside the trailer. In response, defendant described the locations of another gun and a metal container with drugs inside of it. Third, after finding the other gun and the drugs, the deputy exited the trailer and asked defendant whether the gun was his, and he said, yes. When he asked defendant why he made these admissions, defendant explained he did not want Simmons to get into trouble “for the stupid things that he did.” Defendant’s response to this last question suggests he had a strong motive for volunteering the incriminating information. When viewed as a whole, these circumstances are remarkably different from the type of prolonged or otherwise coercive “custodial interrogation” situations addressed by the Supreme Court’s decision in Miranda. Thus, based on the record before us, we cannot conclude there is anything indicating defendant should have been given Miranda warnings prior to the time he was handcuffed and arrested.
Defendant contends the objective circumstances demonstrate he was in custody prior to being questioned because the deputy testified he would not have been free to leave after the loaded shotgun was discovered. To support his contention, defendant argues the facts at issue here are similar to those in People v. Whitfield (1996) 46 Cal.App.4th 947 (Whitfield). The defendant in Whitfield was sitting outside an apartment with two acquaintances when police arrived to execute a search warrant based on information indicating narcotics transactions were taking place there. (Id. at pp. 951-952.) Before they went into the apartment to execute the warrant, they handcuffed defendant and the two acquaintances. (Id. at p. 952.) Shortly thereafter, the officers came out of the apartment and asked the defendant whether she had any narcotics on her person. (Ibid.) The defendant not only said “yes,” but reached down into her pants and pulled out a napkin containing cocaine base. (Ibid.) The appellate court concluded the defendant was “in ‘custody’ ” for Miranda purposes when the officer asked her whether she had any narcotics on her person. (Id. at p. 953.)
In our view, defendant’s reliance on Whitfield is misplaced. The facts and circumstances at issue here are distinguishable from those presented in Whitfield in one key respect. The defendant in Whitfield was handcuffed when questioned. Here, substantial evidence supports the trial court’s apparent factual determination based on the deputy’s testimony at the 402 hearing that defendant was not formally arrested or handcuffed until after defendant made his incriminating statements. The deputy’s testimony on this issue was compelling and unequivocal, and no contrary evidence was offered or elicited during the hearing.
In addition, the deputy did not tell defendant he could not leave. “A policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” (Berkemer v. McCarty, supra, 468 U.S. at p. 442.) Viewed through the eyes of a reasonable person, the circumstances here were relatively nonthreatening. There is no evidence to even suggest the deputy or the parole officer pressured defendant to respond to questions or acted in an aggressive or unduly confrontational manner toward defendant. Defendant was detained briefly outside, presumably in public view, and was only asked a few questions without the restraints typically associated with a formal arrest.
In sum, we conclude substantial evidence supports the trial court’s determination that defendant was not handcuffed or detained to the degree normally associated with a formal arrest while he was being asked questions for investigative purposes by the deputy. In addition, based on our independent review of the record, we cannot disagree with the trial court’s conclusion that defendant was not “in custody” for Miranda purposes when he was questioned by the deputy. It was therefore appropriate for the trial court to deny defendant’s motion to exclude the statements and to admit them as evidence during trial.
Ineffective Assistance of Counsel
Citing testimony by Simmons and the parole officer, defendant believes the testimony “as it unfolded at trial showed that, contrary to [the deputy’s] testimony at the 402 hearing, [defendant] was in fact handcuffed when [the deputy] questioned him . . . .” Based on this testimony and a comment by the trial judge during a sidebar conference, defendant believes the court would have excluded his incriminating statements to the deputy if counsel renewed his motion to exclude the incriminating statements after Simmons and the parole officer testified. Assuming the statements would have been excluded under Miranda, defendant argues counsel’s failure to renew the motion was prejudicial, because it is reasonably probable the jury would have reached a different verdict. Without his incriminating statements, defendant contends there would have been no evidence linking him to the second weapon or the drugs and little evidence connecting him to the first weapon.
In support of his ineffective assistance of counsel claim, defendant cites the Supreme Court’s decision in Strickland v. Washington (1984) 466 U.S. 668. Under Strickland, a cognizable claim of ineffective assistance of counsel requires a showing “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, at p. 687.) “[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” (Id. at p. 688.) To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsel’s performance prejudiced his defense. (Id. at p. 687.) To establish prejudice, a defendant must demonstrate “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) Because a defendant must prove both elements of the Strickland test in order to prevail, courts may reject an ineffective assistance of counsel claim if it finds counsel’s performance was reasonable or the claimed error was not prejudicial. (Id. at p. 687.)
When a defendant’s claim of ineffective assistance of counsel is based on the failure to bring a motion, the defendant must be able to show the motion had merit. (People v. Frye (1998) 18 Cal.4th 894, 989.) We must reject a claim of ineffective assistance of counsel on appeal unless the record affirmatively shows deficient performance and no possible tactical purpose for an act or omission. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) “[A] claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct.” (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.)
The parole officer’s testimony about the encounter with defendant was, for the most part, consistent with the deputy’s testimony. During cross-examination, defense counsel asked the parole officer if defendant was handcuffed when the deputy asked him whether the first weapon was his. The prosecutor objected to the question, and the parole officer did not give a response at that time.
Simmons was called to the stand by the People after the deputy and the parole officer had already testified. She said defendant was an old friend who was staying in her trailer on the date in question. She testified defendant was holding the shotgun and the rifle for someone and brought them to her trailer a couple of days before police arrived. She also said the metal container found inside her trailer was not hers, and she had not seen it there previously.
On the date in question, she recalled the deputy waking her up and telling her to sit on the doorstep, so she went to the step and sat down. When she was told to sit on the step, one gun was already outside, a uniformed officer was outside with defendant, and police had not yet taken possession of the metal container. The deputy then went back in the trailer and found the other weapon and the metal container a few minutes later. When she saw defendant outside the trailer, “[h]e was sitting handcuffed in a chair” with a uniformed officer next to him.
Simmons was recalled to the stand after a recess, and she reiterated her testimony that the deputy woke her up, she went outside and sat on the step while the deputy went back inside the trailer and brought out the second weapon. During this time, she said defendant was outside sitting in a chair handcuffed. She said she actually saw the handcuffs on defendant and believes they were “in front.”
After Simmons testified, the parole officer was recalled, and he said he was not sure whether defendant was handcuffed before or after the second gun was found, but it was possible he was handcuffed while the deputy was searching the trailer for the second weapon. He believes Simmons came out of the trailer when the deputy went back inside to search for the second weapon. While the deputy was inside, he was standing with defendant, and he was not wearing a uniform. Parole officers do not have a uniform, rather they wear a “black parole mesh vest” with a parole insignia on the back. He also testified he used his own handcuffs and put them on defendant, and it was his normal practice to handcuff a person in the back, not the front.
Based on arguments made during sidebar conferences, it does appear defense counsel was attempting to elicit testimony from the parole officer and Simmons during trial that would have supported the renewal of a motion to exclude the incriminating statements defendant made to the deputy. When defense counsel questioned the parole officer as to when defendant was handcuffed, the prosecutor objected, and a sidebar conference followed. At sidebar, the court asked defense counsel, “Now, where are you going with this?” Counsel said his client “had represented that he was in cuffs when [the deputy] came out the first time with the gun. I’m trying to use it for credibility and impeachment and bias depending on what this witness says.” The court responded, “You have to make an offer, and your client is going to testify to it?” Counsel said, “Well, if it’s necessary and if that’s how the other witnesses testify, yes.” The court said, “Okay. But at this point there’s no evidence—there’s nothing but an inkling that he was in handcuffs at any point in time. And if that was the case, why didn’t you bring that up at the 402 [hearing] because that would have helped him. How is that relevant now? Who cares if he’s handcuffed or not at this point after the Court has made its ruling? It would have been helpful at the 402 [hearing] if that’s the case but here, who cares?” In addition, the prosecutor moved to strike Simmons’ testimony that defendant was handcuffed when she came out of the trailer. Then, in a sidebar conference, defense counsel indicated he wanted to pursue the matter further and to call the parole officer back to the stand because it was relevant to the officers’ credibility and to the court’s ruling following the 402 hearing.
It also appears from the record that defense counsel did not follow through on renewing a motion to exclude the incriminating statements after Simmons and the parole officer had completed their testimony. However, on the record before us, we cannot eliminate the possibility that counsel had a legitimate tactical reason for not doing so. In addition, on the record before us, we reject defendant’s argument the trial court is likely to have granted such a motion. First, the parole officer’s testimony that his normal practice is to handcuff a person in the back, not the front, severely undermined the credibility of Simmons’ testimony that she saw defendant sitting in a chair with handcuffs in the front.
Even if defendant was handcuffed when Simmons came out of the trailer, her testimony did not necessarily show defendant was handcuffed when he made the challenged statements to the deputy. Simmons testified she went outside and sat on the step while the deputy went back inside the trailer and brought out the second weapon. The parole officer similarly testified it was his belief Simmons came out of the trailer when the deputy went back inside to search for the second weapon. By this time, most, if not all, of defendant’s incriminating statements to the deputy had already been made.
Without more, there simply was not enough evidence to support a motion to exclude defendant’s incriminating statements. It is therefore highly unlikely the trial court would have reversed its prior conclusion there was no Miranda violation or its decision to admit defendant’s incriminating statements. Thus, we cannot conclude defense counsel’s performance was deficient in any way because he did not renew the motion. For this same reason, we also conclude defendant would be unable to show he was prejudiced because his counsel did not renew the motion.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., MILLER J.