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People v. Toves

California Court of Appeals, Fourth District, Second Division
Feb 24, 2011
No. E050367 (Cal. Ct. App. Feb. 24, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County, No. SWF028709, James S. Hawkins, Judge.

Jennifer L. Peabody, 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, Sabrina Lane-Erwin and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

RAMIREZ, P. J.

Defendant and appellant Gilbert Lewis Toves was convicted by a jury of receiving stolen property (Pen. Code, § 496, subd. (a)) and admitted a strike prior (Pen. Code, § 667, subds. (c) & (e)(1)(A)) and two prison priors (Pen. Code, § 667.5, subd. (b)). The trial court imposed the low term of 16 months, doubled due to the strike, plus an additional one year for each of the prison priors, and thereby imposed a total term of four years eight months in state prison. Defendant contends the trial court erred by admitting incriminating statements he made to a police officer in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Specifically, defendant contends the trial court erred by determining that he was not in custody for Miranda purposes when he made the incriminating statements. We affirm.

BACKGROUND

We recite only the evidence introduced at the admissibility hearing. (Evid. Code, § 402.)

On May 28, 2009, an officer from the Murrieta Police Department was dispatched to follow up on a stolen cell phone that had been reported to the sheriff’s department. The officer had been informed that the “victim had been contacted by individuals saying they want some money to give the cell phone back.” The officer met with the victim’s father, who informed her the stolen phone was a black Helio; the person who had contacted him was a “Hispanic-accent-type male”; they were going to meet at a bowling alley; and the individual was going to be in a white van. The officer then sent the victim’s father to the bowling alley.

The victim’s father contacted the officer and told her “there was a male waving at him in a white van that could possibly be the same individual that he spoke to on the phone.” The officer then conducted a traffic stop on the van. Defendant was the driver of the van. The officer did a records check and determined that defendant was on probation. She asked him if there was anything illegal inside the van. He said, “no, ” and gave permission for his vehicle to be searched. She told defendant that he was being detained pending a probation check, and sat defendant and his brother on the curb next to the van; they were watched by one or two other officers but were not handcuffed. None of the officers had their weapon drawn. The victim’s phone was not found in the search of the van, but another cell phone was found that had, according to the call log, made calls to the victim’s residence. It took about a minute to search the front of the van, about a minute or less to search the back of the van and in total only took five to 10 minutes.

The officer then approached defendant and his brother, who were still seated on the curb and were surrounded by the four officers as if they were the center of a diamond. Both defendant and his brother denied ownership of the cell phone found in the van. The officer then either asked them about a black Helio or said, “where’s the black Helio?” Defendant said he had thrown it out the window. Defendant told the officer he had been with a female named Nina when she found the phone in a trash can. Defendant said he threw the phone out of the van because of “how it would look if he had the cell phone, because of his prior history.” Based upon defendant’s description of where he threw the phone, the officer located the victim’s phone and then arrested defendant.

Defendant’s trial counsel contended defendant’s statements should be suppressed because an invisible closed room had been created by the presence of officers on all sides of defendant and his brother; the phrasing of the question about the victim’s phone was reasonably likely to elicit incriminating responses; and once the call log was discovered there was enough cause to justify an arrest.

The trial court ruled, “So he’s detained and he’s not free to leave but he’s not told that. It’s a proper detention because it’s a probation search. And when she didn’t fin[d] the phone... she continued to investigate by asking him a question. And she didn’t say that she thought she had [probable cause] to arrest and then held off. So I’ll deny the motion to suppress the defendant’s statements.”

STANDARD OF REVIEW

Miranda warnings are required ‘as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.” ’ ” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403, quoting Berkemer v. McCarty (1984) 468 U.S. 420, 440.) “Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court’s determination that a defendant did not undergo custodial interrogation, an appellate court must ‘apply a deferential substantial evidence standard’ [citation] to the trial court’s factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, ‘a reasonable person in [the] defendant’s position would have felt free to end the questioning and leave’ [citation.].” (People v. Leonard (2007) 40 Cal.4th 1370, 1400.)

DISCUSSION

Defendant contends the trial court erred by determining that he was not in custody for Miranda purposes when he made the incriminating statements. The People contend the trial court was correct. We agree with the People.

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.) 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 for a temporary investigation to “ ‘ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.’ ” (People v. Clair (1992) 2 Cal.4th 629, 679, quoting Berkemer v. McCarty, supra, 468 U.S. at p. 439.) “ ‘[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.’ [Citations.] Important to this assessment, however, are the ‘duration, scope and purpose’ of the stop. [Citation.]” (People v. Celis (2004) 33 Cal.4th 667, 674–675 [U.S. Const., 4th Amend. context].)

“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.)

Defendant’s van was stopped; the officer determined defendant was on probation and, without being asked, defendant gave permission for the van to be searched. He and his brother were then directed to an adjacent curb where defendant was told he was being detained pending a probation check. After the five to 10 minute search, defendant and his brother were still seated on the curb with four officers spread out around them. They were asked only two questions: who owned the phone that was in the van and where was the black Helio.

We recognize that defendant was surrounded by officers and questioned, and the questions sought potentially incriminating information, like many investigative questions asked by police. However, defendant was detained and not formally arrested, the detention was brief, defendant was with his brother in the open, and the officer’s demeanor, as shown by her brief and restrained questions, was not confrontational, aggressive, or preceded by an announcement of the basis for being suspicious of defendant. Thus, in the totality of the circumstances, “ ‘a reasonable person in... defendant’s position would have felt free to end the questioning.’ ” (People v. Leonard (2007) 40 Cal.4th 1370, 1400.)

DISPOSITION

The judgment is affirmed.

We concur: HOLLENHORST, J., CODRINGTON, J.


Summaries of

People v. Toves

California Court of Appeals, Fourth District, Second Division
Feb 24, 2011
No. E050367 (Cal. Ct. App. Feb. 24, 2011)
Case details for

People v. Toves

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GILBERT LEWIS TOVES, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 24, 2011

Citations

No. E050367 (Cal. Ct. App. Feb. 24, 2011)