Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01284
NICHOLSON, Acting P. J.
Defendant was convicted by jury of felony receiving stolen property. (Pen. Code, § 496, subd. (a).) The trial court suspended imposition of sentence and granted probation with a condition that defendant serve 60 days in county jail. On appeal, defendant contends: (1) her pre-arrest statement should have been suppressed; (2) her post-arrest statement should have been suppressed; (3) the evidence was insufficient to sustain the receiving stolen property conviction; (4) the trial court abused its discretion in denying defendant’s motion to reduce the crime to a misdemeanor; and (5) CALCRIM No. 220 is unconstitutional. We affirm.
FACTS
Sandra McRoberts bought furniture in Bali and had it shipped to the United States. She stored the furniture in a garage owned by Jesus Hernandez, located behind a rental home in Sacramento. To get to the furniture, it was necessary to unscrew panels that had been installed in place of a garage door. Defendant lived in the rental home with several other people. Her son, Reymundo Noriega, helped her move out of the home, using a rented U-Haul. She moved to Rocklin.
After the renters had moved out of the home, Hernandez went to clean it. He discovered that the furniture had been taken from the shop. The panels had been unscrewed and then nailed back in.
Alex Aguayo, Hernandez’s nephew, was a friend of defendant’s son Rafael. Aguayo testified that he saw a piece of the stolen furniture in a home on Watt Avenue. He also testified that he told defendant that the furniture was “possibly, you know, stolen or whatnot” and that he had been to defendant’s residence in Rocklin but did not see stolen furniture there. The prosecutor impeached Aguayo with his statement to an officer that he had seen the stolen furniture in defendant’s Rocklin residence. On cross-examination, he admitted that he told a defense investigator that he did not tell defendant that the furniture was stolen.
Aguayo was a very evasive witness and had convictions for selling marijuana and resisting arrest, with which he was impeached.
Deputies of the Sacramento Sheriff’s Department conducted a probation search at defendant’s Rocklin residence. They found numerous pieces of the stolen furniture. Detective Pamela Linke interviewed defendant at the residence. Defendant initially stated that they were storing the furniture for a friend. She then told the detective that she knew they were not supposed to have the furniture but that her sons had brought it in.
Defendant was arrested and taken to the station. There, Detective Linke again interviewed defendant. Defendant said that she had several arguments with her son Rudy about getting rid of the furniture because she did not want it in the house anymore. She was not sure where her son had gotten it but knew that they were not supposed to have it. Nonetheless, defendant had moved some of the furniture into her own bedroom.
At trial, defendant denied that she told Detective Linke that she knew they were not supposed to have the furniture. She claimed that she wanted her sons to get rid of the furniture because it was in the way. She first saw the furniture at the Rocklin residence and first learned it was stolen when Detective Linke told her.
DISCUSSION
I
Pre-Arrest Statement
Defendant contends that the trial court erred in denying her motion to suppress the statement she made to Detective Linke at the residence. She argues that she was in custody and, therefore, the statement must be suppressed because Detective Linke did not give her a Miranda warning. We conclude, as did the trial court, that defendant was not in custody at the time of the statement at the residence.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
“The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] ‘Two discrete inquiries are essential to the determination: 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. Once the scene is . . . reconstructed, the court must apply an objective test to resolve “the ultimate inquiry”: “[was] there a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” [Citations.] The first inquiry, all agree, is distinctly factual. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a “mixed question of law and fact” . . . .’ [Citation.] Accordingly, we apply a deferential substantial evidence standard [citation] to the trial court’s conclusions regarding ‘“basic, primary, or historical facts: facts ‘in the sense of recital of external events and the credibility of their narrators . . . .’”’ [Citation.] Having determined the propriety of the court’s findings under that standard, we independently decide whether ‘a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.)
A. Testimony
In this part (part I of the Discussion) and in the next part (part II) in which we discuss defendant’s post-arrest statement, we recount the evidence introduced at the hearing on the motion to suppress the statements, not the trial evidence.
1. Testimony of Detective Pamela Linke
The Sacramento Sheriff’s Department received information that some stolen furniture had been seen in a residence in Rocklin. It was believed that Rafael and Rudy Noriega, who are defendant’s sons, were at the residence. Rafael Noriega was on searchable probation, so Detective Linke went to the residence with five other deputies to conduct a search. Three of the deputies went to the front door and three to the back. The deputies at the front door knocked then entered the residence, while the deputies at the back door entered through the open door. It was standard procedure to have their weapons drawn when entering a residence in this way. Detective Linke did not recall any weapon having been drawn on defendant.
The deputies detained six people who were inside the residence for the purpose of securing the residence and for the safety of the deputies while they searched. The deputies recognized some of the furniture that they were seeking. Detective Linke took defendant, who was suspected to be involved in the crime, from the living room to the entryway of defendant’s bedroom and asked her about the furniture. Defendant told Detective Linke that her sons were storing the furniture for a friend. But she also told Detective Linke that she knew that her sons were not supposed to have the furniture and was trying to get them to remove it from the house. After this discussion, which lasted just a minute or two, Detective Linke took defendant back to the living room. Defendant was not handcuffed during this time, and Detective Linke did not tell defendant that she was under arrest. Detective Linke did not recall taking defendant to the bedroom a second time to question her.
The deputies arrested and handcuffed Reymundo Noriega, another one of defendant’s sons, because he had a no-bail felony warrant. In response to Detective Linke’s questions, defendant pointed out some of the furniture that her sons had brought in and were not supposed to have. After Detective Linke conferred with the other deputies, defendant was placed under arrest about a half hour or an hour after the deputies had arrived at the residence. Rafael Noriega was also arrested. Detective Linke did not remember whether she handcuffed defendant before taking her to the station but assumed she had because that is the department’s policy.
2. Testimony of Defendant’s Son, Reymundo Noriega
Reymundo was in bed asleep when the sheriff’s deputies arrived at the residence. He heard a commotion, so he got up and walked toward the bedroom door. The door opened, and a deputy pointed a gun at him. The deputy grabbed Reymundo’s arm, and another deputy escorted him to the living room. Defendant was sitting on the couch with her hands behind her back. Defendant left the living room with a deputy and went down the hallway toward the bedrooms. Reymundo could see that defendant was handcuffed. She was gone for a few minutes before returning to the living room. Reymundo believed it was a male deputy who took defendant down the hall and the deputy’s gun was holstered. Reymundo did not remember defendant try to walk into the kitchen and go back down the hallway.
3. Testimony of Defendant
Defendant was in her bedroom when she heard the deputies enter the house. As she came out of her bedroom, she saw a female deputy and two male deputies. They directed defendant to the living room. Defendant did not sit down before the female deputy directed her down the hallway toward her bedroom. Defendant had not sat down because she was concerned about Mr. Bear, the owner of the house, who was in another room. The female deputy questioned defendant in defendant’s bedroom. The deputy was not pointing a gun at her and did not threaten her physically. Defendant told the deputy that the furniture was not hers but she did not tell the deputy that it did not belong to her sons. After several minutes, the female deputy took defendant back to the living room and directed her to sit down. Defendant asked to go check on Mr. Bear, but the deputies would not allow her to go.
Later, the female deputy again directed defendant to the bedroom and again questioned her there. After asking the same questions, the female deputy handcuffed defendant.
At the station, defendant was put in an interview room. The female deputy read defendant her Miranda rights, and defendant agreed to waive her rights and talk to Detective Linke. The deputy questioned her yet again. Defendant told her that the furniture did not belong to defendant. She did not, however, say that it did not belong to her sons, although she told Detective Linke that she had arguments with Rudy about getting the furniture out of the house.
B. Analysis
When the deputies entered the residence, they may have had their guns drawn. However, there was no direct evidence that defendant saw a drawn gun, and the trial court need not have drawn that inference. Defendant encountered the deputies and was directed to go to the living room. She was detained at that time for the purpose of securing the house and for officer safety. Detective Linke directed defendant to accompany her to the bedroom. Once there, Detective Linke asked defendant questions about the furniture for just a few minutes. Detective Linke did not tell defendant that she was under arrest and did not threaten defendant. Defendant was then directed to return to the living room. Defendant was not handcuffed until after she gave her statement.
Defendant claims she was prevented from going into another room to check on the elderly owner of the house. Detective Linke did not remember that. Defendant’s son Reymundo did not remember that defendant tried to leave the room. Therefore, the trial court could conclude that defendant was not prevented from checking on the owner.
Defendant also claims that Detective Linke took her to the bedroom and questioned her a second time, asking the same questions. Detective Linke did not remember a second interview at the residence. Reymundo remembered that defendant was taken down the hallway only once, although he may have entered the living room after Detective Linke had already brought defendant back from a first interview. From this conflicting evidence, the trial court could conclude that only one interview took place at the residence.
In arguing that defendant was in custody when she was questioned at the residence, defendant states that the deputies surrounded the house and entered through the front and back doors with guns drawn. The trial court, however, could have concluded that defendant was not aware of these facts at the time she gave her statement. Therefore, we will not consider them in determining whether a reasonable person in her circumstances would have felt that she was at liberty to terminate the interrogation.
“[W]e consider the record to determine whether defendant was in custody, that is, whether examining all the circumstances regarding the interrogation, there was a ‘“formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ [Citation.] As the United States Supreme Court has instructed, ‘the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation.’ [Citation.]” (People v. Stansbury (1995) 9 Cal.4th 824, 830.)
Brief investigatory detentions generally do not give rise to custody and the need for Miranda warnings. (Berkemer v. McCarty (1984) 468 U.S. 420, 439 [82 L.Ed.2d 317, 334].) “When an arrest has not yet taken place, the factors considered in deciding whether custody has attached are many. Among the most important are: (1) the site of the interrogation; (2) whether the investigation has focused on the suspect; (3) whether the objective indicia of arrest are present; and (4) the length and form of questioning.” (People v. Herdan (1974) 42 Cal.App.3d 300, 306-307, fns. omitted.) “An interrogation at a suspect’s home . . . is usually, but not always, deemed noncoercive. [Citation.]” (Id. at p. 307, fn. 9.)
Here, the circumstances do not indicate that defendant was in custody when Detective Linke interview her at the residence. Although defendant was detained incident to the search and was a suspect in the crime, the interview took place at the residence, was not accusatory or aggressive, and was short. At the time of the questioning, the detention had been brief and defendant had not been handcuffed or arrested. No Miranda warnings were required.
Defendant relies on People v. Boyer (1989) 48 Cal.3d 247 (Boyer) (disapproved on another ground in People v. Stansbury, supra, 9 Cal.4th at p. 830, fn. 1) to argue that the interview at the residence in this case was custodial. Boyer, however, is distinguishable because it did not involve an interview done at a residence during a search. In that case, four officers went to the defendant’s home and detained him as he tried to leave through the back door. (Boyer, supra, 48 Cal.3d at p. 263.) The defendant agreed to go to the police station for an interview and was accompanied by officers while he changed his clothes. He was frisked and put into the back seat of the police car. At the station, the officers gave defendant Miranda warnings before questioning him. (Boyer, supra, at p. 264.) The questioning was aggressive and accusatory, and the officers evaded the defendant’s questions regarding whether he was under arrest. (Boyer, supra, at pp. 264-265.) The California Supreme Court held that this was an illegal arrest without probable cause, noting the initial manner of accosting the defendant, the giving of Miranda warnings, and the accusatory questioning. (48 Cal.3d at pp. 267-268.)
Unlike the facts of Boyer, this case involves questioning at the site of the detention. Defendant was not given Miranda warnings, and the questioning was short and investigatory, not aggressive and accusatory. Hence, Boyer does not support defendant’s argument.
Defendant’s contention that she was in custody during the brief interview at the residence is without merit.
II
Post-Arrest Statement
After defendant was arrested and taken to the station, Detective Linke gave her Miranda warnings and again interviewed her. Defendant contends that the statements she made during this interview should have been suppressed pursuant to Missouri v. Seibert (2004) 542 U.S. 600 [159 L.Ed.2d 643] (Seibert). We disagree.
After the deputies transported defendant to the station, defendant was placed in a locked interview room. Detective Linke again interviewed her. At the beginning of the interview, Detective Linke read defendant her Miranda rights. Detective Linke did not tell defendant anything to the effect that her prior statement may not be admissible against her. Defendant stated that she understood her rights and agreed to speak to Detective Linke. Defendant reiterated that she knew that her sons were not supposed to have the furniture. She did not know specifically where the furniture had come from but had argued with her son Rudy about getting it out of the residence.
In Seibert, the United States Supreme Court was presented with a case that “tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession.” (Seibert, supra, 542 U.S. at p. 604.) After obtaining a confession that would be inadmissible “since taken in violation of [Miranda], the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement.” (Seibert, supra, at p. 604.) On that question, a plurality of the high court concluded that “[b]ecause this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.” (Seibert, supra, at p. 604.)
Defendant bases her Seibert argument on the premise that her first statement was obtained in violation of Miranda. In part I, we found that contention to be without merit. Therefore, because Detective Linke did not obtain defendant’s first statement in violation of Miranda, the second statement (at the station) was not tainted. Accordingly, Seibert is not applicable here.
The motion to suppress was properly denied.
III
Substantial Evidence
Defendant asserts that the evidence was insufficient to convict her of receiving stolen property. Specifically, she contends that there was no substantial evidence that she knew the property was stolen. We disagree.
On appeal, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing from it. (In re James D. (1981) 116 Cal.App.3d 810, 813.)
“[T]o sustain a conviction for receiving stolen property, the prosecution must prove (1) the property was stolen; (2) the defendant knew the property was stolen; and, (3) the defendant had possession of the stolen property. [Citations.]” (People v. Land (1994) 30 Cal.App.4th 220, 223.) “The knowledge element of receiving stolen property is normally proved not by direct evidence but by an inference from circumstantial evidence. [Citation.]” (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019.) “In routine circumstances, the knowledge element is inferred from the defendant’s failure to explain how he came to possess a stolen item or his offer of an unsatisfactory explanation or from suspicious circumstances attendant upon his possession of the item. [Citations.]” (Id. at pp. 1019-1020.)
Here, defendant lived in the residence next to which was the garage where the furniture was stored before it was stolen. She not only had the furniture in her Rocklin residence but took some of it into her own bedroom. She admitted that they were not supposed to have the furniture, even if she tried to backtrack later and claim that she had simply asked her sons to get rid of the furniture. These circumstances support an inference that she knew the furniture was stolen.
Defendant contends that the testimony of Alex Aguayo that he told defendant that the furniture was stolen could not be viewed as substantial evidence because he was not credible. Even assuming defendant is correct, the remainder of the evidence, as noted, was sufficient to sustain the jury’s determination that defendant knew the furniture was stolen.
Defendant also asserts that there was no evidence she knew about the furniture while she lived in the residence next to the garage where the furniture was stored. It may be true that there was no such direct evidence, but we view the whole record. The jury was not required to conclude that it was just a coincidence that the furniture stored in a garage next to defendant’s former residence in Sacramento ended up inside her residence in Rocklin. The jury was entitled to draw the reasonable inference, from the entire record, that defendant knew the furniture was stolen.
IV
Motion to Reduce to Misdemeanor
Before sentencing, defendant made a motion to reduce her felony conviction for receiving stolen property to a misdemeanor. The trial court denied the motion. On appeal, defendant contends that the trial court abused its discretion in denying the motion. The contention is without merit.
“[Penal Code] section 17[, subdivision] (b), read in conjunction with the relevant charging statute, rests the decision whether to reduce a wobbler solely ‘in the discretion of the court.’ By its terms, the statute sets a broad generic standard. [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez).) “[S]ince all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, [former] rule 410. The corollary is that even under the broad authority conferred by [Penal Code] section 17[, subdivision] (b), a determination made outside the perimeters drawn by individualized consideration of the offense, the offender, and the public interest ‘exceeds the bounds of reason.’ [Citations.]” (Alvarez, supra, at p. 978, fn. omitted.) “On appeal, . . .: ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (Id. at pp. 977-978.)
Here, the trial judge, who presided throughout the trial, heard the arguments of counsel, reviewed the probation report, and denied the motion, stating: “I have given individualized consideration with respect to the offense that [defendant] was convicted of; also, her record and the public interest.”
The trial court did not abuse its discretion. Defendant has never taken responsibility for her crime, instead trying to deflect the blame to her sons. From the verdict, we can only presume that the jury found defendant to be untruthful. Accordingly, even though she had an insignificant prior criminal record, the trial court acted within the bounds of reason in denying the motion to reduce the crime to a misdemeanor.
V
Reasonable Doubt Instruction
Defendant contends that CALCRIM No. 220, given to the jury to define reasonable doubt, violated her constitutional due process rights. She recognizes that this contention has been rejected many times in other cases. CALCRIM No. 220 adequately defines the jury’s duty with respect to the beyond a reasonable doubt standard. Therefore, using the standard instruction did not violate defendant’s due process rights. (People v. Zepeda (2008) 167 Cal.App.4th 25.)
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.