face="Times New Roman">
face="Times New Roman">
face="Times New Roman">P. v. Cooper
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">Filed 1/31/14 P. v. Cooper
CA4/2
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
face="Times New Roman">
face="Times New Roman">THE PEOPLE,
face="Times New Roman">
face="Times New Roman"> Plaintiff and Respondent,
face="Times New Roman">
face="Times New Roman">v.
face="Times New Roman">
face="Times New Roman">DARREN COOPER,
face="Times New Roman">
face="Times New Roman"> Defendant and Appellant.
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman"> E057211
face="Times New Roman">
face="Times New Roman"> (Super.Ct.No. FSB1104145)
face="Times New Roman">
face="Times New Roman"> OPINION
face="Times New Roman">
APPEAL
from the Superior Court of San Bernardino
County. Kyle S. Brodie, Judge. Affirmed with directions.
Richard Glen Boire, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Steve Oetting, and Michael T. Murphy, Deputy Attorneys
General, for Plaintiff and Respondent.
While defendant Darren Cooper
waited at a hospital for his son to be treated for a broken jaw, the police
arrested him on an outstanding warrant.
police found 12.90 grams of methamphetamine in the trunk.
A
jury convicted defendant of one count of simple possession of methamphetamine in
violation of Health and
Safety Code section 11377, subdivision (a), a lesser included offense of
the charged offense, possession for sale.
(Health & Saf. Code, § 11378.)
Because the jury was unable to reach a verdict on count 2 for street
terrorism (Pen. Code,
court declared a mistrial. The court
found five prior convictions to be true and that two of the priors were serious
or violent felony convictions. On September 6, 2012, the trial court sentenced defendant to a total determinate term of
11 years and awarded him 732 days custody credit (366 actual days, plus 366
days conduct credit). (§ 4019.)
On
appeal, defendant makes two claims: the
trial court erred in its rulings on the admissibility of defendant’s statements
to the police and the trial court should have awarded him four additional days
of credit. We affirm the
credit to 490 days.
face="Times New Roman">A. The Miranda
Hearing
We
base our summary of the facts pertaining to the Miranda
issues on the evidence presented at the hearing on the People’s
statements.
On
September
5, 2011, San Bernardino
police officer, Jose Vazquez, made contact with defendant at 10:00 p.m., where he was waiting outside Community Hospital of San Bernardino
for his son, Darren Cooper, Jr., to be treated for a
injuries and asked defendant what had happened.
Defendant refused to answer questions except to say he had driven his
son to the hospital for treatment in a white Cadillac. At the officer’s request, defendant disclosed
his name and birth date. Because
defendant had a “$250,000 warrant for drug charges,†the officer placed
defendant under arrest and handcuffed him.
The officer searched defendant’s person, finding some car keys in his
pocket. He placed defendant in the back
seat of the patrol car.
Defendant said the Cadillac
belonged to his cousin. When the Department
of Motor Vehicles records showed the car was registered to Darren Cooper, Vazquez
confronted defendant who responded that he had misunderstood the question and
that the car was actually his.
face="Times New Roman">At that point, Vazquez
asked defendant, “if he had anything illegal in the vehicle, and if I could
search if there was any weapons or drugs in the car.†Defendant responded, “go ahead, sir, but
there’s nothing in there.†Vazquez found
a bag of suspected methamphetamine in the trunk. Vazquez showed the bag to defendant who volunteered that he had a
drug problem and the drugs were for his personal use. Vazquez immediately arrested defendant for
possession, transportation, and sale of methamphetamine and gave him the
Defendant said he understood the Miranda warning
and agreed to talk.
face="Times New Roman">Vazquez further testified:
“He told me that the meth that I located
inside of the car was his. He told me it
was for personal use. He told me he had
a drug problem, that he’s been using meth[amphetamine] for approximately six
years, and he was currently trying to get himself into a residential program or
house to help him with his drug problem.
[¶] . . . [H]e
told me he got [the methamphetamine] from a friend. [¶] [H]e
had paid $60 for it.†Vazquez also
questioned defendant about being a documented Delmann Heights gang
member.
face="Times New Roman">After hearing
argument from the parties, the court found a violation of Miranda,
his cousin’s, followed by his admission that he owned the Cadillac. The trial court allowed the admission of
defendant’s explanation, before he was Mirandized,
that he had a drug problem and that the drugs were for his personal use. The trial court found that this was a “spontaneous
statement, not a product of an interrogation†and therefore was admissible. The trial court found no violation,
after the Miranda warning, as to defendant’s
subsequent statements about his personal drug use.
face="Times New Roman">B. Standard of
Review
face="Times New Roman">Defendant argues
the trial court erred and all defendant’s statements should have been
suppressed because they flowed from the initial Miranda
violation and they were part of one continuous investigation.
face="Times New Roman">When reviewing a
trial court’s ruling on the admissibility of evidence obtained in violation of
a defendant’s Fourth Amendment rights, the reviewing court, “‘accept[s] the trial
court’s resolution of disputed facts and inferences, and its evaluation of
credibility, if supported by substantial evidence.’†(People v. Haley
(2004) 34 Cal.4th 283, 299, quoting People v. Wash
(1993) 6 Cal.4th 215, 235.) The
reviewing court must accept the version of events most favorable to the People,
to the extent it is supported by the record.
(People v. Maury (2003) 30 Cal.4th 342,
404.) The reviewing court, however, exercises
its independent judgment to determine whether the statements were obtained in
violation of Miranda. (People v. Massie (1998)
19 Cal.4th 550, 576; People v. Waidlaw
(2000) 22 Cal.4th 690, 730; People v. Box (2000)
23 Cal.4th 1153, 1194.)
face="Times New Roman">C. Analysis
face="Times New Roman">Defendant
contends that, in the present case, the officer deliberately delayed reading
defendant his Miranda rights until he had
already questioned defendant about the Cadillac, obtained his consent to search
the car, discovered the suspected methamphetamine, and arrested defendant,
leading to additional inculpatory statements from defendant, who admitted that
the methamphetamine was for his personal use and that he had a drug problem.
face="Times New Roman">Defendant
compares the sequence of events to Missouri v. Seibert (2004)
542 U.S. 600, which criticized “two-step interrogations.†In Seibert, the
investigating officer consciously withheld Miranda warnings
while questioning Seibert, a murder suspect being held at the police station. After Seibert made an incriminating
statement, the officer left for 20 minutes before returning, giving the
earlier statements and elicited a confession used to convict her. (Seibert, at pp.
604-606.) Although the second confession
was made after Seibert was read Miranda rights,
a plurality of the United States Supreme Court justices held that both her pre-
statements were inadmissible. (
plurality opinion condemned the “technique of interrogating in successive,
unwarned and warned phases.†(
characterized by the court, “The object of question-first is to render
opportune time to give them, after the suspect has already confessed.†(Id. at p. 611.)
for determining the effect of a Miranda
violation on subsequent statements: “[t]he
completeness and detail of the questions and answers in the first round of
interrogation, the overlapping content of the two statements, the timing and
setting of the first and the second, the continuity of police personnel, and
the degree to which the interrogator’s questions treated the second round as
continuous with the first.†(
face="Times New Roman">The threshold
issue concerns whether there was any interrogation at all. Here the trial court excluded defendant’s
initial statements about the Cadillac. Using
the Seibert factors, we find no error by the
trial court in admitting defendant’s subsequent statement, his voluntary
admission made immediately after his arrest that he had a drug problem and the
methamphetamine was for his personal use.
Instead, substantial evidence supports the trial court’s finding that
defendant was not the subject of a custodial police interrogation when he
spontaneously blurted out the information about his personal drug use. There is no evidence whatsoever that officer
Vazquez deliberately delayed or “consciously withheld†Miranda warnings. Even though officer Vazquez showed defendant
the bag containing methamphetamine immediately before he arrested him, the
officer did not begin to interrogate defendant until after he gave him
Hence, there was no first and second round of continuous questioning and
there was no overlapping relationship between the pre- and post-
542 U.S. at p. 16.) Defendant cannot
establish any of the Seibert factors. Thus, the trial court properly admitted both
sets of defendant’s statements—made before and after Miranda—about
his drug problem and his personal drug use.
face="Times New Roman">D. Prejudice
Assuming
the trial court erred—which we confidently find it did not—defendant further
contends the error was not was harmless beyond a reasonable doubt. (Chapman v.
195 Cal.App.4th 872, 877.) We disagree.
face="Times New Roman">To prove
defendant committed the crime of possession of methamphetamine, the prosecution
needed to prove several elements: defendant exercised control over a usable
amount of methamphetamine and defendant knew of its presence as a controlled
substance. (People v.
Tripp (2007) 151 Cal.App.4th 951, 956.)
face="Times New Roman">The record at
trial offers substantial evidence of these elements. The methamphetamine was found inside the
Cadillac’s trunk under a T-shirt.
Defendant admitted that he owned the car and drove it to the
hospital. He possessed the vehicle’s
keys. He was also the registered owner. Officer Vazquez testified that the amount of
methamphetamine found in the Cadillac was about 36 doses. A witness testified that when he sold
defendant the Cadillac in April 2011, about five months earlier, there was no
methamphetamine in the trunk to his knowledge.
Defendant’s son, Darren Jr., wrote a letter stating that defendant “has
a drug problem. . . .†Additionally,
Darren Jr. testified that his father forced him to write the letter, in which
he also falsely asserted that the Cadillac belonged to him and his father did
not know about the drugs. All of this
evidence, combined with defendant’s ownership and control of the Cadillac,
fully supports the inference that defendant was aware of the presence and
nature of the drugs in his car.
face="Times New Roman">Defendant
offered contrary evidence about the Cadillac’s ownership—that the car was
registered to “Darren Cooper,†either defendant or Junior, both of whom had listed
the same address with the Department of Motor Vehicles. Two witnesses testified that defendant drove
a truck, not a Cadillac, and that the Cadillac belonged to Darren Jr.
face="Times New Roman">Notwithstanding
the defense’s alternative evidence about vehicle ownership, the jury could have
little doubt about defendant’s knowledge of the methamphetamine secreted in the
trunk of the Cadillac and his constructive possession of it. Any error—which we do not acknowledge—was
harmless beyond a reasonable doubt.
Therefore no prejudice was caused by the trial court’s
CREDIT
face="Times New Roman">Defendant’s
crime was committed on September 5, 2011.
Defendant was also found guilty of two prior serious felony convictions,
first degree residential burglary (§§ 459, 460, and 1192.7, subd. (c)(18))—which
the court dismissed—and assault with a deadly weapon or force on a peace
officer. (§§ 245, subd. (c), 1992.7,
subd. (c)(11).)
face="Times New Roman">Under section
2900.5, subdivision (a), an incarcerated person is entitled to credit against
his sentence for days spent in custody before sentencing. The parties agree that defendant was in
custody for 368 days, not 366 days. The
parties disagree about whether defendant should receive additional conduct
credit of one day for every day served, 368 days, or two days for very four
days served, 184 days. (§ 4019, subds.
(b) and (c).) Both parties have
miscalculated.
face="Times New Roman">Defendant is not
entitled to enhanced credit because he has a prior conviction for a serious
felony, assault on a peace officer.
Instead, he receives two days of conduct credit for every six days
served. According to the “two preeminent
sentencing authorities†(People v. Hul
(2013) 213 Cal.App.4th 182, 187), the following sentencing provisions
apply: “Effective September 28, 2010,
section 4019 was returned to its wording prior to January 25, 2010: . . . Section 2933, a statute applying to
credits in state prison, was amended to grant persons sentenced to prison one
day of credit for every day of pre-sentence time served in county jail. Excluded from the enhanced credit provisions
were defendants who had a prior conviction for a serious or violent felony, . .
. The excluded defendants would receive
only two days of conduct credit for every six days served. The statutory change applied only to crimes
committed on or after September 28, 2010.†(Couzens & Bigelow,
Awarding Custody Credits, Feb. 2013, p. 12 and pp. 6 and 17, http://www.courts.ca.gov/partners/documents/Credits_Memo.pdf.) Accordingly, we conclude defendant should
receive conduct credit of 122 days, plus 368 actual days, for a total of 490
days of custody credit.
We order the trial court to
modify the judgment to award defendant custody credit of 490 days, 368 days
actual credit and 122 days of conduct credit.
We direct the trial court to forward a certified copy of the corrected
abstract of judgment to the Department of Corrections and Rehabilitation.
face="Times New Roman">Otherwise, we
hold there was no Miranda error and affirm the
judgment.
face="Times New Roman">NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
face="Times New Roman">CODRINGTON
face="Times New Roman"> J.
We
concur:
RAMIREZ face="Times New Roman">
P. J.
KING face="Times New Roman">
J.
face="Times New Roman">
name="_ftn1" title=""> face="Times New Roman">face="Times New Roman">[1] According to the probation
report prepared in August 2012, defendant was born in 1966 and has nine children
ranging in age from nine months to 27 years old. Defendant was diagnosed with schizophrenia 20
years ago and receives social security disability. His criminal history involves 10 cases
between 1984 and 2007, including a juvenile conviction for second degree
burglary and many drug-related offenses.
name="_ftn2" title=""> face="Times New Roman">face="Times New Roman">[2] All statutory references are
to the Penal Code unless stated otherwise.
