P. v.
Filed 5/29/13 P. v. Everett CA4/2
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMIL URAIL EVERETT,
Defendant and Appellant.
E055721
(Super.Ct.No. FWV1101391)
OPINION
APPEAL
from the Superior Court of
County. Mary E. Fuller,
Judge. Affirmed.
Law
Office of Zulu Ali and Zulu Ali for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton, and
Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted defendant Jamil Urail Everett of
possession of methamphetamine (Health and Saf. Code, § 11377;
subd. (a)(1)); and possession of a false driver’s license (§ 529.5, subd. (c);
count 3). The jury also found true, as
to counts 1 and 2, allegations that defendant committed the crimes while
released on bail (§ 12022.1).
Defendant admitted he had one prison prior (§ 667.5, subd. (b)). The trial court sentenced defendant to eight
years four months in prison.
Defendant contends on appeal
that the trial court abused its discretion in denying his
committed reversible error in admitting into evidence a jailhouse audio
recording and his statement given to the police while he was in the
hospital. We reject defendant’s
contentions and affirm the judgment.
II
FACTS
On
April 7, 2011, at approximately 7:00 p.m., the San Bernardino County Sheriff’s
Department attempted to initiate a traffic stop in furtherance of executing an
outstanding arrest warrant on defendant.
Defendant was a passenger in a vehicle driven by his girlfriend. When two police cars attempted to initiate
the traffic stop, defendant’s vehicle sped away. The car eventually pulled over. Defendant quickly got out of the car and took
off running. Deputy Peppler contacted
the driver who remained in the car, defendant’s girlfriend, and searched the
car. Peppler found a nine-millimeter
handgun underneath the front passenger seat where defendant had been sitting.
Meanwhile,
two other deputies chased defendant on foot, while Sheriff’s Detective Futscher
drove an undercover truck through the neighborhood looking for defendant. As Futscher was driving, defendant ran out
from behind a vehicle, in front of Futscher’s truck, and Futscher accidently
hit him with the truck, breaking defendant’s femur. Futscher apprehended defendant, called for
medical care, and searched him. Futscher
found a bindle of methamphetamine and $6,491 in cash.
About
90 minutes after the accident, Futscher interviewed defendant at the
hospital. Defendant admitted he knew
there was an outstanding warrant out for his arrest and that, when the police
attempted to stop his girlfriend’s car, he initially told her not to stop, but
eventually told her to pull over. He
then ran from the vehicle. Defendant
also admitted that he had bought the gun found in the car a few weeks earlier.
On
April 17, 2011, defendant called his mother from jail. The call was recorded and played for the
jury. During the call, defendant stated
that he had been “busted†and caught with a “nine.â€
III
DEFENDANT’S MOTION TO
CONTINUE TRIAL
Defendant
contends the trial court abused its discretion in denying his motion to
continue the trial to allow him to prepare adequately for trial. Defendant requested a continuance on the
grounds the prosecution failed to disclose more than 30 days before trial the
name of its witnesses and the written transcript of an audio recording of a
jailhouse call. The transcript and
amended witness list, which added the witness who transcribed the audio
recording, were not disclosed until two days before trial. This, defendant argues, prevented him from
adequately preparing for trial and therefore there was good cause for the trial
court to grant a continuance.
Penal Code
section 1050, subdivision (e) provides that, “Continuances shall be granted
only upon a showing of good cause.†In
determining whether good cause exists to grant or deny a continuance, a court
looks to the facts and circumstances of each case. The trial court, in determining whether good
cause exists, as necessary to grant a continuance, “must consider ‘“‘not only
the benefit which the moving party anticipates but also the . . . burden on
other witnesses, jurors and the court and, above all, whether substantial
justice will be accomplished or defeated by a granting of the motion.’â€â€™â€ (People
v. Doolin (2009) 45 Cal.4th 390, 450.)
“‘[A]s a general matter, a trial court “has broad discretion to
determine whether good cause exists to grant a continuance of the trialâ€
[citation], and that, in reviewing a trial court’s good-cause determination, an
appellate court applies an “abuse of discretion†standard. [Citations.]’
[Citation.]†(
1163, quoting People v. Sutton (2010)
48 Cal.4th 533, 546.)
Here, the trial court did
not abuse its discretion in denying defendant’s request for a continuance
because the reason for requesting a continuance, given by defense counsel in
the lower court, did not constitute good cause.
The grounds for a continuance asserted on appeal were not raised in the
trial court. The clerk’s transcript
states, “Defense has filed a motion to continue pursuant to PC1050,†but a
written motion is not included in the record on appeal. This court therefore cannot determine the
grounds upon which the motion was made, other than from the reporter’s
transcript. The October 21, 2011, minute
order reflecting the ruling on the motion, merely states that the trial court
denied defendant’s motion for a continuance.
There is no statement in the minute order of the trial court’s reasons
for denying the motion. However,
according to the reporter’s transcript of the hearing, defense counsel moved
for a continuance because he was required to try another case at the same time
as defendant’s trial.
The trial court explained
during the motion hearing that it denied the continuance because, on September
26, 2011, defense counsel announced ready to try the case and selected the
trial date of October 24, 2011. Then
defense counsel inappropriately gave priority to the case of another client who
was out-of-custody, whereas defendant was in custody. The trial court therefore concluded there was
no good cause for continuing defendant’s trial. Defendant’s trial thus began, as originally
scheduled, on October 24, 2011, with defense counsel representing defendant.
On appeal, defendant argues
the prosecution failed to disclose timely the written transcript of an audio
recording of a jailhouse call and the witness who transcribed the
recording. Because the record does not
reflect that defendant requested a trial continuance based on the grounds
asserted on appeal, defendant forfeited his objection to the trial court’s
ruling on his motion for a trial continuance.
(United States v. Olano (1993)
507 U.S. 725, 731; People v. Partida (2005)
37 Cal.4th 428, 431.) Even if defendant did not forfeit the
grounds asserted for the first time on appeal, we conclude the trial court did
not abuse its discretion in denying a continuance because defendant has failed
to establish there was good cause for a continuance.
IV
MOTION TO SUPPRESS AUDIO
RECORDING EVIDENCE
During
defendant’s jailhouse telephone conversation with his mother, defendant
explained he had received traffic tickets, which were unresolved. Defendant then implicated himself when he
told his mother officers “[b]usted me on a 211 – reckless driving, plus the
nine I just got caught with, and . . . the first 459 [burglary prior]. That’s some real shit.†Defendant added that his attorney wanted him
to plead guilty only to the traffic tickets.
Defendant stated, “I’ll plead guilty to all of that Ma.â€
Defendant
filed a motion in limine to exclude the jailhouse recording on the ground it
was of poor quality and inaudible, making the recording untrustworthy. Defendant also argued the recording was
irrelevant and created a substantial risk of undue prejudice by misleading the
jury. The trial court conducted a
hearing on the admissibility of the recording after listening to it and
reviewing the recording transcript. The
court found the recording was very relevant and audible, particularly as to
defendant admitting he was in possession of the a nine-millimeter handgun.
Defendant
argues the trial court erred in admitting into evidence the jailhouse recording
because it was of such poor quality that it resulted in speculation and
unfairness. Defendant also asserts that
his statement that he was caught with a “nine†could be misconstrued by the
jury as meaning that he actually possessed a nine-millimeter handgun when he
meant something else. Deputy Peppler
testified he searched the vehicle involved in the incident and found a
nine-millimeter handgun underneath the front passenger seat where defendant had
been sitting.
When a trial
court rules on a motion to suppress evidence, it “‘“(1) finds the historical
facts, (2) selects the applicable rule of law, and (3) applies the latter to
the former to determine whether the rule of law as applied to the established
facts is or is not violated.
[Citations.] . . . The court’s resolution of the first inquiry,
which involves questions of fact, is reviewed under the deferential
substantial-evidence standard.
[Citations.] Its decision on the
second, which is a pure question of law, is scrutinized under the standard of
Finally, its ruling on the third, which is a mixed fact-law question
that is however predominantly one of law, . . . is also subject to independent
review.†[Citation.]’ [Citations.]â€
(People v. Carter (2005) 36
Cal.4th 1114, 1140.)
In this case, we apply the
independent standard of review when applying the facts to the law. In doing so, we conclude the trial court did
not err in admitting the recording because it was highly relevant. Defendant indicated in the recording that he
had been caught in possession of a nine-millimeter handgun and was willing to
plead guilty to the offense. Defendant
has failed to establish that the trial court abused its discretion and erred in
admitting the recording based on a finding that the recording was sufficiently
audible and relevant, particularly the portion of the tape implicating
defendant of possession of a handgun.
Even if we were
to assume that the trial court erred in admitting the recording, any error was
harmless because it is not reasonably probable that the jury would have reached
a more favorable result to defendant had the challenged evidence been excluded. (People
v. Carter, supra, 36 Cal.4th at p. 1152; People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant’s defense was that the handgun did
not belong to him. The officer who found
the handgun testified that it was found under the front passenger seat where
defendant had been sitting and, shortly after the incident, defendant admitted
to the investigating detective that the gun was his and he had purchased it a
few weeks earlier.
V
ADMISSIBILITY OF DEFENDANT’S
IN-CUSTODY INTERROGATION
Defendant
contends the trial court erred in admitting statements and evidence obtained
when Detective Futscher interrogated defendant at the hospital about an hour
and a half after the charged offense.
Defendant argues that he did not voluntarily, knowingly, and
intelligently waive his Miranda
he was in custody, in severe pain, and heavily medicated for injuries sustained
when Futscher struck defendant with a police vehicle.
Defendant
filed a motion in limine under Penal Code section 1538.5, to suppress
statements defendant made during the hospital interrogation. Defendant argued his statements were made in
violation of his Fifth Amendment rights, under Miranda. The People filed
opposition arguing defendant voluntarily and intelligently waived his
section 402 hearing (402 hearing) during which Futscher testified. Futscher testified he interviewed defendant
in the hospital while defendant was handcuffed
to the bed. Futscher began the interview
by advising defendant of his Miranda rights. Defendant responded that he understood his
rights and waived them. Defendant then
provided a statement about the incident.
Futscher testified that during the hospital interrogation, defendant
appeared lucid and seemed to understand Futscher’s questions. Defendant responded appropriately. Futscher spoke with defendant for about 10
minutes, with the formal part of the interview lasting about five minutes,
until defendant invoked his rights and requested to speak to a lawyer.
Futscher further testified
that defendant did not seem to be medicated or in so much pain that he did not
understand Futscher’s questions.
Defendant spoke clearly. Futscher
had no problem understanding him. He
seemed to recall accurately names and events leading up to when defendant was
struck by Futscher’s truck. Medical
personnel in the emergency room told Futscher that defendant had suffered a
broken femur.
Defendant
testified during the 402 hearing that, while being transported to the hospital,
he was given a shot and put on an IV drip.
Defendant only remembered “[b]its and pieces†of being in the
hospital. He remembered that, after
arriving at the hospital, he spoke to a deputy and had
was in so much pain. Defendant also did
not remember the questions Futscher asked him or anything defendant told him
but remembered Futscher was present at the hospital. Defendant only remembered waking up the next
day in the hospital.
After
hearing testimony and argument, the trial court denied defendant’s motion to
exclude defendant’s hospital statements.
The court explained that extensive case law holds that waivers of
injured and medicated for pain are not necessarily involuntary. The court must consider the totality of the
circumstances. In the instant case, the
evidence established circumstances reflecting that defendant was lucid, he was
able to respond clearly, he understood his Miranda
rights, and he willingly gave a statement.
Defendant
argues that he did not voluntarily waive his Miranda rights. In reviewing
such a claim, “we accept the trial court’s resolution of disputed facts and
inferences, and its evaluation of credibility, if supported by substantial
evidence. [Citation.] Although we independently determine whether,
from the undisputed facts and those properly found by the trial court, the
challenged statements were illegally obtained [citation], we ‘“give great
weight to the considered conclusions†of a lower court that has previously
reviewed the same evidence.’
[Citations.]†(
235-236; see also People v. Whitson (1998)
17 Cal.4th 229, 248.) The government has
the burden of demonstrating voluntariness by a preponderance of the
evidence. (Whitson, at p. 248; People v.
Weaver (2001) 26 Cal.4th 876, 920.)
Generally, voluntariness is determined from the totality of the
circumstances, including the circumstances surrounding the interrogation and
the defendant’s characteristics. (
635, 660.)
On
appeal, defendant challenges the admission of his statements made at the
hospital on the ground they were involuntary in that he lacked the mental
capacity to waive his Miranda
rights. He claims he was interrogated at
a time when he was in a weakened physical and psychological condition as the
result of his femur injury and because he was medicated.
Applying the foregoing law
to the record before us, we conclude defendant’s statements were
voluntary. Futscher testified that
defendant was read his rights and waived them.
Futscher also testified that defendant said he understood his rights,
and his responses seemed normal. The
trial court believed Futscher’s testimony and there is nothing in the record to
indicate otherwise. Nor did defendant testify
he did not understand his rights.
Rather, defendant made the self-serving statement that he did not
remember much of anything, including Futscher asking him questions.
Even assuming defendant was
medicated and or suffering pain from his femur injury, there was substantial
evidence that he voluntarily waived his Miranda
rights. Futscher’s testimony
established that defendant was able to comprehend and answer all the questions
posed to him. (People v. Hendricks (1987) 43 Cal.3d 584, 591 [the mere fact of
consumption of drugs or alcohol does not establish an impairment of capacity so
as to render a confession inadmissible]; People
v. Breaux (1991) 1 Cal.4th 281, 299-301 [claim of incapacity to waive
defendant’s mental condition due to injection of morphine to reduce pain
rejected where nothing in the record indicated he did not understand questions
posed to him]; People v. Jackson
(1989) 49 Cal.3d 1170, 1189 [claim of incompetence premised on the defendant’s
physical and mental condition due to confrontation with officers and ingestion
of drugs rejected where nothing in the record indicated he did not understand
questions posed to him].) Futscher’s
testimony established that defendant was lucid during the hospital
interrogation and gave clear answers. We
therefore conclude the evidence was sufficient to support the trial court’s
finding that defendant voluntarily waived his Miranda rights and, in turn, the court did not err in admitting
defendant’s hospital statements.
VI
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
otherwise noted, all statutory references are to the Health and Safety Code.
