P. v. Mihajson
Filed 4/12/13 P. v. Mihajson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
VANESA MICHELLE MIHAJSON,
Defendant
and Appellant.
E055245
(Super.Ct.No.
INF066716)
OPINION
APPEAL
from the Superior Court
of
County. Graham Anderson
Cribbs, Judge. (Retired judge of the
Riverside Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Gerald
J. Miller, 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, and Barry Carlton and
Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant
Vanesa Michelle Mihajson appeals from her conviction of being an
She contends the trial court erred in (1) denying her motions to
suppress evidence seized during a traffic stop because the time and scope of
the detention exceeded the ostensible basis for the stop; and (2) admitting
evidence of her brother’s statements to the police because they were hearsay,
they were testimonial, and their admission violated the
set forth in People v. Aranda (1965)
63 Cal.2d 518 (Aranda)
v. United States (1968) 391 U.S. 123 (Bruton). We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Before
October 12, 2007,
defendant shared a condominium on Portola in Palm
Desert with her brother, Sean
Mihajson (Sean), and his girlfriend, Katie Weddle. Sean was not employed, but he obtained money
by selling marijuana to friends.
Defendant’s friend Karen Reyes had seen Shalonda Morris,
Defendant told Reyes more than once that Sean planned to set up a fake
deal to steal money from Morris by pretending he had drugs to sell her. Defendant told Reyes, “yes, it’s going to
happen; no, it’s not going to happen. I
talked him out of it; no, I didn’t talk him out of it, so on, so forth.†She said she had told Sean not to do it, but
he nonetheless intended to go through with the scheme.
On
October 12, Reyes met defendant, who told her that Sean was “going through with
their plan.†Defendant told Reyes “that
her brother had planned to steal—take the money from [Morris] and that she
didn’t know why; supposedly, they had duct tape and plastic bags,†although
defendant had told Reyes she was not sure why.
Later, defendant told Reyes there was “[n]o more Shay,†that Shay was
“gone.†Reyes understood that to mean
that Morris was dead. Defendant also
told Reyes that Sean “had to clean up the mess and that she and [Weddle] had to
wait†at the mall. Defendant went to
Reyes’s house with Weddle, where they waited for Sean to finish cleaning. Defendant kept calling Sean to ask where he
was and how long it was going to be.
Sean eventually picked up defendant and Weddle. Reyes did not see defendant again in person,
but defendant told her in a telephone conversation that their plan was to go to
Las Vegas to “lay low for a while.â€
Another time, defendant said her brother wanted her to turn her phone
off and she should not have contact with anyone. Defendant asked Reyes not to tell anyone what
she knew.
About
11:00 a.m. on October 12, 2007, Daniel Lawrence, who was dating defendant
at the time, received a telephone call from her. She told him she “needed to get out of the
house,†and “needed somebody to get her mind off of stuff.†They arranged to meet at a mall in Palm
Desert, where they sat in the bed of Lawrence’s truck, smoked cigarettes, and
“gossiped.†Defendant seemed
stressed. She received a telephone call,
and she told Lawrence she needed to run an errand. They went together to a Lowe’s store, where
she purchased plastic sheeting and duct tape.
A surveillance video from Lowe’s that showed the couple purchasing the
items was played for the jury. Defendant
“wouldn’t give [Lawrence] a straight answer†when he asked what the items were
for, but she said they were for her brother.
Later,
possibly on the same day, Lawrence met defendant at another shopping center in
Rancho Mirage. Defendant said she was
staying at a hotel and was moving to Las Vegas.
Lawrence received a message through the social network “MySpace,†in
which defendant said she was moving to New York. Defendant told him the same thing in a
telephone call. In one telephone
conversation, defendant was upset that Lawrence had disclosed her location as
Las Vegas. She told him to delete all
their MySpace messages.
Weddle
her to work in the morning. After work,
Sean, possibly accompanied by defendant, picked her up at approximately 4:00 or
4:30 p.m. They had previously planned to
leave for Las Vegas to stay there.
Weddle packed some clothes but left other belongings in the condo, intending
to come back for them later. The three
went to the mall, where Sean dropped off the women, gave each of them about
$300, and told them to go shopping. They
stayed at the mall until it closed at 9:00 p.m., then sat in Reyes’s car, and
eventually went with Reyes to her house.
After Sean picked them up, they went to a hotel. In the hotel room, Sean had “a significant
amount of money†in a little backpack, and Weddle, defendant, and Sean counted
the money. On October 13, Sean left
the hotel alone and was gone all day.
They stayed at the hotel a day or two and then spent another day or two
at a hotel in Rancho Mirage. When they
finally went to Las Vegas, they stayed at a hotel a few days. Weddle received a telephone call in which
someone asked for Sean. When Weddle said
Sean was in the shower, the voice said, “‘Give her back,’†or “‘where is she?’ ‘Give her back[.]’†Morris’s name was mentioned in the call. Sean told Weddle to turn off her cell phone
and not use it. After leaving the hotel
in Las Vegas, Sean, Weddle, and defendant moved to a house where defendant’s
brother, Victor, joined them.
About three weeks
after October 12, defendant, Sean, and Weddle returned to the condo “to
grab whatever [they] couldn’t fit in the car the first time.†They stayed only 10 or 15 minutes, just long
enough to get their things. At one
point, Sean told Weddle to go outside to see if anyone was coming. Weddle noticed that the carpet in the hallway
looked different; her room had been painted; the lamp shades were different;
and the blinds had been changed.
Defendant and Sean got on the floor on their hands and knees, using
their cell phones for light, and appeared to be looking for something on the
carpet. When Weddle eventually returned
to California, she was interviewed by the police and told them about the money,
the telephone calls, and Sean’s statements.
Morris’s
partner, Cynthia Garcia, contacted the police on October 13, 2007, after
Morris failed to return home. Garcia
last spoke to Morris at approximately 2:30 p.m. on October 12. Morris’s father had not heard from Morris since
the morning of October 12, although they usually spoke at least every
other day. Morris’s mother last heard
from Morris on October 2, and her telephone calls to Morris had not been
returned. Morris’s brother last spoke to
her on October 12, despite having placed more than 100 unanswered calls to
her cell phone. On November 7,
2007, a deputy sheriff ran the license plates on an illegally parked vehicle in
Palm Desert and learned the vehicle belonged to Morris, who had been reported
missing. All of Morris’s clothing and
personal items were left at Garcia’s house, and Morris’s body was never
found. Morris had gone to prison in
early 2000 for drug sales. She had been
diagnosed with breast cancer in 2005, and she smoked medicinal marijuana.
Lawrence
contacted the police after having a conversation with Reyes about Morris. On December 11, 2007, sheriff’s
investigators learned that defendant and Sean were in the area. They made a traffic stop of the car Sean was
driving with defendant as a passenger. In
a field interview, Sean initially denied knowing Morris, but then said she was
“mixed in a crowd†he did not associate with; he had not seen or spoken to her
for about a year; and defendant did not know her. Defendant was shown a photograph of Morris and
said she had never seen her.
Defendant
and Sean were transported to the police station, where they were
interviewed. Portions of the video and
audio recordings of defendant’s interview were played for the jury. Defendant initially said she did not know
Morris and had never seen her. Defendant
denied that Sean had sent her to Lowe’s to buy things, and she denied any
involvement in Morris’s murder.
Defendant eventually admitted she had seen Morris before. She also admitted Sean had telephoned and told
her to pick up tape and plastic, and she then “put two and two together.†She purchased the requested items and took
them to Sean at their condo. She asked
Sean what the items were for, and he told her not to worry. She denied knowing of any drug deal between
Sean and Morris. Defendant discussed the
money she and Weddle spent at the mall.
She said Weddle had purchased things for her with money Weddle got from
Sean, who in turn had gotten the money from Morris.
Defendant was
later placed in an interview room with Sean, and the police recorded their
interaction. They spoke to each other
partly in Romanian. An interpreter
translated their conversation at trial, and the jury was provided with a
translated transcript. During the
conversation, Sean said, among other things, “‘Don’t say anything. They can’t find out about her’ or ‘They
cannot find her’â€; “‘They don’t think
that you did it. They don’t think that I
did it. Trust me’â€; and “‘Don’t say
anything.’†Sean asked defendant why she
told the police she had given him the duct tape and said it was “‘the only
thing they have.’†He said she “should
not have said anything,†and she should now “[t]ell them that you got that
thing for your . . . boss. Why
did you say that you gave it to me, at the gate? What am I going to do about it?†They spent time trying to get their stories
straight, and Sean said, “That girl fits full length into it,†or “‘the whole
girl fits from head to toe.’†Defendant
was released from custody after the conversation with her brother.
Defense Evidence
Victor Mihajson,
defendant’s father, testified that he was born in Yugoslavia, and he and his
children spoke the Romaneste language, a distinct language from Romania. He stated neither defendant nor Sean knew
Romanian. Victor listened to the tape of
the conversation between defendant and Sean at the station, and he testified
that portions of the conversation had been mistranslated. Specifically, Sean had not said anything
about a girl fitting full length into anything, but he had said, “‘She is in my
mind, my head, can’t stop thinking of her.
I know that she said about money that she saw.’â€
Verdict and Sentence
The
jury found defendant guilty of being an
accessory to murder (§ 32). The
trial court placed her on probation for 36 months under various terms and
conditions.
III. DISCUSSION
Motions to Suppress Evidence
Defendant contends
the trial court erred in denying her motions to suppress evidence seized during
a traffic stop because the time and scope of the detention exceeded the
ostensible basis for the stop.
1. Additional Background
In
October 2009, defendant moved to suppress the evidence
traffic stop. Following the preliminary
hearing, the magistrate denied the motion.
In November 2009, defendant again moved to suppress the evidence. Defendant submitted no additional evidence,
and again the motion was denied.
On September 11,
2011, defendant moved a third time to suppress the evidence arising from the
traffic stop and to suppress her extrajudicial statements on the ground of
hearing, at which Investigator Rickie Simms of the Riverside County Sheriff’s
Department testified that in December 2007, he was conducting a missing
person’s investigation regarding Morris.
During the investigation, information was obtained linking defendant and
Sean to the murder of Morris. After
learning defendant and Sean were driving from Las Vegas to drop off Weddle,
Investigators Simms and Gary LeClair,
unmarked cars at the expected drop-off point, a business complex in Palm
Desert. Investigator LeClair saw the car
drop off Weddle and then drive away, with Sean driving and defendant in the
passenger seat. LeClair requested that
the car be stopped because it did not have a front license plate in violation
of the Vehicle Code; however, they actually wished to investigate the possible homicide. Deputy Morton, driving a marked patrol car,
stopped the car. Five officers were
present after the traffic stop; only Deputy Morton wore a uniform, while the
rest wore plain clothes.
Investigator
LeClair spoke with Sean for about 15 minutes, both about the license plate and
about Morris. LeClair told Sean he was
not under arrest and was free to leave.
Sean said he wanted to speak to his father and would come to the police
station another time, and LeClair responded, “‘No. I want you to go now.’†LeClair asked Sean if he would release the
car to defendant, but Sean declined to do so, saying he did not trust her with
it.
Ten
to 15 minutes into the stop, Investigator Simms began to question defendant,
who was sitting in the front passenger seat while Sean was standing near
LeClair’s unmarked car. The investigator
recorded the conversations involving defendant and Sean. Sean was transported away in one of the
police vehicles while the investigator was still talking to defendant.
Investigator
Simms asked defendant if she would go to the police station to talk to him, and
she said she would if Sean went as well.
Defendant was handcuffed toward the end of the conversation, just before
she was transported to the police station.
When they got to the police station, Investigator LeClair took off her
handcuffs and interviewed her for an hour and a half to two hours and a half.
The trial court
stated it had read and considered the transcript of the preliminary hearing
before ruling on defendant’s motion.
Simms testified that defendant was “a person of interest†in connection with
Morris’s disappearance or murder, and the officers believed she had information
about Morris. Through interviews with
witnesses, Investigator Simms had learned that defendant had several
conversations with Sean on the day Morris went missing. Investigator LeClair testified that Lawrence
told him defendant had gone to the Lowe’s store to purchase the duct tape and
plastic sheeting. Reyes had reported
that when she was at the mall on October 12, defendant had said “the deal was
done, Shae was gone, and Sean was home cleaning up,†and Reyes interpreted the
statement to mean “[t]hat Shae was dead.â€
Garcia
told a detective that on October 12, 2007, Morris had gone to Palm Desert
to meet with a person named Sean at a smoke shop. Another investigator told Investigator
LeClair that John Delgadillo had reported that Delgadillo and Morris had a drug
deal set up with Sean that day to purchase a pound of marijuana for about
$7,600. Telephone records showed that
Morris and Sean had been communicating with each other. Reyes told Investigator LeClair that
defendant told her that Sean had set up “a bogus drug deal†with Morris, and
that Morris was going to go to defendant’s condo on October 12, and
defendant was supposed to stay away from the condo that day. On November 19, 2007, defendant and Sean
became suspects in Morris’s homicide investigation.
The
trial court found that “probable cause [for the traffic stop] existed
. . . because of the license plate issue; [and] . . . there was probable cause for the stop based
upon law enforcement at that time, having knowledge of the fact of a missing
person and that that was being investigated by those individuals.†The trial court further found that no
motion to suppress.
Analysis
“[T]he lack of a
front license plate has long been recognized as a legitimate basis for a
traffic stop. [Citations.]†(People
v. Saunders (2006) 38 Cal.4th 1129, 1136.)
Thus, the initial stop was indisputably supported by probable
cause. Moreover, the evidence in the
record, including the preliminary hearing
testimony recounted above, establishes that the officers had specific,
articulable facts supporting the conclusion that defendant and Sean were
involved in Morris’s murder. “A
detention is reasonable under the Fourth Amendment when the detaining officer
can point to specific articulable facts that, considered in light of the
totality of the circumstances, provide some objective manifestation that the
person detained may be involved in criminal activity.†(People
v. Souza (1994) 9 Cal.4th 224, 231.)
The evidence known to the officers in this case would lead a person of
ordinary care and prudence to entertain an honest and strong suspicion that
defendant was an accessory to murder.
(See People v. Kraft (2000) 23
Cal.4th 978, 1037.) Thus, the length of
the detention was not limited to the time it would take to issue a citation for
the Vehicle Code violation, but rather to the time it would take to investigate
their involvement in the murder. (See
531, 537 [stopping the defendant’s vehicle for a seatbelt violation was
“entirely legal†even if the stop was a pretext for a narcotics
investigation].)
Defendant argues
that by “devising and implementing†the pretext of stopping the car because it
was missing a front license plate, “police essentially conceded no probable
cause then existed to arrest or otherwise detain either Sean or
[defendant] . . . .â€
However, we measure probable cause by an objective standard, not by a
subjective standard (People v. Rodriguez (1997)
53 Cal.App.4th 1250, 1266), and we determine the validity of an arrest by
whether the officer knew facts that supported a reasonable suspicion of
criminal activity, not by whether those facts would be sufficient to obtain a
conviction. (People v. Hill (1974) 12 Cal.3d 731, 749, overruled on another
ground in People v. DeVaughn (1977)
18 Cal.3d 889, 896, fn. 5.) The evidence
set forth above more than meets that standard.
The trial court properly denied the motion to suppress.
Admission of Brother’s Statements
Defendant contends
the trial court erred in admitting evidence of her brother’s statements to the
police and to defendant because they were hearsay, and their admission violated
the confrontation clause. Defendant also argues that admission of
Sean’s statements violated the principles set forth in Aranda and Bruton.
1. Additional Background
Defendant objected
to the admission of the statements Sean made after the December 11, 2007,
traffic stop and the statements he made to defendant when they were placed
together in a police interview room. The
trial court ruled that Sean’s statements were nontestimonial, and they fell
within the exception to the hearsay rule for statements against penal interest. The trial court therefore allowed the
statements to be admitted into evidence.
It was undisputed that Sean was unavailable as a witness because he
invoked his Fifth Amendment privilege against
2. Nontestimonial Statements
Under the Sixth
Amendment’s Confrontation Clause, “‘[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him.’†(Crawford v. Washington (2004) 541 U.S. 36, 42.) The confrontation clause bars admission of
“testimonial†hearsay unless the declarant is unavailable to testify and the
defendant had a prior opportunity to cross-examine the declarant. (Crawford,
supra, at pp. 53-54, 68.) “If the
statement is not testimonial, it does not implicate the confrontation clause,
and the issue is simply whether the statement is admissible under state law as
an exception to the hearsay rule.†(
261, 291.) Although the
testimonial statements, it listed as examples among other things,
“‘extrajudicial statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confessions,’
[citation]; [and] ‘statements that were made under circumstances which would
lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.’†(
Defendant argues
the challenged statements were testimonial because “police obviously intended
to obtain information to be used against [defendant and Sean], essentially
relying upon [them] to ‘interrogate’ each
other . . . .â€
Defendant’s focus on the officers’ intentions is misplaced. In the analogous case of People v. Arauz (2012) 210 Cal.App.4th 1394, the defendants
contended that an accomplice’s jailhouse statements to a paid confidential
informant were testimonial hearsay, and the admission of those statements
violated their rights of confrontation and cross-examination. (Id.
at pp. 1401-1402.) The court rejected
that contention, explaining that when he made the statements, the accomplice
“thought he was answering to the Mexican Mafia.
He had no belief that his statements were being monitored and would be
used in a subsequent trial.
[Citation.] Federal courts have
repeatedly held that statements unwittingly made to an informant are not
‘testimonial’ for confrontation clause purposes. [Citations.]
We agree with the rule and rationale of these cases. We hold that statements unwittingly made to
an informant are not ‘testimonial’ within the meaning of the confrontation
clause. The last thing [the accomplice]
expected was for his statement to be repeated in court. [Citation.]â€
(Id. at p. 1402.) The same analysis applies to the facts before
us. By speaking in Romanian, defendant
and Sean clearly did not anticipate that their conversation would be used in
court. The challenged evidence was not
testimonial.
3. Statements Against Penal Interest
Having concluded
the statements were not testimonial, we next turn to whether the statements
were admissible under an exception to the hearsay rule. (People
v. Garcia, supra, 168 Cal.App.4th
at p. 291.) Here, as noted, the trial
court found the statements were against Sean’s penal interest.
Evidence Code
section 1230 provides: “Evidence of a
statement by a declarant having sufficient knowledge of the subject is not made
inadmissible by the hearsay rule if the declarant is unavailable as a witness
and the statement, when made . . . so far subjected him to the risk
of civil or criminal liability . . . that a reasonable man in his
position would not have made the statement unless he believed it to be true.†We apply the deferential abuse of discretion
standard to review a trial court’s determination that a statement is against a
declarant’s penal interest and is sufficiently trustworthy to be admitted under
the exception to the hearsay rule for such statements. (People
v. Lawley (2002) 27 Cal.4th 102, 153-154.)
To determine
whether a statement is trustworthy and therefore qualifies for admission as a
statement against penal interest, the court looks to “‘the totality of the
circumstances in which the statement was made, whether the declarant spoke from
personal knowledge, the possible motivation of the declarant, what was actually
said by the declarant and anything else relevant to the inquiry. [Citations.]’
[Citation.]†(
159, 175.) Here, the statements were
made in a station house interview room where defendant and her brother had been
placed together. The statements were
made in Romanian, in an apparent attempt to prevent officers from learning what
was said. The statements were made from
personal knowledge. Sean’s motivation
appears to have been to coordinate their stories. While Sean’s statements, on their face, might
appear innocuous, they must be considered in context. We conclude the trial court did not abuse its
discretion in determining the statements were admissible as declarations
against penal interest.
Defendant argues
that Sean’s statements, particularly with respect to the sheeting and duct tape
defendant purchased, “constituted the only direct evidence linking [her]
purchase of the sheeting to the alleged murder.†Defendant cannot have it both ways—in other
words, she cannot logically argue that the statement was not against Sean’s
penal interest and simultaneously argue that the statement was the only direct evidence
linking her to the murder.
Her conviction of
being an accessory “require[d] proof that a principal committed a specified
felony, [she] knew that the principal had committed a felony, [she] did
something to help the principal get away with the crime, and that as a result
of this action [she] intended to help the principal get away with the
crime. [Citations.]†(People
v. Nguyen (1993) 21 Cal.App.4th 518, 536.)
Here, defendant herself told Investigator LeClair that Sean had
telephoned her and told her to buy the duct tape and sheeting, and that was
when she “put two and two together.†She
said she and Lawrence purchased the items and delivered them to Sean at the
gate of the condo complex. Lawrence
testified that he accompanied defendant to purchase the items after she
received a telephone call, and defendant told him the items were for her
brother. Lowe’s provided the police with
a videotape of defendant and Lawrence buying the duct tape and plastic
sheeting, and the videotape was shown to the jury. Reyes testified that defendant had said Sean
was “going through with their plan,†that it was “in progress,†and that they
had duct tape and plastic bags.
Defendant told her “there is no more Shay, that Shay was gone,†and that
Sean “had to clean up the mess and that she and [Weddle] had to wait†at the
mall. Defendant went with Sean and
Weddle to Las Vegas and admitted they had been hiding from the police. Even if we presume error for purposes of
argument, it was harmless beyond a reasonable doubt under any standard. (Chapman
v. California (1967) 386 U.S. 18, 24; People
v. Watson (1956) 46 Cal.2d 818, 836.)
4. Aranda/Bruton
Defendant further
argues that admission of Sean’s statements violated the principles set forth in
Aranda and Bruton. Under
nontestifying codefendant that implicates the defendant violates the
defendant’s right to confront and cross-examine witnesses. (Aranda,
supra, 63 Cal.2d at p. 530; Bruton,
In
451, at pages 463 through 464, our Supreme Court held that the United States
Supreme Court’s opinion in Richardson v.
Marsh (1987) 481 U.S. 200 limited the application of Bruton to facially incriminating confessions of a codefendant in a
joint trial. (See People v. Homick (2012) 55 Cal.4th 816, 874.) Defendant and Sean were not tried
jointly. Moreover, even if they had been
tried together, Sean’s statements would have been admissible either as nonhearsay
or as declarations against penal interest.
Thus, the Aranda/Bruton rule
does not apply.
IV. DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless as otherwise indicated.
name="_ftn2" title=""> [2] Morris is also referred to in the record as
“Shae,†“Shay,†“Shae Shae,†or “Shay-Shay†at the condo.
