P. v. Peete
Filed 4/9/12 P. v. Peete CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and
Respondent,
v.
RICKY PAUL PEETE,
Defendant and
Appellant.
D059518
(Super. Ct. No. FSB1000761)
APPEAL from a judgment of the
Superior Court of
Bernardino, Harold T. Wilson, Judge.
Affirmed.
I.
INTRODUCTION
A jury found Ricky Paul Peete guilty
of possession of a firearm by a felon
(Pen. Code, § 12021, subd. (a)(1) (count
1)),
title="">[1] and found not true an
attendant gang allegation (§ 186.22, subd. (b)(1)). In a bifurcated
court trial, the court found that Peete had suffered one prior strike
(§ 1170.12, subds. (a)-(d)) and one prior prison term conviction
(§ 667.5, subd. (b)). The court
sentenced Peete to a total term of five years in prison.
On
appeal, Peete contends that the trial court erred in refusing to exclude statements
that he made to a police officer immediately after being advised that he was
under arrest, on the ground that the statements were obtained during a
custodial interrogation without proper Miranda
conclude that the trial court did not err in determining that the statements were
admissible because they were not the product of an interrogation within the
meaning of Miranda and its progeny.
II.
FACTUAL BACKGROUND
At approximately 10
p.m.
on February 23, 2010, San Bernardino Police
Officer Jose Vasquez responded to a call reporting gunshots at an apartment
complex in San Bernardino. When Officer Vasquez arrived at the apartment
complex, he saw Peete standing on a staircase of the complex. Peete was making a gang sign with one hand,
while his other hand was tucked near his waistband. According to Officer Vasquez, Peete was
repeatedly yelling both an abbreviation for a gang name and " 'Where you
niggas at' " Officer Vasquez
remained out of Peete's sight, and called for back up. After another officer arrived, Officer
Vasquez walked up the stairs and ordered Peete to stop. When Peete saw Officer Vasquez, he said,
" 'Oh shit . . . [t]he cops are here,' " and fled
into a nearby apartment.
Approximately a minute to a minute
and a half later, Peete opened the door to the apartment. Officer Vasquez asked Peete if he lived in
the apartment, and Peete replied that he lived there with his girlfriend. After Officer Vasquez indicated that he was
going to search the apartment, Peete claimed that he did not live in the
apartment.
During an ensuing search, Officer
Vasquez found an unloaded handgun in a bedroom, underneath a dresser. Officer Vasquez also found a photograph of
Peete and his girlfriend displayed on a stand in the bedroom. Peete admitted that numerous items of
clothing and shoes found in the apartment belonged to him.
III.
DISCUSSION
trial court did not err in refusing to exclude Peete's statements to Officer
Vasquez on the ground that the statements were obtained in violation of Miranda
Peete contends that the trial court
erred in refusing to exclude statements that he made to Officer Vasquez
immediately after being advised that he was under arrest, on the ground that
the statements were obtained during a custodial interrogation without proper
erred in admitting statements that Peete made to Officer Vasquez in which Peete
denied ownership of the gun and said that the gun belonged to his friend. We conclude that the trial court did not err
in admitting the statements.
name="_ftnref3" title="">[3]
A.
"In reviewing Miranda issues
on appeal, we accept the trial court's resolution of disputed facts and
inferences as well as its evaluations of credibility if substantially
supported, but independently determine from undisputed facts and facts found by
the trial court whether the challenged statement was legally obtained. [Citations.]" (People
v. Smith (2007) 40 Cal.4th 483, 502.)
B. Governing law
"Miranda v. Arizona, supra, 384 U.S.
436, and its progeny protect the privilege against
United States Constitution] by precluding suspects from being subjected to
custodial interrogation unless and
until they have knowingly and voluntarily waived their rights to remain silent,
to have an attorney present, and, if indigent, to have counsel appointed. [Citations]." (People
v. Gamache (2010) 48 Cal.4th 347, 384, italics added.) However, "[v]olunteered statements of
any kind are not barred by the Fifth Amendment," and such statements are
not inadmissible under Miranda. (Miranda,
supra, at p. 478.)
In Rhode
Island v. Innis (1980) 446 U.S. 291, 301 (Innis), the United States Supreme Court defined interrogation for
purposes of Miranda as "not only
. . . express questioning, but also . . . any words or actions on the part of
the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response
In
People v. Celestine (1992) 9
Cal.App.4th 1370, 1373 (Celestine),
the Court of Appeal considered a defendant's claim that the trial court had
erred in determining that his postarrest statements to a sheriff's deputy were
volunteered and had not been given in response to the functional equivalent of
questioning under Innis. In that case, several sheriff's deputies
arrived at a residence to execute a search warrant. (Celestine,
supra, at p. 1373.) The defendant
and his girlfriend were just leaving the residence as the deputies
arrived. (Ibid.) Some of the deputies
"blocked their path" and detained the pair while other deputies went
into the residence. After approximately
10 minutes, when the residence had been secured, the defendant and his
girlfriend were taken inside the residence and placed on the couch. (Ibid.) The defendant stated that he did not live at
the residence, but that he sometimes stayed there overnight. The defendant's girlfriend stated that she
lived at the residence.
name="_ftnref4" title="">[4] (Ibid.) A deputy told "[defendant] and his
girlfriend he knew they were selling drugs and if he found rock cocaine and
could determine whose it was 'some people will be going to jail.'
After
searching the residence for approximately 30 minutes, deputies found cocaine,
money, a gun, and " 'pay and owe' " sheets. (Celestine,
supra, 9 Cal.App.4th at p. 1374.)
of the deputies told both the defendant and his girlfriend that they were under
arrest for possession of rock cocaine for sale. " 'Immediately'
[defendant] and his girlfriend stated 'they don't sell rock cocaine, it was for
their personal use.' " (
at pp. 1373-1374.) The trial court
admitted the defendant's statements after determining that they had not been made
in response to police interrogation. (
at p. 1373.)
On appeal, after noting
that in Innis the United States Supreme Court had expressly excepted the
words and actions of police officers "normally
attendant to arrest and custody" from the definition of interrogation (Innis,
supra, 446 U.S. at p. 301),
the Celestine court concluded that
the statement at issue had not been given in response to an interrogation. (Celestine,
supra, 9 Cal.App.4th at p. 1374, citing Innis.) The Celestine
court explained, "Far more is required to constitute 'the functional
equivalent of questioning' than merely advising a person he is under arrest for
a specific offense." (Celestine,
supra, at p. 1374 [citing numerous cases in which courts concluded that a
defendant's statements had been spontaneously volunteered and were not the
product of an interrogation].)
C. Factual and procedural background
Prior to trial, the People filed a
motion in limine in which they requested that the court permit the People to
introduce in evidence statements that Peete made to Officer Vasquez near the
time of his arrest. At a hearing on the
motion, Peete requested that the court conduct a hearing pursuant to Evidence
Code section 402 to determine the admissibility of his statements to Officer
Vasquez.
title="">[6]
The court held an Evidence Code
section 402 hearing at which Officer Vasquez testified concerning the
circumstances of Peete's arrest.
stated that on February 23, 2010, he arrived at an apartment complex in San
Bernardino in response to a "shots fired" call. Officer Vasquez observed several people
leaving the complex in a white car.
Peete was standing on a staircase, yelling out an abbreviation for the
name of a gang and " 'Where you niggas at' "
with one hand, while holding his other hand near his waistband. At the time Officer Vasquez made these
observations, Peete had yet to see Officer Vasquez, who was under the staircase
on which Peete was standing. Officer
Vaqsquez called for back up.
While waiting for back up, Officer
Vasquez observed Peete twice enter and exit an apartment. After another officer arrived, Officer
Vasquez ran up the staircase. Peete, who
was at this point outside the apartment, saw Officer Vasquez and said, "
'The cops are here. The police are
here.' " Officer Vasquez ordered
Peete to stop, but Peete ran back into the apartment. Officer Vasquez knocked on the door. Approximately a minute to a minute and a half
later, Peete opened the door, placed himself face down on the ground and put
his hands behind his back. Officer
Vasquez handcuffed Peete and told him that he was being detained but that he
was not under arrest. Officer Vasquez
and his back up officer then "cleared the apartment" to make sure
that no one else was inside.
Officer Vasquez asked Peete if he
lived in the apartment and whether he was on parole. Peete responded that he did live in the
apartment and that he was on parole for selling cocaine. Officer Vasquez went back inside the
apartment to search it. After finding
men's clothing and shoes in the apartment, Officer Vasquez asked Peete if the
items belonged to him. Peete responded
in the affirmative. Officer Vasquez
continued his search. Inside a bedroom,
the officers found marijuana, an expended shell casing from a handgun, a
handgun, and a gun magazine. Officer
Vasquez told Peete that he was under arrest.
after Vasquez told Peete that he was under arrest, Peete "stated that . .
. the gun was not his. It belonged to
his friend." Officer Vasquez
explained that he did not ask Peete whether the gun was his, but rather, that
"[Peete] blurted it out."
On cross-examination, Officer
Vasquez acknowledged that after he had handcuffed Peete, but prior to arresting
him, Officer Vasquez told Peete, " 'The reason we're here is because were
getting shots called . . .
[¶] . . . [¶] . . . in this area, and
you're out here yelling."
did not state whether Peete responded to this comment. Officer Vasquez also clarified that Officer
Vasquez had not shown Peete the handgun that Officer Vasquez found in the
apartment prior to placing Peete under arrest.
On redirect, Officer Vasquez
explained that during his initial questioning of Peete, he was "trying to
determine who [Peete] was, if he actually lived [in the apartment]
. . . and just trying to figure
out . . . what's going on with this individual; because at
the time we have shots heard, but I don't have a crime to arrest him on at this
time."
At the conclusion of Officer's
Vasquez's testimony, the trial court heard argument from the prosecutor and
defense counsel concerning the admissibility of Peete's statements to Officer
Vasquez. During defense counsel's
argument, the court asked counsel to clarify which of Peete's statements he
sought to exclude. Defense counsel
replied that he sought to exclude Peete's statements, " 'The gun is not
mine. It's a friend's.' "
After further argument from
statements concerning the gun had been "spontaneous," the court ruled
that it would admit Peete's statements.
The court reasoned in part, "[T]he court can only rule on the testimony
that's before the court. Officer Vasquez
testified that there was no mention of the gun prior to the alleged statement
made by Mr. Peete. And, therefore, the
Court can only view that as a spontaneous statement." The court further stated, "Clearly there
was a detention from what was elicited from Officer Vasquez. However, I'm going to find that it was a
spontaneous statement, therefore, not in violation of Miranda."
D. Application
that after he told Peete that he was under arrest, Peete "blurted . . .
out" that "the gun was not his," and that "[i]t belonged to
his friend." As the Celestine court noted, in Innis,
the United States Supreme Court expressly excepted the words and actions of
police officers " 'normally
attendant to arrest and custody' " from the definition of
interrogation (Celestine, supra, 9
Cal.App.4th at p. 1374, quoting Innis,
supra, 446 U.S. at p. 301, italics added by Celestine.) Officer Vasquez's statement to Peete
that he was under arrest thus did not constitute interrogation under
Peete
contends that the questions that Officer Vasquez asked and the statements
Vasquez made to Peete prior to his arrest "created a situation,"
where Officer Vasquez's later arrest advisement became the functional equivalent
of questioning. Officer Vasquez
testified that he asked Peete a few brief investigatory questions prior to, and
while, he conducted a search of the apartment.
None of the questions was directed specifically at finding a firearm and
Officer Vasquez did not inform Peete that he was looking for a firearm. We reject Peete's speculation in his brief
that there were "likely other questions" asked, and that
"[n]otwithstanding Officer Vasquez's testimony, without doubt some sort of
'softening up' technique or prodding must have been employed in order for
[Peete] to make a spontaneous statement denying ownership of the
gun." Accordingly, we conclude that
Officer Vasquez did not "create a situation" such that his arrest
advisement constituted an interrogation.
(See Celestine, supra, 9
Cal.App.4th at pp. 1373-1374 [deputy's statement to defendant that "he
knew they were selling drugs and if he found rock cocaine and could determine
whose it was 'some people will be going to jail,' " did not convert arrest
advisement into interrogation].)
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] Unless
otherwise specified, all subsequent statutory references are to the Penal Code.
name="_ftn2" title="">[2] Miranda v.
Arizona (1966)
384 U.S. 436.
