P. v. Posadas

Filed 10/20/08 P. v. Posadas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.

Geoff Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

Defendant Gerard Mangubat Posadas was convicted of robbery, possession of a firearm and ammunition, and assault with a semiautomatic firearm. Defendant appeals from the judgment, arguing his statements made during a police interview should have been suppressed.

We conclude defendant was not in custody while he was being questioned by the police, and the standard warnings under Miranda v.Arizona (1966) 384 U.S. 436 (Miranda) were therefore not necessary. The Miranda warnings given to defendant after he was arrested apprised him of the nature of his rights and the consequences of abandoning them, making his further statements admissible as well. We therefore affirm.

Statement of Facts and Procedural History

A. Prosecution Case

On April 9, 2005, James Ricketts attended a party at a private residence in Yorba Linda. At some point, while Ricketts was in the bathroom, two men burst in; Ricketts identified one of those men as defendant. The men pulled out semiautomatic handguns and demanded that Ricketts give them money. Ricketts argued with the two men and refused to give them any money. Defendant cocked his gun and ejected a live round to prove the guns were real. When Ricketts continued to refuse the demands for money, defendant struck Ricketts in the face with his gun. Ricketts then gave defendant all the money in his wallet, approximately $28.

Scott Richards observed the robbery through the bathroom window while he was in the front yard of the house. Richards recognized defendant as a former schoolmate, and saw him yelling at Ricketts. Another person whom Richards did not recognize was also in the bathroom with Ricketts and defendant. Richards observed and heard Ricketts refuse defendants demands for his wallet, and then witnessed defendant pull out a gun and strike Ricketts with it. Richards saw Ricketts give defendant cash from his wallet. Richards did not see a firearm in the possession of the other person in the bathroom. After the incident, defendant told Richards to take Ricketts away from the party.

Robert Harding, an acquaintance of Ricketts, was in the front yard area of the house, and heard the confrontation between Ricketts and defendant and another person through the open bathroom window. Harding went inside the house and opened the bathroom door. He did not see any firearms. Defendant and the other man confronting Ricketts told Harding to leave. Harding returned to the front yard, and could hear loud voices from the bathroom; he did not hear any demands for money and did not hear anyone mention a firearm.

Ricketts, Richards, and Harding all identified defendant from a photographic lineup.

B. Defense Case

Brian Salemi, a friend of defendant, testified he was at the party the night of the incident. Salemi was with defendant in the living room when they heard loud voices coming from the bathroom. Defendant and Salemi observed a fight taking place in the bathroom between three or four people. Defendant never entered the bathroom. The man being confronted by the others worked his way out of the bathroom, and defendant and others escorted him out of the house and told him to leave. Salemi did not see anyone strike or hit the man. Salemi did not see defendant in possession of a gun at any point that evening.

A defense investigator testified Richards could not have seen what he testified he saw inside the bathroom from outside the house.

C. Police Interview[1]

At the request of Sergeant William Smyser, the police officer investigating the incident, defendants parole agent, Agent Nelson, called defendant and gave him a directive to come to the parole office. About 2:30 in the afternoon on April 27, 2005, defendant arrived at the parole agents office in Anaheim. Nelson met defendant in the lobby, and escorted him through a secure area to his office. Smyser and Brea Police Officer Debra Stark were waiting in Nelsons office; Nelson left defendant with Smyser and Stark.

Smyser told defendant he was investigating an incident at a party in Yorba Linda, defendant was not under arrest, he did not have to answer any questions or make any statements, and he was free to leave at any time, subject to Nelsons permission. Smyser did not raise his voice, did not promise leniency, made no threats, and did not use any coercion.

Defendant told Smyser a group of people were fighting in the front yard when he arrived, sometime between midnight and 1:00 a.m. Defendant denied having any weapons at the party. When Smyser told defendant several people at the party had told him that defendant fronted somebody off in the bathroom, defendant denied it, and said he had heard from his friends a story was circulating that he punched or hit someone with brass knuckles in the bathroom at the party, but it was not true.

Smyser then arrested defendant and handcuffed him. After some conversation regarding defendants personal items, defendant asked, can I talk to the detective real quick? He told Smyser, I personally (Inaudible). I was there. Smyser responded, [a]nd I believe you were there. And thats part of it. Thats the whole thing. Youre there, yet you didnt offer that right up in the beginning. Why didnt you offer that up? Defendant then told Smyser he knew who had committed the crime, and he could take the detectives to the place where the gun was hidden. Defendant also said someone named Arash had been the person with a firearm at the party. Smyser then gave defendant his warnings under Miranda, supra, 384 U.S. 436, and asked, [h]aving those [warnings] in mind, do you still want to talk to me real quick? Do you still want to tell me what you just told me?

Defendant confirmed Arash Manzandarani was the person who had brandished a gun in the bathroom during the party; defendant stated he stood at the bathroom door and kept people out. Later in the interview, defendant told the officers another man named Spec was also there with Arash. Defendant said Arash had a revolver, not a semiautomatic firearm.

D. Procedural History

Defendant was charged in a first amended information with first degree robbery (Pen. Code,  211, 212.5, subd. (a)), two counts of possession of a firearm by a felon (id.,  12021, subd. (a)(1)), possession of ammunition by a prohibited person (id.,  12316, subd. (b)(1), 12021, 12021.1; Welf. & Inst. Code,  8100, 8103), and assault with a semiautomatic firearm (Pen. Code,  245, subd. (b)). The information alleged defendant personally used a firearm in violation of Penal Code sections 12022.53, subdivision (b) and 12022.5, subdivision (a), and further alleged defendant was previously convicted of a felony for which he served a separate prison term of one year or more, within the meaning of section 667.5, subdivision (b). Before trial, defendant pleaded guilty to one count of possession of a firearm by a felon.

A jury convicted defendant of the four remaining counts, and found true the enhancements for personal use of a firearm. Defendant waived a jury trial on the prior conviction allegation, and ultimately admitted that allegation.

The trial court sentenced defendant to 14 years in state prison: the four‑year midterm for the robbery, plus a 10‑year term for the personal use of a firearm enhancement, plus a concurrent 16‑month term for the possession of a firearm by a felon charge to which defendant had pleaded guilty. The trial court stayed the sentences on the remaining counts, and dismissed the prior prison term enhancement. Defendant timely appealed.

Discussion

Before trial, defendant challenged the admissibility of the statements he made during questioning by the police at his parole agents office. The court heard the testimony of Smyser, listened to a recording of the interview, and read the transcript of that recording. The trial court found defendants statements before his arrest were noncustodial, and therefore admissible. The court further found that defendants statements made in the short interval between his arrest and the giving of the Miranda warnings were not in response to any interrogation by the police, and therefore were also admissible.

Miranda warnings are required only where there has been such a restriction on a persons freedom as to render him in custody. (Oregon v. Mathiason (1977) 429 U.S. 492, 495, italics added; see People v. Ochoa (1998) 19 Cal.4th 353, 401 [Absent custodial interrogation, Miranda simply does not come into play].) An interrogation is custodial when a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Citation.] Whether a person is in custody is an objective test; the pertinent inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Citation.] [] Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial courts determination that a defendant did not undergo custodial interrogation, an appellate court must apply a deferential substantial evidence standard [citation] to the trial courts factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, a reasonable person in [the] defendants position would have felt free to end the questioning and leave [citation]. (People v. Leonard (2007) 40 Cal.4th 1370, 1400, italics added; see People v. Ochoa, supra, 19 Cal.4th at p. 402 [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].)

In determining whether a defendant was in custody for purposes of Miranda, [t]he totality of the circumstances surrounding an incident must be considered as a whole. [Citation.] Although no one factor is controlling, the following circumstances should be considered: (1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.) Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspects freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were aggressive, confrontational, and/or accusatory, whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. (Id. at pp. 1403‑1404.)

Given the totality of the circumstances, we conclude there was not a restraint on defendants movement associated with a formal arrest. Accordingly, defendants statements were not the product of a custodial interrogation and were admissible. Defendant was initially advised by Smyser he was not required to answer any questions, and could leave at any time. Although defendant would have had to report back to his parole agent, rather than simply leave the building, the key is that he was advised he could leave the room in which he was being questioned. Although defendant had been escorted by his parole agent through a secured area to reach the office where the questioning took place, the location of the interview was not such that it made the questioning a custodial interrogation. Smyser did not raise his voice or threaten defendant during the questioning. Having reviewed the transcript of the hearing, we conclude the nature of the questioning was not unduly aggressive, confrontational, persistent, accusatory, or otherwise likely to be coercive. Defendant was interviewed for 10 to 15 minutes before being arrested.

Defendant relies heavily on United States v. Ollie (8th Cir. 2006) 442 F.3d 1135, in which the appellate court concluded the defendants statements made before he received his Miranda warnings were inadmissible because they were made during a custodial interrogation. Following a regular meeting with his parole officer, the defendant was ordered to talk to the police chief at the police station, a location which the appellate court concluded was an atmosphere [that] would have restrained a reasonable persons movements. (Id. at pp. 1138, 1139.) The parole officer testified the defendants refusal to meet with the police chief would have been a violation of his parole, and could have led to the revocation of his parole. (Id. at p. 1138.) Indeed, the appellate courts decision was ultimately determined by this fact: Above all else, we think that it is the parole officers order that [the defendant] meet with Chief McNeill that quite clearly tips the balance. Faced with such an order, we think that a reasonable person in [the defendant]s position would have been extremely reluctant either to refuse the interview or to terminate it once it began. (Id. at p. 1140.) This distinguishes United States v. Ollie from our case. Defendant here was not ordered to meet with Smyser and Stark. Instead, defendant was advised he did not have to answer any questions and was free to leave at any time.

Defendant next argues the Miranda warnings given after his arrest were insufficient to make his later statements admissible. He claims the timing of the Miranda warnings evidences a deliberate strategy on the part of Smyser to avoid the requirements of Miranda. Defendant relies on Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), in which the defendant was questioned in accord with a deliberate, intentional police strategy designed to circumvent Miranda. In Seibert, the defendants 12‑year‑old son Jonathan, who suffered from cerebral palsy, died in his sleep. (Seibert, supra, at p. 604.) The defendant was afraid of being charged with neglect, because there were bedsores on Jonathans body. (Ibid.) The defendant, her two teenage sons, and two of her sons friends incinerated Jonathans body while burning the familys mobilehome; Donald, a mentally ill teenager living with the family, was left in the home when the fire was set to avoid the appearance Jonathan had been left alone. (Ibid.)

Five days later, the police woke the defendant in the middle of the night at a hospital, where one of her sons was being treated for burns suffered while setting the fire. (Seibert, supra, 542 U.S. at p. 604.) The defendant was taken to the police station, left alone for 15 to 20 minutes, and then questioned for 30 to 40 minutes by a police officer who squeezed her arm and repeated, Donald was also to die in his sleep. (Id. at pp. 604‑605.) After the defendant admitted she knew Donald would die in the fire, the police officer gave her the Miranda warnings and obtained further statements from her. (Id. at p. 605.) At a hearing on the defendants motion to suppress, the officer who questioned the defendant admitted he made a conscious decision to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question until I get the answer that shes already provided once. . . . He acknowledged that [the defendant]s ultimate statement was largely a repeat of information . . . obtained prior to the warning. . . . (Id. at pp. 605‑606.)

This case does not present a situation involving a deliberate police strategy intended to undermine Miranda. Rather, this case is factually similar to Oregon v. Elstad (1985) 470 U.S. 298, 309, a case distinguished by Seibert, in which the court concluded: It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspects ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. (Italics added.)

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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[1] This portion of the statement of facts is drawn from testimony at the hearing on defendants motion to suppress.