P. v. Torres

Filed 7/17/06 P. v. Torres CA4/1

Received for filing 8/22/06

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed as modified.

A jury convicted Juan E. Torres of felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 1) and the misdemeanor offenses of possessing paraphernalia used for narcotics (Health & Saf. Code, § 11364; count 2) and falsely identifying himself to a peace officer (Pen. Code,^[1] § 148.9, subd. (a); count 3).

Torres subsequently admitted he had previously been convicted of three "no-probation" priors (§ 1203, subd. (e)), had served three prior prison terms (§ 667.5, subd. (b)), and had suffered a prior felony conviction under the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12). The trial court sentenced Torres to a total prison term of six years, consisting of four years for count 1 (the midterm of two years doubled under the Three Strikes law) and two consecutive one-year terms for the first and second prior prison terms.^[2]

Torres appeals, contending the trial court erred in admitting his postarrest statement obtained in violation of Miranda v. Arizona (l966) 384 U.S. 436 (Miranda), and in instructing the jury with the 1995 version of CALJIC No. 2.90 regarding the concept of "reasonable doubt." We affirm as modified.

FACTUAL BACKGROUND

At about 4:00 p.m. on January 10, 2005, San Diego County Deputy Sheriff Wallace Henderson was dispatched to a 7-Eleven convenience store in Fallbrook to check on an intoxicated male who had dialed 911 from the pay phone in front of the store. When Henderson arrived at the store in his marked patrol car, he saw the man standing near the pay phone and pulled into a parking spot nearby next to a parked yellow Dodge pickup truck. As Henderson got out of his car, he saw a man in the passenger seat of the truck holding a glass methamphetamine (meth) pipe against his lips with one hand while holding a lit butane lighter underneath the bowl of the pipe with his other hand. Henderson immediately opened the passenger door of the truck and told the man to place the pipe on the floorboard and then his hands behind his head. After hesitating a few seconds, the man, whose muscles were tense and his eyes moving from left to right, complied with Henderson's command.

While waiting for a cover unit, Henderson asked the man in the truck his name and whether he had any photo identification with him. The man, who had no photo identification, said his name was "Jorge Campos" and gave his date of birth as July 5, 1965. When the cover unit arrived, Henderson got the man out of the truck, handcuffed him and searched his person for drugs. In the man's left breast pocket of his shirt, Henderson found a plastic baggie of what appeared to be meth.

Henderson then contacted the man near the pay phone, who said his name was Ignacio Mendez and that he was the owner of the truck. Mendez claimed he did not know the name of the passenger in his truck, he was just giving him a ride. Henderson ran a records check and discovered Mendez had an outstanding felony warrant. He then arrested Mendez and seated him in the back of his patrol car with the man who had been a passenger in the truck.

While en route to the sheriff's station with the two men who were talking to each other in Spanish, Henderson was informed that Mendez's warrant could not be confirmed. In response, Henderson drove Mendez back to his truck and released him. As he was doing so, Mendez asked, "What if I was to tell you that the jacket that [the passenger] was wearing is mine?" Henderson told him it would not matter because the man was "in direct possession" of the meth and meth pipe. Henderson told Mendez he could also "take a hit" on the meth if he wanted, but that the other man would still go to jail. Mendez was not arrested.

When Henderson arrived at the sheriff's station with the truck's passenger, the man's personal property was taken from his possession and he was placed in a holding cell. Henderson then started filling out the booking form for the man, originally listing him as "Jorge Campos." When Henderson found a California birth certificate for a "Juan Enrique Torres" in the man's property, he took it back to the cell, showed it to the man, and asked if that was his name. The man responded, "Yes." Henderson then performed a presumptive test on the substance found in the baggie, which weighed .2 grams, and it tested positive for meth.

Torres was subsequently charged with the offenses in this case. The above evidence was presented at trial. In addition, Henderson also testified that based on his expertise and experience the glass pipe in Torres's possession at the time of his arrest was a type used for smoking meth, and that the residue found inside the pipe was consistent with meth residue. Henderson opined the amount of meth found in Torres's possession was a usable amount. A criminalist for the San Diego County Sheriff's crime lab testified she had analyzed the substance in the baggie and the residue inside the glass pipe and both tested positive for meth.

The defense rested without presenting any evidence.

DISCUSSION

I

ALLEGED MIRANDA VIOLATION

In limine, Torres's counsel made a motion under Miranda, supra, 384 U.S. 436, regarding Torres's response of "yes" to Henderson's question whether the name on the birth certificate found in his possession was his name. Counsel argued that because Torres had already given the deputy sheriff a name at the time of his arrest, he was in custody when he was interrogated about the birth certificate without having first been given his rights under Miranda. When Torres was then advised of his rights after responding affirmatively to the custodial interrogation, he invoked. Counsel, therefore, asked that the statement be suppressed as violative of Torres's Sixth Amendment rights under Miranda. The prosecutor was unsure whether the deputy had asked a question or had just shown the birth certificate to Torres, but nevertheless thought the information asked for was properly sought under the booking exception to Miranda.

The trial judge tentatively agreed with Torres's counsel that Torres was in custody and that "if any conference occur[ed] vis-à-vis his actual name and Miranda, it's a Sixth Amendment violation. If [the deputy] did nothing but take [the birth certificate] out and hold it up --and I don't necessarily [believe] it -- I'm willing to do [an Evidence Code section] 402 [hearing] then as [to the] interrogation, but we need to know that."

When the court later returned to the issue, it opined the legal question boiled down to whether a statement obtained for booking information could be used "in contravention of the Sixth Amendment issue." The prosecutor, conceding the custodial situation, thought the real issue was whether it was an interrogation with the question being "posed for the purpose of eliciting an incriminating response." The prosecutor submitted that under Pennsylvania v. Muniz (1990) 496 U.S. 582 (Muniz), there was a "booking question exception to the . . . Miranda question to secure biographical data necessary to complete a booking and/or a pretrial process." The prosecutor had spoken to Henderson regarding the sequence of events and represented that Torres was still in the process of booking when Henderson found the birth certificate while inventorying Torres's property. Henderson then showed the document to Torres and asked, "Is this you?" The prosecutor argued the question was only to obtain Torres's correct identity and not a question about whether Torres had lied to Henderson about such identity or Henderson investigating a crime involving Torres falsely identifying himself to an officer at that time.

Torres's counsel agreed with the underlying facts, but thought the question about the birth certificate was "in violation of Miranda, the Sixth Amendment and due process." After a break to read Muniz, supra, 496 U.S. 582, particularly pages 599 through 602, the court heard argument from counsel as to whether Muniz was dispositive of the issue. In ruling Torres's response to Henderson's question about the birth certificate was admissible and did not violate Miranda, the court extensively reviewed the reasoning in Muniz concerning the "routine booking question exception which exempts from Miranda's coverage questions to secure the biographical data necessary to complete booking or pretrial services." The court also found significant that in People v. Herbst (1986) 186 Cal.App.3d 793, booking information obtained after a custodial interrogation where the defendant had invoked Miranda was found to be admissible. The trial judge specifically stated,

"In light of the facts before the court at the time, it appears to the court at the time that Deputy Henderson was making the inquiry, he was in the booking or pre-booking process, . . . found a document, the information on which was different to that provided to him at the scene and as part of that booking process was clarified. [¶] So I'm going to rule admissible the defendant's verbal response to Deputy Henderson's question 'is this you,' referring to the birth certificate. [¶] Once he has that information that there are two different names, any further questioning about the name would then be custodial interrogation, because to me that's when it first becomes apparent now that a crime could have occurred, not prior."

Relying on Rhode Island v. Innis (1980) 446 U.S. 291 (Innis), Torres contends on appeal that the trial court erred in ruling his response to Henderson's question about the birth certificate was admissible because Henderson should have known a crime "could have occurred" at the time he found that document with information conflicting with what Torres had earlier stated. We disagree. Having independently reviewed the undisputed underlying facts presented below for the motion in light of the controlling law (People v. Ochoa (1998) 19 Cal.4th 353, 401-402), we conclude the trial court properly ruled the response to Henderson's question admissible under the booking exception to Miranda. (Muniz, supra, 496 U.S. at pp. 600-602; id. at pp. 606-607 (conc. & dis. opn. of Rehnquist, C.J.).)

As the trial court correctly noted, Muniz holds that questions during the booking process of a person who has been arrested which elicit the name, address, height, weight, eye color, date of birth and current age of the person fall within the "routine booking question" exception to the requirement for Miranda warnings and waivers. (Muniz, supra, 496 U.S. at pp. 600-602; id. at pp. 606-607 (conc. & dis. opn. of Rehnquist, C.J.).) In other words, such "biographical data" derived from un-Mirandized routine booking queries is admissible evidence even if incriminating. (Muniz, supra, 496 U.S. at pp. 600-602; id. at pp. 606-607 (conc. & dis. opn. of Rehnquist, C.J.); People v. Hall (1988) 199 Cal.App.3d 914, 921.) The holding in Innis, supra, 446 U.S. 291, upon which Torres relies was considered by the court in Muniz and found to be inapplicable to situations where the information sought was required for recordkeeping purposes and reasonably related to police administrative concerns. (Muniz, supra, 496 U.S. at pp. 601-602.) The court in Muniz, however, noted that the "booking exception" would not apply where there was proof the question was "designed to elicit incriminating admissions." (Id. at p. 602, fn. 14.) The record here contains no such proof. Therefore, we conclude the trial court properly ruled Torres's response to Henderson's question if "that was his name" while showing Torres a birth certificate during the booking process was admissible and did not violate Miranda, the Sixth Amendment or due process.

II

CALJIC NO. 2.90

During jury instruction discussions, the court denied Torres's counsel's request to give one of two proposed instructions regarding reasonable doubt instead of the 1995 version of CALJIC No. 2.90. On appeal, Torres claims the giving of such standard instruction was error because its language concerning "reasonable doubt" violates a criminal defendant's federal and state rights to due process by reducing the prosecution's required burden of proof.^[3] In doing so, he acknowledges that the California Supreme Court has already rejected his argument. (People v. Brown (2004) 33 Cal.4th 382, 390-392.) Nonetheless, he asks this court to revisit the issue and determine that the term "abiding conviction," without more, is insufficient to convey the degree of certainty required for proof beyond a reasonable doubt. We decline to do so and follow the California Supreme Court precedent in Brown as we are required. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The sentence is modified to strike the third prison prior. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and send a certified copy thereof to the Department of Corrections.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] The court minutes show the court imposed a sentence of 175 days with credit for time served for the counts 2 and 3 misdemeanor offenses.

In an act of leniency, the court also imposed one year for the third prison prior concurrently to the other terms. As the People correctly point out in their respondent's brief, such is an unauthorized sentence because the one-year enhancement term of section 667.5, subdivision (b) must either be imposed or stricken, and, if imposed, must be imposed consecutively. (People v. Campbell (1999) 76 Cal.App.4th 305, 311; People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1552-1553.) However, because the record clearly shows the court would have exercised its discretion to strike the third prison prior enhancement in the interests of justice, we need not remand for resentencing. We, therefore, correct the unauthorized sentence by modifying the judgment to strike the third prison prior enhancement and direct the trial court to amend the abstract of judgment accordingly. (§ 1260.)

^[3] CALJIC No. 2.90 as given in this case stated: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."