P. v. Vand

 

 

 

 

 

 

 

 

Filed 6/21/13  P. v. Vand CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

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opinion has not been certified for publication or ordered published for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>

THIRD APPELLATE DISTRICT

(Placer)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   MATTHEW VAND,                           Defendant and Appellant.

C070055   (Super. Ct. No. 62-103042)

 

 

 

            Pursuant
to the Sex Offender Registration Act, defendant, a transient, must register
within five working days of coming into or residing in a new jurisdiction  (Pen. Code, § 290, subd. (b))href="#_ftn1" name="_ftnref1" title="">[1]
and update his registration within five working days if he establishes a
residence and is no longer a transient (§ 290.011, subd. (b)).  A jury found defendant guilty of failing to
register as a sex offender and failing to update sex offender registration and
the court sentenced defendant to 32 months in href="http://www.fearnotlaw.com/">state prison. 

            Defendant
appeals, contending that (1) law enforcement failed to advise him of his >Mirandahref="#_ftn2" name="_ftnref2" title="">[2]
rights, and therefore his statements to the arresting officer should have been
suppressed; (2) there was insufficient evidence to support a guilty verdict on
either count; and (3) application to his case of a prior version of section
4019, subdivision (f), concerning presentence custody conduct credits, rather
than the recently amended provision (in the Criminal Justice Realignment Act of
2011), violates equal protection.  We
find that the trial court appropriately denied the motion to suppress, the
verdict was supported by sufficient evidence, and applying prior section 4019,
subdivision (f) is constitutional. 
Additionally, we reviewed the sealed record of defendant’s >Pitchesshref="#_ftn3" name="_ftnref3" title="">[3]> motion, at defendant’s request, and
find the trial court did not err in refusing to disclose any information.  Therefore, we shall affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

            Defendant
had most recently registered in San Jose
on November 3, 2010.  On Sunday,
November 14, 2010, at approximately 10:15
p.m., a police officer saw defendant’s car parked outside of a home
in Roseville.  Defendant was not in the car at the time, and
the lights in the home were not on. 

            On
November 27, nearly two weeks later, the officer returned to the home in Roseville,
but did not see defendant or his car. 
The officer spoke briefly with L.F., who lived there with her fiancé
Sergio and their minor children—not about defendant, but to warn her about
recent burglaries in the area.  When the
officer returned to L.F.’s home later that day, defendant’s car was parked at
the house.  Approximately 15 minutes
after the officer arrived, defendant left the house in his car.  In his marked police car the officer followed
defendant approximately one-half mile into a Dollar Tree parking lot. 
After
defendant parked his car and was walking towards the buildings, the officer
called out to defendant, “Can I speak to you?” 
Defendant stopped, and the officer stated, “I need to talk to you about
a couple of things.”  Defendant agreed
but requested that they talk in private, so they went to the alcove of an empty
business.  After doing a pat-down search,
the officer advised defendant that he was not under arrest and twice began to
read him his Miranda rights.  Defendant stopped the officer, and never
heard his full Miranda rights
“because he knew he wasn’t under arrest.” 


            The
officer asked defendant what he was doing in Roseville; defendant said that he
was a transient in San Jose and that he had been staying at his friend Sergio’s
house in Roseville about four nights each week since March 2010 and had
accepted a job in Roseville.  Defendant
initially said that while he refreshes at Sergio’s house, he mostly stays in
his car; however, when the officer told defendant that he had “checked on his
vehicle a couple of times in the middle of the night, and [defendant] wasn’t
there,” defendant then said he never went to sleep at night.  Defendant also stated that he was last in San
Jose approximately two weeks before; since then, he had been in Roseville.  The officer then arrested defendant for
failure to register under section 290. 
Incident to arrest, the officer searched defendant’s cell phone and
found text messages indicating that defendant “was staying . . . with
Sergio and [L.F.], and also he was watching the two children [who] were
there.”  Two other officers, one with a
K-9 officer, arrived at the Dollar Tree parking lot to provide assistance if
needed. 

            Defendant
was charged with failure to register as a sex offender and failure to update
registration.  Defendant made a >Pitchess motion and a href="http://www.fearnotlaw.com/">motion to suppress evidence based on >Miranda, supra, 384 U.S. 436 [16 L.Ed.2d 694].  The trial court found no admissible evidence
during its in camera document review for the Pitchess motion and denied the motion to suppress. 

            During a
jury trial, the prosecution offered testimony of the arresting officer and
L.F., and several text messages found on defendant’s cell phone.  L.F. testified that defendant had been
staying at her house three or four days each week since April or May, and that
she had cleared part of a bedroom so that he could have a private place to
stay. 

            The jury
found defendant guilty of both counts. 
The court denied defendant’s motion to strike a prior serious felony (a
1993 robbery).  (People v. Superior Court (Romero)
(1996) 13 Cal.4th 497.)  The court
then sentenced defendant to the low term of 16 months for each count, doubled
the term based on the prior strike, and stayed the sentence as to count two
under section 654.  

DISCUSSION

I.  Defendant Was
Not Subject to Custodial Interrogation

            Defendant
argues that law enforcement failed to advise him of his Miranda rights while he was subject to custodial interrogation,
thereby violating his constitutional right to remain silent.  We disagree.

            “On
review of a trial court’s decision on a Miranda
issue, we accept the trial court’s determination of disputed facts if
supported by substantial evidence, but we independently decide whether the
challenged statements were obtained in violation of Miranda.”  (>People v. Davis (2009) 46 Cal.4th
539, 586.)  A defendant subject to
custodial interrogation “must be warned prior to any questioning that he has
the right to remain silent [and] that anything he says can be used against him
in a court of law.”  (>Miranda, supra, 384 U.S. at p. 479 [16 L.Ed.2d at
p. 726].)  Custodial interrogation
is “questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant
way.”  (Id. at p. 444 [16 L.Ed.2d at p. 706].)  Absent a formal arrest, a defendant is
subject to custodial interrogation if he “ â€˜ â€œis physically deprived
of his freedom of action in any way or is led to believe, as a reasonable
person, that he is so deprived.” â€™ â€ 
(People v. Forster (1994)
29 Cal.App.4th 1746, 1753.) 

            Determining
whether custody occurred is a fact-specific inquiry based on the totality of
the circumstances.  (Forster, supra,
29 Cal.App.4th at
p. 1754.)  Several factors are useful
in this inquiry:  “(1) whether 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.”  (Id. at
p. 1753.)  Other factors “are [(6)]
whether the suspect agreed to the interview and was informed he or she could
terminate the questioning, [(7)] whether police informed the person he or she
was considered a witness or suspect, [(8)] whether there were restrictions on
the suspect’s freedom of movement during the interview, and [(9)] whether
police officers dominated and controlled the interrogation or were ‘aggressive,
confrontational, and/or accusatory,’ whether they pressured the suspect, and
[(10)] whether the suspect was arrested at the conclusion of the
interview.”  (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404 (>Pilster).) 

            Here,
defendant concedes there was no formal arrest during the questioning, but
argues “a reasonable person would not have felt free to leave,” and he “was
arrested at the conclusion of the interview.” 
(Pilster, supra, 138 Cal.App.4th at p. 1404.)  Furthermore, the ratio of officers to suspect
was three to one.  However, “it is the
totality of circumstances that is relevant; ‘no one factor is
dispositive.’ â€  (>Forster, supra, 29 Cal.App.4th at
p. 1754.)  The other factors do not
support a custody determination.  For
example, the length of detention was brief, it occurred in a public place,
defendant agreed to speak with the officer, and defendant’s movement was not
restrained.  Defendant contends that
“[t]he officer had [him] both literally and figuratively backed into a
corner.”  While defendant’s back was to
the corner of the alcove in which the two were standing, this is because
defendant requested they go to a private place to talk; indeed, this request >from defendant, a request the officer
granted, shows a certain control over the situation by defendant that is
indicative of a noncustodial interaction. 
While the officer never told defendant that he was “free to go,” the
officer advised defendant that he was not under arrest, defendant knew he was
not under arrest, and there was nothing to stop defendant from walking to his
car in the parking lot and driving away. 


            While
there were three uniformed officers on scene, this three-to-one ratio is
insufficient, in and of itself, to support a finding of custodial
interrogation.  (See, e.g., >People v. Breault (1990)
223 Cal.App.3d 125, 135 [finding no Miranda
violation when two officers questioned the defendant]; People v. Bejasa (2012) 205 Cal.App.4th 26, 36, 38-39 [two
officers questioning the defendant supported a finding of no >Miranda violation; however, >seven officers at the scene supported
the ultimate finding of custodial interrogation].)  In terms of proximity, only the arresting
officer was close to defendant (approximately three to five feet from
defendant); the second was standing 10 to 12 feet away, and the third was 30 to
40 yards away with his K-9 officer. 
Furthermore, it is unclear whether this third officer even got out of
his vehicle or whether defendant saw him. 
The officers never drew weapons, nor did they have their emergency
lights on. 

            Defendant
emphasizes that the arresting officer began to “Mirandize” him twice because he
“ â€˜was in the corner and [the officer was] in uniform.’ â€  Both times, however, defendant stopped him
and never heard his full Miranda rights
“because he knew he wasn’t under arrest.” 
The officer’s subjective belief that he should inform defendant of his >Miranda rights has no bearing on the
objective inquiry of whether “a reasonable person [would] interpret the
restraints used by the police as tantamount to a formal arrest.”  (Pilster,
supra, 138 Cal.App.4th at
p. 1403; see Stansbury v. California
(1994) 511 U.S. 318, 323 [128 L.Ed.2d 293, 298] [“the initial
determination of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the interrogating
officers or the person being questioned”].) 


            Under
this totality of the circumstances inquiry, we find that defendant was not
subject to custodial interrogation;
therefore, no Miranda violation
occurred and the trial court correctly admitted defendant’s statements. 

II.  There Was
Sufficient Evidence to Support the Jury’s Guilty Verdict

            Defendant
argues there was insufficient evidence (1) that he “had established a residence
in Roseville at any time” and (2) that “five business days during which
[defendant] failed to register had passed.” 
We disagree.

            As to the
two charges against defendant, the prosecutor was required to prove beyond a
reasonable doubt that defendant failed to register within five working days of
“coming into, or changing his . . . residence” to Roseville  (§ 290, subd. (b)) and that defendant
had been a transient but moved to a residence in Roseville and failed to update
his registration within five working days (§ 290.011, subd. (b)).  “ â€˜[T]ransient’ means a person who has
no residence.  ‘Residence’ means one or
more addresses at which a person regularly resides, regardless of the number of
days or nights spent there.”  (§ 290.011,
subd. (g).) 

            In
reviewing this evidentiary sufficiency issue, we must determine whether, after
viewing all of the evidence in the light most favorable to the judgment, there
is substantial evidence to support the trier of fact’s findings.  (People v. Johnson (1980)
26 Cal.3d 557, 562.)  Substantial
evidence is that “which is reasonable, credible, and of solid value.”  (Id. at
p. 578.)  Furthermore, if “the
circumstances reasonably justify the jury’s findings, the reviewing court may
not reverse the judgment merely because it believes that the circumstances
might also support a contrary finding.” 
(People v. Ceja (1993)
4 Cal.4th 1134, 1139.) 

            Neither
party disputes that defendant is a registrant under the Sex Offender
Registration Act, nor that his most recent registration before the offenses was
as a transient in a different jurisdiction (San Jose).  Therefore, the only disputed elements for
both offenses in this evidentiary sufficiency issue are (1) residence and (2)
the passage of five working days. 

            As to
residence, defendant contends that residence was not established because “[h]e
had no ties to Roseville other than through a friend with whom he, and others,
would occasionally stay.  He never made
any attempt to register there, did not have a parole agent there, had not grown
up there, and had no family there.”  However,
these facts miss the mark of “residence” as defined in the Sex Offender
Registration Act:  Residence is “one or
more addresses at which a person regularly resides, regardless of the number of
days or nights spent there.” 
(§ 290.011, subd. (g).)  Defendant
had been staying at the home in Roseville four nights each week since March
2010; L.F. had cleared part of a bedroom so that defendant and visitors could
have a private place to stay; his unoccupied car was parked at the home on
November 14, 2010, at 10:15 p.m. when the lights in the home were off;
defendant and his car were again at the home on November 27; he had accepted a
job in Roseville; and he had last been in San Jose two weeks before.  Additionally, text messages were introduced
into evidence indicating that defendant “was staying at the address with Sergio
and [L.F.], and also [defendant] was watching the two children [who] were
there.”  This constitutes substantial
evidence that defendant “regularly resides” at the home in Roseville. 

            As to the
passage of five working days, defendant emphasizes the arresting officer had
“absolutely no idea how often [defendant] was present in Roseville between
[November] 14th and the 27th.”  While
this is true, defendant’s focus is misplaced. 
The inquiry is not whether defendant was present in Roseville for five working days, but whether five
working days had passed since defendant established
a residence in Roseville. 
(§§ 290, subd. (b), 290.011, subd. (b).)  The Roseville home is an “address[] at which
[defendant] regularly reside[d]” 
(§ 290.011, subd. (g)) since March. 
An abundance of working days had passed between March 2010 (when
defendant began regularly residing at the Roseville home) and November 2010
(when defendant was charged with the offenses). 
Therefore, there is substantial evidence that five working days had
passed since defendant established a residence in Roseville.

            Based on
a review of the entire record in the light most favorable to the judgment,
there is sufficient evidence for the jury to have found defendant guilty of
failure to register and failure to update his registration. 

III.  >Pitchess Motion

            Defendant
requests that we review the sealed record of his Pitchess motion concerning any discoverable information regarding
duty improprieties in the investigating officer’s personnel file.  We have reviewed the sealed record and find
the trial court followed the appropriate procedures and did not abuse its
discretion in concluding there was nothing discoverable therein.  (See People
v. Mooc (2001) 26 Cal.4th 1216, 1220, 1228–1229 [describing the
required procedures for the trial court to follow for a Pitchess motion].) 

IV.  Presentence
Custody Conduct Credits

            Finally,
defendant contends that, based on equal protection, a recent amendment to
section 4019, subdivision (f), governing the accrual of presentence custody
conduct credits, must be applied to him, even though he committed his offense
before the effective date—October 1, 2011—of this explicitly prospective
amendment.  We disagree. 

            As part
of the Criminal Justice Realignment Act of 2011, the Legislature increased the
rate at which inmates accrue presentence custody conduct credits.  (Stats. 2011, ch. 15, § 482, pp.
442-443.)  The Legislature specified that
this more generous rate applies only to inmates who committed offenses >on or after October 1, 2011.  (Stats. 2011, ch. 39, § 53, pp.
239-240.)  Inmates who committed offenses
before October 1, 2011, accrue
credits at the previous, less-generous rate. 
(§ 4019, subd. (h).) 
Defendant correctly points out that “[d]efendants [like him] whose
offenses are prior to October 1, 2011, [are eligible to] receive fewer
presentence conduct credits than those defendants whose offenses were committed
on or after October 1, 2011, notwithstanding that the length of presentence
custody from October 1, 2011, may be identical.”  However, it does not follow that this
distinction violates his right to equal protection. 

            An equal
protection violation occurs when (1) “the state has adopted a classification
[in law] that affects two or more similarly situated groups in an unequal
manner” (In re Eric J. (1979)
25 Cal.3d 522, 530, italics omitted) and (2) the classification fails to
satisfy the requisite level of scrutiny (see FCC v. Beach Communications (1993) 508 U.S. 307, 313
[124 L.Ed.2d 211, 221]; People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 53 (Rajanayagam)).  As section
4019 regarding presentence custody credits is “a statutory classification that
neither proceeds along suspect lines nor infringes fundamental constitutional
rights,” rational basis is the appropriate standard of review.  (FCC v.
Beach Communications, supra,
508 U.S. at p. 313 [124 L.Ed.2d at p. 221]; >People v. Wilkinson (2004)
33 Cal.4th 821, 837-838; People v.
Kennedy (2012) 209 Cal.App.4th 385, 397; People v. Ward (2008) 167 Cal.App.4th 252, 258 [rational basis
review applies to equal protection challenges based on sentencing disparities
(such as the one in the present case); if strict scrutiny were applied in these
contexts, the judiciary would impermissibly intrude into the legislative domain
of setting criminal law policy].)  As
such, “a legislative classification must be upheld ‘if there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification.’ â€  (>FCC v. Beach Communications, at
p. 323, fn. 3 [124 L.Ed.2d at p. 227, fn. 3].) 

            Here, the
two groups affected by the current version of section 4019 are (1) defendants
in custody on or after October 1, 2011, who committed an offense >before October 1, 2011, and (2)
defendants in custody on or after October 1, 2011, who committed an offense >on or after October 1, 2011.  In dicta, our Supreme Court has stated that
these groups are not similarly situated (People
v. Brown (2012) 54 Cal.4th 314, 328-330), and the Fifth and Sixth
Appellate Districts have agreed (People
v. Ellis (2012) 207 Cal.App.4th 1546, 1552; People v. Kennedy, supra,> 209 Cal.App.4th at
p. 397).  However, the Second
Appellate District, Division One, and the Fourth Appellate District, Division
Three, have not been persuaded by the Supreme Court’s dicta, and have found
these two groups similarly situated.  (>People v. Verba (2012)
210 Cal.App.4th 991, 995-996 (Verba);
Rajanayagam, supra, 211 Cal.App.4th at pp. 53-54.) 

            Assuming
arguendo that the groups are similarly situated, there is still no equal
protection violation because the statute is supported by a rational basis.  “[T]he Fourteenth Amendment does not forbid
statutes and statutory changes to have a beginning and thus to discriminate
between the rights of an earlier and later time.”  (Sperry
& Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505 [55 L.Ed.
561, 563].)  “[T]he practical necessity
that a statutory change have a beginning provides a rational basis for classifications
that fall on either side of the statute’s effective date.”  (Verba,
supra, 210 Cal.App.4th at
p. 996.)  The effective date of
October 1, 2011, is a practical necessity, and therefore constitutes a rational
basis.  Similarly, “ â€˜[r]equiring the
Legislature to apply retroactively any change in the law benefitting criminal
defendants imposes unnecessary additional burdens on the already difficult task
of fashioning a criminal justice system that protects the public and
rehabilitates criminals.’ â€  (>Id. at p. 997.)  Moreover, holding defendants accountable to
the laws in force at the time they committed their offenses is an important
state interest; failure to do so “weakens the deterrent effect of the law as it
stood when the inmate committed the crime.” 
(Ibid.) 

            For these
reasons, applying prior section 4019 to those defendants who committed their
offenses before October 1, 2011, is supported by a rational basis.  Application of the less-generous accrual rate
of presentencing custody conduct credits, in effect when defendant committed
his offenses in November 2010, does not violate his right to equal protection.

DISPOSITION

            The
judgment is affirmed.

 

 

                                                                                                        BUTZ                              , J.

 

 

 

We concur:

 

 

 

                    RAYE                             , P. J.

 

 

 

                    DUARTE                        , J.