P. v. Reed

Filed 11/2/07 P. v. Reed CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

Alister McAlister, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Terrell Jerome Reed of being a felon in possession of ammunition in violation of Penal Code^[1]section 12316, subdivision (b)(1). Reed admitted allegations that he had a prior strike conviction ( 667, subds. (b) (i) and 1170.12, subd. (c)(1)), and had served a prior prison term ( 667.5, subd. (b)). The court imposed a 32-month prison sentence (the 16-month mitigated term doubled under the three strikes law) and struck the one-year prior prison term enhancement under section 1385. On appeal, Reed contends (1) his statements to a police officer were elicited in violation of Miranda v. Arizona (1966) 384 U.S. 436and (2) the court abused its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, in refusing to dismiss his prior strike. We will affirm the judgment.

FACTS

In light of the issues raised, we present the pertinent facts with the specific issues.

DISCUSSION

1. There was no Miranda error

Evidence Code section 402, subdivision (b) hearing

On September 28, 2006, at about 8:40 p.m., Police Officer Nathaniel Roby was dispatched to a Fresno residence regarding a domestic disturbance. A woman there said Reed had threatened to shoot her. She described Reed and the car he had left in. Officer Roby saw the car within a minute of leaving the residence and stopped it. Reed was driving with a male passenger. Officer Roby asked Reed his name, explained why he had been stopped, and, within a minute or two, asked to search the car to make sure Reed did not have any weapons. Reed consented and Officer Roby told him and the passenger to sit on the curb during the search. On cross-examination, Officer Roby testified, he [was not] free to go if [that is] what you are asking. Officer Roby found a box of .380-caliber ammunition on the drivers side floorboard. To determine if a crime had been committed, Officer Roby asked Reed if the ammunition was his. Reed said it was not his; he had bought it for a friend and produced a receipt from his pocket. Officer Roby asked Reed if he had been convicted of a felony. Reed said he had and added that he had spent time in prison. Those questions came about 10 to 15 minutes into the detention and Officer Roby did not read Reed his Miranda rights. Officer Roby then arrested Reed.

In ruling Reeds answers to Officer Robys questions admissible, the trial court concluded the circumstances did not demonstrate that Reed was subject to custodial interrogation such that, absent Miranda warnings, his responses were inadmissible.

Later, at trial, Officer Roby testified that in response to his inquiries, Reed admitted that he had purchased the ammunition, although not for himself, and he had been convicted of a felony.

Reed contends the trial court erred in permitting the prosecution to use his un-Mirandized statements. Reed asserts that Officer Robys on the scene inquiries amounted to custodial interrogation for several reasons. First, this was not a traffic stop. Reed was detained in response to a womans report that he had threatened to shoot her. Second, even though the detention was courteous, because Officer Roby testified Reed was not free to leave during the car search, Reed was in custody within the meaning of Miranda. Third, Reeds situation was not analogous to cases in which a suspect voluntarily came to a police station for questioning because Reed was not free to leave during the car search. While we agree that Reeds situation was not analogous to a voluntary trip to the police station for questioning as in Oregon v. Mathiason (1977) 429 U.S. 492, 495, we disagree with his assertion that this constituted custodial interrogation requiring Miranda warnings.

(a) Standard of review

In considering a claim that statements are inadmissible because they were obtained in violation of a defendants rights under Miranda, we accept the trial courts findings of fact if they are substantially supported and we independently determine whether the challenged statements were illegally obtained. (People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033.)

(b) Custody versus detention

The protections of Miranda v. Arizona, supra,384 U.S. 436apply only when a suspect is subjected to custodial interrogation. Custodial interrogation is defined as 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. (Yarborough v. Alvarado (2004) 541 U.S. 652, 661.) Miranda warnings are not required when an officer conducts an investigatory temporary detention or Terry stop.^[2] An officer, who lacks probable cause but whose observations lead him reasonably to suspect that an individual has committed or is about to commit a crime, may detain that person briefly in order to investigate the circumstances that provoked the suspicion. [The] stop and inquiry must be reasonably related in scope to the justification for their initiation. Generally, the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officers suspicions. (Berkemer v. McCarty (1984) 468 U.S. 420, 439 [addressing routine traffic stops]; People v. Clair (1992) 2 Cal.4th 629, 675.)

For example, in People v. Clair, supra, 2 Cal.4th 629, several police officers were dispatched to an apartment to investigate a reported burglary. A rear kitchen window revealed signs of entry. An officer knocked, announced he was a police officer, and received no response. The officers were admitted into the apartment by the building manager. Defendant Clair was under the covers in a bed in the bedroom. One officer approached Clair with gun drawn and ordered him not to move. The officer asked who he was, Clair said, "Kenneth Marlson"; he asked whether he had identification, Clair said no; he asked if he lived there, Clair said no; he apparently asked what he was doing there, Clair said he had spent the previous night with a woman who lived in the apartment; he asked if he knew the woman, Clair said yes, naming Murline Owens, stating she was his girlfriend, and adding she had gone to work. The officer soon learned that Clair was not known to Owens. The officer then placed Clair under arrest for suspicion of residential burglary. (2 Cal.4th at pp. 648-649.)

On appeal, Clair argued the officer should have advised him of his Miranda rights before questioning him at the apartment. (People v. Clair, supra,2 Cal.4th at p. 678.) The Supreme Court disagreed, concluding that Miranda did not apply. The Miranda court itself declared that [g]eneral on-the-scene questioning as to facts surrounding a crime is not affected by [the Miranda]holding. [Citation.] The inquiry at the apartment was questioning of this sort. (Id. at p. 679.)

The court also upheld the trial courts decision that no custodial interrogation had occurred. First, while the term custody encompassed any situation in which a person has been deprived of his freedom of action in any significant way, it did not include a temporary detention for investigation. The officers action amounted only to a temporary detention for investigation. The officer did no more than was permitted, asking Clair who he was, whether he had identification, if he lived in the apartment, what he was doing there, and if he knew the resident or residents. That the officer approached Clair with gun drawn and ordered him not to move, was reasonable under the circumstances. These facts, considered singly or together, did not transform the situation into custody. (People v. Clair, supra, 2 Cal.4th at p. 679.) Second, there was no interrogation within the meaning of Miranda. Such interrogation does not extend to inquiries that are limited to the purpose of identifying a person found under suspicious circumstances or near the scene of a recent crime. (Id. at pp. 679-680.)

Similarly, in People v. Manis (1969) 268 Cal.App.2d 653, police were patrolling an area in which typewriters had been stolen. The officers observed Manis carrying a new portable typewriter case and heading for the pawnshop area. Maniss conduct, after discovering the officers observation, was evasive. Accordingly, the officers stopped Manis and asked where he was going and what was in the case. Manis answered that they were radios. The officers asked whether Manis had a receipt, and he replied, No, I stole them. The officers then arrested Manis and gave Miranda warnings. (Id. at pp. 657-658.)

The court noted that temporary detentions encompass a limited restriction of the personal mobility of a suspect, for a brief period of time, usually in a public place, normally without transfer to another location. The limited restriction may be accompanied by brief questioning on matters that have aroused the suspicion. (People v. Manis, supra, 268 Cal.App.2d at p. 663.) Thus, persons temporarily detained for brief questioning by police officers who lack probable cause to make an arrest or bring an accusation need not be warned about incrimination and their right to counsel, until such time as the point of arrest or accusation has been reached or the questioning has ceased to be brief and casual and become sustained and coercive. (Id. at p. 669; accord, People v. Merchant (1968) 260 Cal.App.2d 875, 879.)
Reeds situation is analogous to that in Clair and Manis. After independent review, we agree with the trial courts determination that Miranda did not apply to Officer Robys investigatory questioning. First, although Reeds detention was not traffic related, it was a temporary Terry stop, in a public setting, which was reasonable in light of the recent report that he had threatened to shoot a woman nearby. Second, Officer Robys questions were properly limited to inquiries to obtain information to confirm or dispel his suspicions that Reed may have been armed. Thus, the stop and inquiry were reasonably related in scope to the justification for their initiation. (Berkemer v. McCarty, supra, 468 U.S. at p. 439.) Third, Officer Robys testimony that Reed was not free to leave, did not transform Reeds detention into a custody anymore than the officers unspoken intent to detain the suspect in Berkemer v. McCarty, supra, 468 U.S. at page 423 or the officers order not to move to the bedded suspect in People v. Clair, supra, 2 Cal.4th at page 679 transformed those detentions into custody. The determination of custody does not turn on the subjective views of the interrogating officer. (People v. Stansbury (1995) 9 Cal.4th 824, 830.)

Because Reed was not subject to custodial interrogation, the trial court correctly admitted the statements he made to Officer Roby in the absence of Miranda warnings.

2. There was no Romero Abuse of Discretion

Reed contends the court abused its section 1385 discretion by failing to strike his prior felony conviction. Reed argues, in effect, that because the court accepted the mitigating factors, imposed the mitigated sentence, and struck the prior prison term enhancement, the court was obligated to show further leniency by striking his prior felony conviction. We disagree.

A trial court is authorized, in its discretion, to dismiss a prior strike allegation in the interests of justice under section 1385. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In ruling whether to dismiss a prior strike allegation, the trial court must determine whether, considering the nature and circumstances of the current offense and prior strikes, the defendant may be deemed outside the spirit of the three strikes law and should be treated as though he had not incurred one or more prior strikes. (People v. Williams (1998) 17 Cal.4th 148, 161-163.) The trial courts discretion to dismiss or not to dismiss a prior strike allegation is reviewable on appeal under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-375.)

An appellant who seeks reversal must demonstrate that the trial courts decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we will affirm the trial courts ruling, even if we might have ruled differently in the first instance. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)

The record reflects the court explicitly considered relevant factors concerning Reeds background, the nature of his present offense, and other individualized considerations. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531.) Such factors included Reeds long history of drug addiction, his employment history and family support, and that the current offense was the nonviolent possession of ammunition. However, the court also noted that Reeds record included a continuing involvement with firearms.

[T]he first case you had an SKS assault rifle. And the second case you pointed a gun at a man and threatened his life. And here you are back involving some relationship to the use of firearms. And for that reason I [do not] find there is any circumstances to grant relief under Romero in this case. (Italics added.)

On this record, Reed has presented no basis from which we can conclude the court exercised its discretion in an arbitrary or capricious fashion. Like the defendant in People v. Romero (2002) 99 Cal.App.4th 1418, 1434, Reed compares his situation to that of defendants in cases where the trial court struck prior felony convictions in the interest of justice and the Court of Appeal affirmed. However, a comparison of the cases is of little assistance to an appellant. A holding affirming the trial courts exercise of discretion and striking of a prior conviction does not establish that had the trial court denied the motion such a decision would have been arbitrary or irrational. Rather, the holding only establishes that the trial court did not abuse its discretion in striking the prior felony conviction. A comparison only demonstrates that reasonable people might disagree. (Ibid.)

The same is true here. The court properly exercised its discretion in denying the motion to strike the prior strike conviction. Reeds authorities do not demonstrate an abuse of discretion, but simply raise the possibility that reasonable people might disagree. Accordingly, we find no basis for disturbing the courts ruling with respect to Reeds Romero motion.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Cornell, J., Dawson, J.

^[1] Further statutory references are to the Penal Code unless otherwise indicated.

^[2]Terry v. Ohio (1968) 392 U.S. 1.