P. v. Vanhorn

Filed 6/5/08 P. v. Vanhorn 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Craig E. Robison, Judge. Affirmed.

Paul R. Ward, 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, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

INTRODUCTION

Defendant William Eric Vanhorn appeals after a jury found him guilty of possession of methamphetamine for sale in violation of Health and Safety Code section 11378. Defendant contends the trial court erred by (1) denying his motion to suppress statements he made to a police officer before he was read his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and (2) excluding evidence of statements defendant made to a police officer after he was read his rights under Miranda, which he contends were admissible under Evidence Code section 356.[1]

We affirm. Defendant was not in custody at the time he was originally questioned by the police; therefore, Miranda did not apply. Evidence of statements defendant made during a separate interview constituted inadmissible hearsay that did not fall within Evidence Code section 356.

FACTS[2]

On October 2, 2006, Officer Kevin Gano of the Buena Park Police Department was on patrol in his marked patrol car at approximately 1:00 a.m. when he spotted defendant walking northbound on the sidewalk of Beach Boulevard. A week earlier, Gano and another officer had seen defendant in the Buena Park area; they did not cite him but told him to stay out of the area. After Gano saw defendant on October 2, he asked defendant if he could talk to him. Defendant turned around and walked toward Gano. When defendant was about three to five feet away from Gano, Gano saw an item drop from defendants waist area. Gano looked down at the object on the ground and asked defendant what it was. Defendant stated he did not know what it was but that it was not his.

Gano had [defendant] stand next to [his] patrol car while Gano retrieved the item which was a glue container with a lid. Gano opened the container and discovered eight baggies containing what he recognized as methamphetamine. Gano patted down defendant and asked him to sit down by the patrol car.[3]

Gano did not tell defendant he was not free to leave; he just asked defendant to sit down and he complied. Gano did not draw his gun, or anything that could be used as a weapon; he did not put handcuffs on defendant and did not tell him he was under arrest. Gano was the only officer present.

Gano told defendant, to tell the truth if he sold the drugs or not. He then asked defendant how much he sold the baggies for. Defendant said he sold the baggies for $15 a piece, but when he uses it, he doubles the baggies up and uses $30 at a time. Gano asked whether defendant sold the methamphetamine for profit or just for his habit. Defendant responded that he did not make money from selling methamphetamine, but only sold it to support his habit.[4]

After that conversation, Gano arrested defendant. Gano handcuffed defendant and took him to the police station. Defendant was booked and read his rights under Miranda. Defendant stated he understood his rights.

Gano asked defendant if he was selling narcotics. (It had been about 30 to 45 minutes since Ganos initial conversation with defendant that morning.) Defendant responded by saying that Gano had read him his rights and arrested him, and that defendant did not have to talk to Gano. Gano affirmed defendants rights, but told him it was his choice and he could talk to Gano if he wanted to. Defendant did not respond. Gano again asked defendant if he was selling narcotics either to make money or to support his habit. Defendant said that if anything he would sell to support his habit, but he did not sell methamphetamine. Ganos interview of defendant at the police station was recorded.[5]

BACKGROUND

Defendant was charged in an amended information with one count of felony possession of methamphetamine for sale in violation of Health and Safety Code section 11378. The amended information stated, pursuant to Penal Code section 1203.7, subdivision (a)(11), defendant had previously been convicted of violating Health and Safety Code section 11378. It further alleged, pursuant to Penal Code section 667.5, subdivision (b), that defendant had served four prior prison terms, and, pursuant to Health and Safety Code section 11370.2, subdivision (c), had four prior felony convictions.

The trial court denied defendants motion to suppress statements he made to Gano before he was read his rights under Miranda, stating I dont think that this is a case of custody such that it required a Miranda. (Italics added.) Defendant initially sought to have his statements to Gano at the police station suppressed as well; but after his prearrest statements were admitted, defendant sought to have those statements admitted under Evidence Code section 356. The trial court refused to admit evidence of defendants interview with Gano at the police station.

At trial, Gano testified that after he opened the glue container, found the methamphetamine, and asked defendant whether he sold for profit or to support his habit, defendant said that if anything he sold it to support his habit. Defendant also said he sold the baggies for $15 apiece.

The jury found defendant guilty as charged. Defendant admitted the prior conviction allegations contained in the amended information. The trial court imposed a total sentence of five years by imposing the two‑year middle term for his felony possession of methamphetamine for sale plus a consecutive three‑year term for defendants April 1994 prior conviction. The court struck the remaining prior conviction allegations, including the prior prison term allegations, for sentencing purposes only. Defendant appealed.

DISCUSSION

Defendant argues the trial court erred by denying his motion to suppress the statements he made to Gano during their initial conversation on October 2, 2006, because defendant had not yet been read his rights under Miranda, supra, 384 U.S. 436. Defendant contends the trial court further erred because it thereafter failed to admit evidence of defendants later interview with Gano at the police station, under Evidence Code section 356. As we explain in detail post, defendants arguments are without merit.

I.

The Trial Court Did Not Err by Denying Defendants Motion to Suppress Because Defendant Was Not in Custody During His Initial Conversation with Gano.

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; 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; 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.)

Here, Gano was the only witness who testified at the hearing on defendants motion to suppress. The testimony showed that after Gano spotted defendant walking on Beach Boulevard, he simply asked defendant if he would speak with him. As defendant walked toward Gano, the glue container fell from his waist area. Gano asked defendant to stand by the patrol car while Gano retrieved the glue container. Upon discovering the methamphetamine, Gano patted down defendant and asked him to sit by the patrol car. Gano asked defendant to tell the truth as to whether he sold methamphetamine, how much he sold it for, and whether he sold it for profit or to support his habit. Although defendant initially stated he did not know what the glue container was and that it was not his, he told Gano he sold the baggies for $15 apiece and only sold the methamphetamine to support his habit.

At the time defendant made those statements to Gano, defendant was detained, complied with Ganos request that he sit by the patrol car, and was asked questions by Gano which implied defendant was selling methamphetamine. It is also true Gano arrested defendant after their conversation.

However, at the time Gano asked defendant how much he sold the methamphetamine for and whether he sold it for profit or to support his habit, the evidence showed (1) defendant had not yet been placed under formal arrest; (2) Gano had not handcuffed defendant, which is a distinguishing feature of a formal arrest (People v. Pilster, supra, 138 Cal.App.4th at pp. 1404‑1405); (3) defendant had been only briefly detained (id. at p. 1404 [Miranda warnings are not required during the course of a brief detention]); (4) defendant made his statements in the setting of the sidewalk of a public street, and thus they were not made in the context of an incommunicado interrogation (People v. Leonard, supra, 40 Cal.4th at p. 1401); (5) Gano was the only officer on the scene; (6) there was nothing in the record to suggest Gano was aggressive, confrontational and/or accusatory other than asking defendant if he sold methamphetamine for profit or to support his habit; (7) Gano only asked defendant three questions; (8) Gano never told defendant he was not free to leave; (9) although Gano was in uniform and had been driving a marked patrol car, Gano never drew his gun or anything else that could be used as a weapon; and (10) Gano did not tell defendant he was under arrest.

Viewing the objective circumstances from a reasonable persons point of view, it cannot be said defendants movement was restricted to the degree associated with a formal arrest. Considering all these circumstances, we conclude defendant was not restricted in a manner that a reasonable person would consider tantamount to arrest. In Miranda, the United States Supreme Court stated its holding was not intended to affect [g]eneral on‑the‑scene questioning as to facts surrounding a crime. (Miranda, supra, 384 U.S. at p. 477.) Here, Gano engaged in such general on‑the‑scene questioning which did not violate Miranda.

Citing People v. Ochoa, supra, 19 Cal.4th 353, defendant argues he should have been read his rights under Miranda because a reasonable person in his position would not have felt at liberty to terminate the interrogation and leave. Defendant, however, has not fully quoted from the test applicable to determining whether a custodial interrogation had occurred. As discussed ante, the pertinent inquiry in determining custody for purposes of Miranda is whether there had been a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. (People v. Leonard, supra, 40 Cal.4th at. p. 1400; see People v. Pilster, supra, 138 Cal.App.4th at p. 1403, fn. 1 [issue under Berkemer v. McCarty (1984) 468 U.S. 420 is not whether a reasonable person would believe he was not free to leave, but rather whether such a person would believe he was in police custody of the degree associated with formal arrest]; 2 LaFave et al., Criminal Procedure (3d ed. 2007) Interrogation and Confessions,  6.6(c), pp. 728‑729.)

The trial court did not err by concluding that at the time Gano asked defendant how much he sold the baggies for and whether he sold the methamphetamine for profit or to support his habit, a reasonable person would not have believed he or she was in police custody of the degree associated with a formal arrest.

II.

The Trial Court Did Not Err by Refusing to Admit under Evidence Code Section 356 Defendants Hearsay Statements to Gano During the Police Station Interrogation.

A trial courts decision to admit or exclude evidence is reviewable for abuse of discretion. (People v. Williams (2006) 40 Cal.4th 287, 317.) Evidence Code section 356 provides: Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.

The purpose of Evidence Code section 356 is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a partys oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which have some bearing upon, or connection with, the admission . . . in evidence. (People v. Arias, supra, 13 Cal.4th 92, 156.)

In People v. Williams, supra, 40 Cal.4th287, 317, five hours after the defendant was arrested, he tearfully confessed to committing a murder, but claimed he did not know what happened and said he went crazy all of a sudden. That confession was tape‑recorded. (Ibid.) The defendant made a second confession shortly thereafter, which was not recorded, in which he claimed to have blacked out and regained consciousness only after the murder had occurred. (Ibid.) The defendant made a third statement 24 hours later, in which he confessed to the murder in detail and abandon[ed] any suggestion that he blacked out. (Ibid.)

The prosecutor in People v. Williams, supra, 40 Cal.4th 287, 317 sought to admit evidence of the defendants third confession only. The defendant sought to have his first confession admitted under Evidence Code section 356. (People v. Williams, supra, 40 Cal.4th at p. 319.) The Supreme Court concluded the trial court did not abuse its discretion in concluding that admission of the third interview did not require admission of a different interview, and that no misleading impression was created by admitting one without the other. (Ibid.)

Here, the trial court excluded, as inadmissible hearsay, defendants statements to Gano during the interview at the police station. The court concluded that the statements were not admissible under Evidence Code section 356 because they were made in a different interview.

The trial court did not abuse its discretion by excluding defendants statements. The police station interview occurred 30 to 45 minutes after defendant made his initial statements to Gano in the field. Defendant has failed to show that his statements at the police station were a part of the first conversation or necessary to understand his comments in the field. Instead, the record shows that in the time between interviews, defendant changed his position from admitting he was selling methamphetamine to denying he was selling methamphetamine. The record does not show the jury would have been misled by the exclusion of the police station interview. Defendants rights were therefore not violated by the exclusion of that evidence.

DISPOSITION

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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[1] Evidence Code section 356 provides that if part of an act, conversation, declaration, or writing is placed in evidence, the adverse party may inquire into the whole on the same subject. (People v. Arias (1996) 13 Cal.4th 92, 156.)

[2] The following facts are based on Buena Park Police Officer Kevin Ganos testimony at the motion to suppress hearing.

[3] At trial, Gano testified that he patted down defendant before he opened the glue container and discovered the methamphetamine.

[4] At trial, Gano testified defendant responded that if anything he sold the methamphetamine to support his habit.

[5] Neither the recording of that interview nor any transcription of the recording has been included in the record on appeal.