Filed 6/28/17 P. v. Steward CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
BRYANT DAVID STEWARD,
Defendant and Appellant.

A145444

(Del Norte County
Super. Ct. No. CRPB145175)


Appellant Bryant David Steward appeals from a judgment on a jury verdict finding him guilty of possession of a weapon by an inmate in violation of Penal Code section 4502, with a prior strike allegation under section 1170.12. He contends, first, that he received ineffective assistance of counsel because his attorney withdrew a motion to suppress statements he made at a disciplinary hearing concerning the same incident for which he was prosecuted at the trial. He also argues that the prosecutor committed misconduct by referring to specific facts relating to his underlying offense. We find no merit in either contention and affirm the judgment.
BACKGROUND
On September 3, 2014, Steward was an inmate at Pelican Bay State Prison, having been convicted of second degree murder, battery on a police officer, battery on an inmate and possession of a weapon. That morning, while he was at work in the SHU kitchen, a correctional officer at the prison, Officer Casey Bellinger, conducted a random cell search on the cell assigned to Steward and an inmate named Wallace. Officer Bellinger found a weapon, consisting of a piece of melted plastic approximately four and a half inches long by an inch wide sharpened to a point, under the lower bunk. The lower bunk was assigned to Steward. The weapon was in a stack of mail, underneath a library book. The stack belonged to Steward.
As Steward was returning from work that day, a sergeant stopped him and handcuffed him and told him about the search. He was moved to administrative segregation.
On September 14, 2014, a disciplinary hearing was held on the rules violation involving the weapon found in Steward’s cell. Lieutenant Terrance Buchanan was the hearing officer. Before the hearing, Steward was provided with the rules violation report and crime incident report, permitted to examine photographs that would be used as evidence at the hearing, and advised that there had been a referral of the matter to the district attorney for possible prosecution and that he could postpone the disciplinary hearing pending resolution of the prosecution. At the hearing, Steward indicated he had been given the opportunity to postpone. Buchanan advised him that anything he said at the hearing could be used against him. Steward told Buchanan that was “okay,” that he understood and that he wished to continue the hearing. Buchanan asked Steward how he pled to the charge of possession of a weapon, and Steward pled guilty. Buchanan asked Steward if he wanted to make any statements, and Steward said “that he wanted to take responsibility for the weapon, that he didn’t want his ‘cellie,’ Inmate Wallace to get in trouble for something he had done, and that he had made the weapon and it was his weapon.” Steward also said the weapon was found under the lower bunk and that everything under the lower bunk was his. Buchanan found Steward guilty of the rules violation based on his plea, his admission during the hearing and the statements of Officer Bellinger in the disciplinary report.
In December 2014, the Del Norte County District Attorney filed a criminal complaint charging Steward with possession of a weapon, specifically a dirk or dagger, in violation of section 5402, subdivision (a), with a special allegation that defendant was convicted in 1996 of second degree murder with a firearm in violation of sections 187 and 12022.5.
Prior to the trial on those charges, defendant’s counsel, James Fallman, filed a motion to suppress the statements made to Buchanan during the September 14, 2014 hearing based on Buchanan’s failure to fully advise Steward of his Miranda rights. The motion alleged that Steward was in custody at a Level 4 maximum security prison, which is the highest level of custodial security in California, that this made his “interrogation at the hearing . . . per se in-custodial,” that Steward made incriminating statements “partly because of the coercive circumstances of the hearing room where he was chained and not free to leave, and partly because his Miranda warning was only partial, and thus constitutionally inadequate.” Specifically, it stated Steward was not advised that he had the right to remain silent, to talk with a lawyer or have him present for questioning, and to have a lawyer appointed if he could not afford to hire one. The motion acknowledged that Steward was advised that anything he said might be used against him in court.
The district attorney filed an opposition to the motion. In the opposition papers, the district attorney argued that “the defendant was advised that the defendant had the right to postpone the Administrative Disciplinary Hearing. In other words, he had the ‘right to remain silent.’ ” Further, the district attorney argued, “defendant was advised that anything he said could be used against him in the court of law.” The opposition included a declaration of Lieutenant Buchanan attesting to the facts that he advised Steward at the hearing of his “right to postpone the hearing pending the referral of the matter to the Del Norte County District Attorney’s Office” and that anything Steward said could be used against him in a court of law, and that Steward “did not wish to postpone” the hearing. The declaration stated that an inmate is not interrogated at a disciplinary hearing but is asked how he pleads to the charges and whether he wishes to make any statements, that “it is completely voluntary” and “up to the inmate if he wishes to make a statement regarding the charges or not,” and that at his hearing Steward pled guilty to the administrative charges and made statements.
After reviewing the district attorney’s opposition to the suppression motion, Steward’s defense counsel withdrew the motion. At Steward’s request, the court bifurcated the jury trial on the weapon possession charge from the court trial on the prior strike allegation.
The case was tried before a jury on April 13, 2015. Officer Bellinger and Lieutenant Buchanan testified for the prosecution. Steward testified on his own behalf.
On direct examination, Steward admitted he had been convicted of second degree murder, battery on a peace officer, battery on an inmate and possession of a weapon. Steward testified that he had never seen the weapon in question, had not put it underneath his bunk, and had confessed to owning it because his “cellie” was expecting to get a visit “[a]nd it wasn’t no use for us both to be in the hole if his family is coming all the way from Los Angeles County.” He explained that the weapon possession rules violation was a “SHU-able offense,” which meant an inmate found to have committed it would be in a “harder place” with fewer privileges for a period of seven to ten months. If Wallace was not in the SHU when his family came to visit, he could have a contact visit in the visiting room with his family for several hours, whereas if he was in the SHU he would be limited to an hour or two and the visit would be “behind a glass.” Steward also testified that inmates who worked in the SHU kitchen were strip searched twice going to and twice returning from the kitchen, and that he did not have access to the oven when he was working in the SHU kitchen and could not have melted down the plastic.
During cross-examination of Steward, the prosecutor asked whether the second degree murder was “with a firearm,” to which Steward answered affirmatively. The prosecutor proceeded to ask: “You just took out your firearm and shot somebody point blank?” Defense counsel objected, and the court sustained the objection, stating: “We’re not going to get into what happened.” Defense counsel then asked whether he was convicted in 2004 for assault with a deadly weapon or assault with force likely to create bodily injury, to which he answered it was assault with a deadly weapon. The prosecutor then asked defendant whether he had been in trouble while he was in prison, to which he answered “yes” before defense counsel could object. At a sidebar, the prosecutor told the court she wanted to ask if defendant had used or possessed a weapon in the past, but the trial court refused to allow her to ask about other acts, invoking Evidence Code section 352.
After hearing closing arguments and instructions, the jury deliberated for about 70 minutes and returned with a verdict finding Steward guilty of the charge of possession of a weapon in a penal institution under section 4502, subdivision (a).
DISCUSSION
I.
Defense Counsel’s Withdrawal of the Suppression Motion
Was Not Ineffective Assistance.
“The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process. [Citation.] The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” (Kimmelman v. Morrison (1986) 477 U.S. 365, 374 (Kimmelman).) “To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92–93.) “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (People v. Ledesma (1987) 43 Cal.3d 171, 217–218, quoting Strickland v. Washington (1984) 466 U.S. 668, 693–694 (Strickland).) To prevail on a claim of ineffective assistance of counsel, a defendant must establish by a preponderance of the evidence that he is entitled to relief. (Ledesma, at p. 218.)
“There is a presumption the challenged action ‘ “might be considered sound trial strategy” ’ under the circumstances. (Strickland, supra, 466 U.S. at pp. 689, 694; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 [‘Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions’]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [‘ “If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ [citation], the contention [that counsel provided ineffective assistance] must be rejected” ’].)” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007–1008.)
“Where defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.” (Kimmelman, supra, 477 U.S. at p. 375.) Thus, as the Supreme Court stated in Kimmelman, the defendant’s “defaulted Fourth Amendment claim is one element of proof of his Sixth Amendment claim.” (Ibid.)
There is no evidence in the record explicitly stating why defense counsel withdrew the motion to suppress, and this alone is ground for rejecting Steward’s ineffective assistance claim on direct appeal. But even if that were not the case, we would reject the claim there was no ineffective assistance because, contrary to Steward’s argument, the motion would properly have been denied had his counsel proceeded with it. In other words, he cannot show that his Fourth Amendment rights were violated.
In Howes v. Fields (2012) 565 U.S. 499 (Howes), the United States Supreme Court addressed the issue of whether a prison inmate who is questioned is “in custody” within the meaning of Miranda. The court rejected the argument that an inmate who is removed from the general prison population and questioned about events occurring outside the prison is in custody for Miranda purposes. (Howes, at pp. 505, 508, 514.) Instead, the court held that the determination of whether an inmate is in custody under Miranda requires an evaluation of “whether, in light of ‘the objective circumstances of the interrogation,’ [citation], a ‘reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.’ ” (Howes, at p. 509.) It stated that courts must “examine ‘all of the circumstances surrounding the interrogation’ ” and identified the following as relevant factors: the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of questioning. (Ibid.)
Further, the court held that freedom of movement is only one element of the Miranda custody inquiry, and that even if a person’s freedom of movement is restricted, the detention must also impair the inmate’s free exercise of his privilege against self-incrimination. (Howes, supra, 565 U.S. at pp. 509–510.) In a prison context, the fact that the inmate is in custody while being questioned “does not generally involve the shock that very often accompanies arrest.” (Id. at p. 511.)
“A person who is ‘cut off from his normal life and companions,’ [citation], and abruptly transported from the street into a ‘police-dominated atmosphere,’ [citation], may feel coerced into answering questions. [¶] By contrast, when a person who is already serving a term of imprisonment is questioned, there is usually no such change. ‘Interrogated suspects who have previously been convicted of crime live in prison.’ [Citation.] For a person serving a term of incarceration, . . . the ordinary restrictions of prison life, while no doubt unpleasant, are expected and familiar and thus do not involve the same ‘inherently compelling pressures’ that are often present when a suspect is yanked from familiar surroundings in the outside world and subjected to interrogation in a police station.” (Howes, supra, 565 U.S. at p. 511.) Further, unlike a person who is arrested and taken to the police station, a prisoner “is unlikely to be lured into speaking by a longing for prompt release” since “he knows that when the questioning ceases, he will remain under confinement.” (Ibid.) Finally, a prisoner knows “that the law enforcement officers who question him probably lack the authority to affect the duration of his sentence” or “the power to bring about his early release,” and thus is unlikely to “ ‘feel compelled to speak by the fear of reprisal for remaining silent or in the hope of [a] more lenient treatment should he confess.’ ” (Id. at p. 512.)
Finally, the court stated that “all of the features of the interrogation” should be considered in assessing the issue of whether a prison inmate is in custody for Miranda purposes, including “the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted.” (Howes, supra, 565 U.S. at p. 514.)
In Howes, the inmate did not invite the interview and was not advised ahead of time that he was free to decline to speak with the deputies, the interview lasted for five to seven hours in the evening and well past the inmate’s bedtime, the deputies who questioned him were armed, and one “ ‘[u]sed a very sharp tone.’ ” (Howes, supra, 565 U.S. at p. 515.) Also, because he was in prison, he could not leave the conference room on his own but had to be escorted to and from the conference room and his cell and to wait for an escort before being returned to his cell. (Ibid.) While these circumstances weighed in favor of finding Miranda custody, they were “offset” by other factors, including that he was told at the outset of the interrogation and reminded thereafter that he could leave and go back to his cell whenever he wanted, he was not physically restrained or threatened, he was interviewed in “a well-lit, average-sized conference room, where he was ‘not uncomfortable,’ ” he was offered food and water, and the door to the conference room was open. (Howes, at p. 515.) “Taking into account all of the circumstances of the questioning—including especially the undisputed fact that respondent was told that he was free to end the questioning and return to his cell—[the Court held] that [the inmate] was not in custody within the meaning of Miranda.” (Id. at p. 517.)
Applying the Howes analysis, it is clear Steward was not in custody for Miranda purposes when he attended the administrative hearing regarding the weapons violation. First, Steward was not interrogated when he was removed from his cell and placed in administrative segregation after the search. Rather, about ten days later, he was given notice, in advance, of the administrative hearing, provided a rules violation charging document, copies of reports concerning the disciplinary matter and the opportunity to review photographs that would be used as evidence at that hearing. Second, and most importantly, he was advised, both ahead of the hearing and again at the hearing, that the weapon charge had been referred to the district attorney and that he could postpone the disciplinary hearing until after the resolution of the criminal matter. He was further advised at the hearing that anything he said there could be used against him in court. Despite these admonitions, he chose to proceed with the hearing. Third and finally, Steward was asked only two questions at the hearing: how did he plead, and whether he wanted to make a statement. As Lieutenant Buchanan testified, his decision whether to make a statement was left entirely up to him; there was no requirement that he do so.
On this record, there is simply no basis for a finding of Miranda custody. The freedom of movement component was no more than that ordinarily present in a prison context. Further, the coercion component was entirely lacking. Steward was free to decline to proceed with the hearing and to postpone it until after the criminal proceedings had been resolved. He could have requested postponement before the hearing and could still have done so once there, when he was advised a second time that he had that right. He was also clearly advised of the potential adverse consequences of making a statement, i.e., that the matter had been referred for potential criminal proceedings and that any statement he made could be used against him in court. There is no indication in the record that he was urged to do so, offered any incentive to do so, or threatened with any reprisal if he chose not to. By all accounts, he was simply asked if he wished to make a statement, and he decided to do so voluntarily.
Since Steward was not in custody under Miranda, the failure to advise him of his right to counsel and to appointment of counsel was not a violation of the Fourth Amendment. His failure to establish a meritorious Fourth Amendment claim precludes him from showing that his counsel was ineffective in withdrawing the suppression motion.
II.
The District Attorney’s Attempt to Elicit Inflammatory Facts
About Steward’s Prior Convictions Did Not Violate Steward’s
Sixth and Fourteenth Amendment Rights.
As Steward acknowledges, his counsel “attempt[ed] to head off the prosecutor’s inevitable impeachment of appellant” by eliciting, on direct examination of Steward, information about his past convictions. In response to defense counsel’s inquiry about what he had been convicted of, Steward admitted he was in prison for second degree murder, had been convicted of battery on a peace officer, battery on an inmate, and possession of a weapon. On cross-examination, the prosecutor asked about a conviction that Steward had omitted, inquiring whether it was assault with a deadly weapon or assault with force likely to cause great bodily injury, to which Steward responded that it was the former.
Steward contends it was misconduct for the prosecutor, in the course of asking again about his prior convictions, to introduce the facts about the second degree murder conviction. Specifically, he challenges the following colloquy between the prosecutor and himself:
“Q Okay. Now, you were reciting some of your convictions. But I think we missed one. So I just want to double-check here. The first one was a second degree murder, but that was with a firearm; right?
“A Yes.
“Q You just took out your firearm and shot somebody point blank?
“MR. FALLMAN [defense counsel]: Objection.
“THE COURT: Counsel, excuse me. Ask—you covered that area. We’re not going to get into what happened. Okay.”
Steward argues the question about him shooting somebody “point blank,” although left unanswered, was an improper question because it went beyond the scope of proper inquiry about prior convictions when a criminal defendant is impeached. He cites People v. Heckathorne (1988) 202 Cal.App.3d 458, which held it was error for the court to allow the prosecutor to query the defendant, who was on trial for second degree murder with use of a firearm, about the specific facts of a prior conviction. (Id. at p. 463.) The defendant had admitted the prior conviction of assault with a deadly weapon, specifically a car, but the prosecutor pressed on. First he asked whether defendant had tried “ ‘to assault somebody with this automobile,’ ” to which the defendant responded: “It was a car accident.” (Id. at p. 462.) Then claiming the defendant had opened the door, the trial court allowed the prosecutor to go further, and the following colloquy transpired:
“Q Well, let me ask you this, Mr. Heckathorne. Were you willing to spend time in prison over a car accident?
“A I got in a fight with the man after.
“Q Mr. Heckathorne, isn’t it true that this man simply cut you off by your belief, and you literally started ramming his car as he is trying to evade you and that you eventually—he jumped out of his car and tried to run from you, and you assaulted him?
“A That is your belief, I guess. It didn't happen that way.
“Q Well, did you plead guilty to those charges?
“A Yes, I did.
“Q And in your opinion that was just a car accident?
“A It began as a car accident, yes.” (Ibid.)
The Court of Appeal held the “[t]he scope of inquiry when a criminal defendant is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense” and that the error there was prejudicial. (People v. Heckathorne, supra, 202 Cal.App.3d at pp. 462–463.) The prior conviction at issue was the only one, and the defendant presented evidence that the charged offense was an accident. (Id. at pp. 460–461.) The Supreme Court has recently reaffirmed this general rule that “[u]nder California law, the right to cross-examine or impeach the credibility of a witness concerning a felony conviction does not extend to the facts underlying the offense.” (People v. Casares (2016) 62 Cal.4th 808, 830; see also People v. Ardoin (2011) 196 Cal.App.4th 102, 120.)
The prosecutor here went beyond the permitted inquiry into the nature of the conviction when he characterized the second degree murder conviction in the guise of a question, stating: “You just took out your firearm and shot somebody point blank?” We agree that this was improper, and that the trial court was correct in sustaining the defendant’s objection to it. However, we do not agree with Steward that the improper question was prejudicial. First, because of the sustained objection, the prosecutor did not elicit any detail about the facts relating to the second degree murder conviction or any of the other convictions of which the jury was informed. Second, the prosecutor’s characterization of the murder did not raise the specter that the jury would improperly treat it as propensity evidence, as it might have if the current offense were a similar murder. Here, the crime charged was possession by an inmate of a plastic knife, and Steward’s prior conviction for murder with a firearm, whether committed at point blank or otherwise, has little direct bearing on whether defendant was the inmate in possession of the plastic knife. Third, the trial court admonished the prosecutor: “We’re not going to get into what happened. Okay.” This signaled to the jury that the details of Steward’s prior crimes were not to be considered. Further, the trial court instructed the jury: “Nothing that the attorneys say is evidence. In their opening statements and in closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses’ answers are evidence. The attorneys’ questions are significant only if it helps you to understand the witnesses’ answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true.” The court also instructed the jury on the limited purpose of other crimes evidence, and that it could consider such other crimes “only in evaluating the credibility of the witness’ testimony.” Fourth and finally, the evidence of guilt in this case was strong. While much of it was circumstantial, Steward’s own prior statements to the hearing officer and plea of guilty to the rules violation were compelling, even with his retraction of those statements at trial. Under the circumstances, we cannot say it is reasonably probable that the prosecutor’s “question” as to whether the second degree murder conviction involved a shooting at point blank range affected the jury’s evaluation of the evidence or its verdict. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
 




STEWART, J.



We concur.




KLINE, P.J.




MILLER, J.






















People v. Steward (A145444)