Opinion
B294695
03-16-2020
In re CHRISTOPHER AUGUSTINE on Habeas Corpus.
Neil Rosenbaum, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Scott A. Taryle, Pamela C. Hamanaka and David Glassman, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YA093700) ORIGINAL PROCEEDING on petition for writ of habeas corpus. Curtis B. Rappé, Judge. Petition denied. Neil Rosenbaum, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Scott A. Taryle, Pamela C. Hamanaka and David Glassman, Deputy Attorneys General, for Respondent.
____________________
Christopher Augustine was convicted of four counts of robbery and two counts of attempted robbery following a two-month crime spree focused on auto parts stores. We affirmed the judgment on appeal. (People v. Floyd (Aug. 20, 2019, B284321) [nonpub. opn.].) While the appeal was pending, Augustine petitioned this court for a writ of habeas corpus, arguing his trial counsel had provided constitutionally ineffective representation by failing to object to the admission of statements allegedly obtained in violation of Augustine's rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and to evidence obtained as a direct result of those statements. Augustine contends he was in custody and had not yet been informed of his Miranda rights when the police questioned him and learned his car was parked nearby at a friend's house. He argues his trial counsel had no tactical reason not to object and the error was prejudicial.
After receiving an informal response from the Attorney General, we issued an order to show cause why the relief requested by Augustine—reversal of the judgment of conviction and a new trial—should not be granted. Based on the petition, the Attorney General's return and Augustine's traverse, we now conclude Augustine is not entitled to relief.
FACTUAL AND PROCEDURAL BACKGROUND
1. Augustine's Conviction and Direct Appeal
On July 15, 2016 the Los Angeles County District Attorney filed an 18-count information against Augustine and Robert Floyd based on a series of robberies primarily of South Los Angeles auto parts stores from December 15, 2015 to February 2, 2016. Floyd and Augustine were jointly charged with four counts of robbery (Pen. Code, § 211; counts 11, 12, 15 and 16) and two counts of attempted robbery (Pen. Code, §§ 211, 664; counts 9 and 10). Floyd was charged with 12 additional counts of robbery (counts 1 to 8, 13, 14, 17 and 18).
Augustine and Floyd were tried together. The jury found Augustine guilty on all six counts of robbery and attempted robbery with which he was charged. Floyd was convicted on the four counts of robbery in which he was jointly charged with Augustine and eight separately charged robbery counts. Two robbery counts were dismissed for insufficient evidence. The jury could not reach a verdict as to Floyd on the two attempted robbery counts and two additional robbery counts; those four counts were dismissed following a declaration of mistrial. The court sentenced Augustine to an aggregate state prison term of nine years four months. Floyd was sentenced to an aggregate indeterminate state prison term of 447 years to life under the three strikes law.
We affirmed Augustine's and Floyd's convictions on direct appeal. As to Augustine, we held, in part, he had waived any objection to admission of statements he made to the police prior to receiving Miranda warnings. While the appeal was pending, Augustine filed the instant petition for writ of habeas corpus, arguing his trial counsel had provided ineffective assistance by failing to formally object to the admission of those statements.
We remanded Floyd's case for the trial court to exercise its discretion whether to strike or impose prior serious felony enhancements pursuant to Penal Code section 667, subdivision (a).
2. Prosecution Evidence of the Robberies and Attempted Robbery
The prosecution presented evidence at trial of nine incidents that resulted in charges of robbery or attempted robbery either jointly against Floyd and Augustine (three occasions) or Floyd alone (six occasions). Because all the robberies had been committed in a similar manner, the evidence of each robbery was cross-admissible as to the others.
Our summary of the evidence presented at trial is based on the record and our unpublished opinion in People v. Floyd, supra, (Aug. 20, 2019, B284321).
a. Robberies on December 15, 2015: Counts 1 and 2 (Floyd)
The first robbery occurred at an AutoZone store in Hawthorne on December 15, 2015. At 8:58 p.m., two minutes before closing time, a man entered and asked the employee about brake pads. A second man entered shortly after the first and joined the conversation. One of the men then pointed a gun at the employee, and the men forced him to open the cash registers and the safe at the back of the store. The men fled after taking money from the registers and safe.
Before the robber drew the gun, a third man, wearing a construction vest, had tried to enter the store; but the entrance was already locked. The employee could not identify anything about this third man other than that he was wearing a construction vest and was a "tall-ish" African-American. The store had a surveillance system that recorded video footage of a man in an orange construction vest attempting to enter the store after the other two men were inside. The video, which did not include a good view of the man in the vest, was played for the jury. The People's theory of the case was that Floyd was the individual wearing the construction vest. At the close of the prosecution's case, the court granted Floyd's motion to dismiss these two counts for insufficient evidence.
b. Robberies on December 17, 2015: Counts 6, 7 and 8 (Floyd)
Carolina Gomez and William Vinegar were working at an AutoZone store in Gardena the night of December 17, 2015. At approximately 9:15 p.m., 45 minutes before closing time, three men entered the store. They each had on sunglasses and wore either a hat or hooded sweatshirt with the hood up. One man wore a black hooded sweatshirt; the second a white T-shirt. The third man was wearing a reflective construction vest and a baseball hat. Thinking the men seemed suspicious, Gomez went to the back office to call the police emergency number.
The man wearing the construction vest asked Vinegar about brakes. When Vinegar turned to look for the part, the man grabbed him from behind. He told Vinegar, "I don't want to hurt you." Vinegar felt something against his back he thought was a gun.
Gomez heard the commotion and saw Vinegar in a chokehold. Gomez and her boyfriend, who was waiting for her in the back of the store, were ordered to get down on the floor. The men then yelled at Vinegar to open the safe, which he did. Meanwhile, the man in the construction vest walked Gomez out to the cash registers and had her open them. The three men fled with money from the safe and registers and with Gomez's boyfriend's wallet.
At trial Gomez identified Floyd as the man wearing the construction vest. Gomez had also identified Floyd from a photographic lineup shortly after the robbery. A surveillance video capturing the robbery and still photographs from that video were shown to the jury. A stocky African-American man with facial hair and wearing an orange construction vest, a baseball hat and sunglasses was visible in the video; and Gomez again pointed out Floyd as the man on the video who was wearing the vest.
c. Robberies on December 19, 2015: Counts 11 and 12 (Floyd and Augustine)
Michael Flores testified he was working at the AutoZone store in Inglewood on the night of December 19, 2015. At approximately 8:45 p.m., near the store's closing time, an African-American man with a clean-cut beard, wearing a construction vest and a black beanie, approached him and asked about brakes for a particular make and model of car. After some discussion Flores went to retrieve the items from the back of the store. The man snuck up behind him, grabbed his shirt, demanded Flores take him to the safe, and then ordered Flores and a coworker to open it.
After the employees succeeded in opening the safe, two more men entered the office and removed the money from the safe. Flores was not able to see these men's faces or tell their ethnicity because they were wearing zipped-up hooded sweatshirts. The man wearing the construction vest took Flores's wallet, looked at his home address and warned him not to call the police.
Flores testified he had selected Floyd's photograph from a photographic lineup, telling the police, "That's the guy that grabbed me, looks like him, just a little darker." At trial, however, Flores testified he did not see the man from the photograph in the courtroom and did not see any of the other perpetrators in the courtroom.
Surveillance video footage and still shots of the robbery were shown to the jury. They showed an African-American man with a stocky build and facial hair wearing an orange construction vest with reflective stripes and a black beanie. The video and still photographs also depicted another African-American man with facial hair who was wearing grey gloves, as well as a red hooded sweatshirt with black sleeves, a black pouch and a small Nike Jordan brand "Jumpman" logo on the left chest area.
d. Robberies on December 30, 2015: Counts 17 and 18 (Floyd)
The fourth robbery occurred at the O'Reilly Auto Parts store in Inglewood on December 30, 2015. One of the employees working that night, Roberto Palacios, testified a man entered the store at approximately 8:00 p.m. This man was a tall African-American wearing an orange construction vest, a white construction helmet, blue pants and construction boots.
The man in the construction vest spent 10 minutes picking out parts. He then put his basket down and left the store, only to return 20-25 minutes later, at which time he engaged in at least 30 minutes of conversation with Palacios about parts, including brake pads.
Another man entered the store near the 9:00 p.m. closing time. Shortly thereafter, the man in the construction vest said, "You know what's going to happen next," and hit Palacios's coworker. Palacios was hit in the head from behind by the second man. Palacios was unconscious for approximately 30 seconds. When he regained consciousness, he was in the office on his knees. The man in the construction vest dragged him by his collar to the safe and told him to open it. While Palacios delayed opening the safe, the second man began pulling money from the registers. The two men then left with the money, as well as a stereo and brake pads.
Approximately four or five months later Palacios identified Floyd in a photographic lineup as the man wearing the construction vest. At trial Palacios testified he did not see in court the man who had been wearing the construction vest. However, he identified Augustine (who had not been charged in these counts) as the man who had struck him in the back of the head. There was no surveillance footage from this robbery.
Palacios testified he wrote down the part numbers for the brake pads for a 2013 Ford F-150 that were taken from the store. The police found brake pads with the same part numbers in Floyd's car one month later.
e. Robberies on January 7, 2016: Counts 15 and 16 (Floyd and Augustine)
Guillermo Tapia testified he was working at an AutoZone store located in South Los Angeles on the night of January 7, 2016. At around the 9:00 p.m. store closing time, a customer wearing a red sweatshirt was still in the store. The door had been locked, but at approximately 9:05 p.m. the man said he needed to get his wallet from outside. Tapia let him out. At the same time a second man, dressed in a grey Jordan jumpsuit and a hat, requested to be let in to buy some windshield wipers. The second man came in, went to the wiper aisle and then approached the counter asking for help finding a particular size. Tapia's coworker Anthony Carrillo helped him at the counter.
The first man came back to the store entrance holding his wallet and asked to be let in to pay for the parts. He was wearing one glove. While Tapia was helping him complete the purchase, the second man seized Carrillo in a bear hug and took him to the back office. Tapia tried to leave the store, but the first man grabbed him by the arm and took him to the back office as well. The men ordered Tapia to open the safe in the office and pushed Carrillo to the front to open the registers.
In a photographic lineup approximately one month after the robbery, Tapia identified Augustine as the man in the red sweatshirt and Floyd as the man in grey. Tapia failed to identify either man at the preliminary hearing. At trial Tapia again identified Augustine as the man wearing the red sweatshirt and Floyd as the man who was wearing grey.
Carrillo testified that, at approximately 9:00 p.m. on the night of the robbery, he had pointed out to Tapia a customer who had been browsing for longer than usual. Tapia began assisting that person, who was wearing a red shirt and black pants. Another man, dressed in a grey jumpsuit with a hooded sweatshirt, came in asking for windshield wipers; and Carrillo assisted him. Carrillo and the man in grey discussed brake pads for five to eight minutes until the man grabbed the front of his shirt, took him to the back and told him to show him the safe. Carrillo told him he had no way of opening the safe. At the same time, the man in grey had Carrillo open the registers.
Carrillo testified the man in red was African-American, "maybe 6 feet 8 inches tall," and weighed approximately 220 pounds. The man in grey was African-American with a light goatee. He was approximately 6 feet 4 inches tall and weighed at least 260 pounds. When initially speaking to the police, Carrillo had described both men as being approximately six feet tall.
The parties stipulated that on February 3, 2016 Carrillo viewed a photographic lineup that included Augustine's photograph and did not identify Augustine. However, Carrillo identified Floyd as the man in grey. At trial Carrillo identified Augustine as the man wearing red, but did not identify Floyd.
The jury viewed surveillance video showing several camera angles of both robbers, as well as still shots of the robber wearing red. The first man was African-American and had facial hair. Like the robber in the December 19, 2015 robbery, he was wearing grey gloves and a red hooded sweatshirt with black sleeves, a black pouch and a Jumpman logo on the left chest. The hood of the sweatshirt was up. He was also wearing black pants and black and red sneakers with white bottoms. The second man, who was also African-American and appeared to be stockier than the man in red, was wearing an all-grey sweat suit with the hood of his sweatshirt up, grey gloves and black sneakers with a white Nike swoosh that extended to the top of the shoes.
f. Robberies on January 19, 2016: Counts 3 and 4 (Floyd)
Sergio Rosales and Monica Castillo were working at the AutoZone store in Hawthorne on January 19, 2016. Just before the 9:00 p.m. closing time, an African-American man wearing a reflective yellow vest and a white construction hard hat came into the store. The man made a nonsensical request for parts to Castillo. At the same time another African-American man in a hooded sweatshirt and wearing all black entered the store and approached Rosales. When Rosales turned around, the man wearing black grabbed him and pushed him toward the counter, telling him to open the cash registers, which Rosales did. Simultaneously, the man in the construction vest pulled Castillo toward the back of the store and told her to open the safe. He stuffed money from the safe into his pants, and the two robbers left the store.
On February 3, 2016 both Castillo and Rosales selected Floyd's photograph in the photographic lineup as the man in the construction vest. At trial Castillo was not able to identify Floyd.
Video and still shots from the store surveillance system showed the two men, including one wearing an orange construction vest and a white hard hat with logos on it. The orange construction vest looked like the one worn by the robber in the December 17 and December 19 robberies.
g. January 27, 2016 storage company robbery: Count 5 (Floyd)
The next charged robbery took place on January 27, 2016 at a storage company on Jefferson Boulevard in Culver City. At approximately 12:45 p.m. a tall African-American man wearing an orange construction vest and a construction hat entered the business. The sole employee on duty described the man as six feet tall or taller, weighing approximately 250 to 260 pounds, with a short beard.
After another customer left, the man approached the employee, who was behind the counter. He inquired about renting a unit. When the employee asked for his identification, the man said he had forgotten it in his truck and walked toward the door. He then turned around, walked behind the counter, pushed the employee to the ground and started going through the register. The assailant then forced the employee to open the safe for him.
At trial the employee identified Floyd as the man who robbed the store. She had also identified Floyd from a photographic lineup one week after the robbery and again at the preliminary hearing.
Video and still shots from security camera footage were shown to the jury and provided clear views of the robber and his orange construction vest and white construction hard hat with logos. The man's build was similar to that of the man who wore a construction vest during the earlier offenses; the vest looked like the one worn by the robber in the other robberies; and the white construction hat appeared to bear logos like the one on the hat worn by the robber during the January 19 robbery.
h. AutoZone robberies on January 27, 2016: Counts 13 and 14 (Floyd)
Another robbery at an AutoZone store in South Los Angeles was committed the same day as the storage company robbery. At that location, open 24 hours a day, a customer wearing a construction vest and a hard hat approached one of the employees at 11:00 p.m. and asked him to look up a part. After the employee gave him the information, the man reached into his vest, pulled out a gun and pointed it at the employee. The man told the employee to take him to the back of the store. Once in the back office, he forced the employee to open the safe and took most of the money. He then grabbed money from the registers and left the store.
The jury viewed surveillance camera video and still shots, in which the robber was shown wearing an orange construction vest, a white hard hat with logos around it and black sneakers with a white Nike swoosh that extended to the top of the shoes. The vest looked like the one in the footage of the earlier robberies, and the hat bore similar logos. In addition, the black shoes with the white swoosh looked like those worn by the robber during the January 7 offense.
The employee described the robber as African-American, weighing approximately 190 to 200 pounds, and approximately 5 feet 9 or 10 inches tall. The employee did not get a good look at the man's face. At trial he was not able to identify Floyd as the man who had been wearing the vest, and he had identified someone else from a photographic lineup shown to him shortly after the incident.
i. Attempted robberies on February 2, 2016: Counts 9 and 10 (Floyd and Augustine)
On February 2, 2016 William Vinegar, who had been the victim of the AutoZone store robbery on December 17, 2015, was working at the same store in Gardena. Just before the 10:00 p.m. closing time, he went outside to do the perimeter check required since the earlier robbery. He noticed a man walking across the empty parking lot. When Vinegar went back into the store, the man entered the store behind him. The man said he was looking for brakes for a Nissan Maxima. Vinegar thought it strange that the man apparently had not come in a car. The man also appeared to be nervous and hesitant. Vinegar became suspicious and told the man he would go look for the brakes. While he was in the back pretending to look for the brakes, he saw another man wearing a reflective vest and a hard hat come into the store.
The second man looked familiar to Vinegar, who thought, "It's going down again." According to Vinegar, the second man had the same height and build as the person who was wearing the construction vest during the first robbery; and Vinegar thought it odd that he was wearing the construction vest and hard hat at night in an area with no nearby freeways. Like the first man, the man in the vest also asked about brakes.
Vinegar called the 911 emergency number and said he thought the store was about to be robbed. He then stalled the men until officers from the Gardena Police Department arrived. The police detained both men at gunpoint.
At trial the prosecution examined Officer Brian Park and elicited the following testimony at issue in this proceeding:
"Q. Did you have a chance to speak with Mr. Augustine that night?
"A: Yes, I did.
"Q. And did he tell you that he got there by a car and kind of nod in the direction of where that car was?
"A. Yes.
"Q. And . . . did you go searching for a car in that direction?
"A. Yes, I did.
"Q. And did you eventually find a car?
"A. Yes."
Officer Park found the car parked in the neighborhood near AutoZone's empty parking lot. Park looked inside the car "to check for bodies or people." The car's motor was running with the key in the ignition and the doors unlocked. The car was impounded and subsequently searched. In the back of the car, which was registered to Floyd, the police found brake pads that were determined to have been stolen during the December 30, 2015 robbery. The police also found a wallet containing Floyd's identification card and debit card and a second wallet containing a debit card with Augustine's name.
The prosecution introduced photographs of Floyd and Augustine taken after their arrests that evening. Floyd was wearing an orange construction vest, black shoes with a white Nike swoosh that wrapped around to the top of the shoe and a white hard hat with logos on the front and back. The vest, hard hat and shoes all looked like items worn by the perpetrator of other recent robberies of auto parts stores.
Augustine was wearing a red hooded sweatshirt with black sleeves and a black pouch, and a Jumpman logo on the left chest area. The hooded sweatshirt looked like the one worn by one of the robbers in the offenses committed on December 19, 2015 and January 7, 2016. Augustine was also wearing black and red sneakers with red laces and white bottoms that looked like the ones worn by the robber on January 7, 2016, and grey gloves that looked like those worn by the robber on December 19, 2015 and January 7, 2016.
3. Defense Evidence
Neither Floyd nor Augustine testified. Dr. Kathy Pezdek, a defense expert, testified about the frequency of incorrect eyewitness identifications and factors relating to the accuracy of eyewitness memory and identification.
4. Proceedings Regarding the Admissibility of Augustine's Statements
No formal objection by defense counsel or ruling by the court regarding the admissibility of Augustine's statements to Officer Park appears on the record. According to the October 23, 2019 declaration of defense counsel Gary Meastas, submitted by the Attorney General with his return, an off-the-record discussion took place regarding the "issues and concerns presented by Miranda in this matter." The trial court tentatively indicated Augustine's statements to Park would be admitted. The following day the prosecutor stated on the record, "[W]e still need to just get on the record what Officer Park can testify as to Mr. Augustine's statement." The court responded, "Well, I gave you an indication yesterday of my view on it and you indicated you were going to do some research." The prosecutor replied, "I was not able to find anything on point, so I believe . . . the Court's indicated would stand. I will tell my officer that he can testify to the fact that Mr. Augustine said that he came in a car and pointed in the direction of the car." The court asked, "Does anybody take issue that that?" Augustine's defense counsel responded, "No. . . . I have no objection on that particular issue for counsel to lead the witness where he can just respond yes."
In his declaration Meastas stated he had "agreed to limit the possibility of additional evidence against the defendant by agreeing to having the prosecutor ask leading questions to the officer." He thus waived any objection to the prosecutor eliciting from Officer Park through leading questions testimony that Augustine had stated he came in a car and had nodded in the general direction of the car.
5. Body Camera Footage
Officer Park's conversation with Augustine was captured by the officer's body camera, and a copy of the recording is part of the trial court record. The video footage shows Park and his fellow officers approach the AutoZone store entrance with guns drawn, while Augustine and Floyd were standing at the counter inside. With their guns pointed at Augustine and Floyd, the officers commanded the two men to put their hands up and walk backward out of the store. A police dog or dogs were barking loudly as the officers continued to shout commands. Augustine and Floyd backed out of the store with their hands up. Once Augustine was within reach, two police officers leaned him over the front of a police car where they handcuffed him and conducted a pat search.
The 9-minute-25-second recording was played outside the presence of the jury when the court was considering the admissibility of statements made by Floyd to Officer Park. Park's conversation with Augustine is captured in the first 4 minutes 20 seconds of the video. The recording was initially identified as the People's exhibit 99, but ultimately marked for identification as the court's exhibit 5.
After placing Augustine in handcuffs, Officer Park told him, "Alright, relax. . . . Just relax. We got some sort of call. I'll explain it to you." Park then asked, "Were you working on a car or something?" Augustine answered, "Yes, sir." Park then asked, "Where's your car?" Augustine responded, "At the house" (or, perhaps, "at a house"). Park continued, "Were you trying to get parts or what?" Augustine responded in the affirmative; and Park stated, "Well, it's probably a little misunderstanding, but I'll explain everything. Just have a seat, relax. You ain't under arrest." Park had Augustine sit on the back seat of the patrol car with the door open and his feet outside the car. No other officer was with Park at this point.
Park asked Augustine if he was on parole or probation. Augustine said he had a prior conviction for "possession with intent to sell." Park then engaged in a short conversation with Augustine, who replied to Park's statements with brief responses of "I know" or "Yeah" or "OK." Park stated, "I'll tell you this much. You guys match the description of a couple of robbers. Then I come up and you've got gloves, what else . . . and you've got your hoodie on. . . . You see what I'm saying. Your partner over there's got the vest on . . . fits the description of one of our robbers, who's been wearing one of those construction vests. . . . That's why. . . . They called and they were concerned. They've been robbed before. You know, people who rob stores they wear gloves. So I don't know if you got a strap or not, so that's why I'm gonna call you out like I did, that's all."
Augustine assured Officer Park he did not have a weapon and meant no harm. Park replied, "Well now I know that, but before I didn't know that. So we're going to do what we have to do, okay? Kick your legs [inside the patrol car] in real quick. I'm going to go talk to [the other officers], have a little chat, see what's up, OK?" Before he left Augustine, however, Park again asked, "You guys come in a car, or what?" Augustine answered he had. Park then asked, "Where's your car?" Augustine gestured with his head and responded the car was parked by his friend's house. In a series of short questions and answers Park then determined the house was "right around the corner"; the car was a black Dodge; and Augustine's confederate had the keys. Park then shut the car door and went to get the keys from Floyd.
The interchange between Park and Augustine from the time Augustine was handcuffed until Park went to retrieve the car keys lasted just over four minutes.
DISCUSSION
1. Governing Legal Principles
a. Habeas corpus
"'"'For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence: defendant thus must undertake the burden of overturning them.'"'" (People v. Kim (2009) 45 Cal.4th 1078, 1107; accord, People v. Ault (2004) 33 Cal.4th 1250, 1268; In re Avena (1996) 12 Cal.4th 694, 710.) "'Because a petition for writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them.' [Citation.] The petitioner 'must prove, by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus.'" (In re Price (2011) 51 Cal.4th 547, 559.)
b. Ineffective assistance of counsel
"''To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"'" (People v. Rices (2017) 4 Cal.5th 49, 80; accord, People v. Johnson (2016) 62 Cal.4th 600, 653; In re Roberts (2003) 29 Cal.4th 726, 744-745; see Strickland v. Washington (1984) 466 U.S. 668, 694.) The burden of sustaining a charge of inadequate or ineffective representation is on the defendant. (People v. Bell (2019) 7 Cal.5th 70, 125; People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.)
"'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of professional assistance."' [Citation.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.'" (People v. Weaver (2001) 26 Cal.4th 876, 925-926; accord, People v. Rices, supra, 4 Cal.5th at p. 80 ["'"[w]hether to object to inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence"'"]; People v. Ledesma (2006) 39 Cal.4th 641, 746 ["[u]nless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy'"].)
To make the requisite showing of prejudice, it is not sufficient to show the alleged errors may have had some conceivable effect on the trial's outcome; the defendant must demonstrate a "reasonable probability" that absent the errors the result would have been different. (People v. Williams (1997) 16 Cal.4th 153, 215; People v. Mesa, supra, 144 Cal.App.4th at p. 1008; see In re Hardy (2007) 41 Cal.4th 977, 1025 [the defendant bears the burden of showing a "probability of prejudice 'sufficient to undermine confidence in the outcome'"].)
c. Miranda and investigatory inquiries during a temporary detention
"A defendant who is in custody . . . must be given Miranda warnings before police officers may interrogate him." (People v. Haley (2004) 34 Cal.4th 283, 300.) "'[C]ustody' is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion." (Howes v. Fields (2012) 565 U.S. 499, 508-509.) Custodial interrogation means "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." (Miranda, supra, 384 U.S. at p. 444; accord, Illinois v. Perkins (1990) 496 U.S. 292, 296; People v. Thomas (2011) 51 Cal.4th 449, 476.)
"[W]hether a suspect is 'in custody' [for purposes of Miranda] is an objective inquiry." (J.D.B. v. North Carolina (2011) 564 U.S. 261, 270.) "'Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave.'" (Ibid.)
"Relevant factors include the location of the questioning [citation], its duration [citation], statements made during the interview [citations], the presence or absence of physical restraints during the questioning [citation], and the release of the interviewee at the end of the questioning." (Howes v. Fields, supra, 565 U.S. at p. 509.) Other factors include whether there has been a formal arrest, the ratio of officers to the individual, and the demeanor of the officer. (See In re M.S. (2019) 32 Cal.App.5th 1177, 1188.) Courts may also consider "whether the officer informed the person he or she was considered a witness or suspect, . . . whether the police were aggressive, confrontational, and/or accusatory, and whether the police used interrogation techniques to pressure the suspect." (People v. Davidson (2013) 221 Cal.App.4th 966, 972.)
"[T]he term 'custody' [for Miranda purposes] generally does not include 'a temporary detention for investigation' where an officer detains a person to ask a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." (People v. Farnam (2002) 28 Cal.4th 107, 180; accord, People v. Clair (1992) 2 Cal.4th 629, 679; see Berkemer v. McCarty (1984) 468 U.S. 420, 439 [when a policeman reasonably suspects someone has committed or is about to commit a crime, the officer may detain that person briefly in order to "'investigate the circumstances that provoke suspicion'" and without giving Miranda warnings "may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions"]; People v. Davidson, supra, 221 Cal.App.4th at p. 970 ["[a] custodial interrogation does not occur where an officer detains a suspect for investigation and the questioning is limited to the purpose of identifying a suspect or 'to obtain [sufficient] information confirming or dispelling the officer's suspicions'"].) "'[B]rief and casual' questioning during a temporary detention" is permissible because the very purpose of a temporary detention is to enable the police to determine "whether they should arrest a suspect and charge him with crime, whether they should investigate further, or whether they should take no action because their initial suspicion proved groundless." (Davidson, at p. 971; see People v. Manis (1969) 268 Cal.App.2d 653, 661-662 ["Do we then allow the police to ask questions of persons suspected of crime who have been temporarily detained for investigation? In California the answer is yes, an answer initially formulated as the privilege of the police to seek out and question suspects and those believed to have knowledge of crime, but which has been subsequently broadened to include brief questioning of persons who have been involuntarily detained"]; see also Miranda, supra, 384 U.S. at p. 477 ["[g]eneral on-the-scene questioning as to facts surrounding a crime . . . is not affected by our holding"].)
"Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] 'When reviewing a trial court's determination that a defendant did not undergo custodial interrogation,' an appellate court accepts the trial court's findings of historical fact if supported by substantial evidence, but independently determines 'whether, given those circumstances,' the interrogation was custodial." (People v. Kopatz (2015) 61 Cal.4th 62, 80.) "A determination whether police conduct amounted to a temporary detention for investigation or something more is reviewed independently." (People v. Clair, supra, 2 Cal.4th at p. 678.)
2. Augustine Has Failed To Establish He Received Constitutionally Deficient Representation
Augustine contends his answers (verbal and nonverbal) to Officer Park's questions about the car were the product of custodial interrogation and his trial counsel had no plausible tactical reason for not asserting an objection based on the failure to give him Miranda warnings. The Attorney General asserts Augustine made the statements at issue during Park's investigatory inquiry to determine whether Augustine and Floyd were about to rob the AutoZone store or instead were innocent customers, and thus the statements were admissible despite the absence of Miranda advisements.
The Attorney General's position, which apparently was also the trial court's tentative view, may well be correct. The Supreme Court's decision in People v. Clair, supra, 2 Cal.4th 629 is instructive. In that case several police officers were dispatched to an apartment to investigate a reported burglary. Two people, one of whom was holding a tire iron, were standing in front of the apartment. A rear kitchen window showed signs of entry. The police found the defendant inside, lying in a bed under the covers. An officer approached him with his gun drawn and ordered him not to move. The officer asked the defendant who he was, if he had identification, and if he lived in the apartment. The defendant gave a false name and admitted he did not live there. The officer then asked the defendant what he was doing there, and the defendant responded, falsely, that he had spent the previous night with a woman who lived in the apartment. The officer arrested the defendant for burglary, approximately 10 minutes after entering the apartment. (Id. at pp. 648-649, 675.)
The defendant moved to suppress his statements for failure to advise him of his Miranda rights, arguing the officer's conduct "went beyond a temporary detention for investigation" that would not require Miranda warnings. (People v. Clair, supra, 2 Cal.4th at p. 675.) The trial court denied the motion. The Supreme Court affirmed that ruling, holding the interaction "amounted only to a temporary detention for investigation" and, therefore, was the sort of "'[g]eneral on-the-scene questioning as to facts surrounding a crime'" that did not require Miranda warnings. (Id. at p. 679.) The Court explained the officer "did no more than was permitted, asking defendant 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 defendant—who was under the covers in the bed in the bedroom—with gun drawn, and ordered him not to move, was altogether reasonable under the circumstances. Certainly, this fact alone does not transform the situation into one of 'custody.' [Citation.] Neither do the other facts, whether considered singly or together." (Ibid.)
Similarly, in People v. Davidson, supra, 221 Cal.App.4th 966 a police officer, responding to a 911 emergency call about a stolen motorcycle, saw the defendant pushing a motorcycle down the street. When the defendant noticed the patrol car, he changed direction and attempted to hide the motorcycle. The officer ordered the defendant to put the motorcycle down and step toward him. The defendant placed a flat-blade screwdriver on the seat of the motorcycle and looked like he was ready to flee. The officer handcuffed the defendant for safety purposes, told him to sit on the sidewalk curb, explained he was investigating a possible stolen motorcycle in the area and told the defendant he was detaining him while he investigated the situation. He asked the defendant, "'Is this your vehicle?'" After the defendant said he had found the motorcycle in some bushes, he was arrested. (See id. at pp. 969-970, 972.)
At trial the defendant argued his prearrest statement was inadmissible because he was not advised of his Miranda rights. The trial court ruled the officer's question, "'Is this your vehicle?'" did not constitute custodial interrogation and the defendant's statement was admissible. (People v. Davidson, supra, 221 Cal.App.4th at p. 970.) Our colleagues in Division Six affirmed that ruling. (Id. at p. 973.) The court explained "[h]andcuffing a suspect during an investigative detention does not automatically make it custodial interrogation for purposes of Miranda." (Id. at p. 972.) The court focused on the fact the reason for handcuffing the defendant was officer safety and concern the defendant would flee; the officer advised the defendant he was being detained for investigatory purposes; the detention lasted only two minutes; the officer was alone; and the setting was a public sidewalk as opposed to the police station. (Ibid.)
Here, Augustine made his statements while handcuffed in the back of a police car (albeit with the door open and his feet outside the car), after the police had pointed a gun at him and ordered him out of the store, with police dogs barking loudly. (See People v. Taylor (1986) 178 Cal.App.3d 217, 228-229 ["[o]ne well-recognized circumstance tending to show custody . . . is the degree of physical restraint used by police officers to detain a citizen: 'If the police officer uses physical restraint on the suspect . . . it is more likely to be deemed custodial than if the questioning occurs without physical restraint or opportunity to restrain'"].) However, Park had holstered his gun before questioning Augustine. (Id. at pp. 229-230 ["[i]t goes without saying that the display of a weapon by police officers plainly conveys to a reasonable citizen the message that he is not free to leave"; however, "the crucial consideration is the degree of coercive restraint to which a reasonable citizen believes he is subject at the time of questioning. Police officers may sufficiently attenuate an initial display of force, used to effect an investigative stop, so that no Miranda warnings are required when questions are asked. Thus, for example, a police officer may well act reasonably in drawing his gun while he approaches a citizen in an uncertain situation. However, having ascertained that no immediate danger justifies his display of his weapon, the officer may also reholster it"]; cf. People v. Holloway (2004) 33 Cal.4th 96, 120 [finding the defendant was not in custody at time of questioning where the defendant was released from handcuffs prior to questioning]; In re Joseph R. (1998) 65 Cal.App.4th 954, 957, 961 [finding the defendant was not in custody at the time of questioning where the police had released him from the patrol car and taken off his handcuffs prior to questioning].)
Officer Park explained to Augustine the police had initially displayed force and restrained him because they received a call of a robbery in progress and did not know if Augustine and Floyd were armed. Park assured Augustine he was not under arrest, told him to relax and spoke to Augustine using a calm and nonconfrontational tone of voice, while telling Augustine there may have been a misunderstanding about what Augustine was doing at the store. A reasonable interpretation of this interaction is that Officer Park tried to diffuse the situation and reduce Augustine's stress from the initial encounter, while attempting to determine whether Augustine was simply a customer rather than a would-be robber.
Other factors also support a conclusion the interchange between Officer Park and Augustine is properly considered an investigative inquiry during a temporary detention. Although more than one officer was present at the scene, only Park was with Augustine when he was questioned. (See People v. Lopez (1985) 163 Cal.App.3d 602, 609 "[W]hile there were four officers present, they did not congregate around defendant but were dispersed among the three suspects. One officer alone approached and questioned the defendant. The nature of the questioning was investigatory rather than accusatory"].) The questioning was relatively brief, and the Park's questions were limited to his attempt to ascertain whether Augustine and Floyd were at the store to buy parts or commit robbery. Asking whether they had arrived in a car that needed repair was a useful part of Park's preliminary investigation.
We need not resolve the ultimate question of admissibility, however. Given the circumstances here, including the trial court's tentative ruling, Augustine's defense counsel made a reasonable tactical decision, as explained in his declaration, to limit Officer Park's testimony concerning his questioning of Augustine to a single, narrowly focused leading question, rather than to formally object, permitting a more complete description of the interchange, but preserving the issue for appeal. As discussed, an appellate ruling Augustine's statements were the product of custodial interrogation was anything but certain; and the potential damage from permitting the jury to hear Augustine's other responses to Park's questions, including that he had a prior conviction for possessing drugs for the purpose of sale and had driven to the AutoZone store with Floyd, as well as from Park's description of Augustine's demeanor during the questioning, was similarly uncertain. In the context of these facts, Augustine has failed to demonstrate his counsel's decision not to object fell outside "'the wide range of reasonable professional assistance.'" (In re Andrews (2002) 28 Cal.4th 1234, 1259.)
3. Augustine Has Failed To Demonstrate a Reasonable Probability of a More Favorable Result
In addition to failing to demonstrate his trial counsel's tactical decision was unreasonable, Augustine has not shown a reasonable probability that, but for his counsel's failure to object, the outcome of the trial would have been different.
Augustine first contends the purported error was prejudicial with respect to the two attempted robbery counts because, without evidence of Augustine's statements, which led to the discovery of the car he and Floyd had left running with their wallets inside, the remaining evidence was insufficient to prove he intended to rob the AutoZone store on February 2, 2016 and had taken the necessary direct but ineffectual step toward committing that crime.
"Attempted robbery requires the 'specific intent to commit robbery and . . . a direct but ineffectual act toward the commission of the crime.' [Citation] . . . 'The crime of attempted robbery requires neither the commission of an element of robbery nor the completion of a theft or assault.' [Citation.] 'The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime.'" (People v. Sánchez (2016) 63 Cal.4th 411, 470.) "Instead, '"it is sufficient if [the conduct] is the first or some subsequent act directed towards that end after the preparations are made."' [Citation.] In other words, . . . the act must represent '"some appreciable fragment of the crime."'" (People v. Watkins (2012) 55 Cal.4th 999, 1021.)
As Augustine argues, entering the store just before closing time and asking employees about auto parts were not inherently suspicious or indicative of an intent to commit robbery. Evidence he and Floyd had left their car running, parked away from the AutoZone store and out of range of its security cameras, was compelling evidence the two men intended to rob the store and had taken concrete steps toward the commission of the crime. However, there was ample other evidence they intended to rob the AutoZone store and had put their plan into action, only to be thwarted by the arrival of the police.
Critically, the jury determined Augustine had previously committed two strikingly similar robberies of AutoZone stores. The modus operandi for those two offenses was the same as the plan being implemented on February 2, 2016. The two prior robberies had targeted AutoZone stores in South Los Angeles just before closing time; similarly, on February 2, 2016 Augustine and Floyd entered the Gardena AutoZone just before closing time. Like the two men had done before, they staggered their entrances to the store, used the ruse that they were customers interested in specific auto parts, and engaged the store employees in conversation before overcoming them with force. Indeed, although Augustine was not charged as a participant in the December 17, 2015 robbery of this AutoZone store, Floyd had used the same tactics during that earlier robbery: Entering the store shortly before closing time and wearing the same construction vest, he had engaged Vinegar in conversation about brakes before grabbing him and carrying out the robbery.
Given these other strikingly similar robberies committed by Augustine and Floyd, the jury had strong evidence from which to conclude that Augustine and Floyd entered that AutoZone store on February 2, 2016 intending once again to commit robbery. (See People v. Robbins (1988) 45 Cal.3d 867, 879 ["'if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [citations], and . . . such prior conduct may be relevant circumstantial evidence of the actor's most recent intent"].) "That the incident never progressed to the point where the assailants could say to the [employees], 'This is a robbery, give us your property,' is immaterial because the reasonable inferences the jury could draw from the evidence amply support the finding that committing a robbery was their unspoken intent." (People v. Alexander (2010) 49 Cal.4th 846, 919.)
Further, the evidence separate from the running getaway car amply established Augustine and Floyd had put in motion several steps typical of their robberies. Besides staggering their entrances near closing time and asking about brakes, both men had their hoods of their sweatshirts pulled over their heads; and Augustine was wearing gloves as he had during the earlier crimes. These acts constituted "appreciable fragments" of the intended robbery. (People v. Watkins, supra, 55 Cal.4th at p. 1021.)
Augustine also argues the evidence about the running car, discovered as a result of his statement to Officer Park, prejudiced him on the other robbery counts with which he was charged, suggesting the evidence he participated in those offenses was "very thin." He emphasizes that the employee who testified about the December 19, 2015 robbery was not able to identify him; the employee had identified Floyd from a photographic lineup, but stated he did not get a good look at the other two robbers. However, the jury saw surveillance video footage and still shots from that robbery depicting an African-American man with facial hair, wearing a distinctive red hooded sweatshirt with black sleeves and a Jumpman logo just like the one Augustine was wearing at the time of his arrest. The footage also revealed the man was wearing gray gloves like the ones Augustine was wearing when arrested. Further, as discussed, the modus operandi of the crime was the same as the other robberies.
As for the January 7, 2016 robbery, Augustine notes one of the employees (Carrillo) did not identify him in a photographic lineup and testified the robber in red was "maybe 6 feet 8 inches tall," much taller than Augustine. The second employee who testified (Tapia) did not identify Augustine at the preliminary hearing. However, Tapia had identified Augustine from a photographic lineup one month after the robbery, and both Tapia and Carrillo identified him at trial. Moreover, the jury viewed surveillance video footage from the robbery showing an African-American man with facial hair, wearing grey gloves and a red hooded sweatshirt with black sleeves and a Jumpman logo, like those worn by the man in the surveillance video from the December 19, 2015 robbery and worn by Augustine at the time of his arrest on February 2, 2016. The man in the video footage from the January 7, 2016 robbery was also wearing black and red sneakers with red laces and white bottoms that looked like those Augustine was wearing at the time of his arrest. And again, the striking similarities of all the robbery offenses constituted strong evidence they were committed by the same individuals. In sum, Augustine has failed to meet his burden to show a reasonable probability exists that, but for counsel's failure to object to the admission of Augustine's statements, the result at trial would have been more favorable to him on any of the counts on which he was convicted.
DISPOSITION
The petition for writ of habeas corpus is denied.
PERLUSS, P. J. We concur:
SEGAL, J.
FEUER, J.