Opinion
A149620
01-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY HALL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC196985A)
Following a jury trial, defendant Jeffrey Hall was convicted of receiving stolen property. He was sentenced to five years in county jail. Defendant asserts the trial court erroneously admitted his statements to the police because they were made during a custodial interrogation without the requisite Miranda warning. Defendant also contends the trial court erred in instructing the jury with CALCRIM No. 372 on flight. We affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
In a related petition for a writ of habeas corpus (case No. A151862), defendant likewise argues he received ineffective assistance of counsel, and provides supporting declarations. We deny the petition today by separate order.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with receiving a stolen vehicle (Pen. Code, § 496d, subd. (a); count 1) and taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a); count 2). As to both counts, the information further alleged defendant suffered multiple prior felony convictions and prior prison terms. (Pen. Code, § 667.5, subd. (b).)
On April 6, 2016, the owner of a rental car business noticed one of his rental cars, which he valued at $8,000, was missing and reported it stolen. The owner subsequently found the stolen car—parked illegally in a red zone—on April 15, 2016, about a block away from his business. The car was locked and had a key in the ignition. The owner spoke with Officer Maldonado and told him he had found the stolen car.
Maldonado testified he searched the vehicle and found a bag on the front passenger seat with documents containing defendant's name. He was familiar with defendant due to prior police contact. Maldonado explained he then sought out defendant because he "was a suspect and I needed to get his side of the story and explanation as to why these things [were] in the car." Maldonado located defendant in the vicinity of the rental car business shortly thereafter. Maldonado was approximately 40 or 50 feet away from defendant when defendant saw his patrol car approaching, quickly turned around, and began to walk away at a hurried pace. When Maldonado instructed defendant to stop, he did so. Maldonado directed defendant to sit on the curb, and two other officers arrived at the scene shortly thereafter.
After stopping defendant, Maldonado questioned him about the stolen car. This interview was recorded on Maldonado's body camera, and a transcript of the interview was provided to the jury. As set forth in the transcript and Maldonado's testimony, defendant stated he bought the car for $400 or $500 from someone in San Francisco and had been driving it. Defendant also stated he did not know the seller's name or whether the car had been stolen. He informed Maldonado he asked the seller if the car was "hot." Defendant recounted that when the seller stated it was not, he responded, "it sure seems like it at this price" but "[i]t doesn't matter" because he just needed "something to run around and leave behind." In response, Maldonado noted how "little" $500 was for a car worth thousands. Defendant stated he did not know and was "not very American."
Defendant also offered to show Maldonado a receipt for the vehicle purchase. When Maldonado and defendant went to retrieve the receipt, Maldonado stated, "Let's go. You run from me, I'm gonna catch you, I'mma drop you so hard." The receipt provided by defendant was handwritten on a piece of paper torn from a notebook. It was not signed by either defendant or the purported seller. When Maldonado asked defendant why the receipt was not signed, he replied, "It was a quick thing." Maldonado subsequently arrested defendant. Maldonado testified he decided to do so following his interview with defendant and based in part on defendant's statements.
The jury found defendant not guilty of taking a vehicle without the owner's consent (count 2). However, defendant was convicted of receiving a stolen vehicle (count 1) and sentenced to an aggregate term of five years in county jail.
II. DISCUSSION
A. Ineffective Assistance of Counsel
Defendant contends he received ineffective assistance of counsel because his trial counsel failed to move to suppress his interview statements on the ground that he did not receive a Miranda warning.
"Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result." (People v. Dennis (1998) 17 Cal.4th 468, 540.) "To establish prejudice . . . . [w]hen the alleged deficiency is the failure to make a suppression motion, the defendant must show . . . the motion would have been successful." (People v. Gonzalez (1998) 64 Cal.App.4th 432, 438.) But if a motion is meritless, it by definition could not affect the trial outcome and an attorney is not ineffective for failing to make it. (People v. Thompson (2010) 49 Cal.4th 79, 122.)
As we explain below, Maldonado was not required to provide a Miranda warning to defendant because his interview was not "custodial" within the meaning of Miranda and its progeny. A suppression motion therefore would have failed, and defendant was not denied effective assistance of counsel.
1. Miranda v. Arizona
" 'An interrogation is custodial, for purposes of requiring advisements under Miranda, 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 question being whether the person was formally arrested or subject to a restraint on freedom of movement of the degree associated with a formal arrest. [Citation.] '[C]ustody must be determined based on how a reasonable person in the suspect's situation would perceive his circumstances.' " (People v. Linton (2013) 56 Cal.4th 1146, 1167.)
"[I]n order to determine how a suspect would have 'gauge[d]' his 'freedom of movement,' courts must examine 'all of the circumstances surrounding the interrogation.' " (Howes v. Fields (2012) 565 U.S. 499, 509 (Howes).) "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.' [Citation.] 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 suspect's freedom of movement during the interview, 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." (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404.)
" '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 must "apply a deferential substantial evidence standard" [citation] to the trial court's factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, "a reasonable person in [the] defendant's position would have felt free to end the questioning and leave." ' " (People v. Moore (2011) 51 Cal.4th 386, 395.)
2. Analysis
Based on these legal principles, defendant was not subjected to a custodial interrogation when he made the statements to Maldonado regarding how he acquired the stolen car. The evidence shows defendant's detention was similar to a traffic stop and roadside questioning, which do not trigger Miranda where, as here, a " 'temporary and relatively nonthreatening detention' " occurred. (Howes, supra, 565 U.S. at p. 510.) Maldonado made no effort to restrain him apart from requesting that he sit on the curb. The officer did not handcuff defendant, did not display any weapons, and the questioning took place on a public street where one or two of defendant's acquaintances were present.
In addition, the officer's questions were "investigatory, not accusatory." (People v. Kopatz (2015) 61 Cal.4th 62, 81.) The interview of defendant actually began with him making an unsolicited statement to the police. After being asked to "[h]ave a seat," defendant stated he just saw an acquaintance "like a minute ago" who "told me he was just [by the vehicle] and he saw you guys there." Defendant then explained, also unprompted, "What happened is I got the car. . . . I got the car in San Francisco from a guy. I got a receipt, bill of sale from him." Maldonado then followed up with broad, investigative questions, such as, "What's up with that car? Whose car is that?," "who'd you buy it from?" and "when did you get the car . . . ?" He then asked additional investigative questions focused on the information defendant provided, such as, "Why'd you ask him if it was hot?," "When you got the car . . . , did it have license plates on it?" and "How come no one signed [the bill of sale]?" During the interview, Maldonado never informed defendant that he was a suspect or stated he had evidence to prove defendant's guilt of any crime. Nor did Maldonado employ any interrogation techniques beyond simple conversation. We also note the interview took less than 15 minutes. These facts suggest defendant's detention was not a custodial interrogation.
Undoubtedly, however, some of the circumstances surrounding defendant's detention do support his claim that he was subject to a custodial interrogation. Specifically, Maldonado initiated contact with defendant and two other uniformed officers were present when he was interviewed. Defendant also was instructed to sit on the curb, he was not free to leave, and he was arrested at the end of the interview.
In assessing these facts, we note other courts, including our Supreme Court, have declined to find custodial interrogations in similar or more extreme situations. For example, in People v. Clair (1992) 2 Cal.4th 629, 679, the Supreme Court found the defendant was not in custody, but merely subjected to a temporary detention when the police, with guns drawn, approached the defendant who was under the covers in a bed, ordered him not to move, and asked him questions about who he was and what he was doing in the apartment. Similarly, in People v. Vasquez (1993) 14 Cal.App.4th 1158, the police observed an individual they believed to be selling drugs, and subsequently detained the individual and asked him if he was selling drugs. The court concluded the detention was not a custodial interrogation because the officer used "no more force than that projected by his uniform," the encounter was short and took place "on a public street in broad daylight," and the police did not state the defendant was the focus of an investigation or confront him with incriminating evidence. (Id. at p. 1163; see also People v. Morris (1991) 53 Cal.3d 152, 196-198, overruled on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [noncustodial detention when police asked the defendant if he was "Bruce Morris," asked if he was driving a van they knew contained marijuana, and then arrested him, because the "questioning was brief and nonaccusatorial," the inquiry took place not in a jail or station house, but in a motel room, and there was no physical restraint]; People v. Lopez (1985) 163 Cal.App.3d 602, 608-609 [defendant not in custody for Miranda purposes when he was ordered out of car, detained for 15 minutes at roadside, and questioned by an officer about suspected stolen goods]; People v. Robertson (1982) 33 Cal.3d 21, 37-38 [police not required to give Miranda warning before asking defendant if suspect car was his because the interrogation was conducted in a parking lot, was short and nonaccusatory, and the defendant had voluntarily accompanied the officers to the parking lot].)
Defendant relies on People v. Abbott (1970) 3 Cal.App.3d 966 (Abbott), to assert he was subject to a custodial interrogation because he was the focus of the police investigation. Such reliance is misplaced. In Abbott, the court concluded an incriminating statement should be suppressed because "at the time the arresting officer approached and began to interrogate [the defendant], the investigation was not a general inquiry into an unsolved crime [but] had focused specifically upon [the defendant]." (Id. at p. 969.) The Abbott court also noted the officer "intended to elicit an incriminating statement" and asked such questions for the purpose of apprehending him. (Ibid.)
Following the decision in Abbott, courts have since clarified "the focus of official investigation is irrelevant to custody unless it is somehow communicated to the defendant." (People v. Bellomo (1992) 10 Cal.App.4th 195, 200; see Berkemer v. McCarty (1984) 468 U.S. 420, 442 ["A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time"].) Here, Maldonado neither informed defendant directly he was a suspect, nor suggested as much by way of accusatory questioning. (See People v. Bellomo, at p. 200.) And unlike the officer in Abbott, who asked, " 'What have you got in your pocket?' " (Abbott, supra, 3 Cal.App.3d at p. 969), here, defendant initiated discussion of the car when Maldonado requested he sit down. Maldonado then asked follow-up questions about the information defendant offered. As Maldonado testified, the purpose of his questions was to investigate the circumstances surrounding the stolen vehicle, and he had not planned to arrest defendant when he was initially detained.
Considering the totality of the circumstances surrounding defendant's interrogation, we conclude defendant was not subject to a custodial interrogation triggering his right to a Miranda warning prior to questioning. Any such suppression motion would have been futile, and defendant thus was not denied effective assistance of counsel. B. Instruction on Flight
Over defense objection, the court instructed the jury on CALCRIM No. 372 (defendant's flight) as follows: "If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself." Defendant contends the trial court erred in instructing the jury on flight because he neither fled immediately after a crime nor after accusation of committing a crime. We disagree.
"[A] flight instruction 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' [Citations.] ' "[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." ' " (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
Defendant asserts the evidence did not support a flight instruction because the delay between the vehicle theft and his alleged flight negates any possibility that his movements were motivated by guilt. Specifically, he notes the car was reported stolen on April 6 and found on April 15, "[s]o at that point any crime was long completed." However, the instruction does not require " 'a defined temporal period within which the flight must be commenced . . . .' [Citation.] This court has held that flight is relevant to show consciousness of guilt even when the flight occurred four weeks after [the crime]." (People v. Leon (2015) 61 Cal.4th 569, 607; see People v. Carter (2005) 36 Cal.4th 1114, 1182 ["the instruction neither requires knowledge on a defendant's part that criminal charges have been filed, nor a defined temporal period within which the flight must be commenced, nor resistance upon arrest"].) Accordingly, any delay in defendant's alleged flight does not dispel the possibility that his actions indicated an attempt to "avoid being observed or arrested."
Relying on People v. Crandell (1988) 46 Cal.3d 833, 869 (Crandell), abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365, defendant next contends leaving the vehicle and then quickly walking away from an officer was insufficient to justify the flight instruction. In Crandell, the defendant left a house where he had killed two people. The court noted the "[d]efendant did not leave to avoid being observed . . . and he did not expect the crimes to become known before his intended return. He left to accomplish specific tasks and with the intent of returning to dispose of the bodies. There is no evidence he ever wavered in this intent; indeed, he was arrested while returning and less than a block from the [victims'] house." (Id. at pp. 869-870.) Because "his leaving was not flight in the absence of any evidence from which a jury could reasonably infer that he left to avoid being observed or arrested," the court concluded the instruction on flight was improper. (Id. at p. 869.)
In this case, there is no question defendant left the stolen vehicle and, when located by the police, he changed direction and quickly walked away from them. But the parties offer differing explanations for his movements. Defendant claims the presence of his belongings in the car indicated an intent to return, and he was simply going about his business when stopped by the police. The Attorney General asserts defendant fled because he left the keys in the vehicle's ignition (indicating no intent to return), and his decision to turn and quickly walk away from the marked police car was for the purpose of avoiding arrest. (See People v. Bradford, supra, 14 Cal.4th at p. 1055.) Despite the divergent explanations for defendant's movements, the evidentiary basis for the flight instruction requires sufficient, not uncontradicted, evidence. (People v. Richardson (2008) 43 Cal.4th 959, 1020.) We agree with the Attorney General the evidence satisfied this standard. (People v. Bonilla (2007) 41 Cal.4th 313, 328 ["To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence."].)
Defendant cites Illinois v. Wardlow (2000) 528 U.S. 119 and U.S. v. Saroeuth (E.D. Pa. Apr. 12, 2011, No. 10-cr-462-01) 2011 WL 1457168, to support his claim that he did not flee from the police but was simply going about his business. Neither case supports his position. In Wardlow, the police were patrolling a high crime area when the defendant looked in the direction of the officers and ran down a gangway and alley. (Wardlow, at pp. 121-122.) The Supreme Court found the defendant fled and distinguished this conduct from that of an individual who ignores the police and goes about his business when approached by an officer. (Id. at p. 125.) In Saroeuth, the defendant did not avoid the police when approached, but instead ignored the officer's question, mounted his bicycle, and rode away. (Saroeuth, at p. *1.) The court concluded the "[d]efendant was not fleeing the scene immediately prior to being pursued, but was merely peddling on his bike and exercising his right to go about his business." (Id. at p. *7.) Here, defendant's conduct more closely parallels the defendant's in Wardlow. He did not ignore the police but, upon seeing the marked police car, changed course and quickly walked away from the police. As such, the jury could reasonably conclude defendant was not simply "going about his business."
Moreover, any error in instructing the jury on flight was harmless. (People v. Clem (1980) 104 Cal.App.3d 337, 344-345 [reversal required only if there is a reasonable probability that a result more favorable to the defendant would have been reached had the instruction not been given].) "In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) Here, the flight instruction itself "did not posit the existence of flight; both the existence and significance of flight were left to the jury." (Crandell, supra, 46 Cal.3d at p. 870; see CALCRIM No. 372 ["it is up to you to decide the meaning and importance of [defendant's] conduct"].)
The court also instructed the jury with CALCRIM No. 200, as follows: "Some of these instructions may not apply depending on your findings about the facts of the case. Do not assume because—just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." Nor did the prosecutor mention flight or the flight instruction in her closing argument. (Crandell, supra, 46 Cal.3d at p. 870 [no harm where flight "instruction did not figure in the prosecutor's closing argument"].) And there is no evidence, such as questions from the jury, indicating the jury relied on flight in reaching its verdict. For these reasons, it is not reasonably probable that defendant would have received a more favorable verdict if the flight instruction had not been given.
Defendant argues a juror question regarding CALCRIM No. 359 (Corpus Delicti: Independent Evidence of a Charged Crime) indicated the flight instruction was critical to the verdict because the jury wanted to know whether there needed to be some other evidence connecting defendant to the crime apart from his statements. We believe defendant misreads this question. The jury was confused regarding the instruction's reference to both "the charged crime" and "a crime," and sought clarification of these phrases. Nothing suggests the jury was considering this instruction in connection with the flight instruction. Nor does the question suggest the jury was considering defendant's flight (versus, for example, the questionable bill of sale) as the other evidence under CALCRIM No. 359.
We need not address defendant's cumulative prejudice argument because we conclude defendant did not receive ineffective assistance of counsel and the trial court properly instructed on flight. (See parts II.A., II.B., ante.) --------
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.