Opinion
B190896
4-24-2007
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM A. HALVERSON, Defendant and Appellant.
Judy Fridkis, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant and appellant William A. Halverson appeals from a judgment sentencing him to six years in state prison after a jury found him guilty of receiving stolen property, a violation of Penal Code section 496. We affirm the judgment.
Further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
Defendant is a friend of Racquel Searss family, and has known Sears for more than 14 years. On December 5, 2005, he was at Searss home, fixing some toilets and a door. He asked to use Searss computer, and she gave him permission to do so.
Sears kept her backpack underneath the computer desk. In the upper pocket of the backpack, Sears kept a clear plastic wallet that held her identification and an ATM card. At some point on December 5, Sears took her wallet out of the backpack and went to the store. When she got there she noticed that her ATM card was missing. She returned home and called the bank to cancel the card. Defendant was sitting next to her when she called the bank. She did not report the missing card to the police because she did not think it had been stolen; she thought she may have lost it.
Defendant was arrested on an outstanding warrant on December 6, 2005. Glendora police officer Amin Khademi searched defendant as part of the booking process and found an ATM card in defendants pocket. The name on the card was Racquel Sears. Officer Khademi asked defendant how he got the card. Defendant first told the officer that Sears gave him the card to get some plumbing supplies for a job defendant was doing at her house. Defendant then changed his story and said that he found the card in the dumpster. Defendant said that he did not know Sears and he had not been at Searss house.
Defendant was charged by information with two counts: petty theft with a prior (§§ 666/484, subd. (a)) and receiving stolen property (§ 496, subd. (a)). The information also alleged that defendant had served five prior prison terms within the meaning of section 667.5, subdivision (b). After a bifurcated trial, the jury acquitted him on the first count and convicted him on the second count, and the trial court found the prior prison term allegations to be true. The court sentenced defendant to the midterm of two years for the conviction plus four years for four prior prison term enhancements. Defendant appeals.
DISCUSSION
Defendant raises three issues on appeal. First, he challenges the admission of his statements to Officer Khademi on the ground that he had not been advised of his Miranda rights at the time Khademi first questioned him. Second, he contends his sentence cannot stand because the trial court punished him for exercising his right to a jury trial. Third, he argues he was prejudiced by the trial courts failure to instruct the jury with CALJIC No. 2.70. We address each of these issues in turn.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant also contends that all of the statements were improperly admitted because the trial court failed to consider whether defendant actually waived his rights under Miranda. However, defendant did not raise this issue before the trial court; his sole argument for exclusion of the postMiranda statements was that Officer Khamedi intentionally violated Miranda by interrogating defendant before advising him of his rights. Therefore, defendant forfeited this issue. (People v. Ray (1996) 13 Cal.4th 313, 339 [declining to address claim of involuntariness for the first time on appeal when sole ground of suppression motion was police officers delay in advising defendant of his Miranda rights].)
A. Miranda Issues
An Evidence Code section 402 hearing was held before trial to address, among other things, the admissibility of defendants statements to Officer Khademi. No witnesses testified at the hearing; instead, the prosecutor described what happened at the time the statements were made. Defense counsel did not object to this procedure, nor did she contest the prosecutors description of the events. According to the prosecutor, Officer Khademi discovered Searss ATM card in defendants pocket when the officer was booking defendant on December 6, 2005. The officer saw Searss name on the card and asked defendant whose card it was. Defendant said the card belonged to a friend for whom he was doing some plumbing work. Officer Khademi then asked whether that really was whose it was, and defendant responded that he had found the card in a dumpster. After calling Sears and being informed that her ATM card was missing, Officer Khademi advised defendant of his Miranda rights and questioned defendant again. Defendant repeated his claim that he found the card in a dumpster.
Defense counsel argued that all of defendants statements should be excluded because Officer Khademi was interrogating defendant in an attempt to elicit incriminating statements. The trial court ruled that defendants pre-Miranda statements would be excluded, but that defendants post-Miranda statement that he found the card in a dumpster was admissible. When the court instructed Officer Khademi that only the post-Miranda statement was admissible, Khademi asked whether he was allowed to testify about the post-Miranda questioning in which Khademi asked defendant to confirm both of his pre-Miranda statements. The court ruled that anything defendant said during the post-Miranda questioning was "fair game." The court found there had been no intentional violation of Miranda, and that it was a "close call" as to whether the initial questioning had been part of the booking process rather than an interrogation.
On appeal, defendant argues that none of the statements he made to Officer Khademi should have been admitted. He contends the pre-Miranda statements were inadmissible because they were made during a custodial interrogation. He also contends that the post-Miranda statements were the result of a single interrogation process, interrupted only briefly to allow Officer Khamedi to telephone Sears after defendant made the first two statements. Therefore, defendant asserts his post-Miranda statements should have been excluded under Missouri v. Seibert (2004) 542 U.S. 600, because Officer Khamedis recitation of the Miranda warnings could not effectively advise defendant that he could refuse to speak.
We need not determine whether defendants statements to Officer Khamedi were erroneously admitted because any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Cunningham (2001) 25 Cal.4th 926, 994.) The uncontradicted evidence at trial established that defendant was in possession of Searss ATM card the day after Sears discovered it was missing. Sears did not give defendant permission to have the card, and reported it missing to the bank while in defendants company. The prosecutor argued to the jury that defendants contradictory statements to Officer Khamedi showed that defendant stole the card from Searss backpack. But the prosecutor also told the jurors that if they did not believe that was sufficient evidence to establish that defendant stole the card, they could convict him of receiving stolen property because there was no question that he concealed or withheld the card from Sears, knowing it was stolen. The jury acquitted defendant of petty theft, but convicted him of receiving stolen property. In light of the evidence, the prosecutors argument, and the jurys verdict, there is no "`reasonable possibility that [defendants statements] might have contributed to the conviction." (Chapman v. California, supra, 386 U.S. at p. 24.)
B. Defendants Sentence
Defendant contends that he was punished for exercising his right to trial because defendant had been offered a two-year sentence before trial, and during a pretrial hearing on defendants Marsden motion the "the trial judge . . . indicated that appellant would be punished with a harsher sentence if he chose to go to trial." Defendants contention fails for two reasons.
People v. Marsden (1970) 2 Cal.3d 118.
First, the judge who made the remarks upon which defendant relies was not the judge who presided over the trial and sentenced defendant. Thus, the circumstances here are not at all similar to those in the case upon which defendant relies, In re Lewallen (1979) 23 Cal.3d 274, where the trial judges statements at the sentencing hearing indicated that when he imposed the sentence, the judge took into account defendants insistence on going to trial.
At the end of the hearing on defendants Marsden motion, the judge stated: "Jury trial the 7th. All deals are off. That two-year offer is gone. The prosecution will not offer it because the court will not accept it. Your offer is now four. Next Tuesday it will be five."
Second, the trial judge in this case emphatically denied that defendants exercise of his right to trial had any impact on the sentence ultimately imposed. Instead, the judge explained his reason for imposing a six-year sentence rather than the four-year sentence that had been offered before trial: "Im not doing that [i.e., punishing defendant for exercising his right to trial]. Im thinking more of progressive discipline. Hes been to state prison. It seems to me the highest term so far has been four years. Mr. Halverson has never understood any message. Im not punishing him for going to trial. It seems given his record, four years didnt work in the past." Later, the judge stated, "And Im not saying the case is worth seven years, but I think its worth more than four years because Mr. Halverson doesnt get the message at four years." In short, there is nothing in the record that would reasonably give rise to an inference that defendant was punished for exercising his right to trial. (People v. Szeto (1981) 29 Cal.3d 20, 35 [fact that defendant received a more severe sentence than was offered in plea negotiations does not support inference that defendant was penalized for exercising right to trial where sentencing judge did not say anything from which it could be inferred that he was so penalizing defendant].)
C. Failure to Instruct With CALJIC No. 2.70
Defendant contends the trial court committed prejudicial error by failing to instruct the jury with CALJIC No. 2.70, which instructs the jury to view evidence of an oral confession or admission with caution. The Attorney General concedes that the trial court had a sua sponte duty to give this instruction (People v. Beagle (1972) 6 Cal.3d 441, 455), but argues that defendant was not prejudiced by the trial courts failure to give the instruction in this case (citing People v. Padilla (1995) 11 Cal.4th 891, 921 [claim of prejudicial failure to give CALJIC No. 2.70 is evaluated under the People v. Watson (1956) 46 Cal.2d 818, 826, standard]). The Attorney General is correct.
The Supreme Court has explained that "[t]he purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made." (People v. Beagle, supra, 6 Cal.3d at p. 456.) The failure to give the cautionary instruction "`does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error." (People v. Padilla, supra, 11 Cal.4th at pp. 921-922.) In this case, defendant did not challenge that the statements attributed to him were made. In fact, in closing argument defense counsel contended that defendant gave conflicting statements about how he came into possession of the card because he could not tell the police that Sears gave him the card to buy drugs for her. In light of the evidence before the jury and defense counsels argument, it is not reasonably probable that a result more favorable to defendant would have been reached if the trial court had instructed the jury to view defendants statements with caution.
DISPOSITION
The judgment is affirmed.
We concur:
MANELLA, J.
SUZUKAWA, J.