Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super .Ct. No. FSB19490 Super .Ct. No. FSB19490. Ronald M. Christianson, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Kelley Johnson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
I. FACTS AND PROCEDURAL HISTORY
Defendant aimed and fired several rifle shots at the victim, hitting him once in the chin. On October 23, 1998, defendant pled guilty to one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and admitted the truth of a personal use allegation (Pen. Code, § 12022.5, subds. (a) & (d)). In return, he received an aggregate state prison sentence of five years, which was suspended so long as he successfully completed probation, the terms of which required him to serve 365 days in county jail waiving all credits, report periodically to his probation officer, report residence changes, and pay restitution.
On April 9, 1999, defendant moved the trial court for permission to serve the remainder of his term on weekends. After a hearing on the matter and over the People’s objection, the court granted defendant’s motion. Defendant apparently served 11 consecutive two-day weekends, reducing his remaining sentence by 22 days. However, on the weekend of August 21, 1999, defendant failed to show up at the jail. The following weekend defendant likewise neglected to turn up and the jail terminated him from its weekend program. On December 7, 1999, John Holmes, defendant’s probation officer, mailed a letter to his last known address, but did not receive a response. On February 25, 2000, a probation officer went to defendant’s last known address and was told defendant had gone to Mexico. On March 24, 2000, the People filed a petition for revocation of probation and bench warrant alleging that defendant had failed to complete his sentence, make court-ordered restitution payments, notify his probation officer of his residence change, and report to his probation officer.
Defendant was arrested in Los Angeles on July 27, 2006, for possession of a controlled substance. He was arraigned on the petition for revocation of probation on December 14, 2006. On February 9, 2007, the trial court conducted a contested revocation hearing. The court found defendant in violation of term 1 of his probation (requiring that he serve 365 days in jail), revoked his probation, and imposed the original five-year prison sentence. Defendant contends on appeal that the admission of certain statements he made to his probation officer resulted in Miranda error. He maintains that his confession to the officer that he failed to serve the requisite weekends, used methamphetamine, and had been placed on probation in another matter was the only evidence which supported the revocation of his probation. Therefore, because the statements were made in violation of his federal Fifth Amendment right, via the Fourteenth Amendment, not to incriminate himself, his revocation of probation must be reversed. For the reasons set for below, we shall affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda).
II. DISCUSSION
In the first instance, we note that the sole reason the trial court found defendant in violation of his probation was his failure to serve the entirety of his 365-day jail term. Thus, to the extent that defendant contends the court erred in permitting Holmes to testify that defendant told him he had used methamphetamine and been placed on probation in another county, any Miranda error would be harmless because it was irrelevant. Nonetheless, we shall address defendant’s contention that Miranda error occurred when the court allowed Holmes to testify that defendant told him he had missed his weekend jail “appointments.”
“[No] person . . . shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., 5th Amend.) “[W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege . . . .” (Miranda, supra, 384 U.S. at pp. 478-479.) These procedural safeguards include a police advisement that the individual has the right to remain silent; that anything he says may be used against him in a court of law; that he has the right to an attorney; and that if he cannot afford an attorney, one will be appointed to him free of charge. (Id. at p. 479.) “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” (Id. at p. 444.)
Here, there is no question that defendant was in custody. Holmes testified defendant was in custody at Central Detention in San Bernardino when he interviewed defendant. Likewise, there is no question that defendant was interrogated. Holmes testified that he interviewed defendant, read him the allegations in the petition, and asked him to comment on those allegations. However, Holmes testified that he did not give defendant Miranda warnings prior to initiating the interview because he was not being held for “a new law violation.” Defendant contends the failure to give such warnings rendered his subsequent statements inadmissible and the judgment relying on them reversible. The People counter that defendant forfeited the Miranda issue by not raising it below. The People further maintain that even if he has not forfeited the issue on appeal, defendant is not entitled to Miranda’s Fifth Amendment protections concerning proceedings to revoke his probation. Even if he is, the People claim any error was harmless. We agree with the People that defendant forfeited the issue by failing to raise it below. Nonetheless, we address the merits of defendant’s claim and find that he was not entitled to Miranda’s protections because his statements were not used against him at a subsequent criminal proceeding. Notwithstanding, to the extent that any error was present, it was harmless because defendant repeatedly admitted on the stand the behavior for which the court found him in violation of his probation.
A. Defendant Forfeited the Miranda Issue by Failing to Raise It Below
Failure to raise an argument regarding a Miranda violation at trial forfeits the right to do so on appeal. (People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13; People v. Santana (1982) 134 Cal.App.3d 773, 785; People v. Scott (1994) 9 Cal.4th 331, 352-353.) “‘The general rule is that a defendant must make a specific objection on Miranda grounds at the trial level in order to raise a Miranda claim on appeal.’ [Citations.]” (People v. Mattson (1990) 50 Cal.3d 826, 854.)
On direct, Holmes testified that defendant told him during the interview that defendant was having problems with his wife during the period he was serving his jail time on weekends. Holmes stated this is the reason defendant gave for failing to appear for his weekend sentences. Defense counsel never filed a motion to suppress defendant’s statements nor ever objected to Holmes’s aforementioned testimony. On cross-examination, defense counsel asked Holmes whether he advised defendant prior to their interview that any admissions defendant made could be used against defendant at the revocation hearing. Holmes replied that he did not because “[i]t’s not a new law violation.” Again, defense counsel never objected nor sought to have Holmes’s testimony stricken. Hence, defendant forfeited the issue by failing to raise it below.
For the first time in his reply brief, defendant contends that, to the extent that the issue was forfeited by his failure to object below, the issue remains cognizable on appeal as an ineffective assistance of counsel argument. Setting aside for the moment the fact that appellate courts typically will not recognize issues first raised in a reply brief (People v. Mitchell (1995) 36 Cal.App.4th 672, 674, fn. 1), we determine that the shortest route between two points would be simply to address the Miranda issue on its merits rather than deal with the ineffective assistance of counsel issue. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [appellate courts not barred from addressing issues forfeited by a party’s failure to object].)
B. Miranda Does Not Apply to Probation Revocation Proceedings
The People contend that a probation officer is not required to Mirandize a probationer when conducting a probation interview, whether or not the probationer is in custody and regardless of what stage in the proceedings the interview occurs. Likewise, the People maintain that despite a probation officer’s decision not to issue Miranda warnings, any inculpatory statements made by a probationer at such an interview may be used against him at a revocation of probation hearing. We agree.
In Minnesota v. Murphy (1984) 465 U.S. 420 [104 S.Ct. 1136, 79 L.Ed.2d 409], the defendant’s probation officer obtained information from defendant’s treatment program that he admitted to rape and murder. (Id. at p. 423.) The probation officer requested an interview with the defendant to discuss further treatment options. (Ibid.) At that meeting, the probation officer confronted the defendant with the allegations of rape and murder. (Id. at pp. 423-424.) The defendant became angry and stated he “felt like calling a lawyer.” (Id. at p. 424.) During the course of the meeting, the probationer admitted to the rape and murder. (Ibid.) The probation officer later obtained a warrant for his arrest, arrested him, and a grand jury indicted him for first degree murder. (Id. at pp. 424-425.)
The defendant sought to suppress testimony regarding his confession, but the trial court denied the motion, determining that he was not in custody and that the confession was neither compelled nor involuntary despite the absence of Miranda warnings. (Minnesota v. Murphy, supra, 465 U.S. at p. 425.) The Minnesota Supreme Court reversed, determining that while not in custody, the compulsory nature of the interview required the probation officer to advise the defendant of his Miranda rights. (Ibid.)
The United States Supreme Court “granted certiorari to resolve a conflict among state and federal courts concerning whether a statement made by a probationer to his probation officer without prior warnings is admissible in a subsequent criminal proceeding.” (Minnesota v. Murphy, supra, 465 U.S. at p. 425 italics added.) The court held that “[a] defendant does not lose [Miranda] protection[s] by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements, if those statements are compelled they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted.” (Id. at p. 426, italics added.) “The issue in this case is whether the Fifth Amendment right that [the defendant] enjoyed would be violated by the admission into evidence at his trial for another crime of the prior statements made by him to his probation officer.” (Ibid., italics added.) Thus, any Miranda protections afforded probationers extends solely to subsequent criminal proceedings, not probation revocation hearings.
“We emphasize that [the defendant] was not under arrest and that he was free to leave at the end of the meeting. A different question would be presented if he had been interviewed by his probation officer while being held in police custody or by the police themselves in a custodial setting.” (Minnesota v. Murphy, supra, 465 U.S. at p. 429, fn. 5.) In the present case, defendant was most assuredly in custody; nonetheless, the remedy for any violation of defendant’s Miranda rights here would be the exclusion of the probationer’s incriminating statements at “a subsequent trial for a crime other than that for which he has been convicted[,]” not at his subsequent probation revocation hearing. (Id. at p. 426.) While it is true that the court suggested a probationer’s admission might be deemed compelled where the probationer was physically restrained during a probation meeting or under the belief that his termination of the interview would lead to a revocation of his probation, the court nowhere suggested the remedy in such circumstances would be exclusion of his inculpatory statements at the probation revocation hearing. (Id. at p. 433 & fn. 6.) Indeed, the court repeatedly asserted throughout the opinion that the remedy for any Miranda violation under the circumstances would be exclusion of such admissions only in a subsequent trial for a crime other than that for which he has been convicted. (Id. at pp. 422, 425-426, 429, 431, 434-437.) Furthermore, the court noted that where a probationer was subject to custodial interrogation regarding a condition of his probation which was not, in and of itself, a crime, there could be no Fifth Amendment privilege against self-incrimination. (Id. at p. 435, fn. 7.) Thus, the privilege and its corresponding remedy exists only as applied to subsequent criminal proceedings, not to a hearing on the revocation of probation. A revocation of probation hearing “is not a criminal proceeding.” (Ibid.) “[T]here can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings.” (Ibid.; accord, People v. Monette (1994) 25 Cal.App.4th 1572, 1575-1576.)
In People v. Santana, supra, 134 Cal.App.3d 773, the probation officer conducted a postconviction interview with the defendant for purposes of composing a sentencing memorandum. (Id. at p. 786.) At that interview, the defendant revealed that he had an extensive criminal history, though this was not independently verified. (Id. at p. 778.) At sentencing, the trial court imposed the upper term due to the defendant’s self-admitted criminal history. (Id. at pp. 778-779.) On appeal, the defendant contended he should have been advised of his Miranda rights prior to his probation interview and that the lack of such warnings made his statements regarding his criminal history inadmissible for purposes of sentencing. (Id. at pp. 785-787.)
In the first instance, the appellate court concluded the defendant had forfeited the issue by failing to raise it in the trial court. (People v. Santana, supra, 134 Cal.App.3d at p. 785; accord, People v. Scott, supra, 9 Cal.4th at pp. 352-353.) Reaching the merits regardless, the court found “no authority for the proposition that a probation officer must give a convicted adult defendant a Miranda warning, or otherwise advise the defendant of the consequences of an admission of any fact.” (People v. Santana, supra, at p. 786.) Among a number of reasons the court elucidated for such a rule, the court found that “[p]ublic policy is to promote the willingness of the convicted defendant to talk to and cooperate with the probation officer, secure in the knowledge that his admissions will not be used against him in any proceedings where the issue of his guilt is involved. [Citations.] If a probation officer were required to give the Miranda warning, it might have a chilling effect upon the willingness of the defendant to cooperate, thus frustrating California policy with regard to the role of the probation officer.” (Id. at pp. 786-787, italics added.) Likewise, it noted that, as opposed to the adversarial relationship between a suspect and an investigating officer, “[t]he relationship of probation officer to defendant is far different . . . and consequently . . . reasons for the Miranda rule do not exist.” (Id. at p. 787.)
While the instant case is distinguishable from People v. Santana, supra, 134 Cal.App.3d 773, in that the latter “interview” took place prior to sentencing, and here defendant was interviewed after he had been sentenced and picked up on suspicion of a probation violation, we find little reason to vary the underlying rule. (See People v. Goodner (1992) 7 Cal.App.4th 1324, 1330-1331 [in which the court discussed Minnesota v. Murphy, supra, 465 U.S. 420 at length and concluded there was no effective significance between a presentence and postsentence interview of a defendant by a probation officer for Miranda purposes]; accord, People v. Monreal (1997) 52 Cal.App.4th 670, 681-682, disapproved on other grounds in People v. Trujillo (2006) 40 Cal.4th 165.) In either instance, defendants can feel safe in the knowledge that any incriminating statements made to a probation officer could not be used against them in subsequent criminal proceedings. “Probation revocation, like parole revocation, is not a stage of a criminal prosecution[.]” (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782 [93 S.Ct. 1756, 36 L.Ed.2d 656]; accord, People v. Monette, supra, 25 Cal.App.4th at pp. 1575-1576.)
In the instant case, the probation officer had no real need to act as an investigatory officer because he already had definitive proof that defendant was in violation of his probation. Term 1 of defendant’s probation required that he complete 365 days of county jail time. Term 3 required that defendant report to his probation officer every 14 days after release. Term 7 required that he notify his probation officer of any change of residence within 24 hours. Term 15 required that defendant pay restitution of $220 in total, making monthly payments of $20. Defendant failed to abide by all of these terms and this was unequivocally demonstrated by his probation file. Holmes had no real need to obtain inculpatory statements from defendant because he had sufficient evidence before him to prove indisputably that defendant was in violation of his probation conditions. If anything, the interview conducted by Holmes provided defendant with a chance to give exculpatory reasons to excuse or explain his violations. Here, Holmes indicated that the “interview” consisted primarily of him reading defendant the allegations and asking defendant to respond thereto. Thus, this is precisely the type of situation in which public policy encourages cooperation. Introducing further procedural hoops into such proceedings, such as Miranda warnings, would only encourage a more adversarial and antagonistic process, which would result in breaking down the collaborative nature of probation interviews. Ultimately, defendant’s admissions that he had used methamphetamine and been placed on probation in another matter played no part in the determination that he had violated his probation. Moreover, defendant’s confession that he had not attended all his weekend jail sessions was superfluous because sufficient evidence of his violation of that term existed without it. Should defendant be charged in subsequent criminal proceedings based upon anything contained in his admissions to Holmes, he may then raise Miranda in an attempt to bar those statements’ admissibility. However, Miranda has no applicability to the probation revocation proceedings at issue in this case.
C. Any Miranda Error Was Harmless
Even assuming that Miranda’s protections were applicable to defendant’s probation revocation proceedings, any error in this case was harmless beyond a reasonable doubt.
Errors that are the product of a violation of the United States Constitution, even errors that infringe upon fundamental rights, do not necessarily result in reversal per se. (Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1246, 113 L.Ed.2d 302] [admission of involuntary confession subject to harmless error analysis]; People v. Cahill (1993) 5 Cal.4th 478, 509-510 [admission of involuntary confession subject to harmless error analysis under California Constitution].) Constitutional errors that are subject to harmless error analysis are evaluated under the standard enunciated in Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705], which requires reversal unless the prosecution can show that the error was harmless beyond a reasonable doubt. (Id. at p. 24.) As restated in Neder v. United States (1999) 527 U.S. 1 [119 S.Ct. 1827, 144 L.Ed.2d 35], to determine whether constitutional error requires reversal under Chapman, the reviewing court must answer this central question: “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” (Neder v. United States, supra, at p. 18.)
Even without defendant’s admission that he had failed to show up for weekend jail service, it is clear beyond a reasonable doubt that the trial court would still have found defendant in violation of his probation. As noted above, Holmes already had sufficient, admissible evidence that defendant had failed to abide by the terms of his probation in the form of defendant’s probation file. This, along with Holmes’s testimony, was sufficient for the court to have found defendant in violation of his probation. However, defendant, while on the stand himself, admitted on five occasions that he knew he was required to complete the duration of his jail term by attending jail sessions every weekend, on four occasions that he knew he was required to pay restitution, and on three occasions that he knew he still had time remaining to be served on weekends. Thus, defendant himself provided sufficient evidence to justify the court’s finding that he was in violation of term 1 of his probation conditions when he admitted, on the stand, that he had not completed his jail term.
Nonetheless, defendant attempts to pigeonhole an argument that his due process rights were somehow violated due to the initial insufficiency of the explanations to defendant regarding the terms and conditions of his probation and Holmes’s failure to Mirandize him prior to the interview. Defendant contends he does not speak sufficient English to have understood that he was required to have served all his time on consecutive weekends, that he did not know with whom to speak if he encountered difficulties keeping his weekend appointments, and that he did not entirely understand Holmes’s questions of him. Initially, we note again that defendant did not raise this issue in his opening brief. (People v. Mitchell, supra, 36 Cal.App.4th at p. 674, fn. 1 [appellate court may disregard issue raised for first time in reply brief].) There is no mention of a due process violation in defendant’s opening brief. Likewise, we note that defendant fails to identify which due process right is affected, i.e., federal or state, Fifth Amendment or Fourteenth Amendment. Similarly, defendant fails to support, with citation to authority, his contention that due process requires the issuance of Miranda warnings prior to probation interviews.
Notwithstanding, it is clear here that defendant received sufficient guarantees to due process to warrant upholding the judgment. When first sentenced, defendant was aided by the help of an interpreter and had the assistance of retained counsel who spoke fluent Spanish. The two pages of defendant’s terms and conditions attached to the probation officer’s report dated November 12, 1998, which defendant’s counsel admitted defendant received, were in Spanish. Defendant signed a plea form indicating he had discussed and understood his rights and the consequences of his plea with his attorney. Defendant stood in open court, with the aid of an interpreter, and admitted that he understood the consequences of his plea. The trial court explicitly found that defendant understood the consequences of his plea. At sentencing, defendant reiterated that he understood the consequences of his plea and the court, again, found he did so. When asking the court to allow him to serve his remaining time on weekends, defendant was again represented by Spanish-speaking counsel. Defense counsel indicated that defendant understood that if he failed to miss a weekend, he would end up in state prison. The court directly questioned defendant whether he understood that if he missed a single weekend, he would go to prison. Defendant indicated he comprehended. Defendant received a “Notice to Weekenders” explicitly stating that failure to complete weekend sentences could result in revocation of probation and imposition of state prison time. Defendant signed the form indicating he had received and acknowledged it. Moreover, defendant himself admitted at the hearing on the revocation of probation that he understood he had to complete his remaining jail sentence on consecutive weekends. Finally, Holmes testified that defendant was completely fluent in English, had no problems understanding or responding to his questions, and that a fellow probation officer who spoke Spanish was present during the interview, but was not utilized because he was found unnecessary. The court was fully justified in refusing to believe defendant’s self-serving statements that he spoke little and read no English. Indeed, the trial court expressly stated that “there’s no doubt in this Court’s mind that the defendant knew that a term of his probation was to do his weekends.” Thus, defendant was not denied due process.
III. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.