Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIF135209 & RIF139055, Michele D. Levine, Judge.
Laurel M. Nelson, 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, Assistant Attorney General, and Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant, Randy Joe Madrigal, guilty of buying or receiving a stolen vehicle. (Pen. Code, § 496d.) The trial court found true the allegations that defendant suffered four prior convictions that resulted in prison terms. (Pen. Code, § 667.5, subd. (b).) The court sentenced defendant to state prison for a term of six years.
The case discussed in this appeal is case No. RIF135209. Defendant also appeals from case No. RIF139055, in which he entered a guilty plea and was denied a certificate of probable cause. In defendant’s “Statement of Appealability,” in his opening brief, he writes that there will be sentencing issues presented related to case No. RIF139055; however, defendant raised no issues regarding case No. RIF139055. Accordingly, we do not discuss case No. RIF139055.
Defendant makes four contentions. First, defendant contends the trial court erred by allowing his statements to bounty hunters to be admitted, because he was not given Miranda warnings. Second, defendant contends the court erred by not suppressing evidence that was uncovered during a search by bounty hunters; alternatively, if we conclude this argument was forfeited, defendant contends he was denied effective assistance of counsel. Third, defendant asserts the trial court erred by denying his request for a jury instruction concerning the defense of mistake of fact; alternatively, if we conclude defendant forfeited this argument, defendant contends he was denied effective assistance of counsel. Fourth, defendant argues the trial court erred by excluding evidence of defendant’s exculpatory statements. We affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
FACTUAL AND PROCEDURAL HISTORY
Michael Parizo was an employee of the U.S. Fugitive Task Force Agency (the Agency), which is not a government entity. Parizo earned reward money from bail bondsmen by detaining people who were released on bail and who had missed a court appearance. Danny Ray Jones was a private investigator who also worked for the Agency.
On February 26, 2007, Parizo and Jones (the bounty hunters) went to a residence in Moreno Valley to find a fugitive, who was not defendant. As the bounty hunters approached the residence, they saw defendant exit the residence and move towards a bicycle. Jones said to defendant, “‘Come here’” or “stand right there.” Defendant stopped, turned around, slightly spread his legs, and placed his hands on his head. Jones patted defendant down.
During the search, Jones felt something in defendant’s jacket pocket. Defendant told Jones that he had car keys in his pocket. Jones had difficultly retrieving the keys from the pocket, so defendant told Jones how to extricate the keys. Inside the pocket, Jones discovered a car key with an electronic remote. The bounty hunters thought it was unusual that defendant had a car key because they had spoken to defendant a week prior to February 26, and defendant had indicated he did not own a car and that he typically rode a bicycle. Jones pressed the panic button on the remote, and a truck horn sounded repeatedly. Jones deactivated the alarm, went over to the truck, which was approximately 20 or 50 feet away, and found that the key fit the truck’s lock. While Jones was at the truck, Parizo “held . . . defendant in place.” While Parizo held defendant, defendant said, “the truck was stolen.”
Jones contacted the Riverside County Sheriff’s Department to investigate the status of the truck, and was informed that the truck had been reported stolen. Jones requested that a deputy come to the residence. Riverside County Sheriff’s Deputy Jeff Reese arrived at the residence. During his investigation, Deputy Reese discovered that the owner of the truck was Ruben Bubello. Bubello had reported the truck stolen on February 9, 2007. Bubello had left the keys in the ignition of the truck prior to it being stolen. Bubello saw the person who took his truck driving it away, but the person was not defendant.
Defendant testified that prior to exiting the residence on February 26, 2007, he had been sleeping. When defendant woke up, he wanted to go home. Defendant exited the residence with his bicycle and was approached by the bounty hunters. When Jones discovered the key in defendant’s pocket, defendant told him, “‘I don’t know nothing about it. I was asleep. I don’t know. I don’t know where those came from.’” Defendant testified that he did not put the key in his pocket and he did not know anything about the key prior to the bounty hunters showing him the key.
DISCUSSION
A. Miranda Warning
1. Facts
During pretrial motions, defendant made a motion to suppress his statements to the bounty hunters, because defendant had not been informed of his Miranda rights. The trial court reviewed several case opinions, and determined that bounty hunters are generally considered to be private citizens, not state actors, unless they have a contract with a public agency; therefore Miranda warnings were not required. The trial court then concluded that the issue to be addressed was whether defendant’s statements to the bounty hunters were voluntary or involuntary. The court held a hearing on the issue of whether defendant’s statements to the bounty hunters were voluntary.
At the hearing, Parizo testified that he worked for the Agency, which was a private corporation. On the day of the incident, Parizo saw defendant exit the house. The bounty hunters asked defendant to stop, and he did. The bounty hunters searched defendant. The bounty hunters discovered car keys and “numerous crack pipes” when searching defendant. After the bounty hunters triggered the car alarm using the remote, Parizo “held” defendant, while the other bounty hunter investigated the vehicle. At that point, defendant became quiet. Parizo asked defendant, “‘What’s the matter?’” Defendant repeatedly said, “‘I don’t know.’” The bounty hunters continued to ask defendant questions about the crack pipes and the vehicle. Defendant refused to answer the questions because he was “in trouble.” Parizo asked defendant why he was in trouble, and defendant responded, “because the vehicle was stolen.” After making that statement, defendant refused to talk. Parizo testified that he believed handcuffs were placed on defendant after defendant said the vehicle was stolen.
Parizo further testified that a week prior to February 26, he and Jones, who is a retired deputy sheriff, were in the neighborhood searching for the same fugitive. A neighbor suggested asking defendant about the fugitive, and suggested defendant would be at a nearby house. The bounty hunters located defendant sleeping in a van. The bounty hunters knocked on the van and questioned defendant. The bounty hunters discovered defendant was in possession of a knife and an expired parole pass, which indicated that defendant had not checked-in with his parole officer as required.
A parole pass allows a parolee to be in a certain area.
The bounty hunters called a sheriff’s deputy to ask “if he wanted [them] to do anything with [defendant].” The deputy declined. The bounty hunters told defendant to check-in with his parole officer, and asked if defendant had seen the fugitive, but defendant denied seeing him.
Parizo stated that he serves warrants in Orange, Riverside, and San Bernardino Counties and collects reward money if the person being served is on bail. Parizo testified that he would not collect any money for detaining defendant based on a possible parole violation or based on the stolen vehicle.
After Parizo’s testimony, the court found the bounty hunters did not coerce defendant or make any promises to him in exchange for his statements, rather, defendant was “simply acknowledging his knowledge that the vehicle [was] stolen.” The court then reviewed more appellate opinions, and determined that the test to be applied was “whether or not there has been state action involved in the deprivation of a federal right.” The court determined that there was no state action involved in the interaction between defendant and the bounty hunters. The trial court concluded “that the contact between [defendant] and the bounty hunters was one of voluntariness and cooperative behavior.” The court denied the motion to suppress the statements made by defendant.
2. Discussion
Defendant contends the trial court erred when it found the bounty hunters were private citizens, not operating as agents of the government. We disagree.
We review the trial court’s findings of fact for substantial evidence and we review the court’s ruling de novo. (People v. Clair (1992) 2 Cal.4th 629, 678.)
“The procedural safeguards set forth in Miranda ‘come into play only where “custodial interrogation” is involved, and by “custodial interrogation, we mean 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.”’ [Citation.] ‘A private citizen is not required to advise another individual of his rights before questioning him. Absent evidence of complicity on the part of law enforcement officials, the admissions or statements of a defendant to a private citizen infringe no constitutional guarantees.’ [Citations.]” (In re Eric. J. (1979) 25 Cal.3d 522, 527.) Complicity exists where the person questioning the defendant is acting “under any arrangement with the authorities, at their direction, or with their approval.” (In re Deborah C. (1981) 30 Cal.3d 125, 131 (Deborah C.).)
In his opening brief, defendant lists a variety of tests for determining complicity. Defendant cites (1) the test we rely on here from Deborah C., supra, 30 Cal.3d at page 131, which relates to Fifth Amendment issues; (2) the “color of law” test, which relates to civil actions when a person has been deprived of a right (42 U.S.C.A. § 1983), Romanski v. Detroit Entertainment (2005) 428 F.3d 629, 636; (3) the “agency relationship” test, which is essentially the same test from Deborah C. (see People v. Whitt (1984) 36 Cal.3d 724, 745 [discussing agency in regard to the Sixth Amendment]); (4) the “mutual assistance” test, which defendant derived from cases from Virginia, Alaska, and Michigan; (5) the “acting in concert” test which again involves civil cases; and (6) the “public function” test, which defendant derived from civil cases and a case addressing Fourth Amendment issues. We rely on the test set forth in Deborah C. because it provides authority from our Supreme Court on criminal cases that present Fifth Amendment issues, which is similar to the instant case.
There is nothing in the record indicating that law enforcement was involved in the bounty hunters’ questioning of defendant. At the pretrial hearing, Parizo testified that the Agency is a private corporation. The bounty hunters were in the neighborhood looking for a fugitive that was not defendant. When the bounty hunters initially spoke to defendant, approximately one week before the incident at issue, the bounty hunters contacted a deputy sheriff who expressed no interest in apprehending defendant for a possible parole violation. There is nothing in the record indicating that law enforcement officers changed their minds about defendant during the week preceding defendant’s admission that the truck was stolen. Accordingly, there is no reason to conclude that law enforcement officers directed the bounty hunters to question defendant or that they approved of the bounty hunters questioning defendant, because law enforcement expressed no interest in defendant until after he admitted knowing that the truck was stolen.
Further, there is nothing in the record indicating that the bounty hunters had an arrangement with law enforcement officers to apprehend suspects. At the pretrial hearing, Parizo testified that, “for instance,” when he works in Orange County to locate a person that has a felony warrant, he will notify the Orange County Sheriff’s Department of his whereabouts and plans. Parizo did not state that he arranges his plans based on the needs or at the direction of the sheriff. Parizo also testified that when he enters a residence, if there are multiple people inside, he will detain them for safety reasons. Parizo stated that “if there’s a problem . . . [the bounty hunters will] run some individuals for warrants.” If a person has an outstanding warrant, then the bounty hunters will notify the relevant law enforcement agency. Parizo testified that he would not be paid or rewarded for detaining defendant. There is no indication from this testimony that the bounty hunters act under an arrangement with law enforcement; rather, the bounty hunters use the threat of warrants to control a situation “if there’s a problem.”
In sum, there is no indication that the bounty hunters were acting under any arrangement with law enforcement authorities, at their direction, or with their approval. Accordingly, we conclude the trial court did not err by determining that defendant’s statements were admissible.
Defendant contends that law enforcement officials were complicit in the bounty hunters questioning of defendant because (1) the bounty hunters must complete a 40-hour class regarding the power of arrest certified by the Commission on Peace Officer Standards; (2) the bounty hunters were acting beyond their capacity as private fugitive recovery people; (3) the bounty hunters appeared to be officers, because they had a dog in their car, were armed with guns, carried handcuffs, and wore bulletproof vests and shirts with the word “‘Agent’” on them; (4) the bounty hunters referred to themselves as deputies; (5) the bounty hunters contacted law enforcement; and (6) the bounty hunters acted beyond the scope of a citizen’s arrest because the crime allegedly was not committed in their presence.
The flaw in defendant’s argument is that it shows no action, direction, or approval on the part of a law enforcement agency. The bounty hunters contacted law enforcement agencies to inform them of their whereabouts and plans, but there is no indication that the law enforcement agencies wanted the bounty hunters to carry out their plans. Further, when the bounty hunters initially discovered defendant might be in violation of his parole, law enforcement expressed no interest in defendant. In sum, defendant’s argument is unpersuasive because it fails to establish that a law enforcement agency was in any way involved in the bounty hunters’ actions.
B. Search and Seizure
Defendant contends the truck key discovered by the bounty hunters should have been suppressed. Defendant argues the key was made available to the prosecution as the result of an illegal search and seizure by the bounty hunters. We disagree.
The People contend defendant forfeited this argument by failing to raise it at the trial court. Defendant argues the issue was not waived because any attempt to raise the objection would have been futile in light of the trial court’s conclusion that the bounty hunters were not state actors. We choose to address the merits of defendant’s argument, since the issue is easily resolved.
“[C]ourts have consistently held that the Fourth Amendment’s prohibition against unreasonable search and seizure does not apply to searches by private citizens. [Citation.]” (People v. North (1981) 29 Cal.3d 509, 514.) “‘[A] certain degree of governmental participation is necessary before a private citizen is transformed into an agent of the state, de minimis or incidental contacts between the citizen and law enforcement agents prior to or during the course of a search or seizure will not subject the search to fourth amendment scrutiny.’ [Citation.] The relevant factors used in determining whether the governmental participation is significant, or de minimis, are ‘(1) the government’s knowledge and acquiescence, and (2) the intent of the party performing the search.’ [Citation.]” (People v. Warren (1990) 219 Cal.App.3d 619, 622.)
First, there is nothing in the record indicating that a law enforcement agency was aware of the bounty hunters’ search of defendant or that a law enforcement agency acquiesced to the search. Second, Parizo testified that the intent in searching defendant was to ensure the safety of the bounty hunters and defendant. Accordingly, there is nothing in the record to support a finding that there was significant governmental participation in the search of defendant. Consequently, we conclude the key did not need to be suppressed.
C. Jury Instruction
Defendant contends the trial court erred by refusing his request to instruct the jury on the defense of mistake of fact. We disagree.
“It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. [Citations.] The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) In deciding whether there is substantial evidence, “the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.’ [Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982-983.)
To sustain a conviction for receiving a stolen vehicle (Pen. Code, § 496d), the prosecution must prove: (1) the vehicle was stolen; (2) defendant knew the vehicle was stolen; and (3) defendant had possession of the stolen vehicle. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.) Penal Code section 26 provides that if a defendant commits the offense under a mistake of fact, which disproves any criminal intent, then the defendant is not capable of committing the crime. For example, the mistake of fact defense has been applied in a receipt of stolen property case where the defendant claimed to believe the property was abandoned, not stolen. (Russell, at p. 1426.)
Defendant testified that prior to exiting the residence on February 26, 2007, he had been sleeping. When defendant woke up, he wanted to go home. Defendant exited the residence with his bicycle, and he was approached by the bounty hunters. When Jones discovered the key in defendant’s pocket, defendant told him, “‘I don’t know nothing about it. I was asleep. I don’t know. I don’t know where those came from.’” Defendant testified that he did not put the key in his pocket and he did not know anything about the key prior to the bounty hunters showing him the key. Defendant thought the key was in his jacket pocket because someone used his jacket while he was sleeping.
Defendant did not claim to be mistaken about any fact, rather defendant testified that he did not commit the offense—he never saw the key and did not know anything about it. Accordingly, defendant did not claim to have been mistaken about any facts involved in the case.
Defendant contends the trial court erred because a prosecution witness, Deanna Eaton, testified that she overheard a conversation between defendant and another man, Scott Montgomery, in which they were discussing the truck. Montgomery offered defendant “a couple hundred dollars” to sell the truck. At one point, Eaton described the foregoing proposition as: Montgomery “was supposed to give [defendant] a couple hundred dollars for . . . helping him sell his friend’s truck.” Defendant contends Eaton’s comment provides substantial evidence that defendant mistakenly believed that the truck was not stolen. Contrary to defendant’s position, Eaton’s statement shows that Eaton believed the truck belonged to Montgomery’s friend; however, defendant’s testimony contradicts any inference that defendant might have believed the truck belonged to Montgomery’s friend, because defendant claimed to have no knowledge of the truck.
In sum, substantial evidence does not support the theory that defendant held a mistaken belief, and therefore, the trial court did not err by refusing to give the requested instruction.
D. Inculpatory and Exculpatory Statements
1. Facts
Parizo testified that defendant said, “the truck was stolen.”
During the testimony of Deputy Reese, the following exchange took place:
“[Defense Counsel]: Okay. And at a certain point, you asked [defendant] a question concerning the incident; is that right?
“[Deputy Reese]: Yes.
“[Defense Counsel]: And he said to you, ‘Man, I didn’t do anything.’
“[Prosecutor]: Objection, hearsay.
“The Court: Sustained.
“[Defense Counsel]: Your Honor, could I approach the bench?
“The Court: No, sir.
“[Defense Counsel]: Evidence Code [section] 356.
“The Court: No, sir.”
Later, outside the presence of the jury, the trial court explained that Evidence Code section 356 was not applicable to defendant’s statement to Deputy Reese, because the prosecutor did not present evidence of defendant’s conversation with Deputy Reese.
2. Discussion
Defendant contends the trial court erred by excluding his exculpatory statements to Deputy Reese, because the inculpatory statements to the bounty hunters were admitted at trial, and the inculpatory and exculpatory statements were part of one conversation. (Evid. Code, § 356.) We disagree.
Evidence Code section 356 provides that when one part of a conversation is given in evidence by one party, then the complete conversation, on the same subject, may be inquired into by an adverse party. (People v. Stallworth (2008) 164 Cal.App.4th 1079, 1098.)
Deputy Reese had not been called to the residence at the time defendant told Parizo that the truck was stolen. Deputy Reese was not part of the conversation that defendant had with Parizo. Consequently, Evidence Code section 356 was not applicable, because the statements involved different conversations. Accordingly, we conclude the trial court did not err by sustaining the prosecutor’s objection.
Defendant argues that his statements to Parizo and Deputy Reese should be deemed one conversation, because Parizo and Deputy Reese were part of one law enforcement response to the incident. Contrary to defendant’s position, we have concluded, ante, that the bounty hunters were not acting as members of law enforcement during their interaction with defendant. Accordingly, we find defendant’s argument unpersuasive.
E. Ineffective Assistance of Counsel
Defendant contends that if his trial counsel forfeited any of the above arguments by failing to raise them at the trial court, then his counsel was ineffective. We have addressed the merits of defendant’s contentions, and therefore do not address his alternative arguments concerning ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P. J., McKINSTER, J.