Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF130256, James S. Edwards, Judge.
Retired judge of the San Bernardino Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
ORIGINAL PROCEEDING: Petition for writ of habeas corpus. James S. Edwards, 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, Barry Carlton, Supervising Deputy Attorney General, and Elizabeth A. Hartwig, Deputy Attorney General, for Plaintiff and Respondent.
RICHLI Acting P.J.
Following a jury trial, defendant was found guilty of two counts of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)). The jury also found true that defendant personally used a firearm in the commission of the crime. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) Prior to the verdict, defendant admitted that he had served two prior prison terms (§ 667.5, subd. (b)) and that he had sustained four prior serious felonies (§ 667, subd. (a)) and four prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.23, subd. (c)(2)(A)). Defendant was sentenced to a total term of 45 years to life in state prison.
All future statutory references are to the Penal Code unless otherwise stated.
In his appeal, defendant contends (1) the trial court abused its discretion in admitting extensive evidence of his three prior felony convictions pursuant to Evidence Code section 1101, subdivision (b), and (2) the trial court erred in admitting his admission to the police detective who transported him from the site of his arrest to the police department in violation of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda). We reject these contentions and affirm the judgment.
In his petition for writ of habeas corpus, defendant claims his counsel was ineffective for failing to ask the trial court to exercise its discretion to strike one or more of his prior strike convictions. We reject this contention and deny defendant’s petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Current Offenses
On December 8, 2001, Jimmy Luebs worked as a manager of a Coco’s Restaurant on Magnolia Street in the City of Riverside. Luebs closed the restaurant about midnight and began cleaning the facility and compiling the day’s financial receipts. Luebs’s friend, Charles Orrett, stopped by the restaurant around 1:00 a.m. to assist Luebs with his closing duties.
About 2:00 or 2:30 a.m., Luebs and Orrett finished the closing work and started walking out of the restaurant. Before they exited the last door, two masked men brandishing guns jumped out from some nearby bushes and confronted them. One of the two men told them to turn around and go back into the restaurant. This same man did all of the talking throughout the robbery, while the other man remained silent.
Once they were in the restaurant, the talkative robber demanded, at gunpoint, that the victims take the robbers to the safe. Luebs directed the robbers to the office. Once in the office, the robbers forced Luebs and Orrett onto their knees at gunpoint. Luebs opened the safe and handed currency and rolls of coins from the safe to the quiet robber.
The talkative robber told Orrett and Luebs to stay in the office for a while, and again warned that he was a “good aim” and “won’t miss.” He also took Orrett’s wallet, opened it, and read off his name and address, and then threatened, “I know where you live.” He took cash from both their wallets and took their cellular telephones. Before fleeing, the talkative robber told the victims to remain in the office; if they failed to comply, they would be shot. The robbers dismantled the cellular telephones and also removed the receivers from the telephones in the restaurant. Orrett and Luebs remained in the office for a few minutes before notifying 911.
Orrett informed the police that the talkative robber used what looked like a 9-millimeter semiautomatic gun. The other robber had what appeared to be a black .22-caliber revolver. Luebs testified the robber said, “[D]on’t look at us, don’t try to make out our ethnicity, don’t try to I.D. us.” They both wore gloves, and the talkative robber’s glove looked like a black, Franklin-style batting glove.
Both robbers wore masks that looked homemade and had holes cut out for the eyes, rather than being manufactured like “real” ski masks. The masks appeared to be dark or black and possibly made of nylon. Orrett did not think the masks looked like pantyhose because he thought they looked thicker; he acknowledged that control top pantyhose were thicker at the top. The masks seemed to have a knot tied at the top. Luebs confirmed that the masks seemed to be tied on top with some kind of knot.
Orrett described the talkative robber as being larger, around six feet tall; he believed the man was 35 years old and of African-American descent. He observed that this talkative robber was wearing gloves and dark clothing. Orrett described the second robber as younger, slimmer, and shorter than the talkative robber, around five feet six inches to five feet nine inches. Luebs gave similar descriptions of the robbers and pointed out that the “talking robber” had a calm way of talking and did not seem the least bit upset or “frazzled.” Luebs confirmed that the talkative robber wore black Franklin-type batting gloves.
Riverside Police Officer Melissa Brazil was dispatched to the scene. She saw bushes crushed down in the location from which the assailants had emerged. She also found a single black nylon mask in the parking lot near the restaurant. It was made from the top portion of pantyhose knotted at the top; holes had been cut out for eyes. Both victims identified the mask as the one the talkative robber wore.
1. DNA evidence
At the time of the robbery in December 2001, the police had no known suspects. However, in 2005, a DNA profile was developed from the mask, and the profile was entered into the state’s automated law enforcement database (CODIS). CODIS maintains DNA profiles for felons convicted of various crimes. The DNA profile on the mask matched defendant’s DNA, leading to defendant’s arrest.
Following his arrest, the police took another DNA sample from defendant’s mouth. The newly run DNA sample confirmed the earlier finding that defendant’s DNA was on the mask. The mask had a major DNA donor and a minor DNA donor. Defendant’s DNA represented the major donor; the minor donor was someone other than defendant. Defendant’s wife, mother, and Officer Brazil were all ruled out as the minor DNA donors on the mask. Statistically, the chance of a random sample matching that from defendant was 1 in 18 quintillion for African-Americans, 1 in 190 quintillion for Caucasians, and 1 in 100 quintillion for Hispanics. A senior criminalist explained that the major donor had more contact with the mask than the minor donor and opined that the minor donor probably merely handled the mask. The criminalist confirmed that there was no way to determine how defendant’s DNA got on the mask, that there was no way to determine whether the major or minor donor touched the mask first, that some people shed more DNA material than others, and that potency of DNA degrades in the sun and over time.
2. Defendant’s statements
Riverside Police Detective Daniel Warren arrested defendant on May 16, 2008, when he arrived for an appointment with his parole officer in Rialto. During the 20- to 25-minute drive to Riverside in an unmarked patrol vehicle, defendant and Detective Warren talked about defendant’s nice-looking car and his weight lifting and bodybuilding. Detective Warren also explained the booking process to defendant. Defendant rode in the front passenger seat, and he asked the detective why he was being arrested. After Detective Warren told him it was for a robbery, defendant blurted, “[A] robbery in Riverside, that had to be five years ago.” Detective Warren had not stated anything about the robbery having occurred in 2001; the detective knew it was an old robbery but did not know much else about the case. The detective described defendant as cooperative but ill at ease, since he had been unexpectedly arrested.
B. The Prior Uncharged Offenses
The trial court allowed the prosecution to admit evidence of three prior crimes committed by defendant as proof of his identity.
1. The 1999 K-Mart robbery
On December 15, 1999, about 12:30 a.m., manager Barbara Ziegweid had closed up the K-Mart in Redlands. As Ziegweid and another manager, Louise Alvarez, walked out the front door, two men stepped toward them from behind a pillar. The men were wearing stocking masks and holding guns. One robber grabbed Ziegweid’s neck and directed her to the safe in the back of the store, while the other robber took Alvarez to the service desk at the front of the store and kept her there with his gun drawn. The robber told Ziegweid if someone surprised them, he would shoot that person. As Ziegweid walked with the robber, a third employee appeared. The robber pointed his gun at her and made her join them as they walked to the safe. He told the third woman to get on her knees and told Ziegweid he would shoot the third woman if Ziegweid tried to run. Additionally, he asked the women not to look at him. Ziegweid opened the safe, and the robber took the coins and currency. The robbers told the women not to leave for five minutes and warned them not to call the police. Other employees still in the store saw what was happening and called the police. The robbers ran into the police as they tried to leave. The robbers ran to the store’s back exit, dropping the bags of money in the process.
Both robbers had pantyhose pulled over their faces and wore black hooded sweatshirts with the hoods pulled over their heads. Ziegweid described the robber that took her to the back as a light-skinned African-American around 5 feet 10 inches tall and weighing 160 pounds. Ziegweid later identified defendant as the robber who took her to the back of the store in a live lineup and a photographic lineup. The car the robbers had driven in was registered to defendant’s wife. A black leather shoe and a brown glove were found near the car as the other suspect fled.
Defendant was arrested and pled guilty to the robbery on June 7, 2000. At trial in the instant matter, Ziegweid identified defendant as the man who took her to the back of the store.
2. The 2002 robbery at International House of Pancakes (IHOP)
On January 5, 2002, at 1:20 a.m., Riverside County Deputy Sheriff Michael Butcher responded to a call that three men were in a car casing an IHOP restaurant in the City of Perris. As he approached the IHOP, he saw a black car parked in front of the IHOP. Deputy Butcher and other deputies approached the car and asked the occupants to get out of the car. Defendant was the driver, Nicholas Lester was the front-seat passenger, and Everton Watson was in the back seat. While the officers were taking defendant and Lester out, Watson took off running, carrying a duffle bag with him. As deputies chased Watson, he tossed the duffle bag away. Watson was eventually caught and detained. Deputy Butcher retrieved the black nylon duffle bag, which contained a roll of duct tape, three handguns (a loaded 9-millimeter semiautomatic stolen from the San Bernardino area, a loaded .380 semiautomatic handgun stolen from the Los Angeles area, and a loaded pellet gun), three ski masks (black knit caps with eyeholes), and two pairs of black knit gloves. Deputy Butcher believed that the bag and its contents were a kit for a robbery.
The car was registered to defendant and his wife. In the glove compartment, deputies found 11 rolls of coins: four rolls of nickels, two rolls of dimes, four rolls of pennies, and one roll of quarters. Deputy Butcher also found a pair of black leather/nylon Franklin-brand baseball gloves outside the rear passenger door on the driver’s side of the car and one blue GTX-brand baseball glove inside the car. He also found a walkie-talkie under the driver’s seat, making the officers suspicious that someone else had the second walkie-talkie and was feeding the men information.
Defendant was charged with conspiring to commit a robbery and pled guilty to the lesser offense of receiving stolen property.
3. The 2003 Blockbuster Video robbery
On January 29, 2003, after store manager Brian Breeden and another employee completed closing the Blockbuster Video store in Fontana about 1:00 a.m., Breeden let the employee walk out first and then set the alarm. Half way to their cars, two men approached them with drawn guns and told them to turn around and go back into the store. Once inside, they made the victims get down and crawl to the alarm to turn it off. One robber had Breeden crawl to the safe, while the other robber stayed with the employee. There was a 15-minute delay between entering the safe code and unlocking the safe. During the delay, after talking to another man on a walkie-talkie, the robber asked Breeden where certain video games were located. The robber selected some video games and continued to speak to someone on the walkie-talkie about whether there were police cars outside.
After 15 minutes passed, the safe opened, and Breeden handed the robbers the wrapped coins and cash. The robbers also placed stacks of video games in the same bag as the money. They took approximately $2,000 in cash and $2,000 worth of video games. Once collecting the money, the larger robber told the victims to count to 100 before calling the police. That robber threatened to kill the victims throughout the robbery.
Breeden could not see the faces of the robbers because they were wearing black ski masks made of some thick material (more like cotton than nylon) with holes for the eyes cut out with scissors and a knot on top of the head. The robbers also wore black from head to toe, including black gloves and hooded sweatshirts, except that the smaller robber wore brown boots. Breeden described the larger of the two robbers as African-American, six feet tall and weighing 200 pounds. He said the other robber was thinner (about 155 pounds) and shorter (five feet six inches to five feet seven inches).
Shortly thereafter, Breeden called the police, and was later taken to a curbside show-up on the freeway about one and a half miles from the store, where defendant and Deyandre Taylor had been pulled over in a white car and detained. He identified the two men as those who had robbed the store. His identification was based on the smaller man wearing the same brown boots, the size difference between the two, the car, and the rolls of coins found in the car. Defendant was five feet eight inches tall and weighed 180 pounds at the time; Taylor was five feet three inches tall and weighed 130 pounds. The suspects were also driving the same car as Breeden had seen in the parking lot shortly before the robbery. A search of the car revealed a roll of dimes under the front passenger seat, rolls of dimes and quarters on the back seat, and four walkie-talkies. The police did not find any cash, masks, guns, or gloves in the car. The robbery was caught on the store’s surveillance camera, and the videotape was played for the jury. Defendant pled guilty to grand theft person on April 3, 2003, as a result of the Blockbuster robbery.
C. Defense
Defendant’s wife, Erynn Smith, testified on his behalf. She stated that defendant was five feet nine inches tall and weighed approximately 170 pounds in December 2001. Smith recalled that on the date of the Coco’s robbery, defendant would have been home asleep with her; she recalled that date because it was shortly after their second anniversary, and defendant had been in jail for the K-Mart robbery for their first anniversary. She also remembered that defendant had to be home to take care of her son when she went to work. She claimed that defendant carried rolls of quarters in his car for the laundry machines; that defendant wore her nylon pantyhose or stockings with the legs cut off to maintain his hairstyle, hold his hair down, and keep sweat out of his face while working; and that he slept with the nylons as a head covering. She denied that defendant wore the nylons over his face and asserted that defendant kept the nylons discarded by Smith or defendant’s mother all over the place in the home. She claimed that any one of his nylons could have been taken by defendant’s unsavory friends, who committed the robberies, including Deyandre Taylor (the Blockbuster robbery) and Nicholas Lester (the IHOP robbery).
II
DISCUSSION
A. Admission of Prior Uncharged Offenses
Prior to trial, the prosecutor sought to admit six prior incidents of uncharged robbery offenses based on Evidence Code section 1101, subdivision (b) as common plan and scheme to prove defendant’s identity. Over defense counsel’s objections, the trial court admitted three of the six prior incidents under Evidence Code section 1101, subdivision (b), determining that the similarities between the robberies were distinctive.
The court explained, “. . . I think we all agree on the law that if it’s offered for such things as motive, intent, modus operandi, lack of accident or mistake, the threshold for admission of those prior acts is a lot less than it is for identity, and when, as here, identity is the primary issue in this case, then the bar is raised considerably, so to speak. It has to be a sufficiently distinguishable characteristic or set of characteristics as to amount to a signature that would likely lead a trier of fact to believe that the crimes were committed by one and the same person. [¶] There’s a lot of similarities in this case . . . as far as the time they occurred, the circumstances under which they occurred, the wearing of dark clothing, the wearing of masks, variously described as ski masks or nylon masks with holes cut out for the eyes. There’s similarities in marching the employee or employees back into the office, and demanding the money and telling them not to look at them, and disabling the phones, but I think this, even though certainly none of those characteristics in and of themselves are particularly unusual . . . I mean that even if you consider them as a whole, it’s not all that unusual. I can recall many a case where I’ve had similar MOs . . . . [¶] The one that I think is sufficient is the one I’ve indicated, and that’s the IHOP case, and that even though there was no actual robbery at that point, certainly there’s a close proximity to the cases before the court. Now, the fact that the similar weapons were found, the fact that the same or similar gloves were found, as well as masks is probably enough to allow that to come in.” It appears that the court admitted the K-Mart and Blockbuster robberies for these same reasons.
Defendant complains the trial court’s admission of his three prior uncharged felony convictions amounted to reversible error because the evidence amounted to defendant’s “propensity” to commit robberies in contravention of Evidence Code section 1101, subdivision (a). He further argues that the uncharged crimes were not relevant to prove motive, intent, modus operandi, identity or common plan or scheme within the meaning of Evidence Code section 1101, subdivision (b), and the probative value of the evidence was outweighed substantially by its prejudicial impact within the meaning of Evidence Code section 352. He claims the uncharged robberies were too generic to be valid proof of a common scheme or plan or identity, as the robberies had no distinguishing features. The result, he contends, was a violation of his state and federal due process right to a fair trial.
Character evidence in the form of prior uncharged offenses is inadmissible to prove criminal character or disposition. It is admissible to prove a material fact such as identity, common design or plan, or intent, however. (Evid. Code, § 1101, subds. (a), (b); People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Lewis (2001) 25 Cal.4th 610, 636; People v. Kipp (1998) 18 Cal.4th 349, 369; People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt), superseded by statute on other grounds, as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505.) To be admissible for this purpose, the charged and uncharged offenses must be sufficiently alike to support a rational inference of identity, common design or plan, or intent. (Kipp, at p. 369.) The actual degree of similarity required depends upon the material fact to be established.
The highest degree of similarity between charged and uncharged crimes is required to establish the uncharged crime’s relevancy to prove identity. (Ewoldt, supra, 7 Cal.4th at p. 403.) “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Ibid.) A lesser degree of similarity is required to show intent than identity or common plan, because the recurrence of similar conduct tends to negate the possibility that it occurred by accident or inadvertence. (Id. at p. 402.)
A determination that uncharged crimes evidence is relevant under Evidence Code section 1101, subdivision (b) is not the end of the inquiry, however. “Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ [Citations.] ‘Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value.’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 404, italics omitted.) Thus, to be admissible, uncharged crimes evidence that is relevant to prove identity, intent or common design or plan “‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.’” (Ibid.)
In Ewoldt, the Supreme Court explained, “Evidence of a common design or plan . . . is not used to prove the defendant’s intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense.” (Ewoldt, supra, 7 Cal.4th at p. 394.) The Ewoldt court observed that the “distinction, between the use of evidence of uncharged acts to establish the existence of a common design or plan as opposed to the use of such evidence to prove intent or identity, is subtle but significant.” (Id. at p. 394, fn. 2.)
“Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, ‘[i]n proving design, the act is still undetermined . . . .’ [Citations.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution.
“Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator. For example, in a prosecution for shoplifting in which it was conceded or assumed that a theft was committed by an unidentified person, evidence that the defendant had committed uncharged acts of shoplifting in the same unusual and distinctive manner as the charged offense might be admitted to establish that the defendant was the perpetrator of the charged offense. [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.)
The Ewoldt court further clarified that common scheme or plan evidence is generally inadmissible in cases involving crimes such as robbery, where the primary issue is whether the defendant was present at a particular location: “[I]n most prosecutions for crimes such as burglary and robbery, it is beyond dispute that the charged offense was committed by someone; the primary issue to be determined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value.” (Ewoldt, supra, 7 Cal.4th at p. 406.)
In this case, defendant’s presence at the December 2001 robbery at Coco’s was far from assumed. On the contrary, defendant’s identity as one of the perpetrators of the charged offenses was a central issue in the case, as pointed out by the trial court. The uncharged offense evidence was offered to attempt to prove that defendant was present at the scene and that he participated in the charged robbery. The evidence was thus inadmissible to prove a common scheme or plan under Ewoldt. Further, even assuming the evidence was admissible to prove the existence of a common scheme or plan, that is not the purpose for which it was offered and admitted in this case. The trial court expressly instructed the jury that the evidence was to be considered for the limited purpose of proving defendant’s identity. Accordingly, contrary to the People’s and defense counsel’s suggestions, the evidence of defendant’s commission of the uncharged offenses was not admitted to prove the existence of a common scheme or plan.
Defendant claims the trial court erred in admitting evidence of his commission of uncharged incidents of robberies for the purpose of proving his identity as one of the robbers in the charged offense. We apply the abuse of discretion standard of review to this claim. (People v. Lenart, supra, 32 Cal.4th at p. 1123.)
Assuming for the sake of argument that evidence of the uncharged incidents of robbery were erroneously admitted to prove identity, the error was not prejudicial. As a general rule, the erroneous admission of evidence is prejudicial only if it is reasonably probable that absent its admission defendant would have received a more favorable result. (People v. Alcala (1984) 36 Cal.3d 604, 636; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Defendant claims that the Chapman v. California (1967) 386 U.S. 18, 24 (87 S.Ct. 824, 17 L.Ed.2d 705) standard of prejudice applies, arguing, without elaboration, that the admission of the other crimes evidence rendered the trial fundamentally unfair in violation of the due process clause. We reject this argument. Defendant points to nothing in the admission of the other crimes evidence in this case that rendered the trial any different from most other cases in which other crimes evidence has been improperly admitted. Such errors are not generally held to have implicated the defendant’s due process rights. The erroneous admission of evidence is normally evaluated under the Watson test. (See People v. Price (1991) 1 Cal.4th 324.) When the error violates a federal constitutional right, however, the Chapman test applies. (See People v. Flood (1998) 18 Cal.4th 470 [jury instructions omitted element of crime]; People v. Ducu (1991) 226 Cal.App.3d 1412 [limiting cross-examination of witness].)
As previously noted, defendant does not identify a specific federal constitutional right denied him by the admission of the other crimes evidence, other than to say generally he was deprived of a fair trial and was denied his due process rights. Defendant’s general, conclusory argument does not implicate Chapman. We therefore analyze this case under the Watson standard.
We conclude defendant has failed to show a reasonable probability he would have received a more favorable result absent the other-crimes evidence. (People v. Ochoa (2001) 26 Cal.4th 398, 442.) In this case, defendant’s DNA was on the stocking mask found in the driveway within moments of the Coco’s robbery. Defendant’s DNA was found on the cheeks and mouth area, exactly where it would be expected in a mask worn over the face and mouth rather than on top of the head to preserve a hairdo as the defense claimed. The presence of DNA from a minor contributor does not change the outcome. Contrary to defendant’s suggestion, defendant’s wife’s testimony was incredible and far from compelling to negate the scientific evidence. In addition, defendant’s blurted utterance to the police following his arrest showed a consciousness of guilt. Moreover, the jurors were instructed that the other-crimes evidence could not be used to prove criminal propensity or predisposition and was limited to proving identity. The jury was also reminded that the evidence as a whole must prove defendant guilty beyond a reasonable doubt. Defendant’s guilt was established even absent the other-crimes evidence; therefore, any error in admitting evidence of the other robberies was harmless. (See People v. Cavanaugh (1955) 44 Cal.2d 252, 268-269.)
B. Admission of Defendant’s Statements to Police
While being transported to Riverside from Rialto and in response to Detective Warren’s statement that defendant was being arrested for robbery, defendant voluntarily blurted, “[A] robbery in Riverside, that had to be five years ago.” Prior to trial, defendant moved to exclude his statement. The trial court denied the motion, finding defendant did not give the statement in the context of an interrogation but that defendant spontaneously made the statement in response to the officer advising him why he had been arrested. The court also concluded that the officer did not engage “in any type of subterfuge or softening up process or any type of a process to get him to make incriminating statements.”
Defendant claims the trial court prejudicially erred in admitting his statement to Detective Warren in violation of Miranda. Specifically, he argues that he was “subjected to a custodial interrogation under the auspices of a friendly chat with the arresting police officer” and that the officer erred by “engaging [defendant] in a relaxed dialog prior to giving him a Miranda warning in an obvious effort to elicit incriminating admissions.” We disagree; our review of the entire record shows that, while defendant may have been in custody, he was never interrogated, he spontaneously made the statement, and the officer did not use any subterfuge methods.
It is well established that a defendant is entitled to Miranda protections only when he is subjected to “custodial interrogation.” (Miranda, supra, 384 U.S. at p. 444; People v. Ochoa (1998) 19 Cal.4th 353, 401; People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161; People v. Cressy (1996) 47 Cal.App.4th 981, 986.) “‘[C]ustodial interrogation’” means “any situation in which ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citation.]” (People v. Mickey (1991) 54 Cal.3d 612, 648.) “‘Interrogation’ consists of express questioning, or words or actions on the part of the police that ‘are reasonably likely to elicit an incriminating response from the suspect.’ [Citations.] ‘The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.’ [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 993; see also Rhode Island v. Innis (1980) 446 U.S. 291, 301 [100 S.Ct. 1682, 64 L.Ed.2d 297].) We review the court’s finding that no interrogation occurred for substantial evidence. (People v. Clark (1993) 5 Cal.4th 950, 985.)
The standard as to what amounts to interrogation “is whether ‘under all the circumstances involved in a given case, the questions are “reasonably likely to elicit an incriminating response from the suspect.”’ [Citation.] This is an objective standard.” (People v. Wader (1993) 5 Cal.4th 610, 637.) “[N]ot all conversation between an officer and a suspect constitutes an interrogation.” (People v. Clark, supra, 5 Cal.4th 950, 985.) For example, voluntary statements are not subject to the requirements of Miranda. (People v. Ray (1996) 13 Cal.4th 313, 337.) “ . . . Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response . . . .” (Rhode Island v. Innis, supra, 446 U.S. 291, 300-301.)
Defendant unpersuasively argues Detective Warren engaged in a psychological ploy by “softening him up” through a conversation about defendant’s Lexus automobile and his muscular physique to elicit defendant in making an incriminating response. He further alleges that he was psychologically vulnerable because he had been taken in handcuffs from a routine parole meeting; he was placed under arrest by a detective in plain clothing and placed in an unmarked patrol vehicle, and hence it did not appear to be an official interrogation. Contrary to defendant’s claims, though defendant was in police custody, there was neither interrogation nor its functional equivalent here. The officer’s specific questions and comments were akin to a casual conversation unlikely to elicit an incriminating response.
In Innis, while police were transporting the defendant to the police station, one officer told another officer that he hoped police would continue searching for the missing gun because a student from the school for the handicapped could find it and get injured. (Rhode Island v. Innis, supra, 446 U.S. at pp. 294-295.) The defendant then volunteered the location of the weapon. The court held that this brief conversation between the officers was not an interrogation because it was “nothing more than a dialogue between the two officers to which no response from [the defendant] was invited.” (Id. at p. 302.)
In Clark, the defendant, who had previously been advised of and invoked his Miranda rights, was being transported by the police to the hospital to obtain a blood sample. En route, he asked the officers what the penalty was for murder, for which he was under arrest. (People v. Clark, supra, 5 Cal.4th at p. 982.) The officer responded that he had never seen anyone serve more than seven and one-half years unless the person was a “mass murderer.” Following this colloquy, the defendant confessed. (Ibid.) Our Supreme Court held that the conversation was not an interrogation. (Id. at pp. 985-986.) “Clearly, not all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response. [Citation.]” (Id. at p. 985.) The court concluded that the record failed to establish that the defendant was subject to “’compelling influences, psychological ploys, or direct questioning.’” (Id. at p. 986.)
Federal decisions are in accord. (See, e.g., United States v. Taylor (1st Cir.1993) 985 F.2d 3, 6-8 [no “interrogation” where officer directly responded to defendant’s postarrest spontaneous inquiry about what was “happening” to her while being transported in patrol car]; United States v. Crisco (9th Cir.1984) 725 F.2d 1228, 1232 [officer’s informational response to defendant who expressed bewilderment at arrest not “interrogation”].)
We conclude that these cases, as pointed out by defendant, are fatal to defendant’s contention that his conversation with Detective Warren inside the patrol car constituted an interrogation. Detective Warren did not ask defendant any questions, and there is no evidence in the record to show that the detective intimidated or coerced defendant into making his statement. To the contrary, defendant voluntarily and spontaneously blurted his statement after Detective Warren informed defendant the reason for his arrest. Such a response is clearly the type of volunteered statement which is admissible under Miranda. “‘Volunteered statements of any kind are not barred by the Fifth Amendment’ or subject to the prophylactic requirements of Miranda. [Citations.]” (People v. Ray, supra, 13 Cal.4th at p. 337.) As stated above, “not all statements obtained by the police from a suspect who is incarcerated or otherwise confined are the product of interrogation. Nothing in Miranda is intended to prevent, impede, or discourage a guilty person, even one already confined, from freely admitting his crimes, whether the confession relates to matters for which he is already in police custody or to some other offense.” (Ibid.)
Furthermore, “Miranda does not ‘prohibit the police from merely listening to . . . voluntary, volunteered statements’ uttered by a person, whether or not in custody, ‘and using them against him at the trial’. . . . [Citation.]” (People v. Mickey (1991) 54 Cal.3d 612, 648.) The statement defendant made in the patrol vehicle was made of defendant’s own volition, without any prodding from Detective Warren. The detective made no inquiries that would have reasonably led to an incriminating response from defendant. Rather, the detective merely listened to defendant’s volunteered statement.
In addition, defendant’s brief exchange with Detective Warren does not demonstrate that defendant was “subject to ‘compelling influences, psychological ploys, or direct questioning.’” (People v. Clark, supra, 5 Cal.4th at p. 986.) Detective Warren’s conversation with defendant in no way suggests that if defendant confessed he would be treated more favorably, or if he did not confess he would be treated more harshly. (Id. at p. 985.)
We conclude that the totality of the circumstances supports the trial court’s conclusion that Detective Warren’s conversation with defendant and his response to defendant’s question was not reasonably likely to produce an incriminating response, and therefore no interrogation occurred.
C. Defendant’s Writ Petition
Defendant contends his trial counsel was ineffective for failing to bring a motion to strike his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
To prevail on an ineffective assistance claim, defendant bears the burden of establishing both deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) He must show that defense counsel’s representation fell below an objective standard of reasonableness under prevailing professional standards and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Ibid.; People v. Lewis (1990) 50 Cal.3d 262, 288.) When an ineffective assistance claim can be resolved solely on lack of prejudice, a reviewing court need not determine whether counsel’s performance was objectively deficient. (In re Jackson (1992) 3 Cal.4th 578, 604, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.)
In the present case, defendant’s claim of ineffective assistance of counsel is based on his attorney’s failure to request the lower court to strike two or more of his prior strike convictions. In Romero, supra, 13 Cal.4th at pages 529-530, the court held that section 1385, subdivision (a) permits a trial court acting on its own motion to strike prior felony conviction allegations in cases brought under the three strikes law. The Romero court explained that the exercise of discretion under that subdivision is limited by the “amorphous concept” of “furtherance of justice,” which “requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People.” (Romero, at p. 530.)
In People v. Williams (1998) 17 Cal.4th 148, our Supreme Court explained that “in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to [section 1385, subdivision (a)], or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.) There must be something exceptional about the priors; the current offense; or the defendant’s background, character, and prospects to justify the extraordinary exercise of discretion involved in striking a strike. (People v. Strong (2001) 87 Cal.App.4th 328, 338; People v. McGlothin (1998) 67 Cal.App.4th 468, 474.)
In any event, we look to see if defendant can show prejudice. The record establishes that, since 1998, beginning at the age of 18, defendant has had numerous serious felony convictions for robbery, burglary, assault with a deadly weapon, receiving stolen property, and grand theft from person. In addition, he has repeatedly failed on parole in 1999, 2002, 2003, and 2006, and returned to prison in 2000, 2002, 2003, and 2007 (for the current offenses).
Defendant claims that in the three years before his arrest on the current offenses he had “turned around his life” and was “succeeding on parole, living with his wife and child, and handling a steady job.” However, the record shows that defendant is “‘an exemplar of the “revolving door” career criminal to whom the Three Strikes law is addressed.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 379.) There is nothing in the record that indicates that there is something exceptional about his priors; the current offense; or his background, character, and prospects, to justify the extraordinary exercise of discretion involved in striking a strike (or in this case striking two strikes). (See, e.g., People v. Strong, supra, 87 Cal.App.4th at p. 338.) Given defendant’s repeated commissions of robbery with the use of a firearm, his sophistication in committing the crimes, his repeated violations of parole, and his inability to conform to the rules of law despite prior terms in prison, it is not reasonably probable the court would have stricken at least two of his prior strikes had his counsel requested it. Accordingly, we conclude that defendant has failed to establish prejudice.
III
DISPOSITION
The judgment is affirmed.
The petition for writ of habeas corpus is denied.
We concur: KING J., MILLER J.