In re Francisco V.

Filed 3/24/06 In re Francisco V. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

On August 2, 2004, the Santa Cruz District Attorney filed an amended petition contending that Francisco V. came within the provision of Welfare and Institutions Code section 602. The petition alleged that Francisco (1) possessed a billy within the meaning of Penal Code section 12020, subdivision (a)(1) (count one); (2) did unlawfully loiter upon the private property of another (Pen. Code, § 647 subd, (h), count two) and (3) committed three assaults by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), counts three through five.)

Following a jurisdictional hearing, on March 23, 2005, the court sustained the petition as to count one. The court granted a defense motion to dismiss counts two through five pursuant to Welfare and Institutions Code section 701.1

On April 13, 2005, the court placed the minor on probation for six months, without a finding of wardship, subject to various terms and conditions not relevant here.

On April 15, 2005, the minor filed a notice of appeal.

On appeal, the minor contends that the juvenile court erred in admitting certain statements he made to an Officer Hedley. We disagree and affirm.

Background Facts[1]

Responding to a report of a "possible gang fight," Santa Cruz Police Officer Michael Hedley went to the 200 block of Raymond Street. He observed a car parked in the middle of the street surrounded by several "subjects." Officer Hedley activated the red light on his motorcycle. In response, the car drove away and the group scattered. As he drove down the street, Officer Hedley saw the minor Francisco V. who appeared to be "covering something up." Officer Hedley continued up the street, looked back and saw that Francisco was carrying what looked like "some type of metal or solid club" in his hand. Officer Hedley got off his motorcycle and detained Francisco at gunpoint in order to retrieve the suspected weapon, which turned out to be a metal pry bar 11 inches long with a hammer on one end. After Officer Hedley made sure that Francisco was not carrying more weapons, he put away his gun and had Francisco sit down on the curb.

Officer Hedley asked Francisco why he was leaving and what the fight was about. Francisco replied that there was no fight and that he was merely talking to his cousin, but that his cousin drove off when the officer came. Francisco said that he was leaving because he was on probation. He said that he had the pry bar to fix the stereo in his uncle's car. He explained that he was going to use it as hammer, but could not explain how a hammer was going to help fix a stereo.

Officer Hedley saw that Francisco was carrying his belt rather than wearing it. Francisco explained that he removed his belt because his buckle, which was metal, was bothering him.

Based on the "totality of the circumstances," Officer Hedley concluded that Francisco intended to use the pry bar as a "billy." Officer Hedley testified that he had received a report of a fight in an area known for frequent altercations. When he arrived everyone fled, leaving Francisco, who was trying to conceal the pry bar. Officer Hedley testified that he thought the pry bar was not a very common tool to be using and carrying on the street. This led him to the conclusion that the only logical explanation was that the 11-inch pry bar with added weight at one end was going to be used as a metal club or a billy.

Francisco's counsel strenuously objected to the admission of Francisco's statements to Officer Hedley on the ground that this was a custodial interrogation for which Miranda[2] advisements should have been given.

The court overruled the objections and admitted the testimony ruling that Francisco was not in custody within the meaning of Miranda. The court found that Francisco was detained, but concluded that the restraint on the freedom of movement during his detention was not comparable to custody requiring Miranda advisements.

Discussion

Francisco contends that he was in custody for purposes of Miranda.

"In applying Miranda, . . . one normally begins by asking whether custodial interrogation has taken place. 'The phrase "custodial interrogation" is crucial. The adjective [custodial] encompasses any situation in which "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." [Citation.] The noun [interrogation] "refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." [Citation.]' [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 732.)

"[T]he court must apply an objective test to resolve 'the ultimate inquiry': '[was] there a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.' [Citation.]" (Thompson v. Keohane (1995) 516 U.S. 99, 112.) "[T]he only relevant inquiry is how a reasonable [person] in the suspect's position would have understood his [or her] situation." (Berkemer v. McCarty (1984) 468 U.S. 420, 442.)

Thus, the question whether the suspect was in custody is a mixed question of law and fact. (Thompson v. Keohane, supra, 516 U.S. at pp. 112-113.) Two separate inquiries are central to this determination. First, what were the circumstances of the questioning? Second, would these circumstances have made a reasonable person feel that he or she could end the interrogation? (Id. at p. 112.)

The first inquiry is factual and reviewed under the deferential substantial evidence standard. (People v. Ochoa (1998) 19 Cal.4th 353, 402.) We decide the second inquiry independently. That is, "[h]aving determined the propriety of the court's findings . . . we independently decide whether 'a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.' [Citation.]" (Ibid.)

Relying on this court's opinion in People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 (Aguilera), Francisco argues the contact was initiated by law enforcement when Officer Hedley detained him. He did not agree to the interview. It is apparent from Officer Hedley's questions that he was interviewed as a suspect who was involved in a fight and possessing a weapon. He was not told that he was free to terminate the interview and leave. Officer Hedley was "obviously confrontational and aggressive." He drew his gun, searched Francisco and told him to sit on the curb. The officer asked accusatory questions relating to a fight. Finally, Francisco was arrested after the questioning.

In Aguilera, we identified some of the circumstances relevant to an inquiry into whether there has been a custodial interrogation. "Among them are whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom; whether there were restrictions on the person's freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation. [Citations.]" (People v. Aguilera, supra, 51 Cal.App.4th 1151, 1162.)[3]

In Aguilera, the police brought the defendant to the police station, where he was interrogated for about two hours. (Aguilera, supra, 51 Cal.App.4th at p. 1159.) The interrogating officer told Aguilera that he was not in custody, but also that he would be brought home only "after he told them the truth." (Id. at p. 1163.) The interrogation of Aguilera was "intense, persistent, aggressive, confrontational, accusatory, and, at times, threatening and intimidating." (Id. at p. 1165.) This court concluded that under such circumstances, "a reasonable person would have felt deprived of liberty in a 'significant way' and that the restraint was tantamount to being under arrest." (Ibid.)

Here, some of the circumstances listed in Aguilera, support Francisco's contention that he was in custody at the time of the interrogation. Officer Hedley initiated contact with Francisco; Francisco did not agree to the interview; he was not told that he was free to leave and Francisco was arrested at the end of the interview. Other factors militate against a finding that Francisco was in custody. Only one police officer, who asked short questions, interviewed Francisco. If Francisco was a suspect, Officer Hedley did not communicate this to Francisco and Officer Hedley made no representation that he had evidence to prove Francisco's guilt of any crime. Contrary to Francisco's assertion, the questions Officer Hedley posed to Francisco were hardly confrontational or accusatory; Officer Hedley employed no interrogation techniques beyond simple conversation. The setting of the interview was certainly a less coercive environment than a police station. Finally, the interview was quite short, no more than a few minutes.

Relying on People v. Taylor (1986) 178 Cal.App.3d 217, 228-229, Francisco argues that one of the well-recognized circumstances tending to show custody is the degree of physical restraint used by police officers to detain a citizen. Francisco argues that in this case Officer Hedley drew his gun and detained him at gunpoint.

In People v. Taylor, supra, 178 Cal.App.3d at pages 228-229 the Third District Court of Appeal noted that " '[i]f the police officer uses physical restraint on the suspect [citation] or draws a gun [citation] it is more likely to be deemed custodial than if the questioning occurs without physical restraint or opportunity to restrain. [Citation.]' (People v. Herdan (1974) 42 Cal.App.3d 300, 307, fn. 11 . . . .) It goes without saying that the display of a weapon by police officers plainly conveys to a reasonable citizen the message that he is not free to leave; i.e., that his freedom of action is dramatically curtailed. Moreover, we believe a reasonable citizen who is questioned by police at gunpoint feels an 'inherently compelling pressure' [citation] to respond to the questions."

However, as our Supreme Court has noted, "stopping a suspect at gunpoint . . . and making him sit on the ground for a short period, as occurred here, do not convert a detention into an arrest." (People v. Celis (2004) 33 Cal.4th 667, 675.) Furthermore, in this case, Officer Hedley had holstered his gun before he questioned Francisco.

As we noted in Aguilera, "[n]o one factor is dispositive. Rather we look at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest. [Citation.]" (People v. Aguilera, supra, 51 Cal.App.4th at p. 1162.)

We find that Aguilera actually supports the juvenile court's determination that Francisco's interview was not custodial interrogation. As noted, Francisco was interviewed by only one police officer, who asked short questions. If Francisco was a suspect, Officer Hedley did not communicate this to Francisco and Officer Hedley made no representation that he had evidence to prove Francisco's guilt of any crime. Contrary to Francisco's assertion, the questions Officer Hedley posed to Francisco were hardly confrontational or accusatory. Furthermore, Officer Hedley employed no interrogation techniques beyond simple conversation. The setting of the interview was certainly a less coercive environment than a police station. The interview was quite short, no more than a few minutes. Finally, there was no hint here that Officer Hedley would not allow Francisco to leave unless he answered his questions. (Compare People v. Aguilera, supra, at p. 1163 ["we find it significant that [the detective] then explained that the interview would end and they would bring him home after he told them the truth"].)

However, even if we were to find support for Francisco's contention that he was in custody during the interview, we would conclude that any error in admitting his statements was harmless. The erroneous admission of statements obtained in violation of Miranda does not require reversal if the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Cahill (1993) 5 Cal.4th 478, 509-510.)

To violate Penal Code section 12020, a person must possess a lawful object for a dangerous or illegal purpose. (People v. Grubb (1965) 63 Cal.2d 614, 620, superseded by statute on another point as stated in People v. Rubalcava (2000) 23 Cal.4th 322.) The illegality of the possession may be established "when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless purpose." (Id. at pp. 620-621.)

Officer Hedley encountered Francisco in the middle of the street with other individuals surrounding a car, in an area known for violence especially at weekends. On seeing Officer Hedley activate his red light, the group began to scatter and the individual to whom Francisco was speaking drove away in his car. Significantly, Francisco tried to hide the pry bar and leave the scene. Thus, Francisco's statements were not "the most compelling evidence of his guilt." (Compare Aguilera, supra, 51 Cal.App.4th at p. 1166.) Accordingly, we can say that the juvenile court's finding actually rendered in this case was surely unattributable to the error. (See People v. Quartermain (1997) 16 Cal.4th 600, 621.)

Disposition

The dispositional order is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

______________________________

RUSHING, P. J.

______________________________

MIHARA, J.

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[1] We limit the facts to those relevant to the issue before the court and omit the facts pertaining to the dismissed counts.

[2] Miranda v. Arizona (1966) 384 U.S. 436.

[3] Citing People v. Ochoa, supra, 19 Cal.4th 353, the People assert that our Supreme Court has declined to approve this " 'compilation of circumstances.' " We point out that our Supreme Court did not approve or disapprove of Aguilera's compilation of circumstances. (Id. at p. 403.)