P. v. Barron

 

 

 

 

 

 

 

 

 

 

Filed 7/16/13  P. v. Barron CA4/2

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,   v.   MARK BARRON,               Defendant and Appellant.

E055839               (Super.Ct.No. BLF003885)               OPINION

 

            APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  David B.
Downing and Jeffrey L. Gunther, Judges. 
Affirmed.

            Zulu
Ali, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

            A jury
found defendant and appellant Mark Barron, guilty of carrying a loaded firearm
in a public place while he was prohibited from carrying a firearm.  (Former Pen. Code, § 12031, subd.
(a)(2)(D) [eff. Jan. 2000].)  The trial
court sentenced defendant to prison for a term of one year, four months.  Defendant raises three issues on appeal.  First, defendant contends there is not href="http://www.fearnotlaw.com/">substantial evidence that he was in a
public place while carrying a firearm. 
Second, defendant contends the trial court erred by denying his motion
to suppress evidence discovered and statements made after an officer trapped
defendant and conducted an unlawful search and seizure.  Third, defendant asserts the trial court
erred by denying his motion to suppress
statements made after defendant’s Mirandahref="#_ftn1" name="_ftnref1" title="">^[1] rights were violated.  We affirm the judgment.

>FACTUAL AND PROCEDURAL HISTORY

            Riverside
County Sheriff’s Detective Miles was on patrol in Blythe on December 31, 2005.  At approximately 1:20 a.m., Miles was driving along the bank of a
canal.  Blythe is primarily an
agricultural community with paved roads that lead to canals.  The canals are used to irrigate the
agricultural crops.  There are often
roads along the banks of the canals, “which allow [people] access to other
avenues around some of the[] fields so that [they] can safely get around some
of the[] larger fields and onto where [they]’re going.”  Some of the farms in the area cover
approximately a square mile in size.  The
canal roads are also used by farmers trying to access their different
fields. 

            The
canal road Miles was traveling on December 31 was at the top of a canal bank,
with drop-offs on either side.  The road
is unpaved and slightly wider than the width of a single car.  Miles was unsure who owned the canal road,
but he knew Palo Verde Irrigation District was responsible for maintaining the
road.  Miles was unsure if Palo Verde
Irrigation is a public agency or private corporation.  Miles explained that some canal banks are
used as driveways, while others are used as “thoroughfares,” which is why he
was unsure who owned the canal road and whether it was public or private
property. 

            While
Miles was driving along the single-lane canal road, the car defendant was
traveling in approached from the opposite direction.  Defendant was in a blue Ford Expedition,
which he owned, but defendant was in the passenger seat and defendant’s
coworker was driving.  Miles’s patrol car
and defendant’s car approached one another until they were blocking each
other’s paths. 

            Miles
approached the driver’s side of defendant’s vehicle.  Miles and the men introduced themselves to
one another; Miles asked the men how they were doing, where they were from, and
where they were going.  Defendant told
Miles he had a gun in the car.  Defendant
explained he was not allowed to have a gun due to a restraining order.  The conversation between the men lasted four
or five minutes.  Miles walked over to
the passenger side of the car and retrieved the gun.  The gun was located in “the map pocket of the
door or that cubby space of a door.”  The
gun was registered to defendant.  Miles
had the men remain in the car.  When a
back-up deputy arrived, approximately eight to ten minutes after the initial
contact, Miles handcuffed defendant and moved him to the back of the patrol
car.  While being handcuffed, defendant
told the back-up deputy, Deputy Michel, “that he knew he was not supposed to
have the gun because he had a court order.” 
Defendant made the statement spontaneously—not in response to a
question. 

            Michel
had driven along the canal bank before, during patrols, although it was not a
common path for him.  Michel did not know
who owned the canal bank.  In Blythe,
people often hunt and fish along the canal banks.  In regard to the specific canal bank at issue
in this case, Michel found it to be “hit and miss” as to whether he would see
people stopped along the road to fish and hunt. 
It is “pretty easy” to enter and exit the canal road. 

>DISCUSSION

            A.        SUBSTANTIAL EVIDENCE

            Defendant
asserts the evidence supporting his conviction does not meet the substantial
evidence standard because the evidence does not reflect he was in a public
place at the time of his arrest.  We
disagree.

            “When
a defendant challenges the sufficiency of the evidence, ‘“[t]he court must
review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” 
[Citation.]’  [Citations.]”  (People
v. Clark
(2011) 52 Cal.4th 856, 942-943.)  “We
‘“‘presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.’” 
[Citation.]’  [Citation.]”  (Id.
at p. 943.)

            Private
property, such as a private driveway, “may be a ‘public place if it is
reasonably accessible to the public without a barrier.’”  (People
v. Yarbrough (2008) 169 Cal.App.4th 303, 319.)

            The
canal bank was accessible to defendant, Miles, farmers, and people who hunt and
fish.  Michel found the canal bank road
to be “pretty easy” to enter and exit. 
Even if the road were privately owned, there is substantial evidence
that it qualified as a public place, because various people were able to easily
traverse the road.  It does not appear
that the road was blockaded from public use as evinced by Miles and defendant
approaching one another from opposite directions on the road.  The evidence reflects the road was open.  Accordingly, we conclude substantial evidence
supports the finding that defendant was in a public place. 

            Defendant
contends there is not substantial evidence because the road had various
“barriers,” such as the narrow width of the road and the drop-offs on both
sides of the road.  Defendant’s argument
is not persuasive because it was possible to travel from one end of the road to
the other without trouble, as evinced by defendant and Miles meeting along the
road when traveling from opposite directions. 
Thus, the road was passable and accessible—there were no barriers.

            B.        MOTION TO SUPPRESS

                        1.         PROCEDURAL
HISTORY

            Prior
to trial, defendant moved to suppress the gun found in the car and the
statement made by defendant.  In the
motion, defendant explained Miles heard a report about a fire burning in the
area, and Miles drove toward the fire. 
Defendant asserted Miles saw the headlights of defendant’s vehicle along
the canal bank and “immediately turned around and drove toward[] the vehicle
until the front of both vehicles stopped nose-to-nose.”  Defendant argued Miles conducted a traffic
stop without reasonable suspicion and searched defendant’s car without probable
cause.  Defendant asserted Miles stopped
defendant’s car based on a general suspicion or hunch that defendant might have
been involved in the fire. 

            Additionally,
defendant asserted his statement about the gun being in the car should be
suppressed because it was made in violation of his Miranda rights.  Defendant
argued that Miles’s stop of defendant’s vehicle and questioning amounted to a
custodial interrogation. 

            Miles
testified at the motion hearing.  Miles
explained that he was on patrol, in uniform, when he learned about a structure
fire and drove toward it.  Miles turned
onto the canal bank.  Miles explained he
chose to take the canal bank because it was the safest option given that the
second option would have required crossing an unpaved road that was sometimes
muddy due to irrigation.  After traveling
on the canal bank for approximately three-tenths of a mile, Miles saw the
headlights of a car coming toward him. 

            Defendant’s
car continued travelling toward Miles’s marked patrol car.  The two cars stopped when they met facing one
another on the road; the cars were approximately half a car length apart from
one another.  The patrol car’s emergency
lights were not activated; Miles did not try to make defendant’s coworker stop
the car.  When the coworker did stop the
car, Miles walked toward it.  Miles
believed it was suspicious that defendant and his coworker were traveling away
from the fire in the middle of the night. 
Miles believed the two men could have been “leaving the scene of an
arson fire.”  Miles’s suspicion was based
on (1) the structure fire, (2) the vehicle driving away from the area where the
fire was located, and (3) “the early morning hours.” 

            Miles
asked the men if they were from Blythe and “where they were coming from.”  Miles also asked both men for
identification.  Defendant gave Miles his
driver’s license.  While Miles was standing
by the driver’s door, defendant told Miles, “‘Deputy, I have a gun in this
car.  I have a gun near—down here near
my—my hand.’”  Defendant also explained
that he was not allowed to have the gun due to a court order.  Miles was able to see the gun in the door
pocket when he opened the passenger door. 
Defendant was placed under arrest “[s]hortly after” Miles retrieved the
gun.  At the time of the arrest, Miles
only suspected defendant of the crime of being in possession of a firearm. 

            The
trial court found unusual circumstances existed due to (1) defendant traveling
through a rural location, (2) the early morning hour, and (3) the fire
burning.  The trial court found Miles’s
questions were “normal” investigative questions; however, it was defendant who
made “a very unusual statement.”  The
court concluded an officer would “investigate further” if a person confessed to
possessing a gun he was not allowed to possess. 
The court found defendant’s statement was voluntary and Miles acted
appropriately and “reasonably.” 
Accordingly, the trial court denied defendant’s motion to suppress. 

                        2.         VEHICLE
STOP

            Defendant
asserts the trial court erred by denying his motion to suppress evidence
because the vehicle stop was illegal.  We
disagree.

            “‘In
ruling on a motion to suppress, the trial court finds the historical facts,
then determines whether the applicable rule of law has been violated.’  [Citation.] 
When we review the trial court’s resolution of the motion to suppress,
we ‘defer to the trial court’s factual findings, express or implied, where
supported by substantial evidence.’ 
[Citation.]  However, we exercise
our independent judgment in determining whether the search or seizure was
reasonable under the Fourth Amendment.  [Citation.]” 
(People v. Dotson (2009) 179
Cal.App.4th 1045, 1048-1049.)

            “It
is well established that a brief stop of a vehicle to pose a question to an
occupant constitutes a ‘seizure’ for purposes of the Fourth Amendment.  [Citation.] 
[¶]  However, because such a brief
stop intrudes on a person’s privacy to a lesser extent than does an arrest or
other extended detention, it is equally well established that the ordinary
probable cause and warrant requirements of the Fourth Amendment do not apply to
brief vehicle stops.  [Citation.]  Instead, such investigatory stops are akin to
the on-the-street encounters addressed in Terry
v. Ohio (1968) 392 U.S. 1 88 . . . . 
‘[A]ccordingly, the same objective standard applies:  a police officer may conduct an investigatory
traffic stop if the officer has “reasonable suspicion” that a particular person
“has committed, is committing, or is about to commit a crime.”’  [Citation.]” 
(People v. Bennett (2011) 197
Cal.App.4th 907, 912-913.) 

            An
officer’s reasonable suspicion is evaluated by considering the totality of the
circumstances to determine whether the officer had a “‘“particularized and
objective basis” for suspecting legal wrongdoing.’”  (People
v. Osborne (2009) 175 Cal.App.4th 1052, 1058.)  Although a hunch is not sufficient to justify
a stop, reasonable suspicion is a lesser standard than probable cause and “‘it
falls considerably short of satisfying a preponderance of the evidence
standard.  [Citation.]’  [Citation.]” 
(Ibid.)

            The
evidence reflects defendant and his coworker were driving along a rural road, a
canal bank, in the middle of night.  The
men were coming from an area where a structure fire had recently begun.  Given the remoteness of the location through
which defendant was travelling, the time of night, and the fire burning, Miles
could reasonably suspect something criminal was afoot.  The circumstances, when taken together,
appear strange because it is unclear what reason, other than criminal activity
connected to the fire, the men would have for being in such a rural area in the
middle of the night.  These circumstances
would cause a reasonable law enforcement officer to want to question defendant
and his coworker.  Thus, the stop was
proper.

            Defendant
asserts Miles was acting only on a hunch because there was nothing indicating
the fire was the result of arson or that defendant and his coworker were
somehow connected to the fire.  We do not
find the argument to be persuasive because it is the totality of the
circumstances that must be considered. 
In this case, defendant and his coworker were traveling along a
canal—not near businesses or offices—in the middle of the night, and appeared
to be leaving the area of the fire. 
Since there did not appear to be any reason for defendant to be in the
area given its rural nature, and a fire had recently erupted in the location
from which defendant was traveling, a law enforcement officer could have a
reasonable particularized basis for suspecting criminal activity.

                        3.         MIRANDA
RIGHTS

            Defendant
contends the trial court erred by denying his motion to suppress evidence
because defendant’s Miranda rights
were violated.  We disagree.

            “In
reviewing a trial court’s ruling on a motion to suppress evidence based upon a >Miranda violation, ‘“we accept the trial
court’s resolution of disputed facts and inferences, and its evaluations of
credibility, if supported by substantial evidence.  We independently determine from the
undisputed facts and the facts properly found by the trial court whether the
challenged statement was illegally obtained.” 
[Citation.]’  [Citation.]”  (People
v. Bejasa (2012) 205 Cal.App.4th 26, 35.)

            “>Miranda advisements are only required
when a person is subjected to custodial interrogation.  [Citation.] 
A suspect is in custody when a reasonable person in the suspect’s
position would feel that his ‘freedom of action is curtailed to a “degree
associated with formal arrest.” 
[Citation.]’  [Citation.]”  (People
v. Bejasa, supra, 205 Cal.App.4th at p. 35.)  California courts have identified a number of
facts relevant to determining whether a person was in custody.  “While no one factor is conclusive, relevant
factors include:  ‘(1) [W]hether the
suspect has been formally arrested; (2) absent formal arrest, the length
of the detention; (3) the location; (4) the ratio of officers to suspects; and
(5) the demeanor of the officer, including the nature of the questioning.’  [Citations.]” 
(Id. at pp. 35-36.)

            The
record indicates defendant was not under arrest at the time he told Miles about
the gun in the car.  Miles only asked
defendant and his coworker a few questions at the time defendant volunteered
his statement about the gun, which indicates the detention was not lengthy.  While defendant was stopped in a rural and
perhaps isolated area, defendant remained in his car while speaking to Miles,
so he was not in a custodial environment. 
At the time defendant made his statement about the gun, the people
present were:  one officer, defendant,
and defendant’s coworker, so the non-law enforcement people outnumbered the law
enforcement officer two to one.  Miles’s
demeanor during the detention appeared to be formal but not aggressive; Miles
described the interaction as asking the men if they were from the area, asking
for their identification cards, and engaging in “small talk” while the men
retrieved their identification cards. 

            There
is nothing in the interaction that indicates defendant was in custody at the
time he volunteered his statement about the gun, because the interaction was
brief, not in a custodial environment, the officer’s demeanor was not
aggressive, and the non-law enforcement people outnumbered the officer.  Since the factors support a conclusion that
defendant was not in custody, the trial court did not err by denying defendant’s
motion to suppress.

>DISPOSITION

            The
judgment is affirmed.

            NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

 

MILLER                                            

J.

 

 

We concur:

 

 

RAMIREZ                                         

                                                     P. J.

 

 

HOLLENHORST                             

                                                         J.