P. v. Brown

Filed 10/30/07 P. v. Brown 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Robert George Spitzer, Judge. Affirmed.

Mark Alan Hart, 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, and Maxine Cutler, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant Alan Leonard Brown guilty of second degree murder (Pen. Code, 187, subd. (a),^[1]count 1), driving under the influence causing bodily injury (Veh. Code, 23153, subd. (a), count 2) and driving with a blood alcohol content of .08 percent or greater causing bodily injury. (Veh. Code, 23153, subd. (b), count 3.) Defendant pled guilty to the misdemeanor of driving with a suspended license. (Veh. Code, 14601.2, subd. (a), count 4.) The jury also found true the enhancement allegations on counts 2 and 3 that defendant personally inflicted great bodily injury on two victims. ( 12022.7, subd. (a), 1192.7, subd. (c)(8).) The trial court sentenced defendant to a total term in state prison of 23 years, including 15 years to life on count 1, the consecutive term of two years on count 2, plus a consecutive three years for each of the two great bodily injury enhancements. The court imposed a concurrent term of six months on count 4, and stayed the sentence and enhancements on count 3.

On appeal, defendant contends that: 1) the trial court erred in denying his motion in limine to suppress statements he made to a police officer at the scene of the accident; and 2) his Sixth Amendment right to a jury trial, as defined in Blakelyv. Washington (2004) 542 U.S. 296 (Blakely), Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), was violated when the trial court imposed consecutive sentences. We disagree and affirm.

FACTUAL BACKGROUND

At around 2:00 a.m. on July 21, 2005, Christian Esquivel was driving his mothers car with two passengers, in Corona. He stopped at a flashing red light at the intersection of Sixth Street and Smith, looked to his left, and saw a red car coming. He could not determine its speed. Esquivel proceeded into the intersection. The red car, which had been spotted by police officers speeding just moments before, did not slow down or stop. Officer Robert Paul, who had responded to a call for assistance regarding the speeding car, drove to the intersection of Sixth and Smith in time to observe a collision between the red car and Esquivels car. Officer Paul estimated that the red car was going approximately 100 miles per hour. Esquivels car spun around, stopped at the curb, and immediately caught on fire. One of Esquivels passengers was ejected from the car and died as a result of blunt force head trauma. Esquivel and the other passenger were pulled out of and away from the burning car and were hospitalized for several days.

After hearing about the collision, Officer Jason Morris drove to the scene of the accident. He saw other officers tending to the burning car at the intersection of Sixth and Smith so he drove further west on Sixth Street, where he saw the red car, which was turned over on its roof.^[2] He approached the car and noticed one male occupant in itdefendant. As Officer Morris dragged defendant out of the car, defendant cried out in pain. A large can of beer fell out of the car with him. Officer Morris dragged defendant 10 to 15 feet away from the car and waited with him for paramedics to arrive. At that point in time, he did not arrest defendant or handcuff him because he had no reason to do so. While Officer Morris was waiting with defendant, he asked him some questions about the collision and tape recorded the conversation with a digital tape recorder.^[3] Officer Morris asked defendant, What happened, dude? Defendant said he went through a stop sign. Officer Morris asked him if he had been drinking, and then asked how much he had been drinking. Defendant replied, Not enough. Officer Morris asked him a few other brief questions, including where he was in pain, which way he was driving, what and where he was drinking, if he was wearing his seatbelt, and how fast he was going. When the paramedics arrived, they placed defendant in an ambulance and drove him to the hospital, unaccompanied by any police officer. Officer Morris drove to the hospital in his police car.

Police Investigator Bryan Wilson, a traffic investigator and accident reconstructionist, arrived at the scene of the collision at 2:30 a.m. From his investigation, he concluded that defendant was driving between 93 and 113 miles per hour, while Esquivel was driving between 16 and 21 miles per hour.

Investigator Wilson interviewed defendant at the hospital at 9:30 a.m., later that morning. Defendant told Investigator Wilson that he had previously been arrested for driving under the influence (DUI) twice, once causing a collision. He told Investigator Wilson that his license was currently suspended because he was supposed to have an ignition interlock device^[4]installed in his car, but he never did. His license had been suspended for the past 12 years. He also stated that he completed a DUI program 15 years ago, but failed to complete the program the second time. Defendant admitted that the current collision was his fault. He said he was speeding down the street to catch the green lights. In addition, he told Investigator Wilson that he was taking Prozac and Trazodone. Investigator Wilson subsequently obtained defendants prescription bottles from his mother. Both bottles contained warning labels stating that the drugs could cause drowsiness, which could be intensified by alcohol.

A blood sample was taken from defendant at 3:05 a.m., and his blood alcohol level was .19. The test also revealed Prozac and Trazodone in his blood.

ANALYSIS

I. The Trial Court Properly Denied Defendants Motion in Limine to Suppress His Statements to Officer Morris

Defendant argues that the evidence of his statements to Officer Morris at the scene of the collision was improperly admitted in violation of his rights under Miranda.^[5] The issue is whether defendant was taken into custody or otherwise deprived of his freedom of action in any significant way. [Citation.] (People v. Forster (1994) 29 Cal.App.4th 1746, 1753 (Forster).) We conclude that he was not; therefore, the Miranda safeguards did not apply.

A. Procedural Background

A preliminary hearing was held on December 2, 2005. Officer Morris, whose subsequent trial testimony is presented above in the statement of facts, testified at the preliminary hearing that he asked defendant questions about what happened after the collision. When the prosecutor asked Officer Morris what defendant told him, defendant objected, based on Miranda. After initially overruling the objection, the court sustained it. A lengthy discussion then ensued about whether defendant was free to leave and if Miranda applied. During the discussion, the court asked Officer Morris if he would have allowed defendant to walk away while he was questioning him. Officer Morris replied, Absolutely not, sir, because I have a duty to investigate the traffic accident. The prosecutor requested the court to admit the evidence of defendants statements to Officer Morris, subject to a motion to strike at the end of the hearing. The court agreed to do so. It then continued the preliminary hearing to December 16, 2005.

At the continued preliminary hearing, Officer Morris testified that defendant was not in custody at the time he was asking questions about the collision. Officer Morris asked defendant how fast he was going, and if he had had any alcohol to drink. In response to the latter question, defendant said, Not enough. At that point, Officer Morris said he ceased questioning defendant, and the paramedics took defendant to the hospital.

At the close of evidence at the preliminary hearing, the court asked the parties to address defendants Miranda objection to Officer Morriss testimony regarding defendants statements made at the scene of the collision and at the hospital. The court then denied defendants request to suppress the statements, citing Berkemer v. McCarty (1984) 468 U.S. 420 (Berkemer) and other cases.

Subsequently, defendant filed a motion in limine to suppress his statements made to Officer Morris at the scene of the collision. He claimed that he was in custody and should have been given Miranda warnings before being questioned, considering the circumstances that: 1) he caused a major traffic accident and the police were on the scene; 2) Officer Morris testified at the preliminary hearing that he was not allowed to leave, pending investigation of the collision; and 3) Officer Morris knew that defendant was not going to get up and leave, given his injuries. The court concluded that the interview that occurred at the scene of the collision did not constitute a custodial interrogation, within the meaning of Miranda. The court specifically noted that the contact between Officer Morris and defendant was relatively brief, and that the officer simply presented an open-ended question, What happened? and a few follow-up questions.

B. Standard of Review

On appeal, [w]e apply a deferential substantial evidence standard to the trial courts factual findings, but independently determine whether the interrogation was custodial. [Citation.] (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster).)

C. Defendant Was Not in Custody

It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspects freedom of action is curtailed to a degree associated with formal arrest. [Citation.] (Berkemer, supra, 468 U.S. at p. 440.) Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citation.] (Pilster, supra, 138 Cal.App.4th at p. 1403, fn. omitted.) Objective indicia of custody for Miranda purposes include: (1) whether 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. (Forster, supra, 29 Cal.App.4th at p. 1753.)

In Berkemer, the United States Supreme Court concluded that an officers roadside questioning of a motorist detained pursuant to a routine traffic stop did not constitute custodial interrogation for Miranda purposes. (Berkemer, supra, 468 U.S. at pp. 435-440.) The Court noted that the detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. (Id. at p. 437.) The court then contrasted a stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek. (Id. at pp. 437-438.)

Here, defendant has failed to demonstrate that he was subjected to restraints comparable to those associated with a formal arrest. When Officer Morris questioned defendant, he had not been formally arrested. The length of the questioning was very brief, as noted by the court. Defendant was questioned at the scene of the collision, not a police station. This public atmosphere, in which passersby could view the interaction, was substantially less police dominated than that surrounding the kinds of interrogation at issue in Miranda itself . . . . (Berkemer, supra, 468 U.S. at pp. 438-439.) Officer Morris was the only officer questioning defendant, and the questions were open-ended, non-accusatory, and investigative. The officer simply asked questions to aid his investigation of the collision. (i.e., What happened? Were you drinking? How fast were you going? Were you wearing a seatbelt?) Even after questioning defendant, Officer Morris did not place him under arrest. He waited with him for the paramedics to arrive. Defendant then went to the hospital in the ambulance, unaccompanied by any police officer.

Although Officer Morris told the court he would not have allowed defendant to walk away while he was questioning him because he had a duty to investigate the accident, his intention was not communicated to defendant. A policemans unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time; the only relevant inquiry is how a reasonable man in the suspects position would have understood his situation. (Berkemer, supra, 468 U.S. at pp. 442, fn. omitted.)

Considering the totality of the circumstances surrounding the questioning of defendant, we conclude he was not in custody and was thus not entitled to Miranda warnings.

D. Any Error Was Harmless

Defendant argues that the courts admission of his comment, Not enough (his response when Officer Morris asked him how much he had to drink), was prejudicial error, since the prosecutor allegedly used that statement to prove implied malice. Any error in admitting that statement was harmless beyond a reasonable doubt. (People v. Peracchi (2001) 86 Cal.App.4th 353, 363.)

Defendant correctly points out that the prosecution used defendants statement, Not enough, in his closing argument. The prosecutor argued that, after defendant had been drinking for four hours, his attitude was that he had not had enough, and that remark said a lot about his disregard for the lives and safety of others. However, there was an abundance of other evidence that showed defendants conscious disregard for life. Defendant admitted during his interview with Investigator Wilson that he had two previous arrests for driving under the influenceone of which involved a collision. Defendant was required to, and did, complete a DUI program, as a result. This fact alone showed that defendant had knowledge of the dangers of driving under the influence. He also admitted that he failed to complete the DUI program the second time he was supposed to take it. At the time of the current collision, defendant was driving with a license that had been suspended for 12 years. He admitted that he was supposed to install an ignition interlock device, but never did. Moreover, defendant took Prozac and Trazodone that day, and, despite the warnings against mixing drugs with alcohol, he consumed so much alcohol that his blood alcohol level was .19 percent. He then drove his car between 93 and 113 miles per hour. In light of this evidence, which clearly displays defendants implied malice, any error in admitting his statement was harmless beyond a reasonable doubt.

II. The Trial Court Properly Imposed Consecutive Sentences

Defendant claims that the trial courts imposition of the sentence in count 1 consecutive to the sentence in count 2, based on facts that were not found true beyond a reasonable doubt by the jury violated his constitutional rights to a jury trial and due process, under Blakely, supra, 542 U.S. 296, and Apprendi, supra, 530 U.S. 466. He argues that applying Blakely and Apprendi to consecutive sentencing is consistent with the reasoning of Cunningham, supra. We disagree.

Cunningham did not address the constitutionality of Californias Determinate Sentencing Law (DSL) pertaining to a trial courts decision to impose concurrent or consecutive sentences. It thus did not overrule the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black) (overruled on other grounds in Cunningham, supra) that Blakelys underlying rationale is inapplicable to a trial courts decision whether to require that sentences on two or more offenses be served consecutively or concurrently. (Id. at p. 1262.) We are bound by Blacks holding that the reason(s) for imposing a consecutive term need not be determined by the jury.

(Black, supra, at pp. 1263-1264; see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455-456.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

Acting P.J.

We concur:

/s/ McKINSTER

J.

/s/ RICHLI

J.

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^[1] All further statutory references will be to the Penal Code, unless otherwise noted.

^[2] The record refers to the red car as burgundy and maroon, as well.

^[3] The jury was given a transcript of the recording, and the recording was played for the jury.

^[4] Defendant referred to it as a breath machine.

^[5]Miranda v. Arizona (1966) 384 U.S. 436.