Filed 3/7/18 P. v. Lopez CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA DAVID LOPEZ,

Defendant and Appellant.
D071266



(Super. Ct. No. SCD264882)

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed.
Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Barry Carlton and James Henry Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
 
The People charged Joshua David Lopez with robbery (Pen. Code, § 211; count 1), unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count 2), false representation of identity to a peace officer (Pen. Code, § 148.9, subd. (a); count 3), and driving without a valid driver's license (Veh. Code, § 12500, subd. (a); count 4). A jury convicted him of all counts except the robbery charge. In a retrial, another jury convicted him of that count, finding true allegations that Lopez personally used a deadly and dangerous knife in the commission of the robbery. (Pen. Code, §§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The court sentenced him to a total of four years in prison.
Lopez contends: (1) insufficient evidence supported his robbery conviction because the victim testified to not being afraid of him during the robbery; (2) the prosecutor committed misconduct during the trial on that charge by making inadmissible statements in closing arguments; and (3) the court violated his constitutional rights during the trial on the vehicle theft count by admitting into evidence Lopez's statements made to police before he was advised of his rights under Miranda v. Arizona (1964) 384 U.S. 436 (Miranda). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Robbery Conviction
Jannym Marron, a loss prevention employee at a store, testified that on December 9, 2015, he saw Lopez in the store's restroom "shuffling through clothing . . . on top of the baby changing table." Afterwards, Marron tracked Lopez's movements in the store and saw him ripping off the price tag from a backpack, taking various store items, and concealing them in the backpack. Eventually, Lopez bypassed the cash registers and headed for the store's exit, carrying the backpack, which appeared full. Marron approached Lopez in the vestibule and tried to dissuade him from leaving. But Lopez took off the backpack and some clothing and proceeded to the parking lot. Marron followed him closely and Lopez repeatedly said, "Get away from me." Marron saw Lopez shift a knife from one hand to another; therefore, he decided to increase his following distance from about two feet to about ten feet. Later, Lopez flashed the knife while looking in Marron's direction. Therefore, Marron said he became concerned for his safety and sought to avoid getting harmed.
The prosecutor asked Marron if he was afraid of Lopez, and Marron said, "No," explaining he dealt with such situations daily. For Marron's increased safety, he waited until Lopez got into a truck to leave and then ran to take a picture of its license plate to use as evidence. Lopez drove off, carrying some merchandise. The store never recovered some of the store items Lopez had removed.
Convictions for Vehicle Theft, Driving Without a License, and False Identification
San Diego Police Officer Micah Vanesler testified that early in the morning of December 12, 2015, he saw a truck going the wrong way on a one-way street and pulled it over. After learning that the vehicle was reported stolen, he ordered Lopez, the driver, out of the truck and handcuffed him. Without first giving Lopez Miranda warnings, Officer Vanesler asked Lopez for his name and that of the vehicle's owner. The officer testified he was trying to determine the truck's lawful owner. In response to the officer's question, Lopez said his cousin, "Miguel Rivas," owned the truck. However, Officer Vanesler soon learned the vehicle's real owner was someone else. Accordingly, the officer arrested Lopez. Lopez did not provide a valid driver's license at the officer's request or state his correct name and date of birth; instead, he tried to pass himself off as "Joel Cabrera," whose California driver's license he was using. The parties stipulated Lopez was driving a Chevrolet Silverado truck.
Kyle Dubois's testimony was read into the record. He testified that on or around December 9, 2015, he lived in Pacific Beach, San Diego County, and he informed the police that his Chevrolet Silverado truck was missing. He did not know Lopez and had not given anyone permission to take it. Dubois retrieved the truck after police found it a few days later.
DISCUSSION
I.
Sufficient Evidence Supported the Robbery Conviction
Lopez contends there was insufficient evidence to support the robbery conviction because the People did not prove that the robbery was accomplished through fear, as Marron testified he was not afraid during the incident.
In assessing a claim of insufficient evidence in a criminal case, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.) Robbery is a specific intent offense which requires the prosecution to prove the defendant intended to permanently deprive the victim of the property taken. (People v. Anderson (2011) 51 Cal.4th 989, 994.) Because there is rarely direct evidence of specific intent, it must usually be proven circumstantially. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)
The taking aspect of robbery has two parts: " 'gaining possession of the victim's property and asporting or carrying away the loot.' " (People v. Rodriguez (2004) 122 Cal.App.4th 121, 130.) " 'Gaining possession or . . . carrying away' includes forcing or frightening a victim into leaving the scene, as well as simply deterring a victim from preventing the theft or attempting to immediately reclaim the property." (People v. Flynn (2000) 77 Cal.App.4th 766, 771.) "In California, '[t]he crime of robbery is a continuing offense that begins from the time of the original taking [and does not end] until the robber reaches a place of relative safety.' " (People v. Anderson, supra, 51 Cal.4th at p. 994.) "A defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence." (People v. McKinnon (2011) 52 Cal.4th 610, 686.)
This court has held: "It is not necessary that there be direct proof of fear; fear may be inferred from the circumstances in which the property is taken. [Citations.] [¶] If there is evidence from which fear may be inferred, the victim need not explicitly testify that he or she was afraid. [Citations.] Moreover, the jury may infer fear ' "from the circumstances despite even superficially contrary testimony of the victim." ' [Citations.] [¶] The requisite fear need not be the result of an express threat or the use of a weapon. [Citations.] Resistance by the victim is not a required element of robbery [citation], and the victim's fear need not be extreme to constitute robbery [citation]. All that is necessary is that the record show ' " 'conduct, words, or circumstances reasonably calculated to produce fear.' " ' " (People v. Morehead (2011) 191 Cal.App.4th 765, 774-775.)
The evidence sufficed to support a finding that by means of fear, Lopez took the merchandise and escaped from the store's parking lot. Lopez had repeatedly ordered Marron to get away from him, and because Marron was undeterred, Lopez flashed a knife in his direction. Concerned for his safety, Marron immediately increased the distance between him and Lopez. On this record, the jury reasonably could conclude that, contrary to Marron's testimony, Lopez's use and display of the knife instilled fear in him. Although Lopez claims that any fear Marron felt did not allow the crime to be accomplished because Marron ran and took a photograph of the truck that Lopez was driving, that argument is unavailing. By the time Marron took the photograph, the robbery had been completed as Lopez had already reached a place of relative safety (the truck) and was about to leave the parking lot.
II.
No Prosecutorial Error
Lopez contends that during closing arguments at the robbery trial, the prosecutor committed misconduct by (1) referring to the vehicle Lopez drove when he left the store as a "stolen vehicle"; and (2) stating that Marron had testified "four times" in Lopez's trial.
A. Background
During closing arguments, the prosecutor stated: "Who is responsible for really investigating cases like this? The police officers. When they got to the scene— you heard me ask. He's a relatively new officer not a bad guy, but he didn't even take the packaging to check to see if the knife matched. He didn't ask what the defendant did with the knife after he held it down by his side. He didn't impound the training receipt although he thought he did. He didn't take any pictures of the stolen merchandise. All of those pictures. He didn't acquire the picture that Mr. Marron took of the stolen vehicle—excuse me. Of the vehicle. I meant to say stolen property. Of the vehicle and—he didn't really conduct a full investigation and then when the detective got it, got the videos, he noticed there were eight clips. Just the same eight clips that you all saw, and he didn't do any follow up until months later after I asked him to do it. [¶] It's not Mr. Marron's fault." (Italics added.)
At the end of rebuttal arguments, the prosecutor told the jury: "So either Mr. Marron is an excellent liar who remains consistent throughout who makes up things for no reason whatsoever, plants evidence because maybe the knife packaging—I don't know. And then decides he's going to waste his time coming into court four times to tell you about it. Ladies and gentlemen, this case is not a conspiracy against the defendant by Mr. Marron. He doesn't know [the defendant]. He's arrested over 200 shoplifters as a loss prevention officer. [The defendant is] not particularly special to him. You have no evidence that he fabricates stories." (Italics added.)
When the prosecutor made the challenged comments, Lopez did not object. Immediately after jury deliberations started, defense counsel moved for a mistrial based on the prosecutor's challenged statements. The court denied the motion but indicated an openness to revisiting the issue: "So as far as the stolen car, stolen vehicle, I caught that. I highlighted it. I also highlighted the effort on the prosecutor's part to clarify. It came out to me as I was listening to it as if it was [a] situation where she misspoke. I did not think that it would be interpreted as if there was a stolen vehicle." The court added: "I do remember on cross and direct getting into what Mr. Marron had testified to before, and I do remember having a sinking feeling when it was asked on redirect about the times. . . . [T]here was a way that it was emphasized that it was a lot of times that he came back, but I don't believe there was ever an objection. So I've never been in a position that I could try to correct it or make any modifications or give the jury some type of admonition. We know that you know people have to come in sometimes to testify for motions. It doesn't necessarily mean that there were that many trials before, and there are [Evidence Code section] 402 hearings. There are suppression motions. It's not that it would be applicable in this particular instance, but it's not without some plausible explanation."
After the jury returned its verdict, defense counsel spoke with some of the jurors. Without renewing the motion for a mistrial or seeking any other relief, defense counsel told the court: "I just want to put on the record a little bit of our conversation. Five jurors stuck around and their—I think the first question was about how many times this case has been here, whether we have been the attorneys together the whole time, whether you have been the judge the whole time, and after I said that's not really an area that we can talk about, another juror asked pretty much the same question. So I just want to put on the record that I think comments about the number of times that this case has been here was obviously something that the jurors were thinking about."
B. Applicable Law
"Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. [Citations.] A prosecutor's 'vigorous' presentation of facts favorable to his or her side "does not excuse either deliberate or mistaken misstatements of fact." (People v. Hill (1998) 17 Cal.4th 800, 823.)
A prosecutor's misconduct violates the federal Constitution and requires reversal when it infects the trial with such unfairness as to deny due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) Under state law, a prosecutor's conduct that does not render a criminal trial fundamentally unfair is still error if it involves the use of deceptive or reprehensible methods in attempting to persuade the trier of fact. (Id. at pp. 1009-1010.) Generally, a claim of prosecutorial misconduct is preserved for appeal only if the defense makes a timely objection and requests an admonition to cure any harm. (People v. Centeno (2014) 60 Cal.4th 659, 674.)
C. Analysis
Here, defense counsel did not object to either of the prosecutor's comments. Nothing in the record indicates that objections would have been futile or that the prosecutor's arguments were "so extreme or pervasive that a prompt objection and admonition would not have cured the harm." (People v. Centeno, supra, 60 Cal.4th at
p. 674.) Further, the record fails to disclose grounds for applying any exception to the general rule—such as futility, or when an admonition would not have cured the harm, or when the court immediately overrules an objection so that the defendant had no opportunity to make a request for admonition. (People v. Hill, supra,17 Cal.4th at
pp. 820-821.) As such, Lopez's claim of prosecutorial misconduct is barred in its entirety.
Moreover, even if we were to presume that this issue was preserved for appeal, we conclude it would not require reversal. In reviewing the prosecutor's statements, we do not infer that the jury drew the most damaging rather than the least damaging meaning. The prosecutor's comment regarding the stolen vehicle was an inadvertent misstatement. We acknowledge that the prosecutor's intent is irrelevant in establishing a claim of prosecutorial error; bad faith is not required. (People v. Hill, supra, 17 cal.4th at
pp. 822-823.) Here, however, the prosecutor immediately acknowledged her error and attempted to correct it. The prosecutor's other statement about Marron having testified four times in this case did not likely affect the jury's determination of whether Lopez committed the robbery. This record does not establish a reasonable likelihood that the jury understood or applied either of the prosecutor's comments in an improper or erroneous manner. The prosecutor's comments did not infect the trial with such unfairness as to deny due process. The prosecutor did not use deceptive or reprehensible methods in attempting to persuade the trier of fact. As such, prosecutorial error is not present under either federal or state law.
III.
No Miranda Violation
Lopez contends the court violated his Fifth Amendment rights under the federal Constitution by admitting into evidence his statements made while he was in custody before he received Miranda warnings. He therefore argues his conviction for unlawfully taking a vehicle should be reversed.
A. Background
The People moved in limine to admit into evidence Lopez's unmirandized statements, arguing that Miranda warnings were not required as the police only temporarily detained him for questioning; and, in any event, Lopez's statements were admissible because they were voluntary and spontaneous. In opposing the motion, Lopez argued the statements were obtained while he was in custody and not free to leave, and the police had interrogated him in violation of Miranda.
At a pretrial Evidence Code section 402 hearing, Officer Vanesler testified with reference to footage from his body-worn camera, the videos of which the court watched, that approximately 20 or 30 seconds after he had contacted Lopez, he learned Lopez was driving a stolen vehicle. At that point, Officer Vanesler activated his body-worn camera. The footage shows Lopez initially saying: "I just recently borrowed this vehicle from a family member. So as of now, I'm not sleeping under the bridge where I usually sleep and I usually stay underneath the bridge by (unintelligible)."
Officer Vanesler then ordered Lopez out of the vehicle, telling him the truck he was driving was reported stolen. The officer asked Lopez if he had weapons, and Lopez said, "No." He handcuffed Lopez, who stood outside the truck. Officer Vanesler testified he detained Lopez in order to further investigate whether the vehicle was stolen, and the police department's general practice was to remove the occupants of suspected stolen vehicles at gunpoint and handcuff them to protect the officers and the suspects because most people who steal cars carry guns and weapons.
Officer Vanesler testified that he did not have his gun drawn while questioning Lopez, and one other officer was nearby. Officer Vanesler asked Lopez questions to ascertain who owned the vehicle and if Lopez lawfully possessed it. Lopez said his cousin was the owner. The officer asked for the cousin's name, and Lopez eventually said, "Miguel Rivas." At one point, Lopez told the officer: "Grinded? That's not a shaved key." The officer replied, "Quiet. I didn't ask you a question." Lopez persisted in saying it was not a shaved key. The officer again said he had not asked Lopez a question. When Lopez still pursued that topic, the officer said, "Okay. We have our opinions, don't we?" After about four minutes of questioning, the officer told Lopez, "Take a seat in the back of my truck for right now," and turned off the body-worn camera. Officer Vanesler put Lopez in the patrol vehicle while the officer looked for illegal materials in the truck Lopez had driven.
After a "couple of minutes," Officer Vanesler returned to his patrol vehicle, turned on his body-worn camera, and asked Lopez for his identifying information. This second interaction lasted less than nine minutes. Officer Vanesler testified he asked about Lopez's identity to determine if there were outstanding warrants and if Lopez was on probation and subject to a waiver of his Fourth Amendment rights regarding search and seizure.
The transcript of Officer Vanesler's recording shows that at the start of the second conversation, Lopez was in the police vehicle and asked, "Are you listening?" Vanesler responded in the affirmative. Unprompted, Lopez said: "Alright. So, so this is, this is what it was eh . . . I go and um. I go to like La Jolla and I don't break into nothing, I don't have nothing coming I was in the Marine Corps for a couple years and um, I go and I, I check for, for people that leave open doors or or and sometimes it's like they're just watching you and and anyways I, I go and and I check, you know cause every hundred cars they'll be a they'll [sic] be a car that will um have a fuckin' laptop or whatever and it's just and it's just open. I don't break into nothing but if I leave my shit unlocked, someone's gonna' come up on it, you know what I mean? So anyways, long story short is fuckin' I go and I hit a car and all the paperwork like it just got done was (unintelligible) center console, the center console with the keys. . . . And I, I was gonna' put it back God as, God as my witness. My name is Buck and and my, well you know and and, and all I'm tryin' to say is is this car had the keys right there and I was actually looking for iPods cause this is what I do."
Officer Vanesler said, "Hold on. What's your last name real quick?" Lopez ignored the question and continued: "I go days without, without eating. You know what I mean? I am homeless. I am, I, I am a vet that got dishonorably discharged and I was in the Marine Corps (unintelligible) and I'm just going through a rough patch, you know what I mean? And I can maintain but, the point is, I go, at I am, I'm tired of being fucked with because I leave my tent unlocked. I have to lock my tent. That, that people fuck with me."
Officer Vanesler again tried to refocus the conversation: "Hey. Hold on, hold on. I need, I need to get something from you. What's your last name? Buck, what's your last name? Be honest, don't mess with me just, you're gonna' give me your information." Lopez again ignored the question, prompting Officer Vanesler to say: "What's your last name? Look I'm either gonna', you're either gonna' tell me or I'm gonna' drive you downtown and fingerprint ya and find out that way. One way or another, I'm gonna' find out who you are so it'll be just easier if you. . . . Tell me who you are."
Lopez stalled further, and Officer Vanesler interjected, "No, I understand what your position is but right now I need to gather your information. So let's do that."
The following discussion ensued:
"[Lopez:] (Unintelligible.) No, no. Like. I'm sorry I talk a lot. Like this is me. "Vanesler: Focus, focus.
"[Lopez:] You have my ID.
"Vanesler: He said his name was Buck. I don't have your ID.
"[Lopez:] My ID is right, they had it.
"Vanesler: What's your first name then?
"[Lopez:] That's my ID, sir.
"Vanesler: I don't believe that's you.
"[Lopez:] Well I didn't break into the car (unintelligible) pictures taken . . .
"Vanesler: Just shut up."
Shortly afterwards, Officer Vanesler arrested Lopez at the police station and gave him Miranda warnings. Lopez thereafter refused to talk to the police.
Officer Vanesler testified that at one point in the second recording he commented to Lopez, "You're stealing stuff that's not yours. You understand that's wrong, right?" In explaining that comment, Officer Vanesler testified: "Honestly, it was like—I was kind of flabbergasted. It was more pertaining towards [Lopez's] portrayal of people leaving their stuff unlocked and looking for laptops and finding money, and he can just take it. . . . It was almost like trying to make him understand that that's not right. It wasn't specifically pertaining towards the vehicle."
Following the evidentiary hearing, and after considering counsels' arguments, the court ruled admissible Lopez's statements from the first video recording when he was detained and placed outside of the truck. As to the interaction in the second video recording, when Lopez was in the patrol car, the court ruled: "I will have to go through and block out those portions that I believe should not be admitted as to the conversation that went on in the car." The court further explained: "I think if the defendant is saying, 'Are you listening?' it indicates someone who is spontaneous voluntarily, and letting it all come out, and if the officer said it, I may view certain portions of what immediately comes afterwards as then at that point being ones where the officers were encouraging the defendant to keep going with this voluntariness."
B. Applicable Law
"The applicable law is settled: ' "As a prophylactic safeguard to protect a suspect's Fifth Amendment privilege against self-incrimination, the United States Supreme Court, in Miranda, required law enforcement agencies to advise a suspect, before any custodial law enforcement questioning, that 'he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.' " ' " (People v. McGurdy (2014) 59 Cal.4th 1063, 1085.)
On appeal, we defer to the trial court's factual findings supported by substantial evidence and independently determine from the factual findings whether appellant was in custody for Miranda purposes. (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) It is settled that Miranda advisements are required only when a person is subjected to "custodial interrogation." (Miranda, supra, 384 U.S. at p. 444; People v. Mickey (1991) 54 Cal.3d 612, 648.) The Miranda opinion itself permits "[g]eneral on-the-scene questioning as to facts surrounding a crime." (Id. at p. 477.) A custodial interrogation does not occur where an officer detains a suspect for investigation and the questioning is limited to the purpose of identifying a suspect or "to obtain [sufficient] information confirming or dispelling the officer's suspicions." (People v. Farnam (2002) 28 Cal.4th 107, 180; see Berkemer v. McCarty (1984) 468 U.S. 420, 439 [answers to investigatory questions by police officer who lawfully detains a person pursuant to a traffic stop are admissible even if the person was not given Miranda warnings]; People v. Davidson (2013) 221 Cal. App. 4th 966, 970.)
Whether a person is in custody is an objective test: the pertinent inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. (People v. Leonard, supra, 40 Cal.4th at p. 1400.) The court considers the totality of the circumstances, including "(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." (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) Additional factors are whether the officer informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement, whether the police were aggressive, confrontational, and/or accusatory, and whether the police used interrogation techniques to pressure the suspect. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
The California Supreme Court has held that statements obtained via a deliberate Miranda violation are not per se involuntary. (People v. Peevy (1998) 17 Cal.4th 1184 (Peevy); see Harris v. New York (1971) 401 U.S. 222, 224, 226; cf. Missouri v. Seibert (2004) 542 U.S. 600, 610, fn. 2 (plur. opn.) [noting some police training programs advise officers to omit Miranda warnings altogether or to continue questioning after the suspect invokes his rights to obtain possible impeachment evidence].) A confession is considered voluntary if it is the " 'product of a rational intellect and a free will.' " (People v. Holt (1997) 15 Cal.4th 619, 663.) " 'Among the factors to be considered are " 'the crucial element of police coercion [citation]' . . . as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' " ' " (People v. Boyette (2002) 29 Cal.4th 381, 411; People v. McElheny (1982) 137 Cal.App.3d 396, 401-402.)
There are, of course, limits to the rule allowing "brief and casual" investigatory questions. If the questioning is aggressive, confrontational, accusatory, coercive, or sustained, the court may find a violation of Miranda. The warnings are not required "until such time as the point of arrest or accusation has been reached or the questioning has ceased to be brief and casual and become sustained and coercive." (People v. Manis (1969) 268 Cal.App.2d 653, 669.)
"Do we then allow the police to ask questions of persons suspected of crime who have been temporarily detained for investigation? In California the answer is yes, an answer initially formulated as the privilege of the police to seek out and question suspects and those believed to have knowledge of crime, but which has been subsequently broadened to include brief questioning of persons who have been involuntarily detained." (People v. Davidson, supra, 221 Cal.App.4th at p. 971.)
Volunteered statements not the product of interrogation are admissible. As Miranda itself made clear, "There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." (Miranda, supra, 384 U.S. at p. 478, fn. omitted.)
The police are entitled to ask questions regarding basic biographical information. (People v. Elizalde (2015) 61 Cal.4th 523, 538.) The police may reasonably request clarification. (People v. Franzen (2012) 210 Cal.App.4th 1193, 1199, 1203; People v. Ray (1996) 13 Cal.4th 313, 338.)
The California Supreme Court has rejected claims that Miranda is violated where a defendant volunteers incriminating statements as part of a "casual conversation" (People v. Lewis (1990) 50 Cal.3d 262, 274) or in response to " 'neutral inquir[ies]' made for 'the purpose of clarifying [statements] or points that [the officer to whom a confession is volunteered] did not understand.' " (People v. Ray, supra, 13 Cal.4th at p. 338.) Therefore, "just as custodial interrogation can occur in the absence of express questioning [citation], not all questioning of a person in custody constitutes interrogation under Miranda." (Ray, at p. 338.)
C. Analysis
The People concede, and we agree, that while police were questioning Lopez, he was in handcuffs and therefore not free to leave. But although the question of whether the defendant was restrained is helpful for determining whether he was in custody, to determine whether Miranda warnings were necessary, it does not exhaust the inquiry. Rather, the court must consider all of the circumstances surrounding the police encounter. No one factor is controlling. (See People v. Pilster (2006) 138 Cal.App.4th 1395, 1402.)
Here, the officer's initial questions were limited, and intended to gather information regarding Lopez's identity as well as to determine if he was the owner of the vehicle. Those questions were permissible under the law set forth above. The entire encounter appeared to last no more than 20 minutes. Lopez was questioned on a public sidewalk. "This is a significant difference from interrogation at the police station, '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.' " (People v. Pilster, supra, 138 Cal.App.4th at p. 1404.) In placing Lopez in the patrol vehicle, Officer Vanesler indicated the temporary nature of the detention by telling him to sit there "for now." Based on the totality of the circumstances, the trial court reasonably concluded that it was not a custodial interrogation for Miranda purposes.
We further conclude that most of Lopez's statements in the second recording were voluntary; he sought the officer's attention by asking, "Are you listening?" Lopez even admitted to Officer Vanesler, "I talk a lot." There is no indication in the record that during the police encounter Lopez was mentally impaired or his statements were not voluntary based on his educational level or his maturity. Nor does it appear that Officer Vanesler was coercive, aggressive or confrontational. In fact, Lopez, in talking to Officer Vanesler, defended himself against suggestion he had stolen the vehicle by claiming it belonged to his cousin and he had not broken into it. Officer Vanesler was not obligated to prevent Lopez from volunteering information (People v. Edwards (1991) 54 Cal.3d 816); nonetheless, the officer at various times told Lopez to shut up, be quiet, or made clear he was not asking Lopez any questions. At one point, Officer Vanesler told Lopez, "Focus, focus," and later, "Just shut up." Those statements show the officer was targeted in the questions he asked to obtain only the limited information sought.
Lopez does not argue that any statement he made was so prejudicial that without it he would not have been convicted. Even if the trial court erred in admitting the statements Lopez made to Officer Vanesler, that error was harmless beyond a reasonable doubt because there was overwhelming evidence independent of those statements to support the convictions. (See People v. Johnson (1993) 6 Cal.4th 1, 32 [the harmless beyond a reasonable doubt standard in Chapman v. California (1967) 386 U.S. 18, 24, applies when evaluating prejudice stemming from the admission of a coerced confession].) Specifically, the stolen vehicle conviction was supported by testimony unrelated to Lopez's statements, as the vehicle's real owner showed up while Lopez was detained, and police returned the vehicle to him. Lopez never produced his driver's license, thus supporting his conviction for driving without proper identification. Finally, he presented Cabrera's driver's license, thus supporting his conviction for falsely identifying himself to a peace officer.
DISPOSITION
The judgment is affirmed.


O'ROURKE, J.

WE CONCUR:



BENKE, Acting P. J.



DATO, J.