Filed 8/1/17 P. v. Nelson CA4/3



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT NELSON,

Defendant and Appellant.

G053149

(Super. Ct. No. 14CF3314)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Hawley and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Based on Robert Nelson’s participation in a prison beating inflicted on a fellow inmate, the jury convicted him of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); all further undesignated statutory references are to this code) and active participation in a criminal street gang (§ 186.22, subd. (a)), and found true the alleged gang enhancement (§ 186.22, subd. (b)) on the assault charge. The trial court sentenced Nelson to four years in prison. He challenges the sufficiency of the evidence to support the jury’s conclusion the primary activities of the white supremacist group to which he belonged qualified it as a criminal street gang. In particular, he argues evidence of relatively few specific instances of crimes committed by individual gang members was insufficient to establish those offenses as primary activities of a 100-member group, but a gang expert’s opinion alone is enough under Supreme Court precedent to decode the gang’s primary activities.
Nelson also asserts a Confrontation Clause violation based on the expert’s reliance on police reports, field interview (FI) cards, and notices provided to gang members (STEP notices) to the extent those sources informed his opinion concerning the gang’s primary activities. But the background gang information the expert relayed to the jury did not include testimonial hearsay or case-specific facts about “the particular events and participants alleged to have been involved in the case being tried,” as proscribed in People v. Sanchez (2016) 63 Cal.4th 665, 676 (Sanchez). Consequently, the Confrontation Clause was not implicated. Similarly without merit is Nelson’s claim he was in police custody tantamount to arrest during a parole search involving a housemate years earlier; accordingly, the fact he did not receive Miranda warnings did not require excluding his admitted membership in the white supremacist gang. (See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) We therefore affirm the judgment in all respects.
I
FACTUAL AND PROCEDURAL BACKGROUND
On a February evening in 2014, Deputy Lena Walz of the Orange County Sheriff’s Department looked up from inside her jail sector’s guard station and saw in the common area two admitted white supremacist gang members, Nelson and Cory Mihal, standing over and punching with closed fists a third inmate, later identified as Daniel Romero. Romero lay on the floor without returning blows. Walz notified other deputies by radio that a fight had broken out and, armed with a pepper ball gun, she and seven other deputies entered the area, ordered the seven inmates in the room to drop to the floor, and when Nelson and Mihal eventually complied, they were handcuffed. Walz noticed Mihal’s hand was swollen and Nelson had numerous scratches on one of his hands.
Three days later in a monitored telephone call he made to his grandmother, Nelson told her “I got some trouble,” “I love my homeboys,” and explained, “A couple of days ago . . . we got into a little rumble. Somebody got beat up,” and when his grandmother asked, “Who got beat up,” he replied, “Not me.” Nelson told her he “got a D.A. referral” for assault and battery and when she asked, “On who,” he responded, “We . . . some fucking dude . . . my cellie. . . . We put him in a wheelchair.” Confused, his grandmother asked, “You hit somebody in a wheelchair,” so Nelson clarified, “No, I put him in one” and added, “That could be five, ten years. Who knows? But I don’t think so. I’m hoping I don’t get a court date on this.” His grandmother agreed, but Nelson acknowledged, “There’s GBI,” presumably meaning great bodily injury.
When his grandmother asked how he would feel if she moved away from Orange County, Nelson stated, “I’ll just keep . . . putting in work here I don’t even care if I come home then. Fuck it.” She tried to assure him everything would be okay, suggesting, “You just try to mellow out and be . . . do what you gotta do in there . . . and then we’ll figure it out together.” But Nelson answered, “We just put some dude in a fucking wheelchair. How are you telling me to mellow the fuck out?” He continued, “[T]he fucking crime scene [unit] c[a]me in. There was blood everywhere. Fucking dude has . . . like stitches all over his fucking face . . . like a lot everywhere.” Asked what had happened, Nelson admitted, “We fucking smashed him.” When his grandmother sought a reason, Nelson explained, “It was told to be done.” She offered hopefully, “Won’t get a new case, will you,” but he responded, “I don’t know we beat him up pretty bad.”
The next day, Nelson spoke again by telephone with his grandmother, who was joined by another woman and one of Nelson’s fellow gang members, Tyler Flinn, also known as “Warlock.” After Nelson had his grandmother “put ‘Warlock’ on the phone,” Nelson explained he was in the “B-10” jail module because “me and ‘Twisted’ fucking smashed that dude . . . real bad.” When Nelson again stated, “I’m in B-10 right now,” Flinn wanted to know, “Who’s in the neighborhood with you,” and Nelson recounted, “Nobody really. This guy 3K . . . [and a] couple comrades,” plus, “The homey Slugger’s right here.”
At trial, Deputy Ashraf Abdelmuti of the Orange County Sheriff’s Department gang enforcement unit testified he had contacted Nelson during a parole search four years earlier at a residence Nelson shared with the parolee. Nelson admitted he had been a member of the Orange County Skins (OCS) for about a year at that time; his moniker in the gang was “Bam Bam,” and someone named “Sluggo” had brought him into the gang.
Deputy Don Monteleone, also of the sheriff’s gang enforcement unit, testified as the prosecution’s gang expert. He explained white supremacist gangs in Orange County include the Aryan Brotherhood, PENI (Public Enemy Number 1), OCS and others, with the Aryan Brotherhood, a prison gang, at the top of the hierarchy among these groups, PENI the next level down, OCS and similar gangs comprising the third level, and other smaller gangs the lowest rung.
Monteleone personally had encountered both Mihal and Nelson and opined both were OCS gang members at the time of the attack on Romero. Mihal has a swastika tattoo on his neck and previously admitted belonging to OCS. Monteleone concluded Nelson was an OCS gang member based on his statements to Abdelmuti, a photograph of Nelson and Warlock that Abdelmuti found during the parole search, and on Monteleone’s own contacts with Nelson, which he did not describe. Monteleone also reviewed the police reports concerning the attack and transcripts of Nelson’s two calls. Monteleone noted that Nelson talked about “putting in work” or contributing his efforts to the gang’s endeavors, and Monteleone explained that white supremacist gang members use the word “comrades” to refer to fellow skinheads.
In response to the prosecutor’s hypothetical, Monteleone offered his opinion that an assault mirroring the circumstances in this case would be committed for the benefit of, at the direction of, or in association with the OCS criminal street gang. He explained that in the gang subculture, perceived respect is paramount, and respect is garnered by committing violent crimes. An assault in the jail setting would instill fear in witnesses and the victim, elevating OCS’s status ahead of other gangs and enabling it through intimidation to commit other crimes. The individual gang member gains an enhanced reputation by bragging about the crime, and two members committing the crime together mutually demonstrate their willingness to engage in and back each other up in committing violent crimes.
Nelson and Romero (the victim) both testified Nelson had no involvement in the attack. Romero explained that Nelson had been placed in his cell the day before the assault, but the two got along well with no disputes or conflicts. While he recognized Mihal among his two attackers, he knew the other assailant was not Nelson because he had seen him depart for the showers. Nelson claimed he no longer associated with OCS after being released from prison in 2007, before his supposed admission to Abdelmuti in 2010. After his shower, he had been heading to make a telephone call when the fight erupted, but he did not know who was involved. He explained that when he told his grandmother “I” or “we” had been involved, he only meant that the conduct of one white inmate would be ascribed to and lead to punishment for all.
II
DISCUSSION
A. Primary Activities
1. Specific Incidents and Expert Opinion
Nelson challenges the sufficiency of the evidence to support the jury’s finding as a prerequisite for both the active participation count and the gang enhancement (§ 186.22, subds. (a), (b)) that OCS’s primary activities included the commission of one or more statutorily specified crimes. Proof that a group constitutes a “criminal street gang” requires the prosecution to establish three elements: (1) an ongoing association involving three or more participants, having a common name or common identifying sign or symbol; (2) the group’s “primary activities” include committing one or more enumerated crimes; and (3) the group’s members either separately or in collaboration have engaged in a “pattern of criminal gang activity.” (§ 186.22, subd. (f); People v. Loeun (1997) 17 Cal.4th 1, 8; People v. Gardeley (1996) 14 Cal.4th 605, 622 (Gardeley), disapproved on another ground in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) Nelson disputes the sufficiency of the evidence concerning the second element.
A defendant challenging the sufficiency of the evidence “bears an enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) The appellate court must review the record in the light most favorable to the judgment below. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-578.) The test is whether substantial evidence supports the jury’s verdict, not whether the appellate panel would reach the same conclusion beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) That the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
Deputy Monteleone testified OCS’s primary activities included drug sales, weapons violations, assaults with a deadly weapon, and vehicle thefts. (See § 186.22, subds. (e), (f) [listing these offenses among predicate primary activities for criminal street gang designation].) Nelson notes Monteleone identified few specific instances in which OCS members committed these crimes: “only three unlawful firearm possession offenses over the previous five years, one automobile theft offense in the previous 20 years, and only one assault . . . in 2010, among the 100-plus members of OCS.” Monteleone, however, did not attempt to tabulate the gang’s crimes since its inception. As he explained, “[T]here’s no perfect system for documenting every crime that these individuals have committed from the 80’s to the 90’s to the 2000’s and moving forward.” In particular, contrary to Nelson’s characterization, Monteleone did not suggest OCS members had committed only one vehicle theft in 20 years; instead, he merely noted a specific recent theft to illustrate OCS’s activities.
The three conviction records Monteleone cited included in some cases both the crimes he identified as primary OCS activities and other offenses. In July 2011, for example, Alex Lind, known by his OCS moniker, “Turtle,” pleaded guilty to aggravated assault, assault with a semiautomatic firearm, kidnapping for ransom, street terrorism, and street gang enhancements. Also in July 2011, OCS member Michael Adam Renick entered a guilty plea on charges of possession of a firearm by a felon and possession of a silencer. And in October 2013, Tyler Flynn, known as “Warlock” among OCS members, pleaded guilty to vehicle theft, three counts of receiving stolen property, possession of a controlled substance for sale, possession of drug paraphernalia, and vandalism. Later in his testimony, Monteleone also specified that OCS gang members Nourais Sairafe and Andrew Steward were recently convicted of felon in possession of firearms offenses, and Saraife also engaged in narcotics sales. But Monteleone did not suggest the additional specific offenses these OCS members committed constituted other primary OCS activities besides the ones he identified. As to the allegedly primary offenses, Nelson argues the “underwhelming list” of particular instances Monteleone recounted “did not prove under any stretch of the imagination that OCS engaged in any of these illegal activities as its chief or principal occupations.”
But Nelson’s challenge is misplaced because unlike the “pattern of criminal gang activity” element, which requires proof of “two or more” predicate offenses committed “on separate occasions” or “by two or more persons” within certain time frames (§ 186.22, subd. (e)), the primary activities element for establishing a group is a criminal street gang does not necessarily require the prosecutor to introduce any discrete criminal incidents. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324.) The Supreme Court acknowledged in Sengpadychith that “[s]ufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Id. at p. 323, first italics added.)
But as the high court additionally observed, “Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that [Gardeley’s] gang . . . was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement agencies. [Citation.]” (Sengpadychith, supra, 26 Cal.4th at p. 324, italics added.) The high court held the expert’s opinion alone sufficed to establish the gang’s primary activities. (Ibid.)
Similarly, in People v. Gonzalez (2006) 38 Cal.4th 932, the Supreme Court expressly rejected a challenge to the indirect nature of the expert’s knowledge, based on assertedly unreliable hearsay rather than the expert’s personal investigation of specific crimes. The Supreme Court explained, “A gang expert’s overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable.” (Id. at p. 949.) Consequently, a gang expert may properly rely not only on particular incidents, but also on conversations with gang members and information from colleagues in forming his or her opinion. (Gardeley, supra, 14 Cal.4th at p. 620.) Thus familiar with a particular gang, the expert reasonably may opine on the gang’s primary activities. (Ibid.; Sengpadychith, supra, 26 Cal.4th at p. 324.)
So it is here. Nelson does not dispute Monteleone qualified as an expert regarding the OCS gang. Therefore, while the foundation for his opinion inarguably would have been stronger had he cited additional instances of specific crimes OCS members committed, it was the jury’s prerogative to credit or reject his testimony. (People v. Sanchez, supra, 113 Cal.App.4th at p. 330 [jury’s exclusive province to weigh the evidence].)
2. Confrontation Challenge
Nelson contends the gang expert’s testimony ran afoul of the Confrontation Clause, citing the Supreme Court’s recent decision in Sanchez, supra, 63 Cal.4th 665, which revisited a hearsay issue earlier addressed in Gardeley. Gardeley held that foundation material for a gang expert’s opinion consisting of out-of-court statements made by gang members or other individuals does not constitute hearsay because those statements are not offered for their truth. (Gardeley, supra, 14 Cal.4th at p. 619; but see People v. Hill (2011) 191 Cal.App.4th 1104, 1127 [concluding such statements are necessarily offered for their truth, but finding Gardeley binding].) Statements not offered for their truth, i.e., nonhearsay, do not trigger a defendant’s right of confrontation. (Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 (Crawford).)
Sanchez disapproved Gardeley to the extent it allowed an expert to relate “case-specific” hearsay statements to the jury under the guise of foundation for the expert’s opinion. (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) “Case-specific” facts concern “the particular events and participants alleged to have been involved in the case being tried” (id. at p. 676), as opposed to an expert’s “general knowledge in his field of expertise” (ibid.). In Sanchez, the prosecution’s gang expert opined the defendant was an active member of a criminal street gang and based his opinion on various out-of-court statements concerning the defendant’s alleged gang ties recited in police reports, a STEP notice, and an FI card. (Id. at pp. 671-673.) The expert relayed to the jury the circumstances and statements documented by nontestifying police officers in each of those sources to bolster his opinion the defendant was an active gang member. (Ibid.)
Overruling Gardeley, the Sanchez court explained: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth.” (Sanchez, supra, 63 Cal.4th at p. 686.) Consequently, Sanchez also held: “If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” (Ibid., original italics.)
In offering his opinion regarding OCS’s primary activities, Monteleone explained he “based [it] on my experience, training, review of court documents, police reports, and speaking with fellow gang investigators.” He also had “personally investigated” OCS’s involvement in “some of these crimes.”
Nelson does not identify any particular police reports, field interview cards, or STEP notices Monteleone may have read or relied upon because Monteleone did not provide that information in his testimony. Nevertheless, Nelson asserts “[t]he only logical explanation for relying on [these sources] would be that they related other officers’ accounts of instances of OCS members committing the specific offenses.” Nelson premises his confrontation challenge on his claim that “the officers’ accounts of prior crimes in those documents is inadmissible hearsay.”
Nelson did not object to Monteleone’s testimony on confrontation or other grounds. (See Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 313, fn. 3 [“The right to confrontation may, of course, be waived, including by failure to object to the offending evidence”].) The purpose of requiring a specific objection (Evid Code, § 353) is to “alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.” (People v. Williams (1988) 44 Cal.3d 883, 906.) In particular, a prosecutor faced with such an objection may choose to expand the gang evidence with “independent competent proof” of the challenged basis for the expert’s opinions. (Sanchez, supra, 63 Cal.4th at p. 684 [“Alternatively, the evidence can be admitted through an appropriate witness”].)
Nelson argues forfeiture should not apply because Sanchez “was a dramatic departure from prior California law under the [C]onfrontation [C]lause as it relates to gang experts.” (Cf. People v. Capistrano (2014) 59 Cal.4th 830, 872 [no forfeiture of confrontation challenge where trial occurred long before Crawford dramatically revised high court’s hearsay jurisprudence]; see also Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1334 [objection not required when “ based on a change in the law that the appellant could not reasonably have been expected to foresee”].)
Even assuming Nelson did not forfeit his challenge, it fails on the merits for two reasons. First, Nelson fails to establish the alleged hearsay evidence he now complains about was testimonial in nature, as required for a valid confrontation claim. In Sanchez, as foundation for the gang expert’s opinion the defendant was a gang member whose alleged criminal conduct benefitted his gang, the expert described the contents of three police reports documenting five of the defendant’s prior contacts with the police in gang-related circumstances. The expert also opined the defendant was a gang member based on the retained portion of a STEP notice issued to the defendant, and recounted for the jury the facts documented in an FI card from another police contact with the defendant when he was in the company of a known gang member. (Sanchez, supra, 63 Cal.4th at pp. 694-697.) Closely examining the specific statements and facts the expert relayed to the jury from these sources, the Supreme Court in Sanchez concluded, respectively, “These Police Reports Are Testimonial,” “This STEP Notice is Testimonial,” and “FI Cards May be Testimonial.” (Sanchez, supra, 63 Cal.4th at pp. 694, 696, 697, emphasis added.)
But unlike in Sanchez, Monteleone did not tell the jury about any particular police reports, STEP notices, or FI cards, let alone case-specific details concerning Nelson derived from any of these sources. For example, Monteleone did not rely on the STEP notice Deputy Abdelmuti issued to Nelson years earlier, as we discuss in the next section concerning Miranda, presumably because Abdelmuti’s contact with Nelson had nothing to do with — and the STEP notice said nothing about — the primary OCS activities the prosecutor later sought to prove in Nelson’s trial.
Nelson infers based on Monteleone’s statement he reviewed “police reports” that those documents must have “related other officers’ accounts of [specific] instances of OCS members committing . . . specific offenses,” thereby informing Monteleone’s opinion regarding OCS’s primary activities. But in the absence of any details concerning particular statements the officers documented in their reports or the circumstances in which the officers took the statements, nothing suggests the statements were testimonial. Sanchez explained generally that “[w]hen the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial.” (Sanchez, supra, 63 Cal.4th at p. 694.) Because Monteleone did not disclose the contents of any particular police reports, STEP notices, or FI cards, nothing reveals why officers documented any facts or statements in those sources, including whether they were taken in an emergency. The reports may have consisted only of general claims about OCS’s primary activities, rather than specific instances of specific crimes.
In any event, Nelson’s challenge fails for a second, independent reason. Sanchez, by its express terms, “does not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise.” (Sanchez, supra, 63 Cal.4th at p. 685.) Consequently, an objection sustained on confrontation grounds may affect the weight of an expert’s opinion in that he or she may not relate case-specific material that supports it, but that does not preclude the opinion altogether. As the Supreme Court summarized, while “merely telling the jury the expert relied on . . . information that the expert only generally describes may do less to bolster the weight of the opinion” than conveying for its truth underlying testimonial hearsay, “[a]ny expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.” (Id. at pp. 685-686, original italics.) Monteleone did not transgress this line, telling the jury only in generic terms the source documentation he reviewed, without disclosing any specifics. Had Nelson objected below, there would have been nothing for the trial court to excise. His appellate challenge therefore lacks merit.
B. Custody
Nelson contends the trial court erred in denying his motion to exclude under Miranda his admission to Deputy Abdelmuti in June 2010 that he had been an OCS member for about a year. He told Abdelmuti during a parole search involving a fellow household member that an OCS gang member named Sluggo brought him (Nelson) into the gang the previous year, and that Nelson’s moniker in the gang was “Bam Bam.”
Miranda requires officers to admonish suspects in police custody of certain rights, including the right to remain silent, to safeguard the Fifth Amendment’s guarantee against self-incrimination. (See Miranda, supra, 384 U.S. at pp. 473-474 [listing advisement rights].) The warning requirement is designed to “compensate for the coercive pressures inherent in a custodial interview.” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1405 (Pilster).) The prosecution may not use statements elicited by the police during custodial interrogations unless preceded by a valid waiver of the defendant’s Miranda rights. (People v. Mickey (1991) 54 Cal.3d 612, 647-648.)
The warnings, however, are required only when an individual is in police custody, which the Supreme Court has explained arises “as soon as a suspect’s freedom is curtailed to a ‘degree associated with formal arrest.’” (Berkemer v. McCarty (1984) 468 U.S. 420, 440, quoting California v. Beheler (1983) 463 U.S. 1121, 1125.) Whether an individual is in custody is a mixed question of law and fact. (Pilster, supra, 138 Cal.App.4th at p. 1403.) We defer to the trial court’s factual findings if supported by substantial evidence, but independently evaluate whether the defendant was in custody. (Ibid.)
“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.] [Fn. omitted.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citations.] Although no one factor is controlling, the following circumstances should be considered: (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. [Citation.]” (Pilster, supra, 138 Cal.App.4th at 1403, internal quotation marks omitted.) “Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (Id. at pp. 1403-1404.)
Here, the objective circumstances would not suggest to a reasonable person that Nelson was under arrest when he made his statements to Abdelmuti, who contacted Nelson during a parole search of the garage in a single family Garden Grove residence Nelson shared with others, including the parolee, an unidentified woman. The officers had been surveilling the home for an opportunity to arrest a female friend of the parolee. It is not clear whether the friend also lived at the home, but when she and the parolee left in a vehicle on a July evening in 2010, officers pulled the vehicle over, arrested their target, learned of the parolee’s parole status, and returned to the parolee’s home to search the garage portion of the residence, where she claimed she lived. Joined by three or four other officers who had remained in their surveillance positions outside the home pending the arrest, the returning officers entered the open garage, where they found OCS graffiti on an inside wall and a computer containing a photograph depicting OCS gang member Flinn, another man, and Nelson. The caption on the photo stated, “Warlock, me, and Big Bam Bam,” and included the letters “OCS” and a symbol that is not identified in the record.
The officers had obtained Nelson’s permission to search the garage, but he remained in the backyard during the search, which lasted about an hour. Nelson’s grandmother was also present at the residence. Abdelmuti did not make the initial contact with Nelson, but explained at a hearing on Nelson’s suppression motion that Nelson “wasn’t under arrest and there was no reason to keep him there if he wanted to leave.” Nelson did not ask to leave, but an armed officer was stationed in the backyard. As the lead investigator, Abdelmuti explained he would have been informed if the officer drew his weapon.
After searching the garage, Abdelmuti spoke to Nelson either in the garage or in the kitchen without the other officers present. During their conversation, Abdelmuti asked Nelson about “any potential affiliation with OCS,” which Nelson admitted, including that Sluggo had brought him into the gang about a year earlier. Abdelmuti did not threaten, yell or swear at, handcuff, or arrest Nelson. The two spoke “pretty brief[ly],” “maybe ten minutes,” which included the time it took for Abdelmuti to document Nelson’s tattoos, fill out the STEP notice, provide a copy to Nelson, and explain its contents. The officers were at the residence for about 90 minutes.
Nelson argues Miranda warnings were required because 90 minutes “is an eternity for an encounter with police.” He contends the circumstances amounted to a custodial arrest because the officers initiated the contact, six or seven officers entered his home, and Abdelmuti never informed him he was free to leave, nor would a reasonable person believe he was free to leave given the presence of an armed officer.
To the contrary, “in the usual case, a person detained during the execution of a search warrant is not ‘in custody’ for purposes of Miranda.” (United States v. Burns (7th Cir.1994) 37 F.3d 276, 281 (Burns).) A reasonable bystander in such circumstances will recognize he or she is not the target of the police activity. While officers executing the search may engage the person in conversation, “police officers are not required to administer Miranda warnings to everyone whom they question.” (Oregon v. Mathiason (1977) 429 U.S. 492, 495.) Nor is a person in police custody simply because he or she is temporarily detained by police. (People v. Thomas (2011) 51 Cal.4th 449, 475-477; In re Joseph R. (1998) 65 Cal.App.4th 954, 957-958.) As the court in Burns observed, “Most detentions that occur during the execution of a search warrant, like most Terry stops [Terry v. Ohio (1968) 392 U.S. 1], are ‘comparatively nonthreatening.’ They are often short in duration.” (Burns, at p. 281.)
Here, while Nelson cites the overall duration of the officers’ presence, Abdelmuti spoke with him only for about 10 minutes, a portion of which involved filling out and explaining the STEP notice. Six or seven officers conducted the search, but a reasonable person would recognize from the circumstances that the investigation pertained to the parolee and not the other residents. Moreover, Abdelmuti contacted and spoke to Nelson individually, without any other officers present. The officers did not draw weapons, or subject Nelson to ongoing physical restraints or other hallmarks of a custodial arrest requiring Miranda warnings. (Pilster, supra, 138 Cal.App.4th at p. 1404; see 2 LaFave et al., Criminal Procedure (4th ed. 2015) Interrogation and Confessions, § 6.6(f), at pp. 833-834, fns. omitted [earmarks pointing to custodial arrest include “handcuffing, drawing a gun, holding by the arm, or placing into a police car”].)
Nelson’s discussion with Abdelmuti took place in his own kitchen or garage, not at the police station, where interrogation “frequently is prolonged, and . . . the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek.” (Berkemer, supra, 468 U.S. at p. 438.) A home interview puts the defendant in a familiar and friendly environment, and thus strongly indicates the interview was noncustodial. (People v. Mitchell (1990) 222 Cal.App.3d 1306; People v. Murphy (1982) 127 Cal.App.3d 743, 748-749.) The objective circumstances as a whole do not suggest a custodial arrest, and therefore Miranda warnings were not required.
III
DISPOSITION
The judgment is affirmed.



ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.