P. v. Stuberg
Filed 7/11/13 P. v. Stuberg CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARK OLIVER
STUBERG,
Defendant and Appellant.
A136672
(San Mateo
County
Super. Ct.
No. SC075372)
This
is an appeal from a judgment of conviction
in the Superior Court
of San Mateo County
following a jury trial. It is authorized
pursuant to Penal Code section 1237.
Counsel for defendant has reviewed the file in this case and has
determined there are no meritorious issues to raise on appeal. She has complied with the relevant case
authorities. (People v. Kelley (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) She has also notified defendant of his right
to file a supplemental brief, but defendant has not done so. Upon independent review of the record, we
conclude that no arguable issues are
presented for review and affirm the judgment.
An
information was filed in the matter on March
22, 2012. Defendant was
charged in count one with unlawful possession of a controlled substance
(hydrocodone), a violation of Health and Safety Code section 11350, subdivision
(a); in count two, a violation of Health and Safety Code section 11377,
subdivision (a), possession of a controlled substance (methamphetamine); and,
in count three, the unlawful possession of a device used to smoke a controlled
substance, a pipe, a misdemeanor violation of Health and Safety Code section
11364. These charges arose from
defendant’s arrest on November 13,
2011. The information also
alleged three prior convictions for possession of a controlled substance; an
allegation precluding probation under Health and Safety Code section 11370.
Defendant
pled not guilty to all charges and denied the enhancements alleged. Before the commencement of the trial, the
trial court dismissed the first two prior allegations on motion by the district
attorney.
The jury
trial began on September 17, 2012. At the close of the prosecution case, the
defense asked the trial judge to strike the testimony by one of the police
officers. Counsel focused on the
statement by defendant to the officer regarding the presence of methamphetamine
in the car registered in Stuberg’s name as being a statement obtained without
was a spontaneous statement by defendant.
The trial court denied defendant’s motion to strike. He concluded there was no
circumstances.
On September 24, 2012, the jury found
defendant guilty on all counts. The
trial court found the one prior allegation true. After the verdict, counsel for defendant
waived the right to a probation report and the court imposed sentence. The court granted formal probation of three
years on counts one and two, and directed defendant to participate in a formal
drug treatment program while on probation under Proposition 36. The sentence on count three was
suspended. Fines and fees were imposed
by the court.
On September 24, 2012, a
Officer
Walsh of the South San Francisco Police Department was on duty on November 13, 2011. At approximately 5:50 p.m., she was patrolling the area of 451
South Airport Boulevard. She noticed a Nissan minivan illegally parked
in a handicapped spot near the Bay Trail.
A registration check of the van indicated it was registered to defendant
and that he was on probation with a specified search condition of his vehicle
and person. Exiting her vehicle, Officer
Walsh walked along the Bay Trail looking for Stuberg. She found a homeless camp and called for
backup.
The backup
officer, Molyneux, arrived and joined Walsh in looking for defendant. They found him sitting on a bench with
another person. Defendant told the
police he was visiting friends in the area and that he was from Vallejo. While Walsh told Stuberg she wanted to search
his vehicle, defendant told her he was no longer on probation but would allow
her to pat search him. Nothing was found
on his person. The officers walked
defendant back to his vehicle to check it out.
Officer
Walsh searched the car in the presence of defendant and Officer Molyneux. Inside a backpack found on the front seat,
Walsh found 15 prescription bottles, many with defendant’s name on the
label. Three other bottles found in the
backpack were for Vicodin, prescribed to “Robert Stuberg†and “Betty Stuberg,â€
the deceased parents of defendant.
Defendant advised Walsh he used the pills for relief if other medications
were not helpful. Each of the bottles
contained Vicodin. The prescriptions
dated back to 1997, 1999, and 2001.
Walsh then
asked Stuberg if he had other items on his person. He remarked he had a loaded pipe in his
sock. A glass pipe containing a
crystalline substance was found which generated the charge of possessing
paraphernalia.
Officer
Walsh engaged in further search of the van.
Looking under the driver’s seat, she found a black container with two
baggies of a substance Walsh believed to be methamphetamine. One of the baggies had a weight of 10 grams
while the smaller one weighed one gram.
When Walsh told Stuberg she found suspected methamphetamine, defendant responded
he had smoked some of the drug that morning.
He also said a judge had told him he could possess methamphetamine if he
had a prescription for the drug.
Mona Ten, a
criminalist for the San Mateo Sheriff’s Forensic Laboratory, examined the
substances found in the van and confirmed the presence of hydrocodone. She also found methamphetamine in the pipe
and baggies.
In the
defense case, Stuberg claimed he had prescriptions for Desoxyn, a
pharmaceutical methamphetamine, and Adderall.
These medicines had been prescribed for defendant in 2009 by a
psychiatrist. Between the date of the
prescription and the arrest, the doctor has passed away. The Vicodin medicines were prescribed for the
parents of defendant, with one parent dying in 2003 and the other 2005. Defendant used the medications when he felt
personal pain. Defendant acknowledged
ownership of the methamphetamine. He
claimed he could legally possess the drug because Judge Dylina of San Mateo
County told him possession was appropriate if
he had a valid prescription for the drug.
At trial,
defendant presented no prescription allowing him to possess any of the drugs
found in the search of the car by Officer Walsh.
After the jury was sworn but
before testimony was received, the defense presented an Evidence Code section
402 motion challenging defendant’s statements to the police. Out of the jury’s presence, each side made
their proffer on the issue. While
defendant’s counsel characterized the conversation at the scene as an interrogation,
the district attorney argued Officer Walsh in the presence of Officer Molyneux
and Stuberg simply announced what she had found during the search of the
van. After stating she had found
methamphetamine, the defendant volunteered that he “didn’t think it was very
good methamphetamine because he really did not feel the effects after smoking
it earlier that day. That it was legal
. . . to have the methamphetamine.
That he had been prescribed other medications that contain[] some of the
same ingredients the methamphetamine had in it.
And that he said when he was in court in the past the judge had told him
that he would take his medications in any way he wanted.â€
The trial
court determined Stuberg was detained at the time Officer Walsh disclosed what
she had found. Because defendant was not
legally in custody, the court stated Miranda
warnings were not needed and the statements were admissible. Defendant did not testify in the 402 hearing,
nor did his counsel submit any written papers dealing with the legal
issue. The prosecution did provide a
written motion on the admissibility of the comments by defendant.
The trial
court, at the end of the government’s case, ruled the statements were not made
in violation of Miranda.
Statements
by a suspect made spontaneously and not in response to police interrogation are
admissible despite a failure to give Miranda
warnings. (Miranda v. Arizona, supra, 384 U.S. 436, 478.) Casual conversation by an officer with an
arrestee not intended to elicit incriminating answers does not implicate
(People v. Bradford (1997) 14
Cal.4th 1005, 1034–1035.) The warnings
only apply when police conduct an actual interrogation or engage in conduct
reasonably likely to induce a response.
(People v. Gamache (2010) 48
Cal.4th 347, 387–388.) In this case, the
trial court found there was nothing presented suggesting an interrogation by
police. Furthermore, defense counsel did
not contend the police conduct was reasonably likely to trigger responses by
Stuberg.
It is also
true that when the police are simply conducting an investigation, a valuable
tool they use is general on-the-scene questioning. Such questioning is designed to clarify the
circumstances. (People v. Haugland (1981) 115 Cal.App.3d 248, 256.) A temporarily detained suspect is not a
person under arrest. (
420, 442; Stansbury v. California
(1994) 511 U.S. 318, 322–323.) Under the
circumstances discussed, Miranda warnings
were not necessary here.
A review of
this record reflects that other than defendant’s oral motion to exclude, no
other motions challenging the search and
seizure were presented. Based on
this record, we find the search was a valid probation search and
investigation. No motion to suppress was
presented in this matter.
A review of
this record otherwise supports the result.
The evidence presented supports the verdicts of the jury. Defendant was professionally represented by
counsel. The court’s sentence of
probation and several conditions were correct in light of the history of drug
usage. We can find no error in this
matter. We affirm the judgment.
__________________________________
Dondero,
J.
We
concur:
__________________________________
Margulies,
Acting P. J.
__________________________________
Sepulveda,
J.*
*
Retired Associate Justice of the Court of Appeal, First Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
name="_ftn1" title="">[1]
Miranda v. Arizona (1966) 384 U.S.
436.
