P. v. Frazier

Filed 7/6/07 P. v. Frazier CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

Defendant appeals from the judgment of conviction after a jury found him guilty of making a criminal threat (Pen. Code, 422; count 1),^[1]brandishing a deadly weapon ( 417, subd. (a)(1); count 4), and resisting arrest. ( 148, subd. (a)(1); count 5.)^[2] The jury also found true a prior prison term allegation. ( 667.5, subd. (b).) The trial court struck the prior prison term enhancement and imposed a prison term of two years on count one, 60 days on count four and 30 days on count five, both counts to run consecutively to count one and to each other.

On appeal, defendant raises a Miranda^[3] claim contending that introduction of his in-custody statement to a law enforcement officer was prejudicial error. He also contends imposition of consecutive sentences on counts four and five violate section 654s proscription against multiple punishment.

We find no error and shall affirm the judgment.

FACTUAL BACKGROUND

Leonard Carter lives at 932 Yuba Street in Redding. He has known defendant since defendant was seven years old and considers himself to be a good friend. At 8:15 p.m. on February 1, 2006, Carter was at home with family members, his fianc, and Cheri Edwards, defendants former fianc, when he heard a knock on the front door.

Concerned about who was at the door, Carter answered it while holding a baseball bat and discovered it was defendant. Defendant asked in an angry and irritated tone [i]s that how it is? and demanded to speak to Cheri. Carter told him he was too drunk and to go away, sleep it off and come back and talk to her later and then he shut and locked the door.

Defendant knocked on the door again and said [l]et me talk to Cheri. When Carter told him to go away, defendant became even angrier and started pounding on the door and repeatedly asking to speak to Cheri while she kept yelling no. Carter told defendant that if he did not go away, he would call the police. Carters threat to call the police angered defendant even more and he told Carter he had a gun and a knife and that he was going to kill you guys. Defendant pulled off his shirt and cut it up with the knife, screaming he was going to use the knife on himself and was going to shoot himself.

Redding Police Corporal Walt Bullington and his partner were dispatched to the Carter residence where they saw defendant standing in the rain without a shirt, waving a knife and screaming. When defendant saw the officers, he walked towards the patrol car yelling that he wanted to see his girlfriend and challenging the police to shoot him. The officers attempted to calm him down and repeatedly asked him to put down the knife, fearing he would use the knife on himself or someone else. After about 45 seconds, defendant threw the knife about 20 feet towards the patrol car.

Bullington then directed defendant to kneel down and place his hands on his head, and when he failed to comply, two backup police units were called. Bullington continued to negotiate with defendant, attempting to get defendant to kneel down. However defendant continued to resist the officers orders, yelling that he wanted to see his girlfriend and that if he could not do so, he wanted the police to shoot him. When two other officers arrived, the four officers approached defendant with a K-9 unit, an electric Taser, and a shotgun that fires beanbags, and told defendant they were going to Tase him if he did not do what he was told. When they were six feet from him, defendant saw the laser sighting dot on his chest from the activated Taser device and immediately fell to his knees, where he was handcuffed and taken into custody. His knife was also seized and introduced into evidence. It had a serrated edge.

While at the jail, Officer Bullington told defendant Leonard and Cheri wanted to make it clear to him that he was not wanted around the property or them at all, and that Cheri wanted to end the relationship with [him] and he needed to understand that. Defendant responded, Leonards dead. Officer Bullington did not observe any symptoms of intoxication. However, during a medical screening procedure, the deputy conducting the screening noted that defendant appeared intoxicated and he told her he had consumed 32 ounces of beer.

Defendant did not testify in his own behalf but presented a defense of diminished actuality through the testimony of Dr. Kent Caruso, a forensic psychologist. Dr. Caruso testified that he had recently diagnosed defendant as bipolar with psychotic features and had previously diagnosed him as suffering from psychotic disorder NOS (not otherwise specified), antisocial personality disorder, personality disorder NOS, and alcohol addiction.

Caruso last saw defendant in October 2005, when he concluded defendant was grossly psychotic and would not have been thinking about the interaction between alcohol and his mental problems. At that time, Caruso could not even have a logical discussion with defendant about the subject. Caruso explained that a person who is psychotic is out of touch with reality and has visual and auditory hallucinations and paranoid persecutory thoughts.

On cross-examination, Carter testified that two days before the incident, defendant was hearing voices.

DISCUSSION

I.

Defendants In-Custody Statement

Was Properly Admitted

Defendant contends his conviction on count one must be reversed because the trial court erred by refusing to strike his in-custody statement to Officer Bullington that Leonards dead and by failing to hold a hearing to determine whether Miranda warnings were properly given. He argues that admission of this statement was prejudicial because it directly impacted the jurys consideration of the question whether he intended his statements to be threatening. Respondent contends defendant waived this claim of error and that the statement was properly admitted because it was not made in response to custodial interrogation. We agree with respondent that the statement was properly admitted.

A. Procedural Background

Defendant failed to challenge the admissibility of the evidence prior to trial. Instead, he moved to strike the evidence immediately after it came in.

Prior to the defense motion to strike, Officer Bullington testified that even after defendant was taken into custody, he continued to be excited and to yell and demand to see Cheri. Once he was at the jail, Bullington told defendant Leonard and Cheri wanted to make it clear to him that he was not wanted around the property or them at all, and that Cheri wanted to end the relationship with Mr. Frazier and that defendant needed to understand that. Defendant responded by stating, Leonards dead.

At that point, defense counsel moved to strike the evidence on the ground there was no foundation defendant was Mirandized and no indication the statement was an admission. In counsels view, defendants statement was a response to a question. The court indicated that on the Miranda issue, that should have been brought up before trial. And as far as I know it wasnt, was it? After counsel indicated it was not, the court overruled the objection.

B. Analysis

We first dispense with the questions whether defendant forfeited this claim of error and whether the trial court erred by failing to conduct a hearing to determine whether the statement was voluntary.

The rule governing Miranda-based claims requires that the defendant make a specific objection at the trial level in order to raise a Miranda claim on appeal. (People v. Crittenden (1994) 9 Cal.4th 83, 126-127.) As a matter of common practice, a motion to suppress a confession or admission is filed in a pretrial in limine motion (Evid. Code, 310, 402, 404; People v. Rowe (1972) 22 Cal.App.3d 1023, 1030) and, once made, the trial court has an affirmative duty to hold a hearing to determine, out of the presence of the jury, the existence or nonexistence of the preliminary fact, i.e. whether the defendant waived his Miranda rights. (People v. Smithson (2000) 79 Cal.App.4th 480, 494.)^[4] In addition, the objection must be renewed at trial when the evidence is offered to avoid forfeiting the claim of error on appeal. (People v. Crittenden, supra, 9 Cal.4th at pp. 126-127.)

Here defendants sole objection was made in the trial court after the evidence was introduced. As it was specific and made in the trial court, it was sufficient to preserve the claim for appellate review. However, because defendant failed to request a hearing out of the jurys presence, the trial court had no duty to hold such a hearing. (Evid. Code, 402.) Moreover, because defendants objection was made after the evidence came in, the purpose of such a hearing, to prevent the jury from hearing the evidence, was lost. (See People v. Rowe, supra, 22 Cal.App.3d at p. 1030.)

By failing to make a timely pretrial objection, failing to request a hearing at trial, and then moving to strike the evidence after it was introduced, defendant forfeited his right to a hearing outside the jurys presence. Any possible error on the part of the trial court in failing to hold a belated hearing on this issue entitles defendant to reversal only if after an independent review of the evidence, we determine the Miranda requirements were not satisfied. (People v. Bennett (1976) 58 Cal.App.3d 230, 236.) We therefore consider defendants claim of error based upon the record before us.

The requirements of Miranda are well established. To assure protection of the Fifth Amendment privilege against self-incrimination, a suspect may not be subjected to an interrogation in official custody unless he has previously been advised of, and has knowingly and intelligently waived his rights to silence, to the presence of an attorney, and to the appointment of counsel if he is indigent. (Miranda, supra, 384 U.S. at pp. 467-473 [16 L.Ed.2d at pp. 719-723].) Statements obtained in violation of Miranda are of course inadmissible to establish guilt. (People v. Sims (1993) 5 Cal.4th 405, 440.)

However, the requirements of Miranda apply only when a suspect is subjected to custodial interrogation. (Minnesota v. Murphy (1983) 465 U.S. 420, 430 [79 L.Ed.2d 409, 421]; People v. Clair (1992) 2 Cal.4th 629, 679.) Interrogation includes express questioning as well as any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. (Rhode Island v. Innis (1980) 446 U.S. 291, 301 [64 L.Ed.2d 297, 308], fns. omitted.) Factors to consider in determining whether there was interrogation include whether the defendant was subject to compelling influences, psychological ploys, or direct questioning. (People v. Clark (1993) 5 Cal.4th 950, 986, quoting Arizona v. Mauro (1987) 481 U.S. 520, 529 [95 L.Ed.2d 458, 468].)

Thus, Miranda protections do not extend to investigatory questions (Escobedo v. Illinois (1964) 378 U.S. 478, 492 [12 L.Ed.2d 977, 986-987]) nor to routine booking questions and responses to those questions (People v. Honeycutt (1977) 20 Cal.3d 150, 159) or to all conversations between an officer and a suspect. (People v. Clark, supra, 5 Cal.4th at p. 985.) The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response. (Clark, supra, at p. 985; People v. Mickey (1991) 54 Cal.3d 612, 645, 651 [no interrogation when police responded to defendants question concerning the burial of his victims and he lost his composure and made incriminating statements].)

In People v. Clark, supra, 5 Cal.4th 950, the defendant was arrested for murder, invoked his Miranda rights and was subsequently transported to the hospital for blood work. En route, he asked the officers What can someone get for something like this, thirty years? to which the officer responded Probably not unless you were a mass murderer. Shortly following this exchange, defendant confessed. (Id. at p. 982.) The court held this conversation was not the result of impermissible interrogation because there was no reason for the officer to know his casual estimate of possible penalties would produce an incriminating response. (Id. at p. 985.)

Likewise, Officer Bullingtons advice to defendant that the victims no longer wanted him to come around them was not a direct question nor was it an effort to soften defendant up to elicit an incriminating response from him. To the contrary, Officer Bullingtons remark appears to have been a sincere effort to provide defendant with some guidance to avoid further confrontation with the victims. While it may be reasonable to assume defendant would respond to the officers comment in some fashion, there is no reason to believe Bullington should have known his advice would produce an incriminating response. Accordingly, because defendants statement was not the product of custodial interrogation, we reject his claim of error.

II.

There Is No Double Punishment

Defendant contends imposition of consecutive sentences on counts four and five violate the multiple punishment proscription of section 654. He argues that counts four and five were part of the same indivisible course of conduct underlying his conviction on count one and therefore separate sentences on counts four and five must be stayed. He further contends that because counts four and five were clearly part of the same indivisible conduct, the sentence for one of the misdemeanor convictions must be stayed. Respondent contends all three counts are based upon separate conduct that justifies separate punishment. We agree with respondent.

The trial court imposed a two-year prison term on count one, a 60-day misdemeanor sentence on count four and a 30-day misdemeanor sentence on count five, ordering that both misdemeanor sentences be served consecutive to each other and to the sentence on count one. The parties did not raise the subject of section 654 and no express findings were made by the trial court.

Section 654, subdivision (a) provides in pertinent part, that [a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .

The purpose of this provision is to ensure that a defendants punishment will be commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551.) Thus, section 654 does not prohibit multiple punishment for crimes involving multiple victims. (People v. Lawrence (2000) 24 Cal.4th 219, 229; Neal v. State of California (1960) 55 Cal.2d 11, 20.)

The statute proscribes multiple punishment for a single act or for a continuous course of conduct comprising an indivisible transaction. (People v. Akins (1997) 56 Cal.App.4th 331, 338-339.) The divisibility of a course of conduct depends on the intent and objective of the defendant. If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and may be punished only once. (People v. Hicks (1993) 6 Cal.4th 784, 789.) On the other hand, if the evidence discloses that the defendant entertained multiple criminal objectives, which were independent of each other, the trial court may impose punishment for independent violations committed in pursuit of each objective. (People v. Akins, supra, 56 Cal.App.4th at pp. 338-339.)

Ascertaining a defendants intent and objective is primarily a question of fact for the trial court whose express or implied finding that the crimes were divisible will be upheld on appeal if there is substantial evidence to support it. (People v. Osband (1996) 13 Cal.4th 622, 730.) Because the record contains no express findings on the double punishment issue, an implied finding that the crimes are divisible inheres in the judgment and must be upheld if supported by substantial evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) We find such evidence.

Defendant was charged in count one with making a criminal threat against Leonard Carter and Cheri Edwards ( 422), in count four with exhibiting a deadly weapon against Officer Bullington ( 417, subd. (a)(1)), and in count five with resisting Officer Bullington in the discharge of his duties. ( 148, subd. (a)(1).) Thus, the conviction for count one involved different victims than the convictions for counts four and five. Multiple punishment is therefore proper for count one and for at least one of the misdemeanors. (People v. Lawrence, supra, 24 Cal.4th at p. 229.)

Separate punishment is also proper for each misdemeanor conviction. Although both of these convictions were based on charges involving the same victim, the evidence shows both offenses involved separate acts against multiple victims and evinced separate intentions. When Officer Bullington and his partner first arrived at the scene, defendant walked towards them, screaming and waving a knife at them, and challenging them to shoot him. After the officers made numerous demands of him to drop the knife, defendant tossed the knife in an overhand motion about 20 feet towards the two officers. Because defendant had told Carter earlier that he had a knife and a gun, Officer Bullington still feared defendant might have a gun and ordered him to his knees. Nevertheless, defendant continued to resist, so in the interests of safety, Officer Bullington called for additional assistance. Even after two more officers arrived, an assortment of weapons were produced including a K-9 unit, and the officers began approaching defendant, he continued to resist their orders and did so until he saw the Taser beam on his chest, at which point he went to his knees.

This evidence supports a reasonable inference that defendant harbored two separate intentions. By challenging the officers to shoot him and then waving and throwing the knife at them, he demonstrated an intent to provoke the officers to kill him. After throwing the knife at the officers, his resistance, which continued in the face of four approaching officers and a K-9 unit, constituted a separate punishable act of resisting arrest. Accordingly, the trial court properly imposed separate punishment on all three offenses.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

RAYE , J.

HULL, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

^[1] All further section references are to the Penal Code unless otherwise specified.

^[2] The jury acquitted defendant of attempted burglary. ( 664/459; count 2.) No verdict was returned on count three, which charged a second count of brandishing a deadly weapon. ( 417.)

^[3]Miranda v.Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694](Miranda).

^[4] Evidence Code section 402, subdivision (b) states as follows: The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests. (Italics added.)