P. v. JAMES

Filed 4/27/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Susanne S. Shaw, Judge. Affirmed.

Richard L. Schwartzberg for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Teresa Torreblanca and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Jay Pilster of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) At trial, the prosecutor used defendant's prearrest statements to an investigating officer to impeach his testimonial account of the alleged crime. Because the interviewing officer failed to provide him with Miranda warnings even though he was handcuffed during the interview, defendant contends the trial court erred in denying his request to instruct the jury that they could consider his prearrest statements only on the issue of his credibility, per CALJIC No. 2.13.1. We agree the instruction should have been given, but conclude the error was harmless. Consequently, we affirm the judgment.

I

Facts

Stephen Hurley entered the patio area of a Laguna Beach brewery around 1:00 a.m. on the morning of June 22, 2003. As Hurley moved through the patio, defendant bumped into him, spinning him around. Defendant took a step toward Hurley and said â€