P. v. Barnhart

Filed 6/21/06 P. v. Barnhart CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Cathy Barnhart was convicted by jury of one count of theft or unauthorized use of a motor vehicle (Veh. Code, § 10851, subd. (a)). In a bifurcated proceeding, the trial court found true enhancement allegations that defendant had previously been convicted of one serious felony within the meaning of the Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subd. (c)). At sentencing, the court granted defendant's Romero[1] motion, struck the prior serious felony conviction, and sentenced defendant to the middle term of two years in state prison.

On appeal, defendant contends the prosecutor violated her constitutional rights under Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) when she allowed a police officer to refer to defendant's silence after Miranda[2] warnings were administered. Defendant argues the prosecutor violated her rights under Doyle in closing argument and that her counsel was ineffective for failing to object to the prosecutor's argument. She also contends her counsel was ineffective in handling evidence and argument related to defendant's conduct in the back of the patrol car before she was given the Miranda warnings. We find neither error nor ineffective assistance of counsel and affirm.

Statement of Facts

I. Prosecution case

Domingo Carranza owned a new 2004 Volkswagen Beetle (Beetle). Carranza left home for work at about 6:30 a.m. on December 29, 2004. After he got into his car and started the engine, Carranza realized he had forgotten his wallet. He left the Beetle in his driveway with the keys in the ignition and the engine running while he went back inside his house to get his wallet. When Carranza returned about three minutes later, the car was gone.

The car was recovered approximately six weeks later. Shortly after midnight on February 11, 2005, Police Officer Arturo Palacios was on routine patrol in San Jose. He saw the Beetle in front of him in traffic, ran the license plates through his computer system, and discovered that the car had been stolen. Officer Palacios activated his lights and siren and initiated a felony stop. Several other police units responded. Defendant, who was driving the Beetle, pulled over about 20 seconds after the officer activated his lights and siren.

Officer Palacios drew his gun and ordered defendant out of the car. At least four other officers had their guns drawn. Officer Palacios then noticed a male passenger in the front seat and ordered him out of the car. The other officers handcuffed defendant and the passenger and placed them in different patrol cars.

Officer Palacios searched the Beetle at the location where he had stopped defendant and found a black backpack and a black duffel bag in the trunk of the car. He found letters addressed to defendant, other papers, and miscellaneous items inside the bags. He found a small purse with defendant's identification in it in the front of the car.

Officer Palacios told defendant, who was still seated in a patrol car, that he had pulled her over because the Beetle had been reported stolen. She did not say anything in response. She had no expression on her face and did not appear surprised. Officer Palacios asked defendant whether the black bags and the items inside belonged to her and she said they did.

Prior to the presentation of this evidence to the jury, the court conducted an Evidence Code section 402 hearing on the admissibility of defendant's statement regarding the bags. Defendant had challenged the statement on the ground that it was made in violation of her Miranda rights. The court observed that the officer's question regarding the ownership of the bags occurred at a fairly early stage of the investigation. The court reasoned that the question was designed to insure proper processing of the property rather than to elicit incriminating statements. The court concluded there was no Miranda violation, since Miranda was not required at that stage of the proceedings. Defendant does not challenge that ruling on appeal.

Defendant was transported to the pre-processing center, where she was questioned by Officer Palacios. Before questioning her further, Officer Palacios advised defendant of her Miranda rights. During the Evidence Code section 402 hearing the court concluded that defendant was properly advised of her Miranda rights, that she had impliedly waived those rights before being questioned by Officer Palacios, and that the statement defendant made at the pre-processing center was admissible. Officer Palacios asked defendant whether she wanted to talk to him about what had happened and then immediately asked whether her passenger had anything to do with the stolen car. Defendant said she was driving the car and the passenger had nothing to do with it.

When Carranza got the Beetle back, it had 2,400 more miles on it than when it was stolen. There were some light scratches on the sides. The rear headrests and one of the hubcaps were missing. â€