P. v. Hampton

Filed 1/30/07 P. v. Hampton CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Abraham A. Khan, Judge. Affirmed.

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Carnell Hampton, Jr. timely appealed his conviction for possession of a controlled substance (methamphetamine) (count 1) and being under the influence of a controlled substance (methamphetamine) (count 2). Defendant admitted prior strike and prior prison terms allegations. The court sentenced defendant to a total of five years on count 1 and a concurrent one year on count 2. Defendant contends the court erred when it denied his Batson/Wheeler motion and when it admitted certain statements he made. We affirm.

FACTUAL BACKGROUND

At approximately 3:30 a.m., on June 3, 2005, Los Angeles County Deputy Sheriff Robert Riley was on patrol in El Monte. Riley was stopped in his patrol vehicle at a red light when he observed appellant step off the curb and cross the street against a red flashing Dont Walk sign. Riley waved appellant over to his vehicle to advise appellant of the violation.

Riley exited his patrol car and noticed appellant was nervous and sweating. Riley thought the sweating was unusual because the weather was relatively cool. Riley asked appellant if he was carrying anything illegal, and appellant responded he was carrying a pocket knife. Riley conducted a pat down search and retrieved a knife. Riley observed appellant was fidgety, was sweating profusely, was shifting his weight back and forth, had dilated pupils, his eyelids fluttered, and his pulse was elevated. Based on his observations, Riley determined appellant was under the influence of a stimulant. Riley placed appellant under arrest and conducted a more thorough search. In appellants wallet were two clear plastic baggies containing a substance resembling methamphetamine.

During transport to the sheriffs station, Riley advised appellant of his Miranda rights. Appellant agreed to speak with Riley. Appellant said a co-worker at the carnival where he worked had given him the methamphetamine. Appellant also indicated he had used the methamphetamine two or three hours prior to his arrest. Appellant said he needed to go to work and asked Riley if something could be arranged. Riley advised appellant to talk to the narcotics detectives. At the station, appellant signed a Miranda waiver form.

A urine sample was obtained from appellant. The urine was tested and found to contain amphetamine and methamphetamine. The criminalist who tested the sample could not opine how much methamphetamine had been taken by the person who gave the sample or when it had been taken nor could she offer an opinion as to how long a person who takes methamphetamine remains under the influence of the drug. The substance obtained from appellants wallet also contained methamphetamine.

The defense presented no witnesses.

DISCUSSION

I. Batson/Wheeler

A. Background

During voir dire, the court asked prospective jurors to answer questions placed on a board, including the occupation of spouse, adult children or significant others that live in your household. Prospective juror 12 stated he was a student, he studied music, he was not married, his mother sold insurance, and he had no prior jury experience or regular contact with law enforcement.

The prosecutor exercised a peremptory challenge to excuse prospective juror 12. Citing People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79, defense counsel claimed the prosecutor had improperly excused prospective juror 12, arguing:

I note nothing at all in his voir dire examination that would tend to lead anyone to believe hes being excused for any reason other than the fact hes the only male Black in the entire ven[ire]. It indicates here that hes from Pomona, that hes a music student, and his mom works in insurance and thats it. [] And he wasnt asked any questions by any of the parties that would lead us to believe he would not be a fair juror for both the People and the defense.

Noting prospective juror 12 was the only African-American man on the venire, the court required the prosecutor to state her reasons for the use of the peremptory challenge. The prosecutor explained:

He actually appeared to me to be sleeping when I was doing my voir dire. He had his head down, his hand on his face, on his eyebrows, rubbing in between his eyebrows. Thats when I was doing my questioning, when I was standing up and he just did not appear to be very responsive to me at all. In fact, the comment I made during the break [to defense counsel] was I dont think he likes me . . . .

. . . .

Also, he is young. It appears to me he is probably the youngest person out of every single juror we have questioned so far, that is some 30 people, and Im not particularly fond of really young people with no life experience. It appears he lives at home with his mother as well. So those are my reasons.

Defense counsel argued that although prospective juror 12 did put his head down and close his eyes, it did not appear he was asleep, but rather that he was listening. She also argued the prospective jurors age should not prevent his jury service.

The court found the prosecutors reasons were valid and race-neutral and not arbitrary or capricious. The court explained that while it had not considered the prosecutors comment the prospective juror did not like her:

I looked at the other reasons she gave. His lack of experience on a jury, his youth, he looks like hes about 18. The fact that the People thought he was not paying attention to the proceedings, albeit when I spoke he gave the appearance of closing his eyes or lowering his head and putting [it] on folded arms.

B. Discussion

In People v. Reynoso (2003) 31 Cal.4th 903, 913-914, the court discussed the general principles of Batson and Wheeler: In Wheeler we held that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates a defendants right under the California Constitution to a trial by jury drawn from a representative cross-section of the community. Discrimination in the exercise of peremptory challenges likewise violates the defendants equal protection rights under the federal Constitution. Wheeler recognized there is a general presumption that a party exercising a peremptory challenge is doing so on a constitutionally permissible ground, but went on to explain that the presumption is rebuttable. (Citations omitted; original emphasis.)

The test for determining if the use of peremptory challenge violated a defendants constitutional rights is: if the opponent of a peremptory challenge makes out a prima facie case of racial discrimination, the burden of production shifts to the proponent to come forward with a racial-neutral explanation, and if the race-neutral explanation is tendered, the court must decide whether the opponent has proved purposeful racial discrimination. (People v. Reynoso, supra, 31 Cal.4th at p. 915.) We review the trial courts ruling on the question of purposeful racial discrimination for substantial evidence. (People v. Avila (2006) 38 Cal.4th 491, 541.)

Appellant contends that in the case at bar, the court erred because it did not make a sincere and reasoned effort to determine if the prosecutors stated reasons for challenging prospective juror 12 were genuine. (Collins v. Rice (9th Cir. 2004) 365 F.3d 667, 678 [[I]f a review of the record undermines the prosecutors stated reasons, or many of the preferred reasons, the reasons may be deemed a pretext for racial discrimination.].)

Because Wheeler motions call upon trial judges personal observations, appellate courts generally accord great deference to their determination that a particular reason is genuine. However, we do so only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. When the prosecutors stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutors stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient. (Citations omitted.) (People v. Allen (2004) 115 Cal.App.4th 542, 548.) Appellant argues the prosecutors stated reasons were not supported by the record and were inherently implausible. We disagree.

Appellant complains none of the prosecutors proffered justifications were related to an objective evaluation of whether prospective juror 12 could fairly decide the case on the merits. Jurors may be excused based on hunches and even arbitrary exclusion is permissible, so long as the reasons are not based on impermissible group bias. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122.) Moreover, [t]he proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. (Original emphasis.) (People v. Reynoso, supra, 31 Cal.4th at p. 924.)

Appellant states there was no support in the record that prospective juror 12 was falling asleep or inattentive, that he lived with his mother or that he lacked life experience. Although the court stated it had not noticed if that juror was sleeping, it noted that did not mean he was not sleeping if it looked like that to the People. The court accepted the juror was being inattentive. Prospective juror 12 was asked to give the occupation of significant others in his household, and responded his mother worked in insurance -- an indication he lived with her. Prospective juror 12s youth (the court observed he appeared to be about 18) and lack of life experience (as shown by his age and the fact he was a student) corroborate the prosecutors concerns about his inattentiveness; a matter of legitimate concern. (See Collins v. Rice, supra, 365 F.3d at p. 678 [A prospective jurors age and demeanor as justifications for excusing a juror are not contrary to, or an unreasonable application, of established law.]; People v. Perez (1994) 29 Cal.App.4th 1313, 1328 [Limited life-experience is a race-neutral explanation.].)

The record shows the court listened to and responded to defense counsels arguments, but was convinced the prosecutors stated justifications were race-neutral. The courts decision was not superficial but was the product of thought and the result of a sincere and reasoned effort to evaluate whether the prosecutors stated justifications were genuine. Appellant notes the prosecutor failed to ask prospective juror 12 any questions at all and suggests the prosecutor should have questioned the juror about his personal feelings about drugs in general and about police officers. Not only did the court ask the panel if anyone had issues or experience with drugs or alcohol in their families/household, but also the prosecutor asked the panel whether anyone had seen someone under the influence or if anyone thought simple possession of a narcotic should not be a crime or if anyone could not trust a police officer. Thus, there was substantial evidence the prosecutors reasons were race-neutral. As the prosecutors reasons were supported by the record and not inherently implausible further questioning by the court was not necessary.

II. Admission of appellants statements

A. Background

At appellants first trial, Riley testified that when he asked appellant if he would like to talk about what had happened, appellant stated he had used methamphetamine two to three hours earlier and the methamphetamine had been given to him by a co-worker. Defense counsel moved to strike those statements and the court ordered an Evidence Code section 402 hearing. During the hearing, Riley admitted appellants statements had been made before appellant had been Mirandized (Miranda v. Arizona (1966) 384 U.S. 436). The court determined the statement as to how appellant obtained the drug would be admissible but the statement as to when he had used the drug would be excluded. Subsequently, the court granted defense counsels motion for a mistrial.

At retrial, the court ordered a hearing to determine the admissibility of those statements. The prosecutor advised the court she would not be seeking to introduce the statements made in the field, but she argued appellants statements after the Miranda advisements were admissible.

Riley testified that after he placed appellant under arrest, he asked appellant how long ago did you use, where did you get it from. Appellant responded he had used the methamphetamine two or three hours previously and obtained it from a co-worker. Then, about 10 minutes later while appellant was handcuffed in the backseat of the patrol care, on the way to station, Riley read appellant his Miranda rights from a standard card, and appellant said he understood his rights. Riley again asked appellant the same questions, and appellant gave the same answers. Appellant added he worked at a carnival and the man who had given him the methamphetamine also worked at the carnival and drove a maroon-colored car. Appellant said he needed to work the next day and asked Riley to work out a deal. Riley replied appellant could discuss the matter with the narcotics detectives. At the station, appellant signed a waiver of rights form and said he wanted to talk to the detectives.

The court issued a tentative ruling the statements would be excluded because there was insufficient attenuation between the first and second statements. Citing People v. Torres (1989) 213 Cal.App.3d 1248 and Oregon v. Elstad (1985) 470 U.S. 298, the court determined that as long as both statements were voluntary and not made under coercive circumstances, the fact the first statements were made without Miranda warnings did not preclude admissions of the second statements. The court found there was nothing coercive about either of appellants statements.

B. Discussion

Appellant contends that the court erred in admitting the statements he made after he was given Miranda warnings, i.e., the statements a co-worker at the carnival where he worked had given him the methamphetamine and he had used the methamphetamine two or three hours prior to his arrest.

The law is well settled. When reviewing a trial courts decision on a motion that a statement was collected in violation of the defendants rights under [Miranda], we defer to the trial courts resolution of disputed facts, including the credibility of witnesses, if that resolution is supported by substantial evidence. Considering those facts, as found, together with the undisputed facts, we independently determine whether the challenged statement was obtained in violation of Mirandas rules. (Citations omitted.) (People v. Weaver (2001) 26 Cal.4th 876, 918.) The erroneous admission of an involuntary confession is reviewed under the harmless error standard of Chapman v. California (1967) 386 U.S. 18 of harmless beyond a reasonable doubt. (People v. Sims (1993) 5 Cal.4th 405, 447.)

The court cited Torres and Elstad in ruling appellants post-Miranda statements were admissible. In People v. Torres, supra, 213 Cal.App.3d at pages 1254-1255, the court set out the law on how courts determine whether such statements are admissible:

In [Elstad], the United States Supreme Court held that the failure to administer Miranda warnings during a custodial interrogation, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspects ability to exercise free will, does not mandate the exclusion of a subsequent statement voluntarily made by the defendant after he was advised of and waived his Miranda rights.

In reaching this decision, the Supreme Court held that the lack of a Miranda warning is not equivalent to actual police coercion or inducement. As long as the non- Miranda statements were otherwise voluntary, there is no infringement of the defendants constitutional rights, and subsequent voluntary statements are not subject to exclusion as the tainted product of the Miranda violation. Stated another way, a fruit of the poisonous tree analysis does not apply to the fruit of a noncoercive Miranda violation. Elstad makes clear that a failure to administer Miranda warnings, without more, does not automatically require suppression of the fruits of the uncounseled statement. Where the uncounseled statement is voluntary, and thus not a product of inherently coercive police tactics or methods offensive to due process, there is no fifth amendment violation and the fruits may be admissible in the Governments case-in-chief.

Instead, Elstad sets forth a two-step analysis: the trial court must determine (1) whether the statements obtained in violation of Miranda were otherwise voluntary; and (2) whether, under the totality of the circumstances, defendants subsequent statements also were voluntarily made. If both tests are met and the subsequent statements were not themselves directly in response to further non-Miranda interrogation, they are admissible against the defendant. (Citations omitted.)

In the case at bar, the court determined that both the statements obtained in violation of Miranda and the statements subsequent to the Miranda warnings were voluntary and therefore admissible. Appellant argues the court misapplied Torres and Elstad and failed to consider Missouri v. Seibert (2004) 542 U.S. 600, a plurality decision not brought to the courts attention. In Seibert, the court addressed its concern with police question-first strategy, i.e., obtaining a confession, then giving Miranda warnings and then obtaining a post-Miranda confession, reasoning, The object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed. (Id., at p. 611.) The court noted the threshold issue was whether it would be reasonable to find that in these circumstances the warnings could function effectively as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? (Id., at pp. 611-612.)

The Seibert court distinguished Elstad noting it was a case in which the police had gone to a young suspects home to take him into custody on a charge of burglary. While one officer spoke to the suspects mother, the other officer joined the suspect in a brief stop in the living room where he stated he felt the suspect was involved in the burglary. The suspect acknowledged he had been at the scene and subsequently made a full confession at the station house after Miranda warnings. The Seibert court noted the Elstad court treated the living room conversation as a good-faith Miranda mistake, which was open to correction by careful warnings before systematic questioning. (Missouri v. Seibert, supra, 542 U.S. at pp. 614-615.)

The court discussed factors bearing on whether Miranda warnings delivered midstream could be effective enough to accomplish their objective included: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogators questions treated the second round as continuous with the first. (Missouri v. Seibert, supra, 542 U.S. at p. 615.)

Appellant asserts his second statements should have been excluded because there was no ambiguity he was in custody at the time of his first statements when he was asked specific questions and was away from a safe environment -- he was handcuffed in the backseat of a police car late at night -- and there was no change of circumstances when he made his second statements -- he was still handcuffed in the backseat of the police car and was asked the same questions by the same officer within the 10 minute drive to the station. This case presents a very close question as to whether the second statements were obtained in violation of Miranda. The court looked only at whether the two groups of statements were voluntary and not at the other factors discussed in Seibert. Accordingly, we will assume arguendo that the second statements that appellant got the methamphetamine from a co-worker and that he had ingested the drug two to three hours prior to his arrest should not have been admitted.

However, we conclude that any error in admitting the statements was harmless beyond a reasonable doubt. Appellant argued the admission of the statements was prejudicial on count 2, the charge of being under the influence of a controlled substance, because erroneous admission of a confession is more likely to be prejudicial. (See People v. Neal (2003) 31 Cal.4th 63, 86.) Deputy Riley testified about his observations of appellant and his opinion appellant was under the influence. Riley was cross-examined extensively about his training and experience in this area. The criminalists testified amphetamine and methamphetamine were found in appellants urine. There was no evidence the Styrofoam cup used to collect appellants urine was contaminated.

Where appellant got the drug from was not relevant to this charge. Even the admission as to when appellant had ingested the drug had little relevance as there was no testimony as to how long someone who ingested the drug remained under the influence. As a matter of fact, defense counsel argued the lack of evidence as to how long someone would remain under the influence meant appellant was not under the influence.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

I concur:

PERLUSS, P.J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J., Concurring and Dissenting.

I concur in that part of the judgment affirming appellants conviction of felony possession of methamphetamine and the four-year sentence based on that conviction as well as the rationale for that part of the judgment.

I respectfully dissent, however, from the judgment insofar as it affirms the misdemeanor conviction for being under the influence of methamphetamine, and the one-year consecutive sentence based on that conviction.

In my view, the trial court erred in admitting appellants statement conceding he had taken the drug two or three hours before his arrest. While this admission was made after a Miranda warning, it merely repeated an identical admission made ten minutes earlier in answer to the same officers pointed questions and as part of the same custodial interrogation. The two statements, one before and one after the warning, were so close in time, place, and circumstance as to comprise a single interrogation. In such a circumstance, absent a special warning to the effect the initial statement you made is not admissible against you, but anything you say after this Miranda warning will be, there was no attenuation whatsoever of the taint from the original Miranda violation.

Unlike People v. Torres,[1]relied on by the trial court, this was not a second statement volunteered in the absence of police interrogation but a second statement made as part of the same custodial interrogation in response to questioning by the same interrogator and in the same coercive environment as the initial un-Mirandized statement. In such a situation, a defendant is unlikely to think he has any alternative, having already spilled the beans, to put them back in the jar (or, more appropriately, back in his mouth). As the United States Supreme Court observed in Missouri v. Seibert:[2][I]t would ordinarily be unrealistic to treat two spates of integrated and proximatelyconducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.[3]

It is true there was evidence in Seibert of a deliberate plan to interrogate without Miranda warnings and, after getting admissions, to sometime later administer the warnings and elicit the same information. In the case before this court, the evidence is silent as to whether the arresting officer was following such a deliberate strategy or was merely negligent in failing to warn before posing the critical questions calculated to gain the key admissions from appellant. But whether the officers behavior was intentional or a good faith mistake should make no difference in the circumstances of this case. Either way, what happened here constituted two spates of integrated and proximately conducted questioning indeed closer in time, place and circumstance than the two periods of questioning in Seibert. Thus, the Supreme Courts conclusion it is unrealistic . . . to treat [the before-and-after Miranda interrogations] as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate[d] them in the middle is as true here as it was in Seibert. Indeed, if anything, it is a more valid observation here than it was in Seibert.

Because this represents federal constitutional error it is subject to the Chapman standard of harmless error.[4]Although I concede there was enough evidence for a jury to have found appellant guilty of being under the influence, even without appellants statement, I cannot say beyond a reasonable doubt the jury would have convicted him of that crime without that admission. The officers testimony appellant demonstrated symptoms consistent with being under the influence of something and the expert witnesss opinion he had traces of methamphetamine in his blood were sufficient evidence to sustain a jury verdict of guilty on that charge. But the expert could not state how long ago appellant would have had enough of the drug in his system to be under the influence. It is difficult to conclude beyond a reasonable doubt no juror could have entertained a reasonable doubt about the under the influence count, had the trial court excluded the testimony about appellants admission to taking the drug shortly before his arrest. Accordingly, if in the majority I would reverse the misdemeanor conviction and the one-year sentence based on that conviction. In all other respects, I agree with the majority opinion.

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JOHNSON, J.

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[1]People v. Torres (1989) 213 Cal.App.3d 1248, 1251.

[2]Missouri v. Seibert (2004) 542 U.S. 600.

[3]Missouri v. Seibert, supra, 542 U.S. at page 614, italics added.

[4]Chapman v. California (1967) 386 U.S. 18 requires reversal if the reviewing court finds one or more violations of the U.S. Constitution unless the court concludes beyond a reasonable doubt the error could not have affected the outcome.