The opinion of the court was delivered by: Hull , Acting P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Dominique Darnell Baker of two counts of battery on a non-confined person. (Pen. Code, § 4501.5; counts one & two; unless otherwise specified, statutory section references that follow are to the Penal Code.) The trial court found true allegations that he had suffered two prior serious or violent felony convictions. (§§ 667, subds. (b)-(i), 1170.12.) Thereafter, one prior conviction allegation was dismissed in the interest of justice. (§ 1385.) Defendant was sentenced to state prison for six years, consisting of twice the middle term of three years on count one; sentence on count two was stayed pursuant to section 654.
On appeal, defendant contends (1) evidence of his statement to an examining nurse was erroneously admitted, (2) evidence that a victim had filed a false incident report was erroneously excluded, (3) his request for a brief continuance was erroneously denied, (4) the cumulative effect of the foregoing errors was prejudicial, and (5) the court's choice of the middle term of imprisonment was not an informed exercise of discretion. We affirm the judgment.
On October 22, 2007, at approximately 6:50 a.m., High Desert State Prison Correctional Officers Kelly Hassell and Robert Lucas approached defendant's cell and asked for his breakfast tray. Defendant was supposed to pass the tray through a "food port" to the officers in exchange for a sack lunch. However, defendant refused, stating that he wanted to receive two sack lunches because the previous day's lunch had been taken from him. Hassell told defendant that pursuant to policy he would receive only one lunch.
At Officer Hassell's direction, defendant placed the breakfast tray on the food port. As Hassell removed the tray, he saw defendant quickly turning his upper body toward the cell door and felt liquid hitting his right forearm and neck with enough force to suggest that it had been thrown. Similarly, Officer Lucas felt liquid hitting him with enough force to splash up from his torso and left arm to the left side of his face and left eye. The liquid immediately started to burn his eye.
At the time of the incident, defendant was alone in the cell and his food port was the only food port open. Although neither officer saw him throw anything, Officer Hassell leaned to the left because he believed defendant's motion signaled that he would throw something through the port. Officer Lucas knew the substance came from defendant's food port and believed it had been thrown intentionally. From the force with which he had been hit, the distance between him and the port, and defendant having been denied a second lunch, Lucas deduced that it was not possible that something had just splashed up from a nearby trash can.
Officer Hassell closed the food port, and both officers left the area to clean themselves. Before Hassell left, he heard Officer Lucas say that something had struck him. Hassell saw wet marks on Lucas's left side.
Officer Hassell notified Sergeant Striker of the incident. When Officer Lucas finished cleaning himself, Striker approached him and they discussed the incident. At the sergeant's direction, Lucas went to a clinic and had his eye checked for exposure and flushed out. Washing the eye helped to relieve the pain.
Neither officer noticed any unusual smells emanating from the liquid; nor did either notice what was on the floor. Neither officer's jumpsuit was retained for evidence.
Officer Hassell told Correctional Officer Terry Cobb that he and Officer Lucas had been "gassed," which meant an inmate had thrown liquid on them. Cobb noticed that Hassell and Lucas were wet. Upon Sergeant Striker's orders, Cobb escorted defendant from his cell to a holding cell for medical clearance. When Cobb arrived at defendant's cell, he noticed that area in front of the door was wet.
As a result of the incident, High Desert State Prison Nurse Sandra Caldwell had to issue medical clearances for the officers and defendant. She observed that Officer Lucas had a wet left eye and clothing, and Officer Hassell had a wet right arm and neck. She instructed Lucas to get an "exposure package" from the prison hospital and then proceed to a medical center.
Nurse Caldwell asked defendant, who was uninjured, what had happened; he answered, "Nothing." In response, Caldwell stated, "it sounds like you threw something on the officers." Defendant replied, "I just threw water."
I Statements to Nurse Caldwell
Defendant contends the trial court erred when it denied his motion to exclude his admission to Nurse Caldwell that he "threw water." He claims the statement was obtained in violation of his Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]) rights and its admission was prejudicial. We disagree.
At an Evidence Code section 402 hearing, the parties stipulated that, before he saw Nurse Caldwell, defendant had been advised of his Miranda rights, had invoked his rights, and had chosen to remain silent.
Nurse Caldwell testified that, at 7:30 a.m. on the day of the incident, she met defendant, who was handcuffed, in a holding cell for the purpose of issuing medical clearance. To do so, she had to thoroughly examine and talk to the inmate. Although there was no indication that defendant had been injured, she still examined him because "sometimes [inmates] don't realize they are injured." She first asked defendant "What happened?" Defendant responded, "Nothing," which is a "very common" inmate response. A few minutes later, while examining defendant, Caldwell said, "Sounds like you threw something on the officers." Defendant replied, "I just threw water."
Nurse Caldwell testified that her questioning was not for the purpose of investigating a crime but for the purpose of medical clearance. She always talks to inmates, in order to see if they are "oriented times three," to evaluate "[h]ow they are talking to" her, and to determine whether "they smell of alcohol." Inmates "sometimes" will tell Caldwell things that they "are not normally going to tell an officer." No officer had asked her to question defendant.
In his motion in limine, defendant argued that his statement had been taken "in violation of [his] constitutional right, since he had invoked his right to remain silent before being treated by LVN S. Caldwell, who is an employee of" the California Department of Corrections and Rehabilitation (CDCR). In an accompanying memorandum, defendant argued that his statement was taken in violation of Miranda, citing Edwards v. Arizona (1981) 451 U.S. 477, 484 [68 L.Ed.2d 378, 386].) Defendant orally argued that the statements violated his Sixth Amendment rights because Caldwell was "an extension of law enforcement," in that she was employed by CDCR. Defendant suggested the prosecution was trying to "circumvent" Miranda and thus use his statement in its case-in-chief. Defendant acknowledged that it was irrelevant whether Caldwell's statement was a question. Rather, what was important was whether she had initiated conversation about the facts of the crime. As a result, defendant argued the statement should be excluded on Sixth Amendment grounds.
In response, the prosecutor acknowledged that if Nurse Caldwell's statement was "something that could be meant to elicit a response," then it was a question for Miranda purposes. The prosecutor argued that the purpose of Miranda was to counteract the psychological pressures placed upon a suspect during a criminal investigation and not to exclude routine medical questioning. The prosecutor cited and argued multiple cases supporting his argument that defendant was not in custody for Miranda purposes.
The trial court allowed Nurse Caldwell to testify regarding her statements and defendant's statements.
Miranda applies only when a suspect is subjected to "custodial interrogation." (Oregon v. Mathiason (1977) 429 U.S. 492, 494 [50 L.Ed.2d 714, 719].) It is not necessary to consider whether defendant, handcuffed in a state prison holding cell, was in custody for Miranda purposes when he spoke to Nurse Caldwell. (See People v. Macklem (2007) 149 Cal.App.4th 674, 686-696.) It is sufficient to consider only whether she interrogated him and we hold she did not.
"[T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis ...