APPEAL from the Superior Court of California, County of Riverside. Mark E. Petersen, Judge. Affirmed with directions. (Super.Ct.No. SWF026666)
The opinion of the court was delivered by: King J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant and appellant Michael Lee Bejasa was involved in an automobile collision that seriously injured his passenger. The first police officer at the scene searched defendant and found two syringes, one of which contained methamphetamine. Defendant admitted that the syringes were used to inject methamphetamine and that he was on parole. The police officer handcuffed defendant, told him he was being detained for a possible parole violation, and placed him in the back of his police car. The officer did not give defendant the Miranda*fn2 warnings.
Upon the arrival of additional officers a short time later, defendant was released from the police car and his handcuffs were removed. The investigating officer conducted an interview and various field sobriety tests (FST) and determined that defendant was possibly under the influence of drugs. The officer then advised defendant he was under arrest. Defendant was not given his Miranda rights until he was taken to the police station.
Defendant was charged and convicted by a jury of driving a vehicle under the influence of a drug and personally causing great bodily injury to another (count 1),*fn3 as well as transporting a controlled substance (count 2).*fn4 Defendant also pled guilty to driving without a license (count 3).*fn5 Following a bifurcated court trial, the court found true allegations of prior convictions and two prior strike convictions.*fn6 The trial court sentenced defendant to consecutive 25-year-to-life sentences on counts 1 and 2. On count 3, defendant received a term of 180 days, to run concurrent to count 1.
On appeal, defendant argues the trial court erred in refusing to suppress evidence of statements made to the police after defendant was handcuffed and placed in a police car prior to being advised of his Miranda rights. Among other statements that should have been suppressed, defendant claims that his estimation of time, made during a "Romberg," or modified attention, FST (Romberg test), was testimonial evidence and should have been excluded under Miranda. In the published portion of our opinion, we conclude the trial court erred in admitting defendant's custodial statements to the police, including the estimation of time made during the Romberg test. However, because we further conclude the error was harmless, we affirm defendant's conviction.
The remaining issues concern the trial court's sentencing of defendant. Defendant contends the court failed to realize that the "Three Strikes" law does not require consecutive sentencing if the crimes were committed on the same occasion, and the imposition of a consecutive sentence on count 2 was an abuse of discretion. Defendant also argues the court should have stayed the sentence on count 2 pursuant to Penal Code section 654 because the two crimes were committed with a single intent and objective. We address these issues in the nonpublished portion of our opinion. We agree with defendant that the court was unaware of its discretion in determining whether to impose a consecutive or concurrent sentence on count 2, and failed to exercise such discretion. A new sentencing hearing is therefore required, at which the court shall exercise such discretion. Finally, we agree with defendant that the sentence on count 2 must be stayed pursuant to Penal Code section 654.
A. Motion to Suppress Defendant's Statements Made Prior to Miranda Warnings
1. Factual and Procedural Background
Prior to trial, defendant moved to suppress statements made to police officers after he was handcuffed and placed in the police car and prior to being advised of his Miranda rights. The motion was based on the evidence presented at defendant's preliminary hearing. The following is our summary of that evidence.
On the evening of September 19, 2008, defendant was driving a Jeep northbound on State Street in Hemet. Defendant's girlfriend, Stasha Lewellyn, was riding in the passenger seat. At approximately 6:52 p.m., Terri Patterson observed the Jeep as she drove in the southbound slow lane. The oncoming Jeep changed lanes and veered all the way across the street into Patterson's lane. Patterson was unable to avoid the Jeep, and the vehicles collided head-on. Lewellyn, who was not wearing a seat belt, was thrown from the Jeep. As a result, she sustained major injuries.
Hemet Police Officer Derek Maddox was the first police officer to arrive at the scene of the crash. After making sure that the injured parties were being treated by paramedics, Officer Maddox contacted defendant and asked him what happened. Defendant said he had been driving and Lewellyn had been thrown from the Jeep because she was not wearing a seat belt. Officer Maddox noticed that defendant's eyes were bloodshot. He told defendant to sit on the curb.
Traffic officers were called to continue the investigation. Officer Maddox waited until other officers arrived, then resumed questioning defendant. During this exchange, defendant admitted he was on parole. Defendant consented to a search, during which Officer Maddox found two syringes. One syringe was empty; the other contained a small amount of liquid that was later determined to be methamphetamine. Defendant admitted he used the syringe to "shoot up methamphetamine." By the time of the search, less than 20 minutes had passed since Officer Maddox arrived on the scene.
Officer Maddox handcuffed defendant and placed him in the back of his police car to await officers from the traffic department. As defendant was being handcuffed, Officer Maddox informed him that "he was being detained for a possible parole violation." Officer Maddox did not give defendant the Miranda warnings.
Officer Tony Spates, a Hemet traffic officer, arrived at the scene of the crash at approximately 7:15 p.m. Four other traffic officers responded as well. When Officer Spates arrived, Officer Maddox and another officer briefed him on the collision. Officer Spates then allowed defendant to get out of the police car and removed defendant's handcuffs. Officer Spates proceeded to interview defendant, using a form provided by the Hemet Police Department, in order to determine whether defendant had been driving under the influence. These questions included: "What have you been drinking?," "How much?," "When did you start?," "When did you stop?," "Do you feel the effects of the alcohol?," and "Do you think that you should be driving?" In response to Spates's questions, defendant made incriminating statements regarding his use of drugs.*fn7
Officer Spates also administered a number of FST's on defendant, with mixed results. While defendant was able to perform some of the tests to Officer Spates's satisfaction, other test results suggested that defendant was under the influence of a narcotic.
The first FST administered by Officer Spates was the Romberg test. Defendant was asked to stand at attention, close his eyes, tilt his head back, and estimate the passage of 30 seconds. While defendant performed the test, Officer Spates observed defendant's balance and his ability to accurately measure the passage of 30 seconds. Officer Spates testified that defendant leaned slightly and finished counting at 25 seconds. Officer Spates testified that the result was consistent with the use of a stimulant because it showed that defendant was "moving a little fast."
At the conclusion of the FST's, Officer Spates advised defendant he was under arrest. Defendant's blood subsequently tested positive for methamphetamine.
2. The Hearing on the Motion to Suppress
At the hearing on defendant's motion to suppress, defendant argued he had been placed in custody and his statements made to Officer Spates were inadmissible because he had received no Miranda warnings. Furthermore, defendant claimed the FST's were also inadmissible testimonial evidence for the same reason.
The trial court rejected defendant's argument and ruled that, in light of the totality of the circumstances, defendant was not in custody. The court found that Officer Maddox was conducting a preliminary investigation and that he had, at most, only one other officer with him. The court reasoned that Officer Maddox detained defendant briefly, until an investigating officer arrived, in order to effectively manage the accident scene. Once Officer Spates arrived, defendant was released and "essentially free to move around." The statements made to Officer Spates were thus not the result of custodial interrogation. The trial court also denied the motion to suppress the FST results based on the conclusions that defendant was not in custody at the time the FST's were administered and defendant's performance on the FST's were "non-testimonial." Therefore, the statements and FST results were ruled admissible.
On appeal, defendant challenges the admissibility of the incriminating statements made to Officer Spates and the estimation of time during the Romberg test.
In Miranda, the United States Supreme Court held that the Fifth Amendment privilege against self-incrimination prevents the prosecution from using "statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (Miranda, supra, 384 U.S. at p. 444.) The court was concerned that, without these procedural safeguards, the "inherently compelling pressures" of custodial interrogation might induce suspects to speak where they normally would not. (Id. at p. 467.)
These procedural safeguards require that a person in custody "first be informed in clear and unequivocal terms that he has the right to remain silent" and "that anything said can and will be used against the individual in court." (Miranda, supra, 384 U.S. at pp. 467-469.) Furthermore, a person in custody must be advised of his or her "right to consult with a lawyer and to have the lawyer with him during interrogation." (Id. at p. 471.) Finally, the person must be told that "if he is indigent a lawyer will be appointed to represent him." (Id. at p. 473.) If these advisements are not made, "no evidence obtained as a result of interrogation can be used against him." (Id. at p. 479, fn. omitted.)
In reviewing a trial court's ruling on a motion to suppress evidence based upon a Miranda violation, "'we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' [Citation.]" (People v. Gamache (2010) 48 Cal.4th 347, 385.)
Miranda advisements are only required when a person is subjected to custodial interrogation. (Miranda, supra, 384 U.S. at p. 444.) A suspect is in custody when a reasonable person in the suspect's position would feel that his "freedom of action is curtailed to a 'degree associated with formal arrest.' [Citation.]" (Berkemer v. McCarty (1984) 468 U.S. 420, 440, 442 (Berkemer).)
Because a Miranda warning is only required once custodial interrogation begins, the defendant must necessarily have been in custody in order to assert a violation. "In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation . . . ." (Stansbury v. California (1994) 511 U.S. 318, 322.) These circumstances must be measured "against an objective, legal standard: would a reasonable person in the suspect's position during the interrogation experience a restraint on his or her freedom of movement to the degree normally associated with a formal arrest." (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161; see also Berkemer, supra, 468 U.S. at p. 442; California v. Beheler (1983) 463 U.S. 1121, 1125; People v. Stansbury (1995) 9 Cal.4th 824, 830.)
California courts have identified a number of factors relevant to this determination. While no one factor is conclusive, relevant factors include: "(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning." (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403; People v. Forster (1994) 29 Cal.App.4th 1746, 1753; People v. Lopez (1985) 163 Cal.App.3d 602, 608.)
Additional factors include: "[W]hether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were 'aggressive, confrontational, and/or accusatory,' whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview." (People v. Pilster, supra, 18 Cal.App.4th at pp. 1403-1404, citing People v. Aguilera, supra, 51 Cal.App.4th at p. 1162.)
In denying the defense's motion for suppression of evidence, the trial court concluded that, under the totality of the circumstances, defendant was not placed in custody when he was initially restrained. The trial court characterized the seizure as a "brief detention." The trial court supported this ruling with facts from the record that weigh against an objective determination of custody.
For example, the trial court found that defendant was restrained for only a brief period of time. The record provides ample evidence supporting this conclusion. Officer Maddox responded to the collision at approximately 6:52 p.m. Officer Spates arrived at approximately 7:15 p.m. During this time, Officer Maddox checked for injured parties, then proceeded to question and search defendant before handcuffing him and placing him in the police car. Because of this small window of time, defendant was likely restrained only for a matter of minutes. The brief nature of this restraint tends to show that defendant was merely detained, not in custody.
The trial court also found that, when defendant was restrained, Officer Maddox was accompanied by no more than one other officer. Logically, the fewer the number of officers surrounding a suspect the less likely the suspect will be affected by custodial pressures. However, while this factor would normally weigh against a finding of custody, the argument is less persuasive under the present facts. Here, ...