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The People v. Gary Michael Allen

August 21, 2012


(Super. Ct. No. 11F03891)

The opinion of the court was delivered by: Robie , J.

P. v. Allen CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Gary Michael Allen guilty of receiving a stolen motorcycle. In bifurcated proceedings, defendant admitted two prior prison term allegations. The court sentenced him to state prison for five years.

Defendant appeals, contending the trial court prejudicially erred in refusing to exclude his non-Mirandized*fn1 statements. Defendant argues that he was in custody and subject to express and direct questioning when he gave statements which provided circumstantial evidence of his knowledge that the motorcycle was stolen and that without his statements, the evidence of his knowledge was limited to where and how the motorcycle was discovered. We will affirm.


About 10:37 a.m. on May 30, 2011, Sacramento County Sheriff Deputies Craig Harmon and Erik Hobbs were investigating community complaints about narcotics trafficking and prostitution occurring at a duplex located in North Highlands. There were four or five people inside the duplex. While the officers were there, defendant approached the front door of the duplex. Outside the front door, Deputy Harmon asked defendant what he was doing there and whether he was on probation or parole. Defendant admitted that he was on parole. Deputy Harmon handcuffed defendant, conducted a parole search of defendant's person, and found a vehicle key and a two-inch knife. Defendant was detained. Because the knife could possibly constitute a violation of parole, Deputy Harmon decided that he and his partner would have to contact defendant's parole agent for a determination of whether to place a parole hold on defendant.

Deputy Harmon then asked defendant how he had arrived. Defendant first said that he had driven his truck. After pausing, defendant then said his girlfriend had "dropped him off." When the deputy asked about the vehicle key, defendant said the key belonged to his truck but that he had recently sold it. When the deputy asked these questions, he did not know that there was a vehicle at the scene that was associated with defendant. Neither did he know that there was a stolen motorcycle in defendant's vehicle. The record does not reflect the duration of defendant's encounter with the deputy. At some point, after asking how defendant traveled to the scene, the deputy put defendant in the back of the patrol car.

Behind the duplex, Deputy Harmon found a truck which defendant admitted belonged to him. A DMV records check confirmed that the truck was registered to defendant. The deputies attempted to contact defendant's parole agent but because it was a holiday, they were "on hold for a long time." When Deputy Hobbs finally spoke with defendant's parole agent, Deputy Harmon was searching defendant's truck which revealed the stolen motorcycle. Defendant was arrested for receiving a stolen motorcycle.

At a hearing on the admissibility of defendant's statements, a trial court determined that defendant was in custody, having been placed in handcuffs and detained, and a reasonable person would believe that he was not free to leave: "I don't think there is any question that [defendant] was detained. He was in custody. And that was clear to me. [¶] But what the court's inquiring about is whether this was an interrogation."

Citing several cases including Rhode Island v. Innis (1980) 446 U.S. 291 [64 L.Ed.2d 297] (Innis), the trial court ruled defendant's statements were admissible, concluding defendant was not being interrogated when he gave his statements in that the questioning was not likely to elicit an incriminating response:

"In this case Officer Harmon testified that he observed the defendant with the key to a vehicle and that he did want to search the defendant's vehicle to determine if the vehicle contained contraband pursuant to his parole status; however, at the time of questioning the officer had no knowledge that the vehicle contained any contraband, and the officer had no reason to suspect that the vehicle contained contraband. The officer was simply going to conduct a search of the vehicle pursuant to the defendant's parole status, which he does in the normal course of duties.

"There is nothing about owning a vehicle that is incriminating. There is nothing about driving a vehicle ...

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