(Super. Ct. Nos. 08F07055 & 10F03429)
The opinion of the court was delivered by: Duarte , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Is a car passenger who is removed at gunpoint, handcuffed, and made to sit on a sidewalk, in "custody" for Miranda purposes? (See Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].) Contrary to the trial court's conclusion, we hold the answer is "yes," and therefore the trial court should have suppressed incriminating statements defendant made under such circumstances. Because we conclude the error is not harmless beyond a reasonable doubt (see Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] (Chapman)), we reverse without reaching defendant's other contentions.
After a joint trial with two juries, defendant Anthony Wardell Colvin's jury convicted him of knowing receipt of a stolen vehicle (Pen. Code, § 496d, subd. (a)), but acquitted him of unlawfully taking that vehicle (Veh. Code, § 10851, subd. (a)). The trial court found six prior prison term allegations to be true and found defendant was in violation of his probation in another case (No. 08F07055). Co-defendant Fredrica Shamone Alexander's jury convicted her of both offenses; she received probation, and is not a party to this appeal. The court sentenced defendant to prison for nine years. Defendant timely appealed.
Facts at Suppression Hearing*fn1
About 2:00 a.m. on May 23, 2010, CHP Officers Manciu and Galley were on Business 80 when Manciu saw a Honda Accord without a rear license plate, and stopped it.
Manciu spoke with the driver, Alexander. She had no driver's license and said she was driving defendant home because he had been drinking, and it was defendant's car. Manciu saw a strip of paper taped to the rear window, which did not look like a valid registration. He also saw that the car's ignition had been "punched" and wires were hanging out. Defendant was wearing gloves. Based on the gloves, the apparent false registration, and the punched ignition, Manciu suspected the car was stolen.
Officer Manciu asked Alexander where the key was, and she said the key had bent as "they" put it in, and she showed him a key with a rubber sleeve from the glove box, claiming it was the car key. The key was not bent and appeared to be a house key. Manciu ordered Alexander out of the car, handcuffed her, and directed her to sit on the curb, telling her he was detaining her until he could positively identify her. From dispatch, Manciu learned the car was stolen.
At that point, Officers Manciu and Galley drew their guns, pointed them at defendant, and ordered him to show his hands and get out of the car; defendant complied.
Officer Manciu explained that he considered the stop to be a "modified felony vehicle stop" because only he and his partner were present. Manciu always drew his gun in a felony vehicle stop, and testified that "[w]henever there is a second person in the vehicle, I have always placed them under arrest." But he also testified he had both detained and arrested the second person and had arrested the passenger for a vehicle theft only on this occasion.
When defendant got out of the car, Officer Manciu re-holstered his gun, handcuffed defendant, and said he was being detained (not arrested) while the officer "investigate[d.]" Officer Galley re-holstered his gun, and Manciu sat defendant down on the curb, away from Alexander.
Officer Manciu asked for and obtained defendant's identification. When Manciu asked defendant whose car it was, defendant said it belonged to an unnamed "guy" he had met at a gas station at 24th and Florin, who gave it to defendant. Officer Manciu's conversation with defendant lasted a "couple minutes" and occurred within "five minutes or less" after the stop. Officer Manciu did not advise defendant of his Miranda rights because "I was trying to determine if they were innocent victims that came into possession of this vehicle maybe through purchasing it through a private party, or if they were maybe involved in the unlawful taking of this vehicle."
Officer Manciu then advised Alexander of her Miranda rights. She stated that she saw defendant standing by the car at a gas station at 24th and Florin, she asked him for a ride, and he agreed. She saw another man whom she could not identify walking away. She noticed the ignition was punched, and admitted using a screwdriver to start the car.
Officer Manciu then advised defendant of his Miranda rights (15 to 20 minutes after the traffic stop) and asked if he wanted to talk about the car. Defendant said he had nothing to say. Officer Manciu then arrested ...