Trial Court: Santa Clara County Superior Court No.: C1101892 Trial Judge: The Honorable Andrea Y. Bryan
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
(Santa Clara County Super. Ct. No. C1101892)
Defendant Yvette Franzen was found guilty by a jury of selling methamphetamine. On appeal she contends that the trial court erred by admitting evidence of an incriminating statement she made to a police officer. She also contends that the court should have sustained her hearsay objection to evidence that a website identified her as the owner of a cell phone used in the sale transaction. We conclude that the trial court could properly find that defendant's statement was not the product of interrogation, but that the court erred by admitting the evidence from the website under the "published compilation" exception to the hearsay rule. However we do not believe the error in admitting this evidence is likely to have affected the verdict. Accordingly we will affirm the judgment.
Detective Mark Barry of the Santa Clara Police Department testified that in January 2011, he posted several advertisements on Craig's List expressing a desire to purchase methamphetamine. He received a "call," apparently meaning a text message, from a number with a 503 area code, indicating that the caller had methamphetamine for sale. Detective Barry did not succeed in arranging a purchase at that time, but continued to send messages expressing interest, and on March 2, he received a reply expressing willingness to make the sale. Detective Barry requested an "eightball," meaning one-eighth of an ounce, or 3.5 grams. Through an exchange of text messages and, apparently, voice conversations with a male identifying himself as "Shannon," he negotiated a price of $250, which included a $25 delivery charge, since the methamphetamine was "coming from San Francisco."
Detective Barry subsequently made delivery arrangements with another male, identifying himself as "Joe," at the same 503 number. Initially the transaction was to occur on March 2 at a coffee bar, but it did not go through that night. The detective suggested, and it was agreed, that the purchase take place the next day at an apartment complex in Santa Clara that police had used for such transactions in the past. At around one that afternoon the detective received a call from a male, apparently "Joe," from a phone with a number in the 650 area code, saying that he would meet the detective at the specified address at 3:30 p.m. Detective Barry testified that he then determined "who that cell phone belonged to" by using "a tool that the police department uses," i.e., "an internet website called Entersect." The number "came back to Yvette Franzen." He received additional messages from that number, which were "[b]asically, just trying to get the directions" to the meeting place. He got a call saying the sellers would arrive and wait for him in a blue Honda Civic with black rims. The caller confirmed that the detective "had the money," and the detective sought assurances "that the weight was going to be correct; that I wasn't going to be light," which was "street language for making sure they weren't going to short me for the amount of drugs I was going to be buying."
At some point Detective Barry received a call from "Joe" saying that he was at the arranged location. Detective Barry arrived there around 3:15 p.m. He saw the blue Honda Civic parked in a carport by itself. He called the seller, presumably at the 650 number, and a female answered, saying, "We are here," and asked his location. After they spoke for perhaps 10 seconds, he said, "Okay, I see you." He walked to the Honda and approached the passenger side of the car, where defendant was sitting. He said "Hi" and "basically, 'Are you Joe?" to which the driver, later identified as Jeffrey Thomas Umbertas, said, "Yes." Defendant said, "Why don't you get in the back," and started to move her seat forward so the detective could enter the two-door vehicle. A department policy forbade him to comply with this suggestion, so he circled to the driver's side, where he and Umbertas eventually consummated the sale of a substance later confirmed to be methamphetamine.
After talking to the occupants of the car for another 30 or 45 seconds, Detective Barry "initiated the bust signal." Other officers "who were at prearranged locations in the complex came in and arrested both subjects." After the arrest defendant was found to be carrying a cell phone in her bra. Detective Barry "pulled up the phone number on that phone"; it matched the 650 number with which he had been communicating that day.
Defendant was charged with (1) transportation, sale, or distribution of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); (2) possession of controlled substance paraphernalia, to wit, an opium pipe (Health & Saf. Code, § 11364); and (3) using and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). After the close of evidence she entered pleas of no contest to the second and third counts. The jury returned a guilty verdict on count 1. The trial court imposed a sentence of two years in prison, but suspended execution and placed defendant on probation with conditions including one year in county jail. Defendant filed this timely appeal.
Officer Bill Buckleman testified that he was assigned to pick up defendant at the site of the arrest and transport her to a temporary holding facility at the police department. When he picked her up she was in handcuffs. Before placing her in his car he conducted a search for weapons or drugs. He saw a phone on the left side of her brassiere, but left it there because it did not pose a threat to his safety. When they arrived at the holding facility, she remained in handcuffs while he seated her in a chair and began to ask her some medical questions as part of the booking process. As she sat there "her phone began to ring." He told her he would "let her get the phone after I was done questioning her and after the handcuffs were taken off." She said, "It's probably the guy looking for his money." He said, "What guy?" She replied, "The guy that gave my friend the drugs to sell, I guess."
Defendant contends that the court erred in admitting this testimony because her statements to Officer Buckleman were obtained in violation of the Miranda rule. (See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) She raised this objection in writing below, leading to a hearing under Evidence Code section 402. When asked at the hearing to explain the question he put to defendant the officer said, "It seemed like rhetorical--I mean, she said: 'It must be that guy.' [¶] So, I was, 'What guy?' She was talking to me, so I was instinctively just saying, 'What guy?' " At the conclusion of the hearing the court ruled defendant's statement admissible, finding that it had not been the product of custodial interrogation: "The officer was merely asking the defendant some administrative questions; most likely that would result in how she was going to be housed in the facility. [¶] In terms of cell phones, cell phones are everywhere. Two of them went off during jury selection in this process. And the court is satisfied that the defendant's statement was spontaneously made. [¶] The officer's follow-up question, 'What guy,' was not intended to elicit an incriminatory response. Certainly, it wasn't anything that was probing. It was mainly conversational. [¶] And, also, the defendant's statement was made voluntarily. [¶] Therefore, the statement is admissible."
Here as below the pivotal issue is whether Officer Buckleman's question, "What guy?" constituted "interrogation" for purposes of the Miranda rule. "In reviewing the trial court's denial of a suppression motion on Miranda-Edwards grounds, 'it is well established that 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.] To the extent mixed questions of fact and law are present, they are reviewed de novo if predominantly legal and for substantial evidence if predominantly factual. [Citations.]" (People v. Gamache (2010) 48 Cal.4th 347, 385 (Gamache).)
In Miranda, supra, 384 U.S. 436, 444, the Supreme Court prescribed "procedural safeguards . . . to secure the privilege against self-incrimination" to persons exposed to police questioning. The "safeguards" include the now-famous Miranda warning, which notifies a defendant of the right to remain silent, the risk that anything he says may be used against him, the right to an attorney, and the right to an appointed attorney if he cannot afford to retain his own. (See id. at pp. 467-473, 479.) It is undisputed that no such warning was given to defendant before she made the incriminating statement at issue here. The admissibility of the statement therefore turns on whether the statement "stemm[ed] from custodial interrogation." (Id. at p. 444.) Since defendant was concededly in custody when she made the challenged statement, the pivotal question is whether the statement was the product of "interrogation."
The California Supreme Court has rejected claims that Miranda is violated where a defendant volunteers incriminating statements as part of a "casual conversation" (People v. Lewis (1990) 50 Cal.3d 262, 274) or in response to " 'neutral inquir[ies]' made for 'the purpose of clarifying [statements] or points that [the officer to whom a confession is volunteered] did not understand' " (People v. Ray (1996) 13 Cal.4th 313, 338 (Ray), quoting People v. Claxton (1982) 129 Cal.App.3d 638, 647). Certainly such conversations or inquiries do not satisfy the conception of "interrogation" as commonly used and understood. While any question is "interrogative" in a purely grammatical sense, to "interrogate" in ordinary usage means not merely to pose an inquiry to a person but rather "to question [him] formally or systematically." (Webster's 10th Collegiate Dict. (1999) p. 612; see Oxford English Dict.
view/Entry/98260> [as of Oct. 2, 2012] ["To ask questions of, to question (a person), esp. closely or in a formal manner; to examine by questions."].) Therefore, "just as custodial interrogation can occur in the absence of express questioning [citation], not all questioning of a person in custody constitutes interrogation under Miranda. [Citations.]" (Ray, supra, 13 Cal.4th at p. 338.)
In Ray, the defendant was serving time in a Michigan prison when he expressed a desire to talk about his past. (Ray, supra, 13 Cal.4th at pp. 327, 333.) He was put in touch with a prison investigator to whom he "volunteered his involvement in several crimes," including a fatal shooting outside a Bakersfield bar. (Id. at p. 327.) He explained that the crimes "would otherwise remain unsolved," and that since a co-participant had died he "had been reading the Bible and wished to atone for his mistakes," and he "expressed concern that an innocent person might be accused of the crimes." (Ibid.) The investigator occasionally interrupted defendant's account "to interject 'yeah' or 'okay,' to repeat a statement defendant had just made, or to ask defendant about an ambiguity in his account." (Id. at p. 334, fn. omitted.) His questions ...