People v. Bailey
| Decision Date | 14 June 2012 |
| Docket Number | E053496 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DEMARCUS BAILEY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of Riverside County. Robert E. Law, Judge. ) Affirmed as modified.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
This opinion addresses two trial court cases, which have been consolidated at this court. In the first trial court case, defendant and appellant Demarcus Bailey pled guilty to being a felon in possession of a firearm. (Former Pen. Code, § 12021 (a)(1) [eff. 2009].)1 Also in the first case, defendant admitted suffering five prior convictions, which resulted in prison terms. (§ 667.5, subd. (b).) The trial court granted defendant 36 months of formal probation, with the condition that he serve 360 days in the custody of the County Sheriff.2
In the second trial court case, a jury found defendant guilty of receiving stolen property. (§ 496, subd. (a).) Also in the second case, the trial court found true the allegations defendant suffered four prior convictions, which resulted in prison terms. (§ 667.5, subd. (b).) The trial court sentenced defendant to prison for a term of six years in the second case. The trial court then sentenced defendant to prison for a term of six years for violating probation in the first case. The trial court ordered the two six-year terms to run concurrently.
Defendant raises five issues on appeal. First, defendant contends the trial court erred in the second case by permitting the prosecutor to introduce defendant's pre-Miranda3 statements. Second, defendant contends the trial court erred by not reducing his conviction for receiving stolen property (§ 496, subd. (a)) to a misdemeanor. Third, defendant asserts the trial court erred by not striking one of the prison prior enhancements (§ 667.5, subd. (b)), in the first case. Fourth, defendant contends the abstract of judgment in the first case must be amended to correct two fines. Fifth, defendant asserts the security fee imposed in the first case must be reduced from $40 to $30. We affirm the judgment with directions.
FACTUAL AND PROCEDURAL HISTORY
In the first case, defendant admitted previously being convicted of a felony offense on June 5, 1997, and possessing a Beretta .25-caliber handgun on March 13, 2009.
We now turn to the second case. The victim in the second case (the victim) had a checking account at Citibank with her husband. At the end of May 2010 the victim ordered checks for the Citibank checking account. The checks never arrived in the mail. When the victim tried to make a $2 purchase, her checking account card was declined. The victim looked at the Citibank account online, and discovered the missing checks had been cashed at various stores and banks over a five-day period. The victim filed a police report related to the stolen checks.
Hemet Police Officer Brett Riley was on duty on July 4, 2010, at approximately 3:11 p.m. While on patrol in Hemet, Officer Riley saw a Toyota Camry; he conducted arecords check of the Camry's license plate and found the registration had expired in November 2009, but the car was displaying a current registration tag. The Camry was stopped when Officer Riley approached it. There were four individuals inside the car, and defendant was in the driver's seat. Officer Riley had the four individuals sit on the curb towards the rear of the car, while he searched the vehicle. None of the individuals were handcuffed while they sat on the curb.
Inside the car's glove compartment, Officer Riley found a checkbook containing two checks. The victim's name and her husband's name were printed on the checks inside the checkbook found in the car. Defendant's first name was written on the back of the checkbook. Officer Riley asked defendant about the checkbook. Defendant said he knew the victim and her husband, and they gave him the checkbook. However, defendant soon thereafter said an acquaintance of his knew the victim and her husband. Officer Riley arrested defendant, placed him in handcuffs, and transported him to the police station.
Officer Riley searched defendant at the police station. Inside defendant's wallet, Officer Riley found another check from the victim's checkbook. The check in defendant's wallet was marked as paid to the order of defendant, in the amount of $200 (although the amount only appeared in numerical form, it was not spelled out on the check), with the victim's husband's name on the signature line. The victim's husband's handwriting was not on the face of the check found in defendant's wallet.
After conducting the inventory search, Officer Riley read defendant his Miranda rights. Defendant waived his rights and spoke to Officer Riley.
After defendant waived his rights, he told Officer Riley that an acquaintance left the checkbook in the car approximately one month prior. Defendant said he wrote his name on the back of the checkbook, but then realized what he was writing on and stopped.
DISCUSSION
In defendant's written motions in limine, he requested that the trial court exclude any references to the statements he made during the traffic stop. Defendant argued he was detained by Officer Riley, when Officer Riley conducted a probation search of the vehicle, because the officer ordered defendant and the other individuals to sit on the curb, while Officer Riley and another uniformed officer were present. Defendant pointed out that, at the preliminary hearing, Officer Riley testified defendant was detained while he was sitting on the curb, although defendant was not handcuffed. Office Riley found defendant was driving with an expired license.
Defendant argued a reasonable person would not feel free to leave in such a situation, and therefore, defendant should have been given his Miranda rights before being asked about the checkbook. Defendant concluded his traffic stop statements to Officer Riley should be excluded.
During a hearing prior to the start of trial, the trial court found Thus, the trial court denied the motion.
Defendant contends the trial court erred by not suppressing the pre-Miranda statements defendant made during the traffic stop. We disagree.
(People v. Bejasa (2012) 205 Cal.App.4th 26, 35 [Fourth Dist., Div. Two].)
[Citations.] (People v. Bejasa, supra, 205 Cal.App.4th at pp. 35-36.) "While a reviewing court must apply adeferential substantial evidence standard to the trial court's factual findings, it must independently determine whether the defendant was in custody." (Id. at p. 38.)
As to the first factor, it does not appear defendant was formally arrested at the time of the checkbook question, since he was sitting on a curb waiting while Officer Riley searched the vehicle. Officer Riley did not order the four individuals to sit with their hands behind their backs, so it appears from the record that the encounter was more informal than formal, with no restraints on defendant's hands or arms.
Second, it does not appear the detention lasted for a lengthy period of time. The record reflects Officer Riley ordered defendant and the passengers out of the car, and then began searching it. When the officer discovered the checkbook, he asked defendant a question about it. There is nothing indicating the search took a prolonged amount of time or that there was a great delay between asking defendant to sit on the curb and asking defendant about the checkbook.
Third, Officer Riley asked defendant about the checkbook while defendant sat on a street curb. Thus, it appears defendant was in a public place, where people passing by could observe the actions of the two officers. The United States Supreme Court has concluded that being in a public location, such as a street, reduces the feeling of being in custody, because such a setting...
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