People v. Bejasa

• Decision Date: 19 April 2012
• Docket Number: No. E051308.,E051308.
• Citation: 12 Cal. Daily Op. Serv. 4280,205 Cal.App.4th 26,2012 Daily Journal D.A.R. 4981,140 Cal.Rptr.3d 80
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Lee BEJASA, Defendant and Appellant.

12 Cal. Daily Op. Serv. 4280

140 Cal.Rptr.3d 80

2012 Daily Journal D.A.R. 4981

205 Cal.App.4th 26

The PEOPLE, Plaintiff and Respondent,

v.Michael Lee BEJASA, Defendant and Appellant.

No. E051308.

Court of Appeal, Fourth District, Division 2, California.

April 19, 2012.Certified for Partial Publication.*

Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Christine Levingston Bergman and Marissa A. Bejarano, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

KING, J.

I. INTRODUCTION

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 Miranda¹ warnings.

III. DISPOSITION

Defendant's conviction is affirmed. Following remand, the court shall hold a new sentencing hearing to determine, in its discretion, whether to impose concurrent or consecutive sentences as to counts 1 and 2. Regardless of how the court exercises such discretion, the court shall direct that the sentence on count 2 be stayed pursuant to Penal Code section 654. The trial court is directed to amend the minute order and the abstract of judgment to reflect the stay of the sentence on count 2, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: RICHLI, Acting P.J., and CODRINGTON, J.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.B.

1. Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ( Miranda ).

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),² as well as transporting a controlled substance (count 2). ³ Defendant also pled guilty to driving without a license (count 3). ⁴ Following a bifurcated court trial, the court found true allegations of prior convictions and two prior strike convictions.⁵ 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.

II. DISCUSSION

A. Motion to Suppress Defendant's Statements Made Prior to Miranda Warnings1. 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.⁶

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...