Filed 9/20/16 P. v. Livingston CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C076712

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F03017)

         v.

SAVANNA LIVINGSTON,

                   Defendant and Appellant.




         Defendant Savanna Livingston stands convicted by a jury on three counts:
         Count one, driving under the influence of alcohol (DUI), in violation of Vehicle
Code section 23152, subdivision (a). (Except as otherwise set forth, statutory citations
that follow are to the Vehicle Code.)
         Count two, driving with a blood-alcohol level of .08 percent or higher in violation
of section 23152, subdivision (b).



                                                             1
       Count three, driving with a suspended license in violation of section 14601.2,
subdivision (a), a misdemeanor.
       The trial court found true that defendant had three prior DUI convictions and a
prior conviction for driving with a suspended license.
       On appeal, she contends the trial court prejudicially erred by admitting evidence of
defendant’s out-of-court statements and by denying her motion to suppress evidence
obtained in her pre-arrest interaction with the police at the hospital. Defendant also
claims the trial court prejudicially erred by failing to instruct the jury, sua sponte, on the
prosecutor’s misconduct while reading the stipulation. Further, if neither of these alone
are found to be sufficient, defendant claims that the cumulative effect of the previous two
errors require reversal. We conclude there was no error, and we affirm the judgment.

                                  FACTS AND PROCEEDINGS

       On the evening of April 17, 2013, defendant Savanna Livingston was alone,
sleeping or passed out in the driver’s seat of a Dodge Durango that was parked partially
on the sidewalk and partially in the street on Wymark Drive in Elk Grove. Defendant
smelled of alcohol and had an empty one-and-a-half liter bottle of wine and an empty 40-
ounce can of Steel Reserve beer in the back of the car on the passenger’s side. The keys
were in the ignition; however, the ignition was off. Police testified that defendant was
wearing her seatbelt but a witness testified that defendant was not. Police Officer
Nathaniel Lange arrived at the location of the car after 6:00 p.m. and fire personnel gave
him defendant’s purse containing her identification. Paramedics then removed defendant
from the vehicle and onto a gurney to take her to the hospital. At 6:28 p.m., Officer
Lange conducted a Preliminary Alcohol Screening (PAS) Device test in the back of the
ambulance before defendant was transported to the hospital. The results were a .397
blood-alcohol level. Officer Lange then went to the hospital. He found defendant on a
gurney in the emergency room and questioned defendant with a series of standardized


                                               2
questions as part of administering the PAS device. In response to his questions defendant
stated that she had not had anything to drink, had not been driving the car, had been
taking a nap and had been parked there for 10 to 15 minutes. At 7:26 p.m. a phlebotomist
drew defendant’s blood with a .40 percent blood-alcohol level result. A forensic alcohol
analysis expert testified that a person with a blood-alcohol level of .397 or .40 percent is
too impaired to operate a motor vehicle.
       Defendant waived formal arraignment and pleaded not guilty, denying the special
allegations. In limine, the trial court denied a motion to suppress defendant’s statements
to Officer Lange at the hospital. The jury found defendant guilty on all counts but left
unsigned a verdict form for an enhancement allegation to Count Two that defendant’s
blood-alcohol level was 0.15 percent or more (§ 23578). That allegation was dismissed.
The trial court found true the prior conviction allegations. Defendant was placed on
probation for five years with a condition that defendant serve 365 days in Sacramento
County Jail. Defendant appeals.

                                           DISCUSSION

       Defendant contends her conviction on counts one, two, and three must be reversed
because the trial court prejudicially erred (1) by admitting her statements made to law
enforcement at the hospital before she was advised of her constitutional rights, (2) by
failing to instruct the jury, sua sponte, on the prosecutor’s misconduct during the reading
of the stipulations, and (3) that if neither error on its own was sufficient to demonstrate
prejudice, then the cumulative effect of the two errors requires reversal. As noted earlier,
we conclude the trial court did not err.

                                               I

                                    Motion to Suppress

       Defendant contends the trial court prejudicially erred in denying her motion to
suppress the statements she made to Officer Lange while he interrogated her at the

                                               3
hospital without advising her of her rights pursuant to Miranda v. Arizona (1966) 384
U.S. 436 [16 L.Ed.2d 694] (Miranda). The prosecution used defendant’s obvious lie
about not having consumed alcohol as evidence of her consciousness of guilt. We
conclude the interrogation of defendant at the hospital was not custodial, so it was not
error to admit into evidence defendant’s pre-Miranda statements.
         “An interrogation is custodial, for purposes of requiring advisements under
Miranda, when ‘a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.’ [Citation.] Custody consists of a formal arrest
or a restraint on freedom of movement of the degree associated with a formal arrest.
[Citations.] When there has been no formal arrest, the question is how a reasonable
person in the defendant's position would have understood his situation. [Citation.]”
(People v. Moore (2011) 51 Cal.4th 386, 394–395 (Moore).)
         Several factors are useful in this inquiry: “(1) whether the suspect has been
formally arrested; (2) absent formal arrest, the length of the detention; (3) the location;
(4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the
nature of the questioning.” (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) Other
factors “are [(6)] whether the suspect agreed to the interview and was informed he or she
could terminate the questioning, [(7)] whether police informed the person he or she was
considered a witness or suspect, [(8)] whether there were restrictions on the suspect’s
freedom of movement during the interview, and [(9)] whether police officers dominated
and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’
whether they pressured the suspect, and [(10)] whether the suspect was arrested at the
conclusion of the interview.” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403–
1404.)
         “ ‘Whether a defendant was in custody for Miranda purposes is a mixed question
of law and fact. [Citation.] When reviewing a trial court’s determination that a
defendant did not undergo custodial interrogation, an appellate court must “apply a

                                               4
deferential substantial evidence standard” [citation] to the trial court’s factual findings
regarding the circumstances surrounding the interrogation, and it must independently
decide whether, given those circumstances, “a reasonable person in [the] defendant’s
position would have felt free to end the questioning and leave” [citation].’ ” (Moore,
supra, 51 Cal.4th at p. 395.)
       The trial court conducted a foundational hearing to determine whether to admit the
statements defendant made to Officer Lange at the hospital.
       At the hearing, Officer Lange gave the following testimony: He knew defendant
was already on DUI probation and gave her the PAS test on the scene in the ambulance
which recorded a .397 blood-alcohol level. He then started asking her questions that
were routine for a DUI investigation but was interrupted because the medical staff had to
leave so defendant could receive medical attention at the hospital. Officer Lange then
drove his own patrol car to the hospital, arriving around 7:00 p.m. He was the only
officer at the hospital during the time of questioning. Officer Lange stated that at no time
was defendant in his custody at the hospital. Further, Officer Lange never drew his
weapon, nor did he handcuff defendant, or advise her of her Miranda rights. Once he
found her in the emergency room, he proceeded to ask her routine questions that are
specific to the preliminary alcohol screening test.
       Officer Lange questioned defendant in the emergency room while she was on a
gurney. When asked if she had had any alcohol that day, defendant responded that she
had not. When asked where she had started driving, she responded that she did not drive.
The questioning was not accusatory, nor threatening. In total, the questioning lasted
approximately four to six minutes. Officer Lange never told defendant that she could not
leave, nor did he imply that she could not terminate the conversation at any point. While
defendant was restrained on the gurney, it was due to medical purposes and she was in
the custody of medical personnel.



                                              5
         The officer’s report stated he “arrested” defendant at 7:11 p.m., but he testified he
never took her into custody but instead merely wrote her a citation. When asked whether
he questioned defendant before or after writing her the citation, the officer said he did not
specifically recall but “[i]t would have been likely before.” He did recall that he asked
her the questions before the phlebotomist drew her blood at 7:26 p.m.
         In arguing the suppression motion, defense counsel conceded “there was no real
technical arrest” but nevertheless argued the officer could not say he asked the questions
before the “arrest, in quotes[.]”
         The trial court found the officer “arrested” defendant at 7:11 p.m., and the court
appeared to accept the officer’s testimony that he “likely” asked his questions before the
arrest. The trial court concluded that when Officer Lange questioned defendant at the
hospital that it was not custodial because “a reasonable person in defendant’s position
would not believe her freedom of movement was restrained to a degree associated with
formal arrest. In fact, she was being treated in the emergency room when Officer Lange
arrived and asked her a set of standard questions. If there was any restraint, it was at the
hands of medical personnel, not law enforcement. . . . Officer Lange’s questions were
standard questions and not formulated for the purpose of eliciting incriminating
responses.”
         Applying the factors used to determine whether an interrogation is custodial for
purposes of the Miranda advisement to the facts of the instant case, we conclude the trial
court did not err in denying defendant’s motion to suppress her statements to Officer
Lange.
         First, there was no “formal arrest or a restraint on freedom of movement of the
degree associated with a formal arrest.” (Moore, supra, 51 Cal.4th at pp. 394–395.) She
was not handcuffed or restrained by Officer Lange, but restrained on the gurney by
medical staff for medical purposes. The officer never took defendant into custody but
just wrote her a citation.

                                               6
       Second, the questioning lasted only four to six minutes and took place in an open
emergency room where she was being treated by medical personnel.
       Third, only one officer was present at the hospital and his questions were not
accusatory or intimidating.
       Fourth, the questions were standard investigatory questions that accompany the
Preliminary Alcohol Screening test; they were, again, not accusatory nor were they, in
and of themselves, intended to elicit an incriminating response.
       Fifth, though defendant was not informed she could terminate the questioning, the
nature of the questioning was such that a reasonable person would know they could end
the questioning at any time.
       Sixth, while the defendant’s movement was restricted, it was due to medical
treatment. She was in the “custody” of medical staff, not the police.
       Based on these facts, the trial court did not err in concluding that a reasonable
person in defendant’s position would have felt free to end the questioning and leave [or in
this case ask the officer to leave]; thus, it was not error to admit into evidence defendant’s
pre-Miranda statements to Officer Lange.
       Defendant cites case law finding Miranda violations where the interrogating
officer had probable cause to arrest the defendant before asking the questions. (People v.
Layton (1972) 29 Cal.App.3d 349; Commonwealth v. Whitehead (1993) 629 A.2d 142,
427 Pa.Super. 362.) However, federal and California courts have recognized that an
officer’s unarticulated plan to arrest the person has no bearing on the question whether
the person is in custody during the questioning, the only relevant question being how a
reasonable person in the defendant’s situation would have understood the situation.
(Berkemer v. McCarty (1984) 468 U.S. 420, 442 [82 L.Ed.2d 317]; People v. Vasquez
(1993) 14 Cal.App.4th 1158, 1163-1164.) Also unhelpful to defendant is her reliance on
People v. Bejasa (2012) 205 Cal.App.4th 26, where the first police officer at an accident
scene searched the defendant and found methamphetamine, handcuffed the defendant,

                                              7
told him he was being detained for a possible parole violation, and placed him in the back
of the police car. (Id. at pp. 30-31.) When additional officers arrived, police let the
defendant out of the car and removed the handcuffs. An officer conducted an interview
and field sobriety tests and told the defendant he was under arrest. Police did not advise
the defendant of his Miranda rights until he was at the police station. (Ibid.) The
appellate court found a Miranda violation but no prejudice. (Id. at pp. 35-39.) Police
took the defendant into custody by handcuffing him and placing him in the back of the
patrol car. (Id. at p. 38.) Although they released him for questioning, by then more
police officers had arrived, increasing custodial pressure on the defendant by a ratio of
seven officers to one suspect. (Id. at p. 39.) Here, there was no similar physical restraint
by police or custodial pressure by police.
       Even assuming for the sake of argument that the evidence should have been
excluded, any error was clearly harmless beyond a reasonable doubt, because the
remaining evidence overwhelmingly established defendant’s guilt beyond a reasonable
doubt. (People v. Villasenor (2015) 242 Cal.App.4th 42, 68-69.) The challenged
evidence -- defendant’s obvious lie to police about not having consumed alcohol -- was
used by the prosecution as evidence of her consciousness of guilt. However, other
undisputed evidence showed that she was alone, sitting in the driver’s seat of a vehicle
registered to her husband, a few blocks from her home, with the keys in the ignition, her
purse on the passenger seat, and empty alcohol containers in the back seat. She was
asleep or passed out around 6:00 p.m., smelled of alcohol, had a blood-alcohol level five
times the legal limit, and the vehicle was parked partly on the sidewalk, consistent with
having been driven there by an impaired driver.
       Defendant fails to show grounds for reversal based on denial of her suppression
motion.




                                              8
                                              II

                                 Prosecutorial Misconduct

       Defendant contends the prosecutor committed prejudicial misconduct while
reading the stipulation to the jury, and accordingly that the trial court erred prejudicially
when it failed to instruct, sua sponte, on this the prosecutor’s error.
       The prosecutor read the stipulations to the jury as follows:
       “On April 17th, 2013, the black Dodge Durango, being driven by the defendant,
with plate number 6 – Maybe – (Italics added.)
       “[Defense counsel]: May we approach? I apologize.”
       An unreported sidebar was held at the bench.
       “[Prosecutor]: Okay. The last stipulation, I apologize, is: On April 17th, 2013, the
black Dodge Durango that the defendant was seated in the driver’s seat of, with plate
number 636DP, was registered to the defendant’s husband.”
       Citing the above-italicized language in the prosecutor’s stipulation, defendant
contends the prosecutor committed prejudicial misconduct by misreading the stipulations
regarding the vehicle registration. We reject this contention.
       “ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]
As a general rule a defendant may not complain on appeal of prosecutorial misconduct
unless in a timely fashion -- and on the same ground -- the defendant [requested] an
assignment of misconduct and [also] requested that the jury be admonished to disregard


                                               9
the impropriety. [Citation.] Additionally, when the claim focuses upon comments made
by the prosecutor before the jury, the question is whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an objectionable
fashion.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 427; see also People v.
Carter (2005) 36 Cal.4th 1114, 1204.)
       In complaining on appeal that the prosecutor stated extraneous information of no
relevance, the defendant refers to the prosecution’s reading of the stipulation stating that
defendant was driving the car, instead of seated in the driver’s seat. Defendant argues
this was akin to a prosecutor making a statement of fact not in evidence, and the trial
court had a duty sua sponte to instruct the jurors that no such fact was stipulated and they
must disregard the prosecutor’s statement.
       Judging the prosecutor’s conduct by an objective standard (People v. Hill (1998)
17 Cal.4th 800, 822-823), we see no misconduct. Nothing in the record supports an
inference that the initial reading of the stipulation was prosecutorial misconduct, as
opposed to a mere mistake by the prosecutor or a drafting error by both sides that escaped
notice until it was read aloud. This is not at all like defendant’s cited authority, People v.
Kirkes (1952) 39 Cal.2d 719, where the prosecutor told the jurors that he knew even
before taking the case that the defendant was guilty and also told the jurors with no
supporting evidence that a witness delayed coming forward out of fear for her life. (Id. at
pp. 722-726.)
       Assuming misconduct, we may assume for the sake of argument that defense
counsel complained about it at the unreported sidebar. It was quickly corrected for the
jury, with apology, by the prosecutor. The record does not reveal any request by
defendant for the trial court to admonish the jury. Therefore, defendant has forfeited any
claim of prosecutorial misconduct.
       Defendant relies on inapposite authority for appellate review of any instruction
given, refused, or modified, that affects substantial rights, despite failure to object in the

                                              10
trial court. (Pen. Code, § 1259.) Here, there is no issue of any instruction given, refused,
or modified. Defendant cites inapposite authority discussing the trial court’s duty sua
sponte to instruct the jury to disregard highly prejudicial, minimally relevant evidence
admitted inadvertently. (People v. Rogers (2006) 39 Cal.4th 826, 864.) Here, defendant
does not claim or demonstrate any violation of the court’s duty to limit evidence and
argument for the ascertainment of truth. (Pen. Code, § 1044.) There is a duty sua sponte
for the trial court to recognize and correct all possible or arguable misconduct, and
defendant bore the responsibility to seek admonition if she believed the prosecution
overstepped its bounds. (People v. Visciotti (1992) 2 Cal.4th 1, 79-80.) The failure to
request an admonition forfeits the contention because any harm to the defendant could
have been corrected by an admonition. (Ibid.) We decline defendant’s request that we
exercise discretion to address the forfeited contention.
       Finally, even assuming defendant did not forfeit the claim of prosecutorial
misconduct, there is no basis for reversal because there is no likelihood the jury
misapplied the original language about defendant driving the car after hearing the
prosecutor apologize and make the correction that defendant was seated in the car. The
trial court instructed the jury that the prosecution had the burden to prove as to each count
that “defendant drove a vehicle,” by intentionally exercising physical control over it and
causing the vehicle to move, at least slightly. In closing argument to the jury, the
prosecutor said, “Basically, what’s in dispute here is whether she was driving or not. [¶]
. . . [¶] I have to prove that she drove.” The prosecutor did not rely on the stipulation to
prove that defendant drove the vehicle but instead relied on all the circumstantial
evidence that defendant drove the vehicle, including that she was sitting in the driver’s
seat of a vehicle registered to her husband (as stipulated) with the key in the ignition and
her purse on the front passenger seat, parked partly on the sidewalk in a manner
consistent with impaired status. The defense in turn asked the jury to believe, without



                                             11
any supporting evidence, scenarios such as maybe her husband left the car there and she
got into the parked car to take a nap after drinking alcohol at a nearby neighbor’s house.
       Defendant’s claim of prosecutorial misconduct fails.

                                             III

                                       Cumulative Error

       Defendant contends that any errors, when combined, rendered her trial
fundamentally unfair. Reversal, according to defendant, is therefore required.
       “ ‘[A] series of trial errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial error.’ ” (People
v. Cunningham (2001) 25 Cal.4th 926, 1009.) Here, there was no error and any assumed
errors were harmless, and viewed cumulatively, did not significantly influence the
fairness of defendant’s trial.

                                         DISPOSITION

       The judgment is affirmed.



                                                          HULL                , J.



We concur:



      RAYE                   , P. J.



      BUTZ                   , J.




                                             12
