Filed 5/20/13 P. v. Cobb CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062364

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE319550)

JOSHUA LEE COBB,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Allan J.

Preckel, Judge. Affirmed.



         Charles R. Khoury Jr., 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, Melissa Mandel and Stephanie H.

Chow, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Joshua L. Cobb of unlawful possession of a billy club (Pen.

Code,1 § 22210). Cobb was granted probation subject to certain conditions.

       Cobb appeals contending the trial court erred in admitting certain statements made

by Cobb in violation of Miranda v. Arizona (l966) 384 U.S. 436 (Miranda). We are

satisfied the trial court correctly admitted the challenged statements and affirm.

                                 STATEMENT OF FACTS

       At about 3:25 a.m. on March 27, 2012, a San Diego Sheriff's Deputy entered the

parking lot of a 7-11 store in Lakeside. The deputy saw Cobb in the parking lot carrying

a 24-inch long piece of pipe in his left hand. Cobb had a beer bottle upside down in his

right hand. When Cobb saw the patrol car he moved the pipe more in line with his body

in an apparent attempt to hide it from view.

       The deputy got out of his car, drew his weapon and ordered Cobb to get down on

the ground. Cobb got down on the ground in a prone position. The deputy asked Cobb

why he was carrying the pipe to which Cobb responded "to defend himself" and stated

his friend had "gotten jumped." Cobb was then placed under arrest, handcuffed and

placed in the back of the patrol car.

       While the deputy was outside of the car, filling out paperwork, Cobb leaned

forward and said to the deputy, "It's Lakeside, homie. You know how it is out here. Can

you have some discretion?" The deputy did not respond.




1      All further statutory references are to the Penal Code unless otherwise specified.
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                                       DISCUSSION

                                Alleged Miranda Violation

       Prior to jury selection, Cobb, who was then representing himself, filed a written

motion to suppress evidence on Fifth Amendment grounds. Although the motion is

somewhat rambling, it appears to challenge the admissibility of his statements to the

deputy on Miranda grounds. The trial court deferred ruling on the motion until testimony

was presented. The court directed the prosecutor to lay an appropriate foundation for the

statements. Thereafter, during the trial the deputy testified to the statements set forth

above without any objection. Cobb now contends the statements were admitted in

violation of Miranda.

                                              I

                                 STANDARD OF REVIEW

       In reviewing a challenge to evidence based on Miranda we first review the factual

basis for the trial court's decision under the substantial evidence standard of review.

There we defer to the express or implied findings of the trial court. (People v. Glaser

(1995) 11 Cal.4th 354, 362.) Once the facts have been determined we review the

decision to admit the statements under the de novo standard of review. Under that

standard we independently determine whether the statements were lawfully admitted into

evidence. (People v. Weaver (2001) 26 Cal.4th 876, 918.)

       The application of the above standard of review is complicated somewhat because

Cobb failed to object when the testimony was actually given. Indeed part of the



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testimony was elicited on cross-examination by Cobb. We note the respondent has not

raised the issue of forfeiture so we will resolve the issue on the record before us.

                                              II

                                   LEGAL PRINCIPLES

       When a person is subjected to custodial interrogation for the purpose of eliciting

incriminating statements, the person must first be warned of the rights established in

Miranda, and make a knowing and intelligent waiver of those rights. The sine qua non of

the Miranda warning and waiver system, however, is the presence of custody. (People v.

Mosley (1999) 73 Cal.App.4th 1081, 1088; People v. Mickey (1991) 54 Cal.3d 612, 648.)

Thus the first question to be decided is custody.

       Where a person has been placed under arrest, that person is in custody. However,

temporary detention, although a seizure under the Fourth Amendment, is not the

equivalent of custody. (Berkemer v. McCarty (1984) 468 U.S. 420, 442.) During a

detention, police may ask a reasonable number of questions in order to determine whether

or not the suspect should be arrested. Such limited inquiries do not elevate a detention

into custody. (People v. Farnam (2002) 28 Cal.4th 107, 169.) The question is whether

the detention has become so restrictive, or lasted so long, that a reasonable person would

believe that he or she is in custody.

       Once a person is in custody, the question arises as to whether the person is being

interrogated. Voluntary statements made without interrogation do not fall within the

Miranda protective system. (Rhode Island v. Innis (1980) 446 U.S. 291, 299-300;

Miranda, supra, 384 U.S. at p. 478.)

                                              4
                                            III

                                        ANALYSIS

       Undoubtedly Cobb was forcibly detained by the deputy. The deputy displayed a

firearm and ordered Cobb to the ground. However, this occurred in a night time

encounter between the deputy and Cobb who was armed with a weapon. Almost

immediately the deputy inquired as to the reason Cobb had the pipe, which may have

been a lawful reason. While Cobb was not free to leave, by definition anyone detained is

not "free to leave." As the court in Berkemer v. McCarty, supra, 468 U.S. at page 442,

noted Miranda advisements are not immediately required when a person is detained. In

that case the defendant was not free to leave when first questioned. It was only when the

suspect was placed under arrest that the court found the Miranda requirements had been

triggered.

       In the present case, it is clear that the deputy's questions were asked before Cobb

was arrested and prior to Cobb being placed in custody. Accordingly, a Miranda warning

was not required at that point.

       The second set of statements made by Cobb occurred while he was handcuffed

and seated in the patrol car. The undisputed testimony at trial was that the deputy did not

ask Cobb any question which prompted his response.

       In Rhode Island v. Innis, supra, 446 U.S. 291, the court recognized that certain

police actions might be sufficiently compelling on a suspect to become a substitute for

interrogation. In that case the police officers had engaged in discussions among

themselves, in the presence of the suspect, about their concerns for the safety of children

                                             5
in a nearby school if they were unable to find the missing murder weapon, a shotgun.

After the statements by police, Innis directed police to the location where he had left the

weapon. Even then the court concluded the remarks were not made with the actual

intention of triggering a response, nor did they have reason to believe Innis would

respond to their remarks.

       Here, the testimony at trial clearly shows the deputy did not ask postarrest

statements or make any remarks that might have triggered Cobb's statements.2 Thus, we

are satisfied that the court correctly admitted Cobb's statements into evidence.

                                      DISPOSITION

       The judgment is affirmed.




                                                                  HUFFMAN, Acting P. J.

WE CONCUR:



                      HALLER, J.


                         IRION, J.




2      In his opening brief, Cobb makes numerous references to the preliminary hearing
transcript. However, the decision on admissibility of the statements in this case was
based solely on the evidence adduced at trial. Accordingly, we ignore the references to
the preliminary hearing transcript.
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