Filed 2/24/14 P. v. Hook CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B248089

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA085708)
         v.

CHARLES T. HOOK,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Mark S. Arnold, Judge. Affirmed in part and reversed in part.


         Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       A jury convicted defendant Charles T. Hook of grand theft auto (Pen. Code, § 487,
subd. (d)(1))1 (count 1) and unlawful driving or taking of a vehicle (Veh. Code, § 10851,
subd. (a)) (count 2). Defendant admitted having suffered seven prior prison terms
(§ 667.5) and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
       The trial court sentenced defendant to nine years in prison. The sentence consisted
of the upper term of three years in count 1, doubled to six years due to the prior strike
conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a consecutive three years
for three prior prison term enhancements (§ 667.5, subd. (b)). The trial court dismissed
four prior prison term enhancements under section 1385. The trial court also imposed a
nine-year sentence in count 2, which was stayed under section 654.
       Defendant appeals on the grounds that: (1) the trial court prejudicially erred by
denying his motion to suppress his statements that were obtained in violation of his Fifth
Amendment rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); and (2)
reversal of count 2 is required because he cannot be convicted for both unlawful driving
of a vehicle and grand theft auto based on the same act.
                                          FACTS
       On October 10, 2012, Jose Montani parked his 1995 blue Volvo on the street
approximately a half block from his Lawndale home. At one point during the evening he
went out to the car with his daughter to show her a gravestone marker he had acquired for
his mother’s grave. In order to open the trunk of the car, he had to open the driver’s side
door and open all of the locks. He left the keys in the closed driver’s side door as he
showed his daughter the marker and forgot to retrieve them before returning to his home.
He had a box of tools, various papers, and his mother’s handicapped placard inside the
car.
       On the following morning, his daughter-in-law telephoned to tell him that the
police had inquired if she owned a Volvo. She was confused because she had previously



1      All further references to statutes are to the Penal Code unless stated otherwise.


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owned a Volvo. She contacted her husband, who informed Montani about the car.
Montani saw that his car was not where he had left it. He had given no one permission to
take his car. Montani eventually got his car back. The papers, placard, and tools were
missing.
          Torrance Police Officer David Ortega and his partner, Officer Kevin High, were in
their patrol unit in the early morning hours of October 11, 2012, when they saw a Ford
with a burned-out license plate lamp. The officers activated the overhead light of the
patrol car to initiate a traffic stop. After making several turns, the car eventually stopped
in an alleyway. Officer Ortega checked the license plate number with police
communications. Before contacting the three occupants, he learned that the registration
for the vehicle was expired, even though the tag on the license plate was current. As a
result of this discrepancy, the officers attempted to find out more about the vehicle from
the driver.
          While Officer High spoke with the driver, Officer Ortega remained in the rear
observing the other occupants. The driver was a male, the front passenger was a female,
and the rear passenger was later identified as defendant. Officer Ortega spoke with
defendant, who told him they were in the alley because they were going to visit someone
who lived in an apartment complex there. After speaking with defendant, Officer Ortega
spoke with the driver, Clemente Delgado, near the patrol car and out of earshot of the
others.
          Officer Ortega began to hear conflicting stories. After speaking with Delgado,
Officer Ortega got defendant out of the car and asked him if he was there to pick up a
particular vehicle. Defendant said he was not, and he did not own a vehicle. Officer
Ortega searched defendant and found in his pocket a single Mercedes-Benz key and a set
of keys that included one generic car key. When asked why he had car keys, defendant
said he had found them and indicated they had been lying on the ground. Officer Ortega
went to search the adjacent parking lot to find a blue Volvo and located it. The generic
key from defendant’s pocket unlocked the door.



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       When Officer Ortega asked defendant why he had the key to that car, defendant
said it was a coincidence and could not offer an explanation. After speaking with
Delgado again and returning to defendant, defendant said that a friend had given him the
key and told defendant he had taken the vehicle. Defendant came to see if there was
anything in the vehicle that he could sell. He denied having driven it. The next time
Officer Ortega spoke with defendant, defendant said that a friend and his wife were in
Lawndale and saw a car with a set of keys hanging out. They took the keys, gave them to
defendant, and told him where the car was located. Defendant took the car and drove it
to the parking lot where the officer found it.
       A search of the Volvo yielded a green backpack. Defendant initially denied
ownership of the backpack but later admitted it was his. Inside the backpack, Officer
Ortega found a gold-colored watch and a ring. Defendant said he had borrowed the
watch and found the ring. A handicapped placard was found in the car in which
defendant was riding. It did not belong to any of the occupants.
       Officer Ortega recorded the last portion of his conversations with defendant, and
the recording was played for the jury.
                                       DISCUSSION
I. Denial of Motion to Suppress
       A. Defendant’s Argument
       Defendant asserts that, given the totality of the circumstances, his repeated
questioning by the officers over a period of 90 minutes about the car that the officers
believed was stolen amounted to a custodial interrogation, and defendant should have
been advised of his Miranda rights. Because he was not advised, his statements were
inadmissible. And since his statements were the only direct evidence that he took the
Volvo, the erroneous denial of his motion to suppress was prejudicial under Chapman v.
California (1967) 386. U.S. 18, 24.
       B. Hearing on Motion to Suppress
       Officer High testified that he and Officer Ortega stopped the car because of the
nonfunctioning license plate light. Because of the discrepancy between the registration

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and the tag, he had the driver, Delgado, step out of the car. Officer High asked Delgado
about the discrepancy, and Delgado had no explanation. Delgado said he had come there
to meet a friend in one of the adjacent apartment buildings, and so that the passenger,
defendant, could pick up a vehicle. While he spoke with Delgado, the passengers
remained in the vehicle.
       After Officer High spoke to Delgado, he had Delgado sit down on the side of the
alley. At that time, Officer Ortega contacted the passengers while they were still seated
in the car. The passengers were then told to sit down in the alley also. Delgado went to
talk with Officer Ortega, and Officer High stayed with the passengers. He was making
sure that they remained in the area and caused no harm to his partner. Officer Ortega had
defendant and Delgado travel back and forth between him and Officer High as he spoke
to them individually and out of earshot of the others. After all the conversations with all
three persons, defendant was arrested. The female was released, Delgado’s car was
impounded, and Delgado was cited for registration fraud, driving with a suspended
license, a faulty license plate light, and another count. The officers never drew their guns
during this encounter. Defendant was not handcuffed until he was arrested. Defendant
was outside, either standing or sitting, while the officers conducted their investigation.
       Officer Ortega also testified that he did not draw his gun during any part of his
contact with the defendant. The entire investigation lasted approximately one and one-
half hours, and defendant was arrested approximately 75 minutes into the encounter.
Defendant was not advised of his Miranda rights. Officer Ortega spoke with defendant
because Delgado indicated they were there to pick up a vehicle that belonged to
defendant. Defendant told Officer Ortega that he did not own a vehicle—he was there to
visit a friend. Officer Ortega spoke with defendant three or four times, and all of these
conversations added up to approximately 15 minutes. Defendant said he was on
probation for drugs, and he gave Officer Ortega consent to search his person. Officer
Ortega found the car keys at that point. After the last conversation, Officer Ortega
believed there was probable cause for arrest. Before being arrested, defendant was not
free to leave during the investigation of possible criminal activity. It took Officer Ortega

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approximately 10 minutes to locate the Volvo in the parking lot. He found the car before
he arrested defendant. Prior to arresting defendant he did not know if either of the
vehicles involved was stolen.
       Upon questioning by the court, Officer Ortega explained that during the 75
minutes between the stop and the arrest, the officers were trying to figure out why
defendant was trying to disassociate himself from the vehicle Delgado had mentioned.
When the Volvo was found, its license plate did not indicate that the car was stolen, and
sheriff’s deputies mistakenly contacted a relative of the owner rather than the owner and
were told that the vehicle had been sold, which led to some confusion. The officers
suspected that drugs in the vehicle might be the reason defendant was trying to distance
himself from it. With each subsequent step, there was more information, causing
furtherance of the investigation. Defendant gave a different explanation each time
Officer Ortega spoke with him, causing the officer to go back and forth between
defendant and Delgado.
       After hearing argument, the court ruled that the length of time defendant was
detained was reasonable based on what occurred in the field. During the 75 minutes
between the stop and the arrest, the officers were dealing with three different people and
conflicting statements. Merely because there was a detention did not mean there was
custody. The officers’ actions in investigating whether or not there was criminal activity
rising to the level of probable cause was reasonable. There were fewer officers than
suspects, defendant was not physically restrained, and there were no firearms displayed.
The court stated that the ultimate inquiry in determining whether a suspect is in custody
for purposes of Miranda is whether a formal arrest or restraint on freedom of movement
to the degree associated with a formal arrest occurred. Although there was an
interrogation, the People had demonstrated by a preponderance of the evidence that there
was no custody. Therefore, Miranda warnings were not required.
       C. Relevant Authority
       In Miranda, the United States Supreme Court held that a person questioned by the
police after being “taken into custody or otherwise deprived of his freedom of action in

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any significant way” must first “be warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed.” (Miranda, supra, 384 U.S. at
p. 444.) “Custody” in the Miranda context includes both actual custody and any situation
in which a person is deprived of his freedom of action in any significant way. (People v.
Mickey (1991) 54 Cal.3d 612, 648.)
       Whether a person was in custody for Miranda purposes is an objective test.
(People v. Leonard (2007) 40 Cal.4th 1370, 1400; People v. Stansbury (1995) 9 Cal.4th
824, 830; see also Berkemer v. McCarty (1984) 468 U.S. 420, 442.) “[T]he pertinent
inquiry is whether there was ‘“‘a “formal arrest or restraint on freedom of movement” of
the degree associated with a formal arrest.’”’ [Citation.]” (People v. Leonard, at
p. 1400.) In determining the latter, the relevant question is “whether a reasonable person
in defendant’s position would have felt he or she was in custody.” (People v. Stansbury,
at p. 830.) An officer’s undisclosed focus of suspicion is “not relevant” to the custody
determination. (Stansbury v. California (1994) 511 U.S. 318, 326.)
       Determining whether a defendant was in custody within the meaning of Miranda
is a mixed question of law and fact. (People v. Ochoa (1998) 19 Cal.4th 353, 401.)
“When reviewing a trial court’s determination that a defendant did not undergo custodial
interrogation, an appellate court must ‘apply a 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].” (People v. Leonard, supra, 40 Cal.4th at p. 1400.)
       D. Motion Properly Denied
       We conclude that defendant’s claim fails because he was not in police custody at
the time of the investigatory interviews, and, thus, there was no constitutional obligation
to advise him of his Miranda rights prior to obtaining his statements.
       Among the factors to be considered in determining whether a suspect was in
custody are: (1) whether the suspect was formally arrested; (2) the length of the

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detention; (3) the location of the interrogation; (4) the officer-suspect ratio; and (5) the
demeanor of the officer and nature of the questioning. (People v. Forster (1994) 29
Cal.App.4th 1746, 1753.) When determining whether a suspect was in custody, “it is the
totality of circumstances that is relevant; ‘no one factor is dispositive.’ [Citation.]” (Id.
at p. 1754.)
       Defendant was not placed under arrest until near the end of the encounter. As the
trial court noted, although the entire incident took 90 minutes, defendant was arrested
approximately 75 minutes into the investigation. During that time, two police officers
had to deal with three suspects. One asked questions while the other officer watched the
others, who were outside of the car and seated in the alley. This necessarily took some
time, and it also negated any coercion that might have been felt had defendant been
questioned by both officers. The fact that the questioning took place in an alley was of
Delgado’s choosing.
       Delgado and defendant gave differing accounts of their purpose for being in that
place, which gave the officers reasonable suspicion to detain them, especially since
Delgado had an expired license and a current registration tag on his license plate, despite
the fact that the registration had expired. Not only did defendant’s statements differ from
Delgado’s, but defendant changed his story three times. Defendant gave his consent to a
search of his person, and car keys from two different cars were found in his pocket,
although he said he did not own a car and was not there to pick one up. It took Officer
Ortega around 10 minutes to find the blue Volvo that Delgado had told him about, and
the key from defendant’s pocket opened the door. Officer Ortega again spoke to
defendant, who said it was a coincidence. Adding to the delays in the investigation was
the confusion caused by the sheriff’s deputies contacting Montani’s daughter-in-law, who
reported that she had recently sold a Volvo and not had one stolen. As Officer Ortega
stated, the situation was constantly unfolding and requiring additional investigation.
       During the entire time, neither of the officers drew his gun, and defendant was not
handcuffed or held in the police car during the investigation. The record indicates that



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Officer Ortega’s recording of a portion of the interviews showed that he was not
aggressive or coercive while questioning defendant.
       A person who is temporarily detained and subject to investigatory questioning is
not necessarily in custody for purposes of Miranda. (Berkemer v. McCarty, supra, 468
U.S. at pp. 438-440; People v. Forster, supra, 29 Cal.App.4th 1746, 1754.) The term
“custody” generally does not include a temporary detention where an officer asks a
moderate number of questions to determine a person’s identity and to try to obtain
information confirming or dispelling the officer’s suspicions. (People v. Farnam (2002)
28 Cal.4th 107, 180; see also Berkemer v. McCarty, at p. 439.) Indeed, Miranda itself
held that “[g]eneral on-the-scene questioning as to facts surrounding a crime or other
general questioning of citizens in the fact-finding process is not affected by our
holding. . . . In such situations the compelling atmosphere inherent in the process of in-
custody interrogation is not necessarily present.” (Miranda, supra, 384 U.S. at pp. 477-
478.) In the instant case, under the totality of the circumstances, a reasonable person
would not have felt coerced or restrained in defendant’s situation. Clearly, the restraint
on defendant’s freedom of movement was not that of a formal arrest. (People v. Leonard,
supra, 40 Cal.4th at p. 1400.) Because the officers were not required to advise defendant
of his Miranda rights prior to his arrest, his statements to the police during the
questioning in the alley were admissible at trial. The trial court accordingly did not err in
denying defendant’s motion to suppress his statements.
II. Conviction for Unlawful Driving or Taking
       Based on principles of double jeopardy, defendant argues that his conviction in
count 2 for the unlawful driving or taking of the blue Volvo must be reversed because it
is necessarily included within the conviction in count 1 for grand theft auto of the same
vehicle.
       As the People concede, unlawfully driving or taking a vehicle is a lesser included
offense of grand theft auto. (People v. Buss (1980) 102 Cal.App.3d 781, 784.)
Defendant’s case is not like that of People v. Malamut (1971) 16 Cal.App.3d 237, 242,
where there was a lapse of 62 days between the theft of the auto and the driving charge.

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There was no “substantial break” between the theft of the vehicle in this case and the time
when defendant was found near the car. (See People v. Kehoe (1949) 33 Cal.2d 711,
715.) A defendant may not be convicted of both an offense and a lesser included offense.
(E.g., People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Reed (2006) 38 Cal.4th
1224, 1227.)
       Accordingly, we order the conviction for the lesser offense, violation of Vehicle
Code section 10851, reversed. (People v. Ortiz (2002) 101 Cal.App.4th 410, 415.) Since
the sentence in count 2 was stayed, there is no need for remand.
                                     DISPOSITION
       The judgment in count 2 is reversed. In all other respects, the judgment is
affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                          BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.




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