Filed 7/11/13 P. v. Stuberg CA1/1
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
v.                                                                   A136672
MARK OLIVER STUBERG,
                                                                     (San Mateo County
         Defendant and Appellant.                                    Super. Ct. No. SC075372)

         This is an appeal from a judgment of conviction in the Superior Court of San
Mateo County following a jury trial. It is authorized pursuant to Penal Code section
1237. Counsel for defendant has reviewed the file in this case and has determined there
are no meritorious issues to raise on appeal. She has complied with the relevant case
authorities. (People v. Kelley (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d
436.) She has also notified defendant of his right to file a supplemental brief, but
defendant has not done so. Upon independent review of the record, we conclude that no
arguable issues are presented for review and affirm the judgment.
         An information was filed in the matter on March 22, 2012. Defendant was
charged in count one with unlawful possession of a controlled substance (hydrocodone),
a violation of Health and Safety Code section 11350, subdivision (a); in count two, a
violation of Health and Safety Code section 11377, subdivision (a), possession of a
controlled substance (methamphetamine); and, in count three, the unlawful possession of
a device used to smoke a controlled substance, a pipe, a misdemeanor violation of Health
and Safety Code section 11364. These charges arose from defendant’s arrest on
November 13, 2011. The information also alleged three prior convictions for possession
of a controlled substance; an allegation precluding probation under Health and Safety
Code section 11370.

         Defendant pled not guilty to all charges and denied the enhancements alleged.
Before the commencement of the trial, the trial court dismissed the first two prior
allegations on motion by the district attorney.
         The jury trial began on September 17, 2012. At the close of the prosecution case,
the defense asked the trial judge to strike the testimony by one of the police officers.
Counsel focused on the statement by defendant to the officer regarding the presence of
methamphetamine in the car registered in Stuberg’s name as being a statement obtained
without Miranda.1 The district attorney maintained the remark was a spontaneous
statement by defendant. The trial court denied defendant’s motion to strike. He
concluded there was no Miranda violation under the totality of circumstances.
         On September 24, 2012, the jury found defendant guilty on all counts. The trial
court found the one prior allegation true. After the verdict, counsel for defendant waived
the right to a probation report and the court imposed sentence. The court granted formal
probation of three years on counts one and two, and directed defendant to participate in a
formal drug treatment program while on probation under Proposition 36. The sentence
on count three was suspended. Fines and fees were imposed by the court.
         On September 24, 2012, a notice of appeal was filed.
                                STATEMENT OF FACTS
         Officer Walsh of the South San Francisco Police Department was on duty on
November 13, 2011. At approximately 5:50 p.m., she was patrolling the area of 451
South Airport Boulevard. She noticed a Nissan minivan illegally parked in a
handicapped spot near the Bay Trail. A registration check of the van indicated it was


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    Miranda v. Arizona (1966) 384 U.S. 436.
                                              2
registered to defendant and that he was on probation with a specified search condition of
his vehicle and person. Exiting her vehicle, Officer Walsh walked along the Bay Trail
looking for Stuberg. She found a homeless camp and called for backup.
       The backup officer, Molyneux, arrived and joined Walsh in looking for defendant.
They found him sitting on a bench with another person. Defendant told the police he was
visiting friends in the area and that he was from Vallejo. While Walsh told Stuberg she
wanted to search his vehicle, defendant told her he was no longer on probation but would
allow her to pat search him. Nothing was found on his person. The officers walked
defendant back to his vehicle to check it out.
       Officer Walsh searched the car in the presence of defendant and Officer
Molyneux. Inside a backpack found on the front seat, Walsh found 15 prescription
bottles, many with defendant’s name on the label. Three other bottles found in the
backpack were for Vicodin, prescribed to “Robert Stuberg” and “Betty Stuberg,” the
deceased parents of defendant. Defendant advised Walsh he used the pills for relief if
other medications were not helpful. Each of the bottles contained Vicodin. The
prescriptions dated back to 1997, 1999, and 2001.
       Walsh then asked Stuberg if he had other items on his person. He remarked he
had a loaded pipe in his sock. A glass pipe containing a crystalline substance was found
which generated the charge of possessing paraphernalia.
       Officer Walsh engaged in further search of the van. Looking under the driver’s
seat, she found a black container with two baggies of a substance Walsh believed to be
methamphetamine. One of the baggies had a weight of 10 grams while the smaller one
weighed one gram. When Walsh told Stuberg she found suspected methamphetamine,
defendant responded he had smoked some of the drug that morning. He also said a judge
had told him he could possess methamphetamine if he had a prescription for the drug.




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       Mona Ten, a criminalist for the San Mateo Sheriff’s Forensic Laboratory,
examined the substances found in the van and confirmed the presence of hydrocodone.
She also found methamphetamine in the pipe and baggies.
       In the defense case, Stuberg claimed he had prescriptions for Desoxyn, a
pharmaceutical methamphetamine, and Adderall. These medicines had been prescribed
for defendant in 2009 by a psychiatrist. Between the date of the prescription and the
arrest, the doctor has passed away. The Vicodin medicines were prescribed for the
parents of defendant, with one parent dying in 2003 and the other 2005. Defendant used
the medications when he felt personal pain. Defendant acknowledged ownership of the
methamphetamine. He claimed he could legally possess the drug because Judge Dylina
of San Mateo County told him possession was appropriate if he had a valid prescription
for the drug.
       At trial, defendant presented no prescription allowing him to possess any of the
drugs found in the search of the car by Officer Walsh.
                                      DISCUSSION
       After the jury was sworn but before testimony was received, the defense presented
an Evidence Code section 402 motion challenging defendant’s statements to the police.
Out of the jury’s presence, each side made their proffer on the issue. While defendant’s
counsel characterized the conversation at the scene as an interrogation, the district
attorney argued Officer Walsh in the presence of Officer Molyneux and Stuberg simply
announced what she had found during the search of the van. After stating she had found
methamphetamine, the defendant volunteered that he “didn’t think it was very good
methamphetamine because he really did not feel the effects after smoking it earlier that
day. That it was legal . . . to have the methamphetamine. That he had been prescribed
other medications that contain[] some of the same ingredients the methamphetamine had
in it. And that he said when he was in court in the past the judge had told him that he
would take his medications in any way he wanted.”
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      The trial court determined Stuberg was detained at the time Officer Walsh
disclosed what she had found. Because defendant was not legally in custody, the court
stated Miranda warnings were not needed and the statements were admissible.
Defendant did not testify in the 402 hearing, nor did his counsel submit any written
papers dealing with the legal issue. The prosecution did provide a written motion on the
admissibility of the comments by defendant.
      The trial court, at the end of the government’s case, ruled the statements were not
made in violation of Miranda.
      Statements by a suspect made spontaneously and not in response to police
interrogation are admissible despite a failure to give Miranda warnings. (Miranda v.
Arizona, supra, 384 U.S. 436, 478.) Casual conversation by an officer with an arrestee
not intended to elicit incriminating answers does not implicate Miranda. (People v.
Bradford (1997) 14 Cal.4th 1005, 1034–1035.) The warnings only apply when police
conduct an actual interrogation or engage in conduct reasonably likely to induce a
response. (People v. Gamache (2010) 48 Cal.4th 347, 387–388.) In this case, the trial
court found there was nothing presented suggesting an interrogation by police.
Furthermore, defense counsel did not contend the police conduct was reasonably likely to
trigger responses by Stuberg.
      It is also true that when the police are simply conducting an investigation, a
valuable tool they use is general on-the-scene questioning. Such questioning is designed
to clarify the circumstances. (People v. Haugland (1981) 115 Cal.App.3d 248, 256.) A
temporarily detained suspect is not a person under arrest. (Berkemer v. McCarthy (1984)
468 U.S. 420, 442; Stansbury v. California (1994) 511 U.S. 318, 322–323.) Under the
circumstances discussed, Miranda warnings were not necessary here.
      A review of this record reflects that other than defendant’s oral motion to exclude,
no other motions challenging the search and seizure were presented. Based on this


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record, we find the search was a valid probation search and investigation. No motion to
suppress was presented in this matter.
       A review of this record otherwise supports the result. The evidence presented
supports the verdicts of the jury. Defendant was professionally represented by counsel.
The court’s sentence of probation and several conditions were correct in light of the
history of drug usage. We can find no error in this matter. We affirm the judgment.

                                                 __________________________________
                                                 Dondero, J.

We concur:


__________________________________
Margulies, Acting P. J.

__________________________________
Sepulveda, J.*




* Retired Associate Justice of the Court of Appeal, First Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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