Filed 2/20/14 P. v. Williams CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE


THE PEOPLE,                                                          B244563

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA096709)
         v.

JOSHUA CLIFFORD WILLIAMS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce
F. Marrs and Steven D. Blades, Judges. Reversed with directions.
         Michael Allen, 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, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, and Jonathan J. Kline, Deputy Attorney General,
for Plaintiff and Respondent.
                                 _________________________________
       Defendant Joshua Clifford Williams appeals from the judgment entered following
a jury trial in which he was convicted of evading a peace officer by driving in a willful or
wanton disregard for the safety of persons or property in violation of Vehicle Code
section 2800.2, subdivision (a).
       Defendant contends the trial court improperly denied his motion to exclude his
statements to a California Highway Patrol (CHP) officer as obtained in violation of
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602] (Miranda).
       We conclude the trial court erred by denying the motion to exclude defendant’s
first statement, which was the product of custodial interrogation without a Miranda
advisement. With respect to defendant’s second statement, which followed a Miranda
advisement but was made soon after the original statement, at the same location, and
under questioning by the same officer, the trial court did not address or apply Missouri v.
Seibert (2004) 542 U.S. 600 [124 S.Ct. 2601] (Seibert), and did not consider or make any
of the findings required under Seibert. The record is inadequate for this court to make
such findings, were we so inclined. We are thus unable to determine whether defendant’s
second statement was properly admitted and therefore conditionally reverse the judgment
and remand for a new hearing on defendant’s motion to exclude his second statement.
       Defendant also requests that we review in camera proceedings the trial court
conducted after granting his motion for peace officer discovery pursuant to Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess). After reviewing the record, we
conclude the trial court did not err in relation to that motion.
                                     BACKGROUND
       About 11:00 p.m. on January 13, 2012, CHP Sergeant Tannon Brown saw a
Chrysler and a BMW driving alongside one another on the 60 Freeway near the City of
Industry. Brown paced the vehicles for about three-quarters of a mile and determined
that both vehicles were going about 98 miles per hour. Brown turned on his patrol car’s
siren and flashing red, blue, and yellow lights, caught up to the speeding cars, and
straddled the lanes so his car was partially behind each of them. Both cars slowed to



                                               2
about 65 miles per hour, but they did not move toward the right. Using his patrol car’s
loudspeaker, Brown repeatedly told the drivers of the two cars to exit at the next off-
ramp. The Chrysler moved toward the right and slowed, but the BMW continued to
drive in the second lane at the same speed. Brown moved behind the BMW and turned
the siren back on. The BMW began to move toward the right side of the freeway.
Brown dropped back behind the Chrysler and, using the loudspeaker, directed the driver
of the Chrysler to accelerate to catch up to the BMW. As the distance between Brown’s
car and the BMW increased, the BMW accelerated and drove away.
       Brown chased the BMW at a distance, saw it exit the freeway at about 120 miles
per hour, and followed it. After it left the freeway, the BMW traveled through a
residential area at speeds between 75 and 100 miles per hour. It also ran a stop sign.
       Brown pursued the BMW to a cul-de-sac, where it had stopped before Brown
arrived. Brown and his partner approached the BMW with their guns drawn. Brown
ordered defendant, who was in the driver’s seat of the BMW, to get out of the car with
his hands up. Brown searched defendant for weapons and asked defendant what he was
thinking. Defendant replied, “‘I wasn’t. I was scared. I already got two tickets and I
can’t get another ticket.’”
       Brown arrested defendant, handcuffed him, and placed him in the backseat of the
CHP patrol car. Brown read defendant his Miranda rights and defendant said he
understood his rights. Brown asked defendant why he “ran from” Brown. Defendant
reiterated that he was scared, he had two prior tickets, and he could not get another ticket.
Defendant also said he was not sure whether Brown was pulling over defendant’s car or
the Chrysler, so he continued driving, but started to pull over when Brown pulled in
directly behind him. Defendant stated he knew that it was a CHP car behind him and
knew he was supposed to pull to the side when he saw red lights from an emergency
vehicle behind him. After Brown stated that defendant had exited the freeway at over
100 miles an hour, he asked defendant how fast he was going when he exited the
freeway. Defendant said, “‘I don’t know. A hundred.’” Upon further questioning,



                                              3
defendant said he thought he was going 80 or 90 miles per hour down the street with the
stop sign and that he drove into the cul-de-sac “‘to hide’” from Brown.
       Defendant’s friend Ebimobowei Dick testified that he was defendant’s front-seat
passenger when defendant was arrested for the charged offense. The people in
defendant’s car and the people in the Chrysler were on their way to a club together. A
“police” car got behind the Chrysler and defendant pulled to the right, but the police car
“slowed all the way down” and remained behind the Chrysler. Dick testified, “[W]e
didn’t know who he was pulling over. So we tried to pull over and he didn’t pull over
with us. And . . . we just continued to drive like we didn’t get pulled over.” Dick did not
hear any announcement over a loudspeaker by the police officer. Defendant drove on,
but they wanted to see if their companions in the Chrysler were okay, so they got off the
freeway, intending to get back on going the opposite direction. Dick did not know that
the police car was pursing them and defendant said nothing about trying to get away from
the officer. Defendant made a wrong turn and the police car came upon them “out of
nowhere” in the cul-de-sac. Dick thought defendant was driving about 35 miles per hour
when he got off the freeway.
       The jury convicted defendant of evading a peace officer in violation of Vehicle
Code section 2800.2, subdivision (a). Defendant admitted two allegations that he had
served prior prison terms within the scope of Penal Code section 667.5, subdivision (b).1
The trial court sentenced defendant to an aggregate term of four years in prison.
                                       DISCUSSION
1.     Denial of defendant’s Miranda motion
       Before trial, defendant sought to exclude both the statement he made to Brown
before Brown advised him of his rights pursuant to Miranda and the statements he made
after Brown read him the Miranda advisement. Judge Marrs conducted an evidentiary
hearing, then denied the motion.


       1   Undesignated statutory references are to the Penal Code.


                                              4
      Defendant contends the trial court erred by denying his motion because his initial
statement was made without Miranda warnings and in response to custodial
interrogation, and his subsequent postwarning statement was tainted by the initial
Miranda violation.
a.    Evidence presented at hearing on Miranda motion
      Brown testified that he observed defendant speeding on the freeway, then detained
him on Fernfield Drive in Montebello. Brown and his partner, Jeff Beam, approached
defendant’s car with their guns drawn. It was “a high-risk felony stop.” Brown ordered
defendant to get out of his car and to put his hands on the hood of the CHP car. While
defendant was standing next to the front fender of the CHP car, Brown asked him,
“‘What were you thinking?’” Defendant replied, “I wasn’t. I was scared. I already got
two tickets. I can’t get another one.’” Defendant was not yet in handcuffs, and Brown
and Beam were the only two officers present. Brown’s question and defendant’s
response occurred “immediately after” defendant got out of the BMW. Brown then
handcuffed defendant, placed him in the backseat of the CHP car, and went to speak to
the passengers in the BMW. “[W]ithin just a couple of minutes,” Brown returned to the
patrol car and advised defendant of his Miranda rights. Defendant said he understood his
rights and Brown questioned defendant for about five minutes. Neither officer displayed
a weapon to defendant or made physical contact with defendant during this questioning.
      Brown testified that his patrol car was equipped with a video camera and
microphones inside and outside the car, but he had reviewed the recording and the
exterior microphones were not working. The recording thus had not captured
defendant’s unwarned admissions outside the car. Because Brown turned the recording
system off after he spoke to the BMW’s passengers, defendant’s admissions after
receiving Miranda warnings were not recorded either. The trial court reviewed the
recording during the evidentiary hearing.
      Defendant testified that Brown aimed a gun at him as he got out of his car and
complied with Brown’s order to stand next to the patrol car. Brown immediately



                                            5
handcuffed defendant and made him sit in the back of the patrol car and closed the car
door next to defendant. Brown opened a door on the opposite side of the car and asked
defendant what he was thinking and a few other questions without having advised him
pursuant to Miranda. Brown went to talk to the passengers in the BMW, then returned to
the patrol car and asked defendant additional questions. Defendant did not answer
Brown’s questions. Brown then read defendant his Miranda rights. Defendant told
Brown he understood his rights. Brown asked defendant what he was thinking and
defendant said he was not thinking. Defendant testified he also told Brown that he had
not run from Brown because Brown was not behind him.
       The trial court initially seemed to note that the critical issue was whether
defendant was in custody at the time of the unwarned statement, but the court did not
make a finding on this issue. Instead, it switched its focus to whether interrogation
occurred. The court stated, “The cases all seem to come down to the key being the police
officer’s subjective intent, and actions not taken to elicit a specific incriminating
statement would not qualify as an interrogation. ‘What were you thinking’ is equivocal.
Could have been either one. The totality of the circumstances as testified to by both the
defendant and the officer, what thinking? His response was, I didn’t do anything—
‘didn’t do nothing,’ to quote the defendant accurately, that comes down to the question of
credibility for the jury. And no questions were asked to follow up on ‘I didn’t do
nothing’ to the officer at the front fender of the car. And the second time was after
Miranda. [¶] I’m not going to find a Miranda violation of the facts of our case. Under a
preponderance of the evidence, the statement I think was voluntary.”
b.     Defendant’s factual concession on appeal
       Notwithstanding defendant’s testimony at the evidentiary hearing, defendant
conceded in his reply brief that collectively the video and testimony at the hearing
established that defendant was outside of the patrol car when Brown asked him what he
had been thinking and Brown did not put him inside the patrol car for four and one-half
minutes after defendant got out of the BMW.



                                              6
c.        Legal principles applicable to police interrogation
(1)       Miranda warnings are required prior to custodial interrogation
          In Miranda, supra, 384 U.S. 436, 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 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.” (Id. at
p. 444.) Statements obtained in violation of this rule may not be used to establish guilt.
(Ibid.)
          “Custody” in the Miranda context includes both actual custody and any situation
in which a person’s “freedom of action is curtailed to a ‘degree associated with formal
arrest.’” (Berkemer v. McCarty (1984) 468 U.S. 420, 440 [104 S.Ct. 3138] (Berkemer).)
In making this determination, a court must examine the totality of circumstances—
excluding from consideration the officers’ subjective views, beliefs, or knowledge, unless
communicated to the suspect—to determine whether a reasonable person in the
defendant’s position would have experienced a restraint on freedom of movement
tantamount to a formal arrest. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403;
Stansbury v. California (1994) 511 U.S. 318, 324 [114 S.Ct. 1526].) No single factor is
dispositive, but the following factors are relevant: the purpose, place, and length of the
questioning; the ratio of officers to suspects; the officer’s demeanor; restrictions upon the
defendant’s freedom of movement; the nature of questioning; the defendant’s agreement
to be interviewed; advisement that the defendant could terminate the questioning; police
domination and control of the questioning; whether police informed the defendant he or
she was considered a witness or a suspect; and whether the defendant was arrested at the
end of the interview. (Pilster, at pp. 1403–1404.)
          Generally, an ordinary traffic stop does not create custody for purposes of
Miranda, even though the stop temporarily curtails the freedom of action of the driver
and any passengers. (Berkemer, supra, 468 U.S. at pp. 437–439.) This is because



                                               7
“detention of a motorist pursuant to a traffic stop is presumptively temporary and brief.
The vast majority of roadside detentions last only a few minutes. A motorist’s
expectations, when he sees a policeman’s light flashing behind him, are that he will be
obliged to spend a short period of time answering questions and waiting while the officer
checks his license and registration, that he may then be given a citation, but that in the
end he most likely will be allowed to continue on his way.” (Id. at p. 437.) In addition,
“circumstances associated with the typical traffic stop are not such that the motorist feels
completely at the mercy of the police” because these stops take place in public view and
“the atmosphere surrounding an ordinary traffic stop is substantially less ‘police
dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself.”
(Berkemer, at pp. 438–439.) Nonetheless, “[i]f a motorist who has been detained
pursuant to a traffic stop thereafter is subjected to treatment that renders him ‘in custody’
for practical purposes, he will be entitled to the full panoply of protections prescribed by
Miranda.” (Berkemer, at p. 440.)
       “Interrogation” refers to both express questioning and to any words or actions that
the police should know are reasonably likely to elicit an incriminating response from the
suspect. (People v. Mickey (1991) 54 Cal.3d 612, 648 (Mickey).)
       The determination of whether defendant was subjected to custodial interrogation is
a mixed question of law and fact, predominantly factual. (Mickey, supra, 54 Cal.3d at
p. 649.)
(2)    Standard of review regarding custodial interrogation
       We review independently whether a challenged statement was obtained in
violation of Miranda. (People v. Bradford (1997) 14 Cal.4th 1005, 1032–1033
(Bradford).) In doing so, we accept the trial court’s resolution of disputed facts and
inferences, and its evaluations of credibility, if supported by substantial evidence. (Id. at
p. 1033.) With respect to conflicting evidence, “‘we must accept that version of events
which is most favorable to the People, to the extent that it is supported by the record.’”
(People v. Lewis (2001) 26 Cal.4th 334, 383–384.)



                                              8
(3)    Effect of “midstream” Miranda warning
       Two United States Supreme Court cases have addressed the admissibility of a
statement obtained after a Miranda warning but preceded by a prior unwarned
incriminating statement, also known as a “midstream” warning or advisement. The
general rule is that established by the older of these two cases, Oregon v. Elstad (1985)
470 U.S. 298 [105 S.Ct. 1285] (Elstad).
       In Elstad, a suspect made brief, unwarned, incriminating statements to a police
officer at his home and was then taken to a police station, where he was advised pursuant
to Miranda, questioned at length, and gave a more complete confession about 30 minutes
after making his original inculpatory comments. (Elstad, supra, 470 U.S. at pp. 301–
302.) The court reasoned that, “absent deliberately coercive or improper tactics in
obtaining the initial statement, the mere fact that a suspect has made an unwarned
admission does not warrant a presumption of compulsion” with respect to a later
statement obtained after a Miranda advisement. (Elstad, at p. 314.) Accordingly, the
court held, “[T]here is no warrant for presuming coercive effect where the suspect’s
initial inculpatory statement, though technically in violation of Miranda, was voluntary.
The relevant inquiry is whether, in fact, the second statement was also voluntarily made.
As in any such inquiry, the finder of fact must examine the surrounding circumstances
and the entire course of police conduct with respect to the suspect in evaluating the
voluntariness of his statements. The fact that a suspect chooses to speak after being
informed of his rights is, of course, highly probative. We find that the dictates of
Miranda and the goals of the Fifth Amendment proscription against use of compelled
testimony are fully satisfied in the circumstances of this case by barring use of the
unwarned statement in the case in chief. No further purpose is served by imputing ‘taint’
to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold
today that a suspect who has once responded to unwarned yet uncoercive questioning is
not thereby disabled from waiving his rights and confessing after he has been given the
requisite Miranda warnings.” (Elstad, at p. 318, fn. omitted.)



                                             9
       The second Supreme Court case to address “midstream” warnings was Siebert,
supra, 542 U.S. 600. In Siebert, the Supreme Court established a limited exception to
Elstad, applicable to cases where police indulge in a “question first and warn later”
policy. Seibert involved an admittedly deliberate police policy of withholding a Miranda
advisement until a suspect had confessed, then advising pursuant to Miranda, then
repeating the questioning until the suspect reiterated her confession. (Seibert, at pp. 605–
606.) In the course of the postadvisement interrogation in Seibert, the detective
repeatedly referred to the defendant’s preadvisement statements. (Id. at p. 605.)
       Seibert produced no majority opinion, although five justices agreed that Seibert’s
postadvisement statement was inadmissible. The plurality opinion, written by Justice
Souter, viewed “[t]he threshold issue when interrogators question first and warn later” as
“whether it would be reasonable to find that in these circumstances the warnings could
function ‘effectively’ as Miranda requires. Could the warnings effectively advise the
suspect that he had a real choice about giving an admissible statement at that juncture?
Could they reasonably convey that he could choose to stop talking even if he had talked
earlier? For unless the warnings could place a suspect who has just been interrogated in a
position to make such an informed choice, there is no practical justification for accepting
the formal warnings as compliance with Miranda, or for treating the second stage of
interrogation as distinct from the first, unwarned and inadmissible segment.” (Seibert,
supra, 542 U.S. at pp. 611–612.) The plurality identified “a series of relevant facts that
bear on whether Miranda warnings delivered midstream could be effective enough to
accomplish their object: the completeness and detail of the questions and answers in the
first round of interrogation, the overlapping content of the two statements, the timing and
setting of the first and the second, the continuity of police personnel, and the degree to
which the interrogator’s questions treated the second round as continuous with the first.”
(Seibert, at p. 615.)
       Justice Kennedy concurred in the judgment and much of the plurality opinion, but
wrote a separate concurring opinion. He disagreed with the plurality as to the application



                                             10
of its “effectiveness” test: “The plurality concludes that whenever a two-stage interview
occurs, admissibility of the postwarning statement should depend on ‘whether [the]
Miranda warnings delivered midstream could have been effective enough to accomplish
their object’ given the specific facts of the case. [Citation.] This test envisions an
objective inquiry from the perspective of the suspect, and applies in the case of both
intentional and unintentional two-stage interrogations. [Citation.] In my view, this test
cuts too broadly.” (Seibert, supra, 542 U.S. at pp. 621–622.) Justice Kennedy would
instead “apply a narrower test applicable only in the infrequent case, such as we have
here, in which the two-step interrogation technique was used in a calculated way to
undermine the Miranda warning. [¶] The admissibility of postwarning statements
should continue to be governed by the principles of Elstad unless the deliberate two-step
strategy was employed. If the deliberate two-step strategy has been used, postwarning
statements that are related to the substance of prewarning statements must be excluded
unless curative measures are taken before the postwarning statement is made. Curative
measures should be designed to ensure that a reasonable person in the suspect’s situation
would understand the import and effect of the Miranda warning and of the Miranda
waiver. For example, a substantial break in time and circumstances between the
prewarning statement and the Miranda warning may suffice in most circumstances, as it
allows the accused to distinguish the two contexts and appreciate that the interrogation
has taken a new turn. [Citation.] Alternatively, an additional warning that explains the
likely inadmissibility of the prewarning custodial statement may be sufficient. No
curative steps were taken in this case, however, so the postwarning statements are
inadmissible and the conviction cannot stand.” (Seibert, supra, 542 U.S. at p. 622.)
       “When a fragmented Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on the narrowest
grounds.’” (Marks v. United States (1977) 430 U.S. 188, 193 [97 S.Ct. 990].) In the
context of Seibert, Justice Kennedy’s opinion presents the narrowest ground of



                                             11
concurrence. (People v. Camino (2010) 188 Cal.App.4th 1359, 1370 (Camino); People
v. Rios (2009) 179 Cal.App.4th 491, 505; U.S. v. Williams (9th Cir. 2006) 435 F.3d 1148,
1157–1158 (Williams) and cases cited therein.) Therefore, Seibert applies only where
police deliberately applied a two-step interrogation technique in which they “question
first and warn later” after obtaining an incriminating statement; otherwise, Elstad applies.
(Williams, at p. 1158.)
       Justice Kennedy’s opinion did not suggest a standard for determining whether
police had deliberately employed a two-step interrogation strategy, but the Ninth Circuit
in Williams synthesized matters cited in Justice Souter’s plurality opinion in Seibert,
supra, 542 U.S. at pages 615–616, to hold, “Consistent with our sister circuits, . . . that in
determining whether the interrogator deliberately withheld the Miranda warning, courts
should consider whether objective evidence and any available subjective evidence, such
as an officer’s testimony, support an inference that the two-step interrogation procedure
was used to undermine the Miranda warning. [Citations.] Such objective evidence
would include the timing, setting and completeness of the prewarning interrogation, the
continuity of police personnel and the overlapping content of the pre- and postwarning
statements.” (Williams, supra, 435 F.3d at pp. 1158–1159, fn. omitted.)
       If a court assessing the admissibility of a statement obtained after a midstream
Miranda advisement determines that the police did not deliberately employ a two-step
interrogation strategy, Elstad applies. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of
Kennedy, J.).) If, however, the court concludes that police deliberately used a two-step
interrogation strategy, the court must move on to assess whether the midstream Miranda
advisement was effective to “advise the suspect that he had a real choice about giving an
admissible statement at that juncture” and “reasonably convey that he could choose to
stop talking even if he had talked earlier.” (Seibert, supra, 542 U.S. at pp. 611–612, 615
(plur. opn. of Souter, J.); id. at p. 622 (conc. opn. of Kennedy, J.); Williams, supra, 435
F.3d at p. 1160.)




                                             12
       In determining the effectiveness of a midstream advisement, the court should
consider both the factors identified in the plurality opinion (Seibert, supra, 542 U.S. at
p. 615 (plur. opn. of Souter, J.)) and any “curative measures [] taken before the
postwarning statement” as specified by Justice Kennedy’s opinion (id. at p. 622 (conc.
opn. of Kennedy, J.)). As succinctly summarized by Williams, the court should consider
“(1) the completeness and detail of the prewarning interrogation, (2) the overlapping
content of the two rounds of interrogation, (3) the timing and circumstances of both
interrogations, (4) the continuity of police personnel, (5) the extent to which the
interrogator’s questions treated the second round of interrogation as continuous with the
first and (6) whether any curative measures were taken.” (Williams, supra, 435 F.3d at
p. 1160.)
       In assessing the effectiveness of a midstream Miranda advisement, a trial court
should also keep in mind that “[b]y any objective measure . . . it is likely that if the
interrogators employ the technique of withholding warnings until after interrogation
succeeds in eliciting a confession, the warnings will be ineffective in preparing the
suspect for successive interrogation, close in time and similar in content. After all, the
reason that question-first is catching on is as obvious as its manifest purpose, which is to
get a confession the suspect would not make if he understood his rights at the outset; the
sensible underlying assumption is that with one confession in hand before the warnings,
the interrogator can count on getting its duplicate, with trifling additional trouble.”
(Seibert, supra, 542 U.S. at p. 613 (plur. opn. of Souter, J.).)
       Neither the plurality opinion nor Justice Kennedy’s opinion in Seibert addressed
the burden of proof applicable to the determinations of deliberateness and effectiveness.
Because the prosecution bears the burden of demonstrating the admissibility of a
confession (Brown v. Illinois (1975) 422 U.S. 590, 604 [95 S.Ct. 2254]) and must prove
the defendant’s Miranda waiver and the voluntariness of the confession by a
preponderance of the evidence (Seibert, supra, 542 U.S. at p. 608, fn. 1 (plur. opn. of
Souter, J.), we necessarily conclude that the prosecution bears the burden of proof



                                              13
regarding these two matters, and that the standard is a preponderance of the evidence.
Several federal appellate courts have reached the same conclusion with respect to the
deliberateness issue. (See, e.g., U.S. v. Capers (2d Cir. 2010) 627 F.3d 470, 479–480;
U.S. v. Stewart (7th Cir. 2008) 536 F.3d 714, 719; U.S. v. Ollie (8th Cir. 2006) 442 F.3d
1135, 1142–1143.)
(4)    Standard of review regarding midstream Miranda warning
       Justice Kennedy’s opinion also did not address the standard of review applicable
to the determinations of deliberateness or effectiveness. In Camino, supra, 188
Cal.App.4th at page 1372, the court held that a trial court’s determination of
deliberateness should be deferentially reviewed under the substantial evidence standard.
For reasons addressed later in this part of the opinion, we need not determine the
appropriate standard of review at this time.
d.     The trial court erred by denying defendant’s motion with respect to his
unwarned statement
(1)    Defendant was in custody
       The totality of circumstances, including those established by the audio-video
recording introduced at the evidentiary hearing, demonstrated that this was not the
“ordinary traffic stop” described in Berkemer. The recording showed that Brown’s patrol
car, with its flashing lights and siren activated, was behind both the BMW and the
Chrysler. Brown repeatedly told the cars to pull to the shoulder. The Chrysler quickly
complied, but the defendant’s car did not. Defendant then led Brown on a high-speed
chase, on and off the freeway, during which defendant ran a stop sign. Brown had
observed the driver of the BMW commit a violation of Vehicle Code section 2800.2,
fleeing or attempting to elude a pursuing peace officer by driving in a willful or wanton
disregard for the safety of persons or property, which is an offense punishable as a
misdemeanor or a felony, not a mere traffic infraction. Brown therefore had probable
cause to arrest defendant.




                                               14
       Once Brown caught up to the BMW in the cul-de-sac, he knew that defendant was
the person who committed that offense and he treated the situation as “a high-risk felony
stop.” Brown parked his patrol car perpendicular to the BMW, hampering its ability to
drive away. Both Brown and his partner emerged from the patrol car with their guns
aimed at the people in defendant’s car. Brown appears in the video to have been pointing
his gun at defendant. Brown ordered defendant to keep his hands in the air and to get out
of the car. As defendant repeatedly attempted to reach toward the door handle Brown
repeatedly told him to keep his hands in the air, then repeatedly ordered him to get out of
the car. All the while, Brown pointed his gun toward defendant. When defendant finally
managed to open his car door while keeping his hands in the air, Brown ordered him to
approach the patrol car and put his hands on the hood. By doing so, Brown isolated
defendant from his passengers and thereby deprived him of the psychological comfort
that their presence might have provided to defendant. Brown then ordered defendant to
put his hands on the hood of the patrol car. Meanwhile, Brown’s partner kept his gun
drawn and pointed at the passengers in the BMW.
       Under the circumstances, a reasonable person in defendant’s position at the time
Brown questioned defendant outside the car would not have expected his detention to be
merely temporary and brief, followed by a citation and release. He instead would have
expected to be arrested for the offense that he had committed in the officers’ presence
and that had caused the officers to order him out of his car at gunpoint. “[T]he display of
a weapon by police officers plainly conveys to a reasonable citizen the message that he is
not free to leave; i.e., that his freedom of action is dramatically curtailed.” (People v.
Taylor (1986) 178 Cal.App.3d 217, 229.)
       Notably, the outcome of this encounter was an actual arrest, not the mere citation
and release anticipated during most traffic stops. Although the stop was on a public
street and only two officers participated, the circumstances as a whole created a far more
coercive and threatening encounter than that entailed in a normal traffic stop. Nothing in




                                              15
the record indicates that Brown told defendant he was free to leave, that he could
terminate questioning, or that he was not under arrest or about to be arrested.
       Accordingly, we conclude that a reasonable person in defendant’s position would
interpret the restraint on his freedom of movement as tantamount to a formal arrest. This
constituted custody for the purpose of determining whether a Miranda advisement was
required.
(2)    Brown interrogated defendant
       In the trial court and on appeal, the parties recognized that the only real issue was
whether defendant was in custody at the time of the questioning. Neither party has
argued that the question did not constitute interrogation.
       Although Brown theoretically could have intended “what were you thinking” as a
rhetorical exclamation, he specifically testified that he “asked” defendant this question.
In addition, time had passed between the high-speed chase and the questioning as Brown
followed defendant to the cul-de-sac, got out of the patrol car, repeatedly ordered
defendant to get out of his car, and directed defendant to approach the patrol car. In
addition, Brown asked defendant the same question both before and after advising him
pursuant to Miranda.
       Under the circumstances, “what were you thinking” cannot be viewed as anything
other than a question intended to elicit a response. Brown either knew or should have
known that the question was reasonably likely to elicit an incriminating response, such as
an admission of one or more elements of the offense of evading an officer or a statement
explaining a motive for such evading, perhaps a motive that revealed other grounds for
arrest, such as an outstanding warrant or the presence of contraband in the car. “[N]o
fine distinction can be made as to the officer’s intention when a suspect is subjected to
express questioning.” (People v. Turner (1984) 37 Cal.3d 302, 318, overruled on another
ground in People v. Anderson (1987) 43 Cal.3d 1104, 1149.)
       Accordingly, because defendant’s first statement was obtained in violation of
Miranda, the trial court erred by denying defendant’s motion to exclude it. If, however,



                                             16
defendant’s second, post-Miranda statement was properly admitted, the admission of the
unwarned statement at trial would have been harmless beyond a reasonable doubt
because the second statement included the same response to Brown’s same question,
“What were you thinking?” (People v. Sims (1993) 5 Cal.4th 405, 447.)
       Accordingly, we assess the trial court’s ruling admitting the second statement.
e.     Reversal is required because the trial court failed to apply Seibert
       It appears that neither the parties nor the trial court considered the applicability of
Seibert. The trial court failed to make any of the requisite findings regarding
deliberateness or effectiveness. We cannot determine from the record either that Brown
did not deliberately employ a two-step interrogation strategy or that the midstream
Miranda advisement was effective to convey to defendant “that he had a real choice
about giving an admissible statement at that juncture” and “that he could choose to stop
talking” even though he had made earlier admissions to Brown. Accordingly, we cannot
be certain that defendant’s postadvisement statement was properly admitted at his trial.
       Nor can we conclude that the admission of both of defendant’s statements was
harmless beyond a reasonable doubt. Notably, the Attorney General, who has the burden
of proving beyond a reasonable doubt that the error did not contribute to the verdict
(Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824]), does not argue that any
error in admitting defendant’s postadvisement statement was harmless. Defendant’s
statements established that he knew Brown was attempting to stop his car, not just the
Chrysler. Given that Brown was chasing two cars and there was no evidence that
defendant heard Brown’s public address announcements, jurors may have harbored a
reasonable doubt whether defendant mistakenly believed, as his passenger testified, that
Brown was not attempting to stop the BMW.
       Under the circumstances, we cannot determine whether the trial court committed
prejudicial error by denying defendant’s motion to exclude his second statement. We
therefore conditionally reverse the judgment and direct the trial court to conduct a new
hearing on defendant’s motion to exclude his second statement to Brown as obtained in



                                              17
violation of Miranda. If the court concludes the second statement should have been
excluded under Seibert, as addressed in this opinion, it will order a new trial at which
neither of defendant’s statements to Brown may be admitted in the prosecution’s case-in-
chief. If the court concludes the second statement is admissible under Seibert, the
judgment will be reinstated and defendant may again challenge the ruling on the motion
on appeal, if he wishes.
2.     Review of in camera Pitchess proceedings
       Defendant filed a motion seeking discovery of identifying information regarding
everyone who filed a complaint or was interviewed in connection with any complaint
against Brown and his partner Beam alleging excessive force; aggressive behavior;
violence; bias; coercive conduct; fabrication of evidence, probable cause, or charges;
false arrest; perjury; illegal search or seizure; dishonesty; writing false or misleading
reports; planting evidence; “or other evidence of misconduct amounting to moral
turpitude.” Judge Blades granted the motion with respect to “acts of dishonesty,
falsifying reports, perjury, anything of that nature” by Brown. The court conducted an in
camera review of complaints produced by the custodian of records for the CHP. It found
no relevant complaints against Brown.
       Defendant requests that this court review the record of the in camera proceedings
to determine whether the trial court ordered disclosure of all responsive material. We
have done so and determine that the trial court made a proper record (People v. Mooc
(2001) 26 Cal.4th 1216, 1229) and properly exercised its discretion (People v. Jackson
(1996) 13 Cal.4th 1164, 1220). There were no complaints or adverse actions, of either
internal or external origin, in Brown’s file and therefore nothing to disclose.
                                      DISPOSITION
       The judgment is reversed and the cause is remanded for a new hearing on
defendant’s motion to exclude his second statement to Brown. If the court concludes the
second statement should have been excluded under Missouri v. Seibert (2004) 542 U.S.
600 [124 S.Ct. 2601], as addressed in this opinion, then a new trial is to be ordered and



                                              18
neither of defendant’s statements to Brown may be admitted in the prosecution’s case-in-
chief. If the court concludes the second statement is admissible under Seibert, the
judgment is reinstated.
       NOT TO BE PUBLISHED.


                                                 MILLER, J.*
We concur:


       CHANEY, Acting P. J.


       JOHNSON, J.




       *  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



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