Filed 10/29/14 P. v. Broaden CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F066626

                   v.                                                    (Super. Ct. No. DF10587A)

MARVIN BROADEN,                                                                   OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
         Janet J. Gray, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca
Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Levy, Acting P.J., Kane, J., and Poochigian, J.
        A jury convicted appellant, Marvin Broaden, on two counts of battery on a
correctional officer (counts 2 & 3/Pen. Code, § 4501.5)1 and found true an allegation that
Broaden had a prior conviction within the meaning of the three strikes law (§ 667, subds.
(b)-(i)).
        On appeal, Broaden contends: (1) the court erred in admitting a statement that was
obtained in violation of his Miranda2 rights; (2) the jury failed to make a finding on the
three strikes allegation; and (3) the court abused its discretion when it denied his Romero3
motion. We will affirm.
                                          FACTS
        On July 16, 2011, at approximately 1:45 p.m., while incarcerated at Kern Valley
State Prison, Broaden yelled out to Correctional Officer Mercado from his cell on the
second tier that he was suicidal. Prison protocol required Officer Mercado to place a
suicidal inmate in a holding cell and contact “psych” personnel who would then talk to
the inmate. Officer Mercado opened the food port to Broaden’s cell and had Broaden
turn around so Mercado could handcuff his arms behind his back through the port and
escort him to the holding cell. Officer Mercado handcuffed Broaden and after Officer
Anaya opened the door from the control booth, he began escorting Broaden out of his
cell. As Mercado and Broaden were exiting the cell Broaden quickly turned to his right,
pushing his shoulder into Mercado’s chest, which moved Mercado backwards and caused
him to lose his balance. Broaden also squatted down and attempted to lift Officer
Mercado up. Officer Mercado, however, was able to take Broaden down by wrapping his
right arm around the back of Broaden’s neck and grabbing Broaden’s left leg with his left


1       Unless otherwise indicated all further statutory references are to the Penal Code.
2       Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
3       People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).


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arm. Meanwhile, Officer Anaya pushed an alarm that alerted other officers who helped
subdue Broaden and place him in a two-foot-by-two-foot temporary holding cell located
less than 100 feet from his regular cell.
       Licensed Vocational Nurse Donatus Ugboaja was called to examine Broaden for
injuries and to fill out form 7219, which is completed whenever there is an incident with
an inmate. As part of the procedure, Nurse Ugboaja asked Broaden if he had any
comment.4 Broaden replied, “I beat up an officer because he urinated in my toilet and
said I was suicidal when I was not.” Nurse Ugboaja then examined Broaden but did not
find any injuries on him.
       On January 13, 2012, at approximately 12:28 p.m., Officer Trotter went to the
holding cell where Broaden was temporarily being held wearing waist restraints. Trotter
instructed him to face the rear of the cell and Broaden complied. However, after Trotter
opened the cell door, Broaden spun around so he was outside the cell door and kicked
Officer Trotter in the right knee. Trotter grabbed Broaden and took him to the ground.
       On May 2, 2012, the district attorney filed an information charging Broaden with
attempted murder (count 1/§§ 664 & 187, subd. (a)), two counts of battery on a
correctional officer (counts 2 & 3), a serious felony enhancement (§ 667, subd. (a)), and
with having a prior conviction within the meaning of the three strikes law.
       On December 6, 2012, the jury found Broaden guilty on counts 2 and 3 and they
found true the three strikes allegation.
       On January 22, 2013, the court denied Broaden’s Romero motion and sentenced
him to an aggregate term of eight years: on count 2, the middle term of three years,


4      Prior to the taking of testimony, the court held a hearing on the defense’s motion
to exclude Broaden’s statement to Nurse Ugboaja because it was allegedly obtained in
violation of Miranda. The court denied the motion finding that for purposes of Miranda,
Broaden was in custody, but he was not interrogated by Nurse Ugboaja.


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doubled to six years because of Broaden’s prior strike conviction; and on count 3, a
consecutive two-year term, one-third the middle term of three years doubled to two years
because of Broaden’s prior strike conviction.
                                       DISCUSSION
The Miranda Issue
       Broaden contends the court erred in admitting his statement to Nurse Ugboaja that
he beat up a correctional officer. We disagree.
       “As a prophylactic safeguard to protect a suspect’s Fifth Amendment privilege
against self-incrimination, the United States Supreme Court, in Miranda, required law
enforcement agencies to advise a suspect, before any custodial law enforcement
questioning, that ‘he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires.’ [Citations.] If the suspect knowingly and intelligently waives these rights,
law enforcement may interrogate, but if at any point in the interview he invokes the right
to remain silent or the right to counsel, ‘the interrogation must cease.’ [Citations.]”
(People v. Martinez (2010) 47 Cal.4th 911, 947.)
       However, the advisement of Miranda rights is only required when a person is
subject to custodial interrogation. Custodial interrogation has two components. First, the
person being questioned must be in custody. (People v. Mickey (1991) 54 Cal.3d 612,
648 (Mickey).) “Custody, for these purposes, means that the person has been taken into
custody or otherwise deprived of his freedom in any significant way. [Citation.]”
(People v. Mosley (1999) 73 Cal.App.4th 1081, 1088 (Mosley).)
       A prison inmate may be “in custody” for purposes of Miranda. (Mathis v. United
States (1968) 391 U.S. 1, 4-5; People v. Fradiue (2000) 80 Cal.App.4th 15, 19
(Fradiue).) However, Miranda warnings are not required for all investigatory

                                              4
questioning of a prison inmate. (Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424, 427
(Cervantes ); Howes v. Fields (2012) __ U.S. __ [132 S.Ct. 1181, 1191–1193].)
       In Cervantes, the Court of Appeal for the Ninth Circuit set forth the following
factors that should be reviewed for determining whether a prison inmate is in custody for
purposes of Miranda: (1) the language used to summon the inmate for questioning;
(2) the physical surroundings of the interrogation; (3) the extent to which the inmate is
confronted with evidence of his guilt; and (4) the additional pressure exerted to detain
him. (Cervantes, supra, 589 F.2d at p. 428.) The Cervantes test has been adopted by
California courts. (People v. Macklem (2007) 149 Cal.App.4th 674, 687, 695-696;
People v. Fradiue, supra, 80 Cal.App.4th at pp. 20-21; People v. Anthony (1986) 185
Cal.App.3d 1114, 1122.)
       The second Miranda component is obviously interrogation. (Mickey, supra, 54
Cal.3d at p. 648; Mosley, supra, 73 Cal.App.4th at p. 1088.) “For Miranda purposes,
interrogation is defined as any words or actions on the part of the police that the police
should know are reasonably likely to elicit an incriminating response. [Citation.]”
(Mosley, supra, at p. 1089.)
       “Absent ‘custodial interrogation,’ Miranda simply does not come into play.
[Citations.]” (Mickey, supra, 54 Cal.3d at p. 648.) “Just as custodial interrogation can
occur in the absence of express questioning [citation], not all questioning of a person in
custody constitutes interrogation under Miranda. [Citations.]” (People v. Ray (1996) 13
Cal.4th 313, 338, italics added.)
       “In reviewing Miranda issues on appeal, we accept the trial court’s resolution of
disputed facts and inferences as well as its evaluations of credibility if substantially
supported, but independently determine from undisputed facts and facts found by the trial
court whether the challenged statement was legally obtained. [Citations.]” (People v.
Smith (2007) 40 Cal.4th 483, 502.) We apply federal standards in reviewing a

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defendant’s claim that a challenged statement was obtained in violation of Miranda.
(People v. Bradford (1997) 14 Cal.4th 1005, 1033.)
        “Statements obtained in violation of Miranda are not admissible to establish [the
defendant’s] guilt.” (People v. Boyer (1989) 48 Cal.3d 247, 271, overruled on other
grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) The erroneous
admission of a statement obtained in violation of Miranda is reviewed under the harmless
error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (Arizona v.
Fulminante (1991) 499 U.S. 279, 309-310; People v. Cunningham (2001) 25 Cal.4th 926,
994.)
        Here, after Broaden attacked a correctional officer, he was placed in the holding
cell in order to be examined for injuries. Thus, the first Cervantes factor does not apply.
Further, although the cell was very small, Broaden was placed there in order to be
examined by Nurse Ugboaja for injuries. Additionally, the holding cells were used to
temporarily hold inmates for other reasons in addition to when they are being examined
for injuries or when they are being uncooperative. Thus, even though Broaden was
handcuffed and in a small enclosure, there was nothing inherently coercive in Broaden
being placed there temporarily in order to be medically examined. Moreover, Broaden
was not confronted with any evidence against him and there was no additional pressure
exerted to detain him. We also note that the nurse’s question to Broaden “... was not
‘inquisitorial,’ ‘intimidating,’ or ‘accusatory.’ [Citation.]” (People v. Terry (1970) 2
Cal.3d 362, 383.) Accordingly, we conclude that Broaden’s statement to Nurse Ugboaja
was not a result of a custodial interrogation.
        In any case, any error in admitting the challenged statement did not prejudice
Broaden. Correctional Officer Anaya corroborated Officer Mercado’s testimony that
Broaden assaulted him when Mercado was taking Broaden out of his cell and Broaden
did not testify or provide any other evidence to contradict the officers’ testimony.

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Further, during his closing argument Broaden’s defense counsel conceded that Broaden
shoved Officer Mercado and focused his argument on whether the prosecution had
proven the attempted murder charge.5 Accordingly, we conclude the court did not err
when it denied Broaden’s motion to suppress his statement to Nurse Ugboaja on Miranda
grounds and, alternatively, that any error in doing so was harmless beyond a reasonable
doubt.
The Three Strikes Allegation
         Broaden contends the matter must be remanded for resentencing because the jury
failed to make a true finding on the three strikes allegation. We disagree.
         After the jury returned a verdict, but prior to the court having the verdict read into
the record, the court stated:

                “... The record [will] reflect that I did have the opportunity to speak
         with counsel.

                “The finding on the charges appear to be in order. The jury did
         reach a finding on the prior conviction as to the 667 (a) through (e). Not
         on the (a). We’ll be able to put that on the record in a moment.” (Italics
         added.)
         The court then had the clerk read the verdicts on the substantive offenses into the
record and the jury foreman was asked if that was the jury’s true and correct verdict.
However, the court neglected to have the clerk read the verdict on the three strikes


5      At one point defense counsel argued: “This is not an attempt[ed] murder.
Attempt[ed] murder you don’t get much more serious than that.... [T]hat’s what he’s
charged with here. This is an incredibly serious case. You don’t charge someone with
attempt[ed] murder over a shove, and that’s what this case is. He’s no angel. I’m not
going to tell you he’s an angel.... He’s not guilty of attempt[ed] murder. This is not
attempt[ed] murder.” At another point defense counsel stated: “[W]e don’t convict
people of serious crimes like attempted murder over a shove when that person is dealing
with a mental crisis. They’re suicidal. [W]e don’t convict people of attempted murder
for that.” (Italics added.)


                                                7
allegation to the jury or to have the jury or the jury foreman acknowledge the verdict on
that allegation.
       After the jurors were excused and had left the courtroom, the following colloquy
occurred:

              “THE COURT: ¶ … ¶ There’s one thing I pointed out to counsel at
       sidebar. There’s no problem with the verdict form itself except on the
       finding on the prior conviction, the jury did have a true finding or found the
       defendant had suffered the prior conviction under the strike, but did not
       make a finding as to the 667(a).

             “In light of the fact that there was a not guilty on the attempted
       murder, your thoughts, Mr. Foltz [defense counsel]?

                “MR. FOLTZ: Yes, Your honor. There’s -- that’s the only strike
       alleged. That’s the only thing to which the 667(a) was relevant. The Court
       did ... so I don’t see any issues on that.

              “THE COURT: Mr. McKillop [the prosecutor]?

              “MR. McKILLOP: I agree. If there’s no serious felony or violent
       felony found [true], then there’s no point of finding a 667(a).

              “THE COURT: All right. Very well.

              “That’s why I didn’t send them back to have a decision made on
       that. In light of the fact there was a not guilty on count 1, there appeared to
       be no harm, no foul.” (Italics added.)
       In response to a motion to augment the record to include the verdict on the strike
allegation, the court clerk responded that there were no other verdict forms than those
already provided.
       A criminal defendant has the statutory right to have a jury determine the truth of
an allegation that he suffered a prior felony conviction. (§§ 1025, 1158; People v. Wiley
(1995) 9 Cal.4th 580, 589; People v. Vera (1997) 15 Cal.4th 269, 274.) “The right to
have a jury determine the truth of a prior conviction allegation does not flow from the
jury trial provision of article I, section 16 of the California Constitution or the Sixth

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Amendment of the United States Constitution. It is derived from statute. [Citation.]”
(People v. Vera, supra, at p. 277.)
       Here, it can be inferred from the court’s comments and the parties’ conduct that
the jury foreman filled out and signed the verdict form stating that the jury found the
three strikes allegation true. Thus, the record refutes Broaden’s contention that the jury
did not find the three strikes allegation true.
       However, we are dismayed that the verdict form on the three strikes allegation was
lost and with the noncompliance with the procedures for receiving and recording a
verdict, i.e., that the verdict was not read in open court, the jury was not asked to affirm
the verdict, and the verdict was not recorded. These errors would have been easily
correctible if either attorney had objected or the court had noticed that the proper
procedures were not being followed. Fortunately, prior to receiving the verdict on the
substantive offenses, the court here announced that the jury had arrived at a finding on
the prior strike allegation and after the jury was discharged the court and the attorneys
acknowledged on the record that a true finding on this allegation had been reached.
Further, neither party raised an issue as to the validity of this finding.
The Romero Motion
       On January 3, 2013, Broaden filed a Romero motion asking the court to strike his
prior strike conviction. In his moving papers Broaden argued that his more recent
offenses were fairly trivial in that they involved Broaden kicking a correctional officer
once in the knee area in a manner that did not injure the officer and a struggle with a
second officer that lasted only a few seconds and also did not result in any injuries to the
officer. Defense counsel also argued that Broaden was under considerable mental
distress when he committed the underlying offenses.
       At Broaden’s sentencing hearing when the court took up the matter of Broaden’s
Romero motion, defense counsel noted that Broaden had “clearly expressed some mental

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health concerns regarding suicidal thoughts” and submitted the matter on his moving
papers.
       After hearing the prosecutor’s comments, the court reviewed Broaden’s violent
criminal history as detailed in his probation report and stated,

               “... Then we have the crime here where he was convicted after jury
       trial of trying to push one guard over the railing on the second floor of the
       prison.

               “There was another offense here where apparently a guard was
       kicked in the shin or something like that while they were trying to get him
       out of the cell or a cage. I’m not necessarily concerned with that, as much
       as the one trying to push the guard over the rail.

               “Had he gone over, [he] would have certainly been severely injured,
       if not killed.

               “The other one, kicking the guard in the leg, not nearly as egregious
       as the former.

             “Showed a propensity for violence over the course of his life and
       also while in prison. Doesn’t seem to -- is making any progress working on
       that.

              “He is only 24 years old, but on the other hand at 24 he showed a
       great propensity for violence.

             “On the other hand there were no weapons used in the offenses. Mr.
       Broaden just used his body at that time.

               “But, nonetheless, it does appear to me that as discussed in the cases
       [People v. ]Williams[ (1998) 17 Cal.4th 148] and Romero, in light of the
       nature of the circumstances of his present felonies and his serious -- and his
       prior serious or violent convictions, his background, he does not seem to
       fall outside the scheme.

               “Therefore, the Court will decline to use its discretion to dismiss the
       strike prior.”
       Broaden contends that in ruling on his Romero motion the court relied on facts that
were rejected by the jury when it reasoned that Broaden had tried to kill Correctional

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Officer Mercado. He further contends that the court overlooked substantial mitigating
factors, i.e., that appellant had mental health issues, he was exhibiting some of these
issues when he committed the instant offenses, and the instant offenses were neither
serious nor violent felonies. Thus, according to Broaden, the court abused its discretion
when it denied his Romero motion. We disagree.
       In deciding whether to strike a prior conviction, “the court in question must
consider whether, in light of the nature and circumstances of [the defendant’s] present
felonies and prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies.” (People v. Williams,
supra, 17 Cal.4th at p. 161.)
       The trial court’s decision is “subject to review for abuse of discretion. This
standard is deferential.” (People v. Williams, supra, 17 Cal.4th p. 162.) “In reviewing
for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden
is on the party attacking the sentence to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve the legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set aside on
review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because
reasonable people might disagree. ‘An appellate tribunal is neither authorized nor
warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.]
Taken together, these precepts establish that a trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person could agree with
it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)



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       Broaden’s probation report indicates that he was only 23 years old when he
committed the underlying offenses in this matter and that despite his young age he
already had a serious criminal record. As a juvenile Broaden was adjudicated of robbery
and some type of grand theft offense in 2002. In 2003 he was adjudicated of assault with
a deadly weapon or by means of force capable of producing great bodily injury and
committed to the California Youth Authority from which he was paroled in 2008. As an
adult, in 2010 Broaden was convicted by plea of assault with a deadly weapon and he
admitted a great bodily injury enhancement. Broaden was serving a prison sentence on
this last offense when he committed the underlying offenses in this matter.
       Additionally, the court found that in committing the assault offense against
Correctional Officer Mercado, Broaden attempted to push the officer over the guardrail
and had he succeeded he would have severely injured or killed the officer. These
circumstances support the court’s denial of Broaden’s Romero motion because, as stated
by the court, Broaden had shown “a propensity for violence over the course of his life
and also while in prison” and he had not made any progress in controlling his violent
behavior.
       Moreover, there is no merit to Broaden’s contention that the court impermissibly
considered facts that were rejected by the jury. “California law affords the trial court
broad discretion to consider relevant evidence at sentencing. ‘[T]he court may consider
the record in the case, the probation officer’s report, other reports including reports
received pursuant to section 1203.3 and statements in aggravation or mitigation submitted
by the prosecution, the defendant, or the victim, or the family of the victim if the victim is
deceased, and any further evidence introduced at the sentencing hearing.’ [Citation.]
The trial court may consider any ‘criteria reasonably related to the decision being made.’
[Citation.] The court specifically is authorized to consider ‘the record in the case.’
[Citation.] Nothing in the applicable statute or rules suggests that a trial court must

                                             12
ignore evidence related to the offense of which the defendant was convicted, merely
because that evidence did not convince a jury that the defendant was guilty beyond a
reasonable doubt of related offenses.” (People v. Towne (2008) 44 Cal.4th 63, 85-86, fn.
omitted, see also In re Coley (2012) 55 Cal.4th 524, 554 [“a jury verdict acquitting a
defendant of a charged offense does not constitute a finding that the defendant is factually
innocent of the offense or establish that any or all of the specific elements of the offense
are not true”].) Thus, the jury’s acquittal of Broaden on the attempted murder charge did
not preclude the court from finding that Broaden attempted to force Correctional Officer
Mercado over the rail during their struggle and from considering this fact in its decision
denying Broaden’s Romero motion.
       Further, the record does not support Broaden’s contention that the court
overlooked his mental health issues in ruling on his motion. After an issue arose
regarding Broaden’s competency to stand trial, the court suspended criminal proceedings
and eventually ordered Dr. Gary Longwith to perform a psychological evaluation of
Broaden, which he performed on September 18, 2012. In his evaluation Dr. Longwith
noted that Broaden reported attempting to commit suicide in February 2012. He also
diagnosed Broaden with depression NOS and antisocial personality disorder but
nevertheless opined that he was competent to stand trial. On October 2, 2012, the court
relied on Dr. Longwith’s report to find Broaden competent to stand trial and to reinstate
criminal proceedings.6 Additionally, the court was aware from the evidence presented at
trial that Broaden’s assault of Officer Mercado occurred while Broaden was suicidal and
in the Romero motion’s points and authorities and at Broaden’s sentencing hearing



6     Dr. Longwith also concluded that Broaden had the potential to be quite dangerous
because of his mental health issues and because he met the criteria for antisocial
personality disorder.


                                             13
defense counsel argued this as a mitigating circumstance. Thus, we conclude that the
court did not abuse its discretion when it denied Broaden’s Romero motion.
                                    DISPOSITION
      The judgment is affirmed.




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