Filed 12/9/14 P. v. Tisdale CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                         H040035
                                                                   (Santa Cruz County
         Plaintiff and Respondent,                                  Super. Ct. No. F23664)

         v.

COLIN SEAN TISDALE,

         Defendant and Appellant.


         In this appeal, Colin Sean Tisdale (appellant) contends that his conviction for
transporting methadone should be reversed because the prosecution for that offense was
barred by the two dismissal rule of Penal Code section 1387. Alternatively, appellant
contends that the entire judgment must be reversed because it was based on the admission
of a statement obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda).
                                                 Procedure Below
         On September 4, 2012, the Santa Cruz County District Attorney filed a first
amended felony complaint in case No. F23254 in which appellant was charged with
possession for sale of a controlled substance (Health & Saf. Code, § 11351, count one),
transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a), count
two), and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a),
count three).
       On the same day, following a preliminary examination, the magistrate held
appellant to answer on only count three; the magistrate dismissed the felony counts for
possession for sale and transportation for lack of probable cause. On September 12,
2012, the People filed an information charging appellant with possession of a controlled
substance (count two) as well as the dismissed count of transportation of a controlled
substance (count one). The case was assigned to the same judge who had conducted the
preliminary examination—Judge Salazar.
       Thereafter, on November 1, 2012, the People moved the court to dismiss both
charges pursuant to Penal Code section 1385. The prosecutor told the court, “the drugs
haven’t been officially tested yet. So given the time not waived status, we are going to
dismiss and refile. We have filed our new complaint with the court. I believe we have a
new case number.” The court granted the motion to dismiss the information. Defense
counsel told the court that he intended to demur to count one because it was barred by
Penal Code section 1387.1
       In the new complaint with the new case number, F23664, again appellant was
charged with possession of a controlled substance (count two) and transportation of a
controlled substance (count one). On November 2, 2012, defense counsel filed a
demurrer to the new complaint in which counsel argued that count one was barred by
section 1387.
       On November 7, 2012, Judge Salazar heard appellant’s demurrer to count one.2
Relying on People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738 (Martinez),
Judge Salazar overruled the demurrer.



1
       All unspecified statutory references are to the Penal Code.
2
       While defense counsel entitled his motion a “demurrer,” it is apparent from the
record that Judge Salazar treated it as a motion to dismiss based on violation of the two
dismissal rule in section 1387.

                                             2
          On November 13, 2012, the prosecutor filed a motion pursuant to Code of Civil
Procedure section 170.6 to disqualify Judge Salazar. Accordingly, the case was
reassigned.
          On November 26, 2012, at the end of a preliminary hearing in the new case,
Judge Volkmann held appellant to answer on the transportation charge. Thereafter, the
prosecutor filed an information in F23664 in which appellant was charged with
transportation of a controlled substance (count one) and possession of a controlled
substance (count two).
          In an amended information filed on January 23, 2013, the prosecutor charged
appellant with the possession and transportation counts. The amended information
contained several allegations. Specifically, the prosecutor alleged (1) that appellant had a
prior conviction for robbery (§ 211), which was alleged as a strike under section 667,
subdivisions (b) through (i) and as a prior prison term under section 667.5, subdivision
(b); (2) that appellant had a prior conviction for assault with a deadly weapon (§ 245),
which was alleged as a second strike under section 667, subdivisions (b) through (i);
(3) that appellant had a prior conviction for possession for sale of a controlled substance
(Health & Saf. Code, § 11351), which was alleged as a prior prison term under
section 667.5, subdivision (b) and as a controlled substance prior (Health & Saf. Code,
§ 11370.2, subd. (a)); and (4) that appellant had two additional possession for sale
convictions (Health & Saf. Code, § 11378), which were alleged as controlled substance
priors (Health & Saf. Code, § 11370.2, subd. (a)).
          On January 28, 2013, the jury convicted appellant of the transportation and the
possession charges. Immediately thereafter, the court found true the prior conviction
allegations. On August 20, 2013, the trial court sentenced appellant to nine years in state
prison.




                                               3
                                            Facts
       Given the issues on appeal, we recite only the short version of the facts. On
August 16, 2012, officers conducted a traffic stop of a car driven by appellant’s father on
Highway 17. Eventually, the car pulled over and officers asked appellant to get out of the
car. Appellant was placed in handcuffs and two officers conducted a patsearch for
weapons. During the patsearch the officers asked appellant if they could search his
pockets. Appellant consented; in his jacket pockets, officers found approximately 150
methadone pills in a pill bottle and a plastic baggie with approximately 33 more
methadone pills. The plastic baggie had been heat-sealed. In a conversation with the
officers, appellant admitted that he had received some of the pills “from someone else[]”
and “[t]hose actual pills came from a different person.”3 The parties stipulated that
appellant had a valid prescription for 403 methadone pills, which required him to take 13
pills per day; and they stipulated that appellant had filled that prescription at Emeline
Pharmacy on August 10, 2012, which was two days before he was arrested.
                                         Discussion
Two Dismissal Rule
       As noted, appellant contends that his conviction for transportation of a controlled
substance must be reversed because his prosecution on that charge was barred by the two
dismissal rule of section 1387.
       Section 1387, subdivision (a) provides in pertinent part, “An order terminating an
action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other
prosecution for the same offense if it is a felony . . . and the action has been previously
terminated pursuant to this chapter, or Section 859b, 861, 871, or 995. . . .”
       Despite the reference in section 1387, subdivision (a) to an order terminating an
action, it is now well established that the provision applies to the dismissal of a single

3
       A tape recording of appellant’s statements to the officers was played for the jury.

                                              4
count in a criminal proceeding, even though the entire complaint is not dismissed.
(See, 5 Witkin & Epstein, Cal. Crim. Law (4th ed. 2012) Criminal Trial, § 481(3),
p. 749.)
       “ ‘[U]ntil 1975, the interest in prosecuting felonies was considered so much
greater that, while a one-dismissal rule applied to misdemeanors, felony charges could be
refiled ad infinitum. [Citations.]’ [Citation.] However, in 1975, section 1387 was
amended to add the felony ‘two dismissal’ limit. [Citations.] Felony prosecutions are
now generally ‘subject to a two-dismissal rule; two previous dismissals of charges for the
same offense will bar a new felony charge.’ [Citation.] [¶] ‘Section 1387 implements a
series of related public policies. It curtails prosecutorial harassment by placing limits on
the number of times charges may be refiled. [Citations.] The statute also reduces the
possibility that prosecutors might use the power to dismiss and refile to forum shop.
[Citations.] Finally, the statute prevents the evasion of speedy trial rights through the
repeated dismissal and refiling of the same charges. [Citations.]’ [Citation.] ‘The
purpose of section 1387 is to prevent improper successive attempts to prosecute a
defendant.’ [Citation.]” (Berardi v. Superior Court (2008) 160 Cal.App.4th 210,
218-219, italics added.)
       However, “[n]ot every dismissal qualifies as a dismissal for purposes of
section 1387.” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1017, fn. 5 [under
§ 1387, subds. (a)-(c) the statute spells out various circumstances in which a prior
dismissal will be excused and not count toward a prosecution bar].) “Whether a third or
subsequent prosecution of a felony is barred by an earlier termination depends on the
nature and circumstances of the previous dismissals. [Section] 1387 expressly refers to
an action terminated by a dismissal for want of prosecution, speedy trial, or in furtherance
of justice ([section] 1381 et seq., [section] 1385), a dismissal for failure to provide a
speedy or continuous preliminary examination ([section] 859b, [section] 861), a dismissal
for lack of proof that a public offense has been committed ([section] 871), and an order
                                              5
setting aside an indictment or information ([section] 995). Where there are successive
dismissals on any of these grounds, or combinations of them, the order terminating the
second action operates to bar any third or subsequent prosecution on the same charge
unless one of the statutory exceptions applies.” (5 Witkin & Epstein, Cal. Criminal Law
(3d ed. 2000) Criminal Trial § 423, p. 600.)
       In general, the parties agree that section 871 and section 1385, both of which fall
within the purview of section 1387, are implicated in this case.
       In determining whether the complaint in F23664 is a third filing of the
transportation charge as appellant contends, we first look to Martinez, supra, 19
Cal.App.4th 738. In Martinez, the People filed a two-count complaint in which three
defendants were charged with murder and conspiracy to commit insurance fraud. At the
conclusion of the preliminary hearing, the magistrate held one defendant to answer for
murder and held all three defendants to answer for conspiracy to commit insurance fraud.
The magistrate concluded, however, that the evidence was insufficient to provide
reasonable cause to believe two of the defendants were guilty of murder. (§ 871.)
Thereafter, as permitted by section 739, the People filed an information charging all three
defendants with both murder and conspiracy to commit insurance fraud. All three were
arraigned on the information. (Martinez, supra, at p. 742.)
       Meanwhile, the People sought and were granted a grand jury indictment (§ 737)
against, among others, the same three defendants for murder and insurance fraud. After
the indictment was unsealed and presented (§ 944), on the People’s motion, the trial court
dismissed the information in the interest of justice (§ 1385) and arraigned the three
defendants on the indictment. (Martinez, supra, 19 Cal.App.4th at pp. 742-743.)
       On the motion of all three defendants to set aside the indictment, the trial court
found the evidence presented to the grand jury provided reasonable cause to try them for
murder. Two defendants thereafter contended, however, that the dismissal of the
information pursuant to section 1385 was a second termination which, pursuant to
                                               6
section 1387, barred further prosecution under the indictment. The trial court agreed with
these two defendants that prosecution of them for murder under the indictment was
barred by section 1387 and the court dismissed the murder count in the indictment. The
People sought a writ of mandate to compel the superior court to vacate this order.
(Martinez, supra, 19 Cal.App.4th at p. 743.)
       The Court of Appeal held that the magistrate’s dismissal of a murder count at the
end of the preliminary hearing pursuant to section 871 did not terminate the action and,
therefore, the dismissal of the information pursuant to section 1385 on motion of the
prosecutor was the first termination within the meaning of section 1387. (Martinez,
supra, 19 Cal.App.4th at pp. 744-747.) The court explained that a magistrate’s failure to
hold a defendant to answer is not a dismissal because it is not a final termination of the
action. (Id. at p. 744.) The court stated, “The action continues with an information filed
under the same case number pursuant to section 739. The action is not terminated at all if
the superior court disagrees with the magistrate and denies a section 995 motion based on
the evidence produced at the preliminary hearing. The action then proceeds, possibly to
conviction. In any event, the action remains alive at least until the superior court agrees
with the magistrate’s ruling and grants the defendant’s section 995 motion. The action is
terminated when the superior court dismisses the information pursuant to section 995.”
(Id. at p. 745.) The court opined, “[A] magistrate’s (first) dismissal under section 871 is
not by itself a termination of the action when followed by the filing of an information
under section 739 . . . .” (Id. at p. 746.)4

4
       Section 739 authorizes the prosecution, following a section 871 dismissal after a
preliminary hearing, to proceed in the same case by filing an information charging
“offenses shown by the evidence taken before the magistrate to have been committed,”
even if the magistrate did not bind the defendant over for trial on those offenses, as long
as those offenses are transactionally related to the offenses as to which the defendant was
bound over, and as long as the magistrate made no “ ‘material factual findings’ ” negating
those offenses. (People v. Superior Court (Day) (1985) 174 Cal.App.3d 1008, 1015; see
(continued)
                                               7
       When faced with a dismissal of charges by a magistrate, the Martinez court noted
that the prosecution could elect to begin again with a new complaint, or it could seek to
remedy the situation by refiling the dismissed charges pursuant to section 739.
(Martinez, supra, 19 Cal.App.4th at p. 745.) In the first instance, the magistrate’s
dismissal would be deemed final upon the filing of the new complaint. If, on the other
hand, the charges were refiled, a dismissal within the meaning of section 1387 would
occur only if the court dismissed the charges pursuant to section 995. The Martinez court
did not address the occasion where a refiling of the charges is not legally authorized.
However, the Martinez court did state, “Whether the magistrate’s order of dismissal
under section 871 is an order terminating the action within the meaning of section 1387
depends on the circumstances.” (Martinez, supra, at p. 744.)
       We find this case to be indistinguishable from Martinez. Just as in Martinez,
Judge Salazar dismissed the transportation count that had been charged in the complaint
in F23254. Thereafter, the prosecutor filed an information (with the same case number)
in which appellant was charged with possession and transportation of a controlled
substance. Appellant was arraigned on the information. Subsequently, on motion of the
prosecutor, the court dismissed the information pursuant to section 1385. Martinez
controls this case.
       Appellant attempts to avoid this conclusion by arguing that Martinez conflicts
with our Supreme Court’s earlier decision in Ramos v. Superior Court (1982) 32 Cal.3d

also Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665.) Here, the transportation
count was transactionally related to the possession count, and the court at the preliminary
hearing in case F23254 did not make any “material factual findings” negating the
transportation charge. (See Pizano v. Superior Court (1978) 21 Cal.3d 128, 133-134
[when the magistrate either expressly or impliedly accepts the evidence and simply
reaches the ultimate legal conclusion that it does not provide probable cause to believe
the offense was committed, such conclusion is open to challenge by adding the offense to
the information; magistrate’s determination that evidence did not show implied malice to
support murder count did not preclude prosecution from recharging the murder count].)

                                             8
26 (Ramos) and that Martinez was later overruled by the same Court of Appeal for that
reason. Appellant is mistaken on both counts.
       Ramos involved a wholly different procedural posture and presented the type of
prosecutorial harassment that section 1387 was drafted to guard against. (Martinez,
supra, 19 Cal.App.4th at p. 746.) As the Martinez court explained, “In Ramos, after a
magistrate dismissed a special circumstance allegation at the preliminary hearing, the
People filed a new complaint charging the allegation again. A second preliminary
hearing was held, following which the second magistrate also dismissed the allegation.
[Citation.] It was in the context of two separate prosecutions, two preliminary hearings
and two magistrate’s dismissals for insufficiency of evidence (a paradigm example of
successive prosecutions harassing a defendant) that the Supreme Court held further
prosecution under section 739 would violate section 1387. [Citation.] The court was
careful to limit its holding to the circumstance of a second magistrate’s dismissal order.
The court expressly cautioned, ‘We note that this case does not present the question of
the application of section 1387 to a case in which (1) a magistrate dismisses a charge one
time under section 871, (2) the prosecution files an information recharging the dismissed
matter under section 739, and (3) the superior court dismisses the refiled charge under
section 995. Accordingly, we express no view on that issue.’ [Citation.] This comment
suggested the possibility that in the posed hypothetical there is only one termination of a
single action, not two terminations. [¶] In 1984, after Ramos, the Legislature amended
section 1387 (Stats. 1984, ch. 924, § 1, p. 3091) to include the language now found in
subdivision (b)(3): ‘However, if the previous termination was pursuant to
Section . . . 995, the subsequent order terminating an action is not a bar to prosecution if:
[¶] The motion pursuant to Section 995 was granted after dismissal by the magistrate of
the action pursuant to Section 871 and was recharged pursuant to Section 739.’ This
amendment suggests the Legislature also considered a magistrate’s first section 871
dismissal, followed by refiling under section 739 and the grant of a section 995 dismissal,
                                              9
to constitute parts of a single prosecution, resulting in one termination of an action, not
two.” (Ibid.)
       Contrary to appellant’s assertion, Ramos does not necessarily govern a situation
where a magistrate dismisses a charge under section 871, thereafter an information is
filed containing the same charge, and later the information is dismissed by the
prosecution in the interests of justice.
       As to appellant’s assertion that the same court that decided Martinez overruled it
in Bodner v. Superior Court (1996) 42 Cal.App.4th 1801 (Bodner), we find no language
in Bodner questioning the result in Martinez. The Bodner court correctlydistinguished
the procedural posture in Martinez by noting that in Martinez, as here, “the defendants
erroneously attempted to construe the first action as having been terminated twice,
barring prosecution. In that context we referred to the first action as having been
continued under section 739 until dismissed by the superior court under section 1385.”
(Id. at p. 1806.) In contrast to Martinez and this case, where the prosecution continued
the first action by filing an information under section 739, which was never resolved on
the merits, Bodner involved a situation in which multiple triers of fact had determined
that the charge at issue lacked probable cause. (Bodner, supra, at p. 1803.) In Bodner,
there were two complaints, two preliminary hearings, and two section 871 dismissals by a
magistrate.5 (Bodner, supra, at p. 1803.) The Bodner court distinguished Martinez on
those facts. The instant case may be similarly distinguished.

5
        In Bodner, after a preliminary hearing, the magistrate dismissed attempted murder
charges for lack of probable cause, but held the defendant to answer on an assault with a
deadly weapon charge. (Bodner, supra, 42 Cal.App.4th at p. 1803.) Pursuant to
section 739, the prosecution filed an information that alleged the dismissed attempted
murder charges. On defendant’s motion under section 995 to set aside the information,
the superior court dismissed the attempted murder charges for lack of probable cause.
The prosecution then filed another complaint under a new case number alleging the
attempted murder counts. After a second preliminary hearing before a new magistrate,
the attempted murder charges were again dismissed for lack of probable cause. The
(continued)
                                             10
Violation of Miranda
Background
       Before trial, appellant made a motion in limine to exclude statements made to a
deputy sheriff after the car in which he was a passenger was stopped on the ground that
the statements were taken in violation of Miranda, supra, 384 U.S. 436. Pursuant to
Evidence Code section 402, the trial court conducted a hearing on that motion. Sergeant
Dan Freitas of the Santa Cruz County Sheriff’s office testified that on August 16, 2012,
he had been told at a briefing that appellant was a suspect in a homicide investigation and
that the gun used had not been recovered. During the briefing, Sergeant Freitas learned
that a patrol officer, Deputy Wright, was following a car in which appellant was
traveling. A lieutenant told Deputy Wright to stop the car if he saw a Vehicle Code
violation.
       Sergeant Freitas left the sheriff’s office to try to catch up with Deputy Wright.
When he arrived on Highway 17 with his lights and sirens activated, Sergeant Freitas saw
that appellant was still in his vehicle. Deputy Wright had been joined by a CHP officer
who had arrived in a patrol car. Sergeant Freitas drove by appellant’s car and parked in
front of it. Two more officers, Deputy Hop and Deputy Fish, arrived on the scene,
bringing the total of officers to five. Sergeant Freitas estimated that appellant had been
waiting in his car for about 15 minutes. Deputy Wright had parked his patrol vehicle
behind appellant’s car. Sergeant Freitas got out of his car and walked past appellant’s car
to where Deputy Wright and the CHP officer were standing. Sergeant Freitas had been


prosecution then tried to file another information under section 739, including the
attempted murder charges, to which the defendant objected under section 1387. (Bodner,
supra, at p. 1803.) Thus, it was only where the prosecution had filed two complaints and
two informations under section 739, and two magistrates and a superior court judge had
each found insufficient evidence for the prosecution to proceed on the attempted murder
charges that the Bodner court ruled further prosecution was barred by section 1387.
(Bodner, supra, at p. 1803.)

                                             11
instructed to take appellant to the sheriff’s office to be interviewed regarding the
homicide. Sergeant Freitas testified that he was not going to arrest appellant; instead he
was “just bringing him down for a conversation about his involvement in the homicide.”
Sergeant Freitas told Deputy Wright to turn on his digital recorder, which he carried in
his uniform. Then, the deputies asked appellant to get out of the car, handcuffed him, and
patsearched him for weapons.
       The conversation between the officers and appellant was recorded and a recording
and transcript were admitted into evidence for purposes of the Evidence Code section 402
hearing. The transcript of the conversation that occurred after appellant was told to get
out of the car reflects the following:
“Q:    Okay you’re not under arrest right now; do you understand that?
“A:    Uh-huh.
“Q:    Do you understand that you’re not under arrest?
“A:    Sure[,] I guess.
“Q:    We’re just gonna put you in handcuffs real fast till we figure this out, okay?
“A:    Yeah.
“Q:    What do you have court for?
“A:    Driving on a suspended.
“Q:    That’s it? And your court’s in San Jose?
“A:    Yeah.
“Q:    Okay. Are these prescription pills?
“A:    Yeah.
“Q:    Okay. . . Are they in your name?
“Q:    You don’t mind if I check your pockets real quick?
“A:    Sure.
“Q:    What’s this?
“A:    Methadone.
                                             12
“Q:    Methadone? How come you keep it packaged like that?
“A:    I . . I. . . . , anyway, I got if [sic] from someone else.
“Q:    You got it from someone else? It’s not prescribed to you?
“A:    No, I - I have a methadone prescription.
“Q:    You do?
“A:    Uh-huh.
“Q     But is this your prescription?
“A:    Those actual pills came from a different person.
“Q:    Those pills are from a different person?
“A:    Okay.”6
       Later in the conversation one of the officers asked appellant, “Okay. What are
these bad boys?” Appellant replied, “Same thing.” One of the officers asked, “Those are
methadone as well?” Appellant responded that he had fallen off a roof and “[b]lew out
[his] back.” He said he had “two herniated disks in [his] back.” He explained that was
why he was taking the methadone. The officers had appellant sit down, at which point
appellant said, “Sure looks like I’m being arrested for something.” Later, appellant was
taken to the police station.
       Defense counsel argued that appellant was “clearly in custody. There [were] a
number of officers on the scene. There was no—his . . . he was handcuffed. I mean, he
even said at the end of the audio that we heard it sure seems like I’m in custody and there
was a direct question from the officer about the pills and a follow-up question about the
pills. I think those are—those were purposeful to elicit an incriminating response and I
think that fits neatly into what’s prohibited by Miranda.”

6
       As noted in the statement of facts, a tape recording of appellant’s statements to the
police was played for the jury. Violations of Miranda occur only upon the admission of
unwarned statements into evidence at trial. (United States v. Patane (2004) 542 U.S.
630, 641.)

                                                13
       The trial court denied appellant’s motion to exclude his statements. The court
ruled that “[t]aking into account the officer’s testimony and the CD and the transcript, I
do not find that this was a custodial situation at the time that the statement was
made . . . .”
       Appellant contends that his admission that the methadone pills were not prescribed
to him was obtained in violation of Miranda, supra, 384 U.S. 436, and therefore the
entire judgment must be reversed.
       The People counter that appellant was not detained for purposes of Miranda
because appellant was not subjected to custodial interrogation. We are not persuaded.
       At the outset we note that although defense counsel did not contemporaneously
object to the admission of appellant’s statements during trial, appellant has adequately
preserved the issue for review.
       Evidence Code section 353 states: “A verdict or finding shall not be set aside, nor
shall the judgment or decision based thereon be reversed, by reason of the erroneous
admission of evidence unless: [¶] (a) There appears of record an objection to or a
motion to exclude or to strike the evidence that was timely made and so stated as to make
clear the specific ground of the objection or motion; and [¶] (b) The court which passes
upon the effect of the error or errors is of the opinion that the admitted evidence should
have been excluded on the ground stated and that the error or errors complained of
resulted in a miscarriage of justice.” (Stats. 1965, ch. 299, § 2, operative Jan. 1, 1967.)
       In People v. Morris (1991) 53 Cal.3d 152 (disapproved on another ground in
People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1), the defendant moved in limine to
exclude the testimony of two witnesses against him on the ground that their proposed
testimony was the product of coercive conditions in plea agreements reached with the
two witnesses. The trial court denied the motion, and the witnesses testified. The
defendant was convicted. He appealed and contended on appeal that his motion in limine
should have been granted. The People argued that the defendant had waived the issue
                                             14
because he had failed to renew his objection when the evidence was actually offered at
trial. The People argued that the defendant’s failure to renew his objection at trial was a
failure to comply with Evidence Code section 353. The California Supreme Court
disagreed. In finding that the defendant had complied with Evidence Code section 353,
the court stated: “[W]e hold that a motion in limine to exclude evidence is a sufficient
manifestation of objection to protect the record on appeal when it satisfies the basic
requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion
is advanced and subsequently raised on appeal; (2) the motion is directed to a particular,
identifiable body of evidence; and (3) the motion is made at a time before or during trial
when the trial judge can determine the evidentiary question in its appropriate context.
When such a motion is made and denied, the issue is preserved for appeal. On the other
hand, if a motion in limine does not satisfy each of these requirements, a proper objection
satisfying Evidence Code section 353 must be made to preserve the evidentiary issue for
appeal.” (People v. Morris, supra, at p. 190.) We find that appellant’s motion in limine
satisfied each of the foregoing requirements.
       The Miranda court stated that “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination.” (Miranda, supra, 384 U.S. at p. 444.)
       A person is in custody for purposes of Miranda if he is “deprived of his freedom
in any significant way or is led to believe, as a reasonable person, that he is so deprived.”
(People v. Taylor (1986) 178 Cal.App.3d 217, 225.) To put it another way, a person is in
custody when he feels he cannot end the interrogation and leave. (Howes v. Field (2012)
__ U.S. __, __ [132 S.Ct. 1181, 1189-1190].) “Interrogation consists of express
questioning or of words or actions on the part of police officers that they should have
known were reasonably likely to elicit an incriminating response.” (People v. Johnson
(1992) 3 Cal.4th 1183, 1224, citing Rhode Island v. Innis (1980) 446 U.S. 291, 300-301.)
                                             15
       The test of custody is based on “objective circumstances of the interrogation, not
on the subjective views harbored by either the interrogating officers or the person being
questioned.” (Stansbury v. California (1994) 511 U.S. 318, 323.)
       As the California Supreme Court has summarized the test, whether a person is in
custody is an objective test, the pertinent question being whether the person was formally
arrested or subject to a restraint on freedom of movement of the degree associated with a
formal arrest. (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) “ ‘[C]ustody must be
determined based on how a reasonable person in the suspect’s situation would perceive
his circumstances.’ [Citation.]” (People v. Linton (2013) 56 Cal.4th 1146, 1167.)
       In People v. Aguilera (1996) 51 Cal.App.4th 1151, this court identified some of
the circumstances relevant to an inquiry into whether there has been a custodial
interrogation. “Among them are whether contact with law enforcement was initiated by
the police or the person interrogated, and if by the police, whether the person voluntarily
agreed to an interview; whether the express purpose of the interview was to question the
person as a witness or a suspect; where the interview took place; whether police informed
the person that he or she was under arrest or in custody; whether they informed the
person that he or she was free to terminate the interview and leave at any time and/or
whether the person’s conduct indicated an awareness of such freedom; whether there
were restrictions on the person’s freedom of movement during the interview; how long
the interrogation lasted; how many police officers participated; whether they dominated
and controlled the course of the interrogation; whether they manifested a belief that the
person was culpable and they had evidence to prove it; whether the police were
aggressive, confrontational, and/or accusatory; whether the police used interrogation
techniques to pressure the suspect; and whether the person was arrested at the end of the
interrogation. [Citations.]” (Id. at p. 1162.) “No one factor is dispositive. Rather we
look at the interplay and combined effect of all the circumstances to determine whether


                                            16
on balance they created a coercive atmosphere such that a reasonable person would have
experienced a restraint tantamount to an arrest. [Citation.]” (Ibid.)
       “ ‘Whether a defendant was in custody for Miranda purposes is a mixed question
of law and fact. [Citation.] 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].’ [Citation.]”
(People v. Moore (2011) 51 Cal.4th 386, 395.)
       After appellant was found guilty, he brought a new trial motion on the ground that
the admission of his statement obtained without a Miranda warning resulted in the denial
of his constitutional right to a fair trial. In denying the motion the court stated that it had
found “that this was an appropriate detention. I do not find that it was prolonged. I had a
good faith disagreement with [defense counsel] when he brought this motion as pretrial
motion and I have a good faith disagreement with [defense counsel] regarding the motion
for a new trial. The detention was appropriate. I do not find that it was prolonged. I do
agree with both counsel that the court is able to take into account the totality of the
circumstances and the totality of the circumstances involve matters that not only
impacted [sic]upon this particular case but also upon another investigation that was
pending. For officer safety in light of those extenuating circumstances there were
handcuffs applied. I do believe that appropriate investigatory questions were asked. I
don’t find that there was a Miranda violation in this matter in light of all the
circumstances presented.” It appears to this court that the lower court applied the wrong
analysis in this matter.




                                              17
       Appellant does not contend that the police conduct in this case was unreasonable
under the Fourth Amendment. However, as appellant points out, that is not the question
in a Fifth Amendment Miranda analysis.
       Fifth Amendment Miranda custody claims do not examine the reasonableness of
the officer’s conduct, but instead examine whether a reasonable person would conclude
that the restraints used by police were tantamount to a formal arrest. These two distinct
analytical concepts may produce different outcomes. (See United States v. Newton (2d
Cir.2004) 369 F.3d 659, 677 (Newton) [officers’ actions reasonable under Fourth
Amendment but restraints imposed during detention placed defendant in custody for
Miranda purposes].) As Newton explains, “Miranda’s concern is not with the facts
known to the law enforcement officers or the objective reasonableness of their actions in
light of those facts. Miranda’s focus is on the facts known to the seized suspect and
whether a reasonable person would have understood that his situation was comparable to
a formal arrest.” (Id. at p. 675.)
       The facts adduced at the Evidence Code section 402 hearing show that appellant
was in a car that was stopped by an officer in a marked patrol car; the officer stopped his
car behind the car in which appellant was traveling. While the officer waited for
reinforcements, appellant was directed to wait in his car, a period of confinement that last
approximately 15 to 20 minutes. The officer who made the stop was joined by a CHP
officer and one more, possibly two more officers in patrol cars. Sergeant Freitas arrived
with lights and sirens activated. Sergeant Freitas parked in front of appellant’s car such
that the car was blocked in. At least two officers approached appellant and asked him to
get out of the car. Immediately the officers handcuffed appellant and two officers
conducted a patsearch on appellant—the officers were on both sides of appellant
searching him while they questioned him.
       The People rely on Berkemer v. McCarty (1984) 468 U.S. 420 (Berkemer), in
which the United States Supreme Court held that motorists subjected to routine traffic
                                            18
stops are not entitled to Miranda warnings, to argue that this was a routine traffic stop.
This was not a routine traffic stop; the Berkemer court described a routine traffic stop as
follows. “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.) The
Berkemer court explained that the atmosphere of a routine traffic stop is “substantially
less ‘police dominated’ ” than a station house interview because the stop is done in public
and the motorist “is confronted by only one or at most two policemen.” (Id. at p. 439,
italics added.) Here, although the car in which appellant was traveling was stopped by
only one officer, he was told to stay in the car while other officers arrived and then
Sergeant Freitas arrived with lights and sirens activated.
       As noted, “Miranda warnings are not required during the course of a brief
detention unless the suspect is placed under restraints normally associated with a formal
arrest. When this occurs, Miranda warnings are required because the suspect understands
the detention is not likely to be ‘temporary and brief’ and therefore is ‘completely at the
mercy of the police.’ [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395,
1404.) “Handcuffing conveys this message because it is a distinguishing feature of a
formal arrest.” (Id. at pp. 1404-1405.) As the United States Supreme Court explained in
Dunaway v. New York (1979) 442 U.S. 200, handcuffs are considered among “the
trappings of a technical formal arrest.” (Id. at p. 215 & fn. 17; accord, Newton, supra,
369 F.3d at p. 676 [handcuffing recognized as a hallmark of a formal arrest]; United
States v. Maguire (1st Cir.2004) 359 F.3d 71, 79 [handcuffs considered one of the most
recognizable indicia of traditional arrest]; United States v. Glenna (7th Cir.1989) 878
F.2d 967, 972 [handcuffs are restraints on freedom of movement normally associated
with arrest].)
                                             19
       The People cite a case from this court, People v. Lopez (1985) 163 Cal.App.3d 602
(Lopez), for the proposition that appellant’s interrogation was noncustodial. In Lopez,
this court applied the principles stated in Berkemer to find that questioning pursuant to an
automobile stop was not custodial interrogation for purposes of Miranda. We theorized,
“In the case before us, [the] defendant was neither told that he was under arrest nor that
he was not free to leave. He was detained during a traffic stop but he was not the driver.
Although he was ordered out of the car along with the driver, the latter was first
questioned about the nature of his driving. The detention had been relatively brief—it
appears less than 15 minutes—at the point when the defendant was questioned, and the
questions were asked at the roadside, not a place of isolation. The defendant was about a
car-length from [the codefendant] when questioned, so the two of them were apparently
able to hear, as well as see, each other. While there were four officers present, they did
not congregate around defendant but were dispersed among the three suspects. One
officer alone approached and questioned the defendant. The nature of the questioning
was investigatory rather than accusatory. Defendant was asked simply whether he was
present (as [the codefendant] had stated) when [the codefendant] borrowed the tools, and
if he knew their owner.” (Id. at pp. 608-609.)
       Here, in contrast to Lopez, when appellant was told to get out of the car after
Sergeant Frietas arrived with lights and sirens activated, he was immediately handcuffed
and surrounded by at least two officers who were patsearching him while questioning
him. Although he was told he was not under arrest, he was not told that he was free to
leave. It is unclear where the rest of the officers were, but Sergeant Freitas admitted that
there were at least two other officers present at the scene and possibly three more.
       Further, the circumstances in In re Joseph R. (1998) 65 Cal.App.4th 954
(Joseph R.), upon which the Attorney General relies, are not comparable. In that case,
police questioned a 14-year-old boy in front of his house about a rock-throwing incident.
(Id. at p. 957.) The officer asked the boy for consent to conduct a pat-down search,
                                             20
which the boy gave, and specifically told the boy he did not have to answer the officer’s
questions, and the boy was not arrested for another six weeks. (Id. at pp. 957, 961.)
Although the officer had placed the boy in handcuffs in the back of the patrol car for a
few minutes before removing the handcuffs and then asking questions, the court
concluded the boy was not in custody for Miranda purposes. (Ibid.) In fact, Joseph R.
makes the point that the fact that a suspect is handcuffed weighs heavily in the analysis of
whether a person was subject to a restraint on freedom of movement of the degree
associated with a formal arrest. Specifically, the Joseph R. court noted, “[t]his is not to
say that the minor would not have been in custody for purposes of Miranda had he been
questioned while he was still in the car and under the officer’s control. In that case, the
interrogation would have been accompanied by restraints that are normally associated
with an arrest, thereby requiring Miranda warnings be administered. [Citations.]” (Id. at
p. 958, fn. 5.)
       Here, a reasonable person would conclude that appellant had been placed in
custody when officers surrounded him, handcuffed him immediately after he got out of
the car, and simultaneously patsearched him while asking him questions. Although the
prosecution presented evidence negating the assumption that appellant was in custody—
Sergeant Freitas’s categorical statement that appellant was not under arrest—“telling a
suspect that he is not under arrest does not carry the same weight in determining custody
when he is in handcuffs as it does when he is unrestrained.” (Newton, supra, 369 F.3d at
p. 676; United States v. Henley (9th Cir.1993) 984 F.2d 1040, 1042 [handcuffed suspect
entitled to Miranda warnings even though agents informed suspect he was not under
arrest].) Further appellant was never told that he did not have to answer the officers’
questions. Although the detention was fairly brief, appellant was never told that he was
being handcuffed for officer safety. Significantly, after the officers finished asking
appellant questions they placed him in the back of a police car, at which time appellant
said, “Sure looks like I’m being arrested for something.”
                                             21
       “[T]he term ‘interrogation’ under Miranda refers not only to express questioning,
but also to any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely to elicit
an incriminating response from the suspect.” (Rhode Island v. Innis, supra, 446 U.S. at
p. 301, fns. omitted.) Stated another way, “[t]he questioning prohibited by Miranda
means ‘substantive questions which portend to develop the facts under investigation.’
[Citations.]” (People v. Patterson (1979) 88 Cal.App.3d 742, 748.) “In deciding whether
police conduct was ‘reasonably likely’ to elicit an incriminating response from the
suspect, we consider primarily the perceptions of the suspect rather than the intent of the
police.” (People v. Davis (2005) 36 Cal.4th 510, 554.)
       When Sergeant Freitas testified during the trial, he stated that while he was
patsearching appellant he discovered what felt “like a prescription pill bottle.” When he
asked appellant if they were prescription pills, appellant confirmed that they were, so he
left the pills in appellant’s pocket. However, when he found a plastic bag with something
in it, he removed it from appellant’s shirt pocket. Sergeant Freitas described the plastic
bag as having “a burned tip to it” and was in fact “kind of double bagged so there [were]
two bags around it and both of them had burned tips.” Since Sergeant Freitas was asked
by the prosecutor if, in his experience, there was a legitimate reason to have methadone
packed in “those plastic bags” and he answered that there was not, as soon as Sergeant
Freitas discovered the baggie he should have known that any questions he asked
appellant about the baggie were likely to elicit an incriminating response. At that point,
he was no longer patsearching appellant for officer safety; he was investigating a
suspected crime.
       Thus, appellant faced a custodial interrogation. The United States Supreme Court
fashioned Miranda warnings to compensate for the coercive pressures inherent in a
custodial interview, and appellant should have received these warnings before the


                                             22
interviewing officer questioned him about the pills packaged in the plastic baggie the
officers found while searching appellant.
       Finally, “[t]he erroneous admission of statements obtained in violation of Miranda
is reviewed for prejudice pursuant to Chapman v. California (1967) 386 U.S. 18
(Chapman). [Citations.] Under Chapman, reversal is required unless the People
establish that the court’s error was ‘harmless beyond a reasonable doubt.’ [Citation.]”
(In re Z.A. (2012) 207 Cal.App.4th 1401, 1422.) “Under [the Chapman ] test, the
appropriate inquiry is ‘not whether, in a trial that occurred without the error, a guilty
verdict would surely have been rendered, but whether the guilty verdict actually rendered
in this trial was surely unattributable to the error.’ [Citation.]” (People v. Quartermain
(1997) 16 Cal.4th 600, 621.)
       The People do not address the issue of whether the admission of appellant’s
statements, if erroneous, was harmless; and we cannot find the admission of appellant’s
statements taken in violation of Miranda to be harmless in this case. The only evidence
that some of the methadone that appellant had in his possession was not that which had
been prescribed to him came from appellant’s statements “I got it from someone else”
and “Those actual pills came from a different person.” His statements that some of the
pills were not his were essential to his convictions. There was no other testimony or
evidence supporting that fact, which was required to prove both offenses.7 Both Health

7
        While appellant was apprehended with the methadone, he had a legal prescription
for the drugs; his statement that some of the pills came from another person was crucial
to his conviction. As the prosecutor told the jury, “I said at the beginning of this case that
this was a very simple and straight forward case. And at some level that’s exactly the
kind of case you saw. It’s undisputed that Mr. Tisdale had the pills on him. He said
twice I got them from someone else. I got them from another person. That’s clearly not
his prescription which makes it unlawful for him to have them and that means if he
possessed them that’s Count 2, possession of methadone, and if he transported them in a
vehicle any distance that’s transportation, Count 1. The case really can’t be any simpler
than that. You can literally go back in the deliberation room all agree that those facts are
(continued)
                                              23
and Safety Code sections 11352 and 11350 exempt from their reach transportation of and
possession of a controlled substance “upon the written prescription of a physician . . . .”
Accordingly, we conclude that the guilty verdicts rendered in this case were attributable
to the erroneous admission of appellant’s statements taken in violation of Miranda.8
                                        Disposition
       The judgment is reversed.




true since they quite frankly are not even in dispute by either side and you can vote guilty
on those facts alone.”
8
        Appellant filed a supplemental brief challenging two sentencing enhancements
imposed under section 667.5, subdivision (b) on the ground that there was insufficient
evidence showing that he was either convicted of a felony or served time in state prison
between April 17, 2002, and December 29, 2008. The People concede the issue and
suggest that this court strike the sentences for the prior prison term enhancements.
However, since we must reverse this case, the issue is moot.

                                             24
                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
PREMO, Acting P. J.




_______________________________
MIHARA, J.
