Filed 5/29/13 P. v. Everett CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055721

v.                                                                       (Super.Ct.No. FWV1101391)

JAMIL URAIL EVERETT,                                                     OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,

Judge. Affirmed.

         Law Office of Zulu Ali and Zulu Ali for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, James D. Dutton, and Donald W.

Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

                                                             I

                                                 INTRODUCTION

         A jury convicted defendant Jamil Urail Everett of possession of methamphetamine

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(Health and Saf. Code, § 11377;1 count 1); being a felon in possession of a firearm

(§ 12021, subd. (a)(1)); and possession of a false driver’s license (§ 529.5, subd. (c);

count 3). The jury also found true, as to counts 1 and 2, allegations that defendant

committed the crimes while released on bail (§ 12022.1). Defendant admitted he had one

prison prior (§ 667.5, subd. (b)). The trial court sentenced defendant to eight years four

months in prison.

        Defendant contends on appeal that the trial court abused its discretion in denying

his motion to continue the trial. Defendant also asserts that the trial court committed

reversible error in admitting into evidence a jailhouse audio recording and his statement

given to the police while he was in the hospital. We reject defendant’s contentions and

affirm the judgment.

                                               II

                                            FACTS

        On April 7, 2011, at approximately 7:00 p.m., the San Bernardino County

Sheriff’s Department attempted to initiate a traffic stop in furtherance of executing an

outstanding arrest warrant on defendant. Defendant was a passenger in a vehicle driven

by his girlfriend. When two police cars attempted to initiate the traffic stop, defendant’s

vehicle sped away. The car eventually pulled over. Defendant quickly got out of the car

and took off running. Deputy Peppler contacted the driver who remained in the car,



        1   Unless otherwise noted, all statutory references are to the Health and Safety
Code.

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defendant’s girlfriend, and searched the car. Peppler found a nine-millimeter handgun

underneath the front passenger seat where defendant had been sitting.

       Meanwhile, two other deputies chased defendant on foot, while Sheriff’s Detective

Futscher drove an undercover truck through the neighborhood looking for defendant. As

Futscher was driving, defendant ran out from behind a vehicle, in front of Futscher’s

truck, and Futscher accidently hit him with the truck, breaking defendant’s femur.

Futscher apprehended defendant, called for medical care, and searched him. Futscher

found a bindle of methamphetamine and $6,491 in cash.

       About 90 minutes after the accident, Futscher interviewed defendant at the

hospital. Defendant admitted he knew there was an outstanding warrant out for his arrest

and that, when the police attempted to stop his girlfriend’s car, he initially told her not to

stop, but eventually told her to pull over. He then ran from the vehicle. Defendant also

admitted that he had bought the gun found in the car a few weeks earlier.

       On April 17, 2011, defendant called his mother from jail. The call was recorded

and played for the jury. During the call, defendant stated that he had been “busted” and

caught with a “nine.”

                                              III

                   DEFENDANT’S MOTION TO CONTINUE TRIAL

       Defendant contends the trial court abused its discretion in denying his motion to

continue the trial to allow him to prepare adequately for trial. Defendant requested a

continuance on the grounds the prosecution failed to disclose more than 30 days before

trial the name of its witnesses and the written transcript of an audio recording of a

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jailhouse call. The transcript and amended witness list, which added the witness who

transcribed the audio recording, were not disclosed until two days before trial. This,

defendant argues, prevented him from adequately preparing for trial and therefore there

was good cause for the trial court to grant a continuance.

       Penal Code section 1050, subdivision (e) provides that, “Continuances shall be

granted only upon a showing of good cause.” In determining whether good cause exists

to grant or deny a continuance, a court looks to the facts and circumstances of each case.

The trial court, in determining whether good cause exists, as necessary to grant a

continuance, “must consider ‘“‘not only the benefit which the moving party anticipates

but also the . . . burden on other witnesses, jurors and the court and, above all, whether

substantial justice will be accomplished or defeated by a granting of the motion.’”’”

(People v. Doolin (2009) 45 Cal.4th 390, 450.) “‘[A]s a general matter, a trial court “has

broad discretion to determine whether good cause exists to grant a continuance of the

trial” [citation], and that, in reviewing a trial court’s good-cause determination, an

appellate court applies an “abuse of discretion” standard. [Citations.]’ [Citation.]”

(People v. Engram (2010) 50 Cal.4th 1131, 1163, quoting People v. Sutton (2010) 48

Cal.4th 533, 546.)

       Here, the trial court did not abuse its discretion in denying defendant’s request for

a continuance because the reason for requesting a continuance, given by defense counsel

in the lower court, did not constitute good cause. The grounds for a continuance asserted

on appeal were not raised in the trial court. The clerk’s transcript states, “Defense has

filed a motion to continue pursuant to PC1050,” but a written motion is not included in

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the record on appeal. This court therefore cannot determine the grounds upon which the

motion was made, other than from the reporter’s transcript. The October 21, 2011,

minute order reflecting the ruling on the motion, merely states that the trial court denied

defendant’s motion for a continuance. There is no statement in the minute order of the

trial court’s reasons for denying the motion. However, according to the reporter’s

transcript of the hearing, defense counsel moved for a continuance because he was

required to try another case at the same time as defendant’s trial.

       The trial court explained during the motion hearing that it denied the continuance

because, on September 26, 2011, defense counsel announced ready to try the case and

selected the trial date of October 24, 2011. Then defense counsel inappropriately gave

priority to the case of another client who was out-of-custody, whereas defendant was in

custody. The trial court therefore concluded there was no good cause for continuing

defendant’s trial. Defendant’s trial thus began, as originally scheduled, on October 24,

2011, with defense counsel representing defendant.

       On appeal, defendant argues the prosecution failed to disclose timely the written

transcript of an audio recording of a jailhouse call and the witness who transcribed the

recording. Because the record does not reflect that defendant requested a trial

continuance based on the grounds asserted on appeal, defendant forfeited his objection to

the trial court’s ruling on his motion for a trial continuance. (United States v. Olano

(1993) 507 U.S. 725, 731; People v. Partida (2005) 37 Cal.4th 428, 431.) Even if

defendant did not forfeit the grounds asserted for the first time on appeal, we conclude



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the trial court did not abuse its discretion in denying a continuance because defendant has

failed to establish there was good cause for a continuance.

                                              IV

              MOTION TO SUPPRESS AUDIO RECORDING EVIDENCE

       During defendant’s jailhouse telephone conversation with his mother, defendant

explained he had received traffic tickets, which were unresolved. Defendant then

implicated himself when he told his mother officers “[b]usted me on a 211 – reckless

driving, plus the nine I just got caught with, and . . . the first 459 [burglary prior]. That’s

some real shit.” Defendant added that his attorney wanted him to plead guilty only to the

traffic tickets. Defendant stated, “I’ll plead guilty to all of that Ma.”

       Defendant filed a motion in limine to exclude the jailhouse recording on the

ground it was of poor quality and inaudible, making the recording untrustworthy.

Defendant also argued the recording was irrelevant and created a substantial risk of

undue prejudice by misleading the jury. The trial court conducted a hearing on the

admissibility of the recording after listening to it and reviewing the recording transcript.

The court found the recording was very relevant and audible, particularly as to defendant

admitting he was in possession of the a nine-millimeter handgun.

       Defendant argues the trial court erred in admitting into evidence the jailhouse

recording because it was of such poor quality that it resulted in speculation and

unfairness. Defendant also asserts that his statement that he was caught with a “nine”

could be misconstrued by the jury as meaning that he actually possessed a nine-

millimeter handgun when he meant something else. Deputy Peppler testified he searched

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the vehicle involved in the incident and found a nine-millimeter handgun underneath the

front passenger seat where defendant had been sitting.

       When a trial court rules on a motion to suppress evidence, it “‘“(1) finds the

historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the

former to determine whether the rule of law as applied to the established facts is or is not

violated. [Citations.] . . . The court’s resolution of the first inquiry, which involves

questions of fact, is reviewed under the deferential substantial-evidence standard.

[Citations.] Its decision on the second, which is a pure question of law, is scrutinized

under the standard of independent review. [Citations.] Finally, its ruling on the third,

which is a mixed fact-law question that is however predominantly one of law, . . . is also

subject to independent review.” [Citation.]’ [Citations.]” (People v. Carter (2005) 36

Cal.4th 1114, 1140.)

       In this case, we apply the independent standard of review when applying the facts

to the law. In doing so, we conclude the trial court did not err in admitting the recording

because it was highly relevant. Defendant indicated in the recording that he had been

caught in possession of a nine-millimeter handgun and was willing to plead guilty to the

offense. Defendant has failed to establish that the trial court abused its discretion and

erred in admitting the recording based on a finding that the recording was sufficiently

audible and relevant, particularly the portion of the tape implicating defendant of

possession of a handgun.

       Even if we were to assume that the trial court erred in admitting the recording, any

error was harmless because it is not reasonably probable that the jury would have reached

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a more favorable result to defendant had the challenged evidence been excluded. (People

v. Carter, supra, 36 Cal.4th at p. 1152; People v. Watson (1956) 46 Cal.2d 818, 836.)

Defendant’s defense was that the handgun did not belong to him. The officer who found

the handgun testified that it was found under the front passenger seat where defendant

had been sitting and, shortly after the incident, defendant admitted to the investigating

detective that the gun was his and he had purchased it a few weeks earlier.

                                             V

      ADMISSIBILITY OF DEFENDANT’S IN-CUSTODY INTERROGATION

       Defendant contends the trial court erred in admitting statements and evidence

obtained when Detective Futscher interrogated defendant at the hospital about an hour

and a half after the charged offense. Defendant argues that he did not voluntarily,

knowingly, and intelligently waive his Miranda2 rights because, at the time, he was in

custody, in severe pain, and heavily medicated for injuries sustained when Futscher

struck defendant with a police vehicle.

       Defendant filed a motion in limine under Penal Code section 1538.5, to suppress

statements defendant made during the hospital interrogation. Defendant argued his

statements were made in violation of his Fifth Amendment rights, under Miranda. The

People filed opposition arguing defendant voluntarily and intelligently waived his

Miranda rights. The trial court conducted an Evidence Code section 402 hearing (402

hearing) during which Futscher testified. Futscher testified he interviewed defendant in


       2   Miranda v. Arizona (1966) 384 U.S. 436.

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the hospital while defendant was handcuffed to the bed. Futscher began the interview by

advising defendant of his Miranda rights. Defendant responded that he understood his

rights and waived them. Defendant then provided a statement about the incident.

Futscher testified that during the hospital interrogation, defendant appeared lucid and

seemed to understand Futscher’s questions. Defendant responded appropriately.

Futscher spoke with defendant for about 10 minutes, with the formal part of the interview

lasting about five minutes, until defendant invoked his rights and requested to speak to a

lawyer.

       Futscher further testified that defendant did not seem to be medicated or in so

much pain that he did not understand Futscher’s questions. Defendant spoke clearly.

Futscher had no problem understanding him. He seemed to recall accurately names and

events leading up to when defendant was struck by Futscher’s truck. Medical personnel

in the emergency room told Futscher that defendant had suffered a broken femur.

       Defendant testified during the 402 hearing that, while being transported to the

hospital, he was given a shot and put on an IV drip. Defendant only remembered “[b]its

and pieces” of being in the hospital. He remembered that, after arriving at the hospital,

he spoke to a deputy and had surgery. He did not remember the surgery because he was

in so much pain. Defendant also did not remember the questions Futscher asked him or

anything defendant told him but remembered Futscher was present at the hospital.

Defendant only remembered waking up the next day in the hospital.

       After hearing testimony and argument, the trial court denied defendant’s motion to

exclude defendant’s hospital statements. The court explained that extensive case law

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holds that waivers of Miranda rights by individuals who are injured and medicated for

pain are not necessarily involuntary. The court must consider the totality of the

circumstances. In the instant case, the evidence established circumstances reflecting that

defendant was lucid, he was able to respond clearly, he understood his Miranda rights,

and he willingly gave a statement.

       Defendant argues that he did not voluntarily waive his Miranda rights. In

reviewing such a claim, “we accept the trial court’s resolution of disputed facts and

inferences, and its evaluation of credibility, if supported by substantial evidence.

[Citation.] Although we independently determine whether, from the undisputed facts and

those properly found by the trial court, the challenged statements were illegally obtained

[citation], we ‘“give great weight to the considered conclusions” of a lower court that has

previously reviewed the same evidence.’ [Citations.]” (People v. Wash (1993) 6 Cal.4th

215, 235-236; see also People v. Whitson (1998) 17 Cal.4th 229, 248.) The government

has the burden of demonstrating voluntariness by a preponderance of the evidence.

(Whitson, at p. 248; People v. Weaver (2001) 26 Cal.4th 876, 920.) Generally,

voluntariness is determined from the totality of the circumstances, including the

circumstances surrounding the interrogation and the defendant’s characteristics. (People

v. Williams (1997) 16 Cal.4th 635, 660.)

       On appeal, defendant challenges the admission of his statements made at the

hospital on the ground they were involuntary in that he lacked the mental capacity to

waive his Miranda rights. He claims he was interrogated at a time when he was in a



                                             10
weakened physical and psychological condition as the result of his femur injury and

because he was medicated.

       Applying the foregoing law to the record before us, we conclude defendant’s

statements were voluntary. Futscher testified that defendant was read his rights and

waived them. Futscher also testified that defendant said he understood his rights, and his

responses seemed normal. The trial court believed Futscher’s testimony and there is

nothing in the record to indicate otherwise. Nor did defendant testify he did not

understand his rights. Rather, defendant made the self-serving statement that he did not

remember much of anything, including Futscher asking him questions.

       Even assuming defendant was medicated and or suffering pain from his femur

injury, there was substantial evidence that he voluntarily waived his Miranda rights.

Futscher’s testimony established that defendant was able to comprehend and answer all

the questions posed to him. (People v. Hendricks (1987) 43 Cal.3d 584, 591 [the mere

fact of consumption of drugs or alcohol does not establish an impairment of capacity so

as to render a confession inadmissible]; People v. Breaux (1991) 1 Cal.4th 281, 299-301

[claim of incapacity to waive Miranda rights premised on the defendant’s mental

condition due to injection of morphine to reduce pain rejected where nothing in the

record indicated he did not understand questions posed to him]; People v. Jackson (1989)

49 Cal.3d 1170, 1189 [claim of incompetence premised on the defendant’s physical and

mental condition due to confrontation with officers and ingestion of drugs rejected where

nothing in the record indicated he did not understand questions posed to him].)

Futscher’s testimony established that defendant was lucid during the hospital

                                            11
interrogation and gave clear answers. We therefore conclude the evidence was sufficient

to support the trial court’s finding that defendant voluntarily waived his Miranda rights

and, in turn, the court did not err in admitting defendant’s hospital statements.

                                             VI

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                            J.

We concur:


RAMIREZ
                        P. J.


McKINSTER
                           J.




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