Filed 10/29/13 P. v. Guzman CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047504

         v.                                                            (Super. Ct. No. 11NF3668)

ANDREW CUEVAS GUZMAN,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
Richard M. King, Judge. Affirmed.
                   Gerald J. Miller, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and
Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
                                     INTRODUCTION
                Defendant Andrew Cuevas Guzman appeals from the judgment entered
after a jury found him guilty of forgery, possession of a forged instrument, possession of
a fictitious instrument, and second degree burglary. The trial court found Guzman had
suffered two prior strike convictions and served two prior prison terms. Guzman
contends the trial court erred by admitting evidence of statements he made to police
officers before he was read his rights under Miranda v. Arizona (1966) 384 U.S. 436
(Miranda). He also contends the case should be remanded for resentencing in light of the
passage of Proposition 36, also known as the Three Strikes Reform Act of 2012,
following his sentencing hearing.
                We affirm. Guzman was not in custody at the time he made the statements
at issue; therefore, Miranda did not apply. Guzman has failed to establish any basis for
resentencing.


                                     BACKGROUND
                Guzman was charged in an information with forgery, in violation of Penal
Code section 470, subdivision (d) (count 1); possession of a forged instrument, in
violation of Penal Code section 475, subdivision (a) (count 2); possession of a fictitious
instrument, in violation of Penal Code section 476 (count 3); and second degree
commercial burglary, in violation of Penal Code sections 459 and 460, subdivision (b)
(count 4). (All further statutory references are to the Penal Code unless otherwise
specified.) The information alleged Guzman had suffered two prior strike convictions
within the meaning of sections 667, subdivisions (d) and (e)(2)(A), and 1170.12,
subdivisions (b) and (c)(2)(A). The information also alleged Guzman served two prior
prison terms within the meaning of section 667.5, subdivision (b).
                The jury found Guzman guilty on all four counts as charged. The trial
court found true the prior strike conviction and the prior prison term allegations. The

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court imposed a total prison term of nine years four months by imposing a six-year term
for count 1, a consecutive term of 16 months for count 3, and a consecutive term of two
years for Guzman‟s prior prison terms. The court struck one of the prior strike
convictions, stating punishment under section 667, subdivisions (d) and (e)(2) “as a two
strike charge is stricken in the interest of justice pursuant to Penal Code section 1385[,
subdivision ](c)(1).” The court stayed the execution of sentence on counts 2 and 4 under
section 654.
               Guzman appealed.


                                       DISCUSSION
                                              I.

               THE TRIAL COURT DID NOT ERR BY ADMITTING EVIDENCE OF
                STATEMENTS GUZMAN MADE TO POLICE OFFICERS BEFORE
                   HE WAS ADVISED OF HIS RIGHTS UNDER MIRANDA.
               Guzman contends the trial court erred by admitting into evidence
statements he made to police officers before he was advised of his rights under Miranda,
supra, 384 U.S. 436, because they were made during an in-custody interrogation.
Guzman‟s argument is without merit because he was not in custody at the time he made
those statements.
                                             A.
                                Governing Legal Principles
               “Miranda warnings are required only where there has been such a
restriction on a person‟s freedom as to render him „in custody.‟” (Oregon v. Mathiason
(1977) 429 U.S. 492, 495; People v. Ochoa (1998) 19 Cal.4th 353, 401 [“„Absent
“custodial interrogation,” Miranda simply does not come into play‟”].) “An interrogation
is custodial when „a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.‟ [Citation.] Whether a person is in custody is


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an objective test; the pertinent inquiry is whether there was „“„a “formal arrest or
restraint on freedom of movement” of the degree associated with a formal arrest.‟”‟
[Citation.] [¶] 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].” (People v.
Leonard (2007) 40 Cal.4th 1370, 1400, italics added; see People v. Ochoa, supra, at
p. 402 [“„Once the scene is . . . reconstructed, the court must apply an objective test to
resolve “the ultimate inquiry”: “[was] there a „formal arrest or restraint on freedom of
movement‟ of the degree associated with a formal arrest”‟”].)
              In determining whether a defendant was in custody for purposes of
Miranda, “[t]he totality of the circumstances surrounding an incident must be considered
as a whole. [Citation.] Although no one factor is controlling, the following
circumstances should be considered: „(1) [W]hether the suspect has been formally
arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio
of officers to suspects; and (5) the demeanor of the officer, including the nature of the
questioning.‟” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403; see People v.
Moore (2011) 51 Cal.4th 386, 395 [“All the circumstances of the interrogation are
relevant to this inquiry, including the location, length and form of the interrogation, the
degree to which the investigation was focused on the defendant, and whether any indicia
of arrest were present”].) “Additional factors are whether the suspect agreed to the
interview and was informed he or she could terminate the questioning, whether police
informed the person he or she was considered a witness or suspect, whether there were
restrictions on the suspect‟s freedom of movement during the interview, and whether

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police officers dominated and controlled the interrogation or were „aggressive,
confrontational, and/or accusatory,‟ whether they pressured the suspect, and whether the
suspect was arrested at the conclusion of the interview.” (People v. Pilster, supra, at
pp. 1403-1404.)
                                             B.
                         The Evidence Code Section 402 Hearing
              Before trial, Guzman‟s counsel requested a hearing on the admissibility of
evidence of statements Guzman made before he was advised of his rights under Miranda.
The trial court held an Evidence Code section 402 hearing at which Anaheim Police
Officer Ryan Killeen testified; a summary of his testimony is as follows.
              On December 9, 2011 about 11:48 a.m., Killeen and Officer Michael
Riddell were on duty, working patrol together in a black and white marked police vehicle,
when they were dispatched to respond to “a forgery in progress” at a check-cashing store
in Anaheim. The officers were informed that the individual who attempted to cash the
check in question provided a California driver‟s license bearing the name “Andrew
Guzman.”
              The officers arrived at the store “within minutes” of receiving the dispatch.
They did not activate the lights or siren of their police vehicle. Both officers were in
uniform.
              Killeen and Riddell entered the store, saw Guzman sitting on a bench near
the store‟s entrance, and engaged him in conversation. During the conversation, the two
officers stood about five or six feet in front of Guzman. The officers did not have
Guzman stand up or walk anywhere before asking him questions.
              Killeen asked Guzman if he was Andrew Guzman; Guzman answered in
the affirmative. Killeen asked Guzman “what he was doing inside the business.”
Guzman said he was trying to cash a check. Killeen asked what the check was for, and
Guzman said “for his work.” Killeen asked him the name of the company he worked for

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and Guzman told Killeen he did not know. Killeen asked Guzman what he did for the
company. Guzman said, “he had been a driver for about a week.” Killeen‟s questioning
took a “[m]aximum” of 30 seconds. Killeen did not further converse with Guzman about
the incident or otherwise.
              Neither Killeen nor Riddell removed his gun, handcuffs, taser, “ASP,” or
anything of that nature, during the conversation. Neither officer made any statement
“indicating that [Guzman] was under arrest” or that he was not free to leave. The officers
did not tell him they wanted him to move to another location. After their conversation
ended, Killeen placed Guzman in handcuffs.
                                             C.

            The Trial Court Did Not Err by Admitting Evidence of Guzman‟s
             Statements to Killeen and Riddell Because Guzman Was Not in
                       Custody When He Made Those Statements.
              The trial court concluded Guzman‟s statements to Killeen and Riddell were
admissible, finding they were voluntarily made and that a reasonable person in Guzman‟s
position would not have felt that he or she was in custody, or the functional equivalent of
custody, at the time the statements were made. The court found the prosecution had laid
the appropriate foundation for the admission of the statements Guzman made “prior to
the handcuffs being placed on him.”
              The trial court did not err by concluding that Guzman was not “in custody”
for purposes of Miranda at the time he made the subject statements to Killeen and
Riddell. At the time Guzman made the statements, he had not been placed under arrest;
neither officer had told him that he was under arrest or that he was not free to leave.
Killeen‟s questioning of Guzman took a “[m]aximum” of 30 seconds and took place near
the front door of a public business; the officers did not ask Guzman to stand up or tell
him that they wanted him to move to another location. The ratio of officers in relation to
Guzman was only two to one; Killeen alone questioned Guzman and both officers stood


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five to six feet away from Guzman during that questioning. Killeen‟s questions were
brief and not accusatory in nature. Neither officer displayed any weaponry during the
conversation with Guzman. Nothing in the record suggests that the demeanor of the
officers was in any way aggressive, confrontational, or accusatory. We find no error in
the admission of evidence of Guzman‟s statements to Killeen and Riddell.


                                             II.
         GUZMAN IS NOT ENTITLED TO RESENTENCING UNDER PROPOSITION 36.
              Guzman contends this court should remand the instant case to the trial court
for resentencing in light of the passage of Proposition 36 one month after his sentencing
hearing. Guzman‟s argument is without merit.
              Proposition 36 amended sections 667 and 1170.12, effective November 7,
2012, so that an indeterminate term of 25 years to life in prison is applied only where the
third strike offense is a serious or violent felony or the prosecution pleads and proves an
enumerated factor. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C); People v.
Yearwood (2013) 213 Cal.App.4th 161, 169-170.)
              Proposition 36 also created section 1170.126, which provides a procedure
for resentencing “persons presently serving an indeterminate term of imprisonment”
under the “Three Strikes” law, “whose sentence under this act would not have been an
indeterminate life sentence.” (§ 1170.126, subd. (a).) Such a person may file a petition
to recall his or her sentence and be sentenced as a second strike offender. (§ 1170.126,
subd. (b).) An inmate is eligible for such resentencing if none of his or her commitment
offenses constitutes serious or violent felonies and none of the enumerated factors
disqualifying an inmate for resentencing under Proposition 36 applies. (§ 1170.126,
subd. (e).) Resentencing of eligible inmates may, nonetheless, be refused if the trial
court, “in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Subdivision (g) of

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section 1170.126 sets forth several factors that a trial court may consider in exercising
that discretion.
              Here, as the trial court did not impose an indeterminate 25-year-to-life
sentence, Proposition 36 does not apply to Guzman‟s prison sentence—a determinate
sentence of nine years four months. Furthermore, the trial court clearly understood its
discretion to strike Guzman‟s prior strike convictions for purposes of sentencing, as the
court, in fact, struck one of Guzman‟s prior strike convictions before imposing sentence.
The court explained its exercise of discretion as follows: “I am going to strike one of the
strikes, and I‟m required to enter into the minutes the reasons why. The reason that the
court is exercising its discretionary authority under People vs. Romero and Penal Code
section 1385 subsection (c) subdivision (1) are the following reasons: First, the nature of
the current offense is less serious than other felonies; number two, the current offense is
not a violent or serious felony; three, the facts and circumstances of the current case
offense do not indicate a greater degree of danger to society. I just wanted to embellish
on that a little bit. If this was a residential burglary, I could understand the People‟s
position, but we don‟t—it‟s a commercial establishment, somebody attempting to get
money through fraud. Next, there was no injury or threat of injury to any person. There
was no weapon used in this—in this current offense. Next, the amount of monetary loss
was perhaps—I want to use the word, „small,‟ but it‟s to a point where the victims are not
asking for restitution. Next, the defendant‟s strikes do arise out of the same case number,
although I have considered that they were two independent actions. And finally, the
priors, although the defendant has been to prison, I have taken into account that these
convictions occurred in 2004. So for those reasons, the court is—based on the nature and
the circumstances of this crime and the defendant‟s background, that the imposition of a
life sentence in this case would be unjust and unwarranted.”




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                                  DISPOSITION
            The judgment is affirmed.




                                            FYBEL, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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