Filed 7/28/14

                             CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                       DIVISION ONE

                                 STATE OF CALIFORNIA



THE PEOPLE,                                          D063266

        Plaintiff and Respondent,

        v.                                           (Super. Ct. No. JCF29156)

CHRISTIAN ABRAHAM CASTILLO,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of Imperial County,

Christopher J. Plourd, Judge. Affirmed.

        Christian C. Buckley, 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, Barry J.T. Carlton and Michael T.

Murphy, Deputy Attorneys General, for Plaintiff and Respondent.



        In this case, we reject defendant's contention that the trial court erred when it

denied his pretrial request to enforce a negotiated disposition because there was no
agreement for the court to enforce and even assuming defense counsel's representation

was deficient, the defendant could not establish prejudice. We also conclude the trial

court did not err when it denied defendant's motion to suppress evidence of statements he

made to police as having been taken in violation of Miranda v. Arizona (1966) 384 U.S.

436 (Miranda) because the defendant was not in custody when, prior to the execution of a

search warrant on a residence, a police officer asked defendant two questions while the

defendant and two others sat handcuffed in the residence.

              GENERAL FACTUAL AND PROCEDURAL BACKGROUND

         On a morning in July 2012, members of the El Centro Police Department SWAT

team and other narcotics investigation officers executed a forced entry search of Christian

Abraham Castillo's residence where it was believed that a known drug dealer sold

narcotics. Castillo, his girlfriend Crystal Obeso, and his brother Alfredo Castillo, were

inside the residence. At the time, police did not have any information on Castillo.

During their search, officers found, among other things, a salable quantity of

methamphetamine, cash, a digital scale and a handgun.

         A jury convicted Castillo of possessing methamphetamine for sale and being a

felon in possession of a firearm. It also found true the allegation that Castillo was armed

with a firearm when he possessed the methamphetamine for sale. The trial court

subsequently found true the allegation that Castillo had previously been convicted of a

drug-related offense. The trial court sentenced Castillo to a total prison term of nine

years.



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                                       DISCUSSION

                            I. Motion to Enforce Plea Bargain

A. Factual Background

       Prior to the preliminary hearing, the prosecutor offered five years and stated that if

the offer was rejected, the People would be adding an additional "five-year" firearm

enhancement. Defense counsel explained that when he relayed the initial five-year offer

to Castillo in August, he informed Castillo that if Castillo rejected the offer, the People

would file an amended complaint to add the firearm enhancement and that the additional

charges would raise Castillo's maximum exposure to 11 years in prison. Castillo rejected

the offer.

       In early October 2012, defense counsel calendared a motion to disclose the

identity of confidential informants, which was set for hearing on October 24. (All further

date references are to 2012.) During negotiations before the hearing on the motion, the

prosecutor told defense counsel that the People might be open to a counteroffer, wherein

defense counsel inquired about three years. The prosecutor responded, " 'Make me the

offer. We might consider it.' " Castillo, however, never made a counteroffer.

       Later that day, defense counsel visited Castillo and talked to him about making an

offer consistent with the prosecutor's suggestion. During that discussion, defense counsel

incorrectly told Castillo that his maximum exposure in the case was seven years eight

months. Defense counsel told Castillo he believed the motion to disclose confidential

informants was "a close call and could go either way." Defense counsel informed



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Castillo that if he lost the motion to disclose confidential informants, no further plea

offers would be considered and the case would proceed to trial.

       If the motion was granted, however, "it was very likely that the case would be

dismissed." Defense counsel advised Castillo that a three-year deal was "very fair" and

recommended that he "make such an offer to avoid the harsher consequences that could

result if he lost his motion and the trial." Castillo informed counsel that he "wanted to

take his chances with the motion, and declined to make a three year offer to settle the

case based partially on this factor."

       Sometime thereafter, defense counsel informed Castillo he had misadvised him

regarding his maximum exposure. During that discussion, Castillo responded by saying

he would have chosen to make an offer to settle the case for three years had he known his

exposure was eleven years eight months.

       On the first day of trial, the court heard and denied Castillo's Miranda motion.

Later that day, defense counsel informed the court that he had misadvised Castillo on his

potential exposure in the case. Defense counsel argued that Castillo would have made a

three-year offer had he understood his total exposure and that Castillo was moving to

specifically enforce a three-year plea bargain. Given his error, defense counsel felt that

separate counsel should be appointed to file a formal motion on the issue.

       The prosecutor told the court that had defense counsel made an offer to resolve the

case that included a three-year prison term, her office "probably" would have accepted

such an offer at that time. The prosecutor also disclosed that she had spoken to defense

counsel the prior evening, but that Castillo was not willing to accept three years and that

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he wanted a year. At a later hearing, defense counsel confirmed that he had offered one

year in a program plus one year county jail, but the prosecutor declined the offer. The

court denied the oral motion, stating it would consider a written motion, but that "there

has to be an agreement to enforce."

       After a jury had been sworn and pre-instructed, Castillo filed a written motion to

enforce the plea bargain. Citing In re Alvernaz (1992) 2 Cal.4th 924 (Alvernaz), Castillo

asked the court to enforce a three-year plea bargain. Alternatively, he asked for a new

trial "with a resumption of the plea bargaining process." The trial court denied the

motion finding that Alvernaz did not control because no offer of three years had been

made or accepted by either party and the evidence did not support Castillo's claim that he

would have taken such a deal at that time even if he had been accurately advised of his

prison exposure. As to this second point, the court explained the following:

           "I don't think there is anything about the advice that you gave him,
           and I'm not convinced that he would have ever made such an offer
           given he was essentially looking at the motions as a chance to
           prevail in the case and he was looking at that. That's [what] the
           evidence tends to show; he was betting on that, so to speak, and not
           making an offer. He made subsequent offers and so forth. I think
           even the fact he made an offer later on for less time and was rejected
           tends to support that."

       Before closing arguments, Castillo offered to settle the case for a four-year prison

term, but the district attorney rejected that offer.

B. Analysis

       Castillo contends the trial court erroneously denied his pretrial request to enforce a

negotiated disposition because the record demonstrates that defense counsel incorrectly


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advised him regarding the plea, he would have accepted the plea if he had been properly

advised, the prosecution would have accepted the counteroffer if it had been made and

the court would have accepted the plea. The People assert Castillo's arguments lack merit

because there was no agreement for the court to enforce and even assuming defense

counsel's representation was deficient, Castillo cannot establish prejudice. We agree with

the People.

       In criminal proceedings, plea bargaining is a critical stage at which a defendant is

entitled to effective assistance of counsel. (Alvernaz, supra, 2 Cal.4th at p. 933.) The

rendering of ineffective assistance at this stage constitutes a violation of the defendant's

constitutional right to counsel, which is not remedied by a fair trial. (Id. at p. 936.)

Accordingly, when a defendant is misadvised by counsel, rejects a guilty plea based on

that erroneous advice, and is later convicted at trial, the defendant may assert a claim of

ineffective assistance of counsel, even if the defendant receives a fair trial. (Id. at

pp. 934-936.)

       To demonstrate constitutionally inadequate representation, a defendant must show

(1) counsel's representation was deficient, i.e., it fell below an objective standard of

reasonableness under prevailing professional norms, and (2) counsel's deficient

performance subjected the defendant to prejudice, i.e., there is reasonable probability

that, but for counsel's failings, the result would have been more favorable to defendant.

(Alvernaz, supra, 2 Cal.4th at pp. 936-937.) We conduct an independent review of the

record to determine if appellant met his burden. (Id. at pp. 944-945.) To demonstrate

prejudice in the context of rejecting a plea bargain, the defendant must prove there is a

                                               6
reasonable probability he would have accepted the plea bargain and the court would have

approved the bargain. (Id. at p. 937.)

       Here, it is undisputed that neither party offered a three-year plea bargain.

Because no formal plea offer was made, Alvernaz does not apply. Rather, we examine

the record to determine whether counsel's representation was deficient and whether any

deficient performance subjected the defendant to prejudice. Because defense counsel

incorrectly advised Castillo regarding the maximum sentence, the key question before us

is whether that erroneous advice prejudiced Castillo. To establish prejudice from the

erroneous advice, Castillo must show a reasonable probability that if properly advised by

counsel, he would have tendered a three-year plea offer, that the People would have

accepted the plea offer and that it would have been approved by the trial court. (See

Alvernaz, supra, 2 Cal.4th at p. 937.)

       On this record, we cannot conclude that Castillo would have tendered a three-year

plea offer if he had been properly advised. When Castillo rejected the prosecutor's five-

year offer, defense counsel correctly informed him that his potential exposure was 11

years in prison. Defense counsel later misinformed Castillo of his potential exposure

when he suggested that Castillo offer a three-year plea. At that time, defense counsel

advised Castillo that three years would be a "fair outcome" and making the offer avoided

the potential consequences of losing the motion and losing at trial. Castillo rejected this

advice and declined to make the offer, with defense counsel explaining that Castillo

wanted "to take his chances with the motion." Thus, defense counsel's declaration

suggests Castillo declined to make the offer because he hoped to win the motion, not

                                              7
because he was incorrectly told that his potential exposure was seven years eight months,

rather than 11 years.

       This conclusion is supported by the exchange between the prosecutor and defense

counsel on the evening before defense counsel made his oral motion to enforce a plea

bargain. At that time, Castillo was not willing to accept three years and instead offered

one year in a program, plus one year in county jail. Accordingly, we conclude the trial

court properly denied Castillo's motion to enforce a negotiated disposition and that any

ineffective assistance was not prejudicial.

                              II. Alleged Miranda Violation

A. Factual Background

       El Centro Police Officers John Tang and James Thompson testified at the hearing

on Castillo's Miranda motion as follows.

       A SWAT team comprised of about five people entered the residence by forcing

the door open. The SWAT team handcuffed Castillo, Alfredo and Obeso and had them

sit on the sofa. The SWAT team left shortly after Officers Tang and Thompson entered

the residence. When Officers Tang and Thompson entered, Officer Thompson

immediately told the individuals that they were not under arrest, that they were being

detained for the purpose of serving a search warrant, and asked who was responsible for

the residence as he did not know the three individuals and did not see anyone listed on

the search warrant. When Officer Thompson asked this question, only he and Officer

Tang were with the three individuals.



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       Officer Thompson testified that he asked who was responsible for the apartment so

that he could serve the search warrant. He explained, "[I]f an individual is listed on the

search warrant, sometimes there are other parties that are responsible for the actual

location. We not only have to serve the individual that is listed on the search warrant, we

also have to serve the responsible party of the location as well." After Castillo responded

that he was responsible for the apartment, Officer Thompson asked if Castillo was

responsible for all of the property in the residence. Castillo responded affirmatively.

Officer Thompson explained that he needed to ask this question because the officers

"were required by law to provide a property receipt for all items taken and [had] to

provide it to the rightful owner. I know that from my experience sometimes different

people who aren't related occupy different rooms, and I need to identify what property

belongs to who for receipts."

       For their safety, Officer Thompson had the three individuals step outside while a

canine cleared the residence. Officer Tang did not have a gun drawn and described the

situation as "pretty casual" even though the individuals were handcuffed. While the

individuals were outside, Officer Tang searched Alfredo after confirming that he was on

probation. Officer Tang found methamphetamine on Alfredo and arrested him. Officer

Tang also searched Castillo after obtaining his permission. After the canine search,

Officer Tang had the individuals return to the sofa. Officer Thompson then gave Castillo

a copy of the search warrant to read. About three or four other individuals conducted the

search under Officer Thompson's direction. Castillo was arrested after the search. When

Officer Thompson asked Castillo who he would like to be responsible for the residence as

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the police could not lock the door, Castillo asked Officer Thompson to call Castillo's

mother.

       Based on this evidence, defense counsel argued that Miranda barred the use of

Castillo's statements to Officer Thompson because Castillo was in custody when the

questions were asked and the questions were designed to elicit incriminating information.

The prosecutor argued that Castillo's statements were not the product of interrogation

within the meaning of Miranda because the questions were asked to allow the police to

perform their administrative duties. The trial court concluded that Miranda warnings

were not required because the officer's questions were not designed for interrogation

purposes "either subjectively or objectively" and that when the questions were asked, the

detention was not coercive. Thus, it concluded that Castillo's statements would be

admissible at trial.

B. Legal Principles and Standard of Review

       A criminal suspect's statements to police during a custodial interrogation will be

excluded under Miranda if the suspect is not first advised of specific Fifth Amendment

rights. (People v. Thornton (2007) 41 Cal.4th 391, 432; People v. Whitfield (1996) 46

Cal.App.4th 947, 953 (Whitfield).) For Miranda to apply, the suspect must be in

" 'custody,' " and the questioning must meet the legal definition of " 'interrogation.' "

(Whitfield, at p. 953.) "The prosecution has the burden of proving that a custodial

interrogation did not take place." (Ibid.) A trial court's conclusion that Miranda

warnings were not required is subject to de novo review and its underlying findings



                                               10
regarding custody and interrogation are scrutinized for substantial evidence. (People v.

Clair (1992) 2 Cal.4th 629, 678.)

       " 'Interrogation' consists of express questioning, or words or actions on the part of

the police that 'are reasonably likely to elicit an incriminating response from the

suspect.' " (People v. Cunningham (2001) 25 Cal.4th 926, 993, quoting Rhode Island v.

Innis (1980) 446 U.S. 291, 301 (Innis).) " ' "The police may speak to a suspect in custody

as long as the speech would not reasonably be construed as calling for an incriminating

response." ' " (People v. Huggins (2006) 38 Cal.4th 175, 198.) The determination of

whether an action is reasonably likely to elicit an incriminating response focuses

primarily on the perceptions of the suspect, rather than the intent of the police. (Innis, at

p. 301.)

       While executing a search warrant on a residence, the police may detain the

occupants to prevent flight, minimize the risk of harm to the officers, facilitate orderly

completion of the search and determine the relationship of an individual to the premises.

(Michigan v. Summers (1981) 452 U.S. 692, 702-703, 705 (Summers); People v. Glaser

(1995) 11 Cal.4th 354, 365.) Additionally, an individual that is an occupant of the

premises may be detained for the duration of the search. (Summers, at p. 705.) As our

high court explained, "If the evidence that a citizen's residence is harboring contraband is

sufficient to persuade a judicial officer that an invasion of the citizen's privacy is

justified, it is constitutionally reasonable to require that citizen to remain while officers of

the law execute a valid warrant to search his home." (Id. at pp. 704-705.) Moreover, it is



                                              11
not unreasonable to detain an occupant of the residence in handcuffs for the duration of

the search of the residence. (Muehler v. Mena (2005) 544 U.S. 93, 98 (Muehler).)

C. Analysis

       Castillo asserts he was in custody when Officer Thompson asked him if he was

responsible for the residence and if everything in it belonged to him. He asserts that both

questions were intended to result in incriminating statements. Because these questions

were asked prior to Miranda warnings, he contends that his statements should have been

suppressed. We conclude that the totality of the circumstances show Castillo was not in

custody for purposes of Miranda. Even assuming the court erred in allowing the

evidence, the error was harmless.

       Looking at the totality of the circumstances, and applying Summers and Muehler,

the police properly detained Castillo during the entirety of the search. As our high court

has stated, "[A] warrant to search for contraband founded on probable cause implicitly

carries with it the limited authority to detain the occupants of the premises while a proper

search is conducted." (Summers, supra, 452 U.S. at p. 705, fns. omitted.) Searching a

suspected drug house is inherently dangerous and the use of handcuffs for the duration of

the search prevented flight, minimized the harm to the officers and did not turn a routine

detention during execution of a search warrant into an arrest. On these facts, we

conclude that Castillo was not in custody when Officer Thompson asked the two

questions.

       Based on this conclusion, we need not address at length whether the two questions

asked by Officer Thompson amounted to interrogation under Miranda. Suffice it to say,

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the trial court here found that the questions were not designed for interrogation purposes

and this conclusion was amply supported by the evidence. (People v. Clair, supra, 2

Cal.4th at p. 678 [trial court's underlying finding regarding interrogation is scrutinized for

substantial evidence].) Accordingly, we find no error in the trial court's denial of the

motion to suppress.

       Even assuming, without deciding, that Castillo's statements should have been

excluded, the assumed error was not prejudicial. The admission of incriminatory

evidence in violation of Miranda requires reversal unless the error was harmless beyond

a reasonable doubt. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1166.) " 'To say

that an error did not contribute to the ensuing verdict is . . . to find that error unimportant

in relation to everything else the jury considered on the issue in question, as revealed in

the record.' " (People v. Neal (2003) 31 Cal.4th 63, 86.)

       In making his argument, Castillo focuses exclusively on the prosecutor's closing

argument where she reminded the jury of Castillo's statements to the police that the

residence and everything in it was his. While these statements are important when

viewed in isolation, the statements lose their importance in light of the compelling

evidence that Castillo had dominion and control over the residence and its contents.

       "The essential elements of possession of a controlled substance are 'dominion and

control of the substance in a quantity usable for consumption or sale, with knowledge of

its presence and of its restricted dangerous drug character . . . .' " (People v. Palaschak

(1995) 9 Cal.4th 1236, 1242.) The elements may be established by circumstantial

evidence and any reasonable inferences drawn from such evidence. (Ibid.) Possession of

                                              13
controlled substances or other contraband includes constructive possession. (People v.

Francis (1969) 71 Cal.2d 66, 73.) Constructive possession exists when contraband is

found in a location subject to the defendant's dominion and control. (Id. at pp. 70-71.)

As the jury was instructed, possession is established if a person has control or the right to

control the item. (CALCRIM No. 2302.) "The inference of dominion and control is

easily made when the contraband is discovered in a place over which the defendant has

general dominion and control," like his residence. (People v. Jenkins (1979) 91

Cal.App.3d 579, 584.)

       Inside a kitchen drawer, police found two working digital scales that could

measure small quantities and plastic bags that could be used to package drugs for sale.

One scale contained a white crystal residue that Officer Thompson believed was

methamphetamine. Police also found a mechanical scale on the kitchen countertop that

could also be used to measure small quantities.

       The residence contained two bedrooms. Inside one bedroom, police found an air

mattress and a plastic storage container with drawers. On top of the storage container,

police found two sets of keys. The police were able to use the keys to open safes located

inside another bedroom. Other keys opened one of the doors to the residence.

       Inside the storage container, police found a phone bill with Castillo's name on it

and a strip of four photographs of Castillo and Obeso. Next to the storage container,

police found a pair of men's jeans. A wallet inside the jeans contained cash and Castillo's

California identification card. The pockets of the jeans were full of cash separated into

different denominations. One pocket contained $420 and another pocket contained $360.

                                             14
The bedroom mostly contained men's items on one side of the bed and inside the closet.

On the other side of the bed, there was female clothing inside plastic grocery bags that

had been knotted on the top.

       The second bedroom contained the two locked fire safes, but no bed or personal

belongings. One of the safes contained a digital scale, some wrapping papers and $6,287

cash in small denominations. The second safe contained a semiautomatic handgun and a

crystal-like substance that police later determined to be methamphetamine. The

methamphetamine had been separated into four packages that weighed a total of 448.2

grams, close to one pound of drugs. This room contained a table that Officer Thompson

believed was a workstation as on it were homemade containers, packaging material made

out of baggies and tape. Police also found a notebook that they later determined to be a

"pay/owe sheet." Officer Thompson described a "pay/owe sheet" as similar to a bank

ledger showing a series of names and numbers showing how much a person owes for a

specific amount of controlled substance. A trash bin inside the room contained what

police believed to be packaging material used to transport controlled substances.

       Based upon his inspection of the residence, Officer Thompson believed that only

Castillo lived there. Significantly, Castillo asked police to call his mother to secure the

residence after police completed the search. After reviewing the circumstances of

Castillo's case, a police sergeant familiar with narcotic sales concluded that Castillo

possessed the drugs found in the apartment to sell. The sergeant also testified that it is

common for drug dealers to keep drugs out of their bedroom to allow them to separate

work from their personal life.

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      Separate from Castillo's statements, this evidence established Castillo's dominion

and control over the residence and the items inside of it. Thus, the assumed Miranda

error was harmless beyond a reasonable doubt.

                                    DISPOSITION

      The judgment is affirmed.



                                                                    MCINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.




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