Filed 10/10/13 P. v. Mendez 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                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
                               publication or ordered published for purposes of rule 8.1115.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,                                        E057294

v.                                                                        (Super.Ct.No. RIF10005006)

ROMAN GARCIA MENDEZ,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge.

Affirmed.

         Richard Schwartzberg, 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, James D. Dutton and Michael T.

Murphy, Deputy Attorneys General, for Plaintiff and Respondent.




                                                              1
       A jury found defendant and appellant Roman Garcia Mendez, guilty of (1) three

counts of making criminal threats (Pen. Code, § 422); (2) one count of deterring or

resisting an executive officer; and (3) one count of cultivating marijuana (Health & Saf.

Code, § 11358). As to one of the criminal threat counts, the jury found true the

allegation that defendant personally used a firearm during the commission of the

offense. (Pen. Code, § 12022.5, subd. (a).) The trial court sentenced defendant to

prison for a term of four years, four months. Defendant contends the trial court erred by

admitting defendant’s non-Mirandized1 statements concerning the location of a

handgun.2 We affirm the judgment.

                     FACTUAL AND PROCEDURAL HISTORY

       A.      CRIMES

       Defendant lived in a house in Moreno Valley with his wife (Garcia) and her three

children. Mario Lopez (Lopez) is one of Garcia’s children. In July 2010, Lopez was 20

or 21 years old. On July 17, 2010, defendant and Garcia argued. Lopez felt defendant

was verbally abusing Garcia. Lopez and defendant began arguing with one another.

Defendant walked to the backyard, and Lopez followed. Defendant told Lopez to calm

down, or defendant would “whoop [Lopez’s] ass.” Defendant

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

       2  In defendant’s opening brief he raised a second issue. Defendant asserted the
trial court violated his constitutional right of equal protection by imposing a booking fee
without finding he had the ability to pay the fee. In defendant’s reply brief, he
concedes, due to a recent Supreme Court opinion, that the issue was forfeited because it
was not raised at the trial court. (People v. McCullough (2013) 56 Cal.4th 589, 599.)
Since defendant concedes the issue, we do not discuss it further.


                                            2
reached into his pocket and pulled out a black semiautomatic handgun. Lopez felt

scared; he called 911.

       Riverside County Sheriff’s deputies responded to Lopez’s call. The deputies

created a perimeter around the house. Defendant remained in the house and did not

surrender for approximately 40 minutes or an hour. During the standoff, defendant

threatened to shoot two deputies who were standing along the property’s fence line.

       After defendant surrendered, deputies searched the property and found marijuana

plants, two rifles, a shotgun, and ammunition. The ammunition included gold or brass

bullets for a nine-millimeter handgun. Deputies searched the property for a handgun,

but did not find one. Deputy Grotefend asked defendant about “the location of the

handgun.” Defendant told the deputy he “threw the gun away.” Defendant later told

the deputy “he sold the handgun to his uncle.”

       B.     MOTION

       During motions in limine, defense counsel asserted defendant’s statement to

Deputy Grotefend concerning the location of the handgun involved a custodial

interrogation and Miranda issues. Deputy Grotefend testified at an Evidence Code

section 402 hearing. Grotefend’s testimony reflected: Lopez told the deputy he saw

defendant with a handgun. Grotefend did not find a handgun when searching the

property. The property was approximately half an acre with several sheds, piles of

garbage, and “a rickety chain-link fence.” Grotefend had patrolled the neighborhood for

two and a half years. Grotefend knew there were children residing in the neighborhood.

There were eight to 10 residences near defendant’s house.


                                           3
       Grotefend spoke to defendant while defendant was handcuffed and “detained”

“[i]n the back seat of a police car.” Grotefend told defendant he “was looking for a

handgun and that there was a possibility that a child could get that handgun.” Grotefend

asked defendant where the gun was located. Grotefend had not read defendant his

Miranda rights. Defendant said he threw the gun away. Grotefend asked where the gun

was thrown, then defendant said he sold the gun to his uncle years ago. A handgun

belonging to defendant was never located.

       The defense argued that Grotefend’s questions “clearly” constituted a custodial

interrogation. The trial court agreed, but framed the issue as whether Grotefend’s

questions fell within the public safety exception to the Miranda rules. Defense counsel

asserted a thorough search of the property had been performed, so there was not a threat

to public safety when Grotefend posed his questions. The trial court explained the

deputies’ inability to locate a handgun after an extensive search made Grotefend’s

question to defendant “more reasonable,” because there was a possibility defendant

“threw it somewhere out in the public area where they hadn’t been able to find it, [so]

the public risk [was] increased rather than decreased.” The trial court concluded

defendant’s statements to Grotefend fell within the public safety exception to Miranda,

so the statements could be admitted.

                                       DISCUSSION

       Defendant contends the trial court erred by admitting his statements about the

handgun because the statements violated defendant’s Fifth Amendment constitutional

right against self-incrimination. We disagree.


                                            4
       Miranda rulings are reviewed under the de novo standard. (People v. Nelson

(2012) 53 Cal.4th 367, 380.) “In New York v. Quarles (1984) 467 U.S. 649, the United

States Supreme Court enunciated a narrow ‘public safety’ exception to the prophylactic

procedures mandated by Miranda. In Quarles, the police, after apprehending the

defendant, were confronted with the immediate necessity of ascertaining the location of

a gun that they had reason to believe the defendant had discarded in a supermarket.

Before reciting the Miranda warnings, the police asked the defendant where the gun

was located, and the defendant showed them. After the police retrieved the weapon,

they advised the defendant of his Miranda rights. [The d]efendant claimed his

statement directing the police to the gun, elicited prior to the Miranda warnings, was the

product of a custodial interrogation violative of Miranda and therefore inadmissible.

The trial court agreed and excluded the defendant’s statement directing the police to the

gun, also excluding the gun itself and subsequent statements as illegal fruits of the

Miranda violation.

       “On appeal, the United States Supreme Court reversed, holding that the rationale

of Miranda does not require its application in circumstances where police officers must

ask questions reasonably prompted by public safety. The court concluded that ‘the need

for answers to questions in a situation posing a threat to the public safety outweighs the

need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-

incrimination’ [citation], but held that the exception for such a situation must be

circumscribed by the exigency that justifies the exception, thus authorizing the police to




                                             5
engage in questioning only to the extent ‘necessary to secure their own safety or the

safety of the public . . . .’ [Citation.]” (People v. Sims (1993) 5 Cal.4th 405, 450.)

       The record reflects Lopez saw defendant with a handgun and handgun

ammunition was found on the property. The rifles found on the property were loaded.

Deputies located various firearms on the property, but did not find a handgun. The

property had several sheds and trash piles. Grotefend did not believe it would be

possible to search every shed and debris pile. The property was not secure, as there was

only a “rickety” chain-link fence, which had holes in it.

       Given that there were children in the area and multiple residences nearby, a

missing handgun that had been seen just prior to the police standoff would pose a public

safety concern, because defendant could have thrown it over his fence before the

deputies established their perimeter. A child could have found the gun and harmed

himself or others. Grotefend’s questions pertained only to the location of the gun.

When defendant said he sold the gun to his uncle, Grotefend did not ask further

questions. Given the residential character of the neighborhood, the evidence that the

gun had been seen just prior to the standoff, and the limited nature of the deputy’s

questions, we conclude defendant’s statements fall within the public safety exception of

the Miranda rules.

       Defendant asserts the public safety exception is inapplicable because there was

no evidence of the gun posing an immediate risk to public safety. Contrary to

defendant’s position, deputies could reasonably be concerned that defendant tossed the

handgun over the fence line before the deputies established the perimeter around the


                                             6
property. Thus, the gun could have been lying in an area where a child would find it,

while the police were still present. Accordingly, we do not find defendant’s argument

to be persuasive, as there was an immediate threat to public safety.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                       MILLER
                                                                                        J.


We concur:


McKINSTER
                       Acting P. J.


RICHLI
                                 J.




                                            7
