Filed 3/24/14 P. v. Edwards CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065442
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF140958A)
                   v.

ROBERT LAWRENCE EDWARDS,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman, II, Judge.
         Christian Koster, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris
A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Gomes, J. and Franson, J.
          A jury convicted appellant, Robert Lawrence Edwards, of driving under the
influence of alcohol or drugs with priors (count 1/Veh. Code, §§ 23152, subd. (a) &
23550.5) and driving with a blood alcohol content of .08 percent or more with priors
(count 2/Veh. Code, §§ 23152, subd. (b) & 23550.5). In a separate proceeding, appellant
admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and the court
found true a prior conviction for violating Vehicle Code section 23153, subdivision (a)
that elevated his other Vehicle Code convictions to felonies.
          On July 12, 2012, the court sentenced Edwards to state prison for an aggregate
term of four years: the aggravated term of three years on his conviction in count 1, a
consecutive one-year prior prison term enhancement, and a stayed three-year term on his
conviction in count 2.
          On appeal, Edwards contends the court abused its discretion when it denied his
motion to suppress certain statements he made to the arresting officer. Additionally,
pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and People v.
Mooc (2001) 26 Cal.4th 1216 (Mooc) he seeks independent review by this court of
information in one officer’s personnel file. We have conducted the requested review and
affirm.
                                           FACTS
          On June 15, 2011, at the intersection of Ming and Buena Vista in Bakersfield,
Edwards was driving a car with his brother, Steven, as a passenger, when he rear-ended a
car driven by Karina Soto. After the collision, Steven drove off in Edwards’s car.
Bakersfield Police Officer Jared Diederich was dispatched to the scene and first spoke
with Soto, who identified Edwards as the driver of the car that hit her. After speaking
with Edwards, Officer Diederich arrested him for driving under the influence of alcohol.
          On March 27, 2012, the district attorney filed an information charging Edwards
with the two counts he was convicted of.




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      On May 15, 2012, the district attorney filed an amended information alleging a
prior prison term enhancement.
      On May 29, 2012, Edwards filed several motions in limine, including a motion to
suppress certain statements he made to Officer Diederich prior to being arrested, which
he alleged were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda).
      On May 30, 2012, at a hearing on Edwards’s suppression motion, Officer
Diederich testified that three people were present when he arrived on the scene of the
collision at Ming and Buena Vista: Edwards, Soto, and Soto’s passenger. After speaking
with Soto, Officer Diederich asked Edwards if he had been involved in the accident and
he responded, “All I’m saying is my brother won’t rat on me.” The officer asked
Edwards if he had been drinking and he responded, “None of your business.” The officer
asked Edwards how much he had been drinking and Edwards repeated that it was none of
the officer’s business. The officer asked Edwards if he would perform some field
sobriety tests and Edwards responded, “Hell no.”
      Edwards was exhibiting signs of being intoxicated when Officer Diederich began
speaking with him. Officer Diederich asked the questions noted above in less than three
minutes during his initial contact with Edwards. Edwards was not under arrest or in
handcuffs at the time. Other officers arrived on the scene, but Diederich was not sure
whether they arrived while he spoke with Edwards.
      After hearing argument, the court denied Edwards’s suppression motion.
                                     DISCUSSION
The Miranda Issue
      Edwards contends Officer Diederich’s questioning was accusatory and would have
led a reasonable person to believe he was not free to leave. Therefore, according to
Edwards, Officer Diederich was required to read him the Miranda advisements before




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questioning him and, since he did not, the court prejudicially erred when it ruled that the
above-quoted statements were admissible. We disagree.

              “A suspect must be given his Miranda warnings -- that he has a right
       to remain silent, that he is entitled to an attorney, appointed if necessary,
       and that anything he says may be used against him -- whenever he is
       interrogated by law enforcement officials while in custody.” (People v.
       Herdan (1974) 42 Cal.App.3d 300, 306, (Herdan) italics added.)

               “‘Miranda advisement is required prior to police interrogation “after
       a person has been taken into custody or otherwise deprived of his freedom
       of action in any significant way.” [Citation.]’ [Citations.] The existence of
       custody is determined by an objective test. [Citations.] ‘Where no formal
       arrest takes place, the relevant inquiry, as with Fourth Amendment claims,
       “is how a reasonable man in the suspect’s position would have understood
       his situation. [Fn. omitted.] ...” [Citation.]’ [Citations.]

              “In [People v.] Lopez[ (1985) 163 Cal.App.3d 602,] [the] court
       explained: ‘Case law has identified a number of objective indicia of
       custody for Miranda purposes, such as (1) whether 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, (5) the demeanor of
       the officer, including the nature of the questioning.4’ [Citation.] Footnote 4
       elaborated: ‘Accusatory questioning is more likely to communicate to a
       reasonable person in the position of the suspect, that he is not free to leave.
       [Citation.] General investigatory questioning may convey a different
       message. [Citation.]’ [Citation.]” (People v. Bellomo (1992) 10
       Cal.App.4th 195, 198-199 (Bellomo).)
       The instant case is similar to Bellomo. In that case, an officer arriving at the scene
of an accident was told by a paramedic that he had seen the defendant exit the driver’s
door of one of the vehicles involved in the accident. The officer then approached the
defendant as he sat on a curb and asked him whether he was the driver and for his
identification; the defendant replied that he was only walking by. The court held that
these questions did not trigger the officer’s duty to give the defendant Miranda warnings
because it would not have led the defendant to believe he was in custody. In so holding,
the court stated,

              “There is no evidence that the officer accused defendant of being the
       driver. Instead, he simply inquired in order to reconstruct what had

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       happened. Such investigatory questions are completely unlike People v.
       Herdan[, supra] 42 Cal.App.3d 300 …, relied on by defendant, where the
       officer asked the suspect if he was in possession of narcotics. (Id. at pp.
       304, 308.) They are also unlike People v. White (1968) 69 Cal.2d 751 …,
       also relied on by defendant, where the officer told the defendant that a coat
       involved in a crime seemed to fit him and had his name in it. (Id. at p.
       761.)” (Bellomo, supra, 10 Cal.App.4th at p. 199.)
       Edwards was not under arrest or handcuffed when Officer Diederich questioned
him and the questioning occurred on a public roadway. Although the evidence is unclear
whether other officers were at the scene while Officer Diederich questioned Edwards, it
is clear that Diederich was the only officer questioning Edwards. Further, the
questioning by Officer Diederich was investigatory, not accusatory, it did not
communicate any suspicion to Edwards, and it lasted less than three minutes. In our
view, a reasonable person under these circumstances would not have understood himself
to be “in custody.”
       Edwards contends this case is like Herdan because asking him whether he had
been drinking was accusatory in that it was intended to elicit a response that would
incriminate him of drunk driving. We disagree.
       Although accusatory-type interrogation may communicate to a detainee that he or
she is the focus of an investigation (Bellomo, supra, 10 Cal.App.4th at p. 200), the single
question complained of here was insufficient by itself to do so in this case. (Cf.
Berkemer v. McCarty (1984) 468 U.S. 420, 423 (Berkemer) [one question: Have you
been using intoxicants?]; People v. Merchant (1968) 260 Cal.App.2d 875, 877 [Are you
an ex-convict? Do you have a gun in your possession?]; People v. Aikens (1977) 72
Cal.App.3d Supp. 11, 14 [“‘Does anybody else have any weed?’”].)
       Edwards contends two other officers were present either before or after Officer
Diederich arrived on the scene and he cites their presence as evidence of “objective
indicia of arrest.” However, Officer Diederich, the only witness at the suppression
hearing, testified he was unsure whether other officers were on the scene when he
questioned Edwards. In any event, the mere presence of other officers at the scene would

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not be enough to lead a reasonable person to believe they were in custody, in light of the
other circumstances discussed above.
       Edwards also cites the following circumstances to contend he could reasonably
believe he was not free to leave: there was no evidence he agreed to be interviewed, it is
clear Officer Diederich considered Edwards a suspect, and Officer Diederich dominated
the conversation and ultimately arrested Edwards. Edwards may reasonably have
believed he was not free to leave because he was being detained. However, Miranda
warnings are not required when a person is only detained (cf. Berkemer, supra, 468 U.S.
at p. 440 [“persons temporarily detained pursuant to [traffic] stops are not ‘in custody’ for
the purposes of Miranda”]). Further, we do not find the other circumstances cited by
Edwards coercive enough to have caused a reasonable person to believe he was in
custody, especially since Officer Diederich did not communicate his suspicions to
Edwards and his arrest occurred after the questioning. Therefore, we conclude Miranda
warnings were not required prior to Officer Diederich asking the questions complained
of. It follows that the trial court did not err when it denied Edwards’s suppression
motion.
The Pitchess Motion
       On April 19, 2012, Edwards filed a Pitchess motion requesting discovery of
certain records for Bakersfield Police Officers Christina Abshire and Christopher Yslas.
       On May 15, 2013, the court granted Edwards’s request for an in camera hearing
with respect to the records for Officer Yslas, the author of one of the police reports
relating to Edwards’s arrest. After conducting the hearing, the court found no
discoverable records.
       Edwards asks this court to independently review the transcript of the in camera
Pitchess proceeding and the documents submitted to the court to determine whether the
court complied with the proper procedures for such proceedings as set forth in Mooc.




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        The statutory scheme for Pitchess motions is contained in Evidence Code sections
1043 through 1047 and Penal Code sections 832.5, 832.7, and 832.8. When a defendant
seeks discovery from a peace officer’s personnel records, he or she must file a written
motion that satisfies certain prerequisites and makes a preliminary showing of good
cause. If the trial court determines that good cause has been established, the custodian of
records brings to court all documents that are “‘potentially relevant’ to the defendant’s
motion.” (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court examines these
documents in camera and, subject to certain limitations, discloses to the defendant “‘such
information [that] is relevant to the subject matter involved in the pending litigation.’”
(Ibid.) The ruling on a Pitchess motion is reviewed for an abuse of discretion. (People v.
Hughes (2002) 27 Cal.4th 287, 330 (Hughes).)
        The record in this case is adequate to permit meaningful appellate review. It
contains a full transcript of the June 22, 2013, in camera Pitchess proceeding and a copy
of the police records the trial court examined. (People v. Prince (2007) 40 Cal.4th 1179,
1285 (Prince); Hughes, supra, 27 Cal.4th at p. 330.) Having independently reviewed the
transcript of the Pitchess proceeding and the records the court examined and submitted
under seal, we conclude the court followed the procedure set forth in Mooc and no
documents were withheld erroneously. Accordingly, we uphold the ruling on the
Pitchess motion. (Prince, supra, 40 Cal.4th at p. 1286; Hughes, supra, 27 Cal.4th at p.
330.)
                                      DISPOSITION
        The judgment is affirmed.




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