Filed 11/26/13
                                 CERTIFIED FOR PUBLICATION

                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                               2d Crim. No. B244607
                                                       (Super. Ct. No. 2012014702)
     Plaintiff and Respondent,                              (Ventura County)

v.

ANDREW BARNEY DAVIDSON,

     Defendant and Appellant.



                  Over 40 years ago and during the infancy of Miranda v. Arizona (1966) 384
U.S. 436, 16 L.Ed.2d 694 (Miranda), Justice Macklin Fleming articulated the rule which
controls the Miranda issue in this case: "When circumstances demand immediate
investigation by the police, the most useful, most available tool for such investigation is
general on-the-scene questioning, designed to bring out the person's explanation or lack of
explanation of the circumstances which aroused the suspicion of the police, and enable the
police to quickly determine whether they should allow the suspect to go about his business
or hold him to answer charges." (People v. Manis (1969) 268 Cal.App.2d 653, 665.
                  Andrew Barney Davidson appeals his conviction by jury of unlawful taking a
 vehicle (Veh. Code, § 10851, subd. (a)) and possessing a methamphetamine pipe (Health &
 Saf. Code, § 11364.1, subd. (a)). He admitted a prior auto theft conviction. (Pen. Code, §
 666.5.) Pursuant to "sentencing realignment," appellant was sentenced to felony jail: two
 years county jail and two years mandatory supervision. (Pen. Code, § 1170, subd.
 (h)(5)(A).) Appellant contends that the trial court erred in admitting his pre-arrest
 statement without prior advisement and waiver of his Miranda rights. He also contends
that the trial court erred in admitting other crimes evidence. (Evid. Code, § 1101, subd.
(b).) We affirm.
                                              Facts
                 During the morning of April 22, 2012, Jesse Hofer reported that his new
Suzuki motorcycle was stolen from his driveway. Hofer last saw the motorcycle at 3:30
a.m. after a house party ended. Hofer lived in Simi Valley near a riverbed and Ish Street.
                 At 9:45 a.m., Dennis Tooman saw appellant pushing a motorcycle on Ish
Street near the riverbed. Tooman, who had some knowledge of motorcycles, believed the
motorcycle was stolen because wires were hanging out of the ignition. Appellant told
Tooman that he had been riding the motorcycle and that it stopped. Tooman called 911 and
reported what he saw and heard.
                 At 10:00 a.m., Simi Valley Police Officer Patrick Coulter responded to a call
that a white male in baggy pants was pushing a stolen motorcycle down the street. Officer
Coulter saw appellant pushing a new Suzuki motorcycle near Ish Street. Appellant saw the
patrol car, changed direction, and pushed the motorcycle behind a high profile vehicle in
order to hide.
                 Officer Coulter ordered appellant to put the motorcycle down, remove his
backpack, and step towards him. Appellant put a flat-blade screwdriver down on the
motorcycle seat. Officer Coulter was concerned for his safety because the screwdriver
could be used as a weapon. He noticed that jumper wires were hanging out the ignition
switch. He opined that appellant was acting "hanky" and looked like he was ready to flee.
                 Officer Coulter handcuffed appellant and told him to sit on the sidewalk curb.
He said that he was investigating a possible stolen motorcycle in the area. He asked one
question: "Is this your vehicle?" Appellant said that he found the motorcycle in some
bushes in a nearby industrial-office area. This single answer was at variance with a
reasonable explanation of why he was in possession of, and pushing an inoperative but new
motorcycle with wires hanging out of the ignition switch.




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              Appellant was arrested and patted down for weapons, A glass smoking pipe
was in his front pants pocket. Hofer was contacted by the police and confirmed that
appellant had his motorcycle and did not have permission to take it.
              At trial appellant defended on the theory consistent with his statement to
Officer Coulter that someone else stole the motorcycle, damaged it, and dumped it. He
found it and had no knowledge that it had been stolen.
              In rebuttal the People introduced evidence that appellant took Debra
Schackelford's car in front of her Simi Valley house on August 19, 2010. The Los Angeles
Police saw the car on August 23, 2010, after a license plate recognition camera alerted that
the car was stolen. Appellant led the police on a car chase and was stopped. The car
ignition was punched out, the radio was missing, and a flat-head screwdriver was on the
center console.
                               Custodial Interrogation Vel Non
              Appellant contends that his pre-arrest statement was inadmissible because he
was not advised of his Miranda rights. The trial court found that handcuffing appellant and
asking "Is this your vehicle?" was not a custodial interrogation: "[T]he officer indicated that
he was investigating. The question[] was almost immediately out of his mouth after the
handcuffs went on. There is no way this is custody for purposes of Miranda. The statement
is admissible."
              On appeal, we defer to the trial court's factual findings supported by
substantial evidence and independently determine from the factual findings whether
appellant was in custody for Miranda purposes. (People v. Leonard (2007) 40 Cal.4th 1370,
1400.) It is settled that Miranda advisements are required only when a person is subjected
to "custodial interrogation." (Miranda, supra, 384 U.S. at p. 444 [16 L.Ed.2d at p. 706];
People v. Mickey (1991) 54 Cal.3d 612, 648.) The Miranda opinion itself permits "general
on-the-scene questioning as to facts surrounding a crime. . . ." (Id. at pp. 725-726.) A
custodial interrogation does not occur where an officer detains a suspect for investigation
and the questioning is limited to the purpose of identifying a suspect or ". . . to obtain
sufficient information confirming or dispelling the officer's suspicions. (Citations.) . . ."


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(People v. Farnam (2002) 28 Cal.4th 107, 180; see also Berkemer v. McCarty (1984) 468
U.S. 420, 439 [82 L.Ed.2d 317,334]) [answers to investigatory questions by police officer
who lawfully detains a person pursuant to a traffic stop are admissible even if the person
was not given Miranda warnings].
       Justice Fleming eloquently explained the common sense premise to the rule allowing
"brief and casual" questioning during a temporary detention. "The purpose of temporary
detention is to enable the police to determine, with minimum upset to public tranquility and
minimum intrusion into personal rights, whether they should arrest a suspect and charge him
with crime, whether they should investigate further, or whether they should take no action
because their initial suspicion proved groundless. What tools do we allow the police to use
in making a decision which often calls for the employment of nice discrimination?
Obviously, the police can use their sense of sight, hearing, and smell and thereby obtain a
certain amount of information from the person's dress, appearance, physical condition, and
demeanor. But where, as here, the circumstances which have induced the temporary
detention suggest that stolen property is about to be pawned, the keenest personal
observation is apt to prove uninformative and unenlightening. In this, as in many
investigations, progress toward a rational decision about what to do next can only be made
by asking questions. The information needed by the police to make an intelligent decision
on street detention is ordinarily obtainable only from the suspect's answers. 'Despite modern
advances in the technology of crime detection, offenses frequently occur about which things
cannot be made to speak. And where there cannot be found innocent human witnesses to
such offenses, nothing remains-if police investigation is not to be balked before it has fairly
begun-but to seek out possibly guilty witnesses and ask them questions, witnesses, that is,
who are suspected of knowing something about the offense precisely because they are
suspected of implication in it.' ( Culombe v. Connecticut, 367 U.S. 568, 571 [6 L.Ed.2d
1037, 1040, 81 S.Ct. 1860].)
       "Do we then allow the police to ask questions of persons suspected of crime who
have been temporarily detained for investigation? In California the answer is yes, an answer
initially formulated as the privilege of the police to seek out and question suspects and those


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believed to have knowledge of crime, but which has been subsequently broadened to include
brief questioning of persons who have been involuntarily detained.
(People v. Mickelson, 59 Cal.2d 448, 450-452 [30 Cal.Rptr. 18, 380 P.2d 658]; People v.
Martin, 46 Cal.2d 106, 108 [293 P.2d 52]; People v. Blodgett, 46 Cal.2d 114, 117 [293 P.2d
57]; People v. Michael, 45 Cal.2d 751, 754 [290 P.2d 852]; People v. Machel, 234
Cal.App.2d 37, 46 [44 Cal.Rptr. 126]; People v. Cowman, 223 Cal.App.2d 109 [35
Cal.Rptr. 528]; People v. Beverly, 200 Cal.App.2d 119, 125 [19 Cal.Rptr. 67]; People v.
King, 175 Cal.App.2d 386, 390 [346 P.2d 235]; People v. Jackson, 164 Cal.App.2d 759
[331 P.2d 63].)" (Id, at pp. 661-662.)
               Whether a person is in custody is 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. (People v. Leonard, supra, 40 Cal.4th at p. 1400.)
The totality of the circumstances are considered and include "(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; and (5) the demeanor of the officer, including the nature
of the questioning." (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) Additional
factors are whether the officer informed the person he or she was considered a witness or
suspect, whether there were restrictions on the suspect's freedom of movement, whether the
police were aggressive, confrontational, and/or accusatory, and whether the police used
interrogation techniques to pressure the suspect. (People v. Aguilera (1996) 51 Cal.App.4th
1151, 1162.)
               Officer Coulter responded to a call that a man matching appellant's description
was pushing a stolen motorcycle. He saw appellant push a new motorcycle down the street
and try to hide behind a vehicle. Appellant had a flat-blade screwdriver that could be used
as a weapon, was acting "hanky," and was handcuffed for officer safety purposes. Officer
Coulter advised appellant that he was being detained while the police investigated a possible
motorcycle theft, and asked: "Is this your vehicle?" This single question was asked to
confirm or dispel the officer's suspicions. A peace officer harboring the suspicion that a
motor vehicle is perhaps stolen may inquire as to ownership. In these circumstances the


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California Vehicle Code expressly allows an officer to ask for the registration of a vehicle.
(Veh. Code § 2804, People v, Cacioppo (1968) 264 Cal.App.2d 392, 396-397.)
                 Appellant claims that handcuffing and asking him a question rendered it a
custodial interrogation. But the court must consider all the circumstances surrounding the
police encounter and no one factor is controlling. (People v. Pilster, supra, 138 Cal.App.4th
at p. 1404.) Handcuffing a suspect during an investigative detention does not automatically
make it custodial interrogation for purposes of Miranda. (Ibid.; United States v. Bautista
(9th Cir. 1982) 684 F.2d 1286, 1289.) Here it is obvious that the reason for the handcuffing
was appellant's possessing a flat-blade screwdriver and the officer's belief that appellant was
about to flee.
                 Appellant was advised that he "was being detained while we investigate[]
this." The detention lasted two minutes. Officer Coulter was alone, and appellant was
questioned on a public sidewalk. "This is a significant difference from interrogation at the
police station, 'which frequently is prolonged, and in which the detainee often is aware that
questioning will continue until he provides his interrogators the answers they seek.'
[Citation.]" (People v. Pilster, supra, 138 Cal.App.4th at p. 1404; see Orozco v. Texas
(1969) 394 U.S. 324, 326-327 [22 L.Ed.2d 311, 314-315] [place of interrogation is not
determinative but is a factor to consider].) Based on the totality of the circumstances the
trial court reasonably concluded that it was not a custodial interrogation for Miranda
purposes. (People v. Clair (1992) 2 Cal.4th 629, 679-680; People v. Pilster, supra, 138
Cal.App.4th at p. 1404.)
                 There are, of course, limits to the rule allowing "brief and casual"
investigatory questions. If the questioning is aggressive, confrontational, accusatory,
coercive, or sustained, the court may find a violation of Mianda. As Justice Fleming said,
Miranda warnings are not required "until such time as the point of arrest or accusation has
been reached or the questioning has ceased to be brief and casual and became sustained and
coercive." (People v. Manis, supra, 268 Cal.App.2d at p. 669.)




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                                   Other Crime Evidence
              Appellant argues that the trial court abused its discretion in admitting evidence
of the prior car theft to show knowledge, intent, and common plan. (Evid. Code, § 1101,
subd. (b).) Appellant claimed that he innocently found the motorcycle, requiring the
prosecution to show that appellant had the specific intent to permanently or temporarily
deprive the owner of title or possession. (People v. O'Dell, supra, 153 Cal.App.4th at p.
1574.) The prior car theft was sufficiently similar to show knowledge, intent, and common
plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) Appellant took the car during the
early morning hours when it was parked in front of the victim's house. The car ignition was
punched out with a flat-blade screwdriver and appellant was stopped after a license plate
recognition camera alerted that the car was stolen.
              Appellant argues that the other crimes evidence was more prejudicial than
probative (Evid. Code, § 352) and the jury could have treated it as propensity evidence. The
jury was instructed that the other crimes evidence could only be considered to show
knowledge, intent, or common plan. (CALCRIM 375.) It was instructed not to consider the
evidence for any other purpose, that it was not to conclude that appellant had a bad character
propensity to commit the crime, and that the other crimes evidence "is not sufficient by
itself to prove that the defendant is guilty . . . ." (CALCRIM 375.) It is presumed tht the
jury understood and followed the instruction. (People v. McDermott (2002) 28 Cal.4th 946,
999.)
              The judgment is affirmed.
              CERTIFIED FOR PUBLICATION


                                                                      YEGAN, J.
We concur:


              GILBERT, P.J.


              PERREN, J.

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                                    David M. Hirsch, Judge

                                Superior Court County of Ventura

                           ______________________________


             Patricia A. Malone, under appointment by the Court of Appeal, for Defendant
and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Zee Rodriguez, Deputy Attorney General,
for Plaintiff and Respondent.




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