Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08CF0669, William R. Froeberg, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan Beale and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Mark Anthony Gardner, Sr., was convicted of carjacking and unlawfully taking a vehicle. He argues on appeal that his conviction should be reversed because the trial court failed to exclude evidence obtained during a custodial interrogation before he was advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Because defendant was imprisoned on an unrelated charge at the time he was questioned in connection with the carjacking, we use a totality of the circumstances analysis to determine whether the interrogation resulted in an added imposition on defendant’s freedom of movement, above and beyond the restrictions inherent in being in a prison setting. We conclude it did not.
Defendant also argues the trial court imposed an unauthorized sentence by ordering him to pay a $30 assessment, pursuant to Government Code section 70373, subdivision (a)(1). For the reasons we explain, we disagree.
We therefore affirm the judgment.
Statement of Facts and Procedural History
In November 2007, Augustin Trujillo lived in a duplex in Santa Ana. On November 21, 2007, between 1:00 a.m. and 2:00 a.m., Trujillo backed his car out of the driveway of his duplex to allow his wife and one of their neighbors to move their cars. While Trujillo sat in his idling car, an African American man opened the driver’s door and ordered Trujillo to get out. The man was holding a hatchet in his right hand. Trujillo got out of his car, and ran into his residence to call the police, as the man got into the car and drove away. Neither Trujillo nor his wife was able to identify the man who took their car.
Shane Edwards was arrested, and later convicted, for the unlawful taking of Trujillo’s car. Edwards told police officers he got the car from an African American man named Mark, and identified defendant from a six pack photo lineup. (Defendant is African American.)
Detective Daniel Aguilar interviewed defendant in an office at the Riverside County jail, where defendant was being held on an unrelated charge, on December 19, 2007. Defendant initially denied knowing Edwards, denied stealing Trujillo’s car, and denied even being in Santa Ana on November 21, 2007. Later in the interview, defendant told Detective Aguilar he had been abandoned by his wife on November 21 at an AM/PM store in Santa Ana. The store was near Trujillo’s home. Defendant, who was drunk at the time, said he found a car idling in a nearby alley, got in, and drove away. Defendant denied using a weapon, and insisted the vehicle was running but unattended when he found it.
At trial, the parties stipulated that defendant’s wife would testify (1) she and defendant had an argument while driving in their car in Santa Ana on November 21, 2007; and (2) after defendant got out of their car and entered an AM/PM store, his wife left him there and drove their car to her mother’s house.
Defendant was convicted by a jury of carjacking (Pen. Code, § 215, subd. (a)), and taking a vehicle without the consent of the owner (Veh. Code, § 10851, subd. (a)). (The jury could not reach a verdict on an allegation that defendant personally used a deadly weapon during the commission of the carjacking. (Pen. Code, §§ 1192.7, 12022, subd. (b)(1).)) Defendant was sentenced to 20 months in prison on the carjacking count, which was to be served consecutively to a prison sentence imposed in a separate criminal matter. The sentence on the unlawful taking of a vehicle count was stayed pursuant to Penal Code section 654. Defendant was ordered to pay, among other things, a Criminal Conviction Assessment Fee of $30, pursuant to Government Code section 70373, subdivision (a)(1). Defendant timely appealed.
Discussion
I.
Miranda, supra, 384 U.S. 436
A. Background
The following evidence was offered at a pretrial hearing on defendant’s motion to suppress the statements he made before he was read his Miranda rights. Detective Aguilar testified that on December 19, 2007, he called the Riverside County jail and asked the jail to arrange an interview with defendant. At the time, defendant was a suspect in the Trujillo carjacking. Jail guards directed Detective Aguilar to a windowless interview room, which was about 10 by 12 feet, and appeared to be an office. A guard brought defendant to the room in handcuffs, removed the handcuffs at Detective Aguilar’s direction, and closed the door. Detective Aguilar and defendant sat on either side of one of the desks in the room. Detective Aguilar told defendant he wanted to interview him about a matter unrelated to the matter for which he was in custody. He did not provide defendant with any warnings under Miranda. He twice told defendant he could stop the interview at any time, he was free to leave, and he could ask for a lawyer to be present. Defendant said he understood. Detective Aguilar did not have the authority to decide whether the door to the interview room was open or closed, and he told defendant so.
Defendant initially denied knowing anything about Trujillo’s stolen car, and denied that he knew Shane Edwards. Detective Aguilar then told defendant he was not being truthful, and advised him there was evidence that he had taken the car.
The interview with defendant was tape recorded. When the interview was complete, Detective Aguilar called the guards, who came within a couple of minutes, handcuffed defendant, and led him away.
On February 11, 2008, Detective Aguilar telephoned defendant, who was then in custody at the Kern County State Prison. The purpose of the telephone call was to confirm the information defendant provided during his initial interview at the Riverside County jail. Detective Aguilar did not advise defendant of his Miranda rights during the telephonic interview. He did not know whether defendant was handcuffed, or where or how defendant was being housed at the time of the telephonic interview.
The trial court denied the motion to suppress: “I don’t think it’s necessary to reinvent the wheel. The case cited by the People, People [v.] Macklem [(2007)] 149 Cal[.]App[.]4th 674 [(Macklem)], has a rather thorough and exhaustive evaluation of when someone is in detention custody and when someone is in custody for Miranda purposes. [¶] And in circumstances remarkably similar to what Mr. Gardner faced the court held, ‘The trial court correctly applied the authorities to determine that a reasonable person in [the defendant]’s position would have realized that he could end the questioning and leave before the end of the interview.’ [¶] It is not dispositive that the conversation here took place in the detention facility since [the defendant] was told he could leave the interview room at any time and did not have to discuss the issues. [¶] Under the totality of the circumstances, he was not in custody for purposes of Miranda. The protections of Miranda do not apply. And the failure of the detective to give a Miranda warning did not make his statements inadmissible. [¶] It sounds reasonable to me, so I’m going to deny the motion to suppress those statements – or to exclude them I guess is more appropriate in the motion in limine. [¶] The telephone interview. I’ve never seen a case involving a telephone interview being considered to be a custodial interrogation, so I don’t know that there’s any basis to suppress that as well.”
B. Analysis
“Miranda requires that a person questioned by police after being ‘taken into custody or otherwise deprived of his freedom of action in any significant way’ must first ‘be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’ [Citation.] Custodial interrogation is ‘“questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”’ [Citation.] When there has been no formal arrest, the custody issue turns on ‘how a reasonable person in the suspect’s position would perceive his circumstances.’ [Citations.]” (Macklem, supra, 149 Cal.App.4th at p. 689.)
“A prisoner or one incarcerated in jail is not automatically in ‘custody’ within the meaning of Miranda. As the Ninth Circuit pointed out, a contrary approach would ‘torture [Miranda] to the illogical position of providing greater protection to a prisoner than to his nonimprisoned counterpart.’ [Citation.]” (People v. Anthony (1986) 185 Cal.App.3d 1114, 1121.)
In Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424, 428, the Ninth Circuit held that when the subject of a police interrogation is already in prison, or a similar custody setting, to be in custody for purposes of triggering Miranda warnings “necessarily implies a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement.” The Cervantes court held “the language used to summon the individual, the physical surroundings of the interrogation, the extent to which he is confronted with evidence of his guilt, and the additional pressure exerted to detain him must be considered to determine whether a reasonable person would believe there has been a restriction of his freedom over and above that in his normal prisoner setting.” (Ibid.) The Cervantes factors have been adopted by California courts. (See, e.g., Macklem, supra, 149 Cal.App.4th at p. 687; People v. Fradiue (2000) 80 Cal.App.4th 15, 20-21; People v. Anthony, supra, 185 Cal.App.3d at p. 1122.)
“‘To determine whether prison officials have applied an additional restraint, further restricting an inmate’s freedom and triggering Miranda warnings, courts must consider the totality of the circumstances surrounding the alleged interrogation.’ [Citation.]” (People v. Fradiue, supra, 80 Cal.App.4th at p. 21.)
In considering the Cervantes factors, there is no evidence regarding the language used to summon defendant. The physical surroundings of the interrogation were not restrictive. The interview room was described as an office, and Detective Aguilar and defendant sat on either side of a desk. (Macklem, supra, 149 Cal.App.4th at p. 688 [interrogation not implicating Miranda took place “in a professional interview room (normally used for attorney or doctor consultations)”].) Although the door to the room was closed, Detective Aguilar explained to defendant this was due to the jail’s requirements. The lack of a window in the room is not significant. No published case addressing this issue mentions the presence or absence of a window in an interrogation room. We cannot perceive how the lack of a window could make the setting more restrictive than normal prison conditions. (See People v. Fradiue, supra, 80 Cal.App.4th at pp. 20-21 [interrogation not implicating Miranda took place in the defendant’s cell].) Defendant was confronted with evidence of his guilt.
Finally, and most significant to our analysis, no additional pressure was exerted to detain defendant during the interrogation. To the contrary, defendant was removed from whatever cell or holding area he had been in, his handcuffs were removed, and he was told at least twice that he could stop the interview at any time, he was free to leave, and he could confer with an attorney. (Macklem, supra, 149 Cal.App.4th at p. 688 [in interrogation not implicating Miranda,the defendant was led to the interview room, his handcuffs were removed, and he was told “he was not required to talk to [the police detective] and that if he wanted to leave at any time, she would leave the room and lock the door, and call the housing deputies to take him back”].)
When we consider the totality of the circumstances, we conclude the trial court correctly determined that defendant was not in custody for Miranda purposes when he was interviewed by Detective Aguilar.
Defendant argues his telephonic interview with Detective Aguilar was inadmissible for the same reasons his initial interview was inadmissible. Detective Aguilar did not testify at trial about his telephonic interview with defendant. No transcript of the interview was before the jury. Whether the substance of the telephonic interview should have been excluded is a moot point.
II.
Government Code section 70373, subdivision (a)(1) Assessment
Government Code section 70373, subdivision (a)(1), requires the imposition of a $30 assessment against every conviction for a felony or misdemeanor offense. Defendant committed the crimes before section 70373 became effective on January 1, 2009 (Stats. 2008, ch. 311, § 6.5), but was convicted and sentenced after the statute’s effective date.
“To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction.” (Gov. Code, § 70373, subd. (a)(1).)
Defendant argues the assessment was imposed retroactively. “No part of [the Penal Code] is retroactive, unless expressly so declared.” (Pen. Code, § 3.) “[I]n the absence of a clear legislative intent to the contrary statutory enactments apply prospectively.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1193-1194.) Nothing in the legislative history of Government Code section 70373 expressly states the assessment is to be applied retroactively. “‘[A] statute that is ambiguous with respect to retroactive application is construed... to be unambiguously prospective.’ [Citations.]” (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841.)
In People v. Alford (2007) 42 Cal.4th 749 (Alford), our Supreme Court considered whether Penal Code section 1465.8, subdivision (a)(1), which imposed a court security fee, could apply retroactively. (The Court also considered whether section 1465.8, subdivision (a)(1), violated ex post facto prohibitions; defendant in this case conceded the Government Code section 70373, subdivision (a)(1), “assessment does not violate ex post facto prohibitions, because it serves a nonpunitive purpose.”) We asked the parties to file supplemental letter briefs addressing whether the Alford court’s analysis regarding retroactivity was applicable in this case, and whether any legislative history for Government Code section 70373 showed a clear and compelling intent by the Legislature that the statute apply retroactively. The Attorney General’s brief, inexplicably, addresses only the portion of Alford, supra, 42 Cal.4th 749, addressing ex post facto laws; as explained ante, this is not an issue in this case.
For this reason, the Attorney General’s reliance in his supplemental letter brief on People v. Brooks (2009) 175 Cal.App.4th Supp. 1, is misplaced. People v. Brooks considered whether Government Code section 70373, subdivision (a)(1) violated the prohibitions on ex post facto laws, and applied Alford’s ex post facto analysis. It did not consider whether Government Code section 70373, subdivision (a)(1), could be applied retroactively.
In People v. Castillo (2010) 182 Cal.App.4th 1410, the Third District recently considered the same argument defendant raises. The court examined the similarity between the language of Penal Code section 1465.8 (at issue in Alford)and Government Code section 70373 (at issue here). The court noted that Government Code section 70373 was enacted after the Supreme Court’s opinion in Alford issued, and concluded a trial court must impose the $30 assessment fee under Government Code section 70373, subdivision (a)(1), even when the crime was committed before the statute’s effective date.
In People v. Castillo, supra, 182 Cal.App.4th at pages 1414-1415, the court stated: “The assessment is ‘imposed on every conviction’ as defined. [Citation.] Defendant’s conviction occurred after the statute’s effective date. The fact that defendant’s conviction flowed from antecedent criminal conduct is not addressed by the statute. [¶] The California Supreme Court reached a similar conclusion regarding an analogous statute. In [Alford, supra, ] 42 Cal.4th 749..., a statute effective after Alford’s crime imposed a court security fee on every conviction. [Citation.] Because the statute was part of a budgeting bill, the court concluded that ‘the Legislature intended to impose the court security fee to all convictions after its operative date.’ [Citation.] [¶] The court security fee statute provides in part: ‘To ensure and maintain adequate funding for court security, a fee of thirty dollars ($ 30) shall be imposed on every conviction for a criminal offense [as defined].’ [Citation.] The criminal conviction assessment statute provides in part: ‘To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense [as defined].’ [Citation.] [¶] The similarity between these two provisions is stark. The conclusion that the Legislature decided to convey the same meaning in both statutes seems inescapable. Alford was decided before [Government Code] section 70373 was enacted. Generally, ‘when a term has been given a particular meaning by a judicial decision, it should be presumed to have the same meaning in later-enacted statutes or constitutional provisions.’ [Citations.] [¶] The Legislature’s decision to word [Government Code] section 70373 like the court security fee statute, after the latter statute had been interpreted by Alford, to apply to convictions occurring after that statute’s effective date shows that the Legislature intended the new assessment to apply to convictions occurring after the new statute’s effective date. [¶] Further, like the court security fee, the criminal conviction assessment for court facilities was enacted as part of the budgeting process. [Citation.] In Alford, the California Supreme Court viewed such circumstance as an indication that the court security fee was meant to apply to convictions incurred after its operative date. [Citations.] The same rationale obtains here. [¶] We conclude that the trial court properly imposed a $ 30 criminal conviction assessment in this case.” The court’s reasoning in People v. Castillo, supra, 182 Cal.App.4th 1410, is persuasive to us, and we follow it.
Government Code section 70373, subdivision (a)(1), requires that a $30 assessment fee be imposed against “every conviction for a criminal offense.” (See People v. Castillo, supra, 182 Cal.App.4th at p. 1415, fn. 3; People v. Brooks, supra, 175 Cal.App.4th Supp. at pp. 6 7.) The trial court imposed a single $30 assessment, although defendant was convicted of two criminal offenses. The Attorney General did not appeal from the judgment, and never raised this issue in his respondent’s brief or when we requested supplemental briefing. The Attorney General has forfeited the issue.
Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.