Opinion
NOT TO BE PUBLISHED
Appeals from a judgment of the Superior Court of Orange County, No. 08CF1050, Daniel Barrett McNerney, Judge.
Sylvia Whatley Beckham, 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, Gil Gonzalez and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Paul E. Corbin was convicted of assault with a deadly weapon, and was found to have personally used a deadly weapon and to have personally inflicted great bodily injury in committing the crime. Defendant appeals from his conviction, and from his sentence. We affirm.
Defendant argues his conviction must be reversed due to misconduct committed by the alleged victim of his crime, Kelly Raymond, while testifying. We conclude Raymond’s testimony, while impermissible, was both cured by an admonition to the jury, and not prejudicial.
Defendant also argues the trial court erred in admitting statements he made to the police before receiving warnings under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We conclude the trial court’s factual findings are supported by substantial evidence. We further conclude that the interrogation of defendant was not a custodial interrogation at the time he made the statements. The trial court did not err in denying the motion to suppress the statements.
Defendant next argues the trial court erred by instructing the jury that it could not use evidence of Raymond’s past acts of violence to conclude Raymond was a person of bad character or was disposed to commit crime. The instruction correctly stated the law, and we find no error. Because we conclude there was no error, and any error was not prejudicial, we reject defendant’s additional argument that cumulative error requires reversal.
Finally, defendant argues two of the three five year sentencing enhancements imposed pursuant to Penal Code section 667, subdivision (a)(1) should be stricken. We conclude there was sufficient evidence that defendant’s three serious felonies were brought and tried separately, making the three sentence enhancements proper.
Statement of Facts and Procedural History
On September 2, 2007, defendant, his wife Lisa Corbin, and Raymond attended a party at Carrie Snyder’s house. (Because they share the same last name, we will refer to defendant’s wife by her first name to avoid confusion; we intend no disrespect.) Later that evening, in the kitchen of the house, defendant stabbed Raymond multiple times in his back and arm.
Raymond testified that he had been arguing with defendant and Lisa, and that defendant pulled a knife on him when they were alone in the kitchen. Raymond drove away from Snyder’s house and called the police for assistance. At the hospital, he told the police that defendant had stabbed him. Raymond was treated for at least five stab wounds to his back and arm.
Defendant and Lisa testified that Raymond, while holding a knife, had threatened to stab Lisa. Defendant testified that, fearing for Lisa’s safety, he stepped toward Raymond and grabbed his wrist. Defendant further stated that as he and Raymond scuffled, defendant reached for something on the counter, grabbed the handle of a sharp object, and tried to scratch Raymond to cause him to let go of defendant and the knife. According to defendant, Raymond let go of him when defendant struck him in the arm.
Lisa testified she did not see any blood on defendant or outside on the walkway, and only saw “[a] little bit” of blood on the kitchen floor. The police officer who responded to Raymond’s call for help testified blood was “pouring out” or “squirting out” of one of Raymond’s wounds. Another police officer who responded to the scene testified to the appearance of blood spots on the walkway outside Snyder’s house, although the walkway had been washed down, and further testified spots of blood were found on the driveway, in a gated area, and on the door to the kitchen. Raymond’s blood was also found inside and on the outside of his car, and on defendant’s clothing.
The police located defendant at a house across the street from Snyder’s house. Defendant told the police he did not know Raymond, did not know anything about an altercation, and had not been involved in an altercation at Snyder’s house.
Defendant was charged in an information with attempted premeditated murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)), and aggravated assault with a deadly weapon (id., § 245, subd. (a)(1)). The information alleged that in committing both crimes, defendant had personally used a deadly weapon (id., § 12022, subd. (b)(1)), and had personally inflicted great bodily injury (id., § 12022.7, subd. (a)). Defendant was alleged to have suffered three prior strike convictions (id., §§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)), and three prior serious felony convictions (id., § 667, subd. (a)(1)).
A jury convicted defendant of assault with a deadly weapon, and found the allegations of personal use of a deadly weapon and personal infliction of great bodily injury to be true. The jury could not reach a verdict on the attempted premeditated murder charge, and the trial court ultimately granted the prosecution’s motion to dismiss that charge.
In a bifurcated proceeding, defendant waived his right to a jury trial and admitted he had suffered the prior convictions.
Defendant was sentenced to a total of 17 years in prison: the low term of two years on the assault charge, plus three consecutive five year terms for the prior serious felony conviction enhancements. Punishment was stricken on one of the sentencing enhancements, and the other enhancements were dismissed. Although the trial court recalled the sentence and conducted a hearing to determine whether defendant had suffered two or three prior serious felony convictions, the original sentence was reimposed. Defendant timely appealed.
Discussion
I.
The Misconduct by Witness Raymond Was Not Incurably Prejudicial.
Defendant argues his conviction must be reversed because of two incurably prejudicial comments made by Raymond while testifying.
A. Testimony That Defendant Went to Prison
Raymond was asked by defendant’s trial counsel whether defendant moved away from San Bernardino County after leaving school. Raymond responded, “[j]ust when he went to prison, I guess.” The court granted defendant’s motion to strike the response, and admonished the jury not to consider it for any purpose. When evidence is stricken and the jury is admonished to disregard it, we generally presume on appeal that the jury followed the admonishment. (People v. Avila (2006) 38 Cal.4th 491, 575.) The question before us is whether Raymond’s testimony created such a substantial danger of undue prejudice and of misleading the jury that the presumption has been overcome. (People v. Seiterle (1963) 59 Cal.2d 703, 710; People v. Allen (1978) 77 Cal.App.3d 924, 935 (Allen).) “The finding of exceptional circumstances depends upon the facts in each case.” (Allen, at p. 935.)
In Allen, supra, 77 Cal.App.3d at page 929, a rebuttal witness for the prosecution testified the defendant’s sister had told the witness that the defendant was on parole. The trial court struck the testimony and instructed the jury to “‘disregard it completely.’” (Id. at p. 934.) The appellate court concluded the admonition to the jury was insufficient under the circumstances of the case to cure the harm caused by the improper prejudicial comment. “An examination of the record reveals an extremely close case in which the jury had to make its fact determination based upon the credibility of the [defendant] and his witnesses and on the credibility of the prosecution’s witnesses. In the light of these facts, it is reasonably probable that a result more favorable to [defendant] would have been reached had the prejudicial information of [defendant]’s parole status not been divulged to the jury. [Citation.]” (Id. at p. 935.) In Allen, the defendant testified (id. at p. 929); although the problematic testimony came in through a prosecution rebuttal witness, the defendant’s parole status was due to a juvenile adjudication, and could not be used to attack his credibility (id. at p. 934).
Like Allen, the jury in this case made its credibility determinations. Here, however, there was no prejudice because information that defendant had been to prison would have been—and was—presented to the jury. Both defendant and Lisa testified defendant had been in prison. Although defendant contends on appeal that the defense strategy at trial “may have been totally different in the absence of the earlier witness misconduct,” such a contention is speculative. Defendant has failed to overcome the presumption that the admonition to the jury not to consider Raymond’s testimony was sufficient.
B. Testimony That Defendant Had “a Propensity to Carry a Knife.”
Defendant’s trial counsel and Raymond engaged in the following colloquy:
“Q. [Defendant’s counsel]... How about the question of, you said you then heard a click. This is your testimony... at the preliminary examination. [¶] ‘When you heard that click, what is it that you understood that to be?’ [¶] Answer: ‘I recognized it maybe like a Spyderco type folding knife. Maybe good quality, sounded like.’ [¶] Do you recall that question and that answer?
“A. [Raymond] Makes a lot of sense because he has a propensity to carry a knife.”
Defendant’s trial counsel did not object to this testimony, and did not ask the trial court to strike it or to admonish the jury. (The Attorney General does not argue that the issue has been forfeited, however.)
At trial, defendant stipulated that he had committed a kidnapping by force and by instilling fear. Lisa testified defendant used a knife and inflicted great bodily injury in committing the kidnapping. Using a knife while committing a kidnapping is far more prejudicial than Raymond’s testimony that defendant had a propensity for carrying a knife. As noted, ante, although defendant suggests on appeal that his defense strategy might have been different absent Raymond’s testimony, this argument is speculative. Any error was therefore not prejudicial.
II.
The Trial Court Properly Denied Defendant’s Motion to Suppress, and Admitted the Statements Made by Defendant to the Police Before He Received Miranda Warnings.
Defendant argues the trial court erred by admitting statements he made to the police before he received warnings under Miranda. The court admitted statements made by defendant in response to police questioning before his interrogation became custodial, but excluded his statements made after that point. Only the statements made before the custodial interrogation began are at issue.
Law enforcement officers “are not required to administer Miranda warnings to everyone whom they question.” (Oregon v. Mathiason (1977) 429 U.S. 492, 495.) Rather, law enforcement officers are required to administer Miranda advisements only to those subject to custodial interrogation: “‘Absent “custodial interrogation,” Miranda simply does not come into play.’” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) For purposes of Miranda, a person is in custody when there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. (Thompson v. Keohane (1995) 516 U.S. 99, 112; accord, People v. Ochoa, at p. 401.)
“Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citation.] Although no one factor is controlling, the following circumstances should be considered: ‘(1) [W]hether 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.’ [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 1404, fn. omitted.)
We review the trial court’s factual findings under the deferential substantial evidence standard, and we review de novo whether the interrogation was custodial. (People v. Pilster, supra, 138 Cal.App.4th at p. 1403.)
The following testimony was presented at a hearing conducted pursuant to Evidence Code section 402. About 8:30 p.m. on September 2, 2007, Officers Jorgensen, Bremer, and Suarez were dispatched to Snyder’s house to investigate a stabbing. Raymond identified defendant as the person who stabbed him. Donna Weller, who lived across the street from Snyder, stated defendant might be at her house. Jorgensen found defendant in her backyard.
Defendant consented to be searched. Jorgensen asked defendant to go across the street with him, and defendant agreed. Jorgensen escorted defendant through the Wellers’ house and across the street, with his hand on the back of defendant’s arm, both to guide defendant and to be able to grab him if he tried to run. Jorgensen believed defendant was “detained” as a “[p]ossible suspect” in the assault on Raymond. Jorgensen asked defendant, “would you sit down,” and had defendant sit on the curb in front of Snyder’s house. Jorgensen did not have his gun drawn, defendant was not handcuffed, and defendant was not told he was under arrest.
Jorgensen told defendant he was investigating a stabbing, but did not tell defendant he was a suspect. Jorgensen asked defendant if he had been involved in an altercation with Raymond. Defendant denied being in an altercation and claimed he did not know Raymond. Defendant also denied knowing anything about an altercation that took place at Snyder’s house. Jorgensen also asked what time defendant had arrived at Snyder’s house, whether he had had anything to drink, and whether he had ever been arrested. Jorgensen asked defendant several more times about an altercation, and, each time, defendant denied knowing anything about it. Defendant was then arrested, transported to the police station, and advised of his rights under Miranda.
Defendant testified that after Jorgensen searched him in the Wellers’ backyard, Jorgensen escorted him through the house, and told him to go with him across the street. The officers took defendant’s wallet and driver’s license. Jorgensen repeatedly asked defendant, “[w]ho is Kelly that you’ve known for two years?” Defendant replied, “I have nothing to say.” Defendant testified he did not believe he was free to leave.
The trial court, applying the People v. Pilster factors, found the location of the questioning was near the scene of the stabbing; the general questions about defendant’s knowledge of Raymond were not “the type of interrogation type question which is the indicia of formal arrest”; the conversation between defendant and Jorgensen was basically one on one, despite the presence of other officers; defendant was not handcuffed and did not have weapons pointed at him; and although defendant was not free to leave, Jorgensen did not “amp[] up the indicia of restraint that are common with investigation of violent crimes.” The trial court determined defendant’s responses to the first series of questions about whether he was involved in an altercation and whether he knew Raymond were admissible because defendant was merely detained at that point. The court concluded the detention evolved into a custodial interrogation as the questioning continued, and excluded the remainder of defendant’s responses to Jorgensen’s questions.
We conclude the trial court’s factual findings are supported by substantial evidence. We further conclude, under the totality of the circumstances, that the interrogation was not custodial at the time Jorgensen asked defendant the initial set of questions. Therefore, the trial court correctly denied the motion to suppress defendant’s responses to those questions.
III.
Exclusion of Evidence
Defendant was not permitted to introduce evidence (1) of Raymond’s alleged white supremacist ideologies and related tattoos, (2) of Raymond’s conviction for possessing chemicals used in the manufacture of methamphetamine, or (3) that Raymond had “rough sex” or some type of violent interaction with Snyder the night before the stabbing. A trial court’s ruling on the admissibility of evidence under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955.)
The trial court found Raymond’s Nazi related tattoos and his white supremacist ideologies would be excluded because “the prejudice substantially outweighs the probative value.” Both Raymond and defendant are Caucasian, and the case involved no allegations of hate crimes or gang involvement. Therefore, evidence of Raymond’s white supremacist ideologies and tattoos would not be probative of any issue in the case. Such evidence would, however, have been prejudicial. The trial court did not abuse its discretion in excluding that evidence.
The trial court permitted impeachment of Raymond with evidence regarding a 2003 conviction for possession for sale of methamphetamine, although the court required counsel to refer to it as a “2003 felony conviction for dishonest conduct.” The court also permitted impeachment of Raymond with a 2001 conviction for assault with a deadly weapon. Pursuant to Evidence Code section 352, the court did not permit impeachment of Raymond with evidence of his 2000 conviction for possessing chemicals used in the manufacture of methamphetamine because “Mr. Raymond is subject to [impeachment] with two prior felonies, the [2001] Nevada assault with deadly weapon conviction and the 2003 drug conviction. I find that beyond those two felony convictions it becomes cumulative and less probative of Mr. Raymond’s credibility as a witness.” The trial court did not abuse its discretion in reaching that conclusion.
As to the excluded evidence regarding rough sex between Raymond and Snyder, the manner in which Raymond engaged in consensual sexual intercourse would not have been probative of his propensity for violence against defendant and Lisa in public, and would have been prejudicial. The trial court did not abuse its discretion in excluding that evidence.
Even if the trial court had erred in excluding the foregoing evidence, we would conclude the error was harmless, because it is not reasonably probable the verdict was affected by the exclusion of the evidence. (People v. Cudjo (1993) 6 Cal.4th 585, 611-612; People v. Watson (1956) 46 Cal.2d 818, 836.).
Despite defendant’s argument to the contrary, we conclude the exclusion of evidence allegedly relating to Raymond’s propensity for violence and lack of credibility does not present a federal constitutional issue. Defendant was not denied the right to present a defense; he was merely precluded from introducing certain evidence, which we have concluded was not probative, but was prejudicial.
IV.
Limiting Instruction
Defendant argues the trial court erred by instructing the jury as to the manner in which it could consider evidence of Raymond’s past acts of violence to establish his character for violence.
The Attorney General argues that defendant forfeited this argument by failing to object to the instruction or request a modification at trial. In People v. Harris (1981) 28 Cal.3d 935, 956, the California Supreme Court concluded that an error in instructing the jury as to the purposes for which other crimes evidence might be considered affected the defendant’s substantial rights, and could be considered on appeal despite the failure to object to the instruction in the trial court. Although defendant here did not object in the trial court to the instruction based on CALCRIM No. 375, we will reach the merits of the issue.
We review defendant’s claim of an erroneous instruction independently, considering the instructions as a whole and determining whether it is reasonably likely the challenged instruction confused or misled the jury. (People v. Rundle (2008) 43 Cal.4th 76, 149.)
The challenged instruction (which was based, in part, on CALCRIM No. 375) reads as follows: “Evidence was presented that Kelly Raymond committed a prior act of violence, to wit, an assault with a deadly weapon in 2001 and that the defendant committed a prior act of violence, to wit, kidnapping in 1993. [¶] Evidence of Kelly Raymond’s prior act of violence was offered by the defendant to prove Mr. Raymond’s conduct of September 2nd, 2007 was in conformity with that character trait. [¶] Evidence of the defendant’s prior act of violence was offered by the People to prove defendant’s conduct of September 2nd, 2007 was in conformity with that character trait. [¶] You may, but are not required, to consider this evidence for the limited purpose of determining whether Mr. Raymond and/or the defendant acted in conformity with that character trait on September 2nd, 2007. In addition, you may, but are not required, to consider this evidence in evaluating the credibility of Mr. Raymond and the defendant as witnesses in this case. [¶] Do not conclude from this evidence that Mr. Raymond or the defendant are persons of bad character or are disposed to commit crime. [¶] The fact that the defendant committed a prior act of violence is only one factor to consider along with all the other evidence in determining whether or not the People have proved his guilt. It is not sufficient by itself to prove the defendant is guilty of the crimes charged. The People must still prove each element of each charge beyond a reasonable doubt.” (Italics added.) Defendant challenges only the italicized portion of the instruction.
Defendant concedes that it was appropriate for the court to instruct the jury it could not conclude from the evidence of defendant’s prior act of violence that he was a person of bad character or was disposed to commit crime. Defendant argues, however, that “when the defendant introduced evidence of [Raymond]’s prior conviction showing a character for violence and aggression, there is certainly no requirement in the case law for the trial court to instruct the jury not to consider that as evidence of bad character or criminal disposition as the trial court undertook to do in this case.”
First, there is no prohibition in the case law preventing the trial court from doing so. Second, two of the statutes in issue are written in terms of any “person,” not “defendant.” Specifically, Evidence Code section 1101, subdivision (a) makes inadmissible evidence of any person’s character or trait of character to prove his or her conduct on a specific occasion. Section 1101, subdivision (b) prohibits the admission of evidence that any person committed a crime or a civil wrong to prove his or her disposition to commit such an act. Third, section 1103, subdivision (a)(1) provides that evidence of the crime victim’s character is not inadmissible under section 1101 to prove the victim’s conduct in conformity with that character or character trait. But section 1103, subdivision (a)(1) does not by its terms permit testimony to show bad character or a disposition to commit crimes. So there is statutory authority for the instruction as given.
Evidence Code section 1101 reads as follows: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
Evidence Code section 1103 provides: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. [¶] (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1). [¶] (b) In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”
Therefore, the challenged portion of the instruction correctly stated the law—the jury could not consider the evidence of Raymond’s prior acts of violence to determine he was a person of bad character or that he was disposed to commit crimes. The jury could use that evidence to conclude that on September 2, 2007, Raymond acted in conformity with his character or a character trait. There was no error.
V.
There Was No Cumulative Error.
Finally, defendant argues the cumulative negative impact of the errors claimed on appeal deprived him of a fair trial and requires reversal. As explained ante, there was no error, or any error was not prejudicial. We therefore conclude there was no cumulative error.
VI.
There Was Sufficient Evidence That Defendant’s Three Serious Felony Priors Were Brought and Tried Separately.
Three five year sentence enhancements were imposed against defendant, pursuant to Penal Code section 667, subdivision (a)(1). On appeal, defendant contends that two of those three sentence enhancements should be stricken, because there was insufficient evidence that the serious felonies on which they were based were brought and tried separately.
If a defendant is convicted of a serious felony, Penal Code section 667, subdivision (a)(1) provides for a five year sentence enhancement for each prior serious felony against the defendant for which the charges were “brought and tried separately.” Charges are brought and tried separately if they are filed separately, not consolidated, even if the defendant pleads guilty to them at the same time, or is sentenced for them at the same time. (In re Harris (1989) 49 Cal.3d 131, 135-136; People v. Wagner (1994) 21 Cal.App.4th 729, 737; People v. Gonzales (1990) 220 Cal.App.3d 134, 140-144; People v. Thomas (1990) 219 Cal.App.3d 134, 145 147.) If cases could have been consolidated, but were not, they are separate for purposes of section 667. (People v. Gonzales, supra, at pp. 142 143; People v. Jerez (1989) 208 Cal.App.3d 132, 137, 139.)
Defendant was charged in San Bernardino County Municipal Court case No. FWV02427 with brandishing a firearm and dissuading a witness by force or threat; those crimes were alleged to have been committed on August 24, 1993, against Darren Coleman. Defendant was charged in San Bernardino County Superior Court case No. FWV02097 with kidnapping, second degree robbery, and assault with great bodily injury; those crimes were alleged to have been committed on September 18, 1993, against Michael Tuosto. On October 27, 1993, defendant was charged with dissuading a witness by force or threat and making terrorist threats against Michael Tuosto in San Bernardino County Municipal Court case No. FWV02422; those crimes were alleged to have been committed on October 13, 1993. All three cases were resolved by guilty pleas on November 19, 1993. The three prior serious felonies were brought and tried separately, and the trial court did not err in imposing three five year sentence enhancements.
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.