People v. May CA4/2

• Court: California Court of Appeal
• Decided: March 15, 2023
• Docket: E078021
• Status: Unpublished

Opinion

Filed 3/15/23 P. v. May CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E078021

v. (Super.Ct.No. FVI19002218)

JOLENE JEAN MAY, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Antoine F.

Raphael, Judge. Affirmed.

Edward Mahler, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Donald

W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

A jury found defendant and appellant Jolene Jean May guilty of possession of

methamphetamine for sale. (Health & Saf. Code, § 11378.) A trial court placed her on

probation for two years under specified terms and conditions. On appeal, defendant

argues the trial court erred in admitting statements she made to police officers in violation

of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Thus, she contends her

conviction should be reversed and the matter remanded for a new trial. We affirm.

FACTUAL BACKGROUND

Prosecution Evidence

Detective Reynoso conducted surveillance of defendant’s residence and observed,

within a one-hour span, more than 15 vehicles and five or six individuals on foot come to

the residence briefly and then leave. He testified at trial that based on his training and

experience, this activity was consistent with a house being used to sell narcotics. On

February 1, 2017, he executed a search warrant at defendant’s residence, along with

approximately five other police officers. They knocked on the front door and announced

they were from the sheriff’s department and had a search warrant. Someone answered

the door and allowed them in. Defendant, her husband, and her children were there,

along with three other adults. After the officers brought everyone to a main area, they

conducted a protective sweep of the house, with their guns drawn but pointed toward the

ground. Once they deemed the house safe, the officers put their guns back in their

holsters.

2 Detective Brosowske testified that he asked defendant whose room was whose.

She told him the room to the right down the hallway was hers and pointed out a couple of

the kids’ rooms. Defendant then talked to Detective Reynoso.

Detective Reynoso testified that he asked defendant if there were drugs in the

house and asked where they were. Defendant brought him to the den area and told him

that’s where the drugs were. He saw a few small baggies that contained

methamphetamine residue. Detective Brosowske then found a Ziploc freezer bag

containing 167 grams of methamphetamine. Officers also found a scale, baggies, and

$370 in cash. Detective Reynoso subsequently read defendant her Miranda rights, and

she said she understood them and was willing to speak with him. During a recorded

interview, defendant admitted she was selling methamphetamine, about an ounce or two a

day, and was making $300 to $400 per day.

Defense Evidence

Defendant testified on her own behalf at trial. She testified that at the time the

police searched her house, she was addicted to methamphetamine and used about one

gram per day. Defendant testified that she was in possession of methamphetamine for

personal use and not to sell it. She further said Detective Reynoso told her that if she said

she sold drugs and gave him her contacts, the case would not go to the district attorney,

and she would not go to jail. Thus, nothing she said to Deputy Reynoso after he read her

Miranda rights was true.

3 Rebuttal

Detective Reynoso testified that contrary to defendant’s testimony, he did not tell

her what to say during the interview under Miranda or make any promises.

DISCUSSION

The Trial Court Properly Admitted Defendant’s Statements to the Officers

Defendant argues the evidence of statements she made to the police detectives, in

violation of her Miranda rights, were improperly admitted. Specifically, she claims her

responses to Detective Brosowske’s “question as to who occupied each of the bedrooms”

and Detective Reynoso’s “inquiry that she show him the location of drugs” were products

of custodial interrogation and should have been suppressed. Defendant also claims that

because of the “inherently coercive nature of the first unmirandized interrogation,” her

responses to Detective Reynoso’s subsequent questioning should have also been

suppressed, even though she waived her Miranda rights. She claims that Detective

Reynoso gave her the Miranda warnings while he was “already interrogating” her and

she was in custody; thus, her “second statement was [the] product of the first

unmirandized statement[s] as well as the coercive environment.” We disagree and

conclude the court properly admitted the evidence of her responses.

A. Procedural Background

Prior to trial, the prosecution filed a trial brief, which included a motion seeking to

admit pre-Miranda statements defendant made to police officers during the search of her

4 residence and before she was placed under arrest.1 Defendant subsequently filed a

motion in limine and asked for an Evidence Code section 402 hearing concerning the

admissibility of any statements she made to any police officer.

On August 3, 2021, the court held a hearing and addressed the admissibility of the

statements. The prosecutor called Detective Brosowske as a witness. Brosowske said he

executed a search warrant at defendant’s residence on February 1, 2017, along with three

to four other officers, including Detective Reynoso. They knocked on the door, entered

the residence, and informed everyone a search warrant was being served. The officers

detained all the occupants inside in order to secure the area “and make it safe for a

search.” Detective Brosowske said there were “quite a few” occupants, including

defendant, her two children, and four or five other adults. When securing the house, the

officers had their guns drawn but angled at the floor (“low ready”). As soon as the house

was deemed safe, they holstered their guns. After the house was secured, Detective

Brosowske asked defendant “whose room [was] whose,” and she pointed out one of the

bedrooms and said, “That one is mine,” and said the kids’ bedrooms were down the hall.

Detective Brosowske testified that when he spoke to defendant, his gun was not

drawn, but was in his holster. He said he had not told her she was under arrest, and she

was not in handcuffs. He also said they were standing in the hallway near her room, and

she was free to move around to show him whose room was whose. Detective Brosowske

said his demeanor when he asked defendant about the rooms was, “[j]ust normal.”

1 The motion did not name any specific statements. 5 On cross-examination, Detective Brosowske said that when the occupants were

detained, they were asked to go to an area of the house already deemed safe and stand

with an officer. They were not put in handcuffs, but they were also not free to move

around. Detective Brosowske confirmed that when he asked defendant whose room was

whose, she was not free to leave the house, but she was free to move in the general

vicinity where she was. When asked how long he was in the house before he asked

defendant whose room was whose, Detective Browoske said, “It would have been pretty

quickly, within a couple minutes.” He confirmed that he did not advise defendant of her

Miranda rights before asking her whose room was whose. He also did not ask her any

other questions.

The prosecutor then called Detective Reynoso to testify. Reynoso said when they

executed the search warrant there were approximately seven or eight people at

defendant’s residence. He said he was present when Detective Brosowske asked

defendant whose room was whose, and he confirmed that none of the officers had their

guns drawn at that point and defendant was not in handcuffs. Detective Reynoso said

that immediately after defendant pointed out her room to Detective Brosowske, he

(Reynoso) “asked her to direct [him] to any narcotics that would be in the house.”

Defendant took him to the north part of the house and showed him an area that contained

“scraper” bags. He explained that “scraper” bags were bags that previously contained

methamphetamine, but now just had residue. Detective Reynoso asked defendant if those

were all the drugs in the house, and she said yes. After that, Detective Brosowske

brought him a “large freezer-sized bag of methamphetamine out of the bedroom.” The

6 officers then collected evidence and put it all on a table. At that point, Detective Reynoso

read defendant her Miranda rights. She said she understood her rights and was willing to

talk to him. She then admitted she sold methamphetamine, and told him how much the

drugs cost her and what her profit was from selling them.

Defendant testified as well and said that on the day of the search of her residence,

she and her husband stepped outside and heard a helicopter and saw police officers

yelling at them to put their hands up, with their guns drawn. Defendant testified that she

was there with her four kids and four other adults. She said they were all separated, and

Detective Reynoso took her to the den and said, “just say that you sell drugs and give me

your connects, the ones that sell big and have weapons.” He also said he would not press

charges and would not send the matter to the district attorney, and she would not go to

jail. Defendant testified that Detective Reynoso read her Miranda rights just before he

left. Defendant said she told Detective Reynoso whom she got the drugs from and the

prices of the drugs before he read her Miranda rights. On cross-examination, defendant

said she was afraid of going to jail, so she told the officer what he wanted to hear. She

confirmed that the officers had their guns drawn when they came in, but she could not

recall when they put them in their holsters. She said Detective Reynoso was pointing his

gun at her when he talked to her in the den. Defendant then said she thought he put his

gun away when she started to talk.

After hearing witness testimony, the court issued its ruling that defendant was not

in custody at the time she made her pre-Miranda statements; thus, they were admissible.

The court summarized that there were “three distinct statements” made—the pre-Miranda

7 statements dealing with the questions about the layout of the rooms and the location of

the drugs in the house, and the post-Miranda statement. The court noted that after

hearing the witnesses testify and seeing defendant’s demeanor on the stand, it credited

Detective Reynoso’s testimony to the extent there was any conflict with defendant’s

testimony. The court also found there were eight or nine occupants at the house and five

officers involved with the execution of the warrant. The court found that while guns

were drawn when they entered the residence, the officers holstered them after the safety

sweep was completed. The court further found that defendant was not handcuffed and

was told she was not under arrest, and that she made the statements under her own

volition. The court stated that the in-home interrogation was not custodial, noting that

there were twice as many occupants as officers; thus, it was not a police-dominated

atmosphere.

Looking at the totality of the circumstances, the court ultimately found that

defendant was properly detained during the execution of the search warrant, and she was

not in custody at the time she made the statements prior to being advised of her Miranda

rights. Thus, the court found those statements admissible. The court found that

defendant’s Miranda waiver was knowing, intelligent, and voluntary; thus, the post-

Miranda statements were also admissible.

B. Standard of Review

“ ‘In applying Miranda . . . one normally begins by asking whether custodial

interrogation has taken place. “The phrase ‘custodial interrogation’ is crucial. The

adjective [custodial] encompasses any situation in which ‘a person has been taken into

8 custody or otherwise deprived of his freedom of action in any significant way.’ ” ’

[Citation.] ‘Absent “custodial interrogation,” Miranda simply does not come into

play.’ ” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) The question of whether

defendant was in custody for the purposes of Miranda is a mixed question of law and

fact. (Ibid.) The first inquiry is factual—the trial court simply needs to ascertain the

factual circumstances surrounding the interrogation. (Id. at p. 402.) Once the relevant

facts are ascertained, the trial court must determine whether, under the relevant legal

principles, defendant was in custody for the purposes of Miranda. (Ibid.) On appeal, we

review the trial court’s factual findings under the substantial evidence standard of review.

(Ibid.) However, we review the trial court’s legal determination of the custody issue

independently. (Ibid.)

C. Defendant Was Not in Custody

Defendant contends she was in custody when Detective Brosowske asked her who

occupied each bedroom in the house and she pointed to a bedroom she occupied, and

when Detective Reynoso asked her to direct him to where the narcotics were, she showed

him an area where the “scraper” bags were, and she said there were no other drugs in the

house. Defendant claims that her responses to the detectives’ inquiries were “the product

of an unlawful interrogation and should have been suppressed.” We disagree.

“Custodial interrogation has two components. First, it requires that the person

being questioned be in custody. Custody, for these purposes, means that the person has

been taken into custody or otherwise deprived of his freedom in any significant way.

[Citation.] Furthermore, in determining if a person is in custody for Miranda purposes

9 the trial court must apply an objective legal standard and decide if a reasonable person in

the suspect’s position would believe his freedom of movement was restrained to a degree

normally associated with formal arrest.” (People v. Mosley (1999) 73 Cal.App.4th 1081,

1088 (Mosley).) “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.” (People v. Pilster (2006) 138

Cal.App.4th 1395, 1403-1404 (Pilster).) “[A] suspect who is detained during the

execution of a search warrant has not suffered a ‘ “restraint on freedom of movement” of

the degree associated with a formal arrest,’ and is thus not ‘in custody’ for purposes

of Miranda.” (United States v. Burns (7th Cir. 1994) 37 F.3d 276, 281.)

Here, defendant has failed to demonstrate that she was restrained to a degree

normally associated with formal arrest. (Mosley, supra, 73 Cal.App.4th at p.1088) When

Detective Brosowske asked her whose room was whose, she had not been formally

10 arrested. Although defendant and the other occupants were initially detained in one area

of the house, it was only while the officers conducted a safety sweep with their guns

pointed toward the ground. Notably, there were more occupants than officers, so it was

not a “police-dominated atmosphere,” as defendant claims.2 (See Pilster, supra, 138

Cal.App.4th at pp. 1403-1404.) Although the occupants were not free to move around

during the safety sweep, they were not in handcuffs. Furthermore, Detective Brosowske

testified that when he asked defendant whose room was whose, she was free to move in

the general vicinity where she was. Moreover, he was the only officer questioning

defendant, and the question was open-ended, non-accusatory, and investigative.

Detective Brosowske simply asked the question to aid his investigation, and he was not

aggressive or confrontational. Further, the record indicates defendant readily pointed out

the rooms. The circumstances were the same when Detective Reynoso asked defendant

to show him where the drugs were located in the house. She readily took him to the north

part of the house and showed him where they were and, when he asked if that was all the

drugs in the house, she said those were all the drugs.

On this record, we cannot say a reasonable person in defendant’s position would

believe her freedom of movement “was restrained to a degree normally associated with

formal arrest,” when the detectives asked her the questions at issue. (Mosley, supra, 73

Cal.App.4th at p. 1088.) Thus, the court properly ruled that defendant was not in custody

2 Defendant points out that respondent claims five deputies participated in the search, whereas the evidence showed there were six. Such discrepancy is immaterial since the court found there were eight or nine occupants at the house. 11 for purposes of Miranda, and it did not err in denying her motion to suppress the

statements that were made.

Furthermore, in light of our conclusion that defendant’s responses were not

obtained in violation of Miranda, we reject defendant’s related claim that her admission

to selling drugs, given after waiving her Miranda rights, was the tainted product of the

detectives’ initial questions. In any event, “we observe that admissions made pursuant to

full Miranda waivers may not be suppressed because of prior Miranda violations unless

the later admissions were in fact involuntary.” (People v. Samayoa (1997) 15 Cal.4th

795, 831.) Defendant does not claim on appeal that her post-Miranda confession was

involuntary. We additionally note the other evidence that defendant was selling

methamphetamine, including the foot and vehicle traffic at her residence consistent with

drug sales, and the 167 grams of methamphetamine, the scale and baggies, and the $370

in cash, found inside her home. Accordingly, in view of this evidence and defendant’s

confession after she waived her Miranda rights, the admission of her responses to the

detectives’ initial questions, even if erroneous under Miranda, was harmless beyond a

reasonable doubt. (See Ibid.)

12 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

CODRINGTON Acting P. J.

MENETREZ J.