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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Appellant, v. Leonard O. SECREASE, Defendant and Appellant.

No. A012502.

Decided: January 03, 1983

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Ronald E. Niver, Jeffrey M. Bryant, Deputy Attys. Gen., San Francisco, for plaintiff and appellant. Jo Lynne Quong Lee, Wines, Robinson & Wood, Inc., San Jose (Court-appointed), for defendant and appellant.

Defendant and appellant Leonard O. Secrease (hereafter appellant) appeals from a judgment entered after a jury found him guilty of a violation of Penal Code section 459 (burglary).   Appellant contends on appeal that (1) the trial court erroneously limited appellant's voir dire of the jury panel on the issue of evidence of prior offenses;  (2) the prejudicial effect of the evidence of the prior similar offenses outweighed the probative effect of that evidence;  and (3) the trial court erred in admitting appellant's exculpatory statements made prior to any Miranda warnings and further erred by instructing the jury that appellant's exculpatory statements were admissions.   Plaintiff and appellant People of the State of California (hereafter the People) also appeal and assert that (1) the trial court abused its discretion in imposing the middle term of imprisonment for burglary;  and (2) the trial court erred in striking the punishment for prior prison convictions.

Appellant was observed by a deputy sheriff walking toward and entering a back room at a gas station.   The deputy sheriff's attention was drawn to appellant because appellant was wearing extremely bright clothes, he was a black man walking in Lafayette, and he looked over his shoulder several times in the direction of the one visible station employee.   The deputy sheriff did not recognize appellant as one of the station's employees.

The deputy observed appellant leave the back room and enter the storage room, which was located between the back room and the office.   The officer then contacted the station employee to determine if the employee knew that appellant was in the storage room.   After receiving a negative reply, the deputy checked the storage room.   The deputy then observed appellant in the back room looking inside an open cabinet door with his hand on the cabinet door.   The cabinet contained clothing and keys;  the cabinet was normally kept closed.   This back room was an area generally not open to the public.

The officer drew his gun and proceeded to the back room, whereupon he ordered appellant to “freeze.”   The deputy asked appellant what he was doing and appellant replied that he was looking for an employee to seek a job.   The deputy sheriff then conducted a pat-search, finding a screwdriver inside appellant's left sock and various keys in appellant's pockets.   Appellant was arrested and subsequently advised of his Miranda rights.

The People presented evidence of four prior offenses.   The evidence presented generally had the following in common:  appellant entered a commercial business in daylight during business hours;  appellant did not use force for entry;  he was discovered in an area of the business which was not open to the public;  he used a screwdriver as a burglar tool;  and he explained his presence, when necessary, by stating that he was looking for employment.

Appellant contends that the trial court erred in limiting appellant's counsel's voir dire of the jury.   Relying on People v. Ranney (1931) 213 Cal. 70, 1 P.2d 423 and People v. Williams (1981) 29 Cal.3d 392, 174 Cal.Rptr. 317, 628 P.2d 869, appellant argues that the trial court improperly precluded his counsel from questioning the prospective jurors about possible prejudice arising from evidence of prior offenses introduced to prove intent.

People v. Ranney, supra, 213 Cal. 70, 1 P.2d 423 is distinguishable from the case at bar.   In the instant case, the trial court questioned the entire venire as to their respective abilities to accept and abide by the court's instructions on the law and their abilities to be fair and impartial.   In the Ranney opinion there is no mention of whether the court so questioned the prospective jurors.

 Appellant's reliance on People v. Williams, supra, 29 Cal.3d 392, 174 Cal.Rptr. 317, 628 P.2d 869 is misguided.   The Williams prospective ruling was limited to voir dire proceedings conducted after the Williams decision became final.  (Id., at p. 412, fn. 15, 174 Cal.Rptr. 317, 628 P.2d 869.)   As the instant voir dire was conducted on February 24, 1981 and the Williams rule became final four months later, the Williams case is not controlling.   However, even if the Williams decision did control this case, appellant's contention is not strengthened.   The Williams court held that “a question about a prospective juror's willingness to apply a specific doctrine of law if so instructed should be permitted if the doctrine is likely to be applied at trial;  this ․, is subject to reasonable limitations and the discretion of the trial judge.”  (Id., at p. 398, 174 Cal.Rptr. 317, 628 P.2d 869, emphasis added.)   Appellant has failed to show that the trial judge's limitations were unreasonable or that the trial judge abused his discretion.

“Once the trial judge obtains a commitment from each juror that he will follow the law as given by the court, there is neither basis nor need for any further inquiry on that subject.”  (People v. Orchard (1971) 17 Cal.App.3d 568, 576, 95 Cal.Rptr. 66.)   The trial court did not err in limiting the voir dire of the jury.

 Appellant contends that the prejudicial effect of the evidence of the prior similar offenses outweighed the probative effect of the evidence.   Appellant's argument is based on the fact that while only three witnesses testified to facts concerning the charge at bar, 15 witnesses testified as to four prior offenses.   Appellant argues that the cumulative nature of the evidence was prejudicial, citing Evidence Code section 1101, subdivision (a), Evidence Code section 352, and People v. Schader (1969) 71 Cal.2d 761, 774–775, 457 P.2d 841.

The People presented evidence of the prior offenses to prove appellant's criminal intent.   The evidence demonstrated a sufficiently distinctive modus operandi common to both the charged and uncharged offenses in order to establish appellant's felonious intent upon entry into the service station.

Appellant's argument that the evidence was unnecessarily cumulative and therefore prejudicial is without merit.  “Appellant's argument seems to reflect a misunderstanding of the meaning of ‘prejudice’ when a court determines the admissibility of uncharged offenses․ [¶] [W]hen the evidence shows a common scheme or plan and the similarities between the two offenses are so numerous and distinctive that the evidence has great probative value, the fact that it leads inexorably to the logical conclusion that if the defendant committed the one crime he also committed the other, does not constitute ‘prejudice’ but rather proper overwhelming proof of guilt.”  (People v. Rance (1980) 106 Cal.App.3d 245, 250–251, 164 Cal.Rptr. 822.)

The similarity of conduct, as admitted by appellant, made the prior offenses highly probative.  “The trial court decision admitting evidence over the objection that it is more prejudicial than probative will not be disturbed on appeal absent a showing of manifest abuse of discretion resulting in a miscarriage of justice.”  (People v. Remiro (1979) 89 Cal.App.3d 809, 843, 153 Cal.Rptr. 89, cert. den. 444 U.S. 876, 937, 100 S.Ct. 160, 288, 62 L.Ed.2d 104, 197.)   The trial court properly exercised its discretion in admitting the evidence of the prior offenses.

Appellant's next contention is that the trial court erred in admitting appellant's exculpatory statements made prior to any Miranda warnings and that the trial court erred by instructing the jury that appellant's exculpatory statements were admissions.   Appellant's first argument is that appellant's statement, “I am looking for an employee to seek a job” was erroneously admitted because the officer's question prompting that response was in violation of appellant's constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.   Appellant also contends that the trial court's instruction to the jury of CALJIC No. 2.71 (Admission—Defined) was in error since appellant's response was exculpatory.

  Appellant contends that Sheriff Striek, having in effect caught him with a hand in the cookie jar, immediately thereafter should have advised him of his “constitutional” rights.  (See Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)   While the “facts” as evidenced present a close question as to whether custody for Miranda purposes had attached, we find that the trial court properly denied appellant's pretrial motion in limine to exclude evidence of his “unlikely story,” i.e., “looking for an employee to seek a job.”   Even if we were persuaded that the court erred, we would think it unlikely that informing the jury of appellant's self-serving declaration would cause justice to be miscarried in this case.   Appellant's brief reveals his real concern and that is the court's failure to exclude the seized screwdriver and keys as “ ‘fruit’ of the illegal interrogation.”   However, on the facts presented, it does appear that seizure of these incriminating items was inevitable as products of a search incident to appellant's lawful arrest.  (See People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 671–683, 145 Cal.Rptr. 795.)   We note that defense counsel, in seeking to establish that Miranda custody had attached, argued forcibly, albeit not persuasively, that at minimum Sheriff Striek had probable cause to arrest appellant for “trespass.”

In any case, the briefs provide this court with an update of the wealth of appellate opinions deciding whether the defendant was (or was not) under the pressures of custodial interrogation which was the concern of the court in Miranda.  (People v. Blouin (1978) 80 Cal.App.3d 269, 283, 145 Cal.Rptr. 701;  further, see People v. Herdan (1974) 42 Cal.App.3d 300, 306–310, 116 Cal.Rptr. 641, for a concise review of case precedents, and People v. Montoya (1981) 125 Cal.App.3d 807, 809–811, 178 Cal.Rptr. 211, for a recent application of the Manis-Hubbard analysis, i.e., People v. Hubbard (1970) 9 Cal.App.3d 827, 88 Cal.Rptr. 411 and People v. Manis (1969) 268 Cal.App.2d 653, 74 Cal.Rptr. 423.)

In the instant case it does appear that appellant was “physically deprived of his freedom of action in [a] significant way” and certainly as a reasonable person the sight of Sheriff Striek's unholstered handgun led him to believe that he was so deprived.  (See People v. Arnold (1967) 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 426 P.2d 515.)   At the moment we cannot think of a more “compelling atmosphere” than that existing when Sheriff Striek asked appellant to explain his presence in the station's backroom.   And the fact that the sheriff drew his gun (even if for self-protection) would seem to negate any view that “conditions of restraint” were “minimal.”  (See People v. Hubbard, supra, 9 Cal.App.3d 827, 833–836, 88 Cal.Rptr. 411.)   That the restraint appears to have been “significant” and yet “transitory” seems obvious.  (See People v. Manis, supra, 268 Cal.App.2d 653, 668–669, 74 Cal.Rptr. 423.)   Indeed “When an arrest has not yet taken place [as in the case at bench], the factors considered in deciding whether [Miranda ] custody has attached are many.”  (People v. Herdan, supra, 42 Cal.App.3d 300, 306, 116 Cal.Rptr. 641.)   In the final analysis whatever objective test or standard is employed to determine whether Miranda's constitutional requirements are impacted, i.e., “accusatory stage” or “custody,” the case precedents direct that we analyze the total factual situation.  (See People v. Morse (1969) 70 Cal.2d 711, 722, 76 Cal.Rptr. 391, 452 P.2d 607, cert. den. 397 U.S. 944, 90 S.Ct. 960, 25 L.Ed.2d 125.)

The trial court found that Sheriff Striek's inquiry, “I asked him what he was doing there” occurred during “an investigative stage.”   On balance the relevant circumstances support the trial court's ruling.   Manifestly, the questioning was brief, not accusatory in nature and therefore not designed to elicit an incriminating response.   Respondent's brief accurately states the controlling principles herein.1

We conclude that the People met their burden of proving Miranda custody had not yet attached when Sheriff Striek initially determined appellant's lawful purpose, if any, for being on the premises.  (People v. White (1968) 69 Cal.2d 751, 761, 72 Cal.Rptr. 873, 446 P.2d 993.)

The trial court instructed the jury using, among other instructions, CALJIC No. 2.71 (Admission—Defined) and CALJIC No. 2.03 (Consciousness of Guilt—Falsehood).2  Relying on People v. La Salle (1980) 103 Cal.App.3d 139, 162 Cal.Rptr. 816, appellant argues that as the prior statements were exculpatory and not introduced by the prosecution to prove the truth of the matter contained in the statement, instructions characterizing the statements as “admissions” were erroneous and therefore prejudicial.

Following the adverse ruling denying the defense pretrial motion to suppress on Miranda grounds, evidence of appellant's statement to the effect that he was seeking “a job” was testified to by the arresting officer's testimony without any further objection, i.e., “irrelevant” or “hearsay.”

As above stated, after appellant was arrested, searched and confined to a patrol unit, he waived his Miranda rights and gave self-serving answers to questions concerning his intent or motive:  he was curious;  as to the screwdriver, he “found” it and “didn't want to be seen carrying it”;  that he had a car located in a parking lot near Wells Fargo Bank and that he had not sought employment at other gas stations.   Out of the jury's presence, the defense moved, without success, to exclude the officer's testimony eliciting these self-serving statements.   Again, however, it appears that the defense sought suppression on Miranda grounds only.   The trial court found that Miranda's imperatives were satisfied.   The trial court's ruling denying the motion to suppress, supported as it is by substantial evidence, is not palpably erroneous.   Even were it within our power, we could not deduce a different result.  (See People v. Superior Court (Tunch), supra, 80 Cal.App.3d 665, 670, 145 Cal.Rptr. 795.)   From the record on the motion, it appears that the defense's tactic was limited to impeaching the credibility of the interrogating officer (Striek) with asserted inconsistencies lodged in the preliminary hearing transcript.   Notably, thereafter, in the jury's presence the post Miranda self-serving (“exculpatory,” to use appellant's characterization) statements were received in evidence without objection on any other grounds, i.e., “hearsay” or otherwise.

However, the defense did timely object to the court's instructions charging the jury on the substantive law of admissions.   On appeal, in light of People v. La Salle, supra, 103 Cal.App.3d 139, 150–151, 162 Cal.Rptr. 816, appellant now seeks a determination that the court committed prejudicial error by inferentially instructing the jury that all of his extrajudicial statements were admissions when they “were exculpatory in nature and were not introduced to prove the truth of the matter therein.”   Because we are at a loss to fully comprehend appellant's argument, we quote further what appears to be his bottom line.  “Thus, the trial court's instruction that appellant's statements were ‘admissions' which ‘tends to prove defendant's guilt when considered with the rest of the evidence’ was tantamount to instructing the jury to find appellant possessed the necessary intent and was guilty as charged.   In light of the initial error committed by the court when it admitted appellant's extrajudicial statements at the gas station, this error was not harmless.”

  In any case, it is apparent that appellant premises his argument on the assumption that because his out-of-court statements were exculpatory in nature, it follows that they were not admitted for their truth.   We briefly examine this “assumption.”   Appellant's argument fails to appreciate that the court's rulings denying the motion to exclude did not foreclose a timely defense objection on correctly stated grounds.   In the absence thereof, the court was under no obligation to exclude otherwise inadmissible evidence.   In this instance a “hearsay” objection undoubtedly would have afforded the court the opportunity to consider and rule whether appellant's “seeking a job” assertion was admissible as a “false statement” or “fictitous reason” accounting for presence at the crime scene given to one investigating the crime.   Although hearsay, such falsehoods, if they indicate a consciousness of guilt, are received in evidence and provable as admissions “because they are regarded as assertions by the accused tending to show guilt.”  (See People v. Albertson (1944) 23 Cal.2d 550, 581, 145 P.2d 7, Traynor, J., conc. opn.)   At this juncture we can think of no principle of review wherein a party reaps a benefit from failing to protest the record on appeal other than those instances wherein counsel's omissions may be fairly viewed as resulting in the withdrawal of a potentially meritorious defense.  (See People v. Coffman (1969) 2 Cal.App.3d 681, 690, 82 Cal.Rptr. 782.)   In the instant case, if the court, upon timely objection, had determined that appellant's assertion that he was “seek[ing] a job” was made under incriminating circumstances which defied an honest explanation (People v. Albertson, supra, 23 Cal.2d at p. 582, 145 P.2d 7), his (falsehood) statement could properly be presented for the jury's consideration as implying an admission of guilt.   Although appellant's failure to timely object effectively foreclosed the requisite determination at the time the evidence was proffered, we are unable to find any prejudice to appellant when belatedly the court impliedly made the determination by charging the jury on the law defining Consciousness of Guilt—Falsehood, CALJIC No. 2.03 (1979 rev.).   CALJIC No. 2.03 (1979 rev.)   Use Note directs that “If the false or misleading statement amounted to an admission, Instruction 2.71 should be given.”   Appellant's reliance on People v. La Salle, supra, 103 Cal.App.3d 139, 162 Cal.Rptr. 816, is not persuasive.   In sum, appellant elected not to testify but we see no need to limit the application of CALJIC No. 2.03 to those instances in which the defendant testifies inconsistently with his self-serving extrajudicial fabricated statement.   A determination that a defendant's falsehood is one that may be reasonably construed as implying a consciousness of guilt amounting to an admission may be reached independent of his testimony.

In People v. Borba (1980) 110 Cal.App.3d 989, 168 Cal.Rptr. 305, this court was presented with a scenario diametrically opposite from that in the case at bench.   In Borba, defense counsel erroneously objected to the admission of appellant's statements on hearsay grounds.   A majority of this court held that the failure to object properly on Miranda grounds resulted in the withdrawal of a potentially meritorious defense.   Clearly, such is not the case herein.   As aforestated, appellant opted not to testify in his own defense.   Arguably, then, defense counsel's failure to object to appellant's self-serving out-of-court statements reveals a deliberate oft employed defense tactic or strategem.   Generally, the accused's extrajudicial self-serving declarations are not admissible for the reason that they are not subject to cross-examination when made.   But, as this case illustrates, unless it is irrelevant, incompetent hearsay evidence, if offered and received without proper objection or motion to strike, will support the judgment.  (Witkin, Cal. Evidence (1966 2d ed.) §§ 1305–1306, pp. 1207–1208.)   When the implications of this principle are applied in this case, it is manifest that the defense could elect to raise a reasonable doubt as to “intent to steal.”   Without being subjected to cross-examination, it could be argued on appellant's behalf that when he entered his intent was to find an employee in order to apply for or obtain a job.   Finding none immediately available, he was only being curious when he opened the locker door.   In any case, he would not be a burglar.   A screwdriver concealed in one of his socks need not transform even an opportunistic thief into a felonious burglar.

We are not required to point out and discuss why appellant's self-serving declarations were otherwise relevant.   We affirm the judgment.

The People contend that the trial court abused its discretion in imposing the middle term of imprisonment for burglary.3

“In the absence of a clear showing that its sentence choice was arbitrary or irrational, we must presume the sentencing court acted properly.”  (People v. Hubbell (1980) 108 Cal.App.3d 253, 260, 166 Cal.Rptr. 466;  see also People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65.)   We cannot say that the trial court has abused its discretion.

 The record shows that the trial court considered the probation report, appellant's criminal record, and appellant's behavior and conduct during the trial in making its sentencing choice.   As the decision to impose the middle term was neither arbitrary nor irrational, the court acted properly.

The People also contend that the trial court erred in striking the punishment for prior prison convictions.

 Penal Code section 667.5, subdivision (b) prescribes the duty of a sentencing judge to add an additional year to the base term for each prior conviction admitted or determined to be true.  (See People v. Gaines (1980) 112 Cal.App.3d 508, 515, 169 Cal.Rptr. 381.)   However, Penal Code section 1170.1 grants the trial court the discretionary power to strike section 667.5 enhancements “if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.”  (Pen.Code, § 1170.1, subd. (g);  see also People v. Johnson (1979) 95 Cal.App.3d 352, 355–356, 151 Cal.Rptr. 150.)

 In the instant case, the trial court struck the enhancements under Penal Code section 667.5, subdivision (b).   In so doing, however, the trial court did not state on the record its reasons for striking the priors.   The trial court did discuss mitigating factors when appellant was sentenced to the middle term for the burglary, but the trial court's failure to find circumstances in mitigation and articulate those circumstances on the record in regard to the prior convictions was error.

The judgment of conviction is affirmed and the matter remanded to the trial court for the sole purpose of resentencing in accordance with the views expressed herein.


1.   The People's brief, in relevant part, states accurately the controlling principles:  “While a citizen briefly detained by a police officer is also seized—albeit temporarily—within the meaning of the Fourth Amendment and thus deprived of his freedom of movement, the courts have consistently held that Miranda admonishments are not required.   This type of questioning ‘․ is a permissible means for a police officer who has detained someone to quickly ascertain whether such person should be released or held for further investigation.’  People v. Hill (1974) 12 Cal.3d 731, 767 [117 Cal.Rptr. 393, 528 P.2d 1], overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896 [135 Cal.Rptr. 786, 558 P.2d 872].  Accord People v. Manis (1969) 268 Cal.App.2d 653, 661, 665 [74 Cal.Rptr. 423];  People v. Carter (1980) 108 Cal.App.3d 127, 130–131 [166 Cal.Rptr. 304].  Advisement as to the suspect's Miranda rights is not necessary ‘․ until such time as the point of arrest or accusation has been reached or the questioning has ceased to be brief and casual and becomes sustained and coercive.’   People v. Montoya (1981) 125 Cal.App.3d 807, 810 [178 Cal.Rptr. 211].  See People v. Morse, supra, [70 Cal.2d 711] 723–724 [76 Cal.Rptr. 391, 452 P.2d 607];  In re James M. (1977) 72 Cal.App.3d 133, 137 [139 Cal.Rptr. 902].”

2.   CALJIC No. 2.71 (1980 rev.) reads as follows:  “An admission is a statement made by defendant other than at his trial which does not by itself acknowledge his guilt of the crime(s) for which he is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence.“You are the exclusive judges as to whether the defendant made an admission, and if so, whether such statement is true in whole or in part.   If you should find that the defendant did not make the statement, you must reject it.   If you find that it is true in whole or in part, you may consider that part which you find to be true.“Evidence of an oral admission of the defendant should be viewed with caution.”CALJIC 2.03 (1979 rev.), titled CONSCIOUSNESS OF GUILT—FALSEHOOD, provides as follows:  “If you find that before this trial the defendant made false or deliberately misleading statements concerning the charge upon which he is now being tried, you may consider such statements as a circumstance tending to prove a consciousness of guilt but it is not sufficient of itself to prove guilt.   The weight to be given to such a circumstance and its significance, if any, are matters for your determination.”

3.   The People argue that appellant's lack of violence was not a proper basis for not imposing the aggravated base term.   While the factors listed in California Rules of Court, rule 421, relating to circumstances in aggravation and rule 423, relating to circumstances in mitigation, are not all-inclusive, we note that one enumerated factor in mitigation is rule 423(a)(6):  “․ no harm was done or threatened against the victim.”   Furthermore, since violence is specifically mentioned as a factor in aggravation (rule 421(a)(1);  rule 421(b)(1)), it is logical that the lack of such an aggravating circumstance might be regarded as a potential mitigating factor.

 WHITE, Presiding Justice.

SCOTT and FEINBERG, JJ., concur.

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