NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
INTRODUCTION
Geoffrey Mayne appeals from a judgment following his convictions for petty theft and second degree commercial burglary. He contends that the trial court erred in allowing the prosecution to introduce: (1) incriminating statements he made to a police officer prior to being given Miranda advisements; (2) stolen property the police officer located in his apartment, and (3) his post-Mirandized confession.1 Specifically, he contends that his incriminating statements and his consent to the search of his residence were not voluntary, and that the failure to promptly give him Miranda advisements tainted his confession. Finding no error, we affirm the judgment in its entirety.
STATEMENT OF THE CASE
Appellant was charged with two counts of petty theft with a prior (Pen. Code, § 666),2 two counts of second degree commercial burglary (§ 459), and one count of possession of marijuana of more than 28.5 grams (Health & Saf. Code, § 11357, subd. (c)). Prior to trial, appellant unsuccessfully moved to suppress statements he had made to police officers before and after his arrest, and evidence derived from those statements. A jury found appellant guilty on all counts. The marijuana possession count was dismissed, and the trial court sentenced appellant to an aggregate term of five years, four months in state prison on the two counts of commercial burglary and stayed the sentence on the remaining counts. Appellant timely appealed from the judgment of conviction.
STATEMENT OF THE FACTS
On two separate occasions, appellant was observed on security surveillance tapes stealing an MP3 player from a Target store in the City of La Verne. On January 6, 2009, two days after the second incident, La Verne Police Officer Christopher Miranda went to appellant's apartment to arrest him. Appellant made incriminating statements to Officer Miranda, and he also allowed Officer Miranda to search his house for the stolen MP3 players. After appellant was brought to the La Verne Police Department, Officer Christopher Dransfeldt read appellant his Miranda rights, and appellant gave a videotaped confession. According to Officers Miranda and Dransfeldt, within the La Verne Police Department, typically when there was a "want" for an individual, the arresting officer would bring the individual to the station, and the lead detective would read the Miranda advisements and interview the person.3
Appellant moved to suppress his statements to Officers Miranda and Dransfeldt and the evidence derived from his statements. At the hearing on appellant's motion to suppress, Officer Miranda testified that he arrived at appellant's home with two other police officers as backup. One officer stayed with his patrol car, and the other officer went with Officer Miranda to appellant's apartment. Officer Miranda knocked on the door, and appellant answered it. Officer Miranda asked appellant if he was Geoffrey Mayne, and appellant answered, "Yes." Officer Miranda then asked appellant to step outside of the apartment to speak with him, and appellant did so. Appellant asked Officer Miranda how he could help him. Officer Miranda told appellant that he had a "want" for his arrest for stealing merchandise from Target. Appellant then said, "`Oh, my gosh. I have that. I have that. It's inside. It's inside, officer. I know what you're here for. I have the MP3 inside.'" He also told Officer Miranda that he would get it and return it "right now."
Officer Miranda told appellant to calm down, and asked, "`So you have the MP3 here?'" Appellant told him that he did, and that it was on his desk. Officer Miranda then asked, "`You know, so you took it, so you stole it?'" Appellant replied, "`I have it in there, and I'll give it back to you. Can we make some arrangement here, I give it back to you, work it all out?'"
Officer Miranda told appellant, "relax," "we'll handle it," and "[e]verything will be okay." Officer Miranda then asked, "`Is it okay if I go grab it?'" Appellant said, "`Yeah, go grab it. I'll grab it for you, whatever you want to do. You can go in there.'" Officer Miranda said, "`Okay. Thank you.'" He then asked appellant to describe the stolen property, and appellant told him it was a blue MP3 player, and that it was hanging by the desk.
After this exchange, Officer Miranda placed appellant under arrest. The other officer then began escorting appellant to the patrol car. Officer Miranda again asked appellant if he could go get the MP3 player. Appellant said yes, and added that he had a "bunch of marijuana plants" in the apartment, but that he had a "license to cultivate and sell in California."
Officer Miranda went into the apartment but could not locate the MP3 player. He returned to appellant, who was handcuffed in the back seat of the patrol car. Officer Miranda told appellant, "`Geoffrey, I can't find the MP3 player. I'm just going to take you in, and, you know, you can deal with that later.'" Appellant said, "`No, no, sir. It's right there. Just walk in. It's hanging right there. You can't miss it.'" Officer Miranda said, "`Well, you better tell me [be]cause I can't find it.'" Appellant then told him that it was hanging on the coat rack. Officer Miranda returned to the apartment, and retrieved the MP3 player from the coat rack.
Appellant told a different story about his encounter with Officer Miranda. He testified that on January 6, 2009, he was in his home when he heard a knock on the door. He asked who it was, and the police responded. Appellant opened the door, and the officers directed him to come out and down the stairs. Once he got to the bottom of the stairs, he was handcuffed and led to the patrol car. While sitting in the patrol car, he saw Officer Miranda come out of his home, approach him, and ask, "`Where is Target's property?'" Appellant told him it was hanging on the coat rack, and then immediately said, "`Aren't you supposed to read me my rights?'" Officer Miranda told appellant that they would read him his rights at the police station. Appellant testified that the officers did not ask permission to enter his home, and he never gave them permission. Appellant also stated that he did not feel threatened, but he was cooperative because he was submitting to a person of authority. Subsequently, he was taken to the La Verne Police Department and placed in an interrogation room. Officer Dransfeldt read appellant his Miranda rights, and then began questioning him. He told Officer Dransfeldt everything that happened because he had already told Officer Miranda everything.
After listening to the testimony, the trial court stated:
"I find that the statements made initially before [appellant] was placed in the car, because I'm going to make a distinction, were spontaneous statements, and that [appellant] gave a consent to search. [As for] [t]he statement in the car . . . [t]he officer testified that . . . [appellant] urged him to find the MP3 player. I find that consistent with [appellant's] later statements[,] . . . and it appears to me and the court finds that [appellant] was willingly giving up information he thought . . . would benefit him if they recovered the items and things would go easier for him. Therefore, I find that all the statements were spontaneously made not in violation of Miranda and are admissible. That takes us then to the issue of Missouri versus Seibert [(2004) 542 U.S. 600] in which counsel has argued that the impermissible questioning of [appellant] outside of Miranda as a ruse softening up a defendant so that when an officer talks to him, he can — he'll give a better statement or he'll give a statement under Miranda. You may be heard as to that very briefly. My tentative is to deny that — I'll tell you as well — having found no violation in the initial statement, no evidence whatsoever presented that there is any plan, there is any conspiracy, there is any policy with regard to softening up defendants. That's my tentative. You can convince me I'm wrong, counsel."
Defense counsel then argued that the trial court should reconsider its tentative ruling because appellant was not Mirandized until he was taken to the police station. This "had the effect of softening [appellant] so that at this point he felt like he had nothing to lose or to gain by not simply giving in to the detective's interrogation because he had already made all of the requisite incriminating statements to Officer Miranda." After the matter was submitted, the court stated the following:
"Motion to reconsider is denied. I find that this isn't even close to Missouri versus Seibert. That there was no plan. There was no conspiracy. The fact that a patrol officer makes an arrest, brings a person to the station for later interview, absolutely, nothing inappropriate with that, and I don't think the courts want to step into detailing to that level how police agencies should do their work. And the court has already found that they were spontaneous statements, and any questions, any dialogue that took place between Officer Miranda and [appellant] were initiated by [appellant]. Furthermore,. . . [u]ntil the cuffs were put on [appellant] and he was put into the patrol car, there was a detention, not an arrest taking place."
Defense counsel also had orally argued that the confession to Officer Dransfeldt was not voluntary because appellant had a history of mental illness based upon his jail records, and appellant may have suffered from a "manic episode" during the confession. The court found otherwise. It stated:
"The court has reviewed the . . . tape, and assuming for the sake of argument — and I don't know that it's disputed — that [appellant] does suffer from a mental disorder, the court finds under the totality of the circumstances, that is, the questions asked, the answers given, the demeanor of [appellant], the fact that the interview was short in nature, was shortly after [appellant] was arrested, that there was nothing done to break down [appellant]. That the police officer did not take advantage of any knowledge he . . . learned during the interview. Based on the totality of the circumstances, assuming that [appellant] suffers from . . . schizoaffective disorder, the court finds that voluntary, finds the confession admissible. Miranda was properly given."
DISCUSSION
A. Motion to Suppress
Appellant first contends that the trial court erred in denying his motion to suppress because (1) his incriminating statements to Officer Miranda, (2) his consent to search his residence, and (3) his confession to Officer Dransfeldt were involuntary. Accordingly, he contends that the incriminating statements, the property located in his residence, and his videotaped confession should not have been introduced against him at trial.
In reviewing a trial court's ruling on a motion to suppress, an appellate court applies two different standards of review. The reviewing court defers to the trial court's findings of fact, both express and implied, if supported by substantial evidence. The reviewing court then independently applies the pertinent legal principles to those facts to determine whether the motion should have been granted. (People v. Carter (2005) 36 Cal.4th 1114, 1140.) We address each of the evidence challeneged in the motion to suppress in turn.
First, appellant's incriminating statements to Officer Miranda were voluntary. There is substantial evidence to support the finding that Officer Miranda's questions and statements to appellant were not custodial interrogation. Officer Miranda asked appellant if he was Geoffrey Mayne, asked him to step outside to talk, and informed him that he was wanted for questioning. These questions and statements were not "`reasonably likely to [elicit] an incriminating response.'" (People v. Bradford (1997)14 Cal.4th 1005, 1035.) Moreover, the encounter occurred right outside appellant's residence, and appellant was not handcuffed or under arrest at the time. Finally, after independent review, we conclude that appellant volunteered that he had the stolen property in his apartment. Thus, on this record, we conclude that appellant's statements to Officer Miranda were voluntary. (See id. at p. 1034 [Where an officer casually asked appellant "`Is it just a warrant?'" during his booking, and appellant stated "`Murder'" and then proceeded to describe the murder to other officers, appellant's initial pre-Mirandized description about the murder to the officers was admissible because he voluntarily initiated the discussion.].)
Second, we agree that there was substantial evidence to support the trial court's finding that appellant voluntarily consented to the search of his apartment. (See People v. James (1977) 19 Cal.3d 99, 106, 109-110 [Whether consent is voluntary is a question of fact to be determined in light of all the circumstances, including whether the person giving the consent was under arrest or handcuffed and whether the police used coercive or deceptive practices]; People v. Avalos (1996) 47 Cal.App.4th 1569, 1578 ["[N]o single factor is dispositive of this factually intensive inquiry."].) Here, the trial court credited the testimony of Officer Miranda over any conflicting testimony by appellant. That testimony indicated that appellant was not under arrest or handcuffed at the time he gave his initial consent to search his apartment. Appellant was confronted by two officers, but neither officer had his or her weapon drawn. Officer Miranda did not use a threatening or authoritative tone and did not use any deceptive practices to obtain the consent. On these facts, we independently conclude that the consent was given voluntarily. (See People v. James, supra, 19 Cal.3d at pp. 113-115 [Consent was voluntary where "the arresting officer neither held defendant at gunpoint, nor unduly detained or interrogated him; the officer did not claim the right to search without permission, nor act as if he intended to enter regardless of defendant's answer." Moreover, "defendant's consent was not rendered involuntary as a matter of law because [the police officer] did not advise him of his Miranda rights before asking permission to search."].)
Finally, we conclude that the confession to Officer Dransfeldt also was voluntary. (See People v. Holloway (2004) 33 Cal.4th 96, 114 [Whether a confession is voluntary is based upon the totality of the circumstances]; Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226-227 [Factors to consider in determining whether a confession was voluntary include the details of the interrogation, such as the length of detention and the nature of the questioning, and the characteristics of the defendant, including his age and lack of education.].) Here, there is undisputed evidence that appellant was given Miranda advisements prior to the interrogation, that the interrogation was short, and that nothing was done during the interrogation to break down appellant. Even assuming that appellant suffered from a mental disorder, the trial court found that the demeanor of appellant and his answers did not show that the confession was involuntary. Appellant himself testified that he told Officer Dransfeldt everything because he already had told Officer Miranda everything. On this record, after independent review, we conclude that the confession was voluntary.
Accordingly, we conclude that the trial court did not err in denying the motion to suppress.
B. Tainted Confession
Appellant also contends for the first time on appeal that his confession to Officer Dransfeldt should have been excluded at trial because it was tainted by his pre-Mirandized statements to Officer Miranda. Appellant's argument is premised on the legal conclusion that his incriminating statements to Officer Miranda were involuntary. We previously concluded that Officer Miranda's questions and statements did not constitute custodial interrogation and that appellant volunteered the incriminating statements. Thus, Officer Miranda's actions did not taint the subsequent interrogation by Officer Dransfeldt. Accordingly, we reject this claim of error.
DISPOSITION
The judgment is affirmed.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
