Filed 10/10/13 P. v. Mendez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057294
v. (Super.Ct.No. RIF10005006)
ROMAN GARCIA MENDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge.
Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton and Michael T.
Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant Roman Garcia Mendez, guilty of (1) three
counts of making criminal threats (Pen. Code, § 422); (2) one count of deterring or
resisting an executive officer; and (3) one count of cultivating marijuana (Health & Saf.
Code, § 11358). As to one of the criminal threat counts, the jury found true the
allegation that defendant personally used a firearm during the commission of the
offense. (Pen. Code, § 12022.5, subd. (a).) The trial court sentenced defendant to
prison for a term of four years, four months. Defendant contends the trial court erred by
admitting defendant’s non-Mirandized1 statements concerning the location of a
handgun.2 We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. CRIMES
Defendant lived in a house in Moreno Valley with his wife (Garcia) and her three
children. Mario Lopez (Lopez) is one of Garcia’s children. In July 2010, Lopez was 20
or 21 years old. On July 17, 2010, defendant and Garcia argued. Lopez felt defendant
was verbally abusing Garcia. Lopez and defendant began arguing with one another.
Defendant walked to the backyard, and Lopez followed. Defendant told Lopez to calm
down, or defendant would “whoop [Lopez’s] ass.” Defendant
1 Miranda v. Arizona (1966) 384 U.S. 436.
2 In defendant’s opening brief he raised a second issue. Defendant asserted the
trial court violated his constitutional right of equal protection by imposing a booking fee
without finding he had the ability to pay the fee. In defendant’s reply brief, he
concedes, due to a recent Supreme Court opinion, that the issue was forfeited because it
was not raised at the trial court. (People v. McCullough (2013) 56 Cal.4th 589, 599.)
Since defendant concedes the issue, we do not discuss it further.
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reached into his pocket and pulled out a black semiautomatic handgun. Lopez felt
scared; he called 911.
Riverside County Sheriff’s deputies responded to Lopez’s call. The deputies
created a perimeter around the house. Defendant remained in the house and did not
surrender for approximately 40 minutes or an hour. During the standoff, defendant
threatened to shoot two deputies who were standing along the property’s fence line.
After defendant surrendered, deputies searched the property and found marijuana
plants, two rifles, a shotgun, and ammunition. The ammunition included gold or brass
bullets for a nine-millimeter handgun. Deputies searched the property for a handgun,
but did not find one. Deputy Grotefend asked defendant about “the location of the
handgun.” Defendant told the deputy he “threw the gun away.” Defendant later told
the deputy “he sold the handgun to his uncle.”
B. MOTION
During motions in limine, defense counsel asserted defendant’s statement to
Deputy Grotefend concerning the location of the handgun involved a custodial
interrogation and Miranda issues. Deputy Grotefend testified at an Evidence Code
section 402 hearing. Grotefend’s testimony reflected: Lopez told the deputy he saw
defendant with a handgun. Grotefend did not find a handgun when searching the
property. The property was approximately half an acre with several sheds, piles of
garbage, and “a rickety chain-link fence.” Grotefend had patrolled the neighborhood for
two and a half years. Grotefend knew there were children residing in the neighborhood.
There were eight to 10 residences near defendant’s house.
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Grotefend spoke to defendant while defendant was handcuffed and “detained”
“[i]n the back seat of a police car.” Grotefend told defendant he “was looking for a
handgun and that there was a possibility that a child could get that handgun.” Grotefend
asked defendant where the gun was located. Grotefend had not read defendant his
Miranda rights. Defendant said he threw the gun away. Grotefend asked where the gun
was thrown, then defendant said he sold the gun to his uncle years ago. A handgun
belonging to defendant was never located.
The defense argued that Grotefend’s questions “clearly” constituted a custodial
interrogation. The trial court agreed, but framed the issue as whether Grotefend’s
questions fell within the public safety exception to the Miranda rules. Defense counsel
asserted a thorough search of the property had been performed, so there was not a threat
to public safety when Grotefend posed his questions. The trial court explained the
deputies’ inability to locate a handgun after an extensive search made Grotefend’s
question to defendant “more reasonable,” because there was a possibility defendant
“threw it somewhere out in the public area where they hadn’t been able to find it, [so]
the public risk [was] increased rather than decreased.” The trial court concluded
defendant’s statements to Grotefend fell within the public safety exception to Miranda,
so the statements could be admitted.
DISCUSSION
Defendant contends the trial court erred by admitting his statements about the
handgun because the statements violated defendant’s Fifth Amendment constitutional
right against self-incrimination. We disagree.
4
Miranda rulings are reviewed under the de novo standard. (People v. Nelson
(2012) 53 Cal.4th 367, 380.) “In New York v. Quarles (1984) 467 U.S. 649, the United
States Supreme Court enunciated a narrow ‘public safety’ exception to the prophylactic
procedures mandated by Miranda. In Quarles, the police, after apprehending the
defendant, were confronted with the immediate necessity of ascertaining the location of
a gun that they had reason to believe the defendant had discarded in a supermarket.
Before reciting the Miranda warnings, the police asked the defendant where the gun
was located, and the defendant showed them. After the police retrieved the weapon,
they advised the defendant of his Miranda rights. [The d]efendant claimed his
statement directing the police to the gun, elicited prior to the Miranda warnings, was the
product of a custodial interrogation violative of Miranda and therefore inadmissible.
The trial court agreed and excluded the defendant’s statement directing the police to the
gun, also excluding the gun itself and subsequent statements as illegal fruits of the
Miranda violation.
“On appeal, the United States Supreme Court reversed, holding that the rationale
of Miranda does not require its application in circumstances where police officers must
ask questions reasonably prompted by public safety. The court concluded that ‘the need
for answers to questions in a situation posing a threat to the public safety outweighs the
need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-
incrimination’ [citation], but held that the exception for such a situation must be
circumscribed by the exigency that justifies the exception, thus authorizing the police to
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engage in questioning only to the extent ‘necessary to secure their own safety or the
safety of the public . . . .’ [Citation.]” (People v. Sims (1993) 5 Cal.4th 405, 450.)
The record reflects Lopez saw defendant with a handgun and handgun
ammunition was found on the property. The rifles found on the property were loaded.
Deputies located various firearms on the property, but did not find a handgun. The
property had several sheds and trash piles. Grotefend did not believe it would be
possible to search every shed and debris pile. The property was not secure, as there was
only a “rickety” chain-link fence, which had holes in it.
Given that there were children in the area and multiple residences nearby, a
missing handgun that had been seen just prior to the police standoff would pose a public
safety concern, because defendant could have thrown it over his fence before the
deputies established their perimeter. A child could have found the gun and harmed
himself or others. Grotefend’s questions pertained only to the location of the gun.
When defendant said he sold the gun to his uncle, Grotefend did not ask further
questions. Given the residential character of the neighborhood, the evidence that the
gun had been seen just prior to the standoff, and the limited nature of the deputy’s
questions, we conclude defendant’s statements fall within the public safety exception of
the Miranda rules.
Defendant asserts the public safety exception is inapplicable because there was
no evidence of the gun posing an immediate risk to public safety. Contrary to
defendant’s position, deputies could reasonably be concerned that defendant tossed the
handgun over the fence line before the deputies established the perimeter around the
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property. Thus, the gun could have been lying in an area where a child would find it,
while the police were still present. Accordingly, we do not find defendant’s argument
to be persuasive, as there was an immediate threat to public safety.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
RICHLI
J.
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People v. Mendez CA4/2
Combined Opinion