P. v. Lebron

Filed 6/1/07 P. v. Lebron CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERTO JOSE LEBRON,
Defendant and Appellant.
F049642
(Super. Ct. No. F05906878-4)
O P I N I O N
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
Peter J. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and
Dane R. Gillette, Chief Assistant Attorneys General, Michael P. Farrell, Senior Assistant
Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for
Plaintiff and Respondent.

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INTRODUCTION
Appellant Roberto Jose Lebron was convicted after jury trial of carjacking,
unlawfully taking or driving a vehicle, receiving a stolen vehicle and driving a vehicle
with a suspended or revoked license. The court found true a probation violation in
another case. (Pen. Code,1 §§ 215, subd. (a) & 496d, subd. (a); Veh. Code, §§ 10851,
subd. (a) & 14601, subd. (a).) He was sentenced to an aggregate term of nine years’
imprisonment.
Appellant challenges the sufficiency of the evidence proving the carjacking. He
also contends that the trial court infringed his due process protections by failing to
exclude all evidence pertaining to the carjacking or to instruct the jury that “the
government had lost important evidence” as sanctions for the police’s pretrial loss of a
piece of evidence. Additionally, appellant argues that the court improperly admitted
statements that he made to a police officer before his arrest. Finally, he challenges
imposition of the aggravated term for count 1 as prejudicial Blakely/Cunningham error.2
None of these arguments are persuasive; we will affirm.
FACTS
On the evening of September 5, 2005, Jesus Gonzalez Rayas drove his father’s
white 1995 Honda Accord (the Honda) to his job at Fresno Beef Packers in Fresno.3
Rayas locked the car and went inside to work. Sometime between 11:30 p.m. and
midnight, he noticed that the car was missing. He telephoned the police but was unable
to make a full report because he did not have all the necessary vehicle information.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) __
U.S. __ [127 S.Ct. 856].
3 Epifanio Gonzalez testified that on September 5, 2005, he owned the Honda and
that he permitted his son to drive the car. The Honda was registered to Gonzalez.

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On the evening of September 6, 2005, Rayas was driving to work in a different
vehicle when he saw the Honda parked at a convenience store. He pulled into the
parking lot and parked. He recognized the Honda because it had a unique tailpipe tip.
The Honda was unlocked and Rayas opened one of the doors and saw a photograph of his
child and some of his clothing items. He also noticed that the airbags were missing,
which was consistent with his father’s vehicle.
Appellant exited the store and approached the Honda. Rayas told him not to get
into the car because it was stolen. Appellant shoved Rayas aside and got into the Honda.
Appellant cursed at Rayas and yelled, “This is my car.” Appellant said that he had
owned the Honda for a year. As appellant got into the Honda, Rayas grabbed his leg.
Appellant kicked Rayas in the stomach, leaving a footprint on his white shirt. Rayas tried
to talk to appellant, but appellant continued to curse and yell at him. Rayas grabbed
appellant’s leg a second time and appellant got out of the vehicle. Rayas and appellant
began arguing about the car. Rayas pointed out the picture of his child and his
belongings inside the Honda. Appellant swore and yelled at Rayas. Appellant shoved
Rayas in the chest and Rayas fell to the ground. Appellant got into the Honda and sped
away, almost running over Rayas. Rayas got into his vehicle and chased after the Honda
but lost sight of it after a few minutes.
Rayas returned to the store and obtained the store’s surveillance videotape from
the clerk. Rayas watched the videotape later that evening. It was difficult to view
because the image moved between multiple cameras very quickly. Using a slow motion
feature on his VCR, Rayas was able to observe appellant on the videotape. He saw
appellant enter and exit the car. He also saw images of himself and appellant standing in
the parking lot. The videotape showed appellant leaving in the Honda.
Around midnight on September 7, 2005, Rayas was driving to work when he saw
the Honda. He followed it until he spotted a California Highway Patrol (CHP) vehicle.

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He informed the CHP officers that the Honda was stolen. The officers pursued and
stopped the Honda, which was being driven by appellant.
Rayas approached the CHP officers and related the events from the convenience
store and his prior attempt to report the vehicle stolen. Rayas identified the Honda by
pointing out the tailpipe tip, the absence of airbags and his personal items inside the
vehicle. Rayas said that appellant had kicked him in the stomach and he pointed out what
appeared to be a large footprint on his shirt.
Appellant told the officers that the Honda belonged to a person named Jaime.
Jaime’s last name was either Madrigal or Marcy. Appellant said that Jaime owned the
Honda for about 18 months and that he borrowed it about four days earlier. Appellant
could not provide an address for Jaime. He provided a telephone number for Jaime but,
when CHP Officer Todd Clausen tried calling this number, he received a message saying
that it was no longer in service. Appellant then provided another phone number. When
Clausen called this number, the person who answered the telephone told him that no one
named Jamie lived there.
A key was in the Honda’s ignition. It was attached to a key ring containing three
other car keys and an alarm activator. Three of the keys on the ring appeared to be
ignition keys. Each of the keys on the ring corresponded to a different automobile
manufacturer. The alarm activator pertained to a fourth automobile manufacturer. The
key that was in the ignition appeared to have been “shaved.” Car thieves shave car keys
so that they can be used to start the ignition of cars for which they were not intended.
The key that was in the Honda’s ignition would not open the trunk.
Appellant was arrested. During a search incident to arrest, two additional ignition
keys were found in the pockets of his pants. One of the keys appeared to have been
shaved. Appellant professed ignorance of these keys and stated that he was wearing his
brother’s pants.

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The Honda sustained damage that was not present when it was stolen. There were
pry marks on one of the doors and the door lock was missing. The ignition area was
broken. The stereo was damaged.
A CHP officer obtained the videotape from Rayas. The officers tried to view the
tape but, due to the speed that the tape switched from camera to camera, they were not
able to discern any meaningful information. The tape was booked into evidence. The
officers attempted a second time to view the tape but were not successful. The tape was
returned to the evidence locker. Despite attempts to locate the tape, it could not be found
at the time of trial.
In March 2002, the Department of Motor Vehicles notified appellant by mail that
his driver’s license was suspended. The license remained suspended through the time of
trial.
DISCUSSION
I. The carjacking conviction is supported by substantial evidence.
A. Standard of Review.
When assessing the sufficiency of the evidence, a reviewing court considers the
entire record in the light most favorable to the judgment below to determine whether
there is substantial evidence from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. (People. v. Hawkins (1995) 10 Cal.4th 920,
955.) The reviewing court presumes in support of the judgment the existence of every
fact the trier reasonably could deduce from the evidence, including reasonable inferences
based on the evidence. (People v. Tran (1996) 47 Cal.App.4th 764, 793.) We do not
reweigh evidence or determine if other inferences more favorable to the defendant could
have been drawn from it. (People v. Stanley (1995) 10 Cal.4th 764, 793.)

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B. Elements of the offense of carjacking and applicable legal principles.
“‘Carjacking is a particularly serious crime that victimizes persons in vulnerable
settings and, because of the nature of the taking, raises a serious potential for harm to the
victim, the perpetrator and the public at large.’ [Citations.]” (People v. Hill (2000) 23
Cal.4th 853, 859-860 (Hill).) “Legislative history … indicates that the carjacking statute
was enacted to address a specific problem -- the taking of a motor vehicle directly from
its occupants. The Legislature sought to impose a severe penalty on those who created a
specific risk by directly confronting a vehicle’s occupants. [Citations.]” (People v.
Coleman (2007) 146 Cal.App.4th 1363, 1369 (Coleman) [petn. for review filed Mar. 5,
2007].)
Subdivision (a) of section 215 defines the crime of carjacking as “the felonious
taking of a motor vehicle in the possession of another, from his or her person or
immediate presence, or from the person or immediate presence of a passenger of the
motor vehicle, against his or her will and with the intent to either permanently or
temporarily deprive the person in possession of the motor vehicle of his or her
possession, accomplished by means of force or fear.” (§ 215, subd. (a).) Five elements
must be shown to prove this crime: “(1) taking a vehicle possessed by another; (2) from
the presence of the possessor or a passenger; (3) ‘against his or her will’; (4) with intent
to deprive possession; (5) and, by means of force or fear.” (Hill, supra, 23 Cal.4th at p.
862.)
The elements and language of the carjacking statute are similar in key respects to
the elements of the robbery statute, section 211. (People v. Alvarado (1999) 76
Cal.App.4th 156, 160; People v. O’Neil (1997) 56 Cal.App.4th 1126, 1131.) Therefore,
principles applicable to robbery also are relevant to carjacking. (People v. O’Neil, supra,
56 Cal.App.4th at pp. 1131-1132; People v. Hamilton (1995) 40 Cal.App.4th 1137,
1142.) “[C]ourts have analogized the [carjacking] statute’s requirements of ‘possession’

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and the taking of a motor vehicle ‘from his or her person or immediate presence’ to the
same requirements appearing in the robbery statute.” (Coleman, supra, 146 Cal.App.4th
at p. 1369.)4
C. The record contains substantial evidence establishing the possession and
immediate presence elements.
The carjacking count was based on the incident at the convenience store during
which Rayas unsuccessfully attempted to stop appellant from driving away in the Honda.
Appellant argues that this count must be reversed because the record lacks adequate proof
of the possession and immediate presence elements. He reasons that the vehicular theft
was completed prior to his arrival at the convenience store. Since Rayas did not have the
key to the Honda on his person, he lacked means to exercise control over the vehicle.
Therefore, Rayas was not in possession of the Honda and it was not stolen from his
immediate presence.
We are not convinced. As will be explained, Rayas regained possession of the
Honda in the parking lot. Appellant removed the Honda from Rayas’s immediate
presence when he knocked Rayas to the ground and drove away in the vehicle over
Rayas’s objection.
i. Rayas regained possession of the Honda at the convenience store.
Possession may be actual or constructive.5 (Coleman, supra, 146 Cal.App.4th
1363 at pp. 1369-1370.) Actual possession exists where a person has direct physical
4 Yet, “[b]y extending carjacking to include a taking from a passenger, even one
without a possessory interest (assuming the other elements of the crime are present), the
Legislature has made carjacking more nearly a crime against the person than a crime
against property.” (Hill, supra, 23 Cal.4th at p. 860; see also People v. Coryell (2003)
110 Cal.App.4th 1299, 1304 (Coryell).)
5 The jury was instructed on constructive possession and appellant does not cite the
giving of this instruction as error.

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control over an item, whereas constructive possession exists where a person has a right to
control the property, either directly or through another person. (CALJIC No. 1.24.)
Actual possession is generally determined by a victim’s physical relationship to the
property, while constructive possession generally depends on a victim’s intangible
relationship to the property. A person need not own or have a legal right to the property
to have possession of it, and several persons may have simultaneous possession.
Constructive possession encompasses the knowing right to exercise control over the thing
that is being taken. Constructive possession of property may be shown even though the
victim did not have immediate physical control over it. (People v. Miller (1977) 18
Cal.3d 873, 881; People v. Galoia (1994) 31 Cal.App.4th 595, 597.)
Here, the evidence amply supports the jury’s implied conclusion that Rayas
regained possession of the Honda in the parking lot and that Rayas constructively
possessed the Honda when appellant knocked him to the ground and drove away in it.
Rayas recognized that the Honda belonged to his father and he exerted control over the
vehicle by telling appellant not to leave in it because it had been stolen. Rayas argued
with appellant, attempting to prevent appellant from leaving in the vehicle. He even
grabbed appellant’s leg in an effort to remove appellant from the vehicle. Although
Rayas lacked a key to operate the Honda, he had dominion and control over the vehicle.
Carrying a car key is not the sine qua non of possession. One may reasonably infer that
Rayas did not take the Honda key with him to work on September 6 because appellant
had already stolen the Honda and Rayas was not expecting to find it parked in a
convenience store parking lot. Rayas was exercising his right to control the Honda when
he told appellant not to get into it and fought with appellant over it. This sufficiently
establishes the possession element. (See, e.g., People v. Gray (1988) 66 Cal.App.4th
973, 985.)

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ii. The Honda was removed from Rayas’s immediate presence.
We turn to the sufficiency of the evidence proving the immediate presence
element. Immediate presence includes the area within the victim’s reach, observation or
control, such that he could retain possession of the property if not deterred by fear or
violence. The victim is not required to be in or next to the vehicle at the time of the
taking. (Coleman, supra, 146 Cal.App.4th at pp. 1372-1373.) Here, the Honda was
within Rayas’s sight and he actively exerted control over the vehicle. Rayas directed
appellant not to drive away in it and physically attempted to prevent appellant from
leaving in the Honda. Appellant was only able to drive away in the Honda after he
knocked Rayas to the ground.
While not fully analogous, Coryell, supra, 110 Cal.App.4th 1299 is instructive.
There, Garcia drove to a liquor store. While his girlfriend, Iman, remained in the car,
Garcia exited the vehicle and went into a telephone kiosk. While he was in the kiosk,
defendant punched and attempted to stab him. Garcia and Iman both fled. Defendant got
in the car, started it and drove away. He was convicted of two counts of carjacking. In
relevant part, defendant challenged the sufficiency of the evidence proving the possession
and the immediate presence elements because Garcia had run over a block away from the
car when it was taken. The appellate court rejected this argument, explaining that Garcia
was not near the car when it was stolen because defendant had forced him to flee. (Id. at
p. 1303.)
In this instance, Rayas spotted the Honda in the parking lot and regained
possession of the car by asserting dominion and control over it. Appellant assaulted
Rayas by kicking and shoving him so that he could drive away in the Honda over Rayas’s
objection. As in Coryell, the evidence is sufficient to prove all the elements of the crime
of carjacking. (Coryell, supra, 110 Cal.App.4th at pp. 1302-1304.)

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II. Appellant’s due process rights were not infringed.
A. Facts
The convenience store surveillance videotape was lost before trial while in police
custody. Appellant motioned in limine to impose sanctions on the prosecution for the
loss of this videotape. The trial court reviewed testimony given at the preliminary
hearing by Rayas and CHP Officer Clausen. Afterward, it denied the motion on the basis
that there was no showing of bad faith and no evidence that the police were aware that
the videotape had exculpatory value when it was lost or destroyed. The trial court
characterized the videotape as potentially useful, but not exculpatory. Therefore, it
crafted a sanction that was less harsh than dismissal. It determined that the defense
would be permitted to argue that the police investigation was sloppy and incomplete.
Also, the defense would be permitted to cross-examine the officers about the contents of
the lost tape.
Rayas testified that he used the slow motion feature to view the images on the
videotape. He was able to view each picture on the videotape. Without the slow motion
feature, the videotape rotates among images taken by cameras placed inside and outside
the store “like every other second.” Rayas saw images of appellant walking in and out of
the store and an image of the Honda. The videotape captured an image of him standing
near appellant. Finally, it captured an image of appellant driving away in the Honda.
The videotape did not show appellant pushing or kicking Rayas. It did not show Rayas
falling to the ground.
Clausen attempted to watch the videotape after Rayas gave it to him. He had
difficulty viewing the videotape due to its speed and the different camera angles. It
cycled between the different camera positions so fast that was hard to retrieve any
information from it. His partner booked the tape into evidence. Later that evening,
Clausen took the tape out of the locker and brought it to the robbery/burglary division of

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the Fresno Police Department to see if they had equipment that could accommodate the
tape. Their equipment was out of order. Clausen put the videotape back in the evidence
locker and locked it. He searched for the videotape after he learned that it was not in the
evidence locker. He and his partner checked their belongings and the patrol vehicles they
drove on the night appellant was arrested and the following night.6
Defense counsel argued in closing that Rayas was inconsistent when he told
Clausen that the videotape depicted the altercation but testified that it did not show the
confrontation. Appellant suggested the police engaged in a sloppy investigation. Also,
he argued that without the videotape there was not enough evidence to convict appellant
of carjacking.
B. The trial court’s ruling is supported by substantial evidence.
Appellant contends that the exculpatory nature of the videotape was evident on its
face and therefore the trial court should have found that its loss “was a violation of the
Due Process Clause” under the principles enunciated in California v. Trombetta (1984)
467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51, 58
(Youngblood). Appellant further maintains the trial court should have excluded
prosecution evidence concerning the incident at the convenience store or, at a minimum,
“it certainly should have instructed the jury that the government had lost important
evidence, and that if it believed that the failure to preserve was deliberate, it would have
to acquit appellant on the carjacking count; and even if it did not conclude that the failure
6 This testimony is essentially consistent with testimony given by Rayas and
Clausen at the preliminary hearing. Although Rayas initially testified at the preliminary
hearing that the videotape depicted the incident in “its entirety,” he clarified almost
immediately that it “showed when [he] goes in the store and goes out of there and when
we’re having the conversation there.” It did not show appellant pushing him or kicking
him.

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to preserve was deliberate, it should consider that loss in its evaluation of guilt.” We are
not persuaded.
Under Trombetta and Youngblood, “a defendant claiming a due process violation
based on the failure to preserve evidence must show the exculpatory value of the
evidence at issue was apparent before it was destroyed, and that the defendant could not
obtain comparable evidence by other reasonable means. [Citation.] The defendant must
also show bad faith on the part of the police in failing to preserve potentially useful
evidence. [Citation.] ‘The presence or absence of bad faith by the police … must
necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the
time it was lost or destroyed.’ [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 943
(Frye).)7
When assessing a trial court’s ruling on the issue of the failure to preserve
evidence, the reviewing court examines the evidence in the light most favorable to the
ruling to determine if it is supported by substantial evidence. When supported by
substantial evidence, it will be upheld. (People v. Roybal (1998) 19 Cal.4th 481, 510.)
The record does not support appellant’s assertion that the videotape constitutes
exculpatory evidence. The videotape cycled between images taken from numerous
cameras that were located inside and outside the store. Rayas testified that the videotape
did not capture the entire incident. It contained images of appellant entering and leaving
the store, of appellant standing by him and of the Honda leaving the parking lot. It did
not show appellant shoving or kicking him. Since the videotape cycled between many
cameras, it is not equivalent to a single camera recording of the parking lot. It did not
7 To the extent appellant’s characterization of the applicable legal standard
contradicts Frye, it is rejected. We are obligated to follow the decisions of our Supreme
Court and we accept its understanding of Youngblood and Trombetta, as expressed in
Frye. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

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necessarily capture the entire series of events that occurred in the parking lot. Therefore,
we agree with the trial court that the videotape was useful, but not exculpatory, evidence.
We turn to an assessment of the evidence supporting the trial court’s determination
that there was no showing of bad faith. “‘The presence or absence of bad faith by the
police ... must necessarily turn on the police’s knowledge of the exculpatory value of the
evidence at the time it was lost or destroyed.’ [Citation.]” (Frye, supra, 18 Cal.4th at
p. 943.) The evidence does not show that the videotape appeared to be exculpatory when
it was lost or that the loss itself resulted from any bad faith. Rayas testified that he had to
use the slow motion feature on his VCR in order to see the individual images. Clausen
testified that he was unable to discern any useful images from the videotape when he
watched it because it cycled so rapidly. He “couldn’t adjust the speed on our VCR to
accommodate” the speed of the images. The Fresno Police Department’s equipment was
broken and he was unable to view the videotape on one of their machines. There was
nothing sinister or nefarious about the way the tape was lost. It was returned to the
evidence locker and the key to the locker was placed in the drop slot. There was no
evidence presented indicating how the videotape actually became misplaced. Upon
realizing it was lost, Clausen and his partner conducted a reasonably diligent search for it.
Furthermore, it is not reasonably possible that the loss of the videotape materially
affected the verdict. The jury was informed of all of the material facts surrounding this
videotape and its loss. Clausen testified that Rayas gave him the videotape and that
Rayas “said that it shows him speaking with the Defendant and I guess getting kicked,
punched.” However, Rayas testified that the videotape did not show that he was kicked
or pushed. During closing argument, defense counsel highlighted this inconsistency.
Defense counsel also argued that the loss of the videotape demonstrated that the police
investigation of this case was sloppy and it urged the jury to conclude that the carjacking
had not been proved beyond a reasonable doubt.

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Accordingly, we find that the trial court’s findings are supported by substantial
evidence and that its ruling is legally correct. The sanctions crafted by the trial court
adequately dissipated any potential harm to the defense. Appellant’s due process
protections were not infringed. (Cf. People v. Farnam (2002) 28 Cal.4th 107, 166-167.)
III. Appellant’s prearrest statements were properly admitted.
A. Facts
Appellant motioned in limine to exclude evidence of his prearrest statements
because he did not receive the advisements required by Miranda v. Arizona (1966) 384
U.S. 436 (Miranda). An evidentiary hearing was held to determine the admissibility of
these statements.
Clausen testified that Rayas contacted him at approximately 12:39 a.m. on
September 7, 2005. Rayas told Clausen and his partner that the Honda he was following
had been stolen. Based solely on this information, they effected a traffic stop of the
Honda and pulled up just as appellant was exiting the car. They detained appellant and
conducted a weapons check.
The officers placed appellant in the back of the patrol car for approximately 10 to
20 minutes while Clausen spoke with Rayas. Appellant “was advised that he’s not under
arrest, that he’s just being detained.”
Next, the officers spoke with appellant. Appellant was outside the patrol vehicle
when this discussion occurred. Appellant was not handcuffed and no weapons were
drawn. Appellant was not told that he was free to leave. During this discussion, the
officers used a normal conversational tone and were not accusatory. After the officers
were unable to confirm appellant’s statements that he borrowed the car from a friend, he
was arrested.
Citing In re Joseph R. (1998) 65 Cal.App.4th 954 (Joseph R.), the trial court
concluded that the officers were conducting a field investigation when appellant made the

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contested statements. Appellant was not in custody. Therefore, the officers were not
required to provide him with Miranda advisements.
B. Appellant was not in custody when the statements were made.
Miranda advisements are required only when a person is subjected to custodial
interrogation. When a formal arrest has not occurred, the applicable inquiry is how a
reasonable person in the suspect’s position would have understood his situation. When a
formal arrest has not occurred, the applicable inquiry is how a reasonable person in the
suspect’s position would have understood his situation. No one factor is dispositive. The
“most important considerations include (1) the site of the interrogation, (2) whether the
investigation has focused on the subject, (3) whether the objective indicia of arrest are
present, and (4) the length and form of questioning. [Citations.]” People v. Boyer (1989)
48 Cal.3d 247, 272.) Generally, custody does not normally encompass temporary
investigative detentions. (People v. Farnam, supra, 28 Cal.4th at p. 180.) The trial
court’s determination that Miranda was not applicable is reviewed as follows: “the
conclusion itself is examined independently, the underlying findings are scrutinized for
substantial evidence.” (People v. Clair (1992) 2 Cal.4th 629, 678.)
Appellant argues that he was in custody when the statements were made. He does
not challenge the voluntariness of the statements. As will be explained, the trial court
properly concluded that the investigative detention did not rise to the level of a custodial
interrogation. The questioning occurred incident to a traffic stop in a public place. At no
time was appellant handcuffed and the officers did not display their weapons. Appellant
was told that he was not under arrest when he was placed in the patrol vehicle while the
officers were speaking with Rayas. He remained in the patrol vehicle for 10 to 20
minutes. After the officers concluded their conversation with Rayas, appellant was
permitted to exit the patrol vehicle. The officers conversed with appellant while he was
standing outside the vehicle and they used a conversational tone of voice. Thus, when

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the officers questioned appellant, he had been released from the temporary restraint he
experienced while inside the patrol vehicle.
We agree with the trial court that Joseph R., supra, 65 Cal.App.4th 954 is
analogous. There, an officer received a report of rock throwing by two boys. The officer
spotted the boys and, with their consent, patted them down for weapons. The officer told
the boys that that they did not have to talk to him but that he wanted to ask them a few
questions. Joseph was cuffed and placed in the back of a patrol vehicle. About five
minutes later, Joseph was released from the patrol vehicle and the handcuffs were
removed. Thereafter, the officer questioned him about the rock throwing incident. The
entire encounter lasted about 15 to 20 minutes. Joseph was arrested about six weeks
later. The trial court concluded Miranda was inapplicable because Joseph was not
subject to a custodial restraint when the questions were asked and the appellate court
agreed with this conclusion. In relevant part, the court explained that “‘[p]olice officers
may sufficiently attenuate an initial display of force, used to effect an investigative stop,
so that no Miranda warnings are required when questions are asked.’” (Joseph R., supra,
65 Cal.App.4th at pp. 960-961.) The court pointed out that Joseph was cuffed and placed
in the back of the patrol vehicle for only a short period of time. Furthermore, the officer
questioned him after he was released from the police car and the handcuffs were
removed. Also, Joseph was never told that he was under arrest and was informed that he
was not under any obligation to cooperate with the officer’s investigation.
Similarly here, appellant was questioned during an investigative traffic stop. He
was told that he was not under arrest. Appellant was not handcuffed and no weapons
were displayed. He was questioned outside the patrol vehicle. The entire investigative
process was relatively brief, lasting 30 minutes or less. Following and applying Joseph
R., supra, 65 Cal.App.4th 954, we uphold the trial court’s determination that Miranda
does not apply because appellant was not in custody when he made the contested

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statements. “‘Absent “custodial interrogation,” Miranda simply does not come into
play.’ [Citation.]” (People v. Clair, supra, 2 Cal.4th at p. 679.) Thus, admission of
appellant’s statements to the officers was not erroneous and did not infringe any of his
constitutional rights or protections. (Joseph R., supra, 65 Cal.App.4th at pp. 957-961.)8
IV. Resentencing is not required.
The court selected the upper term for the carjacking conviction based on numerous
aggravating factors. The court explained this sentencing choice, as follows:
“Aggravating factors here are accurately set forth by the probation officer at
page 8. This crime involved a threat of bodily harm, and it involved facts
disclosing a high degree of callousness …. This is violent conduct which
indicates he’s a serious danger to society. His prior convictions as an adult
and sustained petitions as a juvenile are numerous and of increasing
seriousness. He was on probation when the crime was committed, and his
prior performance on probation has been unsatisfactory, specifically as a
juvenile and here on this case, where he’s on probation for just a few
months before the commission of the present offense. I find that the
offenses were committed on separate dates … but … I find it’s appropriate
because of the fact that all involved the same vehicle and the same victim,
the sentencing concurrently as opposed to separately on those various
offenses. But the fact that he could be sentenced consecutively and that I’m
choosing to sentence him concurrently is another factor in aggravation ….”
The court continued, “I see no sense of remorse or responsibility here. I see no sense of
this [d]efendant that he plans to reform his conduct … [and he demonstrates] a complete
lack of remorse and lack of social consciousness that warrants the imposition of the
aggravated term.” The court did not find any mitigating factors.
8 Having concluded that there was not a Miranda violation, we summarily reject
appellant’s challenge to the inclusion of CALJIC No. 2.03 in the jury charge.
Appellant’s challenge to the use of this instruction is premised on the assertion that his
prearrest statements were obtained in violation of Miranda. Rejection of this
foundational premise resolves the instructional challenge adverse to appellant’s position.

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The record demonstrates that the court relied upon two recidivism based factors:
(1) appellant has suffered numerous prior convictions and sustained juvenile petitions;
and (2) appellant was on probation when he committed the current offenses. Despite the
presence of these recidivism-based factors, appellant challenges the constitutionality of
imposing the upper term, arguing that it constitutes prejudicial Blakely/Cunningham
error. We disagree.
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) held, “Other than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
(Id. at p. 490.) Blakely held that “the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant. [Citations.]” (Blakely v. Washington, supra,
542 U.S. at p. 303, italics omitted.) In Cunningham, the court held that, under
California’s determinant sentencing scheme, the upper term can only be imposed if the
factors relied upon comport with the requirements of Apprendi and Blakely.
(Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856].)
Blakely describes three types of facts that a trial judge can properly use to impose
an aggravated sentence: (1) a prior conviction; (2) facts reflected in the jury verdict; and
(3) facts admitted by the defendant. (Blakely v. Washington, supra, 542 U.S. at pp. 301,
303.)
In this case, the court cited appellant’s criminal history -- his prior convictions and
probation status -- to justify selection of the upper term. This is constitutionally
permissible. The trial court’s error in considering additional factors not falling in one of
the permissible categories identified in Blakely is harmless beyond a reasonable doubt
(Chapman v. California (1967) 386 U.S. 18). Also, it is not reasonably probable that it
impacted the outcome (People v. Watson (1956) 46 Cal.2d 818). Under California law, a

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single factor is sufficient to justify imposition of the upper term. (People v. Osband
(1996) 13 Cal.4th 622, 730.) The court relied, in substantial part, on appellant’s
recidivism to support the upper term. Under these circumstances, remand for
resentencing is unnecessary.
DISPOSITION
The judgment is affirmed.
_________________________
Levy, J.
WE CONCUR:
_______________________________
Vartabedian, Acting P.J.
_______________________________
Harris, J.

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