Defendant Leroy Racklin appeals from a judgment imposing a four-year term in state prison following the revocation of his probation. He contends the trial court erred in considering evidence in the revocation hearing of an admission elicited from him by police officers in violation of Miranda v. Arizona (1966)
I. BACKGROUND
A. Defendant’s Drug Convictions
In exchange for the dismissal of various enhancement allegations and a three-year term of probation, defendant pleaded guilty to a charge of transportation and/or sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)) in superior court case No. 202772. He was released on probation on September 10, 2007.
Following new arrests in September and October 2007, and the filing of new criminal charges on October 18, 2007, in superior court case No. 203741, the district attorney moved to revoke defendant’s probation. On November 26, 2007, defendant admitted a probation violation in case No. 202772 and pleaded guilty to a felony sale of a substance falsely represented to be a controlled substance (Health & Saf. Code, § 11355) in case No. 203741. In return, the prosecution agreed to defendant’s reinstatement on modified terms of probation in the old case, the dismissal of the enhancement allegations and a grant of a three-year term of probation in the new case, and a concurrent jail term condition of probation in each case. On January 9, 2008, the court imposed the probation terms and conditions per the agreement.
B. Contested Probation Violation
Defendant was arrested on. July 25, 2008, after cocaine base weighing 30.67 grams was found in a probation search of his apartment. The district attorney moved for an order revoking defendant’s probation. Probation was administratively revoked and defendant was remanded into the sheriff’s custody pending a probation revocation hearing. At the revocation hearing on December 5, 2008, by stipulation, the People submitted their case-in-chief on the transcript of a preliminary hearing and reserved the right to call rebuttal witnesses.
The officers accompanied defendant to a room in the hotel, which he confirmed was his, and he produced a key to the room. In a probation search of the room the officers found a black bag containing three rocks weighing 30.67 grams, which later tested positive for cocaine base. When the drugs were found, Carrasco turned to defendant and asked, “ ‘Is this yours?’ ” Defendant responded, “ ‘Yes. They are.’ ” Defendant’s girlfriend, Latenia Johnson, was in the room when police got there, but she was not questioned about the drugs.
Officer Cotter later read defendant his rights under Miranda at the police station, at which time he declined to make a statement. The magistrate overruled defendant’s Miranda objection to Carrasco’s testimony that he had admitted the narcotics were his. Defendant was held to answer on charges of felony possession of cocaine base for sale and misdemeanor contempt of a stay-away order. These criminal charges were ultimately dismissed after the prosecution elected to proceed only on the revocation motion.
The defense called Latenia Johnson at the revocation hearing. She invoked her Fifth Amendment right not to incriminate herself. The People and the court declined to grant her immunity from prosecution based on her testimony, and the court sustained her invocation of the privilege.
Defendant testified somebody had asked him for a cigarette as he was returning home from the store on the night in question. At that moment, the police arrived, jumped out of their vehicle, and proceeded to question him. He explained that his probation conditions included a “walk-through . . . between 16th and 17th” Avenue, and that he was on his way inside his hotel where he lived when the police detained him. They handcuffed him, went through his pockets, and took him upstairs to his room where Johnson had been waiting for at least an hour while he was on his run to the store. She already had the door open when they arrived at his room.
In rebuttal, Officer Cotter testified “a lot” of money was found in Johnson’s purse. However, the drugs were found in a smaller black pouch, which the officers searched on the bed after seizing it from beneath the sink in the room. The officers showed the drugs to defendant, and asked him who they belonged to. He said, “They are mine.” Cotter confirmed defendant was later given a Miranda admonition, and declined to give a statement at that time.
C. The Trial Court’s Rulings
At the conclusion of the revocation hearing, the court considered defendant’s Miranda objection to the testimony that he admitted the drugs were his, which had been interposed following his testimony. The court agreed with defendant’s claim he was in custody before he made the asserted admission, and should have been admonished earlier. It nonetheless found the Miranda objection was inapplicable in the revocation proceeding because the testimony did not establish “a scenario that shocks the conscience.”
The court found no loitering violation, but did find a probation violation based on the 30.67 grams of cocaine base found in the room: “[Hjaving read the preliminary hearing transcript in this case which had Officer Carrasco’s testimony with regard to the incident and having heard the evidence today and operating, as I must, on the preponderance-of-evidence standard . . . , I do find that by preponderance of the evidence, that this defendant is in violation of his probation. ... [][].. . I think the fact of the 30 grams of cocaine in the room that he admits is his room, that they have evidence is his room, and given his statements and given the circumstances of this, I think that the drugs in that room is sufficient to be a violation of the probation.”
D. Sentencing and Appeal
The court sentenced defendant to a four-year state prison term in superior court case No. 202772 and to a concurrent two-year prison term in superior court case No. 203741. These timely appeals followed. On defendant’s motion, we have consolidated the appeals for purposes of briefing, oral argument, and decision.
Defendant contends the trial court prejudicially erred in determining the officers’ Miranda violation did not compel the exclusion of the testimony that he admitted the drugs belonged to him. We reject defendant’s position on two grounds. First, the exclusionary remedy for a Miranda violation applies in criminal trials, but not in probation revocation proceedings under both California and federal law. Second, defendant failed in any event to meet his burden of demonstrating the asserted Miranda error was prejudicial.
A. Applicable Legal Standards
Article I, section 28 of the California Constitution, enacted by initiative in June 1982, provides in relevant part as follows: “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings . . . .” (Cal. Const., art. I, § 28, subd. (f)(2), italics added.) This provision “was intended to permit [the] exclusion of relevant, but unlawfully obtained evidence, only if exclusion is required by the United States Constitution.” (In re Lance W. (1985)
In addressing particular issues arising under Proposition 8, we look to federal constitutional standards as interpreted by the United States Supreme Court. (People v. Camacho (2000)
Federal Miranda error, if any occurred, is subject to harmless error analysis in accordance with Chapman v. California (1967)
B. Admissibility of Defendant’s Admission
In In re Martinez (1970)
The Martinez court noted the remedy of excluding confessions obtained without proper warnings served the dual purposes of preventing the use of confessions that might not be the product of free will, and of deterring police from engaging in coercive practices. (Martinez, supra, 1 Cal.3d at pp. 648-649.) However, the court found the issues at stake in parole revocation proceedings were sufficiently distinct from criminal law enforcement that the added deterrent effect of making the Miranda exclusionary rule applicable to them was not worth the cost to the public: “[A]n agency whose delicate duty is to decide when a convicted offender can be safely allowed to return to and remain in society is in a different posture than the court which decides his original guilt. To blind the authority to relevant facts in this special context is to incur a risk of danger to the public which, at least as of this date, outweighs the competing considerations of a problematical gain in deterrence.” (Martinez, at p. 650.) Nonetheless, the court suggested that if the confession was shown to have been involuntary or coerced, the result might be different. (Id. at pp. 650-651.)
Martinez addressed both illegally obtained confessions and evidence obtained from searches violating the Fourth Amendment, finding both were
The continued vitality of Martinez and Hayko was reaffirmed in People v. Harrison (1988)
The Harrison court discussed Morrissey v. Brewer (1972)
Harrison also pointed to In re Coughlin (1976)
Further support for the proposition that federal law does not require application of the Miranda exclusionary rule in probation revocation hearings can be found in Minnesota v. Murphy (1984)
This impression is reinforced by the Murphy court’s observation that a probationer would have no Fifth Amendment privilege to refuse to answer questions if his responses could only be used to revoke his probation: “The situation would be different if the questions put to a probationer were relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding. If, for example, a residential restriction were imposed as a condition of probation, it would appear unlikely that a violation of that condition would be a criminal act. Hence, a claim of the Fifth Amendment privilege in response to questions relating to a residential condition could not validly rest on the ground that the answer might be used to incriminate if the probationer was tried for another crime. Neither, in our view, would the privilege be available on the ground that answering such questions might reveal a violation of the residential requirement and result in the termination of probation. Although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding.” (Murphy, supra,
Finally, the limitation on the Miranda exclusionary rule impliedly recognized in Murphy flows from the relevant text of the Fifth Amendment itself, which the Supreme Court quoted at the outset of its analysis: “[N]o person ‘shall be compelled in any criminal case to be a witness against himself.’ ” (Murphy, supra,
Without elaboration, defendant argues that more recent Supreme Court cases affirming Miranda warnings are of constitutional dimension, such as Dickerson v. United States (2000)
Defendant also cites two federal cases addressing whether the Fifth Amendment permits convicted sex offenders to be threatened with incarceration or loss of privileges if they refuse to cooperate with sexual abuse treatment programs that require them to make potentially incriminating admissions. (See McKune v. Lile (2002)
In sum, we find no inconsistency between federal law and state law on the issue before us—whether unwarned admissions made by an in-custody defendant may be considered in an ensuing probation revocation proceeding in the absence of egregious conduct by law enforcement. Such evidence is admissible under article I, section 28, subdivision (f)(2) of the California Constitution, as well as Martinez, and the trial court here committed no error or abuse of discretion by so ruling.
Even assuming for the sake of analysis that the trial court erred in considering the officer testimony in issue, defendant had the burden of demonstrating the assumed error was prejudicial under the Chapman standard. {Arizona v. Fulminante, supra, 499 U.S. at pp. 307-312.) Defendant makes no argument addressing that issue beyond quoting in bold lettering the court’s mention of defendant’s statements as one factor among others explaining its decision. Since defendant has waived an issue on which he carried the burden of proof, the appeal fails without regard to whether any trial court error occurred. {People v. Stanley (1995)
Moreover, even assuming the claim of prejudice was properly preserved for appellate review, we would find against defendant’s position on the merits. In our view, beyond a reasonable doubt, defendant would not have obtained a more favorable result had the trial court excluded the officers’ testimony concerning his unwarned admission. Setting the asserted admission aside, the officers’ testimony that they found the cocaine base in a pouch under the sink in defendant’s residence hotel room—if believed by the court—was sufficient in itself to establish a probation violation by a preponderance of the evidence.
Since the challenged testimony was not necessary to meet the prosecution’s burden of proof, and could not have influenced the court’s decision to accept the officers’ account of where the dmgs were found, its admission was harmless under Chapman.
III. DISPOSITION
The judgment is affirmed.
Marchiano, P. J., and Banke, J., concurred.
Notes
Martinez was disapproved on another ground in In re Tyrell J. (1994)
In People v. Dorado (1965)
Other relevant evidence includes (1) defendant’ testimony that his girlfriend did not live in the room, and had only been there a couple of times and (2) Officer Carrasco’s testimony that defendant was loitering outside at 2:24 a.m. in an area notorious for drug sales.
Significant factors logically relevant to the court’s credibility determination include (1) its assessment of defendant’s and Cotter’s demeanor; (2) defendant’s felony convictions; and (3) the fact that defendant had an obvious motive to shift blame to avoid prison, whereas the officers would have had no apparent reason for failing to arrest and charge defendant’s girlfriend if they had actually found drugs in her purse.