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Filed 12/15/15 P. v. Maestas CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

LENNY ROSS MAESTAS,

Defendant and Appellant.

C074776

(Super. Ct. No. CM035276)

Defendant Lenny Ross Maestas was found guilty of being a felon in possession of 

a firearm. Defendant now challenges: (1) the trial court’s admission of the statements he 

made before he received his Miranda

1 warnings; (2) the court’s response to a jury 

question about possession; and (3) the court’s denial of his request for the appointment of

new counsel to present a motion for a new trial. Finding defendant forfeited any claim of 

 

1 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
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error with respect to the court’s response to the jury’s question and finding no merit in his 

other arguments, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 16, 2011, at 10:15 p.m., City of Oroville Police Officer Ron Belser 

was on patrol with Reserve Police Officer Sal Rodrigo. While patrolling an area where 

drug trafficking and burglaries occur frequently, Officer Belser noticed a gold car, driven 

by defendant, going five to 10 miles per hour in a 25-mile-per-hour zone. Officer Belser 

thought defendant was possibly “monitoring the roadway looking for target vehicles, [a] 

target house or possible gang activity.” Officer Belser ran the car’s license plate number 

through dispatch and learned the car’s registration was expired. Upon learning the car’s 

registration was expired, Officer Belser told Officer Rodrigo to make a U-turn and pull 

defendant over. Defendant eventually pulled over to the side of the road. 

Officer Belser approached defendant and asked him who the car belonged to and 

questioned him about the expired registration. Defendant told Officer Belser that the car 

belonged to his girlfriend, but also that he and his girlfriend bought the car. During the 

stop, Officer Belser noticed defendant’s license plate had a November registration tag 

placed over an April tag, even though dispatch reported the car’s registration expired in 

April.

At Officer Belser’s request, defendant got out of the car and underwent a series of 

field sobriety tests, but defendant was not found to be under the influence of any 

controlled substances. After defendant completed the field sobriety tests, he sat on the 

car’s bumper, covering the trunk area with his body. Officer Belser thought defendant 

was hiding something in the trunk. Officer Belser told defendant to stand near the front 

of the patrol car and then placed defendant under arrest for false registration. 

After his arrest, defendant consented to a search of the car. When Officer Belser 

searched the trunk, he found a loaded pistol in a closed compartment. Officer Belser took 

the pistol out of the trunk, and defendant “spontaneously said, ‘That’s not stolen.’ ” 
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Officer Belser asked defendant how he knew the pistol was not stolen, and defendant told 

Officer Belser the pistol belonged to a friend but refused to tell the officer the friend’s 

name. Officer Belser next asked defendant questions specific to the pistol, and defendant

told the officer “he thought he had taken it out of the car.” Defendant also said “he had 

been doing some target practicing.” Officer Belser asked defendant “how he did at target 

practicing and he said, ‘Good.’ ” Based on defendant’s answers to Officer Belser’s 

questions about the pistol, Officer Belser asked defendant if he “ ‘ever had been 

convicted of a felony,’ ” to which defendant responded that he had been convicted “ ‘for 

possession of a controlled substance.’ ” 

Defendant was ultimately charged with possession of a firearm by a felon. The 

information also alleged a prior prison term enhancement. After the jury found defendant 

guilty of the possession charge and after the court, in a bifurcated proceeding, found the 

prior prison term allegation to be true, the court sentenced defendant to an aggregate 

prison term of four years. 

DISCUSSION

I

Miranda

At trial, Officer Belser testified about the night he arrested defendant. The 

prosecutor asked Officer Belser about his exchange with defendant concerning the pistol 

after defendant said, “ ‘That’s not stolen.’ ” When the prosecutor asked Officer Belser if 

defendant said anything else about the pistol, defendant objected. Outside the presence 

of the jury, defendant claimed the police officer’s testimony regarding what defendant

said about the pistol violated his Miranda rights because defendant was under arrest but 

had not been given Miranda warnings. The prosecutor conceded defendant was in 

custody when Officer Belser asked the questions about the pistol but argued the questions 

did not constitute an interrogation for purposes of Miranda. 
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The trial court partially sustained and partially overruled defendant’s objection. 

The court characterized Officer Belser’s questions about how defendant knew the pistol

was not stolen, the investigative questions to which defendant responded that he thought 

he had taken the pistol out of the car, and the question about how defendant did during 

target practice as “neutral questions” not subject to a Miranda warning. In reference to 

Officer Belser’s questions about defendant going target shooting, the court noted: “It’s 

legal to go target shooting. There’s no indication there’s an illegal activity at this point.” 

The court did suppress Officer Belser’s question of whether defendant was ever 

convicted of a felony, finding the question was designed to elicit an incriminating 

response. 

On appeal, defendant disputes the trial court’s finding that the admitted questions 

about the pistol did not constitute an interrogation and argues Officer Belser’s 

questioning about the pistol “[w]as the [f]unctional [e]quivalent of an [i]nterrogation 

[b]ecause [t]hose [q]uestions [w]ere [l]ikely to [e]licit [i]ncriminating [s]tatements.” 

(Bold text omitted.) We disagree.

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, 

but also to any words or actions on the part of the police (other than those normally 

attendant to arrest and custody) that the police should know are reasonably likely to elicit 

an incriminating response from the suspect. The latter portion of this definition focuses 

primarily upon the perceptions of the suspect, rather than the intent of the police.” 

(Rhode Island v. Innis (1980) 446 U.S. 291, 301 [64 L.Ed.2d 297, 308], fn. omitted.) 

Because the finding of whether an interrogation occurred “appears to be a predominantly 

factual mixed question” (People v. Mickey (1991) 54 Cal.3d 612, 649), “[w]e review the 

trial court’s finding regarding whether interrogation occurred for substantial evidence or 

clear error” (People v. Clark (1993) 5 Cal.4th 950, 985, disapproved on another point in 

People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22). 
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While defendant does not dispute the admissibility of his spontaneous statement 

about the pistol, he claims Officer Belser’s questions in response to his spontaneous 

statement constituted an interrogation. But “not all questioning of a person in custody 

constitutes interrogation under Miranda.” (People v. Ray (1996) 13 Cal.4th 313, 338.)

More importantly, a question posed in response to a statement that “in form and content

invite[s] the hearer to request clarification” is not designed to elicit an incriminating 

response. (People v. Franzen (2012) 210 Cal.App.4th 1193, 1199, 1203 [reasoning that a 

booking officer’s question, “What guy?,” in response to the defendant’s statement, “ ‘It’s 

probably the guy looking for his money,’ ” regarding why her phone was ringing, was a 

neutral question and was not designed to elicit an incriminating response because the 

defendant’s comment invited a request for clarification].)

Similarly to the booking officer’s question in Franzen, Officer Belser’s question 

of “ ‘How do you know it’s not stolen?’ ” was posed in response to defendant’s 

spontaneous statement that the pistol was not stolen, which invited a response for 

clarification. It was thus reasonable for the trial court to find that Officer Belser’s 

question of “ ‘How do you know it’s not stolen?’ ” was “neutral” and not designed to 

elicit an incriminating response because the spontaneous statement made by defendant 

invited a request for clarification. 

Contrary to defendant’s position, this case is similar to People v. Gamache (2010) 

48 Cal.4th 347. In Gamache, the booking deputy asked the defendant about his military 

past. (Id. at p. 384.) The defendant talked about his military past but also gave the 

deputy information about the crimes he was arrested for, saying “ ‘I fucked up. I knew 

better. I should have used a .45.’ ” (Ibid.) The deputy then asked the defendant what 

had happened, how defendant felt, and about one of the victims. (Ibid.) The defendant 

responded to each question with incriminating statements. (Ibid.) 

In Gamache, our Supreme Court noted “the police ‘may speak to a suspect in 

custody as long as the speech would not reasonably be construed as calling for an 
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incriminating response.’ ” (People v. Gamache, supra, 48 Cal.4th at p. 388, quoting 

People v. Clark, supra, 5 Cal.4th at p. 985.) The court held the statements the defendant 

made to the booking deputy “were not the product of an interrogation.” (Gamache, at 

p. 387.) The court reasoned the booking deputy’s questions, even though they related to 

the crimes for which the defendant was arrested, were “ ‘neutral inquir[ies]’ ” that “did 

not convert [the defendant]’s volunteered admissions into the product of interrogation.” 

(Id. at p. 388, quoting People v. Ray, supra, 13 Cal.4th at p. 338.)

Our Supreme Court’s reasoning in Gamache supports the trial court’s finding that, 

with the exception of the excluded question about whether defendant had ever been 

convicted of a felony, the questions Officer Belser asked defendant about the pistol did 

not constitute an interrogation. Officer Belser’s questions did not relate to the crime for 

which defendant was originally arrested, and they did not relate to the crime with which 

defendant was ultimately charged -- being a felon in possession of a firearm -- as there 

was no evidence the officer knew at the time of the questions that defendant had a felony 

conviction. Instead, it appears the officer simply sought clarification of defendant’s 

spontaneous statement that the gun was not stolen and the officer’s questions could

reasonably be characterized as neutral inquiries that were not likely to elicit an 

incriminating response. Thus, the trial court’s finding that Officer Belser’s questions 

about the pistol did not constitute an interrogation was supported by substantial evidence.

II

The Jury’s Request For Clarification

During jury deliberations, the jury sent the court a question. The jury asked,

“Does knowing gun is in . . . existence . . . prove possession . . . of firearm, . . . or are we 

responsible for what’s in the trunk of someone else’s car?” The court discussed the 

jury’s question with counsel for both parties. Defense counsel, Robert Radcliffe, said,

“[t]he legal answer to both parts is no.” The prosecutor suggested the jury be told to look 

to the jury instructions to answer its question. Defense counsel immediately said, “I’ll 
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submit it to the Court. That’s often times [sic] the response.” The court agreed with 

defense counsel that the answer to both questions was “no” but also agreed with the 

prosecutor that the jury should be told to review the jury instructions for the appropriate 

legal standard. The court asked counsel if directing the jury to review the jury instruction 

was a sufficient response to the jury’s question, and defense counsel said, “I’ll submit it 

to the Court. [¶] Okay.” The court then directed the jury to refer back to the jury 

instructions. 

Defendant argues the court’s response to the jury’s inquiry was “inadequate 

because it failed to clear up the confusion that prompted the question in the first place.” 

Because defendant failed to preserve this issue for appeal, we do not express an opinion

on whether the court’s response was adequate. 

A defendant’s failure to object to a trial court’s proposed response to a jury 

question forfeits any claim of error and may be regarded as showing “tacit approval of 

the trial court’s decision.” (People v. Boyette (2002) 29 Cal.4th 381, 430.) More 

importantly, “[w]here . . . appellant consents to the trial court’s response to jury questions 

during deliberations, any claim of error with respect thereto is waived.” (People v. 

Bohana (2000) 84 Cal.App.4th 360, 373.) Finally, where the defendant both suggests 

and consents to the trial court’s response to a jury inquiry, the defendant forfeits any 

claim of error. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.)

Here, while defense counsel did state that the legal answer to both parts of the 

jury’s question was “no,” he did not suggest that the court’s response to the jury be “no.” 

On the contrary, when the prosecutor made the suggestion that the court should refer the

jury back to the jury instructions, defense counsel did not argue for a different response, 

but instead stated, “That’s often times [sic] the response.” More importantly, after 

defense counsel told the court referring the jury back to the jury instructions was “often 

times [sic] the response,” the court took the statement to mean that defense counsel was 

suggesting that the court refer the jury back to the jury instructions. Defense counsel 
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made no attempt to correct the court’s understanding of his position. Finally, the court 

asked both parties if directing the jury to refer to the jury instructions was a sufficient 

response and defense counsel responded in the affirmative. Thus, because defendant did 

not suggest an alternative response to the jury’s inquiry, because he agreed with the 

prosecutor’s suggestion that referring the jury back to the jury instructions was an 

appropriate response, and because defense counsel answered in the affirmative when the 

court asked if its response to the jury was sufficient, defendant forfeited any claim of 

error.

III

Cumulative Error

Defendant contends that the cumulative effect of the foregoing errors requires

reversal. Not so. Because no error has been shown and because defendant did not 

preserve one of the two issues he claims resulted in cumulative error for appeal, there 

could be no cumulative effect.

IV

Appointment Of New Counsel To Prepare A Motion For A New Trial

After the jury found defendant guilty and after the court found the prior prison 

term allegation to be true, defendant asked for a new trial based on ineffective assistance 

of counsel. The court held a Marsden2 hearing to determine whether new counsel should 

be appointed to prepare defendant’s motion for a new trial. 

During the hearing, Radcliffe testified “[he] did [his] best to prepare for the trial.” 

Defendant told the court he asked Radcliffe to get Officer Belser’s work log schedule, but 

Radcliffe refused. Defendant claimed Officer Belser was not the officer who pulled him 

over. Radcliffe said defendant first raised his claim regarding Officer Belser during the 

 

2 People v. Marsden (1970) 2 Cal.3d 118.
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preliminary examination. Radcliffe thought defendant was wrong because the police 

report said Officer Belser was the officer who pulled defendant over and arrested him and 

because Officer Belser came into court and testified. 

Radcliffe next explained to the court that defendant raised the issue with him again 

sometime between the preliminary examination and trial. Radcliffe testified he told

defendant: “Well, he is saying that he was there. I can’t imagine him putting in a police 

report and testifying on the witness stand that he was there if he was not.” Defendant 

asked Radcliffe to get the work logs during trial, but because it was the middle of trial, 

Radcliffe could not get the work logs. 

During the Marsden hearing, the court noted that Radcliffe asked Officer Belser 

questions during trial about the stop “and who was in the car with him.” The court then 

asked defendant if he and Radcliffe were still able to talk to one another, to which 

defendant responded “Yeah.” 

The court denied defendant’s request to appoint new counsel for the motion for a 

new trial. The court found that there was no breakdown in the attorney-client 

relationship to the extent that a new attorney was required. The court further found that 

Radcliffe “made a tactical decision with regard to those particular records . . . and that he 

sufficiently covered the ground that [defendant raised] by asking a number of questions 

of the detective about his presence at the scene that evening that [defendant was]

arrested.” 

After the Marsden hearing, Radcliffe filed a motion for a new trial on behalf of 

defendant. The court denied the motion, finding there was no ineffective assistance of 

counsel based on the fact that “[c]ounsel cross-examined vigorously the officers and 

other witnesses at trial.” 

Pursuant to Marsden, “[a] defendant ‘may be entitled to an order substituting 

appointed counsel if he shows that, in its absence, his Sixth Amendment right to the 

assistance of counsel would be denied or substantially impaired.’ ” (People v. Memro
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(1995) 11 Cal.4th 786, 857.) “Marsden motions are subject to the following wellestablished rules: ‘ “ ‘When a defendant seeks to discharge his appointed counsel and 

substitute another attorney, and asserts inadequate representation, the trial court must 

permit the defendant to explain the basis of his contention and to relate specific instances 

of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if 

the record clearly shows that the first appointed attorney is not providing adequate 

representation [citation] or that defendant and counsel have become embroiled in such an 

irreconcilable conflict that ineffective representation is likely to result [citations].’ 

[Citations.]” ’ [Citation.] Denials of Marsden motions are reviewed under an abuse of

discretion standard.” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)

Defendant contends that because his claim “was a matter beyond ‘the four corners 

of the courtroom’ ” and because his claim Officer Belser was not present when he was 

arrested mixed with the fact that Radcliffe did not investigate his claim “presented a 

colorable claim of ineffective assistance of counsel . . . ,” the trial court should have 

appointed new counsel. We disagree. 

“A claim of denial of the right to the effective assistance of counsel is not 

colorable . . . if it is based in substantial part upon factual representations that are 

manifestly inconceivable . . . .” (People v. Stewart (1985) 171 Cal.App.3d 388, 396,

disapproved on other grounds in People v. Smith (1993) 6 Cal.4th 684, 694 [dicta].)

Moreover, the Supreme Court has held “a particular decision not to investigate must be 

directly assessed for reasonableness in all the circumstances, applying a heavy measure

of deference to counsel’s judgment.” (Strickland v. Washington (1984) 466 U.S. 668, 

691 [80 L.Ed.2d 674, 695].) 

Here, under the circumstances of this case, defendant’s factual representations 

appear “manifestly inconceivable.” Officer Belser’s name appeared on the police report, 

he appeared in court on two separate occasions to testify about defendant’s arrest, and 

Radcliffe “vigorously” cross-examined him. Based on those facts, it is inconceivable that 
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Officer Belser was not present when defendant was arrested. In light of the fact that 

Radcliffe was aware that Officer Belser’s name was on the police report and the fact that 

Officer Belser testified, Radcliffe’s decision not to investigate defendant’s claim was 

reasonable. Finally, the matter was not entirely outside the four corners of the courtroom 

because the judge was able to see Officer Belser’s testimony and Radcliffe’s “vigorous” 

cross-examination of Officer Belser. Thus, the trial court did not abuse its discretion by 

refusing to appoint new counsel to prepare defendant’s motion for a new trial. 

DISPOSITION

The judgment is affirmed.

/s/ 

Robie, J.

We concur:

/s/ 

Nicholson, Acting P. J.

/s/ 

Duarte, J.