1 Filed 5/8/13 P. v. Fava CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), pr ohibits 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. TROY DANTE FAVA, Defendant and Appellant. E055407 (Super.Ct.No . FV1800549) O P I N I O N

APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret, Judge. Affirmed. Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, a nd James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys Genera l, for the Plaintiff and Respondent.2 I. INTRODUCTION A jury found defendant Troy Dante Fava guilty of the murder of Adam Atencio (Pen. Code, § 187, subd. (a)), 1 grand theft (§ 487, subd. (a )), and burglary (§ 459). The jury also found that defendant was armed with a firearm in each coun t. (§ 12022, subd. (a)(1).) In a bifurcated trial, the court f ound that defendant had two prison priors. (§ 667.5, subd. (b).) Defendant was sentenced to 35 years to life, and appeals. At trial, the evidence showed that Adam Atencio was shot and killed on March 7, 2008, at the apartment of Lucas Buckingham in Hesperia, after defendant and several of his cohorts burglarized the apartment and beat up Buckingham. Buckingham’s Glock handgun was stolen from the ap artment. It was unclear whet her defendant or one of his cohorts shot and killed Atencio wi th a second handgun, a Sig Sauer. 2 Shortly after the shooting, San Bernardi no County Sheriff’s De puty Frank Hardin and other deputies entered defendant’s home w ith guns drawn. After searching defendant for weapons, Deputy Hardin told defendant he was a suspect in a shooting that had just occurred nearby, and asked defendant to step outside so that a witness could identify him or rule him out as being involved in the shooti ng. In response, defendant said he had not

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 This court has previously affirmed judgments convicting defendant’s cohorts, Christopher Shane Rivera and Peter Michae l Lewis of first degree felony murder, robbery, and burglary in connection with the March 7, 2008, shooting of Atencio. ( People v. Rivera (Apr. 18, 2012, E052339) [nonpub. opn.]; People v. Lewis (Mar. 22, 2011, E050174) [non pub. opn.].)3 left his house all day and could not have been present at the shooting. Defendant was not read his Miranda 3 rights before he made the statement. On this appeal, defendant claims only that his un Mirandized statement that he was home at the time of the shooting wa s admitted in violation of his Miranda rights and Fifth Amendment right against self-incrimination. He claims he was in custody when he made the statement, and Deputy Hardin’s statement to him that he was a suspect was reasonably likely to elicit an incriminating response. We conclude that defendant’s exculpatory statement was properly admitted. Even if defendant was in custody when he made th e statement, he was not being interrogated. Under the circumstances, the deputy’s statemen t to defendant that he was a suspect in the shooting was not reasonably likely to illicit an in criminating response. Instead, defendant reasonably should have understo od that the statement was to inform him why the officers were there and why they wanted him to step outside. We th erefore affirm the judgment.
II. FACTUAL BACKGROUND Buckingham had two encounters with defend ant before the shooting of Atencio at Buckingham’s apartment on March 7, 2008. We describe the prior encounters before describing what occurred at the time of the shooting.
A. Events Preceding the Ma rch 7, 2008, Shooting Buckingham testified that he first met defe ndant at a friend’s house several months before the shooting, when Buckingham was a marijuana and cocaine dealer. One

3 Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ).4 morning in February 2008, de fendant showed up at Buckin gham’s apartment and woke Buckingham up by pounding on the door. Bu ckingham answered, and defendant asked whether he was Buckingham. Buckingham responded by asking, “What’s it to you?” Defendant and Peter Lewis then forced their way into the apartment. Once inside, defendant proceeded to kick, punch, and beat Buckingham. While defendant was beating up Buckingham, Lewis picked up Buckingham’ s shotgun. Lewis pointed the gun at Buckingham, but defendant told him to stop. Knowing he was a dealer, defendant and Lewis asked Buckingham where he kept his stash, cell phones, money, and guns. Buckingham denied having anything. After rummaging around the apartment, defendant a nd Lewis found Buckingh am’s marijuana. Defendant then beat Bu ckingham more severely for lying to him. After the beating, Buckingham’s shirt was soaked in blood. Defendant and Lewis left the apartment with two baggies of marijuana, the shotgun, a video camera, and some cell phon es. Before leaving, defendant told Buckingham that if he called th e police, every skinhead in Southern California would be at Buckingham’s door to rape him. Buck ingham believed that de fendant attacked him because of a disagreement Bu ckingham had with defendan t’s girlfriend’s mother. Buckingham did not report the attack, but reported to police that his shotgun was taken in a burglary while he was not home. He testified that he reported the gun was stolen because it was registered in his na me and he was worried what defendant and Lewis would do with the gun. Officer Arnol d Mathias took the repo rt on February 25,5 2008. Along with the missing shotgun, Buckingham reported that a diamond ring and $170 in cash were taken. After his shot gun was taken, Buckin gham illegally obtained a .40-caliber Glock handgun. Buckingham further testified that some time after the Fe bruary 2008 incident but before the March 7, 2008, sh ooting, he was sitting in his car in his apartment complex when an SUV pulled up behind him and blocked him in. Defe ndant got out of the SUV, walked up to Buckin gham’s car, knocked on the window in a hostile fashion, and told Buckingham they needed to talk. Buckingham opened hi s window slightly, pointed his Glock at defendant, and defendant backed aw ay. Buckingham then backed his car into the SUV, forced his way out of his parking space, and quickly drove off. According to Buckingham, defendant got back into the SU V and the SUV tried to follow Buckingham, but the SUV lost sight of Buckingh am after four or five minutes.
B. The March 7, 2008, Shooting On the night of March 6, 2008, Buckingha m was in his apartment with two of his friends, Atencio and Atencio’s brother Andr ew. They drank beer and Tequila, smoked marijuana, and took Valium and Norco. Buckingham showed Atencio how to use the Glock. Buckingham recalled that Atencio was s till awake and at th e apartment when Buckingham went to sleep between 3:00 and 5:00 a.m. on March 7. Buckingham could not recall whether the Glock was in the kitc hen or under his pillow when he went to sleep.6 Atencio’s brother Andrew awoke and left the apartment at 7:00 a.m. on March 7, before the shooting occurred. Andrew recalle d there was a gun on the coffee table that Atencio had handled. Later on the morning of March 7, Buck ingham awoke to defe ndant sitti ng on top of him, beating him up. Defendant hit Bu ckingham in the face 10 to 20 times. While defendant was beating Bu ckingham, Lewis was in the room with a gun and a third person was blocking the bedroom door, possibly holding a gun as well. Defendant and Lewis then dragged Buckingham off the bed to the floor, where defendant proceeded to kick him. Lewis then demanded to know where Buck ingham kept his “stash.” Defendant said, “That’s not what we’re here to do. Do what we came here to do,” and Lewis then crouched down and began choking Buckingham. Buck ingham could not breathe, became dizzy, his vision became fuzzy, and he felt like he was going to die. He did not suffer any lasting injuries from the assault, however. As Lewis was choking him, Buckingham he ard a loud thud co ming from the living room. Buckingham did not know anyone else was in the apartment. Lewis got off Buckingham, and Lewis, defendant, and the other man ran from the bedroom. Buckingham got up, but still had fuzzy vision. When he got to th e bedroom door, he could see Lewis firing his handg un towards the front door. Buckingham estimated that Lewis fired at le ast six to seven shots, but he heard a total of 10 to 15 shots. Once the shooting ended, defendant yelle d, “We gotta go now,”7 and defendant, Lewis, and the other man ran off. Buckingh am then went through the living room and out the front door. Outside, he found Atencio on the ground, in a planter. Atencio was gasping for breath and bl eeding from his chest. Buckingham called 911, but Atencio died before help could arrive. Buckingham did not see his Glock anywhere.
C. Charles Carr’s Testimony Charles Carr was arrested on March 8, 20 08, and he and defe ndant were initially charged with the same crimes . Carr pled guilty to being an accessory to the crimes (§ 32), and was facing a sentence of up to f our years in prison when he testified for the prosecution at defendant’s trial. Around two days before the March 7, 2 008, shooting at Buck ingham’s apartment, Carr, Christopher Rivera, de fendant, and Lewis were in the SUV, blocking Buckingham’s car from leaving the apartment complex. Rivera was driving the SUV, which belonged to Rivera’s mother, and defe ndant was in the front passenger seat. The foursome arrived at Buckingham’s apartmen t complex in the SUV as Buckingham was leaving. Defendant got out of the SUV and ran to the driver’s side of Buckingham’s car. Rivera then backed the S UV behind Buckingham’s car, blocking Buckingham in. Carr saw a gun pointed out of the window of Buckingham’s car, and defendant put his hands in the air and froze. Buckingham th en backed into the SUV, sped off, and defendant jumped back into the SUV. Rivera was upset that the SUV was damaged, and8 defendant was saying, we’re “gonna . . . kick his ass.” They followed Buckingham but lost him, and returned to defendant’s home. On the day of the shooting, Carr, Rive ra, Lewis, defendant, and defendant’s girlfriend were at defenda nt’s house. Eventually, defendan t, his girlfriend, and Lewis left the house in Lewis’s car, and Ri vera followed in Rivera’s ca r. They dropped defendant’s girlfriend off at a McDonald’s before proceeding to Buckin gham’s apartment. When Carr arrived at the front door of the apartment, defendant, Rivera, and Lewis were already inside. From the front door, Carr could hear fighting coming from the bedroom. Carr saw a young man on the c ouch, asked the man what was going on, and the man stood up with a g un in his hand. After the y oung man cocked the gun, Carr ran from the apartment. As he ran, Carr hear d more than 10 gunshot s. Carr ran around the building and jumped over a fence. While running down the street, Carr doubled back and saw defendant and the other men getting into their cars. Rivera told Carr to get into Rivera’s car. Carr asked, “What happened, man?,” and Rivera said, “I don’t ev en know what happened , I had to fire back” or “I had to shoot back.” Rivera may have also said something like, “The kid wouldn’t stop shooting, I had to shoot back.” Rivera also said he did not aim his gun but simply pointed the gun around the corner. Carr and Rivera drove to Carr’s house. Wh en they arrived, Rivera pulled out two guns and said: “I have to have someplace to put these.” Carr offe red a hiding spot at9 Carr’s house, and Rivera put the guns there. Rivera then received a text message that defendant had been arrested, and retrie ved the guns from Carr’s hiding place. Carr and Rivera then drove to Rivera’s mother’s house where Rivera wiped the guns down with towels. Carr and Rivera then drove to the desert where Rivera hid the guns under a rock pile. Later on March 7, Rivera and Carr returned to Carr’s house. That evening, the police came to Carr’s house and arrested Rivera and Carr. Carr showed a detective where the guns we re hidden in the desert.
D. Ballistics and Other Prosecution Evidence Atencio suffered two gunshot wounds to his right chest a nd one to his left chest. The left chest wound was fatal. It took Atencio several minutes to die, and he could have walked 15 to 20 feet before collapsing. The guns the police recovered from the ro ck formation were Buckingham’s Glock and a Sig Sauer nine-millimeter. The Sig Sauer was register ed to Rivera’s father. Criminalist William Matty testified that thr ee bullet casings recovered from the apartment were fired by the Glock, and two were fired by the Sig Sauer. All of the bullet fragments removed from At encio’s body were consistent with the Sig Sauer. Other fragments we re consistent with both g uns, and some fragments were too damaged to identify. Criminalist Hazel Whitworth believed th e Sig Sauer was fired from the doorway of the apartment towards the outside. Defendant’s girlfriend, Ste phanie Barling, was interviewed by police, and a tape of the interview was played for the jury. Barling said that before they left defendant’s house10 on March 7, she overheard defendant tell Le wis, “Don’t worry, they’re strapped,” meaning that Carr and Rivera had guns. She was concerned and told defendant, “don’t go being stupid, please.” Defendan t told her not to worry.
E. Defendant’s UnMirandized Statement to Deputy Hardin At trial, the jury heard Deputy Hardin testify that he spoke with Buckingham shortly after the shooting on Ma rch 7, 2008, then went to de fendant’s house with several other deputies. Defendant’s house was only two blocks away from Buckingham’s apartment. When the deputies contacted defendant inside his house, it appeared that defendant had just gotten out of the shower. Deputy Hardin told defendant that he was a suspect in a shooting that had occurred a coupl e of blocks away. In response, defendant said he had been home all day and could not have been at the scene of the shooting. Deputy Hardin then to ok defendant outside to participate in an in-field lineup, and waited for other officers to bring Buck ingham to the house. After he saw Buckingham arrive in the backseat of a patrol car, defendant to ld Deputy Hardin that he did not know who Buckingham was.
III. ANALYSIS Defendant claims his statemen t to Deputy Hardin that he had been home all day and could not have be en present at the shooting was admitted in violation of his Miranda rights. We disagree. As we explain, defenda nt did not make the st atement in response to a question or statement designed to elicit an incriminating response—even if defendant was in custody when he made the statement.11 A. The Evidence Code S ection 402 Hearing Before defendant’s statement to Deputy Ha rdin that he had been home all day was admitted, Deputy Hardin and defendant testifie d in an Evidence Code section 402 hearing to the circumstances surrounding the statemen t. Their testimony and the trial court’s ruling that the statement was admissible are described below. 1. Deputy Hardin’s Testimony Deputy Hardin explained that he identified defendant as a suspect in the shooting after Buckingham told him that “Troy” was at the scene of the shooting and that “Troy” lived on “I and Sultana.” Deputy Hardin wa s familiar with defendant, knew where he lived, and knew he was on parole. Deputy Hardin arrived at defendant’s hous e, along with approximately four other deputies. The deputies set up a perimeter aroun d the house. Deputy Hardin then went to the front door and was allowed inside by a woman, possibly defendant’s girlfriend. Deputy Hardin entered the ho use with his gun drawn, follo wed by at least one other deputy who also had his gun drawn. Deputy Hardin called out fo r defendant as he made his way down a hallway. Defendant came into the hallway from a back be droom, holding his y oung daughter in his arms. Upon seeing the child, Deputy Hardin lowered his we apon. He asked defendant whether he could pat him down for weapons, and defendant agreed. Defendant placed his daughter on the floor and approached the depu ty with his hands up. It appeared that defendant had just taken a shower. Deputy Ha rdin holstered his weapon for the patdown,12 but another deputy kept hi s gun trained on defendant until it was ascertained that defendant had no weapons. Deputy Hardin was using a “normal” tone of voice with defendant when he spoke to him in the hallway. After the patdown, Deputy Hardin told defendant he was there because a shooting had just o ccurred several blocks away, and he had information that defendant may have been involv ed. He told defe ndant that a witness could identify him or rule him out as being invol ved, and defendant agreed to step outside for an in-field lineup. On the way outside, defendant made the statement he claims was admitted in violation of his Miranda rights—that he could not have be en at the scene of the shooting because he had not left home all day. Three or four mi nutes passed between the time Deputy Hardin first en countered defendant in the hallway and the time defendant made the statement. Defendant was not handcuffed when he made the statement, or immediately after he walked outside. Outside, Deputy Hardin stood next to defendant while they waited 20 to 30 minutes for Buckingham to arrive. Four men were in the in-field lineup, including defendant. Buckingham was brought by in a patrol car. When Buckingham saw defendant, he said, “That’s him, that’s him, that’s the son of bitch that shot him.” Deputy Hardin then handcuffed defendant, placed him in the back of a patrol car, and told him he was being taken to the stati on for further investigation. On the way to the station, defendant said he did not know who “that guy” was, referring to Buckingham, but not by name. Deputy Hard in confirmed that, during th e in-field lineup, defendant13 was being detained and would not have been a llowed to leave, but De puty Hardin did not tell defendant he was being detained at that time. 2. Defendant’s Testimony Defendant testified he had ju st finished changing his tw o-year-old daughter in the back room of his home when the police arrived. He knew the police were there before he stepped out of the back room. Deputy Hard in handcuffed him in the hallway after he patted him down for weapons. Deputy Hardin did not make him put his hands on the wall when he patted him down. After he was handcuffed, defendant told Deputy Hardin that he had not left his house all day. He did not recall Deputy Ha rdin asking him any questions. 3. The Trial Court’s Ruling Defense counsel argued that defendant was in custody in the hallway and that Deputy Hardin’s statement th at he was a suspect in the shooting constituted an “implied accusation,” if not a direct accusation, and an interrogation. The pr osecutor argued that defendant did not make the stat ement in response to an inte rrogation, even if he was in custody when he made the statement. The court found Deputy Hardin’s testim ony that he did not handcuff defendant inside the house more believable than defenda nt’s testimony to the contrary. The court also found that Deputy Hardin ’s statement that defendant was a suspect in the recent shooting was not “calculated to solicit a re sponse” from defendant, and “the words themselves [did] not suggest a response.” The court said it was reasonable for Deputy14 Hardin to explain why he wa s there, and defendant was not being interrogated when he told the deputy he had been home all day. The court further found that defendant was not in custody until after Buckin gham identified him in the in -field lineup, and he was handcuffed and placed in Depu ty Hardin’s patrol car. Accordingly, the court ruled that the pros ecution could introduce evidence of: (1) defendant’s statement to Deputy Hardin in the hallway that he had been home all day and could not have been present at the time of the shooting; and (2) defendant’s subsequent statement that he did not know who Buckingham was.
B. Analysis The Miranda rule holds that any statements a person makes, whether exculpatory or inculpatory, during a custodial interrogatio n without first being advised of his or her Miranda rights 4 are inadmissible to prove the defendant’s guilt. ( Berkemer v. McCarty (1984) 468 U.S. 420, 429; Miranda, supra, 384 U.S. at p. 444.) The rule is designed to protect the defendant’s Fifth Amendmen t right against self-incrimination ( Berkemer v. McCarty, supra, at p. 428), and is concerned with the dange r that a person will be induced to make incriminating statements he or she would not make but for the inherently coercive nature of a police-dominated atmosphere ( Miranda, supra, at pp. 444-445, 461; United States v. Martin (9th Cir. 1986) 781 F. 2d 671, 673). Thus, Miranda warnings are

4 “‘Before being subjected to “custodial interrogation,” a suspect “must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney . . . .”’ [Citations.]” ( People v. Leonard (2007) 40 Cal.4th 1 370, 1399-1400.)15 not required unless there is a custodial interrogation. ( Rhode Island v. Innis (1980) 446 U.S. 291, 301; People v. Mickey (1991) 54 Cal.3d 612, 648.) In reviewing the trial court’s ruling that defendant was not in custody and was not being interrogated when he told Deputy Hardin that he had be en home all day, we accept the court’s factual findings provided s ubstantial evidence supports them. ( People v. Mayfield (1997) 14 Cal.4th 668, 733.) Howeve r we independently determine, based on the undisputed facts and those properly f ound by the trial court, whether defendant’s challenged statement was illegally obtained. ( Ibid .) Applying these principles, we conclude that defendant was not being interrogated when he told Deputy Hardin that he had been home all day and could not have been present at the time of the shooting. It is therefore unnecessary to determine whether defendant was in custody when he ma de the statement to Deputy Hardin. 5 Interrogation refers to express questioning and any words or actions “on the part of the police . . . that the police shoul d know are reasonably likely to elicit an incriminating response from the suspect.” ( Rhode Island v. Innis, supra, 446 U.S. at p. 301, fns. omitted; People v. Mayfield, supra, 14 Cal.4th at p. 732.) Under the totality of the circumstances, Deputy Hardin’s statement to defendant that he was a suspect in a shooting that ha d just occurred only blocks away from his home was not reasonably likely to elicit an in criminating response from defendant. After

5 The test for whether an individual is in custody is an objectiv e one: was there a formal arrest or restraint on the person’s fre edom of movement of the degree associated with a formal arrest. ( Thompson v. Keohane (1995) 516 U.S. 99, 112; People v. Ochoa (1998) 19 Cal.4th 353, 401.)16 the deputy told defend ant he was a suspect, he told de fendant there was a witness who could identify him or rule him out as being involved in the shooting, and asked defendant to step outside to participate in an in-field lin eup. In this context, the deputy’s statement that defendant was a suspect was necessary to inform defendant why the deputies were there and why they wanted him to come outside . It was not reasonab ly likely to elicit an incriminating response from defendant, or get defendant to admit or deny that he was involved in th e shooting. Miranda warnings are not required when, as here, a suspect, unprovoked by police officers, makes a voluntary and spontaneous statement. As Miranda stipulates: “Any statement given freely and voluntarily withou t any compelling influences is, of course, admissible in evidence. ” ( Miranda, supra , 384 U.S. at p. 478.) A reasonable person in defendant’s positi on would have unders tood that he was under no compulsion to speak wh en told he was a suspect in the shooting. Defendant’s statement to Deputy Hardin that he had be en home all day and could not have been involved in the shooting was given voluntarily, and was not admitted in violation of defendant’s Miranda rights. Defendant’s Miranda rights were not in play when defendant made the statemen t, because defendant was not being interrogated. The present case is roughly analogous to Innis , where the high court ruled that the defendant was not being interroga ted when he told officers wh ere a shotgun was located. The defendant made the statem ent in response to the comme nts the officers made, while riding in a patrol car with the defendant, that they hoped to find a missing shotgun that17 had been used in a robbery before a handicapped child fo und it and hurt themselves. ( Rhode Island v. Innis, supra, 446 U.S. at pp. 293-294, 302-303.) The officers’ comments were not reasonably likely to elic it an incriminating response because nothing in the record suggested that the officers knew the defendan t was “peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children.” ( Id . at p. 302.) Here too, there is no indication that Deputy Hardin knew or reasonably should have known that telling defendant he was a su spect in the shooting, in connection with telling him why the deputies were in his ho use and why they wanted him to come outside, would elicit an incriminating response from defendant. In sum, Deputy Hardin was explaining to defendant why he was in his house and why he wanted him to come outside when he told defend ant he was a suspect in the shooting. In these circumstan ces, the deputy’s statement to defendant that he was a suspect was not an interrogation, and th e admission of defendant’s purportedly responsive statement that he had been home all day and ther efore could not have been involved in the shooting di d not violate defendant’s Miranda rights.18 IV. DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING J.

We concur: RICHLI Acting P. J.
MILLER J.