1 Filed 4/15/15 P. v. Williams CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION 4

THE PEOPLE, Plaintiff and Respondent,

v. TERRY WILLIAMS, Defendant and Appellant. A138843
(Contra Costa County Super. Ct. No. 51222181)

Defendant appeals a judgment entered upon a jury verdict finding him guilty of first degree residential burglary. (Pen. Code , §§ 459, 460, subd. (a ).) He contends the magistrate improperly denied his motion to suppress evidence found in an illegal search and that the court erred in admitting statements obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ) into evidence. We sh all affirm the judgment.

I. BACKGROUND The evidence at the preliminary hearing showed that defenda nt lived with his grandmother in a home next door to the vic tim’s residence. In November 2012, the
victim received an automa tic e-mail from his home video surveillance system showing photos of a person on the side of his house and in his living r oom, and a picture of a shoe. He called the Contra Costa County Sheriff’s Department. Deputy Sh eriff Joseph England was dispatched to the victim ’s home to investigate. England found a shattered window and an alarm keyboard box that had been pulled from the wall. Englan d concluded the home had been burglarized. He conducted an “area canvass” to investigate whether neig hbors in the area had information about the2 burglary. He went to the ho use next door and spoke with defendant, who said he had
been home but had not heard or seen anything. As they spok e, Reginald Ward parked in the street and walked up the driveway of the ho use. He told England he had been gone at work all day and had no information. It ap peared to England that Ward had just gotten
home.
When the victim returned home later that day, he found that a television, three outdoor cameras, and a blanket were missing. He also thought that over $4,000 in cash was missing, but later found th e money undisturbed. He to ld England he had noticed a
television wire stuck to the fence that separated the neig hbors’ houses. The next day, the victim showed England the still imag es from his cell phone. He told England the person in the images lo oked familiar and might be his next door neighbor. One of the pictures showed the cu lprit’s shoe. England asked the victim about his next-door neighbors, and was told that an elderly woman, an approximately 50-year old man, and a young man lived in the home. 1 England went back to defendant’s home and knocked on the fr ont door, and Ward answered. England showed him the pictures and Ward said the person in the images looked like defendant, and that the shoe from the pictur e looked like defe ndant’s shoe. England asked Ward if any of the missing items were in the house, and Ward replied that “he did not believe so, but let’s come inside and check.” Englan d asked what Ward’s relationship was to defendant, and Ward said he was defendant’s uncle. Ward led England through the house, and they did not see the missing items. England asked Ward what was in the shed in the backyard. Ward led England to the unlocked shed, where he found a television a nd blanket consistent with the victim’s
account of what had been stolen . Although it contained a fut on, the shed did not appear
to be a bedroom. England asked Ward whethe r defendant was staying in the shed. Ward told him he did not know, and that he would have to check with defenda nt’s grandmother, who

1 Ward was approximately 54 years old.3 owned the house. 2 England “froze” the investigati on and Ward called the grandmother,
who was in Texas. Defendant ’s grandmother told England that Ward had been housesitting while she was away, and gave him perm ission to continue th e search. England
showed the television and blanket to the victim, who said they were his. England later returned to defendant’s hom e and asked to speak with defendant in private. Defendant led him into his bedroo m inside the house. The door was open. England told defendant that he had review ed video surveillance and found the blanket and television, and that he knew that defe ndant had committed the burglary. Defendant placed his head down and said nothing. England said he needed to k now where the stolen cash was, and defendant said it would take a few days to get the money back. England told defendant he needed to leave w ith him and go in his patrol car. Defendant reached for a pair of shoes, which England re cognized from the phot os taken by the home surveillance system. England handcuffed defendant , placed him in the patrol car, and advised him of
his Miranda rights. Defendant answered in th e affirmative when England asked him
whether he understood his rights. Defendant then ad mitted to committing the burglary, hiding the items in the shed, and da maging the surveillance system. Defendant moved to suppress the evidence fo und in the shed and his statements to England under Penal Code section 1538.5 on th e grounds that they were obtained during an illegal warrantless search. The magistra te denied the motion. In doing so, the magistrate found that defendan t had a sufficient expectation of privacy in the shed to bring the motion, but that in the circumstan ces, it was reasonable fo r England to believe Ward had authority to c onsent to the search. At trial, defendant moved to dismiss the information pursu ant to Penal Code section 995 on the grounds that the magistrate erred in denying his motion to suppress.
The trial court denied the motion.

2 England also testified that after Ward op ened the shed door, he said he believed defendant used it.4 Defendant also made a motion in limine to exclude the statements he made to England, contending they were obtained in violation of his Miranda rights. The trial court reviewed the transcript of the prelim inary hearing and heard additional evidence. England testified that when he arrived at th e defendant’s home the day after the burglary, defendant was sitting in the living room. Engl and asked defendant to speak with him in private, and defendant agreed. Another un iformed deputy sheriff was standing outside
the front door. The other de puty stood in the hallway outsi de the bedroom door while England and defendant spoke in the bedroo m. Defendant sat on the bed and England stood near the doorway. The first thing Engl and told defendant was that he had seen the
surveillance video and knew de fendant had committe d the burglary. Defendant put his head down. England next asked about the cash, and when defendant made an incriminating response, England ended the inte rview, handcuffed him, and placed him in the patrol car. The interview was brief. At no point during the interview in the bedroom did England tell defendant he was free to leave. Before arresting defendant, England did not handcuff him or draw his weapon. He did not ask any ques tions between arresting defenda nt and advising him of his Miranda rights. Defendant said he understood hi s rights. Defendant was 18 years old. Defendant’s adoptive mother (his grandmother) testified that he had been in a special educational program at school and that he displayed difficulties in understanding her in her everyday dealings with him.
The trial court denied the motion to exclud e defendant’s statements to England. In doing so, the court found that defendant wa s not in a custodial setting when England questioned him in the bedroom, and that defendant spoke w ith England voluntarily. At trial, England testified that after he advised defendant of his Miranda rights,
defendant told him that he had taken the vide o cameras off the wall a nd thrown them into the sewer and that he put the television set and blanket into the shed. He said he committed the burglary beca use he needed money to travel to San Francisco, and that he planned to sell the stolen property. A jury found defend ant guilty of first degree burglary.5 II. DISCUSSION A. Third-Party Co nsent to Search Defendant contends the magistrate erred in denying his motion to suppress
evidence found as a result of Ward’s consen t to search the prem ises. According to defendant, the evidence gath ered after the search of th e home and shed should be suppressed because Ward was only a temporar y house-sitter and lacked authority to
consent to the sear ch of the shed.
Our standard of review is well settled. A defendant may challenge a magistrate’s ruling on a motion to suppress on appeal, following a convictio n by plea or at trial. ( People v. Mena (2012) 54 Cal.4th 146, 156.) Wh ere a defendant’s motion challenging the reasonableness of a search is based upon the evidence adduced at the preliminary hearing, the trial court is bound by th e factual findings of the magistrate. ( Anderson v. Superior Court (1988) 206 Cal.App.3d 533, 538-539.) “On app eal, we do not review the findings of the [trial] court since it acts as a reviewing, and not a fact-finding court. Rather, ‘the appellate court disregards the findings of the trial court and reviews the determination of the magistra te who ruled on the motion to suppress.’ [Citation.] ‘In doing so, “all presumptions are drawn in favo r of the factual determinations of the [magistrate] and the appellate court must up hold the [magistrate’s] expressed or implied findings if they are supported by subs tantial evidence.” ’ [Citation.]” ( People v. Snead (1991) 1 Cal.App.4th 380, 384, fn. omitted.) Although entry into a house without a warrant is presumptively unlawful, the presumption is rebutted if the law enforcement officer’s entry is made pursuant to valid consent. ( Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222; Florida v. Jimeno (1991) 500 U.S. 248, 251.) “[T]he consent of one who possesses common authority over premises or effects is valid as against th e absent, nonconsenting pe rson with whom that authority is shared.” ( United States v. Matlock (1974) 415 U.S. 164, 170.) Here, as defendant points out, consent was initially given not by the homeowner but by Ward, who was house-s itting, and the search encomp assed the shed, over which
defendant contends Ward lacked actual or apparent authority. These facts are not6 dispositive. Warrantless entry is valid if consen t is given by a third party, so long as the
law enforcement officer has a reasonable be lief that the third party possesses common authority over the premises, even if the third party does not, in fact, have that authority. As our high court has explained, “[A] gue st who has the run of the house in the occupant’s absence has the apparent authority to give consent to en ter an area where a visitor normally would be received. [Citati ons.] Furthermore, the police may assume, without further inquiry, that a person who answers the door in response to their knock has the authority to let them enter. [Citation.]” ( People v. Ledesma (2006) 39 Cal.4th 641, 703.)
We conclude that it was reasonable fo r Deputy England to believe Ward had authority to consent to the se arch of the premises, includi ng the shed. The victim had told England that the home was inhabite d by three occupants, including a person matching Ward’s description. England was told that Ward was defendant’s relative. Each time England went to defendant’s home, Ward was present, once apparently coming home after work and arriving on the propert y as England spoke to defendant. Ward answered the door when England visited th e home for the second time. When England conducted the initial area canvass, defendant answered the front door, suggesting to England that defendant lived in the house, and not in the shed. In short, Ward appeared to live at the house, and defendant gave no indication that he lived in the shed. We recognize that the magistrate conc luded defendant had an expectation of privacy in the shed. Howeve r, Ward presented himself to England as someone who had authority to consent to the search of the shed, and there was no indication that when England looked into the shed, there was re ason to believe it was not a common area. Contrary to defendant’s argument, Ward’s la ck of knowledge whether the stolen items were in the shed did not suggest that Ward never used the shed, but only that he had no knowledge of the contents of the shed at that time. 3 On this record, England could

3 Defendant relies on Illinois v. Rodriguez (1990) 497 U.S. 177, 188 for the proposition that Ward’s lack of knowledge about the contents of the shed should have put England on inquiry notice about its mutual use. That case, however, is inapposite, as it7 reasonably conclude that Ward had the “run of the house,” including the backyard and the shed. Thus, the third-party consent to th e search of the house and shed is valid, and the magistrate properly denied the motion to suppress the evidence obtai ned in the search. B. Admissibility of Defe ndant’s Statements
Defendant contends the tr ial court violated his rights under the Fifth Amendment of the United States Constitution by admitting the statements he made to England. According to defendant, he was in custody wh en he made his initial statement to England in his bedroom and he could not prope rly be questioned without receiving Miranda warnings. Defendant also argues that his furt her statements, made after he received his
Miranda advisements, were inadmissible becaus e they were made only after he had already made incriminating admissions, and ther e was no showing the taint of the earlier improperly obtained statements had been dissipated.
“ In applying Miranda , . . . one normally begins by asking whether custodial interrogation has taken place. ‘The phrase “cu stodial interrogation” is crucial. The adjective [custodial] encompa sses any situation in which “a person has been taken into custody or otherwise deprived of his freed om of action in any significant way.” [Citations.] The noun [interroga tion] “refers not only to expr ess questioning, but also to any words or actions on the part of the po lice . . . that the po lice should know are reasonably likely to elicit an incrimina ting response from th e suspect.” ’ ” ( People v. Mayfield (1997) 14 Cal.4th 668, 732.) In review ing a ruling of whether a defendant is in custody, the court “must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported.” ( People
v. Crittenden (1994) 9 Cal.4th 83, 128.) The court determin es independently, based on the undisputed facts and those properly foun d by the trial court, whether the challenged statements were legally obtained. ( Ibid. )

addresses the very different question of whether a hotel cl erk can validly consent to a search of a hotel patron’s room.8 The Miranda rule does not apply to every situ ation involving the questioning of a criminal suspect: “ Miranda applies to questi oning under the coerci ve conditions of official ‘custody.’ [Citation.] “Custody” mean s ‘a “formal arrest or restraint on freedom of movement” of the degree associ ated with a formal arrest.’ ” ( People v. Boyer (1989) 48 Cal.3d 247, 271 ( Boyer ).) The Miranda rule requires that a person being interrogated
must be told of his or her Miranda rights when “in custody at the station or otherwise deprived of his freedom of action in any significant way.” ( Miranda , 384 U.S. at 477.) “The test for whether an individual is in custody is objective.” ( People v. Ochoa (1998) 19 Cal.4th 353, 401.) First, we examine the circumstances surrounding the interrogation. This inquiry is strictly factual, and we a pply to it the deferential substantial evidence standard. Second, we ask whether a reasonabl e person would have felt he or she was not at liberty to terminate the interrogation and leave; this is a determination we make independently. ( Id. at pp. 401-402.) Among the obj ective indicia of custody are: “(1) the site of the interrogation, (2) whether the investigation has focused on the subject, (3) whether the objective indicia of arrest ar e present, and (4) the length and form of questioning.” ( Boyer , supra , 48 Cal.3d at p. 272; accord, People v. Moore (2011) 51 Cal.4th 386, 395.) For example, in Boyer , officers determined that the defendant was a possible suspect in a double homicide case. ( Boyer , supra , 48 Cal.3d. at p. 263.) Detectives went to the defendant’s home, with two police officers guarding th e rear of the house as the
detectives knocked on the front door in order to detain the de fendant if he tried to flee. ( Ibid. ) As the suspect emerged from the rear, law enforcement told him to “freeze.” ( Ibid. ) An officer asked the de fendant whether he would voluntarily accompany them to the station, and he agreed. ( Id. at p. 264.) The defendant was frisked for weapons before entering the patrol car, and was told to take a seat in the back. ( Ibid. ) At the police station, officers advised him of his Miranda rights after leading him to an interrogation room, where he later confessed to the crime. ( Id. at pp. 264–265). The defendant contended that his incriminating statemen ts were not admissible because he was unlawfully detained. ( Id. at p. 267.) The court agreed , concluding that the indicia of9 arrest were present during the initial enco unter at the home, where law enforcement “suggested they did not intend to take no for an answer.” ( Id. at p. 268.) In contrast, in Green v. Superior Court , the court found that a custodial interrogation had not taken place when th e defendant was aske d if he could be interviewed by two officers, w ho then drove him to the poli ce station and conducted the
interview in a room without windo ws and with a locked door. ( Green v. Superior Court (1985) 40 Cal.3d 126, 131.) The initial interview lasted for over an hour. ( Ibid. ) The
defendant was asked to wait while the officers attended to other matters, and the defendant complied with the re quest, after which the officers resumed their questioning. ( Id. ) Defendant was never told he was free to leave. ( Id. at p. 132.) The court held that the circumstances did not present a custodial interrogation because the evidence did not “compel the conclusion that de fendant could not have left wh enever he wanted during the interview.” ( Id. at p. 136.) In our view, a reasonable person in defe ndant’s situation would have realized he was free to end the conversation. We recogn ize that England told defendant he knew he had committed the burglary and that the tr ial court found Engl and’s suspicion had
focused on defendant. 4 However, the other objective indici a of arrest were not present.
Defendant was not restrained or told he could not leave. The questioning took place in his own home rather than an interrogation ro om. Defendant was as ked if he could be spoken with in private, and led England into his own bedroom. No facts suggest defendant was compelled to agre e to the interview. Althou gh a second officer stood in the hallway, the door to the bedroom where the questioning took pl ace remained open. Moreover, the questioning was very brief. In the circumstances, we agree with the trial

4 In People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1, our Supreme Court disapproved Boyer to the extent it suggested an o fficer’s subjective suspicion was an independently relevant factor in establishi ng custody. However, the degree to which an investigation has focused on a defendant may s till be considered as part of the totality of the circumstances of an interrogation in or der to determine how a reasonable person in the defendant’s circumstances would ha ve understood his situation. ( People v. Moore, supra, 51 Cal.4th at p. 395.)10 court that defendant was not in custody at the time he made hi s first incriminating statement, and it was therefore not obtained in violation of Miranda

. Because defendant’s first statement to England was not obtaine d in violation of
Miranda , we reject his contention that his later, post- Miranda statements were tainted by any illegality.

III. DISPOSITION The judgment is affirmed.

_ ____________ ____________ Rivera, J.

We concur:

_____________ ____________ Reardon, Acting P.J.

_____________ ____________ Streeter, J.