Filed 10/29/14 P. v. Broaden 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MARVIN BROADEN, Defendant and Appellant. F066626 (Super. Ct. No. DF10587A)

O P I N I O N

THE COURT  APPEAL from a judgment of the Superi or Court of Kern County. John R. Brownlee, Judge. Janet J. Gray, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Louis M. Vasquez and Rebecca Whitfield, Deputy Attorn eys General, for Plaintiff and Respondent. -ooOoo-

 Before Levy, Acting P.J., Kane, J., and Poochigian, J.2 A jury convicted appellant, Marvin Br oaden, on two counts of battery on a correctional officer (counts 2 & 3/Pen. Code, § 4501.5) 1 and found true an allegation that Broaden had a prior conviction within the mean ing of the three strikes law (§ 667, subds. (b)-(i)). On appeal, Broaden contends: (1) the court erred in admitting a statement that was obtained in violation of his Miranda 2 rights; (2) the jury failed to make a finding on the three strikes allegation; and (3) the court abused its discretion when it denied his Romero 3 motion. We will affirm. FACTS On July 16, 2011, at approximately 1: 45 p.m., while incarcera ted at Kern Valley State Prison, Broaden yelled out to Correc tional Officer Mercado from his cell on the second tier that he was suicidal. Prison pr otocol required Officer Mercado to place a suicidal inmate in a holding cell and contac t “psych” personnel who would then talk to the inmate. Officer Mercado opened the food port to Br oaden’s cell and had Broaden turn around so Mercado could handcuff his arms behind his back through the port and escort him to the holding cell. Officer Mercado handcuffed Broa den and after Officer Anaya opened the door from the control booth, he be gan escorting Broaden out of his cell. As Mercado and Broade n were exiting the cell Broaden quickly turned to his right, pushing his shoulder into Mercado’s chest, which moved Mercado backwards and caused him to lose his balance. Broaden also squatted down and attempted to lift Officer Mercado up. Officer Mercado, however, was ab le to take Broaden down by wrapping his right arm around the back of Broaden’s neck a nd grabbing Broaden’s le ft leg with his left

1 Unless otherwise indicated all further stat utory references are to the Penal Code.
2 Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ). 3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 ( Romero ).3 arm. Meanwhile, Officer Anaya pushed an al arm that alerted other officers who helped subdue Broaden and place him in a two-foot-by-two-foot te mporary holding cell located less than 100 feet from his regular cell. Licensed Vocational Nurse Donatus Ugbo aja was called to examine Broaden for injuries and to fill out form 7 219, which is completed whenever there is an incident with an inmate. As part of the procedure, Nurse Ugboaja asked Broaden if he had any

comment. 4 Broaden replied, “I beat up an officer because he urinated in my toilet and said I was suicidal when I was not.” Nurs e Ugboaja then examined Broaden but did not find any injuries on him. On January 13, 2012, at approximately 12:28 p.m., Officer Tr otter went to the holding cell where Broaden was temporarily bei ng held wearing waist restraints. Trotter instructed him to face the rear of the cell and Broaden comp lied. However, after Trotter opened the cell door, Broaden spun around so he was outside the cell door and kicked Officer Trotter in the right kn ee. Trotter grabbed Broaden an d took him to the ground. On May 2, 2012, the distri ct attorney filed an information charging Broaden with attempted murder (count 1/§§ 664 & 187 , subd. (a)), two counts of battery on a correctional officer (counts 2 & 3), a serious felony enhancement (§ 667, subd. (a)), and with having a prior conviction within th e meaning of the three strikes law. On December 6, 2012, the jury found Br oaden guilty on counts 2 and 3 and they found true the three st rikes allegation. On January 22, 2013, the court denied Broaden’s Romero motion and sentenced him to an aggregate term of eight years: on count 2, the middle term of three years,

4 Prior to the taking of testimony, the co urt held a hearing on the defense’s motion to exclude Broaden’s statement to Nurse Ug boaja because it was allegedly obtained in violation of Miranda . The court denied the motion finding that for purposes of Miranda , Broaden was in custody, but he was not interrogated by Nurse Ugboaja.4 doubled to six years because of Broaden’s pr ior strike conviction; and on count 3, a consecutive two-year term, one-third the middle term of three years doubled to two years because of Broaden’s prio r strike conviction. DISCUSSION The Miranda Issue Broaden contends the court erred in admitting his statem ent to Nurse Ugboaja that he beat up a correctional officer. We disagree. “As a prophylactic safeguard to protec t a suspect’s Fifth Amendment privilege against self-incrimination, the Un ited States Supreme Court, in Miranda , required law enforcement agencies to ad vise a suspect, before any custodial law enforcement questioning, that ‘he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorn ey one will be appointed for hi m prior to any questioning if he so desires.’ [Citations.] If the suspect knowingly and intelligently waives these rights, law enforcement may interrogate, but if at any point in the interview he invokes the right to remain silent or the right to counsel, ‘the interrogati on must cease.’ [Citations.]” ( People v. Martinez (2010) 47 Cal.4th 911, 947.) However, the advisement of Miranda rights is only required when a person is subject to custodial interrogation. Custodial interrogation has two components. First, the person being questioned must be in custody. ( People v. Mickey (1991) 54 Cal.3d 612, 648 ( Mickey ).) “Custody, for these purposes, means that the person has been taken into custody or otherwise deprived of his freedom in any significant way. [Citation.]” ( People v. Mosley (1999) 73 Cal.App. 4th 1081, 1088 ( Mosley ).) A prison inmate may be “i n custody” for purposes of Miranda . ( Mathis v. United States (1968) 391 U.S. 1, 4-5; People v. Fradiue (2000) 80 Ca l.App.4th 15, 19 ( Fradiue ).) However, Miranda warnings are not requir ed for all investigatory5 questioning of a prison inmate. ( Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424, 427 ( Cervantes ); Howes v. Fields (2012) __ U.S. __ [132 S.Ct. 1181, 1191–1193].) In Cervantes , the Court of Appeal for the Ni nth Circuit set forth the following factors that should be review ed for determining whether a pr ison inmate is in custody for purposes of Miranda : (1) the language used to su mmon the inmate for questioning; (2) the physical surroundings of the interrogation; (3) the exte nt to which the inmate is confronted with evidence of his guilt; and (4) the additional pressure exerted to detain him. ( Cervantes, supra, 589 F.2d at p. 428.) The Cervantes test has been adopted by California courts. ( People v. Macklem (2007) 149 Cal.App.4t h 674, 687, 695-696; People v. Fradiue , supra , 80 Cal.App.4th at pp. 20-21; People v. Anthony (1986) 185 Cal.App.3d 1114, 1122.) The second Miranda component is obviously interrogation. ( Mickey , supra , 54 Cal.3d at p. 648; Mosley , supra , 73 Cal.App.4th at p. 1088.) “For Miranda purposes, interrogation is defined as any words or actio ns on the part of the police that the police should know are reasonably lik ely to elicit an incriminating response. [Citation.]” ( Mosley , supra , at p. 1089.) “Absent ‘custodial interrogation,’ Miranda simply does not come into play. [Citations.]” ( Mickey , supra , 54 Cal.3d at p. 648.) “Just as custodial interrogation can occur in the absence of express questioning [citation], not all questioning of a person in custody constitutes interr ogation under Miranda. [Citations.]” ( People v. Ray (1996) 13 Cal.4th 313, 338, italics added.) “In reviewing Miranda issues on appeal, we accept th e trial court’s resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported, but independently determine from un disputed facts and facts found by the trial court whether the challenged statement wa s legally obtained. [Citations.]” ( People v. Smith (2007) 40 Cal.4th 483, 502.) We apply federal standards in reviewing a6 defendant’s claim that a challenged st atement was obtained in violation of Miranda

. ( People v. Bradford (1997) 14 Cal.4th 1005, 1033.) “Statements obtained in violation of Miranda are not admissible to establish [the defendant’s] guilt.” ( People v. Boyer (1989) 48 Cal.3d 247, 271, overruled on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830 , fn. 1.) The erroneous admission of a statement obtained in violation of Miranda is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. ( Arizona v. Fulminante (1991) 499 U.S. 279, 309-310; People v. Cunningham (2001) 25 Cal.4th 926, 994.) Here, after Broaden attacked a correcti onal officer, he was placed in the holding cell in order to be examined for injuries. Thus, the first Cervantes factor does not apply. Further, although the cell was very small, Broaden was placed there in order to be examined by Nurse Ugboaja fo r injuries. Additionally, the holding cells were used to temporarily hold inmates for other reasons in addition to when they are being examined for injuries or when they are being unco operative. Thus, even though Broaden was handcuffed and in a small enclosure, there wa s nothing inherently coercive in Broaden being placed there temporarily in order to be medically examined. Moreover, Broaden was not confronted with any evidence agains t him and there was no additional pressure exerted to detain him. We also note that the nurse’s question to Broaden “... was not ‘inquisitorial,’ ‘intimidating,’ or ‘accusatory.’ [Citation.]” ( People v. Terry (1970) 2 Cal.3d 362, 383.) Accordingly, we conclude that Broaden’s statement to Nurse Ugboaja was not a result of a custodial interrogation. In any case, any error in admitting th e challenged statement did not prejudice Broaden. Correctional Officer Anaya corroborated Office r Mercado’s testimony that Broaden assaulted him when Mercado was ta king Broaden out of his cell and Broaden did not testify or provide any other evidence to contradict the officers’ testimony.7 Further, during his closing argu ment Broaden’s defense counsel conceded that Broaden shoved Officer Mercado and focused his argument on whether the prosecution had proven the attempte d murder charge. 5 Accordingly, we conclu de the court did not err when it denied Broaden’s motion to supp ress his statement to Nurse Ugboaja on Miranda grounds and, alternatively, that any error in doing so was harmless beyond a reasonable doubt. The Three Strikes Allegation Broaden contends the matter must be re manded for resentencing because the jury failed to make a true finding on the three strikes allegation. We disagree. After the jury returned a verdict, but prio r to the court having the verdict read into the record, the court stated: “... The record [will] reflect that I did have the oppor tunity to speak with counsel. “The finding on the charges appear to be in order. The jury did reach a finding on the prior convic tion as to the 667 (a) through (e) . Not on the (a). We’ll be able to put that on the record in a moment.” (Italics added.) The court then had the clerk read the verd icts on the substantive offenses into the record and the jury foreman wa s asked if that was the jury’s true and correct verdict. However, the court neglected to have the cl erk read the verdict on the three strikes

5 At one point defense counsel argued: “This is not an a ttempt[ed] murder. Attempt[ed] murder you don’t get much more serious than that.... [T]hat’s what he’s charged with here. This is an incredibly serious case. You don’t charge someone with attempt[ed] murder over a shove, and that’s what this case is . He’s no angel. I’m not going to tell you he’s an angel .... He’s not guilty of attemp t[ed] murder. This is not attempt[ed] murder.” At another point defense counsel stated: “ [W]e don’t convict people of serious crimes like attempted murder over a shove when that person is dealing with a mental crisis. They’re suicidal. [W]e don’t convict people of attempted murder for that .” (Italics added.)8 allegation to the jury or to have the jury or the jury foreman ack nowledge the verdict on that allegation. After the jurors were excused and had left the courtroom, the following colloquy occurred: “THE COURT: ¶ ... ¶ There’s one thing I pointed out to counsel at sidebar. There’s no problem with the verdict form itself except on the finding on the prior conviction, the jury did have a tr ue finding or found the defendant had suffered the prio r conviction under the strike , but did not make a finding as to the 667(a). “In light of the fact that ther e was a not guilty on the attempted murder, your thoughts, Mr. Foltz [defense counsel]? “MR. FOLTZ: Yes, Your honor. There’s -- that’s the only strike alleged. That’s the only thing to wh ich the 667(a) was relevant. The Court did ... so I don’t see any issues on that. “THE COURT: Mr. McKillop [the prosecutor]? “MR. McKILLOP: I agree. If th ere’s no serious felony or violent felony found [true], then there’ s no point of finding a 667(a). “THE COURT: All right. Very well. “That’s why I didn’t send them back to have a decision made on that. In light of the fact there was a not guilty on count 1, there appeared to be no harm, no foul.” (Italics added.) In response to a motion to augment the record to incl ude the verdict on the strike allegation, the court clerk responded that th ere were no other verdict forms than those already provided. A criminal defendant has the statutory righ t to have a jury determine the truth of an allegation that he suffered a prior felony conviction. (§§ 1025, 1158; People v. Wiley (1995) 9 Cal.4th 580, 589; People v. Vera (1997) 15 Cal.4th 269, 274.) “The right to have a jury determine the truth of a prior conviction allegation does not flow from the jury trial provision of article I, section 16 of the California Co nstitution or the Sixth9 Amendment of the United States Constitution. It is derived from statute. [Citation.]” ( People v. Vera , supra , at p. 277.) Here, it can be inferred from the court’s comments and the parties’ conduct that the jury foreman filled out and signed the verdict form stating that the jury found the three strikes allegation true. Thus, the record refutes Broaden’s contention that the jury did not find the three strikes allegation true. However, we are dismayed that the verdic t form on the three strikes allegation was lost and with the noncomplia nce with the procedures for receiving and recording a verdict, i.e., that the verdict was not read in open court, th e jury was not asked to affirm the verdict, and the verdict was not recorded . These errors would have been easily correctible if either attorn ey had objected or the court had noticed that the proper procedures were not being follo wed. Fortunately, prior to receiving the verdict on the substantive offenses, the court here announced that the jury had arrived at a finding on the prior strike allegation and after the jury was discharged the court and the attorneys acknowledged on the record that a true finding on this a llegation had been reached. Further, neither party raised an issue as to the validity of this finding. The Romero Motion On January 3, 2013, Broaden filed a Romero motion asking the court to strike his prior strike conviction. In his moving pa pers Broaden argued that his more recent offenses were fairly trivial in that they involved Broaden kicking a correctional officer once in the knee area in a manner that did not injure the officer and a struggle with a second officer that lasted only a few seconds and also did not result in any injuries to the officer. Defense counsel also argued that Broaden was under considerable mental distress when he committed th e underlying o ffenses. At Broaden’s sentencing hearing when th e court took up the matter of Broaden’s Romero motion, defense counsel noted that Broa den had “clearly expressed some mental10 health concerns regarding suicidal thou ghts” and submitted the matter on his moving
papers. After hearing the prosecutor’s comments, the court reviewed Broaden’s violent criminal history as detailed in his probation report and stated,
“... Then we have the crime here where he was convicted after jury trial of trying to push one guard over the railing on the s econd floor of the prison.
“There was another offense here where apparently a guard was kicked in the shin or something like th at while they were trying to get him out of the cell or a cage. I’m not nece ssarily concerned with that, as much as the one trying to push the guard over the rail. “Had he gone over, [he] would have certainly been severely injured, if not killed. “The other one, kicking the guard in the leg, not nearly as egregious as the former. “Showed a propensity for violence over the course of his life and also while in prison. Doesn’t seem to -- is making any progress working on that. “He is only 24 years old, but on the other hand at 24 he showed a great propensity for violence.
“On the other hand there were no w eapons used in the offenses. Mr. Broaden just used his body at that time. “But, nonetheless, it does appear to me that as discussed in the cases [ People v. ] Williams [ (1998) 17 Cal.4th 148] and Romero , in light of the nature of the circumstances of his pres ent felonies and his serious -- and his prior serious or violent convictions, hi s background, he does not seem to fall outside the scheme. “Therefore, the Court will decline to use its discretion to dismiss the strike prior.” Broaden contends that in ruling on his Romero motion the court relied on facts that were rejected by the jury when it reasoned that Broaden had tried to kill Correctional11 Officer Mercado. He further contends that the court overlooked substantial mitigating factors, i.e., that appellant had mental hea lth issues, he was exhibiting some of these issues when he committed the instant offenses, and the inst ant offenses were neither serious nor violent felonies. Thus, according to Broaden, th e court abused its discretion when it denied his Romero motion. We disagree. In deciding whether to strike a prior conviction, “the court in question must consider whether, in light of the nature a nd circumstances of [the defendant’s] present felonies and prior serious and/or violent fe lony convictions, and the particulars of his background, character, and prospects, the defe ndant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more seri ous and/or violent felonies.” ( People v. Williams , supra , 17 Cal.4th at p. 161.) The trial court’s decision is “subject to review for abuse of discretion. This standard is deferential.” ( People v. Williams , supra , 17 Cal.4th p. 162.) “In reviewing for abuse of discretion, we ar e guided by two fundamental prec epts. First, ‘“[t]he burden is on the party attacking the sentence to cl early show that the sentencing decision was irrational or arbitrary. [Citation.] In the ab sence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a par ticular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“deci sion will not be reversed merely because reasonable people might disagree. ‘An appe llate tribunal is neither authorized nor warranted in substituting its judgment for the j udgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitr ary that no reasonable person could agree with it.” ( People v. Carmony (2004) 33 Cal.4t h 367, 376-377.)12 Broaden’s probation report indicates th at he was only 23 years old when he committed the underlying offens es in this matter and that despite his young age he already had a serious criminal record. As a juvenile Broaden was adjudicated of robbery and some type of grand theft offense in 2002. In 2003 he was adjudi cated of assault with a deadly weapon or by mean s of force capable of producing great bodily injury and committed to the California Youth Authority fro m which he was paroled in 2008. As an adult, in 2010 Broaden was co nvicted by plea of assault w ith a deadly weapon and he admitted a great bodily injury enhancement. Broaden was se rving a prison sentence on this last offense when he committed th e underlying offenses in this matter. Additionally, the court found that in committing the assau lt offense against Correctional Officer Mercado, Broaden attemp ted to push the officer over the guardrail and had he succeeded he woul d have severely injured or killed the officer. These circumstances support the court’s denial of Broaden’s Romero motion because, as stated by the court, Broaden had show n “a propensity for violence over the course of his life and also while in prison” a nd he had not made any progress in controlling his violent behavior. Moreover, there is no merit to Broaden’ s contention that the court impermissibly considered facts that were rejected by the ju ry. “California law affords the trial court broad discretion to consider relevant evidence at sentencing. ‘[T]he court may consider the record in the case, the probation office r’s report, other reports including reports received pursuant to section 12 03.3 and statements in aggrav ation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing.’ [Citation.] The trial court may consider any ‘criteria r easonably related to the decision being made.’ [Citation.] The court specifically is authoriz ed to consider ‘the record in the case.’ [Citation.] Nothing in the app licable statute or rules sugges ts that a trial court must13 ignore evidence related to th e offense of which the defendant was convicted, merely because that evidence did not convince a jury that the de fendant was guilty beyond a reasonable doubt of related offenses.” ( People v. Towne (2008) 44 Cal.4th 63, 85-86, fn. omitted, see also In re Coley (2012) 55 Cal.4th 524, 5 54 [“a jury verdict acquitting a defendant of a charged offense does not constitute a finding that the defendant is factually innocent of the offense or estab lish that any or all of the sp ecific elements of the offense are not true”].) Thus, the jury’s acquittal of Broaden on the attempted murder charge did not preclude the court from finding that Broa den attempted to force Correctional Officer Mercado over the rail during their struggle and from considering this fact in its decision denying Broaden’s Romero motion. Further, the record does not suppor t Broaden’s contention that the court overlooked his mental health issues in ru ling on his motion. After an issue arose regarding Broaden’s competency to stand tria l, the court suspended criminal proceedings and eventually ordered Dr. Gary Longwith to perform a psychological evaluation of Broaden, which he performed on September 18, 2012. In his evaluation Dr. Longwith noted that Broaden reported attempting to co mmit suicide in Februa ry 2012. He also diagnosed Broaden with de pression NOS and antisocial personality disorder but nevertheless opined that he was competent to stand trial. On October 2, 2012, the court relied on Dr. Longwith’s report to find Broaden competent to stand trial and to reinstate criminal proceedings. 6 Additionally, the court was awar e from the evidence presented at trial that Broaden’s assault of Officer Mer cado occurred while Broa den was suicidal and in the Romero motion’s points and authorities and at Broaden’s sentencing hearing

6 Dr. Longwith also concluded that Broade n had the potential to be quite dangerous because of his mental health issues and because he met the criteria for antisocial personality disorder.14 defense counsel argued this as a mitigating circumstance. Thus, we conclude that the court did not abuse its discretion when it denied Broaden’s Romero motion.
DISPOSITION The judgment is affirmed.