Filed 2/20/14 P. v. Williams CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts a nd 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,

v.
JOSHUA CLIFFORD WILLIAMS,
Defendant and Appellant. B244563
(Los Angeles County Super. Ct. No. KA096709)

APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs and Steven D. Blades, J udges. Reversed with directions. Michael Allen, 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, Lance E. Winters, Senior Assistan t Attorney General, Victoria B. Wilson, Supervising Deputy Attorney Ge neral, and Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.

_________________________________2 Defendant Joshua Clifford Williams a ppeals from the judgment entered following a jury trial in which he was convicted of evad ing a peace officer by driving in a willful or wanton disregard for the safety of persons or property in viola tion of Vehicle Code section 2800.2, subdivision (a). Defendant contends the trial court impr operly denied his motion to exclude his statements to a California Highway Patrol (CHP) officer as obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602] ( Miranda ). We conclude the trial court erred by denying the motion to exclude defendant’s first statement, which was the product of custodial interrogation without a Miranda advisement. With respect to defendant ’s second statement, which followed a Miranda advisement but was made soon after the origin al statement, at the same location, and under questioning by the same officer, the trial court did not address or apply Missouri v.
Seibert (2004) 542 U.S. 600 [124 S.Ct. 2601] ( Seibert ), and did not consider or make any of the findings required under Seibert . The record is inadequate for this court to make such findings, were we so inclined. We are thus unable to determine whether defendant’s second statement was properly admitted and th erefore conditionally reverse the judgment and remand for a new hearing on defendant’s motion to exclude his second statement. Defendant also requests that we review in camera proceedings the trial court conducted after granting his motion for peace officer discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ). After reviewing the record, we
conclude the trial court did not err in relation to that motion.
BACKGROUND About 11:00 p.m. on January 13, 2012, CHP Sergeant Tannon Brown saw a Chrysler and a BMW driving alongside one a nother on the 60 Freeway near the City of Industry. Brown paced the vehicles for about three-quarters of a mile and determined that both vehicles were going about 98 miles per hour. Brown turned on his patrol car’s siren and flashing red, blue, and yellow li ghts, caught up to the speeding cars, and straddled the lanes so his car was partially be hind each of them. Both cars slowed to3 about 65 miles per hour, but they did not move toward the right. Using his patrol car’s loudspeaker, Brown repeatedly to ld the drivers of the two ca rs to exit at the next offramp. The Chrysler moved toward the ri ght and slowed, but the BMW continued to drive in the second lane at the same spee d. Brown moved behind the BMW and turned the siren back on. The BMW began to move toward the right side of the freeway. Brown dropped back behind the Chrysler and, using the loudspeaker, directed the driver of the Chrysler to accelerate to catch up to the BMW. As the distance between Brown’s car and the BMW increased, the BMW accelerated and drove away. Brown chased the BMW at a distance, saw it exit the freeway at about 120 miles per hour, and followed it. After it left the freeway, the BMW traveled through a residential area at speeds between 75 and 100 miles per hour. It also ran a stop sign. Brown pursued the BMW to a cul-de-s ac, where it had stopped before Brown arrived. Brown and his partner approached the BMW with their guns drawn. Brown ordered defendant, who was in the driver’s seat of the BMW, to get out of the car with his hands up. Brown searched defendant fo r weapons and asked de fendant what he was thinking. Defendant replied, “‘I wasn’t. I was scared. I already got two tickets and I can’t get another ticket.’” Brown arrested defendant, handcuffed him, and placed him in the backseat of the CHP patrol car. Brown read defendant his Miranda rights and defendant said he understood his rights. Brown asked defendant why he “ran from” Brown. Defendant reiterated that he was scared, he had two prior tickets, and he could not get another ticket.
Defendant also said he was not sure whet her Brown was pulling over defendant’s car or the Chrysler, so he continued driving, but started to pull over when Brown pulled in directly behind him. Defendant stated he knew that it was a CHP car behind him and knew he was supposed to pull to the side when he saw red lights from an emergency
vehicle behind him. After Brown stated th at defendant had exited the freeway at over 100 miles an hour, he asked defendant how fast he was going when he exited the freeway. Defendant said, “‘I don’t know. A hundred.’” Upon further questioning,4 defendant said he thought he was going 80 or 90 miles per hour down the street with the stop sign and that he drove into the cul-de-sac “‘to hide’” from Brown.
Defendant’s friend Ebimobowei Dick testif ied that he was defendant’s front-seat passenger when defendant was arrested fo r the charged offense. The people in defendant’s car and the people in the Chrysler were on their way to a club together. A “police” car got behind the Chrysler and defe ndant pulled to the right, but the police car “slowed all the way down” and remained behi nd the Chrysler. Dick testified, “[W]e didn’t know who he was pulling over. So we tried to pull over and he didn’t pull over with us. And . . . we just continued to driv e like we didn’t get pulled over.” Dick did not hear any announcement over a loudspeaker by the police officer. Defendant drove on, but they wanted to see if thei r companions in the Chrysler we re okay, so they got off the freeway, intending to get back on going the oppos ite direction. Dick did not know that the police car was pursing them and defendant said nothing about trying to get away from the officer. Defendant made a wrong turn and the police car came upon them “out of nowhere” in the cul-de-sac. Dick thought de fendant was driving about 35 miles per hour when he got off the freeway. The jury convicted defendant of evading a peace officer in violation of Vehicle Code section 2800.2, subdivisi on (a). Defendant admitted tw o allegations that he had served prior prison terms within the scope of Penal Code secti on 667.5, subdivision (b). 1
The trial court sentenced defendant to an aggregate term of four years in prison.
DISCUSSION
1. Denial of defendant’s Miranda motion Before trial, defendant sought to excl ude both the statement he made to Brown before Brown advised him of his rights pursuant to Miranda and the statements he made
after Brown read him the Miranda advisement. Judge Marrs conducted an evidentiary hearing, then denied the motion.

1 Undesignated statutory references are to the Penal Code.5 Defendant contends the trial court erre d by denying his motion because his initial
statement was made without Miranda warnings and in response to custodial interrogation, and his subs equent postwarning statement was tainted by the initial
Miranda violation. a. Evidence presented at hearing on Miranda motion
Brown testified that he observed defendant speeding on the freeway, then detained
him on Fernfield Drive in Montebello. Br own and his partner, Jeff Beam, approached defendant’s car with their guns drawn. It was “a high-risk felony stop.” Brown ordered defendant to get out of his car and to put his hands on the hood of the CHP car. While defendant was standing next to the front fender of the CHP car, Brown asked him, “‘What were you thinking?’” De fendant replied, “I wasn’t. I was scared. I already got two tickets. I can’t get another one.’” De fendant was not yet in handcuffs, and Brown and Beam were the only two officers pres ent. Brown’s ques tion and defendant’s response occurred “immediately after” defenda nt got out of the BMW. Brown then handcuffed defendant, placed him in the backse at of the CHP car, and went to speak to the passengers in the BMW. “[W]ithin just a couple of minutes,” Brown returned to the patrol car and advised defendant of his Miranda rights. Defendant said he understood his rights and Brown questioned defe ndant for about five minutes. Neither officer displayed a weapon to defendant or made physical cont act with defendant dur ing this questioning. Brown testified that his patrol car was equipped with a video camera and microphones inside and outside the car, but he had reviewed the recording and the exterior microphones were not working. The recording thus had not captured
defendant’s unwarned admissions outside the car. Because Brown turned the recording system off after he spoke to the BMW’ s passengers, defendant’s admissions after receiving Miranda warnings were not recorded eith er. The trial court reviewed the recording during the evidentiary hearing.
Defendant testified that Brown aimed a gun at him as he got out of his car and complied with Brown’s order to stand next to the patrol car. Brown immediately6 handcuffed defendant and made him sit in the back of the patrol car and closed the car door next to defendant. Brown opened a door on the opposite side of the car and asked defendant what he was thinking and a few other questions without having advised him pursuant to Miranda . Brown went to talk to the passenge rs in the BMW, th en returned to the patrol car and asked defendant additi onal questions. Defendant did not answer Brown’s questions. Brown then read defendant his Miranda rights. Defendant told Brown he understood his rights. Brown as ked defendant what he was thinking and
defendant said he was not thi nking. Defendant testified he also told Brown that he had
not run from Brown because Brown was not behind him. The trial court initially seemed to not e that the critical issue was whether defendant was in custody at the time of the unwarned statement, but the court did not make a finding on this issue. Instead, it switched its focus to whether interrogation occurred. The court stated, “The cases all se em to come down to the key being the police officer’s subjective intent, and actions not taken to elicit a specific incriminating statement would not qualify as an interrogation. ‘What were you thinking’ is equivocal. Could have been either one. The totality of the circumstances as testified to by both the defendant and the officer, what thinking? His response was, I didn’t do anything— ‘didn’t do nothing,’ to quote the defendant accur ately, that comes down to the question of credibility for the jury. And no questions were asked to follow up on ‘I didn’t do nothing’ to the officer at the front fender of the car. And the second time was after
Miranda . [¶] I’m not going to find a Miranda violation of the facts of our case. Under a preponderance of the evidence, the statement I think was voluntary.” b. Defendant’s factual concession on appeal Notwithstanding defendant’s testimony at the evidentiary hearing, defendant conceded in his reply brief that collectiv ely the video and testimony at the hearing
established that defendant was outside of th e patrol car when Brown asked him what he had been thinking and Brown di d not put him inside the patrol car for four and one-half minutes after defendant got out of the BMW.7 c. Legal principles applicable to police interrogation (1) Miranda warnings are required prio r to custodial interrogation
In Miranda , supra , 384 U.S. 436, the United States Supreme Court held that a person questioned by the police after being “tak en into custody or otherwise deprived of his freedom of action in any significant way” mu st first “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, either retained or appointed.” ( Id. at p. 444.) Statements obtained in violation of th is rule may not be used to establish guilt. ( Ibid .) “Custody” in the Miranda context includes both actua l custody and any situation in which a person’s “freedom of action is curt ailed to a ‘degree asso ciated with formal arrest.’” ( Berkemer v. McCarty (1984) 468 U.S. 420, 440 [104 S.Ct. 3138] ( Berkemer ).) In making this determination, a court mu st examine the totality of circumstances— excluding from consideration the officers’ s ubjective views, beliefs, or knowledge, unless communicated to the suspec t—to determine whether a reasonable person in the defendant’s position would ha ve experienced a restraint on freedom of movement tantamount to a formal arrest. ( People v. Pilster (2006) 138 Cal.App.4th 1395, 1403; Stansbury v. California (1994) 511 U.S. 318, 324 [114 S.Ct . 1526].) No single factor is dispositive, but the following factors are releva nt: the purpose, place, and length of the questioning; the ratio of officers to suspects ; the officer’s demeanor; restrictions upon the defendant’s freedom of movement; the nature of questioning; the defendant’s agreement to be interviewed; advisement that the de fendant could terminate the questioning; police
domination and control of the questioning; whether police informed the defendant he or she was considered a witness or a suspect; a nd whether the defendant was arrested at the end of the interview. ( Pilster , at pp. 1403–1404.) Generally, an ordinary traffic stop doe s not create custody for purposes of
Miranda , even though the stop temporarily curtails the freedom of action of the driver and any passengers. ( Berkemer , supra , 468 U.S. at pp. 437–439.) This is because8 “detention of a motorist pursuant to a traffi c stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s li ght flashing behind him, are that he will be obliged to spend a short period of time answ ering questions and waiting while the officer checks his license and registration, that he ma y then be given a citation, but that in the end he most likely will be allowed to continue on his way.” ( Id. at p. 437.) In addition, “circumstances associated with the typical tra ffic stop are not such that the motorist feels completely at the mercy of the police” becaus e these stops take place in public view and “the atmosphere surrounding an ordinary tr affic stop is substantially less ‘police dominated’ than that surrounding the ki nds of interrogation at issue in Miranda itself.” ( Berkemer , at pp. 438–439.) Nonetheless, “[i]f a motorist who has been detained pursuant to a traffic stop thereafter is subjecte d to treatment that renders him ‘in custody’ for practical purposes, he will be entitled to the full panoply of protections prescribed by
Miranda .” ( Berkemer , at p. 440.) “Interrogation” refers to both express que stioning and to any words or actions that the police should know are reasonably likely to elicit an incriminating response from the suspect. ( People v. Mickey (1991) 54 Cal.3d 612, 648 ( Mickey ).)
The determination of whether defendant wa s subjected to custodial interrogation is a mixed question of law and fact , predominantly factual. ( Mickey , supra , 54 Cal.3d at p. 649.) (2) Standard of review regar ding custodial interrogation We review independently whether a challenged statement was obtained in
violation of Miranda . ( People v. Bradford (1997) 14 Cal.4th 1005, 1032–1033 ( Bradford )

. ) In doing so, we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility , if supported by substantial evidence. ( Id. at p. 1033.) With respect to conflicting evidence, “‘we must accept that version of events which is most favorable to the People, to th e extent that it is supported by the record.’” ( People v. Lewis (2001) 26 Cal.4th 334, 383–384.)9 (3) Effect of “midstream” Miranda warning Two United States Supreme Court cases have addressed the admissibility of a
statement obtained after a Miranda warning but preceded by a prior unwarned incriminating statement, also known as a “midstream” warning or advisement. The general rule is that establishe d by the older of these two cases, Oregon v. Elstad (1985) 470 U.S. 298 [105 S.Ct. 1285] ( Elstad ).
In Elstad , a suspect made brief, unwarned, in criminating statements to a police
officer at his home and was then taken to a police station, where he was advised pursuant

to Miranda , questioned at length, and gave a more complete confession about 30 minutes after making his original inculpatory comments. ( Elstad , supra , 470 U.S. at pp. 301– 302.) The court reasoned that, “absent delib erately coercive or improper tactics in obtaining the initial statement, the mere fa ct that a suspect has made an unwarned admission does not warrant a presumption of compulsion” with respect to a later
statement obtained after a Miranda advisement. ( Elstad , at p. 314.) Accordingly, the court held, “[T]here is no warrant for pres uming coercive effect where the suspect’s initial inculpatory statement, t hough technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, th e second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the
voluntariness of his statements. The fact th at a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of
Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumst ances of this case by barring use of the
unwarned statement in the case in chief. No further purpose is served by imputing ‘taint’ to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoe rcive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” ( Elstad , at p. 318, fn. omitted.)10 The second Supreme Court case to address “midstream” warnings was Siebert , supra , 542 U.S. 600. In Siebert , the Supreme Court established a limited exception to
Elstad , applicable to cases where police indulge in a “question first and warn later” policy. Seibert involved an admittedly deliberat e police policy of withholding a Miranda advisement until a suspect had conf essed, then advising pursuant to Miranda , then repeating the questioning until the susp ect reiterated her confession. ( Seibert , at pp. 605– 606.) In the course of the postadvisement interrogation in Seibert , the detective repeatedly referred to the defendant’s preadvisement statements. ( Id. at p. 605.)
Seibert produced no majority opinion, although fi ve justices agreed that Seibert’s postadvisement statement was inadmissible. The plurality opinion, written by Justice Souter, viewed “[t]he threshold issue when in terrogators question first and warn later” as
“whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talk ing even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, ther e is no practical justification for accepting the formal warnings as compliance with Miranda , or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.” ( Seibert , supra , 542 U.S. at pp. 611–612.) The plurality identif ied “a series of relevant facts that
bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and de tail of the questions and answers in the first round of interrogation, the overlapping c ontent of the two statements, the timing and setting of the first and the second, the conti nuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” ( Seibert , at p. 615.) Justice Kennedy concurred in the judgment and much of the plurality opinion, but wrote a separate concurring opini on. He disagreed with the plurality as to the application11 of its “effectiveness” test: “The plurality concludes that whenever a two-stage interview occurs, admissibility of the postwarning st atement should depend on ‘whether [the]
Miranda warnings delivered midstream could ha ve been effective enough to accomplish their object’ given the specific facts of the cas e. [Citation.] This test envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interroga tions. [Citation.] In my view, this test cuts too broadly.” ( Seibert , supra , 542 U.S. at pp. 621–622.) Justice Kennedy would instead “apply a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation te chnique was used in a calculated way to
undermine the Miranda warning. [¶] The admissibility of postwarning statements should continue to be govern ed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate tw o-step strategy has been used, postwarning
statements that are related to the substanc e of prewarning statements must be excluded
unless curative measures are taken before th e postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two c ontexts and appreciate that the interrogation has taken a new turn. [Citation.] Alternativel y, an additional warning that explains the likely inadmissibility of the prewarning cust odial statement may be sufficient. No curative steps were taken in this case, however, so the postwarning statements are inadmissible and the conviction cannot stand.” ( Seibert , supra , 542 U.S. at p. 622.) “When a fragmented Court decides a cas e and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concu rred in the judgments on the narrowest grounds.’” ( Marks v. United States (1977) 430 U.S. 188, 193 [97 S.Ct. 990].) In the
context of Seibert , Justice Kennedy’s opinion pres ents the narrowest ground of12 concurrence. ( People v. Camino (2010) 188 Cal.App.4th 1359, 1370 ( Camino ); People
v. Rios (2009) 179 Cal.App.4th 491, 505; U.S. v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157–1158 ( Williams ) and cases cited therein.) Therefore, Seibert applies only where police deliberately applied a two-step interrogation te chnique in which they “question first and warn later” after obtaining an incriminating statement; otherwise, Elstad applies. ( Williams , at p. 1158.) Justice Kennedy’s opinion did not suggest a standard for determining whether police had deliberately employed a two-step in terrogation strategy, but the Ninth Circuit
in Williams synthesized matters cited in Jus tice Souter’s plurality opinion in Seibert , supra , 542 U.S. at pages 615–616, to hold, “Consistent with our sister circuits, . . . that in determining whether the interroga tor deliberately withheld the Miranda warning, courts should consider whether objective evidence a nd any available subjective evidence, such as an officer’s testimony, support an inferenc e that the two-step interrogation procedure
was used to undermine the Miranda warning. [Citations.] Such objective evidence would include the timing, setting and comple teness of the prewarning interrogation, the continuity of police personnel and the overl apping content of the pre- and postwarning statements.” ( Williams , supra , 435 F.3d at pp. 1158–1159, fn. omitted.) If a court assessing the admissibility of a statement obtained after a midstream
Miranda advisement determines that the polic e did not deliberately employ a two-step interrogation strategy, Elstad applies. ( Seibert , supra , 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) If, however, the court concludes that police deliberately used a two-step interrogation strategy, the court must move on to assess whether the midstream Miranda advisement was effective to “advise the suspec t that he had a real choice about giving an admissible statement at that juncture” and “reasonably convey that he could choose to stop talking even if he had talked earlier.” ( Seibert , supra , 542 U.S. at pp. 611–612, 615 (plur. opn. of Souter, J.); id. at p. 622 (conc. opn. of Kennedy, J.); Williams , supra , 435 F.3d at p. 1160.)13 In determining the effectiveness of a midstream advisement, the court should consider both the factors identified in the plurality opinion ( Seibert , supra , 542 U.S. at p. 615 (plur. opn. of Souter, J.)) and any “c urative measures [] taken before the postwarning statement” as specif ied by Justice Kennedy’s opinion ( id. at p. 622 (conc. opn. of Kennedy, J.)). As succinctly summarized by Williams , the court should consider “(1) the completeness and detail of the pr ewarning interrogation, (2) the overlapping content of the two rounds of interrogation, (3) the timing and circumstances of both interrogations, (4) the continuity of polic e personnel, (5) the extent to which the interrogator’s questions treated the second r ound of interrogation as continuous with the first and (6) whether any curative measures were taken.” ( Williams , supra , 435 F.3d at p. 1160.) In assessing the effectiveness of a midstream Miranda advisement, a trial court should also keep in mind that “[b]y any objec tive measure . . . it is likely that if the interrogators employ the technique of w ithholding warnings until after interrogation succeeds in eliciting a confession, the warni ngs will be ineffective in preparing the suspect for successive interrogation, close in tim e and similar in content. After all, the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its dupli cate, with trifling additional trouble.” ( Seibert , supra , 542 U.S. at p. 613 (plur. opn. of Souter, J.).) Neither the plurality opinion nor Justice Kennedy’s opinion in Seibert addressed the burden of proof applicable to the determin ations of deliberateness and effectiveness. Because the prosecution bears the burden of demonstrating the admissibility of a confession ( Brown v. Illinois (1975) 422 U.S. 590, 604 [95 S.Ct. 2254]) and must prove
the defendant’s Miranda waiver and the voluntariness of the confession by a preponderance of the evidence ( Seibert , supra , 542 U.S. at p. 608, fn. 1 (plur. opn. of Souter, J.), we necessarily conclude that the prosecution bears the burden of proof14 regarding these two matters, and that the sta ndard is a preponderance of the evidence. Several federal appellate courts have reached the same conclusion with respect to the deliberateness issue. (See, e.g., U.S. v. Capers (2d Cir. 2010) 627 F.3d 470, 479–480;
U.S. v. Stewart (7th Cir. 2008) 536 F.3d 714, 719; U.S. v. Ollie (8th Cir. 2006) 442 F.3d 1135, 1142–1143.) (4) Standard of review regarding midstream Miranda warning Justice Kennedy’s opinion also did not addr ess the standard of review applicable
to the determinations of deliber ateness or effectiveness. In Camino , supra , 188 Cal.App.4th at page 1372, the court held that a trial court’s determination of deliberateness should be deferentially review ed under the substantial evidence standard. For reasons addressed later in this part of the opinion, we need not determine the appropriate standard of review at this time.
d. The trial court erred by denying defend ant’s motion with respect to his
unwarned statement (1) Defendant was in custody The totality of circumstances, includi ng those established by the audio-video recording introduced at the ev identiary hearing, demonstrated that this was not the “ordinary traffic stop” described in Berkemer . The recording showed that Brown’s patrol car, with its flashing lights and siren ac tivated, was behind both the BMW and the Chrysler. Brown repeatedly to ld the cars to pull to the s houlder. The Chrysler quickly complied, but the defendant’s car did not. Defendant then led Brown on a high-speed chase, on and off the freeway, during whic h defendant ran a stop sign. Brown had
observed the driver of the BMW commit a vi olation of Vehicle Code section 2800.2, fleeing or attempting to elude a pursuing peac e officer by driving in a willful or wanton disregard for the safety of persons or prope rty, which is an offense punishable as a misdemeanor or a felony, not a mere traffi c infraction. Brown therefore had probable
cause to arrest defendant.15 Once Brown caught up to the BMW in the cul-de-sac, he knew that defendant was the person who committed that offense and he tr eated the situation as “a high-risk felony stop.” Brown parked his patrol car perpendi cular to the BMW, hampering its ability to drive away. Both Brown and his partner em erged from the patrol car with their guns aimed at the people in defendant’s car. Brown appears in the video to have been pointing his gun at defendant. Brown orde red defendant to keep his hands in the air and to get out of the car. As defendant repeatedly atte mpted to reach toward the door handle Brown repeatedly told him to keep hi s hands in the air, then repeatedly ordered him to get out of the car. All the while, Brown pointed his gun toward defendant. When defendant finally managed to open his car door while keeping hi s hands in the air, Brown ordered him to approach the patrol car and put his hands on the hood. By doing so, Brown isolated defendant from his passengers and thereby de prived him of the psychological comfort that their presence might have provided to de fendant. Brown then ordered defendant to put his hands on the hood of the patrol car. Meanwhile, Brown’s partner kept his gun drawn and pointed at the passengers in the BMW. Under the circumstances, a reasonable pe rson in defendant’s position at the time Brown questioned defendant outsi de the car would not have e xpected his detention to be merely temporary and brief, followed by a cita tion and release. He instead would have expected to be arrested for the offense that he had committe d in the officers’ presence
and that had caused the officers to order him out of his car at gunpoint. “[T]he display of a weapon by police officers plainly conveys to a reasonable citizen the message that he is not free to leave; i.e., that his freedom of action is dramatically curtailed.” ( People v. Taylor (1986) 178 Cal.App.3d 217, 229.) Notably, the outcome of this encounter wa s an actual arrest, not the mere citation and release anticipated during most tra ffic stops. Although the stop was on a public street and only two officers participated, the circumstances as a whole created a far more coercive and threatening encounter than that entailed in a normal traffic stop. Nothing in16 the record indicates that Brown told defenda nt he was free to leave, that he could terminate questioning, or that he was not under arrest or about to be arrested. Accordingly, we conclude that a reas onable person in defe ndant’s position would interpret the restraint on his freedom of moveme nt as tantamount to a formal arrest. This constituted custody for the purpos e of determining whether a Miranda advisement was required. (2) Brown interrogated defendant In the trial court and on appeal, the par ties recognized that the only real issue was whether defendant was in custody at the tim e of the questioning. Neither party has argued that the question did not constitute interrogation. Although Brown theoretically could have intended “what were you thinking” as a rhetorical exclamation, he specifically testified that he “ asked ” defendant this question. In addition, time had passed between the hi gh-speed chase and the questioning as Brown followed defendant to the cul-de-sac, got out of the patrol car, repeatedly ordered defendant to get out of his car, and directed defendant to approach the patrol car. In addition, Brown asked defendant the same question both before a nd after advising him pursuant to Miranda

. Under the circumstances, “what were you thinking” cannot be viewed as anything other than a question intended to elicit a re sponse. Brown either knew or should have known that the question was reasonably likely to elicit an incriminating response, such as
an admission of one or more elements of the offense of evading an officer or a statement explaining a motive for such evading, perhap s a motive that revealed other grounds for arrest, such as an outstanding warrant or th e presence of contraband in the car. “[N]o
fine distinction can be made as to the office r’s intention when a suspect is subjected to express questioning. ” ( People v. Turner (1984) 37 Cal.3d 302, 318, overruled on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1149.) Accordingly, because defendant’s first statement was obtained in violation of
Miranda , the trial court erred by denying defendant ’s motion to exclude it. If, however,17 defendant’s second, post- Miranda statement was properly admitted, the admission of the
unwarned statement at trial would have been harmless beyond a reasonable doubt
because the second statement included the sa me response to Brown’s same question, “What were you thinking?” ( People v. Sims (1993) 5 Cal.4th 405, 447.) Accordingly, we assess the trial cour t’s ruling admitting the second statement. e. Reversal is required because the trial court failed to apply Seibert It appears that neither the parties nor the trial court considered the applicability of
Seibert . The trial court failed to make a ny of the requisite findings regarding
deliberateness or effectiveness. We cannot determine from the record either that Brown did not deliberately employ a two-step inte rrogation strategy or that the midstream
Miranda advisement was effective to convey to defendant “that he had a real choice about giving an admissible statement at that juncture” and “that he could choose to stop talking” even though he had made earlier admi ssions to Brown. Accordingly, we cannot be certain that defendant’s postadvisement st atement was properly admitted at his trial.
Nor can we conclude that the admission of both of defendant’s statements was harmless beyond a reasonable doubt. Notably, th e Attorney General, who has the burden of proving beyond a reasonable doubt that the error did not contribute to the verdict ( Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct . 824]), does not argue that any error in admitting defendant’s postadvisement statement was harmless. Defendant’s
statements established that he knew Brown was attempting to stop his car, not just the Chrysler. Given that Brown was chasing two cars and there was no evidence that defendant heard Brown’s public address a nnouncements, jurors may have harbored a reasonable doubt whether defendant mistakenly believed, as his passenger testified, that Brown was not attempting to stop the BMW. Under the circumstances, we cannot dete rmine whether the trial court committed prejudicial error by denying defendant’s moti on to exclude his second statement. We therefore conditionally reverse the judgment a nd direct the trial court to conduct a new hearing on defendant’s motion to exclude his second statement to Brown as obtained in18 violation of Miranda . If the court concludes the s econd statement should have been
excluded under Seibert , as addressed in this opinion, it will order a new trial at which
neither of defendant’s statements to Brown may be admitted in the prosecution’s case-inchief. If the court concludes the second statement is admissible under Seibert , the judgment will be reinstated and defendant may again challenge the ruling on the motion on appeal, if he wishes.
2. Review of in camera Pitchess proceedings Defendant filed a motion seeking discove ry of identifying information regarding everyone who filed a complaint or was inte rviewed in connection with any complaint against Brown and his partner Beam allegi ng excessive force; aggressive behavior; violence; bias; coercive conduct; fabrication of evidence, probable cause, or charges; false arrest; perjury; illegal search or seiz ure; dishonesty; writing false or misleading reports; planting evidence; “or other ev idence of misconduct amounting to moral turpitude.” Judge Blades granted the moti on with respect to “acts of dishonesty, falsifying reports, perjury, anyt hing of that nature” by Brown. The court conducted an in camera review of complaints produced by the cu stodian of records for the CHP. It found no relevant complaints against Brown. Defendant requests that this court review the record of the in camera proceedings
to determine whether the trial court ordered disclosure of all responsive material. We have done so and determine that the trial court made a proper record ( People v. Mooc (2001) 26 Cal.4th 1216, 1229) and properly exercised its discretion ( People v. Jackson (1996) 13 Cal.4th 1164, 1220). There were no co mplaints or adverse actions, of either internal or external origin, in Brown’ s file and therefore nothing to disclose.
DISPOSITION The judgment is reversed and the cau se is remanded for a new hearing on
defendant’s motion to exclude his second statem ent to Brown. If the court concludes the
second statement should have been excluded under Missouri v. Seibert (2004) 542 U.S. 600 [124 S.Ct. 2601], as addressed in this opinion, then a new trial is to be ordered and19 neither of defendant’s statements to Brown may be admitted in the prosecution’s case-inchief. If the court concludes the second statement is admissible under Seibert , the judgment is reinstated.
NOT TO BE PUBLISHED.

MILLER, J. *
We concur:

CHANEY, Acting P. J.

JOHNSON, J.

* Judge of the Los Angeles Superior Cour t, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.