Filed 8/17/22 P. v. Jones CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v. MICHAEL EUGENE JONES,

De fendant and Appellant. D079192

(Super. Ct. No. SCE398802)

APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. A ffirmed as modified

. Justin Andrew Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters , Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
Mich ael Eugene Jones appeals his conviction for driving under the influence (DUI) of alcohol causing injury (Veh. Code, § 23153, subd. (a)), driving with a measurable blood alcohol level of 0.08 percent or more causing2

injury ( id ., § 23153, subd. (b)), and dri ving with a suspended license ( id ., § 14601.1, subd. (a)). Jones argues (1) the trial court erred in finding he was not subject to custodial interrogation under Miranda v. Arizona (1966)
384 U.S. 436 ( Miranda ) when he made incriminating statements about h is alcohol consumption during a DUI evaluation; and (2) any portion of the criminal justice administration fee the trial court imposed that was unpaid as of July 1, 2021, should be vacated. We agree with the parties that any portion of the criminal justi ce administration fee that remained unpaid as of July 1, 2021 , should be
vacated

. As for Jo nes’s statements , we conclude it is unnecessary to
determine whether there was a Miranda violation because any error would
be harmless beyond a reasonable doubt . W e therefore affirm the judgment as modified

. FACTUAL AND PROCEDURAL SUMMARY A. The Collision On the evening of December 22, 2019, Jones was driving on a highway
in El Cajon and struck the back of G. S.’s car , causing it t o run into a cement divider

. Accordin g to witness testimony , shortly before the collision , Jones was driving over 100 miles per hour and weaving in and out of traffic

. A t one point, Jones also leaned his torso out of the driver’s side window and looked
backward. After the crash, G. S. exite d his car on the left shoulder and crossed the highway because he feared his vehicle might be on fire. Jones also stopped
on the shoulder and began taking items out of his car and crossing the multi

lane highway. When California Highway Patrol (CHP) Offi cer Luke Murillo responded to the collision, he approached Jones on the highway’s left shoulder and asked him for identification. Officer Murillo also observed that3

Jones had red, watery eyes, slurred speech, an unsteady gait, and the smell of alcohol on his breath. Officer Murillo was concerned for their safety while standing near the
center median and told Jones they needed to move across the highway to the right shoulder. Officer Murillo also told Jones that he was not under arrest, but handcuff

ed Jo nes and place d him in the back of his patrol car. Once Officer Murillo drove them to the opposite side of the highway, he took Jones out of the patrol car, removed the handcuffs, and again informed Jones that
he was not under arrest. Officer Murillo esti mated that Jones was handcuffed in his patrol car for less than 10 minutes. At this point , another officer had arrived on scene

. Officer Murillo continued his investigation of the collision and suspected DUI. As part of his DUI investigation , Officer M urillo asked Jones whether he had any alcohol before driving. Jones responded that he had a 32

- ounce beer and a shot of brandy. During a horizontal gaze nystagmus test in which Officer Murillo had Jones watch the tip of his finger, each of Jones’s eyes e xhibited all three signs associated with that test indicat ing intoxication. 1 Officer Murillo did not advise Jones of his Miranda rights before conducting the DUI investigation. Officer Murillo then arrested Jones and brought him to a nearby CHP office, wh ere his blood was drawn for blood alcohol concentration (BAC)

1 Officer Murillo testified that when he administers this test, he looks for “involuntary jerking of the eye,” which he identified as “nystagmus.” He explained that the indicators of intoxication from that test include each of the following three signs, which are checked in both eyes : (1) lack of smooth pursuit when the subject’s eyes are following the officer’s fingerti p; (2) nystagmus at maximum deviation, or when the fingertip is at the far outside corners; and (3) nystagmus onset prior to 45 degrees when the fingertip is moved outward from the center of the subject’s nose.4

testing. The tested sample revealed a blood alcohol level of 0 .14 percent

. A
criminalist with the San Diego Sheriff’s Crime Lab opined that , at the time of driving, Jones had a BAC between 0.1 2 and 0. 20 percent

. At the time of driving, Jones was impaired for the purpose of driving and his blood alcohol
level was above 0 .08 percent

. B. Motion to Exclude Statements Before his trial in April 2021, Jones moved to exclude his statements during the DU I investigation on the basis that Officer Murillo did not advise him of his Miranda rights . After conducting a hearing in which Officer Murillo testified as summarized a nt e , the trial court denied Jones’s motion.
The court found that although Jones was h andcuffed and placed in a patrol car “temporarily” for up to 10 minutes, under the “totality of the circumstances” his detention was not “unduly restrictive or coercive” so as to
be custodial for Miranda purposes. DISCUSSION
I
Jones first argues he was subject to custodial interrogation and that
the trial court’s admission of his statement to Officer Murillo about his alcohol consumption was prejudicial error. W e need not resolve whether
there was a Miranda violation here because we conclude that any po tential error was harmless beyond a reasonable doubt.5

A. Standard of Review Whether a defendant was in custody for Miranda purposes presents a mixed question of law and fact. We defer to the trial court’s factual findings
whe n supported by substantial evide nce and decide independently whether Jones was subject to custodial interrogation within the meaning of Miranda

. ( People v. Davidson (2013) 221 Cal.App.4th 966, 970 ( Davidson ).)
B. Applicable Law
If a defendant makes statements while under custodial interrog ation
without being advised of his rights under Miranda , his statements cannot be
used as evidence to establish guilt. ( Berkemer v. McCarty (1984) 468 U.S. 420, 429 ( Berkemer) .) But a n officer ’ s obligation to administer Miranda warnings attaches only whe n the person questioned is in “ custody. ” ( Stansbury v. California (1994) 511 U.S. 318, 322.) The relevant inquiry when considering whether interrogation was custodial is whether a

“ ‘reasonable person [would] have felt he or she was not at liberty to

ter minate the interrogation and leave.’ ” ( Howes v. Fields (2012) 565 U.S. 499, 509.) In making that determination, courts consider the totality of the
circumstances , including : “ ‘(1) whether the suspect has been formally arrested; (2) absent formal arres t, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.’ ” ( Davidson, supra, 221 Cal.App.4th at p. 972.) Additional factors include “ whether t he officer informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect ’ s freedom of movement, whether the police were aggressive, confrontational, and/or accusatory, and whether the police used interrog ation6

techniques to pressure the suspect. ” ( Davidson, supra, 221 Cal.App.4th at

p. 972 ; see also People v. Bejasa (2012) 205 Cal.App.4th 26, 35

– 36 ( Bejasa ) .)
E rroneous admission of statements made in violation of Miranda is subject to harmless error analy sis under Chapman v. California (1967)
386 U.S. 18 ( Chapman )

. Under Chapman , a constitutional error is harmless when it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” ( Id. at p. 24.) C. Analysis Jones argues that he was in custody during his DUI evaluation because a reasonable person in his position would not have felt free to leave. He points to the fact that he was handcuffed and placed in the back of a patrol car, citing cases noting that hand cuffing is a “distinguishing feature of a formal arrest.” ( People v. Pilster (2006) 138 Cal.App. 4th 1395, 1404

– 1405 ( Pilster ) ; see also Bejasa , supra , 205 Cal.App.4th at p

. 37 [“Defendant was confronted with two of the most unmistakable indicia of arrest: he was handcuffed and placed in the back of a police car

. ”] .) He further asserts that even though Officer Murrillo advised him that he was not under arrest, removed the handcuffs, and released him from the patrol car before questioning , this did not neg ate his perception that he could not leave. (See Bejas a , at pp. 38

– 39 [“The removal of the restraints was not enough to ameliorate the custodial pressures that likely remained from the initial confinement

. ”] .) The People argue in response that handcuffi ng is not in itself dispositive , and other factors weigh in favor of finding that Jones was not in custody. For example, t he People note that Jones was only in the patrol car for less than 10 minutes and Officer Murillo subsequently removed the handcuffs ; Officer Murillo told Jones he was not under arrest ; Jones was7

questioned on a public roadway ; and the two officers present did not have their guns drawn. (See , e.g., In re Joseph R. (1998) 65 Cal.App.4th 954, 957

– 961 [finding no custodial interrogation w here police handcuffed minor and placed him in back of patrol car for about five minutes, then took him out of the car, removed handcuffs, and began asking questions].) The People assert
that Pilster is d istinguishable because in this case, Officer Murill o told Jones he was not under arrest and that they needed to move across the highway for safety purposes. T he People further contend that Jones did not face the same incriminating circumstances as the defendant in Bejasa and had no reason to doubt Officer Murillo’s statement that he was not under arrest. The parties also dispute whether Officer Murillo’s questioning constituted interrogation. The People contend that preliminary question ing
about a driver’s suspected intoxication during a routine traffic stop do es not amount to interrogation, citing Berkemer , supra, 468 U.S. at pp. 435

– 442 and People v. Carter (1980) 108 Cal.App.3d 127, 130

– 131. Jones contends that Officer Murillo’s questions about his drinking after a collision did constitute interrogati on, citing Bejasa , supra , 205 Cal.App.4th at pp. 39

– 40. We recognize that the unique facts in this case present a potentially close question regarding custod ial interrogation under Miranda

. However , we need not decide whether the trial court erred in ad mitting Jones’s

statements about his alcohol consumption because e ven if any error occurred, it was harmless beyond a reasonable doubt

. ( Chapman , supra , 386 U.S. at

p. 24.)
The evidence presented at trial include d unrefuted expert testimony
that Jones w as driving impaired and had a BAC between 0.12 and 0.20 percent at the time of the collision. Officer Murillo testified that he observed signs of intoxication when he first encountered Jones, including red, watery8

eyes, slurred speech, an unsteady gait, a nd a smell of alcohol on his breath. When Officer Murillo administered a horizontal gaze nystagmus test, Jones exhibited all six indicators of intoxication (three in each eye)

. Moreover, two witnesses testified that Jones appeared to be driving over 100 miles per hour before the collision. O ne witness testified that Jones had his torso out of the driver’s side window and was weaving in and out of traffic before plowing into G. S.’s vehicle

. Accordingly, on this record, we agree with the People that any

e rror in admitting Jones’s statement to Officer Murillo regarding his alcohol consumption was harmless beyond a reasonable doubt.
Jones argues that admitting his statement about how much alcohol he consumed was prejudicial because the parties spent time li tigating the issue , and the prosecutor referenced the admission in closing argument

. Jones further contends that the jury must have deemed the case close because it requested a readback of G. S.’s testimony regarding the collision and his injuries

. We dis agree. T he prosecutor only referenced Jones’s statement alongside the plethora of other evidence showing he was driving under the influence. The defense presented no contrary evidence. And the jury’s request for a readback of G. S.’s testimony does not s uggest it might have had

any reasonable doubt about Jones’s intoxication, because G. S. never even saw Jones’s vehicle coming and provided no information at trial about Jones’s driving or intoxication. Rather, the jury likely asked for a readback of G. S.’s “account of incident” and “injury” only because injury and causation were elements of the charged offenses

. Thus, we conclude that any Miranda error was harmless beyond a reasonable doubt under Chapman

. II9

Jones contends , and the People concede , that an y unpaid portion of his criminal justice fee as of July 1, 2021, should be vacated pursuant to Assembly Bill No. 1869 (2019

- 2020 Reg. Sess.)

. We agree. As of July 1, 2021, the statutory provision pursuant to which the trial
court ordered Jones to pay a $154 criminal justice administration fee was repealed ( s ee former Gov

. Code , § 29550.1), and Government Code section 6111 became effective. That statute provides that “the unpaid balance of any

court

- imposed costs pursuant to Section 27712, subdivision (c ) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Gov. Code, § 6111, subd. (a).)
The tr ial court stayed the fee, pending Jones’s successful completion of probation. Pursuant to Government Code s ection 6111 , and for the reasons
stated in People v. Lopez

- Vinck (2021) 68 Cal.App.5th 945, 952, w e vacate any balance of the costs imposed by the c ourt pursuant to former Government Code section 29550.1 that remain ed unpaid as of July 1, 2021.10 DISPOSITION Any portion of the criminal justice administration fee imposed pursuant to former Government Code section 29550.1 that remained unpaid as of July 1 , 2021 , is vacated. The judgment is affirmed as modified.

BUCHANAN, J.

WE CONCUR:

O'ROURKE, Acting P. J.

IRION, J.