Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County, Super. Ct. No. VCF142325, Gerald Sevier, Judge.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On February 14, 2006, an amended information was filed in the Superior Court of Tulare County charging appellant Donna Lee Andrews with counts I and II, premeditated attempted murder of Kerri Andrews (Pen. Code, §§ 664/187, sub d. (a)); counts III and IV, assault with a semiautomatic firearm of, respectively, Jack Andrews and Kerri Andrews (§ 245, sub d. (b)); and count V, assault with a semiautomatic firearm of Kerri Andrews. As to counts I and II, attempted murder, it was alleged appellant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, sub d. (d)). As to all counts, it was alleged appellant personally used a firearm (§ 12022.5, subds. (a) & (d)) and personally inflicted great bodily injury (§ 12022.7, sub d. (a)). Appellant pleaded not guilty and denied the special allegations.
All further statutory citations are to the Penal Code unless otherwise indicated.
On March 6, 2006, appellant’s trial began. On March 28, 2006, appellant was convicted as charged and the special allegations were found true.
On June 1, 2006, the court sentenced appellant as follows: count I, premeditated attempted murder, life in prison plus a consecutive term of 25 years for the firearm finding; count II, premeditated attempted murder, life in prison plus 25 years for the firearm finding, to run concurrently to count I; count III, assault with a firearm, a concurrent term of six years; and stayed the terms for counts IV and V.
On June 19, 2006, appellant filed a timely notice of appeal.
FACTS
As of March 2005, appellant Donna Andrews and Jack Andrews (Jack) were married for 27 years and lived on North Simon in Visalia. Appellant was 52 years old. Both appellant and Jack were teachers in the Visalia Unified School District.
Appellant and Jack had one child, Jackson Andrew (Jackson), also known as “AJ,” who was 24 years old. In 2000, Jackson married Kerri Andrews (Kerri), and they had two young children, K. and J. Jackson and his family lived on Vassar Drive in Visalia, about 10 minutes away from his parent’s house.
On the afternoon of March 10, 2005, appellant and Jack were at Jackson’s house for dinner when Jackson showed his parents his new Glock nine-millimeter semiautomatic handgun. Later that afternoon, appellant fired that handgun twice in her son’s dining room and then fled the house. The first shot hit her daughter-in-law, Kerri, in the left chest. Appellant’s husband, Jack, went to Kerri’s aid and tried to stop the bleeding. The second shot hit Kerri’s right arm, passed through her body, and then hit Jack’s leg and lodged in his back.
Appellant was charged with two counts of attempted premeditated murder with firearm enhancements as to Kerri, and three counts of assault with a semiautomatic handgun as to Kerri and Jack. At trial, Jack, Jackson, and appellant testified appellant accidentally fired the weapon, she did not rack the slide, and she did not look at Kerri when she fired the shots. In contrast, Kerri testified appellant pulled back the slide before she fired the first shot, and aimed the gun and looked directly at Kerri and fired both shots. The prosecution theory was that appellant intentionally shot Jack and Kerri because she erroneously believed they were having an affair. The defense theory was that both shootings were accidental and appellant ran from the house because the shooting triggered a brief psychotic episode. Appellant was convicted as charged and sentenced to life in prison plus 25 years to life.
On appeal, appellant contends her statement made shortly after the shooting, “‘He was fucking the daughter-in-law, and I shot her,’” was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and should have been excluded; challenges the sufficiency of the evidence that the two counts of attempted murder were premeditated; contends defense counsel was ineffective for failing to delete references to her marijuana use in her medical records, and the court improperly responded to a jury question in her absence.
PART A
Appellant’s Family
The weapon used in this case was a Glock semiautomatic handgun. Visalia Police Officer Jennifer Salmon, who was the first officer to arrive at the shooting scene, testified about the operation of a semiautomatic handgun. A semiautomatic handgun is loaded with a clip or magazine which contains live rounds. A live round must be placed from the magazine into the chamber. If the slide action is pulled back while the magazine is loaded in the gun, the live round is ejected from the chamber and another live round is automatically reloaded into the chamber. When the weapon is fired, the cartridge is automatically ejected and another live round slides into the chamber and is ready to be fired.
In the early 1990’s, Jack purchased matching Glock nine-millimeter semiautomatic handguns for appellant and himself. Jack testified “shooting was my thing” and he used his gun more often than appellant. Jack testified he purchased appellant’s gun for her home protection, and she used it “maybe four times” in a 10-year period. Jack testified:
“[Appellant] could hit a paper plate from ten feet away, you know ... I felt [she] could use more work. I guess for a woman, I thought that was pretty accurate, not to split genders ....”
Jack testified that on one occasion, his weapon “slam fired” without pulling the trigger. He loaded the clip into the gun, the slide went forward, a shell slid in, and the gun fired without touching the trigger. Jack later sold his gun, while appellant lost her weapon in late 2003.
Jackson testified he went to the range with his parents three or four times when they used their two Glock semiautomatic handguns. Jackson believed appellant was “an excellent shot.”
In October 2004, Jackson purchased a Glock .40-caliber semiautomatic handgun, which had the same general operation as his parents’ handguns but was bigger and heavier, and had a “tact light” under the barrel. Jackson kept the unloaded handgun and two clips of ammunition in a locked box in his bedroom. As of March 2005, both Jack and Jackson had used the gun on the firing range several times and it never went off accidentally.
Jackson testified Kerri and appellant had a wonderful relationship. They regularly had coffee in the mornings, and there was no tension between them. Appellant testified she had a very pleasant and warm relationship with Kerri, and they never had any problems. Kerri also testified she had a good relationship with appellant.
Jack testified he loved appellant, they had a close relationship, and he never had an affair, but there was tension between them a few years before the shooting. Jack testified in 2002 and 2003, appellant suffered withdrawal symptoms from a medication called Bontril.
“You’re only supposed to be on it for five weeks. They had her on it for five years. When she stopped taking it, it really—she really had just crashed, had a really hard time, because really paranoid, and at that point in time, she had said something to Kerri to the effect that Jackson should protect himself from her or something like that.”
Jack explained appellant was “kinda insecure” about her physical appearance and had a lot of issues about her weight. Appellant believed she did not look good enough to be with him, and “she thought that if I wasn’t seeing a bunch of other women, that I probably should be.”
“[She] alluded to the fact that I may be having affairs with women in countries that I’ve never been to at that point, you know. When she was withdrawing from the Bontril, she said a lot of stuff like that.”
Jack testified he never had an affair and never told appellant that he had one.
Jackson was aware that in 2002 and 2003, appellant went through difficult problems and accused Jack of having girlfriends. Kerri was pregnant with their second child at that time. Jack testified appellant and Kerri had been quite close but tension developed in their relationship. When Kerri was pregnant, appellant told Kerri that she was not sure if Jackson was the father and Jackson should protect himself from her in some way. Jack testified appellant did not accuse him of having an affair with Kerri, but she may have said “something about Kerri’s baby being mine.” Jack testified:
“… She didn’t say that’s your baby. She said maybe that’s your kid, too, you know, because she’d accused—she just thought—like I said, everybody was a potential, you know, affair, almost any female at that time. Her insecurity level was so high.”
Kerri testified about an incident which occurred in July 2003, while Kerri was pregnant with her second child, J. Kerri, Jackson, and their child, K., were at his parents’ house, when appellant accused her of having an affair with Jack. Appellant asserted Jack was the father of K. and of her unborn child. Kerri started to cry and immediately told Jackson about the false accusations. Jackson was upset and did not know why appellant would say that. Jackson called Jack, in Kerri’s presence, and told Jack about appellant’s accusations. Kerri testified there was no truth to these allegations and there was tension between appellant and Kerri for months.
As we will explain post, the defense introduced evidence that in the summer of 2003, appellant abruptly stopped taking diet and pain medications, she suffered a nervous breakdown, and she took off on a three-week odyssey of driving to Seattle, Nevada, Arizona, and Mexico. She took her Glock handgun with her but lost it after the first day. Appellant believed Jack sent people to follow and hunt her down. She was found in San Diego, where she was involuntarily committed to a mental facility for three days, and then her family brought her back to Visalia. She was diagnosed with a psychotic disorder triggered by the drug withdrawals and treated at a psychiatric hospital for three weeks. She went through outpatient treatment and was cleared to resume teaching for the 2004 school year.
Kerri testified she was aware that appellant had disappeared from Visalia for several weeks, and the family did not know where she was. Kerri knew that in September 2003, Jack and Jackson went to San Diego and picked up appellant. Kerri did not see appellant until after J. was born in November 2003. Kerri testified that even after appellant returned, there was still tension between them because Kerri did not trust appellant. Jack and Jackson told Kerri that they talked to appellant about her accusations against Kerri, and Jackson felt the matter was settled and over. Kerri testified the matter was “just kind of pushed behind” and Kerri also pushed it away, but she refused to allow K. to visit with Jackson’s parents because she still did not trust appellant. Jackson asked why Kerri did that, and Kerri replied that K. could not visit appellant until she was off medication. Kerri enforced the ban until December 2003, when appellant was taken off medication, and the two families slowly started to visit again. Kerri accepted appellant had a mental breakdown and recovered.
Appellant was cleared to return to teaching for the 2004 school term. Jack testified that in December 2004 and January 2005, appellant began taking a smaller dosage of another diet pill, Phentramine, which was similar to the pills which caused the earlier problems. Jack testified appellant was again insecure about her weight and appearance. Jack testified there was some “friction” in their marriage because he did not want her to take the pills.
Jack testified appellant again thought he might be interested in other females, but she did not specifically mention Kerri.
“[Appellant’s] accusations were real vague and sort of shotgun like, you know. She actually thought that I was interested in—at one point, some—one of the girls on American Idol. [¶]…[¶] ... [S]he’d get insecure and see any female and ask if I—you know, if I had known her somewhere before, if I’d talked to her before.”
Jack testified it was possible Kerri “may have come up” when appellant said Jack was having affairs with “all kinds of different females,” but Kerri was not a “theme.”
Karen Renard, Kerri’s mother, testified that about one week before the shooting, Jackson sadly said appellant was again accusing Jack of having an affair, and Jackson mentioned Kerri in this conversation. Jackson told Kerri’s mother that appellant made the same accusations in 2003.
Kerri’s pregnancy
At trial, a major credibility issue was raised by the family’s discovery, just before the shooting, that Kerri was pregnant again, and whether appellant believed Kerri was pregnant at the time of the shooting.
Kerri testified that in the weeks preceding the shooting, there was no tension between appellant and Kerri, and they visited with Jackson’s parents about once or twice a week. Kerri testified that shortly before the shooting, she learned she was seven weeks pregnant. Kerri started bleeding and went to the hospital, learned she was expecting twins, and was advised that she might have miscarried one of the twins. Kerri testified Jackson only told his parents about the pregnancy after he took her to the hospital, and also told his parents that she miscarried. Kerri later had a telephone conversation with appellant, told her about the pregnancy, and that she might have miscarried. Appellant said she understood what Kerri was going through.
Kerri testified that Jackson wanted her to schedule an abortion to terminate the pregnancy of the surviving twin, but Kerri refused and intended to have the baby. Kerri testified Jackson tried to pressure her into having an abortion, but she did not want to have an abortion and she never scheduled one “[b]ecause that’s your child.”
Jackson testified to a different version of events. About a month before the shooting, Kerri learned she was pregnant. Jackson testified he wanted the child, but Kerri “didn’t want to go through pregnancy again, and she told me that she wanted to have an abortion.” Jackson testified he was present when Kerri called the Family Planning Clinic in Fresno and made an appointment for an abortion. Jackson testified Kerri had two prior abortions during their marriage at the same clinic, she made those decisions, and he did not want her to have another abortion. Jackson testified he eventually went along with her decision, and believed Kerri had an appointment for an abortion on March 11, 2005, which was the day after the shooting.
Jackson testified that about two weeks prior to the shooting, he took Kerri to the hospital because she was heavily bleeding and they thought she had a miscarriage. While he was still at the hospital, Jackson called his parents, told them about the pregnancy for the first time, and also told them about the possible miscarriage. Jackson testified they had not told anyone about the pregnancy since the abortion was planned. After the possible miscarriage, however, Kerri suggested they tell the family that she actually had the miscarriage so they did not have to tell them anything else. Appellant was very worried when Jackson told her about the miscarriage, and warned Jackson to take care of the house and that Kerri needed to rest.
At trial, Susan Hamilton of Family Planning Associates in Fresno testified there were no records of Kerri Andrews making an appointment for an abortion. She did not check for the name “Kerri Renard.” Hamilton testified that Planned Parenthood of Fresno also provided the same services but was a smaller agency.
Defense counsel made an offer of proof after Kerri recovered from the gunshot wounds, she had an abortion at a hospital in San Francisco instead of a clinic because she was a high risk patient. Such evidence was not introduced before the jury and the jury never heard anything more about the fate of Kerri’s pregnancy.
Jack testified that toward the end of February 2005, Jackson called from the hospital and told them about Kerri’s pregnancy and possible miscarriage. Appellant and Jack were surprised because they did not know about the pregnancy until Jackson called from the hospital. After the call, Jack asked appellant if she had known about the pregnancy and appellant said no. Shortly afterward, Kerri called appellant and they talked about the miscarriage. Appellant had “lost a couple of children of her own” and went into “her mother mode” and advised Kerri to rest and take care of herself. Appellant then talked to Jackson and “started kinda cracking the whip on him” to do the housework, take care of the children, and let Kerri rest.
Appellant testified that she did not learn about Kerri’s pregnancy until Jackson called from the hospital and said Kerri had a miscarriage. Kerri called the next day and told appellant she had a miscarriage. Appellant testified she was heartbroken because she had also suffered miscarriages and told Kerri to take care of herself.
Appellant and Jack arrive at Jackson’s house
Jack testified that on the afternoon of March 10, 2005, Jack and appellant arrived home from work and Jackson called around 4:00 p.m. Jackson said he was going to make a Japanese meal and invited them over for dinner. Jack and appellant did not want to go because they had to work on lesson plans, but Jackson insisted and they agreed. Jack testified there was no indication that anything was wrong between appellant and Kerri.
Appellant and Jack arrived at Jackson’s house around 5:30 p.m. Kerri and their three-year-old child, K., left for the pet store to pick up their dog from the groomer. Jackson prepared the meal and the youngest child, J., was asleep in the bedroom and remained there for the rest of the evening. Jackson and his parents visited for about a half hour. Jackson’s house had a front entrance which led into the living room, continued into the dining room, and then led into the kitchen.
Appellant drank some tea and Jackson poured appellant “a little glass of some blue stuff,” which was a mixed drink called “Hypnotic.” Appellant did not want it but Jackson insisted. She took a sip to avoid hurting his feelings but did not like it. Jack drank three beers between 3:30 p.m. and the shooting.
Jackson brings out his gun
Jack testified that about a half hour after they arrived, Jackson brought out his Glock nine-millimeter semiautomatic handgun. Appellant, Jack, and Jackson were at the dining room table. Jackson showed them how the tactical light worked, and Jack thought it was pretty cool. Jack testified they were “playing around, fiddling with that, figuring out how to install it, how it worked, and then he took the tact light off and he was trying to sell it to us,” and encouraged his parents to buy it from him.
Jack testified Jackson stood next to the dining room table, dropped out the magazine, and took the gun apart. Jackson handed the parts to appellant, and then put it together again. Appellant was seated at the dining room table. Appellant did not seem interested as Jackson tried to show her how to dismantle and reassemble the gun, but she held the pieces of the gun in both hands as Jackson broke it down. Jack may have picked up some of the pieces from the table. Jack testified Jackson completely dissembled the gun into six parts, including the lower receiver, the barrel, the slide, the long internal spring, the magazine, and the tact light.
Jack believed the chamber did not contain a round when the weapon was disassembled, but he never saw Jackson clear the chamber. Jack testified that once the weapon was disassembled, the barrel and receiver area were clearly visible, and he thought the chamber was empty. Jack conceded, however, he was on the other side of the table and did not look at the barrel.
Jackson testified that when he brought out the gun from the bedroom, he loaded one clip in the weapon and left the other clip in the bedroom. Jackson testified he did not chamber a round. Jackson testified that he started “a sales pitch” and hoped his parents would buy the gun. Jackson testified appellant was sitting on the south side of the dining room table, facing north, and Jack was standing up. Jackson bent down and showed appellant the gun, dropped out the clip, and showed her how to break down the gun into parts. Jackson testified the weapon was not loaded as he disassembled the gun.
Jackson testified that he reassembled the gun and “dry fired” it a couple of times to make sure he reassembled it correctly. “Dry fire” means there is no ammunition in the gun but the slide is pulled back and the trigger is pulled; a live round is not fired, and the gun simply clicks. Jackson testified appellant was not interested but he encouraged her to dry fire the weapon so that his parents might buy it. Jackson handed the gun to appellant, and she dry fired it once. Jackson crouched down at appellant’s left side, and Jack was standing next to the table. There was a four-foot partition with wooden bars, between the living and dining rooms, and Jackson had her aim at one of the bars. Jackson “racked it. I pulled the slide back and handed it to her.” Appellant held the gun in her right hand, pulled the trigger, and it clicked. (She was right-handed.)
Jackson was impeached with his previous statement that appellant held the weapon with both hands, but testified he had repeatedly thought about the incident and his memory was clearer now.
Jackson reassembled the gun and locked the slide:
“Exactly what I did when I reassembled the weapon is I pulled the slide back. I locked it. I put the clip in, and I handed it to my dad. At that point, the slide was locked open, and there’s no round in the weapon.”
Jack testified he went outside a few times as Jackson reassembled the gun and did not watch him do it. Jack clearly recalled that Jackson handed him the gun after it had been reassembled and the magazine was inserted.
Jack “fiddles” with the gun
Jackson testified the chamber was empty when he handed the gun to his father. As we will discuss, post, Kerri testified appellant later picked up the gun, racked the slide, and fired it at her; appellant testified she picked up the gun to move it, she did not rack the slide, and it accidentally fired. Thus, a major issue at trial was Jack’s insistence that he mistakenly chambered a round into the gun, such that it was ready to fire when appellant later picked it up.
Jack testified he “kind of fiddled around” with the gun as Jackson made dinner. Jack took out the clip while he was “messing around with the gun, fiddling with it.” Jack did not check if there was a round in the chamber when he removed the clip. Jack heard Kerri’s van pull into the driveway, and put the clip back into the gun. He pulled back the slide to check if there was a round in the chamber, but testified he did so in a “lazy” way. “I shoved the clip in and quickly racked it back and looked—you know, looked down—crappy eyesight—and let the slide go.”
Jack believed he mistakenly chambered a round when he put the clip in.
“I didn’t intend to, but I had dropped the clip when I was fiddling with it. I’d taken the clip out and was looking at the tact light, and when the girls pulled up, I put the clip back in it and pulled the slide back, and it’s a lazy way of checking to see if there’s a round in it, pulled the slide back, released it, and I believe ... that’s where I put a round in it.” (Italics added.)
Jack testified he pulled the slide all the way back.
“To the best of my recollection, I believe I pulled [the slide] all the way back, and I did it quickly because the girls were coming in, and I racked it back real quick, see if the chamber was empty, but when I released the slide, I wasn’t looking anymore.”
Jack testified he pulled back the slide about one and a half to two inches, just intending to check the chamber was empty, but he was “[q]uite sure” he chambered a round. Jack placed the gun on the dining room table and told Jackson to lock up the gun because the girls were back. Jack testified he never again touched the gun that night.
At trial, Jack was confronted with his prior statement that he checked the weapon before he placed it on the dining room table, he did not chamber a round, and there was no live round in the chamber. Jack admitted he previously stated the gun was not loaded when he placed it on the table, but he “had a lot of time to go over the events” and realized he was wrong. Jack insisted his prior statements about whether he chambered a round were not accurate because he made those statements just after being released from the hospital, and “[t]hey had me very heavily medicated at the time.” Jack admitted, however, he was asked “point-blank” whether there was a round in the chamber and he said the gun was not racked or cocked.
Jack was confronted with his preliminary hearing testimony that he checked if there was a live round in the chamber, there was not a live round there, he put the clip back in the gun, and placed the gun on the dining room table. Jack explained that when he testified at the preliminary hearing, he did not want to believe that he chambered a round. “At the time I believed, but as time went on, I started being vigorously honest with myself, and over that period of time, it was almost absolutely I was a fool.”
At trial, Jack admitted he previously said there could have been a round chambered in the weapon, but he was now testifying that he was sure he chambered a round into the weapon.
“Q. My question is are you saying it was ten to eleven months after the incident that you came to realize that you were the person that loaded the weapon and put it on the table?
“A. That’s correct. I think I realized it way sooner than that, but I didn’t want to believe it.”
Jack testified he felt responsible for the shooting because he mistakenly chambered a round, “and my wife’s paying for it.” “I’m quite sure upon reflection that I pulled that sucker back and put a round in it.” Jack came to this conclusion about a month before trial, but did not inform the investigating officers about his belief because he was embarrassed, he could not come to grips with what he did, and he was “trying to deceive myself.”
Jack testified he placed a loaded gun on the table without warning anyone that it was loaded, it was a dumb thing to do, but he thought Jackson was going to immediately lock it up. “It was a stupid mistake. It’s a stupid way of—just shouldn’t be done that way.”
Jack testified that Kerri and K. entered the house. K. immediately wanted Jack to take her outside, and Jack agreed.
“Q. So you were okay with walking out, not telling anyone that gun is loaded, assuming that it would be locked up at some point?
“A. I didn’t think to tell anybody. I didn’t assume it was okay. I just didn’t think to tell anybody ‘cause [K.] was dragging me out the door.
“Q. ‘Cause the weapon wasn’t loaded, was it?
“A. I believe it was.
“Q. You believe it was?
“A. Yes.
“Q. Is that different from I’m quite sure?
“A. I’m quite sure. That’s why I believe it was.”
Jackson testified he did not touch the weapon again after he placed it on the dining room table, and before the first shot was fired. Jackson started to cook dinner, and noticed that Jack inspected the weapon and dropped out the clip. Jackson did not notice if the slide was still open. Jackson testified that Kerri and three-year-old K. arrived home, and K. ran into the room. “[A]t that point, I noticed my dad, you know, check to see if the chamber—he checked the weapon, put it on the table and took [K.] outside.”
Jackson testified Jack was still standing next to the dining room table, and appellant was still sitting on the south side, when Jack placed the gun on the table. Jackson testified the slide was closed and the clip was in. Jackson had no idea if a round was in the chamber. Jackson saw Jack place the gun on the dining room table and go outside with K. Jack told Jackson to put the gun away, but Jackson did not do so because he was holding raw chicken and his hands were dirty.
PART B
Kerri’s Testimony about the Gunshots
As explained ante, Kerri testified as a prosecution witness and her testimony about the shooting was fairly straightforward. Kerri testified that in the late afternoon of March 10, 2005, she went to the pet store with K. to pick up their dog from the groomer. As they pulled out of their driveway, Jack and appellant arrived and went into the house. Kerri and K. continued to the pet store, picked up the dog, and returned home about 30 minutes later. Kerri was thus out of the house while Jackson showed his handgun to appellant and Jack, Jack “fiddled” with it, and Jack placed the gun on the dining room table.
Kerri testified that when she returned home, Jack was in the living room, appellant was sitting at the south side of the dining room table, and Jackson was making dinner in the kitchen. Jack took K. outside to play. Kerri went into the dining room and sat at the opposite side of the table from appellant. Kerri had purchased an aquarium and started to put it together. Kerri knew Jackson owned a Glock handgun, but she did not notice it was on the table. The dog urinated on the floor and Jackson stepped in the urine. They laughed about it, Jackson put the dog in the garage, and he returned to the kitchen. Jackson was facing away from the dining room table as he prepared dinner.
Kerri testified she stayed at the dining room table, across from appellant, continued to put together the aquarium, and still did not realize the gun was on the table. Kerri faced the aquarium and noticed a movement across the table. Kerri saw appellant “picking up a gun” with her left hand. Kerri recognized the gun as Jackson’s Glock. Kerri testified: “[Appellant] picked it up and ratcheted with her right hand and then put her right hand over her left hand and held it straight out.”
Kerri testified appellant pulled back the slide with her right hand, and then held the gun with both hands on the grip. Appellant’s arms were straight out and the gun centered straight in front of her. Kerri could not see if her fingers were on the trigger.
Kerri testified appellant did not say anything, but she looked at Kerri “straight in the eyes” and Kerri was afraid. Appellant was still seated at the table and Kerri was just four or five feet across from her. Kerri could see appellant’s eyes over the top of the aquarium.
Kerri testified appellant pulled the trigger, the weapon fired, and Kerri was hit in the upper left chest, near the collar bone. Kerri was immediately aware she had been shot.
Kerri testified after the first shot was fired, appellant did not say anything for a few seconds. “[Appellant] let go [of the gun] with her right hand and started to stand up, hanging on to [the gun] still, and then once she stood up, she dropped it with her left hand and then started yelling ....”
When appellant stood up, she jumped out of her chair and started waving her arms around and either screamed “oh, my God, oh, my God” or “oh, my God, what did I do, like she didn’t believe that she would do that to someone.” Kerri was not sure what appellant said because she was hysterical, yelling and screaming, and “kind of rambling on.”
Kerri’s testimony was impeached with her prior statement to an investigator, that Jack was in the room and was present when appellant fired the first shot. Kerri testified that while she was still in the hospital, Jackson told her not to speak with the detectives, and she made that statement during a brief interview with an officer and left out the details of the first and second shots.
Kerri testified the weapon fell to the floor, and Jackson entered the dining room and ran to appellant. Jackson turned around and realized Kerri had been shot, ran to her, and grabbed her chest. Appellant was still standing on the other side of the table.
Kerri testified Jack and K. came back into the dining room and kitchen. Kerri testified the scene was chaotic and she feared for K.’s safety. Kerri still sat in her chair at the dining room table, Jackson stood next to her and applied pressure to the wound, and appellant still stood on the opposite side of the table. Jackson told Jack to call 911, but Jack did not know where the telephone was. Jackson told Jack to apply pressure to the wound, and they switched places so Jackson could call 911. Jack stood facing Kerri, and placed his left hand behind her head and shoulder, and his right hand on the front of her chest to apply pressure to the wound. K. was heading toward Jackson, who was on the telephone in the kitchen.
Kerri testified the 911 operator told Jackson to clear the weapon. Jackson put down the telephone, picked up the gun from the floor, pulled back the slide twice, dropped it on the floor, and kicked it toward the kitchen.
Kerri testified Jackson went back to the telephone and reported that he had cleared the weapon. Jackson again dropped the telephone and said he was heading outside to flag down the ambulance. Kerri thought she heard sirens arriving. Jack remained next to Kerri and applied pressure to her wound, and repeatedly told her it was not serious and she was going to be okay. Appellant was still standing across the table from them.
Kerri testified Jackson opened the front door and Kerri heard a female voice and thought it was the police. Kerri testified Jack told appellant to get K. Kerri was holding her chest wound with her right arm.
“[Jackson’s] walking to the front door. As he’s heading to the front door, [appellant] comes around the table to the counter where [K.] was standing, and as she comes around this side, I turned to follow her because I was concerned of [K.’s] safety. When [appellant] got around to where the counter was, she turned around so that she was facing the table, facing what would be my left side ... [¶]…[¶] ... [Appellant] squatted down to the ground and placed her left arm around [K.] to grab ahold of her, and at that time, the gun was now at that side of the table ....”
Kerri testified appellant held K. with her left arm. Kerri turned her head to watch K. because she was concerned for the child’s safety. Kerri testified: “[A]nd then [appellant] reached down in front of her which is where the weapon was now, and she picked that up with her right hand, and she picked it up and held it straight out looking at me again and fired.”
Kerri testified appellant was holding the weapon “in the same way she did ... the other time.” The gun was in appellant’s right hand, her fingers were around the grip, and she extended her right arm in front of her and pointed the weapon at Kerri. Kerri testified appellant did not cock the weapon before she fired the second shot. Kerri was looking at appellant and K., and appellant was looking at Kerri, when appellant fired the second shot. Appellant was about five to six feet away from Kerri, and crouched down on one knee as she fired. Appellant did not say anything before she pulled the trigger. Kerri was shocked and scared when appellant picked up the gun and testified the second shot occurred too fast for her to process what was happening and yell for help. Kerri believed about five minutes had passed since the first shot.
Kerri testified that in one of her prior statements, she mistakenly said that appellant pulled back the slide before the second shot, but clarified that appellant pulled the slide only before the first shot. Kerri testified that some details became clear when she was no longer on medication.
Kerri testified she had been holding her chest wound with her right arm. The second shot hit her right arm, went through her upper right bicep, and then hit Jack. Kerri denied that her head was back or that she was looking at the ceiling after the first shot, and insisted that she was watching appellant between the first and second shots because she was worried about K.’s safety. Kerri testified that while Jack stood next to her and applied pressure to her wound, he did not block her view of appellant.
Kerri testified that right after the second shot, appellant picked up K. in a bear hug and carried her outside. Jack said he was hit but he still held onto Kerri’s chest wound. Kerri testified officers and medical personnel entered the house and started to care for them. Kerri remembered being taken out in an ambulance and transported to the hospital.
PART C
Jack and Jackson’s Testimony about the Gunshots
While Jack and Jackson testified as prosecution witnesses, they contradicted nearly every aspect of Kerri’s description of the shootings.
The first shot
Jack testified that when Kerri and K. arrived home, he left the gun on the table and went to the front yard with K. Appellant was sitting on the south side of the dining room table. The table was fairly small, about four feet wide. Jackson was standing up, between the table and the kitchen counter. Jack believed Kerri was “circling around the other side of the table,” and he did not see her sit down. Jack testified a box with a fish aquarium and other tank supplies were on the floor. Kerri went to the side of the table to start putting the aquarium together. The gun was still where Jack placed it on the table, just slightly west of center and to appellant’s left side.
Jackson testified he was working in the kitchen while Kerri started to assemble an aquarium they had just purchased at the pet store. The aquarium and all the supplies were on the dining room table, and Kerri was putting the gravel into the tank. Appellant sat across the table from Kerri, and they talked back and forth. Jackson testified he did not hear any disagreements between appellant and Kerri as they chatted, and no one seemed tense or angry.
Jackson testified their freshly-groomed dog wandered into the kitchen, urinated on the floor, and Jackson stepped in it. Appellant and Kerri laughed about it. Jackson testified their conversation was “very light, lighthearted. We were having a good time.”
Jackson was about to start cooking the chicken when appellant asked if he washed the meat. Jackson said yes, turned away from the dining room table, and placed the chicken in a wok. The oil splashed up and burned his arm. Jackson turned towards the dining room and shouted a profanity, and hoped to get sympathy from the women about the burn.
Jackson testified the weapon was in the same location on the dining room table, directly in front of appellant, with the barrel pointing toward the garage door, when he yelled about the burn. He turned toward the dining room table as he shouted the profanity about being burned, “and that’s when the … shot went off.” Appellant was sitting in the same chair on the south side of the table, just across from Kerri. Jackson testified he saw appellant holding the handgun in her left hand, in an overhand grip, with her palm facing down. The gun was below her palm, palm facing down, and he could not see her fingers. The gun’s barrel was facing the kitchen door to the garage.
Jackson was impeached with his prior statement that he did not see the shot and did not see how appellant was holding the gun, but he turned around and saw the gun kick out of appellant’s hands and land on the floor.
Jackson heard a “boom” as he turned and faced the table. “It just happened really quick. I got burned, and I—I cussed and turned and boom.” Jackson saw smoke come out of the barrel and smelled gunpowder. Jackson testified that after a Glock is fired, the slide “kicks back and then goes forward.” Jackson testified he heard the “boom”, and saw the handgun “flip[] out” of appellant’s hand and onto the floor, just to her left side.
Jackson testified he never saw appellant stand up, rack the weapon, or aim it at Kerri before the first shot. He never saw the gun in appellant’s right hand. Jackson was sure about how appellant was holding the gun during the first shot: “I dream about this every night. I think about it every day for the last year. It’s—that’s not something I forget.”
Jackson testified he was extremely scared and his ears were ringing, and everything was quiet for a moment. Jackson testified appellant looked shocked and horrible. She turned white and was crying.
Jackson thought he saw blood on appellant and thought she accidentally shot herself. Jack ran into the house, Jackson looked toward Kerri, he saw a bullet hole in Kerri’s shoulder, and everyone started screaming. Kerri was heavily bleeding.
Jackson testified appellant stood between the table and the counter, and kept screaming to call an ambulance to help Kerri. K. ran into the house and Jackson lost sight of her. The gun was still on the floor. Jackson considered the weapon to be “live,” because he knew another round was automatically chambered when the shot was fired. Jackson grabbed the gun and headed for the telephone to call for help. He pulled back the slide with the intent “to clear the weapon so that it wasn’t live any longer,” but he did not drop out the magazine. “Instead of clearing the weapon, I was just jacking rounds out, and it was sequentially loading another round into the chamber.” Jackson racked the gun and ejected two rounds. Jackson knew the gun was still live because there was another round in the chamber. Jackson dropped the gun to the floor and kicked it into the kitchen, toward the door to the garage. He joined Jack and tried to stop Kerri’s bleeding, and repeatedly said that he loved her. Kerri looked horrible, her face was white, her pupils were large, her head dropped back and she was staring at the ceiling. Jackson did not think she was alert, believed she could be dead, and yelled at the 911 operator to hurry so they could revive her.
Jack runs back into the house
Jack testified that he went outside with K. and sat on the front steps while she played. It just was becoming dusk. Jack testified the front door was slightly cracked open, and he heard appellant and Jackson laughing and talking, and “right in the middle of that I heard that [first] shot.”
Jack immediately ran into the house and found appellant sitting in the same place, at the south side of the dining room table, while Kerri was sitting on the north side of the table. They were looking around and it was very silent. Jack was not aware that anyone had been shot. Appellant “had a look of shock on her face.” Jackson determined appellant was not wounded, but then they realized Kerri had been shot in the left chest, at her collarbone. There was a small spot of blood and then she started to heavily bleed. Kerri’s left hand was hanging limp and not moving at all.
Jack testified that he did not immediately see the gun when he went into the house. Jackson started to put pressure on the wound, and appellant screamed to call 911 and get an ambulance. Jack and Jackson were in shock and could not believe what happened, and they were “just sort of standing there like idiots, when [appellant] saw that Kerri had been hit, she was the one that said oh, my God, help her, call 9-1-1, come on, you guys, you know. She snapped us out of it, and we’re like okay, okay, yeah, we better do something. She was the one that implemented the whole ball rolling to save [Kerri’s] life.” Jackson went to the telephone and called 911 and Jack tried to stop Kerri’s bleeding.
Jack testified that after a minute or two, Jack noticed Jackson was holding the gun. Jack continued to apply pressure to Kerri’s wound and watched as Jackson carried the gun “to the other side of the table and racking a few rounds out of it, one or two rounds out of it ....” Jackson was standing between the dining room table and the kitchen, and he pulled back the slide, racked the gun, and ejected one or two shells. Jackson either placed or dropped the gun on the floor and kicked it into the kitchen area.
The second shot
Jackson testified he ran back and forth between Kerri and the front door, looking to wave down the ambulance, while Jack applied pressure to Kerri’s wound. Jackson thought he heard the emergency crew arrive and again went to the front door. K. passed him and headed into the kitchen and “we just started screaming” because the child was walking toward the gun, which was still on the kitchen floor. Jackson testified appellant kept asking what she could do to help. Jackson yelled at appellant to grab K. and get her out of there so she did not get the gun, and thought he heard Jack shout the same instruction. Jackson continued to the front door. Jack was standing at Kerri’s side, trying to put pressure on her wound, and yelling at her not to go to sleep.
Jack testified three-year-old K. entered the house at some point. K. was running around, screaming and crying, and appellant picked up the child. Jack testified appellant was standing on the southwestern side of the dining room, in the hallway between the dining room and the living room, as she held K. The gun was still on the kitchen floor. Appellant tried to prevent the child from seeing what was going on, but K. broke loose from appellant and ran into the kitchen.
Jack testified appellant ran into the kitchen and grabbed K. with her right hand near the garage door. Jack “assumed” the gun was “live” and there was “[a] round in the chamber” and it was ready to fire again, so he told appellant to pick up the gun. Jack was afraid K. was going to break loose again and grab or kick the gun. Appellant tightly held K. with her right arm. Appellant “was hanging on to [K.] and crying and saying she was sorry, and [K.] was crying, and ... I’d told [appellant] to pick up the gun and keep it away from [K.], you know. I told her pick that up.”
Jack testified appellant was crying and looked at him, and he again told her to pick up the gun. She was still holding onto K. Jack thought a few seconds passed between his warning and appellant’s act of picking up the gun. Jack testified appellant was facing the kitchen door into the garage. She was down on her left knee, held onto K. with her right hand, and her right foot was raised with K. braced against her. Appellant twisted and reached back to pick up the gun with her left hand. She was about three feet from the gun when she picked it up and had to stretch to reach it. After she had the gun, she turned back toward the garage door and faced K. Jack was still helping Kerri and Jackson was near the front door.
Jack testified appellant reached for the gun with her left hand, and her palm and fingers were facing down. “She just clutched it. She just had ahold of it. That’s all I remember. I was still very busy.” Jack testified that when appellant picked up the weapon, her palm was downward and the gun was pointed toward the garage door and away from Jack and Kerri’s location at the dining room table.
Jack testified appellant still held K. in her right hand and the gun in her left hand. After appellant picked up the gun, she turned back to K., and “she kinda flipped [the gun] like this to get ahold—‘cause she had it—she was just hanging on to it like this.” Jack believed the gun was slipping, and appellant barely “had ahold of it” and almost dropped it. “So she caught it, flipped it this way.” Appellant flipped the gun with her palm turned up, “her body followed,” the gun was pointed toward Jack and Kerri, and the second shot was fired. “She caught the gun, boom, it went off a second after she had picked it up [¶]…[¶] and it was in her left hand turned down this way.” Jack was not sure if appellant’s finger was inside the trigger well when she flipped it, but assumed “it’s natural that your finger goes in the trigger guard.”
Jack testified the weapon fired “[a]s it was flipped,” just a second after appellant picked it up. “... I mean the instant that she picked it up. It was grab, boom. So it was a very … she almost dropped it, so she did a quick flip. It was a second [¶]…[¶] maybe two.” Appellant had been holding the gun about two feet off the ground when it fired. After the second shot, the gun “kicked out” of appellant’s hand and onto the kitchen floor.
Jack testified he was positive Kerri never looked toward appellant before the second shot was fired. Jack was asked about Kerri’s statement to the police, that Kerri looked appellant in the eye as the second shot was fired, but he was positive that did not happen because her head was against the back of the chair, she was staring at the ceiling, and her left arm was hanging limp at her side. Jack was standing on her right side, with his arm around her left side and his knuckle jammed into the wound on her upper left chest. Appellant was across the room in the kitchen, to Kerri’s far left side, and about six or eight feet away.
Jack was positive appellant never racked the gun, aimed it at Kerri, threatened anyone, or said anything before the second shot was fired. Jack conceded appellant must have “[i]nadvertently” pointed the gun at Kerri as it fired.
The second shot passed through Kerri’s right bicep and went into Jack’s left leg, near his groin, and lodged in his back. Jack instantly knew he had been shot. Kerri had not said anything between the first and second shots, but she started screaming after the second shot.
After the second shot
Jackson testified he was in the living room, heading toward the front door, when he heard the second shot. He did not see the second shot. Jackson immediately ran back into the dining room. Jackson knew either the police or paramedics were at the front door, and they were screaming “where’s the gun.” Jackson heard Jack scream that he was hit.
Jackson reached the kitchen and found appellant crouched down on the dining room floor, holding K. in her right arm and against her body. Jackson saw the gun on the floor, to the front and side of appellant’s location. Appellant and the gun were “exactly” in the area where Jackson previously kicked the gun. Jack was still at Kerri’s right side, trying to put pressure on her wound, and still yelling at her to wake up and not go to sleep.
Jackson testified Jack yelled at him to secure the gun and watch K. Appellant stood up and stayed in the kitchen for a moment. The police were at the front door and yelling, “where’s the weapon; bring us the weapon.” Jackson feared the police would enter and shoot one of them. Jackson bent down, picked up the gun, dropped out the clip, and put the clip in his pocket. Jackson testified his hands were shaking and he was terrified, and he tried to “clear[] the gun to the best of my ability at that time.” Jackson threw the gun toward the front door so the officers could see it. “I didn’t want to get shot if they saw me holding the gun, and I tossed the gun towards the front door.”
Jack testified the expression on appellant’s face was “horrible” after the second shot, and her face went “into absolute shock.” Jack testified appellant picked up K. with both hands, said, “oh, no, no, no, not again, but she was wailing,” and then went through the dining room to the living room, and out the front door.
Jack testified that after appellant and K. left the house, there was a lot of screaming and Kerri was in bad shape. Her eyes fluttered and rolled back, her face was white, and her lips were blue. Jack kept shouting at her to hang on, stay awake, it was just a shoulder wound, and help was on the way. Jack was hit “pretty bad” but kept holding onto Kerri “‘cause I figured the world needed a mother and a wife more than it needed a grandfather,” and held onto her until he lost consciousness. Jack heard yelling from the front door and thought the paramedics arrived, and shouted at them to hurry up. Jack could remember being treated by the paramedics in the ambulance and being told not to go to sleep.
PART D
The Investigation
At approximately 7:41 p.m., Visalia Police Officer Jennifer Salmon received a dispatch of a shooting at Jackson’s house on Vassar. She arrived within a minute, walked up the driveway, found the front door open, and heard screams from multiple people inside the residence. Officer Salmon drew her weapon, stayed outside, and announced her presence and identity. Salmon looked through the front door and could only see the living room and hallway areas. Jackson appeared in the kitchen and was partially blocked by a partition. Jackson screamed frantically for Salmon to enter the residence. Salmon stayed outside and shouted at Jackson to tell her where the gun was.
Officer Salmon testified she was still standing outside the front door, shouting directions to Jackson, when she heard the second gunshot. Salmon was looking at Jackson when the shot was fired. Jackson was frantic and shouted that his dad had been shot. Salmon again shouted at Jackson to tell her where the weapon was. As Salmon shouted at Jackson, appellant ran out of the front door with K. in her arms. Salmon was concerned for their safety and asked appellant if they were okay. Appellant said they were okay and not injured. Salmon told appellant and the child to stay in the front yard. Appellant was very excited and upset but she responded to Salmon’s question and appeared to understand Salmon’s instructions to stay in the front yard. Appellant and the child did not have any apparent injuries.
Officer Salmon turned her attention back to the interior of the house. Jackson left her view after the shot was fired, then returned to the front door and was irritated that Salmon was still outside. Salmon stayed outside because she could not see his hands. Salmon heard the sound of the slide action on a semiautomatic gun, and Jackson lobbed a handgun over the partition and into the living room so Salmon could see the weapon.
Jackson had left the telephone open while he waited for the police, and the 911 dispatch tape recorded the events which occurred in the house. The prosecution played the tape-recording of the 911 call at trial, and Officer Salmon identified her own voice. On the tape, Jackson told the dispatcher that his wife just got shot in the chest and she was bleeding. The dispatcher asked who shot her and Jackson said a gun discharged by accident. The dispatcher said someone was on the way, and Jackson repeatedly gave his address and said to come now. There was yelling and crying in the background, and a male voice asked someone “[w]hy did you do that?” A female voice said, “I don’t know” and “I’m sorry.” A child was crying, there was screaming and crying, and the dispatcher tried to get the caller back on the phone. A man picked up the telephone and asked if someone was coming. The dispatcher asked who shot the gun, and the man said he did not know and just to send someone now. There was more screaming and crying in the background, and another voice, Officer Salmon, identified herself as a police officer and asked where the gun was. A man’s voice replied it was right here, and then the tape-recording picked up a loud pop in the background, accompanied by screaming and yelling, which was the second shot. The man’s voice said “What are you doing?” A female voice replied, “I don’t know.” Salmon asked where the gun was, and the man said it was right here and repeatedly said it was clear. Another man, presumably Jack, said he was hit on the leg, and Jackson said his dad and wife were hit. The officers entered the house, Jack said he was hit in the leg and Kerri was hit in the shoulder, and Kerri said her baby was in the other room.
Officer Salmon testified she ordered Jackson to walk out of the house with his hands up, and he complied and was placed in handcuffs. The officers took Jackson into custody because they were not sure what had happened in the house. Salmon secured the weapon, racked the slide and cleared it, and determined the chamber did not contain a live round and the weapon was not loaded with a magazine.
The officers entered the residence and found Kerri seated at the dining room table, with Jack next to her. Both of them were bleeding, and Jack was still applying pressure to Kerri’s chest wound. Jack shouted at them to help Kerri. Jack said he had been shot in the leg near an artery and thought he was going to pass out.
The officers cleared the house, and the dining room table and chairs were moved so the emergency personnel could get to the victims. Kerri had suffered a gunshot wound to the upper chest. She was conscious, alert, and responded to a firefighter’s questions. She was in quite a bit of pain, gasping for air, and having trouble breathing. Another firefighter cared for Jack. Both victims were transported to Kaweah Delta Hospital.
Jackson testified the police threw him down to the ground and placed him in handcuffs. Jackson was arrested and placed in a police car. Jackson waited in the patrol car at the scene and asked an officer about his wife. The officer erroneously replied both victims were dead. Jackson testified he was destroyed by this news. Another officer later told Jackson the victims were alive.
The officers found one spent shell casing was under the dining room table, and another spent casing on the kitchen floor. There were also two live rounds on the floor near the counter that separated the kitchen from the dining room.
Detention of appellant
Donald McMillan was visiting the residence across the street from Jackson’s house when he heard gunshots. McMillan looked toward Jackson’s house and saw an armed officer at the door. McMillan saw an older woman leave the house, followed by a young child running after her. The woman went up the street and the young child ran into the middle of the street to follow her. McMillan caught up with the child, picked her up, and took her to the officers at Jackson’s house. Ann Marin, another neighbor, saw a woman running away from the area. The woman tripped and fell, got up, and continued running away.
The officers obtained custody of K., found J. in the house, and assumed the care of both children since Kerri and Jack were being taken to the hospital, appellant had run away, and Jackson was in custody.
Officer Brian Young responded to the dispatches of shots being fired and that “a female subject with long hair had been reported to be jumping fences from the scene, and witnesses had stated that a subject was possibly hiding in the bushes near the area of Pinkham and Tulare.” Officer Young arrived in that area, which was about six to eight blocks from Jackson’s house on Vassar, and 12 to 14 blocks from appellant’s house on North Simon.
Officer Young learned from another officer that witnesses saw a subject running along a fence line along one of the properties. The officers found foot tracks around the front and back of a residence on Pinkham. An officer with a K9 dog joined the search but the footprints led to cement and they lost the scent.
Officer Young checked the adjoining parcels but returned to the first residence and found blood on the top lid of a large green rollaway trash container in an open carport. Young thought someone might have climbed on top of trash container to get on the roof, but then he noticed blood droplets on the cement. Officer Young opened the lid on the trash container and found appellant inside. Appellant was completely naked and crouched down in the trash container. She “stuck out a piece of vegetation out away from ... her body, and it appeared to be a sign of offering of peace, like extending out a olive branch.” Young thought it was comical and laughed.
Officer Young asked her name, address and birthday to identify her. Appellant said she was “Donna” and she was five years old. Appellant said she wanted her father contacted and said he lived in the woods. Young asked how they could get ahold of her father. Appellant said he did not have a telephone number because he lived in the woods. Appellant said someone had been following her and she must have consumed a spiked drink.
Officer Young observed injuries to appellant’s wrist and leg, and called for an ambulance. Young testified appellant “appeared to be disoriented or altered” throughout his entire contact with her. Appellant was removed from the trash container, covered with a blanket, placed on a stretcher, and taken to the hospital in an ambulance.
Officer Brokh off was present when appellant was found, and testified she was completely naked, had cuts on her right wrist and right leg, and appeared disoriented. Brokh off admitted the officers laughed about the situation: “I can honestly say I’ve never seen anybody inside a dumpster before and especially naked.” The officers found appellant’s black shirt and bra in the garbage container after she was removed, but did not find her pants.
Appellant’s statements in the ambulance
Officer Young testified that he accompanied appellant to the hospital in the ambulance for the safety of the emergency personnel because appellant was disoriented. Young considered appellant detained and not free to leave. Young had not been to Jackson’s house or spoken to the investigating officers at the scene, he did not know about the domestic relationships involving the subjects, and he just knew a firearm had been used at the scene.
Officer Young testified EMT Molloy was in the ambulance during the trip to the hospital, and Molloy was seated near appellant’s head while Young was near her feet. Appellant still “appeared to be disoriented or altered.” Young testified that appellant “made statements about being molested and a statement about her father actually being the father of the grandchildren.” Appellant asked Young “how would I feel or how would it feel to have that molestation going on? And her demeanor changed, and she had made mention to saying her name was either Rena or Raya.”
Officer Young testified appellant was rambling but she was “pretty adamant about something happening about being molested,” and that Officer Fitzpatrick or Fitzgerald from Oregon knew what she was talking about. Young asked what he knew, and appellant said he knew bad things and he was a bad person. Young testified appellant then said, “‘He was fucking the daughter-in-law, and I shot her.’”
In section I, post, we will address appellant’s contention that the court should have excluded this statement as the product of an illegal custodial interrogation in violation of Miranda.
Statements from the parties
Kerri and Jack were taken to Kaweah Delta Hospital. An officer spoke to Jack in the emergency room, and he was concerned about appellant’s well-being. Appellant was also taken to the hospital and handcuffed to a gurney. She had scratches on her legs and feet, dirt on her knees, and a bandage on her right leg.
The hospital advised the police that Kerri was in critical condition and could die. Detective Carr rushed to the hospital and obtained a brief statement from Kerri before she was taken into surgery. Kerri was alert, responsive, and scared, and said appellant fired the gun. Detective Carr contacted Jack in another room. Jack was in a great deal of pain but also said appellant fired the gun. Officer Salmon advised Carr she allowed appellant to leave the scene because Jackson had the gun and the clip.
Jackson was taken to the police department and Detective Carr interviewed him that night. Jackson testified he told Detective Carr that he just wanted to get out of there, go to the hospital, and see his wife. Jackson testified that Carr said he could see his wife if he answered some questions. Detective Carr testified Jackson was detained as a suspect, even though he was “pretty sure” he did not fire the gun, because Carr was not sure of his role. Carr testified he advised Jackson that Jack and Kerri seemed to be doing okay, that he needed to do the interview to exclude him as a suspect, after which he could go to the hospital.
Jack testified the bullet went into his left thigh, through his groin, and lodged in his back. Jack had surgery at the hospital but the bullet stayed in his body, and he regained full use of the leg within a year. Jack spent about four or five days in the hospital. He was heavily medicated and had IV drips in both arms. The medication often knocked him “right out,” and he could not remember what he said or did while he was in the hospital, and was often unaware of his surroundings.
According to Kerri’s medical records, which were introduced into evidence, she suffered a “large caliber gunshot wound to the upper left chest,” which resulted in a shattered left clavicle, massive bleeding, and hypovolemic shock. She also suffered a wound to her right upper arm. Kerri was briefly treated in the emergency room and immediately taken into surgery. There was massive internal bleeding and the bullet entered the anterior chest, went through the clavicle and the subclavian vein, entered the left upper lobe of the lung, and went through the rib and the back. The arm wound destroyed part of the deltoid muscle. Kerri was in the intensive care unit for one week, and remained in the hospital for about one month.
On March 22, Detective Carr interviewed Kerri, who was still in the hospital. Carr testified Kerri appeared to be afraid of him. Kerri knew appellant was in jail, and Carr thought Kerri felt responsible. Carr told Kerri that he did not think it was an accident, he made the statement to show her some support, and Kerri said thank you.
Kerri testified she spoke to Detective Carr while she was still in the hospital, and Carr never gave his opinion about what happened. The transcript of their interview, however, reflected that Kerri told Detective Carr that the shooting was not an accident, and Carr replied “‘that’s why she’s in jail because I did not believe it was an accident,’” Kerri said thank you, and Carr said he “‘did not … believe it was an accident from the beginning.’” Kerri testified she did not feel Carr was giving his opinion about the incident.
While Kerri was in the hospital, Jackson noticed a small piece of glass or plastic on her face. Jackson told Detective Carr about the piece, and Carr told him to throw it away.
As will be seen post, defense counsel strongly argued the small piece was from the impact of the first bullet hitting the aquarium, and was the key to the defense trajectory theory.
After Jack was released from the hospital, Detective Carr contacted him at his residence and asked for an interview. Jack declined and told Carr not to contact him again. Jack testified he did not want to talk to Detective Carr about the events of that day.
“[R]ight before I got out of the hospital and became a little more coherent, I saw a newspaper article, and then I heard that my wife was being charged with—with all these ridiculous charges. I was assuming that she would be released based on what I saw. [¶] There’s no way based on what I saw that night and what I know about my wife and what led up to this, there’s no way. I mean, she won’t even let me kill a moth in the house, you know, let alone do violence to children or anybody she loved. It’s just—so that’s when I got scared, and I started getting more scared right after I got out of the hospital when Kerri’s story started changing about what she saw.”
On May 11, 2005, Jackson gave a statement to the public defender’s investigator, and he was cooperative and concerned about appellant. Jackson said Jack and appellant dry fired the weapon that day. When it was appellant’s turn to dry fire the weapon, she “held the weapon in both her hands and aimed it at the wall.” Jackson said he had burned his hands in the kitchen while he was making dinner, turned to look at appellant and Kerri for sympathy, and “heard” the first shot but did not see it. After the first shot, he was concerned that K. might get the gun so he found the weapon, racked out a couple of rounds, dropped and kicked it. After the second shot, he dropped out the clip and put it in his pocket, and jacked out a round.
On May 13, 2005, an investigator interviewed Kerri, who said she did not see appellant pull the slide back on the weapon before the second shot, but that appellant held K. with her left arm, picked up the gun with her right hand, brought it up, and fired.
Forensic evidence
There were consistent particles of gunshot residue on the hands of Jack and Jackson, consistent with either handling or firing a gun. There were “highly specific particles” of gunshot residue on appellant’s right hand, which could be consistent with using her right hand to discharge a firearm, but the criminalist was not sure if she had fired a weapon. Such residues also could have resulted from disassembling, reassembling, and dry-firing a weapon.
Nancy McCombs, a criminalist with the Department of Justice, testified about Jackson’s Glock handgun. McComb testified that a Glock semiautomatic handgun in normal working fashion could not fire until the trigger was pulled. The first round must be chambered manually through a loaded magazine. When the trigger is pulled, the slide moves forward, the recoil spring ejects the cartridge case, and another cartridge from the magazine is fed into the chamber. A Glock does not expel the spent cartridge in a specific direction, and the cartridges tend to eject in various directions and often hit the shooter.
McComb testified a Glock has three different safeties. The trigger safety was the external safety. A person had to pull down the trigger safety with steady pressure, and pull the trigger all the way back, for the trigger to actually release the internal hammer to strike the firing pin. There are two internal safeties which control the firing pin. The firing pin is a tiny rod inside the firearm which strikes the primer and causes the explosives inside the cartridge to ignite. The firing pin safety is a little internal plunger that goes down and blocks the firing pin from moving forward and striking the primer. The only way to release the firing pin safety is to pull the trigger all the way back, which allows it to disengage so the plunger rises and the firing pin moves forward. The other internal safety is the drop safety, which prevents the firing pin from moving forward until the trigger is pulled, and then it releases and allows it to go forward.
“So with each pull of the trigger, number one, you’re pulling the trigger safety first, then you’re pulling it back steadily with one continuous motion, and then it’s gonna disengage the first safety and then the second safety, and then it will fire.”
McComb testified the trigger must be depressed about a half inch to fire, and the standard trigger pull required to fire the Glock is seven to nine pounds of pressure. McComb conceded all the safeties are released if the shooter completely depresses the trigger in one continuous motion, and there are no external safety locks to prevent the trigger from firing.
McComb explained that if a person fires a Glock but does not hold it firmly, the barrel rises very sharply and the gun absorbs a lot of the energy from the slide motion, which is called “limp wrist phenomenon.”
“So what tends to happen is since that energy that’s needed for it to do its cycling is absorbed by the entire gun and not just the slide coming back, it will tend to when it goes forward not have enough energy to spit the cartridge case all the way out and what’s known as stovepiping will happen, which is when the cartridge case will get jammed in the ejection port while it’s closing, and it won’t get completely expelled from the gun.”
McComb testified that in the “stovepiping” situation, the weapon is jammed and cannot automatically fire again, and it happens “quite often in suicides because of the manner of the way the gun’s held.”
McComb also testified about accidental discharges, known as “slam fires.” If the firearm is jarred in some way, without pulling the trigger, it could possibly go off. McComb testified the magazine could be inserted with enough force to cause the slide to go forward and chamber a live round, but the gun could not be fired without the trigger being pulled. If the magazine was loaded, the slide pulled back, and the trigger depressed to the rear, the gun would still not fire unless the trigger was completely depressed. “[T]he trigger has to be pulled for the hammer to be—to release the firing pin and all the safeties to go off.”
McComb examined Jackson’s gun, disassembled and reassembled it, and determined it was functioning properly, fully operational, and had no defects. There was no visible blood on it, but she was not asked to check microscopically for blood. McComb determined the trigger pull on Jackson’s gun required between eight and nine pounds of pressure to release the hammer. McComb explained that a weapon with a light or “hair trigger” just needed one or two pounds of pressure to pull the trigger. An eight to nine pound trigger is “pretty heavy pressure,” but a child could fire a Glock.
Based on McComb’s examination, she believed the weapon would not fire unless the person’s finger completely depressed the trigger to the rear. If the weapon was fired, the cartridge ejected, and another round loaded into he chamber, the weapon was fully functional and ready to be fired again. If the gun was fired but not firmly held, “stovepiping” would occur and the next round would not be chambered, and a person would have to manually clear the expended cartridge from the chamber so the next round could be fired.
Additional prosecution evidence
At trial, Jack testified the situation in the house was “hellish” after the shootings. He could not forget some parts of what happened, whereas little details “kind of fade,” but “I dream it every day and night of what happened at that counter, at that table. I remember those things very well. I can’t forget ‘em, but the little details, they do fade.” Jack testified he regularly visited his wife in custody and maintained contact with her since her arrest. Jack testified he would “never forget” the events of that day, and thought about the incident “[e]very waking moment, every night, every day, every year ....” Jack declined to speak with Detective Carr and instead gave a longer statement to the public defender and defense investigator because “it was important to get the truth out, but I was not comfortable with giving it to the police officers because I felt the charges that had been brought against my wife were untrue.” Jack had information but wanted to get it “in the right ears first.” He saw newspaper articles with “horrible things that weren’t true, and I felt that making any statement to law enforcement at that time would not be in my wife’s best interest.”
Appellant was in custody for the entirety of the case.
Jack testified he had no doubt as to his description of the shooting “because it’s been in my head for a year every minute, every second of every day, even when I dream, I see it, and I know that to be true.” Jack would not lie under oath to save his wife. “No, sir. If I hadn’t seen what I had seen that night and know my wife like I know my wife, I wouldn’t be here—it wouldn’t be my honor to defend her. I know what I saw, and I’m sure of it.”
Kerri testified that while she was in the hospital, Jackson told her the shooting was an accident and appellant was sorry and it was going to be okay, but Kerri replied it was not an accident and she saw what happened. Kerri testified she never told Jackson it was okay or that she knew it was just an accident.
Kerri conceded that one of the investigators asked if there was a reason appellant would shoot her, or if they had any fights or arguments, and Kerri said no. Kerri explained that she said no because there were no problems between them in the weeks or hours before the shooting. Kerri later told Detective Carr about appellant’s prior accusations and the tension between them.
Jackson testified he talked to Kerri about the incident while she was in the hospital, and she was quite clear about what she believed happened at the house. Kerri’s attitude toward Jackson changed and they had considerable disagreements about what happened.
Jackson testified that after Kerri was released from the hospital, they moved to another house. In April 2005, Mr. Ward, the deputy district attorney who tried the case, and Mr. MacDonald, an investigator for the prosecutor’s office, arrived at their house and asked to talk with them. Jackson testified the conversation made him feel torn and had an emotional impact on him. After the men left, Kerri told Jackson that she would leave him and take the children if he gave any information to the defense or testified for appellant.
Jackson testified they argued about whether he should speak to the defense, and Kerri eventually left him and took the children. Jackson testified they separated and divorced “[s]hortly after” Kerri sued Jack, about five months after the shooting. Jackson testified he still loved Kerri and he loved his mother, but he would not lie or fabricate his testimony to help either of them.
Kerri testified there was tension between Jackson and herself after the shooting. Kerri testified that in July 2005, she decided to divorce Jackson because she learned he was having an affair, and Jackson moved out of their house in late July 2005.
Kerri admitted that in June 2005, she consulted an attorney to initiate a lawsuit against Jack and appellant. She felt it was her right because of what happened to her. Kerri later settled with appellant and Jack for $100,000 but some of the money went to her attorney and her two children. Jackson did not get any of the money. Kerri admitted she left numerous telephone messages for Jackson to call her, that he should not worry about the lawsuit because it would not cost Jack any money, and that they needed to talk, but Jackson never responded and he never moved back in.
PART E
Defense Evidence
Danielle Molloy, an emergency medical technician, accompanied appellant in the ambulance to the hospital, and an officer rode in the back with them. Appellant was handcuffed to the gurney and Molloy considered her to be in custody. Molloy was within one foot of appellant and facing her. Molloy could not recall the officer’s location, but testified she was closer to appellant than anyone else in the ambulance.
Molloy testified appellant was in a “really altered” level of consciousness. Appellant was talking but she was “very confusing. It was hard for me to understand certain things, and then at times, she was very coherent.” At other times, her statements were incoherent and incomprehensible. Molloy described appellant as “schizophrenic.” Appellant’s frame of mind was very scattered, and “there were times when I could understand what she was saying, and there were other times when I couldn’t understand what she was saying.”
“There were times when she would start a sentence and stop a sentence, and then she would go off on a completely different tangent. It was very—just very confusing to try to understand. I was trying to understand what she was saying and where she was at and based on that.”
Molloy testified appellant’s statements did not seem to be connected.
“I remember her saying something about children or being molested. Then she would refer to—she would say she was somebody else, and then she would refer to other people. It was really hard to understand what she—it was hard to follow her train of thought.”
Appellant used the name “Regina,” but also referred to different points in time, and it was hard to follow what she was saying.
“[S]he seemed to be making references to events that occurred, and I guess that would be in the past. ... [T]here were times when she would make statements saying something about Regina or being molested, things like that, but that they seem—there were times that she was inaudible in what she was saying. So it was hard for me to pick up.”
Molloy testified that during the entire ambulance trip, appellant talked about a molestation or “bad things,” said things “about girls something, like she was going to take it for them,” and referred to being Regina or someone named Regina. Appellant said “bad things had happened or bad things,” but she did not refer to the past or when the bad things happened. Appellant seemed to be referring to separate events and “would go back and forth.”
In her previous statement to the investigator, Molloy said she did not hear appellant say anything about Fitzpatrick or Fitzgerald. At trial, Molloy testified she might have heard appellant say something about that name, but Molloy was not sure if she remembered the name from appellant’s statements or from being asked about the name during the prior interview.
Molloy testified she did not recall appellant saying anything specifically about a daughter-in-law. “I remember[] ... her saying that he was fucking her, but I don’t remember her saying daughter-in-law.”
Appellant also said she had knives. “I remember her saying that she was going to take it for them, but I don’t remember if that was in reference to when we were talking about knives or if it was another episode of her going on a tangent.”
Forensic evidence
Allen Boudreau, a defense criminalist, testified as a ballistics expert and conducted a crime-scene reconstruction to determine the trajectory of the bullets. Boudreau testified that based upon the damage to the aquarium that Kerri had been putting together on the dining room table, Kerri was tilting the aquarium and the first shot hit the tank. Boudreau believed the small fleck which Jackson found on Kerri’s face in the hospital was plastic from the aquarium, and hit Kerri when the bullet hit the tank. Boudreau could not inspect the shard because it was destroyed.
Boudreau testified that appellant received nine stitches to her left palm at the hospital after the shooting, and the injury was consistent with her left palm getting caught in the gun’s slide after a round was ejected, as if she had grabbed the gun in a claw-like manner. Boudreau conceded it was possible to hold the handgun in a claw-like manner and fire it without the slide impacting the palm, as long as the shooter’s hand was not in the path of the slide.
Based on Boudreau’s opinions about the trajectory of the bullet, he concluded that appellant could not have held the gun with both hands and aimed it directly at Kerri when she fired it. Boudreau determined the first shot came from the left side of the south end of the dining room table. Boudreau believed the trajectory was consistent with appellant picking up the gun in her left hand, in a claw-like fashion, with her palm on the slide. She could have been startled when Jackson shouted about the hot oil, and the gun went off and the slide cut her left palm. The first shot likely knocked the aquarium off the table. Boudreau could not determine a scenario where the aquarium was hit by the second shot, based on the nature of the wounds and relative positions of Jack and Kerri.
Boudreau testified the prosecution theory appellant held the gun with two hands and fired was also refuted based on the location of the expended cartridges, and the trajectory through instead of over the aquarium. Boudreau discounted the possibility that the police or paramedics kicked the expended cartridges because he had no evidence the cartridges had been moved. Boudreau conceded that none of the police reports stated which bullet hit the aquarium. Boudreau was advised by defense counsel as to appellant’s location when the first shot was fired, and concluded the first shot hit the aquarium.
Boudreau testified that he used a different weapon, a Winchester .44-caliber rifle, to conduct trajectory tests through a similar aquarium, but insisted the results would not be “visually dissimilar” if he used a Glock handgun. Boudreau also admitted he did not have prior experience using plastic in recreating a gunshot.
Jack and Jackson recalled on defense
Jack and Jackson were recalled as defense witnesses to rebut aspects of Kerri’s prosecution testimony. Jackson testified that in late June 2005, Jack received a letter from Kerri’s lawyer, advising Jack that Kerri was going to sue him. Jackson testified he moved out shortly after Jack received the letter because the lawsuit “basically clenched it for me. I mean ... he’s a hero. He saved her life, and she sues him.” Jackson packed his things and moved in with Jack, and told Kerri the reason he was leaving her. They argued and Kerri told him several times that she would take the children and he would never see them again. Jackson testified:
“[Kerri] told me she was going to destroy me and my mom and my dad. She called me on the phone a couple times. She told me that she was taking acting lessons for this trial. She said that she was taking numerous steps to make sure that this trial ended the way she wanted it to end.”
Jackson testified that at the end of June and early July 2005, Kerri repeatedly called him at Jack’s house and left telephone messages. Jackson was upset about the messages but he did not return the calls. He later talked about the messages with Kerri. “[Kerri] just said that if I’m going to continue to support my mom and dad, that she was going to destroy us.”
In July 2005, Jackson regularly returned to Kerri’s house to visit his children. Jackson knew that Kerri later settled with Jack’s insurance company for $100,000, but Jackson did not get anything. Jackson also knew that in October 2005, Kerri had a new boyfriend and she told Jackson that “he’s her acting coach.” Kerri again told Jackson that she would “destroy us.”
“One is she’s taking acting lessons for the trial. Two, she’s gonna make sure I never see my kids again. Three, she’s gonna make sure that my mom goes away for the rest of her life.”
Dr. Velosa’s testimony
Dr. Luis Velosa, a psychiatrist, testified about appellant’s mental condition after the second shot was fired. Dr. Velosa reviewed appellant’s psychiatric and medical records, the law enforcement reports about the shooting, and also interviewed appellant.
The court instructed the jury that Dr. Velosa’s testimony could not be considered as to appellant’s state of mind before or during the shooting.
Dr. Velosa testified appellant suffered a very severe psychiatric problem in 2003. Appellant suffered a nervous breakdown, she became very delusional and psychotic, and her behavior became totally disorganized. She left Visalia and drove over 7,000 miles, “running away from ideas and thoughts” that Jack had sent people “to eliminate her and so forth.” At the time of the breakdown, she was on heavy dosages of two potent medications for chronic pain. She was taking nine pills of Flexeril at bedtime, whereas the usual dosage was two or three pills, and Darvocet twice a day. She was also receiving regular injections of Bontril, which is “kind of a[n] iffy medication which is to lose weight but has quite a bit of methamphetamines in it.” The effect of each medication was magnified by the impact of the additional medications, particularly the potent pain medications. Dr. Velosa determined she received prescriptions from physicians for these medications, but no one was watching for drug interactions.
Dr. Velosa testified that in 2003, appellant decided to stop these massive amounts of medications “cold turkey,” which was the worst possible thing to do. Instead, a physician should have slowly reduced the dosage or “there’s going to be some problems” where the brain “gets totally disorganized and psychotic.” Dr. Velosa believed appellant’s psychotic condition resulted from her decision to get off all the medications. Appellant experienced paranoid delusions that focused on Jack, and she thought Jack was out to kill her and hired people to get her. She also believed Jack was having an affair.
“[Appellant believed t]here was a threat, someone in her mind she realistically believed that she was in danger, and because she was in danger, she needed to get out of there, someplace. There was not any—even a specific plan in her mind.”
Dr. Velosa testified appellant ran away from home, initially stayed with her father in Clovis, but was so paranoid that she felt every single person was a threat to her. Appellant headed for the Sansum Clinic, then kept going and ended up in Seattle. She was so disorganized that she traded her car for another vehicle and repeatedly changed motels because she thought every single situation was a threat to her. Appellant kept running and went to Arizona and then Mexico, and feared Jack sent people there to kill her. Every time she saw a car with California license plates, she believed Jack was hunting her, and kept running. Her entire concept of reality was distorted. Appellant’s belief that Jack was hunting her was a fixed delusion.
Dr. Velosa testified appellant ran for two to three weeks, went through several states, and did not take care of herself. She was on alert 24 hours a day and sometimes would take off from a motel in the middle of the night if she heard sounds to trigger her paranoia. In late 2003, appellant was detained at a psychiatric hospital in San Diego on an involuntary three-day hold pursuant to Welfare and Institutions Code section 5150. She received the appropriate medication to stabilize her condition. She was then released to Jack’s custody, and he brought her back to Visalia. During that trip, however, appellant failed to take the medication and another psychotic episode was triggered.
Dr. Velosa testified appellant was admitted to Cypress Mental Health in Visalia and stayed there for three weeks. Dr. Velosa determined appellant received appropriate psychiatric treatment and medications to alleviate her psychotic thoughts. She received outpatient psychiatric treatment for eight to nine months. Thereafter, appellant did not suffer any further psychotic symptoms, and she was cleared to resume her teaching duties at the beginning of the school term in 2004.
Dr. Velosa also testified about appellant’s status immediately after the second shot was fired, when she picked up K. and ran out of Jackson’s house. In a hypothetical, Dr. Velosa was asked to assume that appellant believed people dressed in black were chasing her, and she wet herself and removed her sweatpants. Dr. Velosa opined that appellant’s state of mind in such a situation as “the short version of what happened in 2003.” Dr. Velosa cited to his interview with appellant, in which she could not remember everything that happened.
“[Appellant] went through a state of mind where she felt again—and she said oh, my God, someone is shooting at us—she needed to protect first her girl. She saw some persons in black, she said. She couldn’t able [sic] to distinguish that it was a badge or such. She gave that, and then she start[ed] running.
“I asked [appellant] why were you running? In her mind, she said I’m going to protect my family, and if these people are going to chase somebody, might as well chase me, and she start[ed] running … just keep on going, keep on running. She was so fearful that basically she pee[d] on her pants, and she kept on running.”
Appellant told Dr. Velosa she kept running and jumped fences, and suffered the lacerations on her arms and legs. Appellant said she was checking whether a police car or other vehicles were following her, and that people were going to hit or kill her. Dr. Velosa testified appellant was again “into this bizarre, paranoid mode that someone was after her.” Appellant said she hid in some bushes and a lady found her and threatened to call the police. Appellant became frightened and started running again. She jumped another fence, fell down and hurt herself, and was bleeding.
Dr. Velosa explained the reason for appellant’s reactions and conduct after the second shot, that it was very typical to have a witness to a very catastrophic situation “to revert back into the same kind of a brain pathology that she was exhibiting way back. So during that time, right after the alleged offense, [appellant] was in a paranoid state.” Appellant ran for the same reason as she did in 2003, because she thought she was in danger and something really bad had happened and was going to happen to her, and she was in a psychotic state.
Dr. Velosa explained that after the second shot, appellant suffered a brief psychotic disorder, characterized by delusions of paranoia that someone was after her, and she was not thinking clearly. Such thinking could easily happen after a catastrophic event, and it could last from one hour to one day. Appellant’s conduct was consistent with his professional experience of “seeing psychotic individuals and what the psychiatric reports in hospitals or a psychiatrist, all of them fit very well.”
On cross-examination, Dr. Velosa testified the sole causal factor of appellant’s brief psychotic episode was enduring the traumatic episode of the second shot. Appellant was going through the episode while she was running and hiding. Appellant was still in a psychotic state while she was in the ambulance, and the nurses at the hospital noted she was confused there. A person in such a state does not have a good memory of events.
Appellant’s testimony
Appellant testified at trial about her conduct in 2003. Appellant testified she had been taking a “variety” of pills for pain and fibromyalgia. She also went to a weight clinic in Fresno and received a supply of Bontril injections to take at home. Appellant stopped all the medications “cold turkey” in the summer of 2003, without the assistance of a physician. Appellant testified that something happened to her, and she believed Jack was going to kill her either because he was tired of her, there was someone else, there was money involved, or he just did not want her around anymore. She left home one night, took her Glock handgun, and stayed with her father in Clovis, and then told her family she was heading for the Sansum Clinic in Santa Barbara. She cleaned out the checking account, drove north nonstop, and ended up in Seattle. Appellant testified she lost her Glock handgun after the first day.
Appellant testified she felt she was being followed and Jack put a tracking device on her car. She traded her vehicle for another car in Seattle, then drove “all over,” to Nevada, Arizona, in and out of California, and over the Mexican border a couple of times. She ended up in San Diego, called Jack and asked him “to call off his dogs,” and thought she saw people closing off the exits to the parking lot. She drove onto the freeway and pulled into the United States Navy base, and thought “there’s the good guys,” and told them what was going on. The police arrived, they were very nice, and she ended up in a mental hospital for three days. Jack and Jackson flew down to get her, and she stayed in a mental facility in Visalia for three weeks. She received “some really good medications that seemed to help me a lot,” and no longer thought Jack was going to kill her. Appellant also went through out-patient treatment which ended in 2004, and testified her problems never recurred.
Appellant testified that during that time, she never believed Jack was having an affair with Kerri, and had no specific recollection of saying that to Kerri or accusing Jack of fathering Kerri’s children. Appellant admitted it was possible she made such accusations because she said “some of the most incredible strange things to people during that time. So I’m not saying it’s impossible.”
Appellant testified about the events of the shooting, and that Jackson called and invited them to dinner on the spur of the moment. When appellant and Jack arrived, Kerri and K. were leaving the house. Appellant and Jack went inside and Jackson fixed them a new and expensive drink. Jack wanted a beer, and appellant did not want to try the drink because she was not a drinker. She later took a sip of the drink but asked Jackson for something else, and Jackson poured some tea.
Appellant testified Jackson brought out his gun and showed it to Jack. Jackson broke down the gun and placed the gun parts in her hands, then put the gun back together again. Jackson asked her to dry fire the weapon, which meant to pull the trigger when it was unloaded, and appellant did so twice with her right hand. Jack heard Kerri’s van return and said they were home. Jack was holding the gun at that time, placed it on the dining room table, and told Jackson to put it away. Jackson was cooking in the kitchen. Appellant assumed Jackson would obey his father but she did not pay attention and did not notice the gun’s location.
Appellant testified she was sitting on the south side of the table when Kerri and K. entered the house. Jack and K. went outside to the front yard. Kerri brought some packages in the house, placed them on the dining room table, and sat down on the north side, opposite to appellant. Kerri took out an aquarium from the packages and started to assemble it. Appellant was still sitting on the opposite side of the table and did not notice the gun was still on the table.
Appellant testified she talked with Kerri about the children, and Jackson joined the conversation as he continued to cook. Kerri remained seated at the table and kept working on the aquarium, and tilted it to place the gravel at the bottom. Jackson shouted at the dog because the dog urinated on the floor and Jackson stepped in it. Appellant and Kerri laughed about it, and Jackson got upset and cleaned the floor with a towel. Jackson briefly left the kitchen and threw the towel into the garage. Appellant was alone with Kerri for a few seconds, and testified they were still laughing at Jackson. Appellant still did not see the gun on the table, and testified there were a lot of things on the table.
Appellant testified Jackson returned to the kitchen and continued cooking. Jackson was about to place the chicken in a wok, and appellant asked if he cleaned the meat. At that point, appellant noticed the gun was on the dining room table, within her reach and pointing north toward Kerri. Appellant was concerned because Jackson failed to put away the gun, K. might be able to reach it on the table, and the gun was pointing at Kerri.
“I was sitting ... on the edge of my chair, and ... I had my legs crossed. I was kind of sitting up close to the table. I reached over, and my--my job was going to be at that point was to move [the gun] from the table to the counter. That’s all I was going to do is get it away.”
Appellant reached for the gun with her left hand “[b]ecause that’s where the gun was” and she was just moving it. “I wasn’t planning on, you know, handling it. I was just going to move it across.” Appellant testified she did not cock the weapon or pull back the slide.
“I picked it up—I had palm down, and like I said, the barrel was pointed at Kerri. So I picked it up probably like that, and it evidently—I’m not aware, but evidently, my finger was in the trigger guard at some point. I’m not sure when that happened or if I started that way because as I was—I just barely put my hand on it.”
Appellant testified Jackson dropped the chicken into the wok and said, “‘Oh, fuck.’” Appellant knew something bad happened because Jackson did not use that language, she flinched, and the first shot was fired. There was a pause between the time she picked up the weapon and when it went off. She felt a sting on her hand after the shot. Appellant “tried to shake the gun loose,” sat back in her chair, and “lost sight of the gun.”
Appellant testified she never intended to shoot the gun, she felt like she was stung, and the gun slipped out of her hand. Jackson screamed and asked what was wrong and whether she was shot. Jack returned into the house. Appellant did not feel anything and did not know what was happening. It was extremely quiet and appellant lifted up her shirt to see if there was any blood. Jackson told appellant she was okay, then looked across the table and said that Kerri had been shot. Jackson moved toward Kerri, who was sitting there quietly in the same place.
Appellant testified everyone was moving in slow motion and she repeatedly screamed to call 911 and get an ambulance. Jackson went to the telephone and appellant “screamed to Jack” and she was “giving orders. That’s the only time that night I really gave any orders.” Appellant told Jack to save Kerri and thought he could handle the emergency. Jack started to help Kerri, and he told appellant to take care of K. and get her. They were “having to holler” because their ears were ringing from the gunshot.
Appellant testified she stood up to get K. Appellant went down and held K. against her leg, and tried to prevent her from seeing Kerri, who was bleeding heavily. Appellant held K. “really, really tight,” and Jackson went back and forth between the telephone and the door. K. turned around and broke free of appellant, and went into the kitchen. Jack shouted at appellant, and she turned around and saw that Kerri’s head was back. Jack shouted at Kerri to stay with him and wake up. Appellant testified she never looked Kerri in the eye or made eye contact with her. “I wanted to. That was my biggest wish.”
Appellant testified she crouched down and grabbed K. with her right hand, and Jack shouted at her to get the gun. Appellant and Jack had “perfect eye contact” with each other, and he was looking at a specific location. Appellant still held K. with her right hand, K. was squirming, and appellant and K. were both screaming. Appellant testified she had no concept of time because “I was in shock.”
Appellant saw the gun and grabbed it with her left hand while she was holding onto K. She had to reach back to get the gun. K. was kicking and trying to get loose. The gun slipped, and she heard “another boom” as the second shot was fired.
“I didn’t—you know, I had to have my finger in the trigger, but there was no—no time that when—I actually just picked it up like that. I picked it up kind of like over here still trying to keep her ‘cause I can’t hold her up here when I’m getting it, so I had to reach back a little bit, and that’s—and I started to pick it up ‘cause I’m right by the counter, and that’s when—it slipped a little, and I grabbed it, but it went off.”
“It did go off. My finger had to be in the trigger, and I made it go off.” “I didn’t even believe that that gun had went off.” The second boom was as loud as the first boom. Appellant was positive she did not rack the gun, she did not point it at Kerri, and she did not make eye contact with Kerri.
Appellant testified that after the second shot, she looked at Jack and he “mouthed the words I’m hit or I’m shot.” Kerri did not look like she was alive, but Jack kept working on her and did not give up.
Appellant believed someone was outside and shooting into the house because “there’s no way on this green earth that that gun could have gone off.” It didn’t make sense that the gun fired from her hand. Instead, appellant thought the shot came from the backyard, someone fired at her, missed, and hit Jack instead. Appellant could not stop screaming and nothing made sense to her.
Appellant testified she did not intend to shoot Kerri or Jack with the second shot.
“I was—I know what I was screaming at the beginning, you know, and I was—I just wanted Kerri to hear because she was dying, I wanted her to know that I was sorry. I screamed I’m sorry, I didn’t mean to. Oh, God, I was praying, please watch—it was just—I’m really as clear as I can be right now on that.
“As often—I’ve had 380 days in jail locked up, 8,000 hours to think about every minute, and I—what I’m telling you is going to be as clear as I can remember every detail, and I don’t remember exactly what I was screaming all the time, but I do know I wanted her to hear me ....”
Appellant testified Jackson said to get K. out of here, “then things made sense.”
“If somebody’s out there wiping out our family, that’s all there is. We got two down, three to go, They missed me. They got two of ‘em, and Jackson wants me to get the baby out ....”
Appellant held K. and ran out of the house. When she reached the door, she saw a person with a badge and thought it was “the good guys,” and handed K. to “one of them.” Appellant looked around and saw people dressed in black.
“I put it together that they were part of the team in the back; … that they had no idea that somebody was gonna come out of that house alive, and so I just started walking, and in my mind, it’s like you’re hunting. Here I am, here we go, and so I’m walking ‘cause I’m not trying—I want to give them plenty of time to see me, and I’m walking, and then I start picking up speed a little bit.”
Appellant turned the corner, kept running, and urinated on herself. Her black sweatpants became heavy, she took off the pants and left them on the street. She removed a necklace which Jack gave her, broke it, and left it on the street as a marker, so Jack could find her if he was looking for her. Appellant went in and out of residential yards but kept watching the cars, and thought they were part of the hunting team that wanted to kill her, but she did not know why. Appellant crouched down in a front yard, and an older lady confronted her and threatened to call the police. Appellant wanted to see the police but thought the woman had a gun. Appellant took off and tripped on a tree root. She fell down, she was hurt and bleeding, and could not walk. Appellant believed she fell several times.
Appellant crossed the street and saw some trash containers.
“I thought that would be a place that I could—could get into for a little bit, get out of—get off the street, and I don’t know why I thought that I could get into that. There was two cans for garbage and one can was green waste, and I managed to get into the green waste can.”
Appellant had no idea how she got into the trash container. There was blood all over her body, and she took off her shirt and wiped herself. She heard voices nearby and did not feel safe, and crouched down in the container. She felt trapped.
“I don’t remember a lot. I do remember hearing several men laughing, like—like really hard laughing. It was—I was—that’s what my main memory of that, and then the next thing I remember, I’m being taken to the hospital in an ambulance—I didn’t know where I was going. I was in an ambulance ....”
Appellant remembered people talking “at me” in the ambulance, but she had no recollection of any conversations. Appellant was aware of the testimony about her statements in the ambulance and explained that when she was a girl, she lived in a small town in Oregon, and her fourth-grade sister was molested by a neighborhood boy. Appellant told her father, who said he was going to shoot the boy. Appellant was four years older than her sister, and told an officer that her father was going to shoot the boy.
Appellant testified it was never her intention to shoot Kerri, “as God as my witness.” She did not aim the gun at Kerri, she did not hold it with a two-handed grip, she did not fire with her right hand, and she did not rack the slide. She did not have any arguments or disagreements with Kerri at that time, she had no motive to intentionally shoot her, and both shots were complete accidents. Appellant admitted her finger must have been on the trigger for the first shot, and the gun just did not go off on its own for the second shot, but both shots were fired accidentally.
Issues on Appeal
Appellant was convicted of two counts of premeditated attempted first degree murder as to Kerri, two counts of assault with a semiautomatic firearm as to Kerri, and one count of assault with a semiautomatic firearm as to Jack, and the jury found the firearm enhancements true. She was sentenced to life in prison plus 25 years to life for the firearm enhancement.
On appeal, she contends the court should have excluded her statement in the ambulance—“‘[h]e was fucking the daughter-in-law, and I shot her’”—because it was obtained during a custodial interrogation in violation of Miranda. As to the two counts of attempted first degree murder, she contends there is insufficient evidence of premeditation and deliberation. She argues defense counsel was prejudicially ineffective because he failed to redact references in her medical records to her marijuana use, and counsel never waived her presence when the jury asked to hear testimony during the deliberations.
DISCUSSION
I.
ADMISSIBILITY OF APPELLANT’S STATEMENT
Appellant contends the trial court erroneously denied her pretrial motion to exclude Officer Young’s testimony as to the statement she made in the ambulance—“‘He was fucking the daughter-in-law, and I shot her.’” Appellant asserts the statement was obtained as a result of custodial interrogation in violation of Miranda because she was in custody in the ambulance, the statement was made in response to Officer Young’s question, and she had not been advised of the Miranda warnings. Appellant argues the admission of this statement was prejudicial error and requires reversal of her convictions. Respondent contends her statement was voluntary and not the result of custodial interrogation.
A. Background
The prosecution filed a pretrial motion in limine to introduce the statement appellant made in the ambulance—“[h]e was fucking the daughter-in-law, and I shot her”—as voluntarily and not obtained as a result of custodial interrogation. The prosecution’s motion was based on Officer Young’s testimony at the preliminary hearing. Appellant filed opposition and argued the statement was obtained in violation of Miranda.
The court conducted a hearing on the admissibility of appellant’s statement and reviewed Officer Young’s preliminary hearing testimony. At the preliminary hearing, Officer Young testified he responded to a dispatch to search the area for a female subject. He had not been at Jackson’s house, he had not been briefed on the facts and circumstances of the incident or the identity of the victims, and he did not know if there were other parties involved in the incident. The officers found appellant in the trash container. Appellant said she was “Donna” but was not responsive to the officers, and an ambulance team arrived and removed her from the container.
Officer Young testified he accompanied appellant to the hospital in the ambulance. Young testified appellant was not free to leave, and he did not advise appellant of the Miranda warnings at any time during the ambulance trip. Young also testified appellant appeared to be “altered” or disoriented throughout his entire contact with her. The ambulance trip from the scene of the trash container to the hospital took approximately five minutes.
Officer Young testified that during the ambulance trip, he did not ask appellant any questions but she spontaneously made statements that she had previously been molested. Appellant asked Young to contact her father, and said he lived in the woods but she did not have his telephone number. Appellant gave the name “Regina or something along that line,” said she was five years old, and that “the father was the grandfather of the children.”
Officer Young testified appellant next mentioned a police officer in Oregon named Fitzgerald or Fitzpatrick. Young testified that in response to her statement about the officer, he asked her “[s]omething to the effect of, you know, who is he and what does he know regarding the molestation?” Appellant said “something to the effect of that he knew bad things and he was a bad person.” Officer Young confirmed that in his police report, he wrote that appellant referred to an officer in Oregon named Fitzgerald or Fitzpatrick, this officer knew everything, Young asked appellant what he knew, and appellant said he knew bad things and he was a bad person.
Officer Young testified he did not ask appellant another question and there was a pause and “a stop in dialogue.” Young testified that within a “mere matter of seconds,” appellant said “something to the effect” of “‘[h]e was fucking the daughter-in-law, and I shot her.’” Young testified this statement caught him “completely off guard” because his “mind set” was “totally on the active allegation and wanting to maybe contact this officer not only for the allegation of the molestation but to find out if he had any information regarding her identity or her mental status.”
At the pretrial hearing on the admissibility of appellant’s statement, the prosecutor conceded appellant was in custody in the ambulance, but argued appellant’s statements in the ambulance were voluntarily and not the result of an illegal custodial interrogation. The prosecutor acknowledged Officer Young asked appellant about her references to the officer in Oregon, she responded to that question, but there was a pause or delay and then she made the reference to the daughter-in-law and the shooting. The prosecutor asserted that Officer Young’s brief question did not constitute interrogation, but he merely sought to follow-up or clarify whether he should contact the officer in Oregon. The prosecutor agreed that clarifying questions could potentially go too far, but Young did not initiate or continue a dialogue with appellant.
Defense counsel argued appellant only made the statement about the daughter-in-law after Officer Young asked her about the officer in Oregon. Defense counsel asserted that Officer Young knew a crime had been committed, asked her a question about it, and elicited a response from her.
The court advised the parties of its tentative ruling to admit Officer Young’s testimony about appellant’s statement in the ambulance, but took the matter under submission to review the preliminary hearing testimony. The court subsequently issued a minute order which overruled appellant’s objections to the admission of her statements in the ambulance to Officer Young.
As set forth ante, Officer Young testified for the prosecution as to appellant’s condition during the ambulance trip and her rambling statements. Defense counsel renewed his objection to this testimony and the court denied the motion. Defense counsel then made a tactical decision to introduce the entirety of appellant’s statements in the ambulance to give context to her altered condition. Defense counsel also called Ms. Molloy, the EMT who was in the ambulance with appellant and Officer Young, who testified that appellant made statements about a girl being molested, and said “that he was fucking her,” but Ms. Molloy did not remember appellant saying “daughter-in-law.”
B. Interrogation and Clarifying Questions
Appellant asserts her statement in the ambulance was obtained as a result of custodial interrogation in violation of Miranda. “The prophylactic requirements of Miranda, supra, are familiar. In order to assure protection of the Fifth Amendment right against self-incrimination under ‘inherently coercive’ circumstances, a suspect may not be subjected to an interrogation in official ‘custody’ unless he has previously been advised of, and has knowingly and intelligently waived, his rights to silence, to the presence of an attorney, and to appointed counsel if he is indigent.... Statements obtained in violation of Miranda are not admissible to establish his 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 advisement of Miranda rights is only required when a person is subject to custodial interrogation. (People v. Mickey (1991) 54 Cal.3d 612, 648 (Mickey); People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) Custodial interrogation has two components. First, the person being questioned must be in custody. The second component is obviously interrogation. (Mickey, supra, 54 Cal.3d at p. 648; Mosley, supra, 73 Cal.App.4th at p. 1088.)
“We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Rhode Island v. Innis (1980) 446 U.S. 291, 300-302, fns. omitted (Innis).)
An incriminating response is “any response—whether inculpatory or exculpatory—that the prosecution may seek to introduce at trial.” (Innis, supra, 446 U.S. at p. 301, fn. 5.) Where a police practice “is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.” (Id. at p. 301, fn. 7.) “Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect.” (Id. at p. 302, fn. 8.)
“Absent ‘custodial interrogation,’ Miranda simply does not come into play. [Citations.]” (Mickey, supra, 54 Cal.3d at p. 648.) In light of Innis, the court has recognized that “[i]n deciding whether particular police conduct is interrogation, we must remember the purpose behind our decisions in Miranda and Edwards [v. Arizona (1981) 451 U.S. 477]: preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.” (Arizona v. Mauro (1987) 481 U.S. 520, 529-530.) Where government actions do not implicate this purpose, interrogation is not present. (Id. at p. 530.) Moreover, a police officer does not interrogate a suspect “simply by hoping that he will incriminate himself.” (Id. at p. 529.)
It is settled that “interrogation” does not include all exchanges between the police and a custodial suspect. Neither spontaneous nor volunteered statements are the products of interrogation and are not barred by the Fifth Amendment or subject to the requirements of Miranda. (Miranda, supra, 384 U.S. at p. 478; Innis, supra, 446 U.S. at pp. 299-300; People v. Ray (1996) 13 Cal.4th 313, 337 (Ray); 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 interrogation under Miranda. [Citations.]” (Ray, supra, 13 Cal.4th at p. 338, italics added.)
“Clearly, not all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response. [Citations.]” (People v. Clark (1993) 5 Cal.4th 950, 985.)
When reviewing a trial court’s ruling on a motion to suppress evidence obtained in violation of a defendant’s Fifth Amendment rights, we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. We independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained. (People v. Wash (1993) 6 Cal.4th 215, 235-236.) We apply federal standards in reviewing a defendant’s claim that the challenged statements were elicited in violation of Miranda. (People v. Bradford (1997) 14 Cal.4th 1005, 1033.)
In the instant case, the parties agree appellant was in custody when she was in the ambulance and being transported to the hospital, and she was not advised of the Miranda warnings. The parties also agree that appellant spontaneously volunteered statements in the ambulance about being molested and when she mentioned an officer named Fitzgerald or Fitzpatrick in Oregon. The disputed issue is whether Officer Young’s question about what the Oregon officer knew constituted custodial interrogation in violation of Miranda, and triggered appellant’s statement about the shooting and the daughter-in-law.
As noted ante, “[v]olunteered statements of any kind are not barred by the Fifth Amendment” and are not subject to Miranda warnings. (Miranda, supra, 384 U.S. at p. 478.) Consequently, “when a suspect spontaneously makes a statement, officers may request clarification of ambiguous statements without running afoul of the Fifth Amendment.” (U.S. v. Gonzales (5th Cir. 1997) 121 F.3d 928, 940 (Gonzales).) A defendant is not subject to interrogation within the meaning of Miranda and Innis when a law enforcement officer asks a reasonable follow-up question to a defendant’s volunteered statements. (Andersen v. Thieret (7th Cir. 1990) 903 F.2d 526, 531-532 (Andersen); United States v. Rhodes (4th Cir. 1985) 779 F.2d 1019, 1032 (Rhodes); Turner v. Sullivan (E.D.N.Y. 1987) 661 F.Supp. 535, 538 (Turner).) In such situations, an officer may make “‘neutral inquir[ies]’ ... for ‘the purpose of clarifying [statements] or points that [he] did not understand.’ [Citation.]” (Ray, supra, 13 Cal.4th at p. 338.) Moreover, voluntary comments unresponsive to governmental questioning are admissible even after Miranda rights are asserted. (U.S. v. Suggs (11th Cir. 1985) 755 F.2d 1538, 1542; U.S. v. Castro (11th Cir. 1984) 723 F.2d 1527, 1530 (Castro).)
A series of state and federal cases illustrate these points. In People v. Wader (1993) 5 Cal.4th 610 (Wader), the defendant was arrested on a narcotics warrant and not advised of the Miranda warnings. While he was being taken to the sheriff’s department, a deputy asked if the defendant knew the whereabouts of the defendant’s friend, Hill house. The defendant replied that he heard Hill house was involved in the shooting of a woman in La Puente. The deputy asked the defendant additional questions about Hill house during the rest of the trip. The defendant implicated himself in the shooting and was convicted of murder. On appeal, he argued counsel was ineffective for failing to argue his statements in the police car were obtained in violation of Miranda. (Wader, supra, 5 Cal.4th at pp. 634-637.)
Wader rejected the defendant’s argument that he was questioned about Hill house in violation of Miranda while he was in the police car:
“Here, [the deputy’s] inquiry regarding Hill house was not ‘interrogation’ within the meaning of Miranda. Not every question directed by an officer to a person in custody amounts to an ‘interrogation’ requiring Miranda warnings. The standard is whether ‘under all the circumstances involved in a given case, the questions are “reasonably likely to elicit an incriminating response from the suspect.”’ [Citation.] This is an objective standard. ‘The subjective intent of the [officer] is relevant but not conclusive. [Citation.] The relationship of the question asked to the crime suspected is highly relevant. [Citation.]’ [Citations.] As [the deputy’s] testimony indicates, his inquiry regarding the whereabouts of Hillhouse was designed to elicit information about Hill house, not defendant. There is no indication in the record before us that the inquiry was at all relevant to any charge for which defendant was then in custody or any crime of which he was then suspected. Accordingly, [the deputy] was not required to advise defendant of his rights under Miranda, and defendant’s counsel did not render ineffective assistance in failing to raise this issue.” (Wader, supra, 5 Cal.4th at p. 637.)
In Ray, the defendant was incarcerated in Michigan when he contacted a prison official there and indicated that he wanted to discuss crimes he committed in California. The prison official did not advise the defendant of the Miranda warnings but said that he would turn over any incriminating statements to the appropriate officials. The defendant acknowledged that possibility but said he had personal reasons for making the statements, and proceeded to confess to several armed robberies he committed in the Bakersfield area. The defendant spoke in a relaxed and confident tone, and the prison official occasionally interrupted to ask the defendant to repeat something he just said or ask about an ambiguity in his account. (Ray, supra, 13 Cal.4th at pp. 333-334.) The defendant was subsequently charged and convicted of first degree murder, premeditated attempted murder, armed robbery, and sentenced to death. (Id. at p. 325.)
Ray held the defendant’s statements to the Michigan prison official were not obtained as the result of interrogation because the defendant initiated the contact to discuss the California offenses and volunteered the information for entirely personal reasons. (Ray, supra, 13 Cal.4th at pp. 337-338.) Ray rejected the defendant’s argument that his encounter with the prison official became coercive when that official asked the defendant questions about his statements. “Just as custodial interrogation can occur in the absence of express questioning [citation], not all questioning of a person in custody constitutes interrogation under Miranda. [Citations.] Here, [the prison official] did not influence the manner in which defendant reported the crimes. The entire confession was given in narrative, almost rambling form. To the extent [the prison official] interrupted and asked questions, they were merely ‘neutral inquir[ies]’ made for ‘the purpose of clarifying [statements] or points that [he] did not understand.’ [Citation.] Nothing in the substance or tone of such inquiries was reasonably likely to elicit information that defendant did not otherwise intend to freely provide.” (Id. at p. 338.)
In People v. Claxton (1982) 129 Cal.App.3d 638 (Claxton), a juvenile defendant was in custody in juvenile hall. The defendant walked into an office, acknowledged the group supervisor, and asked him “‘“How is it going, Mr. Huston?”’ Huston answered, ‘“Fine,”’ then continued, ‘“What did you get yourself into?”’” (Id. at p. 647.) The defendant responded by describing his criminal conduct in narrative form, and Huston interjected questions for the purpose of clarifying some points. (Id. at pp. 647-648.) Claxton found Huston’s neutral inquiries to the defendant’s volunteered statements did not constitute an interrogation under Innis:
“… We do not perceive the neutral inquiry, ‘What did you get yourself into?’ as words that Huston ‘should have known were reasonably likely to elicit an incriminating response.’ [¶] In the patois of the streets or jailhouse, the inquiry is tantamount to ‘What’s up?’ or ‘What are you in for?’ The question did not require an inculpatory reply, nor does anything in the record suggest that Huston expected one. [The defendant], if he had desired not to talk, could have countered Huston’s ‘offhand’ remark with any one of a number of rejoinders, from a laconic ‘trouble’ to a recitation of the charges against him, or the alternative, a disclaimer such as he twice gave to Ray. He chose instead, for his own reasons, to make a full confession. That his will was not overcome by Huston is further evidenced by appellant’s claim of ‘impulse’ and his failure to name his adult crime partner, who at that time had not been apprehended.” (Claxton, supra, 129 Cal.App.3d at pp. 654-655.)
We note that a contrary result was reached in People v. Matthews (1968) 264 Cal.App.2d 557, where the court held that even where a custodial suspect initiates contact with the police and offers to confess, his statements are not voluntary unless the police remain “purely passive” and ask no questions. (Id. at pp. 566-567.) In Ray, the California Supreme Court disapproved of this case and found “subsequent developments in the law do not support such a rigid approach.” (Ray, supra, 13 Cal.4th at p. 338, fn. 11.)
In Castro, supra, 723 F.2d 1527, officers arrested several suspects in a narcotics operation. The defendant was arrested at gunpoint, and an officer asked him, “‘What in the world is going on here?’” The defendant replied, “‘You want money? We got money.’” (Id. at p. 1530.) Castro found that while the defendant was in custody and not advised of the Miranda warnings, his statement was voluntary and not the result of interrogation because it was “totally unresponsive” to the officer’s question. (Ibid.) “It was not improperly compelled by the officer’s question in a custodial setting but, on the contrary, was spontaneously volunteered by [the defendant] in a deliberate attempt to commit a totally separate crime--bribery of a law enforcement official.” (Ibid.)
In Rhodes, the police executed a search warrant and seized a notebook which allegedly contained the defendants’ records from their drug business. One defendant was present during the search and was not advised of the Miranda warnings. When an officer picked up the notebook, this defendant told the officer, “‘You can’t take that.’” The officer asked, “‘Why?’” The defendant replied, “‘I can’t run my business without that.’” (Rhodes, supra, 779 F.2d at pp. 1031-1032.)
Rhodes rejected the defendant’s argument that his statement about running his business was the result of an illegal custodial interrogation. Rhodes held that even if the defendant was in custody, he made a spontaneous statement that was not the product of an interrogation. (Rhodes, supra, 779 F.2d at p. 1032.)
“… Before [the defendant] told Officer Hamilton that he could not have the spiral notebook, Hamilton had had no communication with [the defendant] beyond reading the search warrant to him. It is apparent that the police officer did not initiate the conversation that ensued. Viewing the context within which [the defendant] made the statement he now seeks to suppress, we agree that [the defendant’s] response was spontaneous and not the product of interrogation.” (Rhodes, supra, 779 F.2d at p. 1032.)
In Butzin v. Wood (8th Cir. 1989) 886 F.2d 1016 (Butzin), the defendant was questioned about his possible involvement in a double murder, advised of the Miranda warnings, and signed a statement that their deaths were accidental. He was arrested and spent the night in jail. The next morning, he advised an officer that “he had ‘not been totally honest the day before.’” The officer asked what he had not been honest about. The defendant replied the deaths were not accidental. (Id. at pp. 1017-1018.)
Butzin held the officer’s “request for clarification” of the defendant’s remark did not trigger the need for another advisement of the Miranda warnings. (Butzin, supra, 886 F.2d at p. 1018.) “An officer’s attempt to seek clarification of an ambiguous statement is not generally construed as interrogation for Miranda purposes if the question does not ‘enhance the defendant’s guilt or raise the offense to a higher degree....’ W.R. LaFave & J.H. Israel, 1 Criminal Procedure § 6.7, at 514 (1984); see Rhodes, 779 F.2d at 1032.” (Ibid.)
In Andersen, the defendant was arrested for disorderly conduct after his mother contacted the police and reported he was drunk and had a gun. As he was being driven to the police department, there was some discussion between an officer and the defendant about this weapon, but the defendant denied he had one. After a silent interval, the defendant blurted out, “‘I stabbed her.’” The officer asked, “‘Who?’” The defendant replied, “‘Cathy,’” referring to the victim of a recent unsolved homicide. The defendant was not previously suspected of that homicide. The defendant was charged and convicted of murder, and argued his statement should have been excluded as the product of a custodial interrogation in the absence of Miranda warnings. (Andersen, supra, 903 F.2d at p. 528.)
Andersen held this exchange did not violate Miranda, the defendant volunteered his initial statement, and the arresting officer’s “reflexive question did not constitute an ‘interrogation’ for purposes of Miranda.” (Andersen, supra, 903 F.2d at p. 531.)
“The police officer’s question was a neutral response, intended to clarify [the defendant’s] puzzling declaration; it was not coercive interrogation that Miranda seeks to prevent. Therefore, the police officer’s question and [the defendant’s] response could have been properly admitted. On the facts of this case, the spontaneous colloquy, which was initiated by the accused, did not require full Miranda warnings before it could be admissible.” (Andersen, supra, 903 F.2d at p. 532.)
In U.S. v. McQuagge (E.D.Tex. 1991) 787 F.Supp. 637 (McQuagge), the defendant was arrested, advised of the Miranda warnings, asked about various criminal activities, and referred the officers to his attorney. A few hours later, a deputy transported the defendant to the jail. During the 20 minute ride, the defendant volunteered that he could now report a crime to the officer. The officer asked what happened. The defendant replied his building was burglarized. The officer asked “‘what did they get?’” The defendant said, “‘One Hundred and ten pounds of phenylacetic acid.’” The officer asked how to spell that acid and the defendant told him. The officer asked whether the defendant said 100 pounds were stolen, and the defendant repeated that 110 pounds were stolen. At this point, the officer asked the defendant, “‘more out of curiosity than anything else,’” how much money could be made out of the acid. The defendant replied that he used anywhere between 33 and 40 pounds at a time, at between $12,000 and $20,000 a pound. The officer asked how many times he had done that, but the defendant cut off questioning and declined to tell him. (Id. at p. 658.)
McQuagge held the defendant’s first statement, that he wanted to report a crime, was a spontaneous declaration not prompted by any interrogation. The court further held the officer’s “first few questions, up to and including the question about how much of the acid was stolen, were not interrogation for Miranda purposes.” (McQuagge, supra, 787 F.Supp. at p. 659.) “[P]olice statements that are part of a spontaneous colloquy initiated by the defendant and that are immediately prompted by a statement of the defendant are not interrogation. [Citations.]” (Ibid.)
McQuagge held the officer’s “initial statements fell into this spontaneous colloquy category. Each question responded to a statement just made by [the defendant]. [The officer’s] questions were merely intermittent remarks in a conversation that [the defendant] initiated and controlled.” (McQuagge, supra, 787 F.Supp. at p. 659.)
McQuagge held the officer’s later statements amounted to interrogation “when he asked him how much money he could make out of the acid. This question was not prompted by and did not logically follow from defendant[’s] ... previous statement. Moreover, the question was framed so as to elicit a potentially incriminating statement indicating the high value that the chemical would generate.” (McQuagge, supra, 787 F.Supp. at p. 659.) The officer stated he asked the questions “‘out of curiosity,’” but the court held “Miranda’s definition of custodial interrogation has no general exception for the curiosity of a law enforcement officer, particularly where the ‘curiosity’ is calculated to trigger an incriminating response.” (Id. at p. 660.)
In Papile v. Hernandez (E.D.N.Y. 1988) 697 F.Supp. 626 (Papile), the defendant was arrested for a robbery, advised of the Miranda warnings, declined to answer questions, and asked for an attorney. (Id. at p. 629.) After his arrest, he was in a cell at the police station when he beckoned to an officer and said he wanted to make a deal. The officer asked, “‘What kind of a deal?’” The defendant said he would give up the other suspect but only if he was released. (Id. at p 630.) Papile held the defendant was not subject to interrogation because the officer “had no reason to think that his conduct was ‘reasonably likely to elicit an incriminating response ....’ [Citation.] Certainly, these facts do not carry even the slightest suggestion of the coercion, manipulation or trickery” which concerned the court in Miranda. (Papile, supra, 697 F.Supp. at p. 631.)
In Turner, the police cornered armed robbery suspects on a highway overpass, the suspects opened fire, and a gunfight ensued. The officers shot and killed one suspect and wounded another. Another suspect jumped 30 feet from the overpass. An officer below the highway found the defendant and ordered him to surrender. The defendant raised his hands and said, “‘I give up. You got me,’” and “‘My leg is hurting.’” The officer asked, “‘What happened to you?’” The defendant replied, “‘I jumped off from the top of the highway.’” (Turner, supra, 661 F.Supp. at p. 537.)
Turner held the defendant’s statement about jumping off the highway was not the result of an illegal custodial interrogation, but “a natural response to petitioner’s remark that his leg hurt. The statement at issue was part of a colloquy, initiated by petitioner, about his physical condition.” (Turner, supra, 661 F.Supp. at p. 538.) The officer’s inquiry was not within Innis’s definition of interrogation because “it was not an effort to elicit information, but rather evidenced the appropriate concern about petitioner’s injuries. The officer could not have foreseen that the response might help the prosecution by placing defendant at the scene of the crime.” (Ibid.)
In Gonzales, law enforcement officers arrested the defendant as part of an extensive undercover narcotics investigation. As one officer left the scene with the contraband, the defendant voluntarily said, “‘we made you work for that s---, you all thought you weren’t going to find it,’ and claimed ‘all of that is mine.’” (Gonzales, supra, 121 F.3d at p. 939.) The officer asked for clarification of his statement, and the defendant explained he was referring to “‘the coke and the gun.’” (Ibid.) Gonzales held that while the defendant was in custody when he made the incriminating statements about the cocaine and the firearm, his comments were not a response to questioning initiated by law enforcement officers. Instead, the defendant voluntarily initiated the exchange, and the officer’s “request for clarification was not a ‘custodial interrogation’ for purposes of the Miranda doctrine.” (Gonzales, supra, 121 F.3d at p. 940.)
“[The officer] did not coerce the defendant into his confession; instead, the defendant freely and voluntarily boasted about his crimes, and the officer simply requested that the defendant clarify his statement. This spontaneous colloquy does not constitute an ‘interrogation.’” (Gonzales, supra, 121 F.3d at p. 940.)
Gonzales noted the officer did not take any affirmative steps to evoke an incriminating response from the defendant, as prohibited by Innis, but “merely asked the suspect to clarify his spontaneous incriminating statement. This request for clarification does not rise to the level of an ‘interrogation’ for purposes of the Miranda doctrine.” (Gonzales, supra, 121 F.3d at p. 940, fn. 7.) “Consequently, when a suspect spontaneously makes a statement, officers may request clarification of ambiguous statements without running afoul of the Fifth Amendment.” (Id. at p. 940.)
“Under these circumstances, the Miranda doctrine is inapposite. ‘Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.’ [Citation.] This is not such a case ....” (Gonzales, supra, 121 F.3d at p. 940 .)
C. Analysis
In the instant case, the long line of state and federal cases discussed, ante, establish that Officer Young’s question to appellant about the Oregon officer was precisely the type of reflexive or clarifying question which does not constitute interrogation within the meaning of Miranda and Innis. It is undisputed that appellant made several voluntary statements during the ambulance trip, said she had been sexually molested, and referred to an officer in Oregon named Fitzgerald or Fitzpatrick. Young had not been to the shooting scene at Jackson’s house, he had not been briefed on the situation or the relationship of the parties, and he had only been dispatched to look for a female subject who was running around backyards. When appellant referred to the Oregon officer, Officer Young asked her “[s]omething to the effect of, you know, who is he and what does he know regarding the molestation?” Appellant said “something to the effect of that he knew bad things and he was a bad person.” Young testified there was a “pause” and “a stop in dialogue,” and within a “mere matter of seconds” appellant said “something to the effect” of “‘[h]e was fucking the daughter-in-law, and I shot her.’”
As in Ray, Claxton, Andersen, Butzin, and Gonzales, Young’s reflexive question about the officer in Oregon was not interrogation within the meaning of Miranda and Innis, but a neutral inquiry to clarify appellant’s voluntary and rambling statements about being molested and that another officer knew something about it. Young did not initiate the conversation but appellant spontaneously launched into a monologue about being molested. Young’s reflexive question did not carry “even the slightest suggestion of the coercion, manipulation or trickery” as prohibited by Miranda (Papile, supra, 697 F.Supp. at p. 631) and “was not an effort to elicit information.” (Turner, supra, 661 F.Supp. at p. 538.) In contrast to McQuagge, Young did not continue the dialogue by asking additional questions. He did not engage in any practice “designed to elicit an incriminating response” from appellant. (Innis, supra, 446 U.S. at p. 301, fn. 7.) While he recognized appellant was in an altered or disoriented state, he did not take advantage of any “unusual susceptibility” to a particular form of persuasion to elicit an incriminating response from her. (Id. at p. 302, fn. 8.)
Moreover, Officer Young’s particular question did not trigger appellant’s statement about shooting the daughter-in-law. Young asked what the Oregon officer knew, appellant said he knew bad things, there was a pause and the dialogue stopped a few seconds, and then she made the statement about the daughter-in-law. As in Castro, the statement was totally unresponsive to Young’s question about the Oregon officer. We thus conclude Officer Young’s brief reflexive question to clarify appellant’s bizarre statements did not constitute custodial interrogation in violation of Miranda.
II.
SUBSTANTIAL EVIDENCE OF PREMEDITATION AND DELIBERATION
Appellant contends there is insufficient evidence to support the jury’s findings that the two counts of attempted murder against Kerri were willful, premeditated, and deliberate, particularly as to the factors of planning, motive, and manner of shooting.
We begin with the well-settled standards to assess the sufficiency of the evidence to sustain a criminal conviction. The reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (See People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Earp (1999) 20 Cal.4th 826, 887.) The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on “‘isolated bits of evidence.’” (People v. Johnson, supra, 26 Cal.3d at p. 577; see People v. Cuevas (1995) 12 Cal.4th 252, 261.)
The federal standard of review is to the same effect. Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320; see People v. Rodriguez, supra, 20 Cal.4th at p. 11.)
Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)
A reviewing court must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.) It must not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931; People v. Pitts (1990) 223 Cal.App.3d 606, 884.) Furthermore, an appellate court may reject the testimony of a witness who was apparently believed by the trier of fact only if that testimony is inherently improbable or impossible of belief. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Jackson (1992) 10 Cal.App.4th 13, 21.) We will not reverse unless it clearly appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)
We also apply the substantial evidence test to review a special circumstance finding, and determine if findings of premeditation and deliberation for murder or attempted murder convictions are supported by the evidence. (People v. Silva (2001) 25 Cal.4th 345, 368 (Silva); People v. Michaels (2002) 28 Cal.4th 486, 515; People v. Mayfield (1997) 14 Cal.4th 668, 790-791 (Mayfield); People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.)
With this framework in mind, we turn to the elements of attempted murder and premeditation.
A. Premeditation and Attempted Murder
“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).) “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.) “[A]ny ... kind of willful, deliberate, and premeditated killing ... is murder of the first degree.” (§ 189.) A verdict of deliberate and premeditative first degree murder requires more than a showing of intent to kill. (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “‘[P]remeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’” (Mayfield, supra, 14 Cal.4th at p. 767.)
“All other kinds of murders are of the second degree.” (§ 189.) The elements of second degree murder are an unlawful killing accomplished with malice aforethought, whether express or implied. (People v. Malfavon (2002) 102 Cal.App.4th 727, 735.)
An attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission, i.e., an overt ineffectual act which is beyond mere preparation yet short of actual commission of the crime. (People v. Toledo (2001) 26 Cal.4th 221, 229-230.)
“The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citation.] But over a century ago, we made clear that implied malice cannot support a conviction of an attempt to commit murder. ‘“To constitute murder, the guilty person need not intend to take life; but to constitute an attempt to murder, he must so intend.” [Citation.] “The wrong-doer must specifically contemplate taking life; and though his act is such as, were it successful, would be murder, if in truth he does not mean to kill, he does not become guilty of an attempt to commit murder.” [Citation.]’ [Citations.]” (People v. Bland (2002) 28 Cal.4th 313, 327-328.)
“… Although malice may be express or implied with respect to a charge of murder, implied malice is an insufficient basis upon which to sustain a charge of attempted murder because specific intent is a requisite element of such a charge. [Citation.] Thus, to sustain a charge of attempted murder, the evidence must demonstrate a deliberate intention unlawfully to kill a fellow human being. [Citation.]” (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
Appellant does not challenge the sufficiency of the evidence of the two convictions for attempted first degree murder, but instead challenges the jury’s findings that the offenses were willful, deliberate, and premeditated. “Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation.” (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223, fn. omitted.) Thus, the fact that the charge is attempted deliberate and premeditated murder as opposed to first degree murder is irrelevant to the analysis of the factors to be considered by the reviewing court in finding premeditation and deliberation. (Id. at pp. 1223-1224; People v. Herrera, supra, 70 Cal.App.4th at p. 1462, fn. 8.)
In People v. Anderson (1968) 70 Cal.2d 15, 26 (Anderson), the court addressed the evidence sufficient to uphold a finding of willful, premeditated, and deliberate first degree murder.
“The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).
“Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)....” (Anderson, supra, 70 Cal.2d at pp. 26-27.)
The California Supreme Court has thus “identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing.” (Bolin, supra, 18 Cal.4th at p. 331.) However, the court has cautioned that “unreflective reliance on Anderson for a definition ofpremeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way. [Citation.]” (People v. Thomas (1992) 2 Cal.4th 489, 517.) “In other words, the Anderson guidelines are descriptive, not normative. ‘The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.’ [Citation.]” (People v. Koontz, supra, 27 Cal.4th at p. 1081.) The factors need not present “in some special combination or that they be accorded a particular weight, nor is the list exhaustive.” (People v. Pride (1992) 3 Cal.4th 195, 247.) Instead, the factors are “simply intended to guide an appellate court’s assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]” (Ibid.) Thus, evidence concerning motive, planning, and the manner of killing are pertinent to the determination of premeditation and deliberation, but these factors are not exclusive nor are they invariably determinative. (Silva, supra, 25 Cal.4th at p. 368.)
“An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time.” (People v. Stitely (2005) 35 Cal.4th 514, 543.) “[P]remeditation can occur in a brief period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly ....’ [Citations.]” (People v. Perez (1992) 2 Cal.4th 1117, 1127.) Premeditation and deliberation can thus occur in rapid succession. (Mayfield, supra, 14 Cal.4th at p. 767.) “The test is not time, but reflection.” (People v. Bloyd (1987) 43 Cal.3d 333, 348 (Bloyd).)
The act of obtaining a weapon is evidence of planning consistent with a finding of premeditation and deliberation. (Koontz, supra, 27 Cal.4th at pp. 1081-1082.) The method of killing alone “can sometimes support a conclusion that the evidence sufficed for a finding of premeditated, deliberate murder.” (People v. Memro (1995) 11 Cal.4th 786, 863-864.) An execution-style shooting at close range may also establish premeditation and deliberation. (People v. Vorise (1999) 72 Cal.App.4th 312, 318-319; Bolin, supra, 18 Cal.4th 297, 332-333; People v. Martinez (2003) 113 Cal.App.4th 400, 412-413; Bloyd, supra, 43 Cal.3d. at p. 348; People v. Hawkins (1995) 10 Cal.4th 920, 955-957, abrogated on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 109-110.)
In Bloyd, for example, the People conceded that evidence of planning and motive was ambiguous but the court found substantial evidence of premeditation because the manner of killing “was very strong evidence of deliberation and premeditation: The evidence described actions that were cold and calculated—execution-style killings, shots to the head while [the first victim] was lying on her back and [the second victim] was kneeling. [The first victim] had been shot pointblank, while [the second victim] was shot by a standing killer from a distance of one foot. Further, there was no evidence, such as bruises or lacerations, to demonstrate a struggle.” (Bloyd, supra, 43 Cal.3d at p. 348.)
Even where the assailant did not initially plan the fatal encounter with the victim, the assailant’s use of a firearm against a defenseless person may show sufficient deliberation to support a verdict of guilt of first degree murder. (Bolin, supra, 18 Cal.4th at pp. 332-333.) Similarly, firing at vital body parts such as the head and neck shows preconceived deliberation. (Ibid.; People v. Thomas, supra, 2 Cal.4th at pp. 517-518; People v. Caro (1988) 46 Cal.3d 1035, 1050, abrogated on other grounds by People v. Whitt (1990) 51 Cal.3d 620, 657, fn. 29.) “[A] close-range gunshot to the face is arguably sufficiently ‘particular and exacting’ to permit an inference that defendant was acting according to a preconceived design.” (People v. Caro, supra, 46 Cal.3d at p. 1050.)
Finally, the conduct of a defendant after the murder may be indicative of premeditation and deliberation. In Perez, supra, 2 Cal.4th 1117, the defendant killed the victim by stabbing her multiple times with two different knives. He was convicted of first degree murder, but the appellate court reduced that conviction to second degree murder because it found insufficient evidence of premeditation and deliberation. The California Supreme Court, however, affirmed the first degree murder conviction and criticized the appellate court’s approach because it failed to focus on the evidence presented and the inferences therefrom. (Id. at pp. 1125-1126.) Perez found sufficient evidence of premeditation based on the defendant’s planning activities and motive. (Id. at pp. 1126-1127.) Perez also examined the defendant’s conduct after the stabbing as further evidence of premeditation:
“Additionally, the conduct of defendant after the stabbing, such as the search of dresser drawers, jewelry boxes, kitchen drawers and the changing of a Band-Aid on his bloody hand, would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing. Here, defendant did not immediately flee the scene. Again, while not sufficient in themselves to establish premeditation and deliberation, these are facts which a jury could reasonably consider in relation to the manner of killing.” (Perez, supra, 2 Cal.4th at p. 1128, italics in original.)
B. Analysis
In the instant case, the jury was presented with vastly different versions of what happened in Jackson’s dining room and kitchen. As for the first shot, Jack testified he mistakenly chambered a round in the weapon when he was “fiddling” with it, such that it was ready to be fired the moment that appellant touched it. Appellant testified she picked up the gun from the dining room table because she wanted to move it, she held it with her palm facing down and did not aim it at Kerri, she did not rack the weapon, and she accidentally pulled the trigger. Jackson testified he turned toward the dining room table and saw appellant holding the gun palm down in her left hand. In contrast, Kerri testified appellant picked up the gun from the table with her left hand, pulled back the slide with her right hand, held the gun with both hands, held her arms straight out, looked directly at Kerri, and fired.
As for the second shot, Jack testified he shouted at appellant to pick up the gun because their granddaughter had run toward it, appellant caught the child with one hand, she twisted and reached back for the gun with her left hand, she held it awkwardly and tried to flip it in her hand, with her palm turned up, and it fired. Appellant similarly testified that she ran after her granddaughter, crouched down, held the girl with her right hand, reached for the gun with her left hand, tried to gain control of it, and it fired. Kerri confirmed that appellant went into the kitchen, squatted down, and placed her arm around the child, but offered a vastly different account of what happened next. Kerri testified appellant picked up the gun from the floor with her right hand, her fingers were around the grip, she extended her right arm in front of her, she pointed the weapon at Kerri, she looked directly at her, and fired the second shot.
In closing arguments, the prosecutor argued appellant intentionally fired both shots with premeditation and deliberation. The defense theory was that appellant fired both shots accidentally. The jury found appellant guilty of the charged offenses of two counts of premeditated attempted first degree murder against Kerri, along with the assault with a deadly weapon charges as to Kerri and Jack. The jury’s verdicts necessarily indicates that it rejected the defense theory that both shootings were accidental.
On appeal, appellant does not challenge the sufficiency of the evidence of the jury’s findings as to the two counts of attempted first degree murder. Instead, she contends there is insufficient evidence that the attempted murders were willful, deliberate, and premeditated. She points to the Anderson factors and argues there was no evidence of planning or preparation because the shooting occurred spontaneously, she did not bring a weapon into the house, and Jackson was the person who produced the gun and left it on the table. Appellant also asserts there was no evidence of motive since even Kerri testified they did not argue and were just pleasantly chatting in the moments before the shooting, and there was no tension between them in the days and weeks before the shooting. Appellant similarly argues the manner of shooting fails to support premeditation because the evidence established she was experienced with handguns and an accurate shooter, she was just four feet from Kerri when she fired the first shot, if she “planned to kill Kerri with that shot she would have succeeded,” she would have immediately fired the second shot instead of dropping the gun to the floor, the second shot was fired several minutes later when the police were at the door, and the second shot hit Kerri in the right bicep, “giving no indication it was fired with lethal intent.”
While the Anderson factors need not be present in any particular combination, and are not exclusive nor invariably determinative as to a finding of premeditation and deliberation, we find substantial evidence of premeditation based on all three factors in this case. As to planning, it is undisputed that appellant did not arrive at Jackson’s house with a gun that afternoon. Indeed, the entire incident occurred because Jackson brought out his Glock handgun to show his parents, and Jack carelessly left it on the dining room table with the clip inserted. But premeditation and deliberation can thus occur in rapid succession, and “[t]he test is not time, but reflection.” (Bloyd, supra, 43 Cal.3d at p. 348.) Even where the assailant did not initially plan the fatal encounter with the victim, the assailant’s use of a firearm against a defenseless person may show sufficient deliberation. (See Bolin, supra, 18 Cal.4th at pp. 332-333.) Appellant’s conduct in the moments preceding the first shot establish the planning activities which occurred in rapid succession. Kerri testified appellant sat at the table for a while and then she picked up the gun, pulled back the slide to chamber a round, held the grip with both hands, looked directly at Kerri, and fired the first shot. The rapid onset of planning activities is also present in the moments before the second shot, for while everyone wanted appellant to grab K., Kerri testified appellant reached for the gun with her right hand, looked at Kerri, aimed the gun directly at her, and fired.
The manner of the shooting presents the strongest evidence of premeditation and deliberation. A close-range gunshot to vital body parts such as the head and neck permits an inference of preconceived deliberation. (See Bolin, supra, 18 Cal.4th 332-333; People v. Thomas, supra, 2 Cal.4th at pp. 517-518; People v. Caro, supra, 46 Cal.3d at p. 1050.) Both of appellant’s shots were fired at extremely close range and aimed at Kerri’s upper body. Appellant held the gun with both hands, with her arms straight out in front of her, looked directly at Kerri across the small dining room table, just four feet away, and shot her in the upper left chest. The bullet shattered Kerri’s collarbone, entered her lung, and caused massive bleeding. Kerri testified appellant held the gun the same way for the second shot, except it was only with her right hand, but she looked directly at Kerri as she aimed and fired. The second shot went through Kerri’s right bicep, but Kerri’s right arm was across her body and on her left side, and her right hand was holding the first wound, such that the second shot was also aimed at Kerri’s upper left body.
Jack and Jackson both described appellant’s previous knowledge and use of a Glock semiautomatic handgun, which was reinforced that evening when Jackson had her dry-fire the weapon. Jack described her as a “pretty accurate” shot and Jackson believed she was “an excellent shot.” Nancy McCombs, the criminalist, testified Jackson’s handgun was functioning properly, fully operational, and had no defects, the weapon did not have a hair trigger, and the trigger pull required eight to nine pounds of pressure to fire it. Appellant cites to this same testimony and suggests that if she intended to kill Kerri with premeditation and deliberation, she could have done so. However, these two shots were not the result of a novice picking up an unfamiliar weapon, mistakenly touching the trigger, and randomly firing bullets in the house. Kerri’s testimony established appellant’s willful, deliberate, and premeditated conduct in aiming the weapon at her upper body twice, and the first bullet inflicted near-fatal injuries to her.
Appellant asserts there is no evidence of motive in this case, given Kerri’s admission that there were no problems between then in the days and even moments before the shooting, but the record sadly suggests the contrary. Both the prosecution and the defense presented evidence of appellant’s psychotic episode in 2003, which was apparently triggered when she stopped taking large amounts of pain and diet medications. At that time, Kerri and Jackson already had their first child, and Kerri was pregnant with her second child. Appellant accused Kerri of having an affair with Jack, that Jack was the father of both children, and that Jackson needed to protect himself from Kerri. A few weeks before the shooting, Jack testified that appellant had started taking a similar diet medication. Also, Jackson informed his parents that Kerri was pregnant; the witnesses disputed whether appellant was told that Kerri might have or actually miscarried. The defense sought to undermine the potential motive evidence by showing appellant believed Kerri had miscarried and was not pregnant at the time of the shooting. Appellant’s statement in the ambulance, however, sadly ties together the diverse strands in this case. Appellant made rambling statements about being molested, but she also said: “‘He was fucking the daughter-in-law, and I shot her.’” That statement infers that the mere realization that Kerri had become pregnant again could have formed the motive for the shootings in this case.
We thus conclude there is substantial evidence of premeditation and deliberation to support the jury’s verdicts as to counts I and II.
III.
INEFFECTIVE ASSISTANCE
Appellant next contends defense counsel was prejudicially ineffective because he permitted the prosecution to introduce her medical records without redacting references in those records to her use of marijuana before the shooting and on a daily basis. Appellant contends counsel’s failure to redact this information was prejudicial because it undermined her credibility, and requires reversal of her convictions.
A. Admission of the Medical Records
The instant record contains a few references to appellant’s medical records. During Kerri’s testimony, defense counsel cross-examined her as to whether she was fully conscious after the first shot, and whether she had the ability to watch appellant’s alleged actions leading up to the second shot. Defense counsel asked whether she was aware of the hospital reports of how much blood she had lost. The prosecutor objected and advised the court that the certified medical records of Kerri, Jack and appellant were going to be admitted into evidence, and that defense counsel was not going to object. Defense counsel advised the court that Kerri’s medical records stated she received eight liters of blood at the hospital, and that someone who had lost that much blood could have been unconscious after the first shot. Defense counsel further stated the “[m]edical records are coming in, I thought, and they will speak to [sic] themselves.” Thereafter, the court advised the jury: “[E]vidence as to the subject relating to blood loss and blood replaced will be coming in by other means, so we’re going to move on to another area.”
The prosecutor subsequently moved into evidence the certified medical records of Kerri, Jack, and appellant. Defense counsel said he had seen the records and had no objection, and the court received the documents into evidence. The records for Kerri and Jack are from Kaweah Delta Hospital, as to the treatment they received for their gunshot wounds. Kerri’s records are nearly 900 pages long and five inches thick. Jack’s records are under an inch thick. There are references throughout these records of Jackson’s great agitation while Kerri and Jack were in the hospital.
Appellant’s medical records consist of 14 pages of chart notes for her treatment on March 10-11, 2005, after the officers found her in the trash container and transported her by ambulance to Kaweah Delta Hospital. The chart notes state she was admitted for medical and psychiatric evaluations, that the police found her naked in a trash can after shooting “her sister and brother-in-law with a shotgun,” and she was “altered on arrival.” The notes further state she was altered, disoriented, tearful, cooperative, but unable to give a full history. A chart entry for 9:45 p.m. (21:45) states she was 51 years old and brought in by the police after being found in a trash can.
“Pt. reportedly shot her husband and daughter-in-law tonight in a sequence of events that still isn’t clear. Pt. haltingly states that she & her husband went to their son’s house where she drank an aqua colored drink and took a bong hit. After that she said she was naked in a trash can.” (Italics added.)
Appellant had multiple lacerations on her hand, wrist, and leg, and dried blood caked on her feet. A chart entry at 11:39 p.m. (21:39) stated: “Altered mental status (not associated with alcohol or drugs).” The notes state appellant received sutures for the lacerations. After the procedure, she became more talkative and asked, “‘Where am I, What happened, How long have I been here?’”
The hospital’s chart notes state appellant was discharged around midnight, in stable condition and medically cleared for jail. The diagnosis section of the chart states she suffered simple lacerations to her hand, wrist, and leg, and also states: “Altered mental status (not associated with alcohol or drugs)” and “Drug Abuse, Marijuana.” These diagnosis statements are also contained in the hospital’s “patient instructions” issued to appellant.
Appellant’s medical records also contain a toxicology report from the hospital, dated March 12, 2005. According to the report, appellant was tested at 21:51 on March 10, 2005, and the test was negative for opiates, cocaine, and amphetamines, and positive for cannabinoids.
B. Exclusion of Cross-examination on Marijuana Use
As set forth ante, appellant testified that both shootings were accidental. After she finished her direct examination, the court conducted a side-bar conference to address the scope of the prosecutor’s cross-examination. The prosecutor sought to ask appellant about her marijuana use the night of the shooting, based upon appellant’s statement to Detective Carr that she took a “bong hit,” and her admission during the booking process that she used marijuana daily. The prosecutor argued evidence of appellant’s marijuana use would impeach her direct examination testimony because marijuana would have affected her memory of the events.
Defense counsel vigorously objected to the prosecutor’s proposed cross-examination, and noted that appellant’s hospital records for March 10, 2005, the night of her arrest, had already been admitted into evidence and stated her altered state was not attributable to either alcohol or drugs. “That’s in evidence.” Defense counsel also argued appellant’s statement to Detective Carr about smoking marijuana was “totally garbled” because she did not know her name, she thought her son was a bachelor, and “[i]t goes on and on” and “doesn’t amount to a statement.”
Defense counsel acknowledged appellant was positive for THC in her system. The court replied, “[b]ut it lasts for 90 days.” Defense counsel agreed it could last for “months.” Counsel further noted a “bong” was found in a drawer in Jackson’s room that night, but it was “totally removed from this incident. There’s no evidence that anybody smoked it that night, and her recollection is that she didn’t.” Counsel argued such evidence was not relevant and had nothing to do with her mental state, and her statement to Detective Carr was “worthless.”
The prosecutor replied appellant’s marijuana use was relevant based on the bong, her statement to Detective Carr, and her admission of daily use to the booking officer. The court asked whether Carr advised her of the Miranda warnings. The prosecutor said yes. The court said it “might have some trouble finding an intelligent waiver.”
After further discussion of the issue, the prosecutor decided not to cross-examine appellant about marijuana use, and conceded her statement to Detective Carr was garbled. “Fair enough. I don’t want to make an issue.” The prosecutor added that he would not question appellant about her hospital records because he did not “want to make it any more complicated than we are ....” The court did not make a ruling on the issue given the prosecutor’s withdrawal of the proposed cross-examination.
As set forth ante, Dr. Velosa testified for the defense about appellant’s nervous breakdown and psychotic episode in 2003, and the treatment she received. The defense did not introduce any medical records as to appellant’s psychiatric history.
C. The Jury’s Note
During the jury’s deliberations, the jury sent several notes to the court about the evidence. One of the notes asked: “Are all the medical files and all information in them evidence?” (Underscoring in original.) The court conferred with the prosecutor and defense counsel and, with their approval, advised the jury:
“… The Kaweah Delta District Hospital records of Kerri Andrews, Jack Andrews, and Donna Andrews relating to the March 10th, 2005, incident and thereafter are in evidence. [¶] All of the information contained therein is evidence. [¶] Information relating to the 2003 Cypress records were the subject matter of testimony from Doctor Velosa, and that testimony has been presented to you.”
D. Ineffective Assistance
Appellant acknowledges that defense counsel vigorously objected to the prosecutor’s proposed cross-examination about her marijuana use, and the prosecutor withdrew his request to raise this issue. However, appellant argues counsel was prejudicially ineffective because he failed to redact references to her marijuana use in her medical records, even though the parties discussed these references when they argued about the prosecutor’s proposed cross-examination questions.
“To prevail on a claim of ineffective assistance of counsel, defendant ‘must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.’” (People v. Hart (1999) 20 Cal.4th 546, 623.) Prejudice occurs only if the record demonstrates “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Lucero (2000) 23 Cal.4th 692, 728.)
We presume that counsel’s conduct falls within the wide range of reasonable professional assistance and we accord great deference to counsel’s tactical decisions. (Bolin, supra, 18 Cal.4th 297, 333.) “If ‘counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. To engage in such speculations would involve the reviewing court ‘“in the perilous process of second-guessing.”’ [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.]” (People v. Diaz (1992) 3 Cal.4th 495, 557-558.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
E. Analysis
It is difficult to find that defense counsel was prejudicially ineffective in failing to redact appellant’s medical records, given the entirety of his efforts in this case. He constantly raised objections to the prosecutor’s questions and evidentiary motions, the court granted many of his motions to limit testimony, and he extensively cross-examined the law enforcement officers about every aspect of the crime scene and appellant’s condition when she was found in the trash container. Defense counsel obtained concessions from Detective Carr that he advised Kerri of his sympathy and support of her position in this case—that it was not an accident—and Carr also admitted that he reached a decision almost immediately that the two shootings were not accidental. Counsel presented a defense expert who pointed out that the investigators overlooked that the first shot hit the aquarium and left a small piece of glass or plastic on Kerri’s face, but Carr told Jackson to throw it away, the police failed to realize the aquarium had been hit by the first shot, and that such evidence was crucial to show the bullet trajectory which undermined Kerri’s account that appellant held the handgun directly at her and fired the first shot.
In the midst of this lengthy trial, defense counsel did not seek to redact any part of appellant’s medical records. When the prosecutor sought to cross-examine appellant about her marijuana usage, defense counsel strenuously objected and the parties discussed the contents of the hospital records, that the chart indicated her statement that she used marijuana that night and a report stated there was marijuana metabolite in her system. Thus, defense counsel was clearly aware that appellant’s medical records contained these references. He successfully prevented the cross-examination questions but did not request redaction of the medical records.
There could have been a tactical reason for defense counsel’s failure to request redaction of these references in appellant’s medical records, while vigorously objecting to the prosecutor’s attempt to cross-examine appellant on marijuana use. Appellant’s defense was that both shootings were accidental, and that she fled from the scene because the stress of the shooting caused her to revert to the same type of psychotic episode that she experienced in 2003. Appellant called Dr. Velosa to testify about the 2003 psychotic episode, that she had been taking extensive amounts of pain and diet medication, and the nervous breakdown was triggered by her sudden cessation of taking all the medication. In addition, Jack testified about the length and extent of appellant’s drug usage in 2003, and further testified she had started taking a similar type of diet drug in the weeks before the shooting. Appellant admitted she took a “variety” of pills for pain and weight loss prior to her 2003 psychotic episode.
As explained in section II, ante, a defendant’s conduct after a homicide may provide evidence of premeditation and deliberation. Defense counsel was faced with the task of explaining why appellant stayed in Jackson’s house after the first shot was accidentally fired, but ran from the house after the second “accidental” shot when she heard the police outside. To this end, Dr. Velosa testified the stress of the shooting triggered appellant’s reversion into the same type of psychotic episode that she suffered in 2003, and she ran from Jackson’s house and hid in the trash container because of the sudden revival of her paranoid belief that people were trying to get her.
Counsel could have simply forgotten to seek redaction of the limited references to appellant’s marijuana use in the hospital records. The appellate record is silent as to the reason he did not request redaction, and appellant has not filed a habeas writ with a declaration from counsel about his reasons. On the other hand, counsel may have hoped that these statements, along with the chart note that her altered state was not due to drugs or alcohol, would lead the jury to believe that appellant’s renewed use of diet pills plus minimal marijuana usage hastened the onset of her psychotic episode.
Moreover, it cannot be said that counsel’s purported failure to redact these references from her medical records was prejudicial. As we have already note, the jury was presented with vastly different accounts of the events in Jackson’s dining room and kitchen. Kerri testified appellant picked up the gun, racked the slide, held the weapon with both hands, held the gun straight out, looked at Kerri, and fired the first shot. Appellant testified she merely tried to move the gun, picked it up with her left hand, palm down, did not rack the slide, but accidentally fired it. Jack extensively testified to his belief that he mistakenly racked the slide and chambered a round just before he placed the gun on the dining room table, so that the gun was ready to be fired without having to rack the slide. Jackson testified he turned as the first shot was fired, and appellant was holding the gun with her palm down. The jury heard similar variations as to the second shot. Jack and appellant testified it was another accident, caused by appellant’s attempt to grab her young granddaughter and the gun, that she was trying to flip the gun into her left hand, but the gun went off and the second shot was fired. Kerri testified appellant picked up the gun from the kitchen floor, held the gun straight out, looked directly at Kerri, and fired the second shot.
Appellant asserts the marijuana references were prejudicial because it would have caused the jury to dismiss the credibility of a teacher who was using drugs. She also points out that the jury specifically asked if all the information in the medical records were in evidence, which indicates the jury read the medical records. That note, however, asked whether “all” the records were in evidence, and did not specify if the jury was interested in the records for Kerri, Jack, and/or appellant. Indeed, the records for Jack and Kerri contain numerous indications of Jackson’s anger and frustration about the situation. In addition, Kerri’s medical records contained the only complete evidence as to the full nature and extent of the gunshot wounds.
In addition, the jury returned the verdicts in this case not just because it rejected appellant’s credibility, but also because it rejected the credibility of Jack and Jackson as to what happened that evening, and the jury did not receive any evidence that either Jack or Jackson used drugs that night or any other time. The limited references in the medical records to appellant’s alleged marijuana use did not specify when or where she might have used the drug that night, and did not implicate Jack or Jackson in any narcotics usage. If the jury believed that marijuana was used in Jackson’s house, it could have extended the inferences to Kerri, who was also present that night and could have shared in whatever was being used.
We thus conclude that there is a conceivable tactical reason for defense counsel’s failure to redact the brief references to marijuana use in appellant’s medical records, and the existence of this evidence was not prejudicial to appellant’s credibility since the jury had to reject the credibility of Jack and Jackson to reach the guilty verdicts in this case, and the jury did not receive any evidence that either Jack or Jackson used marijuana that night or at any time.
IV.
WAIVER OF APPELLANT’S PRESENCE DURING DELIBERATIONS
Appellant’s final issue is that defense counsel never waived her presence when the court considered and responded to one of the jury’s notes during deliberations, when it requested to hear Kerri’s testimony, and the court’s failure to obtain her personal waiver violated her constitutional rights and requires reversal of her convictions.
A. Background
The jury began deliberations at 3:16 p.m. on March 24, 2006, and sent several notes to the court during the course of the deliberations. That afternoon, the court received a jury note that juror No. 1 had an inappropriate conversation with Jackson prior to trial. The court convened a hearing with the prosecutor and defense counsel on this issue, and defense counsel waived appellant’s right to be present. The court removed the juror and selected an alternate.
On March 27, 2006, the court reconvened for a discussion about the juror issue, and defense counsel again waived appellant’s presence. The court reinstructed the jury and deliberations continued. The jury asked for a CD player to hear the tape-recording of the 911 telephone call.
At 1:20 p.m. on March 27, the court received a note from the jury, requesting a copy of Kerri’s interview in the hospital with Detective Carr. The court reconvened with the prosecutor and defense counsel, counsel again waived appellant’s presence, and the parties discussed the note. The court subsequently advised the jury that the transcripts of these interviews were not in evidence, but testimony relating to those interviews was in evidence.
Appellant’s assertion of error is based on the next note sent by the jury, which was at 4:30 p.m. on March 27. The jury asked to hear Kerri’s testimony “about when she saw the gun on the table before the first shot.” The minute order reflects the court advised the jury it would continue the consideration of this note to the next day. After the jury was released, the court discussed the note with the parties, but this discussion is not on the record. On the morning of March 28, 2006, the court reconvened and advised the parties as follows:
“All right. On the matter of Andrews, counsel have stipulated that the court reporter may go in and respond to the request of the jury for the reading of certain portions of Kerri Andrews’ testimony. [¶] [Defense counsel and the prosecutor] were present earlier. The court asked them if they were willing to stipulate to allow the court reporter to simply go in. It’s my understanding they had reviewed the proposed readings from the transcript of the court reporter and approved of the same. So on that basis, the court reporter will go in and read in response to the jury’s request.”
Appellant asserts the record fails to contain a waiver of her right to be personally present during the readback of Kerri’s testimony.
The jury’s next note was about the medical records, as discussed ante. At 9:00 a.m. on March 28, 2006, the jury asked: “Are all the medical files and all information in them evidence?” (Underscoring in original.) The court conferred with the prosecutor and defense counsel by conference call, each counsel waived their own presence, and defense counsel waived appellant’s presence. The court and the parties reached an agreement as to the response, and the court advised the jury that all of the information in the medical records was in evidence.
At 1:48 p.m., the jury returned the guilty verdicts on all counts.
B. Analysis
“A criminal defendant’s right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by article I, section 15 of the California Constitution and by sections 977 and 1043 of the California Penal Code. [Citations.]” (People v. Hines (1997) 15 Cal.4th 997, 1038-1039.) The California Supreme Court has summarized the constitutional and statutory rights at stake as follows:
“Under the Sixth Amendment’s confrontation clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless his appearance is necessary to prevent ‘interference with [his] opportunity for effective cross-examination.’ [Citation.]
“Similarly, under the Fourteenth Amendment’s due process clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a ‘stage ... that is critical to [the] outcome’ and ‘his presence would contribute to the fairness of the procedure.’ [Citation.]
“Under section 15 of article I of the California Constitution, a criminal defendant does not have a right to be personally present ‘either in chambers or at bench discussions that occur outside of the jury’s presence on questions of law or other matters as to which [his] presence does not bear a “‘“reasonably substantial relation to the fullness of his opportunity to defend against the charge.”’”’ [Citations.]
“Lastly, under sections 977 and 1043 of the Penal Code, a criminal defendant does not have a right to be personally present where he does not have such a right under section 15 of article I of the California Constitution. [Citations.]” (People v. Waidla (2000) 22 Cal.4th 690, 741-742.)
Thus, a defendant does not have a right to be present at every hearing held in the course of a trial, and his or her presence is required if it “‘bears a reasonable and substantial relation to his full opportunity to defend against the charges.’ [Citation.] The defendant must show that any violation of this right resulted in prejudice or violated the defendant’s right to a fair and impartial trial. [Citation.]” (People v. Hines, supra, 15 Cal.4th at p. 1039.) While section 977 requires a written waiver, the defendant’s absence from various court proceedings, even without a waiver, may be declared nonprejudicial in situations where his or her presence does not bear a reasonably substantial relation to the fullness of his opportunity to defend against the charges. (People v. Dennis (1998) 17 Cal.4th 468, 538; People v. Ayala (2000) 23 Cal.4th 225, 288, fn. 8.)
Appellant contends her constitutional rights were violated when the court responded to the jury’s question about Kerri’s testimony, and permitted Kerri’s testimony to be read to the jury without obtaining a waiver of her presence. Appellant argues Kerri’s testimony was extremely important because she was the prosecution’s most important witness, and “[a]ny emphasis conveyed by the reporter during read back that favored the prosecution, whether inadvertent or otherwise, could have adversely affected the outcome of the case.” Similar contentions, however, have been repeatedly rejected by the California Supreme Court, which has held that the rereading of testimony is not a critical stage of the proceedings. (People v. Cox (2003) 30 Cal.4th 916, 963.)
“As we previously have observed in rejecting similar guilt phase contentions, a ‘defendant is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his or her opportunity to defend the charges against him, and the burden is on defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial.’ [Citations.] The foregoing rule applies to defendants in capital homicide prosecutions as well as to those in noncapital cases. [Citations.] The reading back of testimony ordinarily is not an event that bears a substantial relation to the defendant’s opportunity to defend [citations], and nothing in the present record indicates that defendant’s personal presence would have assisted the defense in any way. The lack of replication of the witnesses’ original intonations and presentation, of which defendant complains, would not have been altered by defendant’s presence, and his suggestion that the jury might have been favorably influenced by defendant’s reactions to the reading back of the testimony is entirely speculative.” (People v. Horton (1995) 11 Cal.4th 1068, 1120-1121; see also People v. Cox, supra, 30 Cal.4th at p. 963; People v. Ayala, supra, 23 Cal.4th at p. 288.)
In such situations, prejudice is not assumed and the defendant bears the burden to demonstrate his or her absence prejudiced the defendant’s case or denied the defendant a fair and impartial trial. (People v. Price (1991) 1 Cal.4th 324, 408; People v. Horton, supra, 11 Cal.4th at pp. 1120-1121; People v. Fauber (1992) 2 Cal.4th 792, 836-837.)
It is also settled that counsel has discretion to consent to a reading of testimony outside the presence of the court, counsel, and/or defendant; the defendant need not personally give consent. (See People v. Pride, supra, 3 Cal.4th at p. 251; People v. Medina (1990) 51 Cal.3d 870, 904; People v. Thompson (1990) 50 Cal.3d 134, 175; People v. Lang (1989) 49 Cal.3d 991, 1028; Bloyd, supra, 43 Cal.3d 333, 360-361.)
Appellant asserts that in contrast to the other jury notes, defense counsel did not waive her personal presence when the court discussed the note which requested to hear Kerri’s testimony. This argument lacks merit because defense counsel did not assert appellant’s alleged right to be present when he stipulated that the court reporter could read Kerri’s testimony to the jury. The stipulation is clearly a waiver of appellant’s personal presence.
Appellant relies on United States v. Kupau (1986) 781 F.2d 740 and Bustamante v. Eyman (1972) 456 F.2d 269 to support her position that reading back testimony is a critical stage of trial such that a defendant’s presence must be personally waived. The United States Supreme Court has not given clear guidance on whether the reading of testimony is a critical stage in a criminal trial. (La Crosse v. Kernan (9th Cir. 2001) 244 F.3d 702, 708.) But the California Supreme Court has repeatedly addressed the issue and concluded in the negative. We are bound by those opinions (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and we are not bound by decisions of the lower federal courts (People v. Williams (1997) 16 Cal.4th 153, 190). In addition, the Ninth Circuit has questioned the validity of the two opinions cited by appellant. “Given the divergence of opinion on this issue [whether the rereading of testimony is a critical stage in the trial,] and the lack of clear guidance from the United States Supreme Court, we cannot say that the California court’s determination here was contrary to or an unreasonable application of clearly established federal law.” (La Crosse v. Kernan, supra, 244 F.3d at p. 708, fn. omitted.)
Even assuming the trial court failed to obtain a proper waiver from appellant, she has failed to present any evidence to suggest her personal presence during the read back would have assisted her defense in any way, and we will not presume that testimony was misread or that misconduct occurred on a silent record. (See People v. Price, supra, 1 Cal.4th at p. 408; People v. Pride, supra, 3 Cal.4th at p. 251; People v. Medina, supra, 51 Cal.3d at p. 904; Bloyd, supra, 43 Cal.3d at p. 360.)
Having found appellant’s issues are without merit, we similarly reject her claim of cumulative error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HILL, J., KANE, J.