Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County. Kathleen Kennedy-Powell, Judge. Affirmed as modified., Los Angeles County, Super. Ct. No. BA227886.
Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant Johnathan T. Bolden.
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant, Tavares Stefin.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
Appellants, Johnathan T. Bolden and Tavares Stefin, appeal from their convictions of multiple murders, robbery and burglary. They contend the trial court erred in finding their respective statements to the police were voluntary and thus admissible. They also contend the trial court committed prejudicial error in admitting evidence of uncharged crimes. They further argue the gang findings are not supported by the evidence. Stefin argues the trial court erred in excluding evidence to support his duress defense and further erred in refusing instructions on the defense of duress. Finally, they assert their sentences should be corrected to reflect the jury’s verdict, the court’s oral pronouncement of judgment and applicable law. We find their allegations of sentencing error have merit and accordingly will modify the judgments. As so modified, we affirm.
FACTS AND PROCEEDINGS BELOW
Appellants, Johnathan T. Bolden and Tavares Stefin, are members of a San Fernando Valley street gang known as Every Woman’s Fantasy (EWF). The events in this case concern a series of criminal activities engaged in by members and associates of EWF, including Bolden and/or Stefin over a three-month period starting in December 2001. Their criminal activities ended in February 2002 when Bolden and Stefin were arrested. The case initially involved five defendants and 65 counts, including five counts of murder. Eventually two of the defendants pled guilty to lesser charges in exchange for their agreements to testify against the remaining defendants. Thereafter, the court granted one of the defendants, Romel Johnson’s, motion to sever trial. Finally, trial on some of the charges against Bolden was deferred in order to facilitate a single trial for Bolden and Stefin—the two remaining defendants—before separate juries. It is their activities which are the subject of the present appeal. The following factual synopsis is, to the extent possible, in chronological order, and includes trial testimony as well as preliminary hearing testimony and videotaped testimony admitted as inconsistent statements with the testimony those witnesses presented at trial.
Pony Express Sports Store (Count 51):
On December 2, 2001 an alarm company telephoned the general manager of the Pony Express Sports Store in North Hills to notify him of a break-in at the store. The burglars knocked off an air vent on the roof and entered the store by shimmying down a rope and breaking through the acoustical ceiling. The burglars had smashed the glass cases holding the guns. After taking inventory, the general manager of the gun store determined nine guns had been stolen. Of the nine guns stolen, four were nine millimeter, of which three were Ruger nine-millimeter caliber handguns.
Diamond Dixon (“Lady D”) associated with EWF. She had known both Bolden and Stefin for at least five years. At the time of the events in this case Dixon was 20 years old, Bolden (“Tru”) was 19 years old and Stefin (“Mossberg”) was 17 years old. Dixon was Bolden’s girlfriend. Dixon met Stefin in continuation school. She continued to have a close, friendly relationship with him too. Dixon referred to Stefin as her “top notch homie.”
Dixon was also named as a defendant in this case and charged with numerous crimes. In exchange for a guilty plea to robbery at a Pic-N-Sav store and a plea to accessory to two of the murders, Dixon received probation and agreed to a videotaped interview regarding all the events in this case. On the videotape, Dixon stated Bolden and Eddie Williams (“Little Blink”) “hit” a gun store in North Hills in late November or early December 2001. Bolden and Eddie Williams returned around 2:00 or 3:00 a.m. with a backpack full of guns. Dixon recalled there were about eight guns in the backpack of varying calibers: nine, .22, .25 and 40 millimeter. She did not recall seeing any revolvers or rifles. Bolden and Eddie Williams told her they and others entered the gun store through the ceiling. Bolden and Stefin allegedly used guns taken in this burglary to commit the other crimes in this case.
Dixon’s actual trial testimony consisted primarily of responses, such as, “I don’t know what you are talking about,” or “none of your business.” For this reason, most of Dixon’s information was introduced through impeachment with her preliminary hearing testimony or through her videotaped statements taken as part of the plea arrangement.
Sabora Mexican Restaurant - Other Crimes Evidence against Bolden Only:
The parties agreed trial on the counts relating to the Sabora Restaurant robberies and the robbery at the Pic-N-Sav store (discussed post) would be deferred pending the outcome of the present trial. The court nevertheless found the evidence of these robberies relevant and admissible on the issue of Bolden and Stefin’s intent in committing the later robbery and burglary of Milton’s Caribbean Restaurant (discussed post).
In December 2001 Dixon drove Bolden and Eddie Williams to a Mexican fast food restaurant. Both men were armed. They robbed the restaurant and persons inside the restaurant and fled when one of the guns accidentally fired.
On February 3, 2002 Bolden committed another robbery at the Sabora Mexican Restaurant. Around 1:00 p.m. on February 3, 2002 Francisco Alvarez was in the parking lot of the restaurant sitting in his brother-in-law’s truck. He saw a young Black male wearing a sweatshirt with a bandana or kerchief over his face. Alvarez later identified the young Black male as Bolden. Bolden got into Alvarez’s truck on the passenger side and ordered Alvarez to start the engine. Alvarez told Bolden to get out of his truck. Bolden responded by sticking his gun in Alvarez’s chest. Alvarez started the truck’s engine as Bolden yelled to the cashier to place the money on the floorboard of the truck on the passenger side. Bolden tried to grab the cashier’s arm to drag her into the truck. The cashier managed to run away. Alvarez used the momentary distraction as his opportunity to escape as well. Alvarez ran back into the restaurant. As he ran, he picked up dropped handbags and purses he presumed belonged to patrons of the restaurant. As Bolden drove off in Alvarez’s truck, he fired a shot in Alvarez’s direction.
Police ultimately found the truck. Its speakers and amplifiers were missing. Also missing was Alvarez’s brother-in-law’s cell phone. After Alvarez retrieved the truck from the impound lot he thoroughly cleaned it and attempted to fix the loose wiring. When he lifted up the floor mats to work on the wiring he discovered a nine-millimeter shell casing which he later turned over to the police.
Pic-N-Sav Robbery – Other Crimes Evidence Against Bolden and Stefin:
On January 30, 2002 Bolden, Stefin, Eddie Williams, Tarray Swinney (“Little T-Mack” or “Little Mack”) and others were in a Howard Johnson Hotel in Reseda. Accompanying them were three young women, Dixon, Desiree Collins and Aisha Allen (“S Girl” or “Sexy Girl”). They were all at the Howard Johnson Hotel to eat, drink and party with their friend “T-Mack,” and as Dixon described them, “T-Mack’s” prostitutes. “T-Mack” had a reputation for being a pimp. At some point Bolden and others concocted a scheme to rob a nearby Pic-N-Sav store. Bolden, Stefin, Swinney, Aisha Allen and an unidentified male left and drove to the Pic-N-Sav. Bolden had a silver colored nine-millimeter handgun. Stefin had a rifle he secreted down his pant leg. Swinney also had some type of handgun.
Eddie Williams was sleeping and told Bolden he did not want to go.
Dixon did not approve of the planned robbery. She and Desiree Collins drove over to the Pic-N-Sav and confronted Bolden. Bolden told Dixon to go inside the store and conduct a head count. Dixon refused. Bolden then ordered 14-year-old Desiree Collins to do the head count. Desiree Collins did not want to go into the store alone and convinced Dixon to join her. They did the head count, exited and reported the result to Bolden.
On January 30, 2002 Tonya Welpman and five other employees were working at the Pic-N-Sav store in Reseda. There were still numerous customers in the store around 8:45 p.m., near the closing time of 9:00 p.m. A young man came up to Welpman and pulled out a gun. At that moment, two other young men pulled out guns and a woman standing in the checkout line pulled a gun from her skirt. All of the robbers were Black. Bolden and another gunman ordered the store manager, Welpman and two other employees into the back office where they kept the safe. The gunmen ordered Welpman and the others to kneel down, cover their eyes and not look at them. One of the gunmen ripped the telephone from the wall so no one could call 911. The gunmen ordered the manager to open the large safe. The robbers took a small safe containing the money and left.
Meanwhile Stefin, Allen and Swinney had herded all the customers into the restroom in the back of the store and held them there at gunpoint. There customers were relieved of their wallets, jewelry and other valuables. Swinney kicked some of the customers as they knelt on the floor. He also hit a small child and made him scream.
Welpman later identified Bolden and Aisha Allen as two of the robbers from a six-pack photo array.
Allen pled guilty to two counts of robbery stemming from the Pic-N-Sav incident, received a suspended sentence of five years and was placed on probation in exchange for her agreement to give a videotaped interview regarding the events. When Allen was arrested for grand theft auto her probation was revoked and she was sent to prison for five years.
Once Bolden and the other man exited the manager’s office with the money Aisha Allen put the small safe into a baby stroller she took from the store and rolled the safe out to the car. Back at the hotel, they threw the loot onto the bed and split the proceeds. Aisha Allen’s take was about $1,000. Everyone left the hotel when Stefin’s rifle accidentally fired as he extracted it from his pant leg.
Desiree Collins’ Murder (Count 48):
Roberto Wynn was a member of the EWF gang in 2002. At the time, EWF had several hundred members in the San Fernando Valley. Wynn went by the moniker “Little H.” He had several tattoos on his body, including “EWF,” “Life,” “Dubb,” another name for EWF, and “EWFG.” Wynn explained EWF got along with certain subsets of both the Crips and Blood gangs. Specifically, the EWF or Dubb gang got along with the Blood gang in Pacoima primarily because there were so few Black gangs in the San Fernando Valley they tended to support each other. The EWF or Dubb gang also got along with the Blood gang called “Black Pea Stones” in South Central Los Angeles.
Sometime after the events in this case Wynn moved to Ohio. The prosecution paid for his airfare and lodging to attend the trial. However, Wynn testified voluntarily, without promises of leniency or immunity.
Wynn had known fellow gang members Bolden (“Tru”), Stefin (“Mossberg”) and Dixon for several years. He had only known Eddie Williams (“Little Blink”) for a few months.
In the evening of February 10, 2002 a group of EWF members, associates and friends had gathered at a townhouse apartment leased by Dixon’s grandmother. A group of people was in an upstairs bedroom smoking marijuana and socializing. This group included Wynn, Stefin, Raymond Williams, Dixon’s best friend, Melanie Coleman, Aimee Sharp and Dixon’s infant son.
Another group was sitting on the staircase landing: Bolden, Eddie Williams, Dixon and Desiree Collins. Earlier, Wynn had noted Bolden was carrying his silver nine-millimeter handgun on his waist.
While Wynn and the others were in the bedroom, they heard a gunshot. Wynn went to the door to see what happened. Bolden was standing in the hallway with a gun in his hand. Bolden told Wynn to go back in the bedroom. Desiree Collins had been shot in the head. There was blood all over the stairway. Bolden and Raymond Williams carried Desiree’s body out to the garage and placed it into the backseat of Dixon’s car. Bolden ordered everyone to clean up the blood.
Dixon had been standing so close to Bolden when he fired the shot she was momentarily deafened by the blast. She was distraught and panicky. It was very upsetting to her to think Bolden would shoot and kill Desiree Collins for no reason at all. Dixon told Aimee Sharp, “If he’ll do her, he’ll do me.”
Bolden and Raymond Williams drove off in Dixon’s car. Stefin, Wynn and the others started wiping and soaking up the blood from the staircase, from the apartment floor and from the garage. They used numerous towels and bleach in an attempt to remove the bloodstains. When Bolden returned, he told the group he had dumped Desiree Collins’ body in a dumpster near a high school. He said he kept her shoes to make it look as though she had been the victim of a robbery. Bolden later stated he did not like Collins anyway.
In this group, Bolden was considered the “shot caller.” At 19 years old, he was the older, or “big homie,” although he was not an “O.G.” Wynn agreed that as a general matter, someone who does not follow the orders of a “shot caller” is considered a “bitch” or a “punk.” Everyone was afraid of Bolden after he shot Desiree Collins.
Most of the people connected with EWF thought Desiree Collins was at least 19 years old. She had only recently joined the group after running away from her foster home. However, Collins was only 14 years old when she died. Her body was never found, despite massive efforts by her family members and the police.
A few days after the shooting Collins’ sister, Latosha Craig, called Dixon because she had not heard from Collins. Dixon told Craig that Collins had been killed and her body dumped either along the freeway or in the dumpster of a restaurant on Sunset Boulevard.
Craig became upset with the police department’s lack of results and decided to conduct her own investigation of Collins’ murder and the location of her body. As part of her investigation, Craig visited Bolden in jail and confronted him directly. Their entire conversation was tape-recorded and the tape was played for Bolden’s jury. Craig accused Bolden of killing her sister. She demanded to know where he had put her body. Throughout their lengthy and heated exchange, Bolden continued to deny he had killed Collins. He said if the police had any evidence he would have been charged by now. He also expressed confidence no “homie” would testify against him.
Dixon later spoke with her own sister. Dixon told her sister Bolden had shot Collins. Dixon explained Bolden and Collins had been arguing. Bolden brandished his gun at Collins. Collins mocked Bolden and dared him to shoot her. Bolden then shot Collins through the head. Dixon told her sister she would have to take the blame so Bolden could get off. Dixon also explained Bolden told her she did not need to say anything at his trial.
Police searched Dixon’s grandmother’s apartment when they learned it had been the site of Desiree Collins’ shooting. When officers took up the carpeting and padding beneath, the officers discovered blood had seeped through the floorboards, through the drywall and had dripped into the first floor ceiling. Officers took blood samples from these areas and subjected it to DNA testing. The results of these tests were then compared to DNA testing of Desiree Collins’ mother’s and half siblings’ blood. The comparisons showed a strong indication the blood found inside the apartment came from offspring of Desiree Collins’ mother.
Milton’s Caribbean Restaurant – Robbery/Burglary/Double Homicide (counts, 1, 2, 3 and 4):
For weeks, members and associates of the EWF gang had been talking about a “lick,” or robbery, planned for Monday, February 11, 2002, the morning after the Desiree Collins shooting. The robbery had been “set up” by Romel Johnson, known as “Time Bomb” from the Rollin’ 20’s Blood gang. According to Johnson, word had it they would find kilos of marijuana and $500,000 in cash at Milton’s Caribbean Restaurant in South Los Angeles.
EWF members had met Romel Johnson, or “Time Bomb,” through “T-Mack.” The original plan was for Swinney, Raymond Williams, Johnson, Eddie Williams, Bolden and Collins to carry off the robbery. Dixon had also agreed to participate in the robbery. However, after Bolden shot Desiree Collins she dropped out, as did others. Stefin agreed to go, although he told Dixon he did not want to participate.
Shortly after Bolden and Raymond Williams returned from disposing of Collins’ body Bolden, Dixon and Eddie Williams went to Sylmar and spent the night at a Good Nite Inn. They drove a silver Dodge Neon borrowed from Tanesha Thomas (“Pocahontas”). Stefin and Raymond Williams met them at the motel, armed with a .22-caliber rifle and .25-caliber handgun respectively. Bolden still carried his silver nine-millimeter handgun. That evening, and again in the early morning hours, Romel Johnson communicated with Bolden and/or Dixon by cell phone.
At 5:00 a.m. Bolden, Stefin and Eddie Williams left the motel in the silver Dodge Neon and drove to the restaurant in Los Angeles. Dixon stayed behind.
In the early morning of February 11, 2002 Rodney Tomlin and Emard Peart were at Milton’s Caribbean Restaurant where they worked as cooks. The restaurant is located on Slauson Avenue in Los Angeles. Around 8:15 a.m. Carl Scott, a handyman who did odd jobs at the restaurant, knocked on the side door and told Peart to open it. When Tomlin opened the door, Bolden, Stefin and Eddie Williams rushed in behind him. Tomlin jumped out a nearby window and hid in the crawl space beneath the kitchen area of the restaurant. From his position, Tomlin could hear voices and the activity above.
Bolden had on a red bandana. He pointed his nine-millimeter handgun at Peart and said, “Don’t move. Get on your knees.” Peart and Scott both complied. Peart asked Bolden what he wanted. Bolden replied, “Ganga,” (which Peart took to mean marijuana) and money. Peart responded no one at the restaurant had anything to do with growing or selling marijuana. Bolden pointed his gun and told Peart to shut up. Bolden then demanded Peart’s wallet. Peart refused to hand over his wallet, but gave Bolden all his cash, amounting to $46. Bolden put the money in his pocket.
Peart saw Bolden talking on a walkie-talkie. He heard someone tell Bolden to look in the storeroom in the back of the restaurant. Bolden went into the storeroom and knocked plates, cups and other supplies from the shelves searching for the marijuana and cash. Eddie Williams stood in the doorway brandishing his .25-caliber handgun. From his hiding place in the crawl space Tomlin could hear someone saying, “Where’s the money at?” He could hear the crashing sounds of people kicking in doors and “tearing down the place, looking for money.” He heard a voice on a walkie-talkie saying where to look.
Meanwhile, Stefin, armed with the rifle, led Peart to the cash register in the front of the restaurant. Peart was unable to open the cash register. Stefin also tried pushing the buttons but was equally unsuccessful at opening the cash register. He had failed to notice the cash register was unplugged. With Stefin following, Peart returned to the kitchen to attend to the chicken he was then frying on the stove.
Scott suddenly jumped up and ran into the storage room. Peart heard rumbling, and the sounds of a struggle. He then heard shots fired. Peart escaped and ran to a nearby fire station to report the robbery in progress.
Scott was pronounced dead at the scene. He had sustained five gunshot wounds, three to the head and two to the chest area. Scott had provoked the shooting by slicing Bolden’s neck with a meat cleaver.
Around 8:30 a.m., Romel Johnson called Dixon on her cell phone. He said the “lick” went wrong. Johnson told her Eddie Williams had been shot and Bolden had been “stabbed.” Seconds later, Bolden called Dixon to tell her Eddie Williams had been shot and he had “got his neck sliced.” Johnson took the phone back to tell Dixon he was then taking Bolden to the California Hospital downtown.
Around 8:45 a.m. a small brown car driven by Romel Johnson pulled up to the California Hospital Medical Center on Hope Street in downtown Los Angeles and dropped off Bolden. Bolden got out of the car and started walking into the hospital. When a security guard on duty at the emergency room of the hospital saw Bolden begin to stagger the guard brought Bolden a wheelchair and wheeled him into the hospital.
Moments later Stefin drove up in the small silver Dodge Neon with Eddie Williams in the passenger seat. Eddie Williams was declared dead on arrival from multiple gunshot wounds.
When the security guard returned he saw Stefin standing in front of the silver Dodge Neon talking to Johnson. The guard watched as Johnson got back into the brown car and drove off. Stefin remained standing by the silver Neon. Around 8:50 a.m., Los Angeles Police Officer Michael Fiola came to the hospital in response to a dispatch regarding shooting victims. He saw Stefin standing near the silver Neon. His clothes were soaked with what appeared to be blood. Stefin identified himself as Christopher Tillis and told the officer he had just brought a hurt friend to the hospital. Stefin told the officer his friend had been injured at a 76 gas station on Slauson. Other officers visited the gas station and employees there reported no incidents out of the ordinary had occurred.
Officers found a red bandana which had been dropped in the gutter of the emergency lane of the hospital. Officers transported Peart to the hospital where he identified Bolden as the man with the silver handgun and Stefin as the man who entered the restaurant with the rifle. Peart also recognized the red bandana as the one worn by Bolden.
Stefin was arrested at the hospital. On arrest, he had a piece of paper in his pocket listing various persons’ telephone numbers. The number listed for Bolden was the number for the cell phone Bolden had taken in the carjacking and robbery at the Sabora Mexican Restaurant.
A police officer spoke to Bolden briefly at the hospital. Bolden told her he had been “jumped” by some Hispanic gang members on Slauson. The officer collected Bolden’s property which included a walkie-talkie; two key rings with keys; a nine-millimeter shell casing wrapped in a tissue; $48 in cash; a social security card; a Rolex watch; a bracelet; and two white metal necklaces.
Carl Scott’s wife later identified one set of keys as belonging to her husband.
Romel Johnson made arrangements with Dixon to meet and take the guns used in the robbery. A few days after the crimes, Dixon and several other people went in a van to a 7-Eleven store. In the parking lot, Johnson handed Dixon a pillowcase containing the .22 caliber rifle. Dixon did not look inside the pillowcase to see if it contained the other guns as well. Someone else actually disposed of the guns and Dixon did not find out what happened to them.
After Eddie Williams’ funeral Dixon’s best friend, Melanie Coleman, spoke to Bolden on the telephone. Bolden admitted he killed Eddie Williams but said it was an accident. Bolden told Coleman he had “finished off the Jamaican.”
Police Investigation of the Milton’s Caribbean Restaurant Crimes:
Officers discovered a .25-caliber Beretta handgun in the hallway near the storeroom, containing seven rounds of ammunition in the magazine and one bullet in the chamber. They found no expended .25-caliber casings in the restaurant. Near Carl Scott’s body, officers found a meat cleaver, six nine-millimeter bullet casings and three expended bullets of unknown caliber.
A forensic print specialist obtained a latent fingerprint of Bolden’s left thumb from a cash register in the storage room off the kitchen. The print specialist recovered no latent prints from the cash register in the front of the restaurant.
Various blood samples from the crime scene and from Carl Scott, Eddie Williams, Bolden and Stefin were sent for DNA analysis. The blood on the .25 caliber Beretta handgun matched Eddie Williams; the blood on the dull side of the meat cleaver matched Carl Scott; the blood on the sharp side of the meat cleaver matched Bolden; the blood on the doorway between the kitchen and hallway matched Bolden; a sample from the exterior rear door of the Dodge Neon matched Bolden; and blood from Stefin’s pants matched Eddie Williams.
A firearms expert examined evidence found at the restaurant crime scene, the four bullets recovered by the coroner from Carl Scott’s body and the single bullet recovered from Eddie Williams’ body. One of the bullets taken from Scott was a .25-caliber bullet and matched a bullet test fired from the .25-caliber Beretta handgun recovered at the restaurant. The three other bullets taken from Scott’s body and the one bullet taken from Eddie Williams’ body were all nine-millimeter Ruger ammunition. According to the firearms expert, all the nine-millimeter bullets had been fired from the same gun. The six expended shell casings, bullet and bullet jacket found at the crime scene had also been fired from the same nine-millimeter handgun.
During their autopsies, the coroner performed toxicology tests on Carl Scott and Eddie Williams. Scott tested negative for all substances tested. Williams’ toxicology screen was positive for P.C.P. at 15 nanograms per milliliter. The coroner could not determine how recently Williams had ingested P.C.P., explaining there were too many individual variables.
Stefin’s Statement to the Police:
As noted, Stefin was arrested at the hospital. Later at the station, Stefin waived his Miranda rights and agreed to speak to the investigating officers. His statements were tape recorded and the tape was played for his jury at trial.
Miranda v. Arizona (1966) 384 U.S. 436.
Stefin again identified himself as Christopher Tillis. As part of his charade, Stefin falsely admitted to having been arrested for attempted murder, assault, trespass, and brandishing and firing a deadly weapon. Stefin falsely claimed his brother’s social security number as his own, claimed he had had a Chinese-styled tattoo removed and claimed a scar on his right arm had gone away because it had really only been a rash. It was not until sometime after the interview the officers learned Christopher Tillis was Stefin’s older brother.
Stefin showed the officers his EWF tattoo. Stefin explained it stood for Every Woman’s Fantasy, a clique in the San Fernando Valley. Stefin claimed he had just gotten the tattoo three weeks before. Stefin explained he met Bolden through Dixon and the three of them lived together in Dixon’s apartment in the San Fernando Valley. Eddie Williams had recently moved in with them as well. Stefin said his nickname was “Mossberg,” a moniker he picked up from a “big homie.”
The officers commented his clothes were still soaked in blood and asked Stefin to explain what happened. Stefin responded, “It wasn’t even supposed to go down like that.” He explained word had gotten around there were five pounds of marijuana and “$500,000 worth of like—just money.” Others had been “scooping [sic] it out forever.” Bolden told Stefin the “lick” was planned for Monday, that there would be a lot of money and they were going to “clean up.”
They stayed the night before at the Good Nite Inn in Sylmar. The marijuana and cash were supposed to be dropped off at the restaurant in the morning. Bolden woke Stefin up at 5:00 a.m. and told him to come with him. Dixon told Stefin to go back to sleep. The officers inquired why Stefin did not follow her advice. Stefin responded, “I always go with them, always.”
Bolden drove the silver Dodge Neon they had borrowed from Tanesha Thomas. Stefin slept in the car during the drive. When he woke up, they were parked in the alley behind the restaurant. Eddie Williams spotted the green car they had heard would be the delivery car. It was parked near the restaurant. A tall, dark Jamaican-looking man with dreadlocks handed the driver of the green car a big bag. Bolden followed the green car for a while but lost sight of it. A few moments later, the green car “pop out of nowhere” and began to follow them. Bolden pulled into a carwash and told Stefin to go to the payphone and pretend to make a call. Bolden was fearful the person in the green car might be associated with a rival gang.
Bolden drove back to the restaurant. They saw the same tall, dark Jamaican-looking man sitting in his car—Carl Scott. Bolden ordered the man at gunpoint to get out of his car. At the side door of the restaurant Bolden told the man to knock and to tell the people inside to open the door. Eddie Williams stood nearby with his gun in hand to ensure Scott complied. When the door opened, they rushed in before Scott could slam the door shut. Bolden ordered everyone inside to their knees. Bolden asked where the money was. He asked for the keys. The cooks protested they did not own the business, did not have keys, and did not know anything about money or marijuana. Bolden kicked in the office door and continued to look for the drugs and money.
Stefin tried to open the cash register but was unsuccessful. When he turned around, he heard Bolden let out a groan and saw Scott wielding a meat cleaver. Bolden was holding his neck and blood was gushing from his neck wound “like water.” Stefin then saw Scott rush toward Eddie Williams with the knife. Eddie Williams put his arms up defensively and the two men struggled. Stefin heard multiple gun shots and rushed into the room. Eddie Williams still had a pulse. Scott did not. Stefin dragged Eddie Williams to the car. Bolden was running and bleeding profusely shouting, “Help me, help me.” Bolden yelled into the walkie-talkie, “Eddie’s on the ground. He’s hit. He’s shot.” Stefin noticed Bolden getting dizzy and told him to get to the car.
Stefin repeatedly denied coming to the restaurant armed. He told the officers he found the rifle in the restaurant freezer. Stefin said after Bolden shot Scott, Bolden walked over and fired two more rounds into Scott’s head.
Stefin wrote a statement at the end of the interview stating: “To the families that has [sic] lost a loved one today. I’m sorry for my friend [sic] actions. I’m sorry for even being around. Sorry for being who I am today. I’m sorry for not talking them out of it. I’m sorry for the fact that someone had to die. It wasn’t supposed to happen this way. It shouldn’t of [sic] even happened. Why did it happen[?] I guess greed.
“I didn’t do the shooting but I’m doing the mourning. But I can’t sit here and feel sorry for myself because I was there. I’m not asking you to feel sorry for me cause I was there. But was I really there or the greedy person inside. I loved Eddie for the simple fact he’s quiet like me. I love Jamaicans because my mom’s Nigerian and I love the way they talk. I never meant for anyone to get hurt. I hate guns, I hate blood, and I also hate the fact that people don’t think before they do things. It looked easy, but ended up in obstacles. I rushed Eddie to the hospital but it was too late. That right there should tell you I didn’t mean for anyone to get hurt. I love life so why take it away[?]”
After the interview, the officers discovered Stefin’s identity. They learned Stefin was 17 years old and had recently run away from a juvenile camp where he was sent after an adjudication for auto theft.
Bolden’s Statement to the Police:
Scott had sliced Bolden’s neck with a meat cleaver. The knife wound was so deep it exposed his muscles and the vertebrae covering the spinal column. Although conscious and alert Bolden was bleeding profusely when he arrived at the California Hospital Medical Center. Doctors at the hospital performed surgery to stitch his neck muscles back together. He lost additional amounts of blood during the surgery as well and required blood transfusions. Bolden remained at the hospital from early Monday morning through Wednesday evening when he was released into the custody of the Los Angeles Police Department around 5:00 p.m. During his stay at the hospital Bolden received morphine for pain initially every two hours and thereafter as needed.
At 7:50 p.m. on Wednesday, the investigating officers came to speak to Bolden at the jail. Bolden had had his last dose of morphine at 4:40 p.m. but did not appear to be under the influence of any drug at the time. Bolden had just finished eating a meal of meat, mashed potatoes and peas.
The investigating officers told Bolden they wanted to talk about how he got his neck wound. Bolden told the officers he did not remember anything. The officers nevertheless advised Bolden of his Miranda rights. Bolden waived his Miranda rights and told the officers he wanted to talk to them and wanted to find out the charges on which he was being held. Throughout the interview, Bolden asked about the charges against him. Each time the officers told him the only thing of which they were certain was that he would be charged with a probation violation.
The officers began the interview by asking questions about Bolden’s name, moniker, address, and questions about his friends and family members. When questioning turned to the events at Milton’s Caribbean Restaurant Bolden claimed he could not remember anything. For almost two hours, Bolden claimed he could not recall Monday morning’s events. He reminded the officers he had nearly died. Bolden stated hospital personnel told him he was lucky to be alive after received such a deep cut to his neck and after losing six pints of blood. Bolden periodically told the officers he was trying his best but simply could not remember. Bolden also frequently asked about Eddie Williams.
Bolden told the officers he was a chronic user of P.C.P. He explained how he smoked it and how it made him feel. Bolden stated P.C.P. made him feel powerful and invincible like Superman. Bolden said he tried not to smoke P.C.P. in front of Dixon because she did not approve of him using P.C.P. Bolden described himself as a “sherm head,” or a chronic P.C.P. user. Bolden said he probably smoked some P.C.P. on Monday morning before going to Milton’s Caribbean Restaurant. He told the officers he was certain if they tested his blood it would test positive for P.C.P.
At some point, the officers took a different tack. They told Bolden they had his fingerprint on a walkie-talkie used at the restaurant. The officers also told Bolden they had a video of the events inside the restaurant. They said the video showed there had been a fight inside the restaurant, Bolden had been there, and what they wanted to know was who started the fight and why the fight happened. The officers asked how Bolden had come into possession of the key rings found in his pocket at the hospital. Bolden said he did not know but was trying his best to remember. At some points, Bolden stated Eddie Williams might have better information and suggested asking him instead. Bolden protested he wanted to help the officers but simply could not remember. Bolden said if the officers checked into his history they would know he always waived his Miranda rights.
Using a different approach, the officers asked Bolden if he thought it might improve his memory if he listened to Stefin’s taped interview. Bolden claimed he could still not remember anything even after hearing the first few snippets of Stefin’s taped interview. The officers asked Bolden whether Stefin had been truthful. Bolden wanted to hear more of Stefin’s taped interview to see what Stefin had said. The officers played much of Stefin’s taped interview for Bolden.
Ultimately, Bolden admitted to the events at Milton’s Caribbean Restaurant. Bolden acknowledged he, Stefin and Eddie Williams went to the restaurant for the purpose of stealing the five kilos of marijuana and $500,000 in cash that was supposed to have been at the restaurant early Monday morning. Romel Johnson, or “Time Bomb” of the Rollin’ 20’s gang, set up the robbery. Before going to the restaurant he and Eddie Williams smoked some P.C.P.
Bolden admitted he ordered everyone inside the restaurant to get on their knees. He asked where they were hiding the marijuana and the money. According to Bolden, the big Jamaican man “didn’t want his goods to be tooken [sic].” The man tried to kill him by attacking him with the knife. After he sliced Bolden’s neck with the meat cleaver, the man attacked Eddie Williams with the knife as well. After much additional questioning, Bolden told the officers, “Okay. Listen, I shot him. And the reason I shot him was cause self-defense. I was protecting me and Eddie.” Bolden insisted he was not the only one shooting.
In another part of the interview Bolden claimed after he was cut, he blacked out and might have left his finger on the trigger as he fell down. He claimed he put his gun down in order to drag Eddie out to the car and when he returned he saw Stefin using his gun to “finish off” the Jamaican.
The interview ended at approximately 1:00 a.m.
Expert Gang Testimony:
Los Angeles Police Detective Chris McKinney testified as an expert on the EWF gang. McKinney had been a supervisor of the Special Enforcement Unit which handled gang related crimes and investigations. McKinney had focused on the EWF gang during the four and a half years he spent in the Van Nuys C.R.A.S.H. unit investigating gang activity.
At the time of trial EWF had about 60 documented members in four main sets in four areas of Los Angeles. In the mid to late 1980’s EWF went “over the hill” and became the Hillside set, occupying several areas in the San Fernando Valley. In the late 1990’s and in early 2000 two other sets emerged. The Pack Town Mob in Pacoima affiliated with the Bloods and a Panorama City set which associated mostly with Crips. McKinney opined EWF had since moved to other states as well.
McKinney testified the primary activities of EWF were homicide, attempted homicide, assault, narcotic sales, burglary, property crimes and witness intimidation.
Common graffiti for the gang are “EWF” and “EWFG” with the “G” standing for gang or gangster. EWF members sometimes refer to themselves as the “Gray Rag Tag” to distinguish themselves from Bloods and Crips. Bolden had several tattoos for EWF and the Hillside set of EWF. Stefin also had several gang-related tattoos, including EWF on his arm. Both men were listed on the California Gangs database. In McKinney’s opinion, both Bolden and Stefin were active gang members. The expert also knew Eddie Williams to be an EWF gang member as well. He was unfamiliar with Romel Johnson, or “Time Bomb.”
To establish the predicate acts of the gang the prosecutor reviewed abstracts of judgments of conviction with the expert regarding three EWF members.
In McKinney’s opinion, the robbery of Milton’s Caribbean Restaurant benefited the gang. The expert opined, “It is a furtherance of the gang for several reasons. Number one, any monies or property that was obtained would further the gang in order to purchase narcotics, in order to gain more money that way, as well as purchasing weapons and anything else the gang needed. [¶] In addition, the knowledge of anyone who knew these members to be EWF gang members, status in the community, if any of the community found out, or it was bragged about that EWF did this robbery. [¶] It also helps with furtherance of the gang in promoting certain gang members in the gang for putting in work or doing deeds for the gang.”
McKinney recalled Stefin’s moniker was “Baby Mossberg.” At the time of the crimes he was 17 years old and had recently run away from a camp placement. The expert agreed if someone in the gang refused an order from a “shot caller” the consequence could range from verbal abuse to homicide.
Los Angeles Police Detective Scott Williams testified as an expert on the Rollin’ 20’s Blood gang. He explained there were then 275 documented members of the Rollin’ 20’s gang, and many more members who were not documented. Prior to the events in this case Williams had talked to Romel Johnson who was an admitted and documented Rollin’ 20’s gang member. Romel Johnson went by the moniker “Time Bomb” and had numerous gang-related tattoos. After the events in this case Romel Johnson admitted to Williams he had been involved in the planning of the robbery at Milton’s Caribbean Restaurant.
Williams stated the primary activities of the Rollin’ 20’s gang ranged from tagging and graffiti to robberies, narcotics sales, shootings and murders. Predicate acts of the Rollin’ 20’s gang were established through abstracts of judgments of conviction for two members, Maurice Carroll and Tremell Cunningham.
Williams opined robberies benefited the gang “because it earns money for the gang. Many times proceeds from robberies, especially if there’s a large amount of money that’s obtained, is used to purchase guns. Those guns benefit the gang in that they are used by the gang members to retaliate against rival gang members and to intimidate the neighborhood. [¶] Robbery also benefits the gang in that they get money for the purchase of narcotics which are then used to sell and further earn money for the gang. [¶] Murders are beneficial in that they cause a great deal of anxiety and fear in the neighborhood. People are going to be less likely to testify against a gang member if they know that those people are willing to go and kill members [in] the community. It also gives them status in the gang. If they commit a murder, other gang members will look up to them, and thus bolstering the status of that person with the gang.”
Stefin’s Defense Case:
Defense investigator, Robert Freeman, went to the women’s state prison at Chino to interview Dixon. They spoke about Collins’ murder. Dixon said after the shooting everyone panicked and the shooting made her afraid of Bolden. Dixon told the investigator Stefin did not want to be part of the Pic-N-Sav robbery. Dixon explained the original plan was for Bolden, Dixon, Collins, Eddie Williams, Raymond Williams and Swinney to participate in the Milton’s Caribbean Restaurant robbery. However, Bolden then shot Collins and Stefin had to go because “everybody else bailed after” Collins’ murder.
Dixon’s probation was revoked when she was arrested for child abuse.
Bolden’s Defense Case:
Dr. Jean Carlin is a medical doctor specializing in psychiatry. She was then teaching, training and supervising physicians at the Martin Luther King/Drew Hospital. In order to render an opinion on Bolden’s mental state at the time of his police interview she had analyzed the hospital records of Bolden’s medical treatment between February 11, 2002 and February 13, 2002 for his neck wound, interviewed Bolden, and reviewed Bolden’s taped interview with the police.
When he presented at the hospital Bolden was awake and conscious. His neck wound was so deep it exposed the underlying muscle and the vertebrae covering the spinal column. Bolden underwent surgery and the doctors managed to suture back together the severed muscles. Bolden had lost approximately six pints of blood as a result of the surgery and profuse bleeding pretreatment. During his stay at the hospital Bolden received two units of blood. He was also given various intravenous fluids which diluted his blood further. Because Bolden received prompt treatment for his neck wound, and because he had never lost consciousness, the doctor opined he did not suffer any memory loss due to any lack of oxygen to the brain.
After the surgery, Bolden received morphine every two hours for pain. His last dosage of morphine occurred at 4:40 p.m. on February 13th, the day he was released from the hospital for booking. The doctor did not know whether morphine could affect memory or judgment.
Dr. Carlin discussed potential symptoms of P.C.P. use. Reactions to this drug varied so widely—from a strange calmness to violent combativeness—the doctor stated there was no way to predict the effect of P.C.P. on any particular person. On the other hand, the doctor opined a person’s symptoms could be more stable if he or she was a regular user of P.C.P. Because the drug is stored in fat tissue, P.C.P. is detectable in a person’s blood 72 hours after use, and lasts sometimes even longer. When released from the fat tissues a person can have a “flash back.” The doctor noted the effect of morphine only lasted a few hours, but it could potentiate the effect of P.C.P. However, the doctor could not say by how much.
Dr. Carlin was of the opinion Bolden still had P.C.P. in his system at the time of his police interview because he had smoked P.C.P. before 8:00 a.m. on Monday and his interview started at almost 8:00 p.m. Wednesday night, less than 72 hours later. She was also of the opinion the effects of his last dose of morphine must have been initially present as well because Bolden did not begin to complain of pain in his neck wound until sometime into his interview.
Dr. Carlin noted the officers were at times manipulative and asked suggestive questions. However, Dr. Carlin stated there was no way for her to determine the validity of Bolden’s statement, and thus she could not render an opinion on its reliability. She believed it would have been better, i.e., unchallengeable, had the officers waited a few days to interview Bolden. The expert opined, “You might have gotten exactly the same thing five or some days later. But then, there would be no reason to have doubts about it. [¶] But this, within the first—in less than three days of a severe injury and rather major surgery, plus having PCP in his body; it leaves open so many things that can be challenged as to was this really an interview we should be using? [¶] I can’t answer valid; I have no way to measure. But is it as believable as it would have been if he didn’t have all these other things going on at the exact same time? That’s all I really think I can answer.”
The Jury Verdicts in Bolden’s Case:
Bolden’s jury convicted him of the first degree murder of Carl Scott alleged in count 1 and of the first degree murder of Eddie Williams alleged in count 2. Regarding these murders, the jury found true the special circumstance allegations the murders were committed during the commission of a burglary and robbery. The jury also found true the firearm and gang allegations attached to these murder counts.
Penal Code section 187, subdivision (a). All further statutory references are to the Penal Code unless otherwise noted.
Section 190.2, subdivision (a)(17)(A) and (G).
Section 12022.53, subdivisions (b), (c) (d) [for count 1 only] and (e); section 12022.5; section 667.5, subdivision (c); section 186.22, subdivision (b)(1).
Bolden’s jury convicted him of second degree robbery of Emard Peart alleged in count 3 and found true the firearm and gang allegations attached to this count. The jury also convicted Bolden of the burglary of Milton’s Caribbean Restaurant charged in count 4 and found true the gang allegation attached to this count. Finally, the jury convicted Bolden of Desiree Collins’ murder alleged in count 48 and found the murder to be in the second degree. The jury found true the firearm allegations attached to this count.
Section 12022.53, subdivisions (b), (c) (d) and (e); section 12022.5; section 667.5, subdivision (c); section 186.22, subdivision (b)(1).
Section 186.22, subdivision (b)(1).
Section 187, subdivision (a).
Section 12022.53, subdivisions (b), (c) and (d); section 12022.5; section 667.5, subdivision (c).
The jury also found true the special circumstance allegation Bolden was convicted of more than one crime of first-degree murder.
Section 190.2, subdivision (a)(3).
As part of a negotiated agreement, at sentencing Bolden pled no contest to one count of robbery and to one count of kidnapping to commit another offense in connection with the Pic-N-Sav crimes. The remaining untried charges were dismissed on motion of the prosecutor. Bolden also admitted having suffered two prior “strike” convictions for purposes of the Three Strikes law.
Section 211, count 6.
Section 209, subdivision (b)(1), count 34.
Section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d).
The Jury Verdicts in Stefin’s Case:
In counts 1 and 2 the jury convicted Stefin of the murders of Carl Scott and Eddie Williams and fixed the degree of murder at second degree. The jury found true the firearm and gang allegations attached to the murder counts. On count 3, the jury convicted Stefin of the second-degree robbery of Emard Peart and found true the firearm and gang allegations attached to that count. Finally, the jury found Stefin guilty of the second-degree burglary of Milton’s Caribbean Restaurant alleged in count 4 and found true the allegation the burglary was committed for the benefit of a criminal street gang.
Section 187, subdivision (a).
Section 12022.53, subdivisions (b), (c), (d) and (e); section 186.22, subdivision (b)(1).
Section 12022.53, subdivisions (b), (c), (d) and (e); section 186.22, subdivision (b)(1).
Section 186.22, subdivision (b)(1).
DISCUSSION
I. THE TRIAL COURT PROPERLY DENIED THE MOTIONS TO SUPPRESS EVIDENCE OF BOLDEN AND STEFIN’S STATEMENTS TO POLICE.
Bolden and Stefin both claim the trial court erred in denying their motions to suppress evidence of their respective statements to the police. Bolden contends his statement was the product of psychological coercion, given his weakened physical condition, and the combination of drugs in his system. Stefin contends he waived his Miranda rights under circumstances vitiating his waiver and making his statements involuntary.
“An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution. [citation] as well as article 1, section 7 and 15 of the California Constitution [citation].” “A statement is involuntary when ‘among other circumstances, it “was ‘“extracted by any sort of threats . . ., [or] obtained by any direct or implied promises, however slight . . . .”’” [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the “totality of [the] circumstances.’” [Citation.] ‘Coercive police activity is a necessary predicate but does not itself compel a finding that a resulting confession is involuntary. [Citation.] . . . Additionally, ‘such activity must be, as it were, the “proximate cause” of the statement in question, and not merely a cause in fact.’ [Citations.]”
People v. Weaver (2001) 26 Cal.4th 876, 920.
People v. Jablonski (2006) 37 Cal.4th 774, 813-814.
The People bear the burden of proving the voluntariness of custodial statements by a preponderance of the evidence. When reviewing the trial court’s determination of voluntariness, “we apply an independent standard of review, doing so “in light of the record in its entirety, including ‘all the surrounding circumstances—both the characteristics of the accused and the details of the [encounter].’”’ (People v. Neal [(2003)] 31 Cal.4th [63] at p. 80.) We ‘“accept the trial court’s factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence.” [Citations.]’”
People v. Weaver, supra, 26 Cal.4th 876, 920.
People v. Jablonski, supra, 37 Cal.4th 774, 814.
We review Bolden and Stefin’s claims with these standards in mind.
A. The Detective’s Remark Did Not Coerce Stefin’s Statements.
Stefin was interviewed by Detectives Santoyo and Williams. Before informing Stefin of his rights under Miranda Detective Santoyo told Stefin, “You and I spoke for what? About 30 seconds a little bit ago cause you wanted to go to the bathroom, and you wanted the blanket? . . . We haven’t discussed anything? Okay. You understand why you’re here; right? We gonna—we’re the detectives working the case. This is really—really your only shot. You’re gonna have the [opportunity to] talk and give U.S. your side of the story, okay. Okay. So listen cause I know that (inaudible) questions you want answered, but I can’t [talk] to you till I do this, okay? So listen up.” Detective Santoyo then read Stefin his Miranda rights. Stefin said he understood each of his rights. Detective Santoyo then asked Stefin, “You want to tell what happened here?” Stefin responded “Yes, sir.”
Italics added.
The trial court concluded the detective’s preadmonition comment about telling his side of the story did not amount to coercion and denied Stefin’s motion to suppress. Stefin contends the court erred in admitting his statement and this error prejudiced his ability to establish the defense he participated in the Milton’s Caribbean Restaurant crimes without criminal intent.
Stefin correctly points out there are parallels between his case and the facts in People v. Kelly. In Kelly the detective provided the defendant Miranda warnings and then asked the defendant whether he wished to waive those rights and talk to the detectives. Before the defendant could respond, a second detective stated, “‘Well, you can stop talking anytime you want to and you don’t have to answer any question that you do not want to but there’s two sides to every story. And for U.S. to hear your side you have to acknowledge that your rights have been read to you and that you waive your rights.’” The defendant expressed some confusion but ultimately waived his rights and spoke to the detectives.
People v. Kelly (1990) 51 Cal.3d 931.
People v. Kelly, supra, 51 Cal.3d 931, 948.
In the Supreme Court, the defendant contended he was misled by the detective’s remark into believing if he did not speak to the detectives “his side of the story” would never be told. He argued, in essence, the remark had the effect of misadvising him of his right to remain silent and improperly coerced him into giving up that right. The Supreme Court was not persuaded the detective’s remark improperly coerced the defendant into giving up his right to remain silent. “Nor are we persuaded that defendant’s free will was somehow ‘overborne’ (People v. Sanchez (1969) 70 Cal.2d 562, 572) by Ferguson’s remark, ‘for U.S. to hear your side you have to acknowledge that your rights have been read to you and that you waive your rights.’ Defendant asks us, in effect, to infer that defendant construed this statement as a veiled threat that his ‘story’ would never be told if he failed to talk with the officers. We find this interpretation to be excessively strained. Defendant had previously been advised that he had the right to remain silent, that anything he said could be used against him in a court of law, that he had the right to consult an attorney and that if he could not afford an attorney one would be appointed ‘to represent’ him. It is self-evident that such rights are afforded for the very purpose of preparing and presenting an effective defense to the charges. While not entirely free of ambiguity, the officer’s remark, viewed in context, simply fails to resonate with the coercive force urge by defendant.”
People v. Kelly, supra, 51 Cal.3d 931, 949.
People v. Kelly, supra, 51 Cal.3d 931, 949.
So too in the case at bar. Detective Santoyo’s remark, when viewed in context, does not “resonate with the coercive force” urged by Stefin. Immediately after making this statement, Detective Santoyo advised Stefin he had the right to remain silent, as well as to the assistance of appointed counsel, if desired, before any questioning. Only after being admonished regarding his Miranda rights did Stefin agree to waive and give up those rights. Thus, this is a stronger case for finding no coercion than in Kelly where the comment came after the detective had advised the defendant of his rights, and while the defendant was still trying to decide how and whether to waive those rights. The admonishment informing Stefin he did not have to talk to the detectives at all likely had the effect of tempering any suggestion this was his only opportunity to tell his side of the story. The transcript of the taped interview reveals Stefin required no encouragement to talk in any event. Indeed, Stefin seemed almost eager to tell them his version of the events minimizing his involvement in the crimes and any advance knowledge of the planned crimes.
The fact Stefin was only 17 years old at the time does not alone enhance the coercive effect of the detective’s remark. Nor does the fact Stefin was a juvenile, standing alone, vitiate the voluntariness of his waiver. Stefin’s criminal history indicates he was no stranger to the process even at his young age. He had his first encounter with the criminal justice system at age 12. When he was 14 years old Stefin was arrested for battery. A Welfare and Institutions Code petition was filed and sustained. The court ordered Stefin home on probation. Stefin was detained three more times and when 16 years old he was ordered to camp community placement for taking a vehicle without the owner’s consent. During that particular arrest Stefin claimed the EWF gang and stated he had been a member for at least three years.
See, e.g., People v. Lewis (2001) 26 Cal.4th 334, 383 [“To determine whether a minor’s confession is voluntary, a court must look at the totality of circumstances, including the minor’s age, intelligence, education, experience, and capacity to understand the meaning and consequences of the given statement.”].
Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226 [the totality of the circumstances in determining whether a defendant’s will was overborne include factors such as the accused’s education and youth].
It is true Stefin was young and had still not completed high school by the time of the crimes. However, that is not the same as saying he was naïve or overly susceptible to the suggestion talking to these detectives was the only way to tell his side of the story. Stefin appears to have been sufficiently sophisticated and/or cunning to hide his identity by trying to mislead the detectives into believing he was his older brother, thereby attempting to absolve himself of criminal liability.
These circumstances in combination strongly suggest Stefin’s will was not overborne by the detective’s remark it was the only time for Stefin to tell his side of the story. It follows the trial court did not err in denying his motion to suppress his statements.
B. The Trial Court Did Not Err In Finding Bolden’s Statements to the Police Were Voluntary and Thus Admissible.
Bolden contends his statements were involuntary, claiming they were the product of the drugs in his system, his weakened physical condition, and the deceptive tactics used by the detectives. Accordingly, he argues the trial court erred in finding his statements voluntary and thus erred in denying his motion to suppress.
On appeal Bolden asserts four reasons why his statements should have been found involuntary and his motion to suppress granted: (1) the detectives allegedly acted in disregard of his weakened medical condition and drug impaired state; (2) the detectives failed to preserve evidence by failing to take a blood or urine sample to test for the presence of drugs; (3) the interrogation was allegedly tainted by the detectives’ deception and subterfuge; and (4) the detectives allegedly interrogated Bolden relentlessly for nearly five hours.
Bolden’s last dose of morphine occurred at 4:40 p.m. before he was released from the hospital around 5:00 p.m. The interrogation began at 7:50 p.m., or nearly three hours later. It is possible he was still feeling the residual effects of the morphine at the beginning of the interview.
According to Bolden, he smoked P.C.P. in the early morning before committing the crimes at Milton’s Caribbean Restaurant around 8:00 a.m. Dr. Carlin testified P.C.P. was detectable in a person’s blood stream 72 hours later, and because P.C.P. was stored in fat tissue, it was possible P.C.P. could be released into a person’s system even later. Because Bolden’s interview occurred near the end of the 72 hour time period it is theoretically possible P.C.P. also remained in Bolden’s blood stream. However, and as the trial court found, other evidence strongly suggested any residual P.C.P. remaining in his system three days later had to be de minimis. The evidence established Bolden lost a tremendous amount of blood from the injury before he received treatment at the hospital. His medical records showed Bolden had lost even more blood during the surgery. These records reflected Bolden had lost six pints of blood overall. He received transfusions of two 500 cc’s of blood and would have received more but for the hospital’s policy of providing only the minimum amount of blood transfusions to reduce the possibility of receiving blood borne infections. According to Dr. Carlin, Bolden’s blood was further diluted with fluids delivered intravenously. Because so much of his tainted blood had been lost and replaced, it is far less likely much if any P.C.P. remained in his blood stream.
A toxicology screen during Eddie Williams’ autopsy showed he had 15 nanograms of P.C.P. in his system. For this reason, Bolden contends the officers should have taken a blood sample from him and preserved it in order to demonstrate he too had used P.C.P. prior to the crimes. However, no one seriously doubted the factual accuracy of his contention of P.C.P. use. Thus, testing Bolden’s blood or urine for P.C.P. at the time of the interrogation was not necessary to prove or disprove any material contested issue. Moreover, because the circumstances showed so much of his P.C.P. tainted blood had been lost and replaced in any event, and because so much time had elapsed between his last use and the interrogation, a sample would likely not have provided an accurate estimate of his blood level of P.C.P. at the time of the crimes as Bolden sought to establish during the interrogation. In these circumstances, Bolden cannot establish his claim of police misconduct in failing to preserve allegedly exculpatory evidence.
One of the interrogating detectives was an expert in drug recognition. He testified Bolden exhibited no symptoms of being under the influence of any drug during the interrogation. The evidence showed Bolden ate dinner before the interrogation began and he drank water or soft drinks during the questioning. According to Bolden’s own statement, when he wanted to come down from a P.C.P. high he would drink some milk or juice. Ingesting these fluids, Bolden told the officers, had the effect of bringing him off his high. If this is true, then the food and drinks he consumed before and during the interrogation likely also had the effect of diminishing any residual effects of the remaining P.C.P. in his system.
Even if morphine and P.C.P. remained in his system, in his fat tissues or otherwise, the presence of drugs would not be dispositive in any event. “The fact an interviewee is under the influence of alcohol or drugs is a significant factor. However, it is not, standing alone, a sufficient indicator of involuntariness.”
People v. Perdomo (2007) 147 Cal.App.4th 605, 617; see also, People v. Weaver, supra, 26 Cal.4th 876, 921 [the fact the defendant may have been under the influence of medications did not establish the involuntariness of his statements; the due process inquiry focuses on the alleged wrongful and coercive action of the state, not the mental state of the defendant]; compare, In re Cameron (1968) 68 Cal.2d 487, 499-500, 502 [although the defendant had a blood alcohol content of .18 percent a review of the first taped interview showed he effectively resisted the officer’s attempt to elicit details of the crime and this was persuasive evidence showing his will to resist was not overborne during this first interview. However, when the alcohol was later combined with an extremely high dose of the tranquillizer Thorazine these substances destroyed his will to resist and to understand the seriousness of his predicament, while making him desirous of pleasing the officers; the statements he made during those later interrogations were not the product of a rational intellect and free will].
For example, in People v. Loftis even though the defendant was undeniably still under the influence of P.C.P. when he waived his Miranda rights and spoke to police, his statements were nevertheless found to be voluntary. The defendant smoked P.C.P. and became very high. While intoxicated, someone took $100 from his pocket as he stood on a street corner. The defendant retrieved a gun and ammunition and returned to the same street corner, determined to find out who had taken his money. The defendant stood in the middle of the street and fired his weapon. He then fired his gun at two young boys standing on the sidewalk, striking one. Police officers arrived as two citizens were picking the defendant up from where he was lying in the middle of the street. When the defendant faced the officer the officer noticed the defendant had a blank stare, stood very rigidly and seemed disoriented. In an apparent daze, the defendant attempted to reach out to grab a pole which was still several feet away. The defendant was arrested for assault with a deadly weapon and for being under the influence of P.C.P. He was interrogated within 30 minutes of his arrest. He was still exhibiting symptoms of being under the influence of P.C.P. A nystagmus test showed a positive reaction. The defendant’s speech was slurred, he paused for a long time before answering questions, and he made facial grimaces. When asked, the defendant agreed he was still somewhat high. Although the defendant was still obviously feeling the effects of his P.C.P. ingestion, the court held the defendant’s statements were nevertheless voluntary. The court commented there was nothing in the record to show he had any difficultly understanding his rights. The defendant stated he understood his rights and would talk to the officer. His answers were appropriate to the questions asked. He said he was still high, but less high than he had been earlier in the day. This was sufficient to find the defendant’s waiver effective and his statements voluntary.
People v. Loftis (1984) 157 Cal.App.3d 229.
People v. Loftis, supra, 157 Cal.App.3d 229, 232-233.
People v. Loftis, supra, 157 Cal.App.3d 229, 232.
People v. Loftis, supra, 157 Cal.App.3d 229, 232.
Bolden also had no difficulty understanding his rights. Indeed, as Bolden told the interrogating detectives, he always waives his rights and speaks to the police. Bolden seemed genuinely interested in speaking to the officers, primarily to get information from them. Bolden expressed no difficultly understanding the questions, and had no difficulty answering the questions, although he claimed not to remember any of the details the detectives sought. In short, there is nothing in this record to show Bolden’s will was overborne due to any drug induced state or physical impairment.
Moreover, even the defense expert witness could not, and did not, opine Bolden’s waiver of rights and decision to speak with the police was anything other than voluntary. Dr. Carlin stated Bolden’s waiver of rights appeared voluntary although in her view he exercised poor judgment in deciding to speak with the police. She offered no opinion on the reliability of Bolden’s statements and only stated she thought it would be better had the interview occurred a few days later when Bolden had had more time to recover from his wound and any lingering effects of the drugs.
In sum, the totality of the circumstances in this case indicates Bolden’s waiver and statements were voluntary despite his physical and allegedly drugged condition.
Bolden claims the detectives subjected him to relentless interrogation for hours and this undue coercion made his statements involuntary. It is true the interrogation lasted approximately five hours with, as noted, Bolden stating he remembered nothing for the first hour and a half to two hours. A considerable amount of the five hours was also devoted to listening to excerpts from Stefin’s taped statement. However, the length of the interrogation does not alone establish his statements were involuntary. We note Bolden never once complained he needed to rest, wanted a break, or wanted to stop the questioning. These facts weigh heavily against his claim of excessive and relentless questioning.
See, e.g., People v. Hill (1992) 3 Cal.4th 959, 981 [fact interrogation lasted eight hours did not automatically establish the interrogation was coercive]; compare, Ashcraft v. Tennessee (1944) 322 U.S. 143, 153 [suspect interrogated for 36 hours without sleep or rest by relay teams of police officers and lawyers was unduly coercive under the circumstances].
People v. Hill, supra, 3 Cal.4th 959, 981.
The present case bears no relationship to the situation in People v. Hinds, on which Bolden relies. In Hinds, the 19-year-old defendant was questioned before being advised of his rights. The detective advised the defendant of his rights but only after the defendant insisted. In relaying his Miranda rights, the detective deliberately misled the defendant regarding his right against self-incrimination. The detective said, “‘[A]nything you say doesn’t necessarily held [sic] against you, it can be held to help you, depending on what happened.” The detective did not inquire whether the defendant understood his rights and did not inquire whether the defendant wished to waive them. Instead, the detective asked whether the defendant wanted him to write something down. In response, the defendant asked if it would be better to have an attorney with him. The detective then made statements misleading him about the nature of his unequivocal right to counsel. When the defendant stated he shot his friend by accident, the detective accused him of being cowardly for refusing to admit he had killed him intentionally. The detective told the defendant this would make things worse for him, as well as worse for his friends and mother. After talking to his stepfather, the defendant sobbed and became quite distraught. Shortly after, he confessed to deliberately shooting his friend. The Miranda violations, plus the detective’s coercive actions by unduly playing on his emotions, threatening him with the death penalty and other actions, convinced the court the defendant’s confession was involuntary and should have been suppressed.
People v. Hinds (1984) 154 Cal.App.3d 222.
People v. Hinds, supra, 154 Cal.App.3d 222, 230-231.
People v. Hinds, supra, 154 Cal.App.3d 222, 231-232.
People v. Hinds, supra, 154 Cal.App.3d 222, 239.
In this case, by contrast, the detectives did not extract Bolden’s statements by threats or violence, offers of leniency, or exertion of improper influences. The detectives did say on occasion they did not believe him. On other occasions, they used a ruse of pretending they had more physical evidence to establish his guilt than actually existed. For example, the detectives falsely claimed they had a surveillance video of Milton’s Caribbean Restaurant showing Bolden was there and was holding a gun. The detectives also claimed they had lifted one of his fingerprints from the walkie-talkie he was shown using in the video. Neither claim was actually true. However, the fact the police pretended to have more evidence of guilt than actually existed does not render a confession involuntary. Even deceptive stratagems to trick a guilty person into confessing does not constitute coercive police activity, unless the deceptive strategy used is likely to produce a false confession.
See, e.g., People v. Jones (1998) 17 Cal.4th 279, 299 [“The detective implied at various times that he knew more than he did or could prove more than he could. Such deception regarding the evidence was permissible, for it was not ‘“‘of a type reasonably likely to procure an untrue statement.’”].
People v. Chutan (1999) 72 Cal.App.4th 1276, 1280 [“So long as a police officer’s misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence.”].
“A finding of coercive police activity is a prerequisite to a finding a confession was involuntary under the federal and state constitutions.” Because evidence of improper or undue police coercion is absent in this case we find the trial court did not err in denying Bolden’s motion to suppress.
People v. Maury (2003) 30 Cal.4th 342, 405.
II. THE EVIDENCE OF THE UNCHARGED CRIMES WAS PROPERLY ADMITTED ON THE ISSUE OF BOLDEN’S AND STEFIN’S INTENT TO COMMIT THE ROBBERY AT MILTON’S CARIBBEAN RESTAURANT.
Prosecution of 65 counts against five defendants proved to be problematic logistically. This was especially so because three of the defendants had made statements to the police after their arrest, evidence of which would be largely inadmissible in a joint trial in accordance with the People v. Aranda and Bruton v. United States decisions and their progeny. After two of the defendants pled guilty in negotiated pleas and one of the defendants was severed for trial, the present trial proceeded against Bolden and Stefin only before separate juries. However, only Bolden was charged with the Pic-N-Sav robberies and kidnapping and the Sabora Mexican Restaurant robbery and carjacking. No evidence other than accomplice testimony linked Stefin to the Pic-N-Sav crimes and he was apparently not involved in the Sabora Mexican Restaurant crimes. Thus, to avoid a lengthy hiatus for Stefin’s jury while evidence of these crimes was presented to Bolden’s jury, trial of the Pic-N-Sav and Sabora charges was deferred until after trial of the Collins’ murder charge and Milton’s Caribbean Restaurant crimes.
People v. Aranda (1965) 63 Cal.2d 518.
Bruton v. United States (1968) 391 U.S. 123.
Stefin’s defense at trial was predicated on a claim he was so fearful of Bolden after the Collins’ murder he did not dare refuse Bolden’s order to participate in the Milton’s Caribbean Restaurant crimes. Stefin did not deny being present but asserted he lacked any criminal intent and acted from duress, too fearful of Bolden to say no. Bolden’s defense to the Milton’s Caribbean Restaurant crimes was predicated on a claim he was present but only for the purpose of executing a drug deal which “went bad.”
Before learning Stefin and Bolden decided not to challenge the issues of their identity and presence at Milton’s Caribbean Restaurant, the prosecutor had in his trial brief requested the trial court to admit evidence of the Pic-N-Sav and Sabora crimes as evidence of identity and of common design or plan. The trial court expressed the view the evidence was insufficiently similar to be admitted for these particular purposes which required a high degree of similarity. However, months later when Stefin and Bolden formulated their respective defenses, the prosecutor altered his theory and instead requested the court to admit evidence of the uncharged Pic-N-Sav robberies before both juries on the issue of Bolden’s and Stefin’s intent in committing the Milton’s Caribbean Restaurant crimes. Over counsels’ objection, the court found the evidence was relevant and admissible solely on the issue of intent in committing the Milton’s Caribbean Restaurant crimes. As regarded Stefin’s situation, the court noted, “And so it goes to his state of mind as well because if he is busy committing another robbery before this whole Desiree Collins thing took place, then I guess it puts his intent in issue. And I think it is relevant on that issue.” The court ultimately admitted the evidence of those other crimes, but solely for the purpose of proving intent.
On appeal, Stefin and Bolden contend the court’s ruling permitting the admission of evidence of these uncharged crimes constituted prejudicial error. They argue the judgments must be reversed due to the court’s admission of this “other crimes” evidence in purported violation of their constitutional rights.
“The rules governing the admissibility of evidence of other crimes are familiar and well settled. Evidence Code section 1101, subdivision (b) provides in pertinent part that evidence of other crimes is admissible ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.’ ‘“Evidence of the defendant’s commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. [Citation.]’” [Citation.]”
People v. Gray (2005) 37 Cal.4th 168, 202.
“To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. (People v. Ewoldt [(1994)] 7 Cal.4th 380, 403.) Evidence of an uncharged crime is relevant to prove identity only if the charged and uncharged offenses display a “‘pattern and characteristics . . . so unusual and distinctive as to be like a signature. [Citations.]”’”
People v. Kipp (1998) 18 Cal.4th 349, 370.
“A lesser degree of similarity is required to establish relevance on the issue of common design or plan. (People v. Ewoldt, supra, 7 Cal.4th 380, 403.) For this purpose, ‘common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ (Id. at p. 403.)”
People v. Kipp, supra, 18 Cal.4th 349, 371.
“The least degree of similarity is required to establish relevance on the issue of intent. (People v. Ewoldt, supra, 7 Cal.4th 380, 403.) For this purpose, the uncharged crimes need only be ‘sufficiently similar [to the charged offenses] to support the inference that the defendant “‘probably harbor[ed] the same intent in each instance.’ [Citations.]”’”
People v. Kipp, supra, 18 Cal.4th 349, 371.
“There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Ewoldt, supra, 7 Cal.4th 380, 404-405.) On appeal, a trial court’s resolution of these issues is reviewed for abuse of discretion. (Id. at p. 405.) A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ (People v. De Santis (1992) 2 Cal.4th 1198, 1226.)”
People v. Kipp, supra, 18 Cal.4th 349, 371.
We find no abuse of discretion. The Pic-N-Sav robberies were “sufficiently similar” to the planned robbery of Milton’s Caribbean Restaurant to support the inference Stefin probably had the same intent to commit robbery in both crimes. At the Pic-N-Sav Stefin went with Bolden and other gang members armed with a rifle. Stefin’s role at the Pic-N-Sav was to make a show of force by brandishing his rifle, and by extension, to ensure compliance with the robbers’ orders. The planned robbery at Milton’s Caribbean Restaurant occurred only a few days later. Again, Stefin went to the crime scene with Bolden and other gang members. Again, he was armed with a rifle. Stefin again brandished his rifle in a show of force to ensure submission by those present in the restaurant and compliance with the robbers’ orders. Evidence Stefin participated with Bolden in one take-over type robbery of a commercial establishment had substantial probative value on the issue whether he participated in the later take-over type robbery of another commercial establishment with the same intent to commit robbery.
Stefin claimed he had acted under duress and without criminal intent. In so doing Stefin put in issue his intent for participating in the Milton’s Caribbean Restaurant crimes. Evidence he had actively participated in a similar robbery with Bolden only days before had substantial probative value on the material and contested issue of his intent.
In Bolden’s case, the prosecutor was required to negate Bolden’s defense he did not intend to commit a robbery at Milton’s Caribbean Restaurant but was only there to participate in a drug transaction. Thus, his intent in committing the Milton’s Caribbean Restaurant crimes was similarly a material contested issue. Evidence of his leadership roles in the Pic-N-Sav and Sabora Mexican Restaurant robberies had a tendency to show Bolden probably also intended a robbery at Milton’s as well. This is especially so because Bolden committed these robberies of commercial establishments all within a few days or weeks of each other. All were committed in conjunction with other gang members, all while armed, and all bore the same characteristics of taking money from the business establishment as well as personal property of persons and employees on the premises at the time of the robberies.
It is true, as Stefin and Bolden argue, the crimes were not identical, they occurred at different times of the day, some during business hours, some before business hours, and some included customers and others not. If identity were the issue sought to be proved we would agree the evidence did not have sufficient similarity to be admissible for the purpose of proving identity. However, for the purpose of proving intent the charged and uncharged crimes only needed to be “sufficiently similar” to the charged offenses to support the inference Bolden and Stefin probably harbored the same intent in both crimes. We find the trial court did not abuse its discretion in finding the requisite degree of similarity was present between the charged and uncharged crimes for this particular purpose.
Against this substantial probative value on the material and contested issue of intent, we must weigh the danger of undue prejudice to Bolden and Stefin’s defense, of confusing the issues, or of misleading the jury. The other crimes evidence was not particularly inflammatory, certainly not in comparison with the charged crimes. In other words, it was not the type of evidence which was so provocative its primary effect was to evoke an emotional bias against the accuseds while lacking in substantial probative value. No one was killed during either the robbery of the Pic-N-Sav store or the robbery of the Sabora Mexican Restaurant. Also, and unlike the charged crimes, no one was injured during the uncharged offenses. The charged crimes by contrast, involved extreme violence, multiple murders, including the unprovoked and senseless killing of a 14-year-old girl. It is unlikely any reasonable juror would have been more inclined to convict them of the charged offenses simply because they had previously committed armed robberies of commercial establishments.
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
See, e.g., People v. Wright (1985) 39 Cal.3d 576, 585.
Moreover, the jury was instructed correctly they could only consider the other crimes evidence, if believed, for the limited purpose of determining their intent in committing the Milton’s Caribbean Restaurant crimes. The jury was also instructed the evidence could not be considered by them to prove Bolden and Stefin’s bad character.
The court instructed the jury with CALJIC No. 2.09 which directed the jury certain evidence was admitted for a limited purpose and could only be considered by them for that limited purpose. The court also instructed the jury with CALJIC No. 2.50 which directed: “Evidence has been introduced for the purpose of showing that the defendant committed a crime or crimes other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining, if it tends to show, the existence of the intent which is a necessary element of the crime charged. [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose.”
Considering the foregoing, we conclude the trial court did not exceed the bounds of reason when it implicitly concluded the probative value of the other crimes evidence was not substantially outweighed by the probability its admission would create substantial danger of undue prejudice, of confusing the issue, or of misleading the jury. Accordingly, we find no error.
People v. Padilla (1995) 11 Cal.4th 891, 924 [“the trial judge ‘need not expressly weigh prejudice against probative value—or even expressly state that he [or she] has done so [citation.]’”].
III. THE RECORD CONTAINS SUBSTANTIAL EVIDENCE SUPPORTING THE JURY’S TRUE FINDINGS ON THE GANG ALLEGATIONS.
Stefin and Bolden contend insufficient evidence supports the true findings on the gang allegations and for this reason, the additional punishment imposed for gun use based on these findings must be reversed.
“In reviewing a claim of insufficiency of the evidence on appeal, the critical inquiry is ‘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, 318-319.) We must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citations.]”
People v. Liu (1996) 46 Cal.App.4th 1119, 1131-1132.
Section 186.22, subdivision (b)(1) provides in pertinent part: “[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony . . . ” receive additional punishment.
Stefin and Bolden claim the evidence did not support each of required elements for the additional punishment under this section. They acknowledge they committed the crimes “in association with” other EWF gang members. However, they claim there was no evidence they were also members of the Rollin’ 20’s gang, and no evidence to show they knew Romel Johnson was a Rollin’ 20’s gang member. They contend actual knowledge of the gang connection should be a required element to prove this gang allegation.
We find the admission they committed the crimes in association with other EWF members more than enough evidence to establish the initial element of section 186.22, subdivision (b)(1). In any event, we are aware of no requirement every single person involved in a gang motivated crime must be a known member—rather than an associate or hanger on—of a criminal street gang. But even if there were such a requirement, reasonable inferences from the record evidence indicate both Stefin and Bolden knew Romel Johnson was an elder member of the Rollin’ 20’s gang. Stefin and Bolden met Johnson through one of their own—“T-Mack.” Stefin and Bolden met Johnson at a Denny’s Restaurant on Sunset Boulevard where Johnson told them about the large amount of drugs and money that were going to show up at Milton’s Caribbean Restaurant. At this meeting at the Denny’s the men planned many details of the robbery. Stefin and Bolden met with Johnson again at the Howard Johnson Hotel before and after the Pic-N-Sav robberies. From the evidence of these face-to-face meetings, a rational juror could infer Stefin and Bolden knew Johnson was a member of the Rollin’ 20’s Blood gang. The fact Johnson was also a pimp did not preclude the fact he was also an active and admitted member of the Rollin’ 20’s criminal street gang.
Next, they argue the evidence was insufficient to establish the Milton’s Caribbean Restaurant crimes were committed for the purpose of promoting, furthering or assisting the criminal street gang as opposed to being simply committed for their own personal gain.
The sheer quantity of the drugs and money they intended to steal undermines their argument. The evidence showed they expected to find over five kilos of marijuana and $500,000 in cash. Moreover, as noted, representatives from two gangs were involved in the planned robbery. A reasonable inference from this evidence is the drugs and money were to be split between the gangs according to their respective contributions to acquisition of the loot. In addition, the persons originally intended to participate in the Milton’s Caribbean Restaurant robbery were Swinney, Raymond Williams, Bolden, Collins and Dixon. If only the persons actually assisting in the robbery were entitled to its proceeds, then it is reasonable to infer Dixon, Wynn and the others who decided to pull out or not participate would have joined the others.
In short, the only reasonable inference from the evidence is Stefin and Bolden committed the crimes with the specific intent to raise money and assets for EWF so EWF could continue its criminal activities, and thereby “promote, further, or assist” in criminal conduct by gang members.
IV. ANY ERROR IN PRECLUDING THE DEFENSE INVESTIGATOR FROM TESTIFYING TO STATEMENTS DIXON MADE TO HIM REGARDING STATEMENTS STEFIN MADE TO HER REGARDING HIS FEAR OF BOLDEN WAS HARMLESS.
Stefin’s defense investigator, Robert Freeman, testified in Stefin’s defense case. Freeman testified he had interviewed Dixon at the women’s prison in Chino. The investigator questioned Dixon about the night Bolden shot Desiree Collins. At trial, defense counsel asked Freeman, “Did she indicate to you that after that she was afraid of Mr. Bolden?” The investigator replied, “Yes, she did.” Defense counsel then asked, “Did she indicate to you that Mr. Stefin was afraid of Mr. Bolden?” The investigator answered, “Yes, she did.” The prosecutor objected, asserting the question called for speculation. The trial court sustained the prosecutor’s objection and granted his motion to strike the investigator’s response.
At a sidebar hearing defense counsel argued the evidence was admissible as inconsistent statements because Dixon had refused to answer any of his questions at trial and her statements to the investigator were admissible as evidence of Stefin’s state of mind. The court responded by pointing out any testimony by the investigator regarding what Dixon told him Stefin had told her constituted double hearsay. Absent proper exceptions, the trial court ruled the investigator’s testimony on this point inadmissible hearsay. The court commented admissibility also depended on an adequate foundation, namely a particular statement Stefin may have made regarding his alleged fear of Bolden.
Moments later, defense counsel asked the investigator whether Dixon indicated Stefin was afraid to say no to Bolden when he gave orders. The prosecutor objected and the court sustained the objection.
Stefin asserts the trial court had agreed Stefin’s statements were admissible under the state of mind exception to the hearsay rule. He argues the court’s ruling was thus error because the second level of hearsay, namely Dixon’s statements, was admissible as statements inconsistent with those she made at trial through her denials and deliberately nonresponsive answers.
Evidence Code section 1250 [regarding statements of a declarant’s then existing mental or physical state].
Evidence Code sections 1235, 770; see also, People v. Johnson (1992) 3 Cal.4th 1183, 1219 [“As long as there is a reasonable basis in the record for concluding that the witness’s ‘I-don’t-remember’ statements are evasive and untruthful, admission of his or her prior statements is proper.”].
Assuming without deciding it was error for the court to find the investigator’s testimony inadmissible as double hearsay, the error was harmless. The substance of the excluded testimony, if not the identical statements, was already before the jury. On cross-examination, Dixon was impeached with the testimony she provided at the preliminary hearing. From her preliminary hearing testimony, the jury heard the following exchange:
“Q After that happened [Collins’ murder], isn’t it true Mossberg [Stefin] told you he was scared to death of Mr. Bolden?
“A Yes.
“Q And didn’t want to go on that—well, the supposed robbery of the Caribbean restaurant was the very next morning?
“A Right.
“Q He didn’t want to go, did he?
“A No, he didn’t.”
The substance of the excluded testimony was put before the jury through other means as well. On cross-examination Stefin’s counsel asked Dixon, “Isn’t it true that you also told Mr. Freeman that Mr. Stefin was afraid to say no to Mr. Bolden when Bolden told him to do things?” Dixon denied making this statement to the defense investigator. She was then impeached with the investigator’s written notes of his interview with Dixon which told the jury Dixon ‘“further stated defendant was afraid to tell Bolden no when he wanted him to do different things, . . .,”’ specifically the robberies.
Roberto Wynn also provided testimony regarding the fear Bolden instilled in those who were present when Bolden shot Collins. Wynn testified he was in the room with Stefin and everyone around him was afraid. Wynn stated they were fearful because they realized it could happen to any one of them. Wynn also testified Bolden was the “shot caller” because he was the older “homie.” He agreed if a gang member refused to follow orders of a “shot caller” he or she was considered a “bitch” or a “punk.” Wynn testified anything could happen if a member said no to a “shot caller,” depending on the circumstances. Wynn testified after Bolden shot Collins he was afraid to say anything at the time.
The gang expert concurred in Wynn’s assessment of the situation. The expert opined if a gang member refused an order or refused to “put in work” the consequences could range from an assault to homicide.
Because the substance, if not the exact statements of the investigator’s proposed testimony, was already before the jury, repetition of the same information would have been cumulative to the evidence already admitted. In these circumstances, any error in excluding the investigator’s proposed testimony regarding what Dixon told him Stefin told her about his fear of Bolden was harmless.
People v. Watson (1956) 46 Cal.2d 818, 836.
V. THE TRIAL COURT PROPERLY REFUSED STEFIN’S REQUEST FOR INSTRUCTIONS ON DURESS.
To recall, Stefin defended on the basis he committed the acts but did so without criminal intent. He requested instructions on the defense of duress, specifically CALJIC No. 4.40 and two special instructions.
CALJIC No. 4.40 provides in pertinent part: “A person is not guilty of a crime when he engages in conduct, otherwise criminal, when acting under threats and menaces under the following circumstances:
“1. Where the threats and menaces are such that they would cause a reasonable person to fear that his life would be in immediate danger if he did not engage in the conduct charged.
“2. If this person then actually believed that his life was so endangered.
“This rule does not apply to threats, menaces, and fear of future danger to his life, . . .”
The trial court commented it had given the duress instructions considerable thought and requested defense counsel’s input regarding the evidence to support duress instructions. Defense counsel responded, “every time Mr. Stefin was around Mr. Bolden, Mr. Bolden was armed. Always has a gun. [¶] There is also evidence that as to—which I elicited from Miss Dixon, from her preliminary hearing testimony while I was impeaching her, that after Desiree, Mr. Stefin indicated he was frightened to death of Mr. Bolden. [¶] There is evidence that, of course, that . . . he was in the house when Desiree was shot. [¶] Mr. Wynn testified that everybody was scared. Anything could happen. [¶] There is testimony that if Stefin did anything to contradict the shot caller in a gang, there could be anything from reprimand to death. . . .”
The trial court permitted the prosecutor to respond. The prosecutor noted there was no evidence of a threat and no evidence Stefin had been forced or coerced into participating in the crimes. In his statement to the police, which his jury heard, Stefin had not expressed any fear of Bolden, and had made no statements suggesting Bolden had said anything to the effect “go with me on this robbery or I will kill you now.” Instead, in his statement, as well as in his letter of apology, Stefin said he participated in the Milton’s Caribbean Restaurant crimes out of greed.
The prosecutor also pointed to the evidence of other gang members, namely Dixon, Raymond Williams and Roberto Wynn, who after the Collins murder chose not to participate in the Milton’s Caribbean Restaurant crimes. The prosecutor noted Eddie Williams chose to sleep through the Pic-N-Sav robberies even though Bolden wanted him to participate and did so without apparent consequence.
In reply, defense counsel commented coercion and threats of death as penalties for saying no to a “shot caller” was instead based on the gang’s culture as explained by the gang expert and Roberto Wynn. The prosecutor commented if the fact of participation in a criminal street gang was sufficient, then a duress defense would apply in every gang related case.
Ultimately, the court commented there was no evidence of any specific threat with an immediate consequence of danger to Stefin’s life. Accordingly, the court concluded duress instructions were not warranted.
Stefin contends the court erred in finding insufficient evidence to support duress instructions.
“The defense of duress is available to defendants who commit crimes, except murder, ‘under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.’ (§ 26; see People v. Anderson (2002) 28 Cal.4th 767, 780.) Although ‘duress is not a defense to any form of murder,’ (People v. Anderson, supra, 28 Cal.4th at p. 780) ‘duress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. [Citations.] If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony.’ (Id. at p. 784.) A trial court is required to instruct sua sponte on a duress defense if there is substantial evidence of the defense and if it is not inconsistent with the defendant’s theory of the case. (See People v. Breverman (1998) 19 Cal.4th 142, 157.)” “‘Substantial evidence is “evidence sufficient ‘to deserve consideration by the jury,’ not ‘whenever any evidence is presented, no matter how weak.’”’ (People v. Lewis (2001) 26 Cal.4th 334, 369, quoting People v. Williams (1992) 4 Cal.4th 354, 361.)”
People v. Wilson (2005) 36 Cal.4th 309, 331.
People v. Wilson, supra, 36 Cal.4th 309, 331.
In this case, duress could have been a defense to the robbery and burglary charges, but not to the murder charges where the jury obviously did not rely on the felony-murder theory because they convicted Stefin of second-degree murder. We nevertheless conclude the trial court did not err in failing to give duress instructions because the record does not contain substantial evidence of duress.
People v. Anderson (2002) 28 Cal.4th 767, 784; People v. Wilson, supra, 36 Cal.4th 309, 331.
The evidence established Stefin, as well as everyone else who was present in the home when Bolden shot Collins, was fearful of Bolden. Bolden was the “shot caller” and had just killed someone for no apparent reason. The evidence also established saying no to an order from the “shot caller” of a criminal street gang involved risk of some punishment up to and including death. As the Anderson court noted, the issue of duress often arises in the criminal gang context and for this reason, the Legislature was possibly reluctant to change the law on duress.
People v. Anderson, supra, 28 Cal.4th 767, 784; see also, People v. Vieira (2005) 35 Cal.4th 264, 290 [“the evidence strongly points to the fact that defendant’s participation in the murders was not principally motivated by a fear for his life, but rather stemmed from his belief in Cruz as a figure of authority.”].
In any event, evidence of the potential for some unspecified punishment, or even the ultimate punishment, at some unspecified time in the future, is insufficient to satisfy the requirement that the potential for death be immediate for noncompliance. As Justice Tobriner explained, the fear of serious bodily injury or death “must be present, active and immediate.” Moreover, for duress to be present, the threat must be more than a generalized assertion of the potential for harm. There must be evidence of a particular threat which coerced the particular action. Thus, in People v. Bacigalupo the Supreme Court found the defendant’s assertion the Columbian Mafia had threatened to kill him and members of his family if he did not kill the victims, was too vague and nonspecific to constitute substantial evidence to support duress instructions.
People v. Otis (1959) 174 Cal.App.2d 119, 123.
People v. Steele (1988) 206 Cal.App.3d 703, 705-707 [there was no evidence to show the defendant was threatened in order to coerce him to escape from prison].
People v. Bacigalupo (1992) 1 Cal.4th 103, 125.
Stefin’s claim of duress is also inconsistent with his statements and behavior before and after the Milton’s Caribbean Restaurant crimes. Stefin was calm enough to sleep in the car as Bolden drove from the Good Nite Inn in Sylmar to the restaurant in South Los Angeles. Once there, Stefin actively participated in the crimes by acting as an armed enforcer. Stefin even took the initiative to see if there was any money in the cash register to steal. After the crimes, Stefin told the interrogating officers his motive for participating in the crimes was not fear, but greed. In his letter to the victims’ family members Stefin again acknowledged it was the greedy person inside him who led him to commit the crimes. Stefin also told the officers he did not stay with Dixon as Dixon recommended because he “always go[es] with them, always.”
On this record, we conclude the trial court did not err in finding insufficient evidence to warrant instructions on the defense of duress.
VI. THE ABSTRACTS OF JUDGMENT MUST BE CORRECTED TO REFLECT THE VERDICTS, THE COURT’S PRONOUNCEMENT OF SENTENCE AND THE LAW.
A. Bolden’s Abstract of Judgment Must Be Modified to Delete The Parole Revocation Fine.
The trial court sentenced Bolden to multiple life terms, including consecutive terms of life without the possibility of parole on the special circumstance murder convictions in counts 1 and 2.
Bolden contends, and the People concur, because he received a sentence of life without the possibility of parole the trial court erred in imposing a parole revocation fine.
Section 1202.45 states in part, “In every case where a person is convicted of a crime and whose sentence includes a period of parole,” the sentencing court shall impose a parole revocation fine in the same amount imposed as a restitution fine, to be suspended unless the person’s parole is revoked.
Bolden’s case does not include a period of parole because he was sentenced to life without the possibility of parole. Accordingly, because Bolden is not eligible for parole the parole revocation fine is inapplicable and should be stricken. We will order Bolden’s abstract of judgment modified accordingly.
See People v. Jenkins (2006) 140 Cal.App.4th 805, 819 [“A parole revocation fine may not be imposed for a term of life in prison without possibility of parole, as the statute is expressly inapplicable where there is no period of parole.”]; People v. Petznick (2004) 114 Cal.App.4th 663, 687 [“a parole revocation fine is inappropriate where the defendant’s overall sentence does not anticipate a period of parole.”]; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183 [“When there is no parole eligibility, the fine is clearly not applicable.”].
B. Errors In Stefin’s Abstract of Judgment Must Be Corrected.
Stefin identifies six errors in his abstract of judgment. The People concede each of the errors and join Stefin in requesting their correction. We have reviewed the allegations of error and find all but one has merit. Accordingly, we will order modified Stefin’s abstract of judgment to reflect the law, the jury’s verdicts and the court’s actual pronouncement of judgment.
People v. Mitchell (2001) 26 Cal.4th 181, 185 [“It is, of course, important that courts correct errors and omissions in abstracts of judgment. An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.”].
(1) The abstract of judgment regarding count 1 states punishment for a gun use enhancement under section 12022.5, subdivision (a) was stayed. However, the information did not charge, the jury did not find true, and the court accordingly did not impose any term for a section 12022.5, subdivision (a) enhancement in relation to count 1.
(2) The court imposed terms of 15 years to life on the second-degree murder convictions and ordered the sentences to run concurrently. However, the abstract of judgment fails to indicate the 15 years-to-life terms were concurrent.
(3) The consecutive 25 years-to-life term provided for in section 12022.53, subdivision (d) applies to a person who intentionally and personally discharges a firearm resulting in great bodily injury or death to a person “other than an accomplice.” The trial court had struck the section 12022.53, subdivision (d) enhancement allegation from count 2 for the murder of Eddie Williams because Williams was an accomplice. Regarding count 2 the jury found true allegations of personal use of a firearm under subdivisions (b) and (e)(1) and allegations a principal discharged a firearm under subdivisions (c) and (e)(1).
Accordingly, the enhancement the court should have imposed was a 20 year term under section 12022.53, subdivision (c) and (e)(1).
(4) On the robbery and burglary convictions in counts 3 and 4 the court imposed mid-term sentences and ordered those sentences stayed under section 654. The abstract of judgment fails to reflect the court’s order staying the sentences on counts 3 and 4.
(5) When the court imposed sentence on counts 3 and 4 it did not state whether the sentences were to run concurrently or consecutively. The trial court acted appropriately. Normally, whenever a person is convicted of two or more crimes the court must direct whether the terms of imprisonment for the offenses are to run concurrently or consecutively. However, where, as here, the trial court stays punishment under section 654 then neither consecutive nor concurrent terms may be imposed. Accordingly, the trial court was not obligated to specify whether the terms were concurrent or consecutive.
In re Adams (1975) 14 Cal.3d 629, 636 [“Although each conviction may be allowed to stand, for section 654 prohibits multiple punishment, not multiple convictions [citation], the section’s proscription extends to include both concurrent and consecutive sentences, since even concurrent sentences may work a disadvantage to petitioner in the fixing of his term and parole date . . . .”]; People v. Hernandez (2005) 134 Cal.App.4th 1232, 1239 [“If section 654, subdivision (a) requires that a sentence be stayed, then concurrent terms pursuant to section 669 may not be imposed.”].
(6) Before deliberations the trial court noted burglary was not an enumerated offense for purposes of section 12022.53 enhancements. The court told counsel for this reason it had deleted mention of those allegations from the burglary charge in count 4. Accordingly, the jury was not asked to, and did not, make any findings under section 12022.53 in connection with count 4. Nevertheless, at sentencing the court imposed and stayed section 12022.53, subdivision (d) and (e) enhancements on count 4.
We will order Stefin’s abstract of judgment corrected to reflect the jury’s verdict, the court’s oral pronouncement of judgment and the law.
DISPOSITION
In Bolden’s case, the cause is remanded with directions to the clerk of the superior court to prepare a new abstract of judgment deleting the parole revocation fine, and to forward the modified judgment to the Department of Corrections. As so modified, the judgment as to Bolden is affirmed.
In Stefin’s case, the cause is remanded with directions to the clerk of the superior court to prepare a new abstract of judgment and to forward the modified judgment of conviction to the department of corrections (1) deleting the section 12022.5, subdivision (a) firearm enhancement on count 1; (2) stating the term in count 2 is concurrent; (3) indicating on count 3 an enhancement under section 12022.53, subdivision (c) instead of under subdivision (d); (4) indicating the trial court stayed punishment on counts 3 and 4; and (5) deleting the section 12022.53 enhancements on count 4. As so modified, the judgment as to Stefin is affirmed.
We concur: PERLUSS, P. J., ZELON, J.