Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050411827
Haerle, J.
I. INTRODUCTION
Following a jury trial, appellant Otha Lee Clark was convicted of first degree murder in violation of Penal Code section 187. The jury also found true an enhancement allegation that appellant intentionally discharged a firearm causing death in violation of section 12022.53, subdivision (d). Appellant contends that his conviction must be reversed because: (1) the trial court erred in admitting his videotaped statement to the police; (2) the prosecution’s use of peremptory challenges to remove prospective African-American jurors violated his constitutional rights; (3) his conviction is not supported by substantial evidence; (4) the court improperly instructed the jury; and (5) cumulative error rendered the trial unfair. We will affirm.
All further unspecified statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 28, 2004, the Contra Costa District Attorney filed an information charging appellant with murder. (§ 187.) The information also alleged that appellant personally discharged a firearm resulting in great bodily injury or death (§ 12022.53, subds. (b)-(d)), and that he was a minor who was at least 16 years old at the time of the commission of the crime (Welf. & Inst. Code, § 707, subd. (d)(1)).
Appellant was charged along with two codefendants. David Martinez was also charged with murder and that he personally discharged a firearm. Robert Pederson was charged with being an accessory after the fact (§ 32), a felon in possession of a firearm (§ 12021, subd. (a)(1)), and a two-strike recidivist (§§ 667, subds. (b)-(i), 1170.12). On February 3, 2005, pursuant to a plea agreement, Pederson pleaded no contest to the accessory charge and admitted one of the prior strike allegations in exchange for a four-year sentence. On November 3, 2005, Martinez pleaded no contest to voluntary manslaughter (§ 192) and admitted a firearm enhancement (§ 12022.5) in exchange for a 10-year sentence.
Appellant’s jury trial commenced on October 11, 2005, and the following evidence was adduced.
Appellant, David Martinez, and Robert Pederson were members of a group called the “Squad.” The Squad consisted of several young men, many of whom had moved from North Richmond to the housing projects in Rodeo. Members of the Squad, including appellant, carried guns and sold drugs on the streets of the projects. Appellant got his gun, a black .38 caliber revolver, from Dorian Walls, one of the leaders of the Squad. Martinez carried a chrome .357 caliber revolver.
There were territorial problems between the Squad and a local Rodeo group referred to at trial as “Breezy’s group,” whose members also sold drugs in the projects. The conflict turned violent on October 15, 2003, when Tyrone McCray, one of the leaders of the Squad, was shot and killed.
On the afternoon of December 27, 2003, Hamilton Mayers, a member of Breezy’s group, drove his car to Jerome Dawkins’ apartment in the Rodeo projects. Dawkins had just bought a new set of speakers for his car, and he wanted to show them to Mayers. Mayers got out of his car, and the two started talking. Dawkins did not notice a gun in Mayers’ possession. About a minute later, as the two stood at the back of the car to see the speakers in the trunk, Dawkins heard three to four shots. He ran into his house and shut the door. Later, he saw a lot of people running up the stairs at the end of the street. Someone said, “Hamilton got shot.”
Deputy Dana Sanchou was dispatched to the scene of the shooting. She found an African-American man lying on his back bleeding from the stomach, and numerous people standing around. The man was still conscious. He identified himself as Hamilton Mayers and told her that he had been shot by a Black male wearing black clothing. After determining that he did not have a weapon, Sanchou turned him over to emergency medical personnel. She followed a trail of blood from Mayers to a stairwell connecting two streets.
An autopsy confirmed that the cause of death was a gunshot wound to the abdomen. There was an entrance wound in Mayers’ back and an exit wound on the front of the body.
John Freeman was placed in the California Witness Protection Program ten days after the killing. In December 2003, he lived in Rodeo and was a member of the Squad, along with appellant, David Martinez who was known as Fat, Ray Hudson, known as Mister, Dorian Walls, and Rob Pederson. A rival group, which included persons with street names Breezy, Toot, and Junebug, had been feuding with the Squad. Mayers had been friendly with both groups, but associated more with the rival group. Freeman had seen both appellant and Mayers selling drugs. He said members of the Squad were afraid for their physical safety in Rodeo and were specifically afraid of members of the other group.
Freeman testified that, on December 27, 2003, he went over to Pederson’s house and saw Fat, appellant, and another individual named Brandon. Appellant had a .38 revolver in his pocket. Appellant and Fat talked about “sitting on the hill” and shooting Mayers. Martinez said he thought he was the one who shot Mayers because he had been aiming at him for some time before they started shooting at him.
Freeman went home after about thirty minutes, and then got a call from Pederson to come back over to get something. Pederson tried to get him to take a .357 revolver, but Freeman refused because he thought it was the one Martinez had used to shoot Mayers. Instead, Freeman agreed to take the .38 that appellant had carried. He later passed the gun to Dorian Walls’ brother. On December 30, 2003, Freeman helped an undercover police officer recover the .38. A fully loaded .357 revolver was eventually recovered from Pederson’s home.
Chris Coleman, a criminalist for the Contra Costa Sheriff’s Department, testified that three bullets were recovered from the scene of the shooting. All three were from a .38 caliber weapon. One tested positive for blood. The bullet with blood on it and one other were fired from appellant’s .38 revolver. The third bullet was so badly damaged that it could not be determined whether it had also been fired from appellant’s gun.
Robert Pederson testified under a grant of immunity. In December 2003, he had known appellant for a year or two, having met him through Tyrone McCray. On December 27, appellant was at Pederson’s house watching a movie when appellant received a telephone call and then, in an agitated state, said, “they’re coming over the hill,” and left. A few minutes later, Pederson heard several gunshots. It sounded as if more than one gun was being fired. Pederson walked outside to see what was going on and saw appellant at the bottom of the hill talking on his cell phone and Martinez coming out the front door of his mother’s apartment, which backed up against the hill.
A few minutes later, appellant and Martinez walked into Pederson’s apartment. They were “jumpy,” and appellant said, “I got one and there’s a few more to go.” Pederson knew that appellant was referring to members of Breezy’s group. Martinez asked Pederson if he would return the guns to Walls, and Pederson agreed. Pederson knew the guns had been used in the shooting, and that appellant and Martinez wanted to get rid of them. Appellant gave Pederson a .38 revolver and Martinez gave him a .357 revolver.
After appellant and Martinez left, Pederson gave the .38 to Freeman, but kept the .357 for himself. The .357 was eventually discovered by the police during a search of Pederson’s home.
Appellant’s mother, Brenda Clark, testified that after McCray’s murder, appellant began having problems with the members of Breezy’s group, and that he had been shot at several times. About two weeks before Mayers’ murder, appellant started carrying a gun for protection.
Clark drove to Rodeo on the night Mayers was killed because she had received a phone call that appellant had been shot. She eventually found appellant and drove him and some others, including David Martinez, to North Richmond. When they got to her house, she told appellant to take off his clothes and give them to his stepfather so they could be burned. She wanted to get rid of any evidence. The next day, appellant burned a pair of gloves on the front porch.
Appellant testified in his own defense. He had moved to Rodeo from North Richmond shortly after the death of Tyrone McCray, who had been a close friend. He had been present when Tyrone was murdered and he saw that Aaron Guess, a member of Breezy’s group, was the one who did it. As he ran from the scene, he heard two more shots and later found out that Mister had been shot.
Appellant heard rumors around the projects that members of Breezy’s group wanted to kill him because he had witnessed the killing of McCray. At first, appellant did not believe this, but then Breezy called and told him that he was going to kill him. Nevertheless, appellant stayed in Rodeo because he had nowhere else to go but North Richmond which was a more dangerous place. In November, Breezy walked up to appellant, pointed a gun in his face and told him, “If I wanted you dead, you’d be dead.”
After that, appellant believed he would be killed. In mid-December, Walls provided him with a gun although he had not asked for one and had never used one before. He carried it on a regular basis but did not shoot it before the incident involving Mayers. On the day before Mayers was killed, appellant was shot at by Mayers and someone named Toot or Touk. Appellant did not try to shoot back.
On December 27, while at Pederson’s house, appellant got a phone call from Walls telling him that Mayers had just driven into the projects. From Pederson’s porch, appellant saw Mayers yell out his car window, “I ain’t kill you yesterday, but I’m going to kill your black ass today.” Appellant asked Brandon to go and find out what Mayers was doing. Brandon returned after a couple of minutes and told appellant that Mayers was talking to Dawkins about killing appellant.
Appellant testified that he thought he had no choice but to shoot at Mayers while he was still talking to Dawkins because it was “either going to be him or me.” He did not see Mayers with a gun but believed he had one because of the threats he had made and because he had had one the day before. Appellant said he walked up the hill and shot at Mayers three or four times. Appellant said he intended to scare Mayers, not to kill him, and further that he did not know what he intended at the time, but he also acknowledged that he “shot as well as [he] could right at him.”
On October 31, 2005, the jury found appellant guilty of first-degree murder and found true the allegation that appellant personally used a firearm causing death.
On December 6, 2005, the court sentenced appellant to a total term of 50 years to life in prison (25 years to life on count one and a consecutive 25 years to life on the firearm allegation).
Appellant filed his notice of appeal on December 7, 2005.
III. DISCUSSION
A. Admission of the Videotaped Statements to the Police
On December 29, 2003, two days after the homicide, appellant surrendered to the police and was interrogated by Detectives Pate and Huntington of the Contra Costa County Sheriff’s Department. The interview was videotaped and the tape was played for the jury at trial. The interview lasted more than two hours and the transcript of it consumed 81 pages. Appellant contends the trial court erred in denying his motion to suppress his inculpatory statements to the police because: (1) his repeated requests to see his mother were ignored; (2) he failed to effectively waive his Miranda rights; (3) his request for a lawyer was ignored; and (4) the interrogating officers failed to correct inaccurate information his mother gave him regarding leniency if he told the truth.
The videotape was admitted as plaintiff’s Exhibit 1 and a reporter’s transcript of the videotape was labeled Exhibit 1A. By order of this court on April 14, 2006, the record on appeal was augmented to include these two items.
1. Facts
On October 12, 2005, defense counsel made an oral motion to suppress appellant’s confession to the police. The prosecutor filed a written opposition, and a hearing was held on the motion. At the start of the hearing, the trial court indicated that it had watched the videotape of appellant’s interview with the police and had read the transcript.
At the hearing, Brenda Clark testified that, in late December 2003, she became aware that her son was a possible suspect in the death of Hamilton Mayers. She took appellant to the West County Detention Facility so he could turn himself in. Appellant was transported to the Field Operations Building in Martinez for an interview. Clark followed in her car and, although she identified herself at the Field Operations Building, she was not present in the interrogation room when Detectives Pate and Huntington began questioning appellant.
The videotape and transcript showed that, at the beginning of the interview, appellant was given the Miranda warnings. He indicated that he understood those rights by saying, “Yeah, um.” The officers did not ask him if he wanted to give up these rights, and he did not expressly waive them orally or in writing.
The detectives told him they knew what had happened, the truth was going to come out, and they were going to give him the opportunity to tell the truth. This colloquy took place:
“[Appellant:] Alright, my mama had followed me up here. Is she supposed to be in here or not.
“[Detective Pate:] Let me tell you one thing, okay? You obviously are a respectful adult, young man[.]
“[Appellant:] Yes[.]
“[Detective Pate:] Okay, I’m gonna be honest with you, okay? We know that you were there. We know that that was there. We know that two guns were fired, okay? In my mind, I don’t believe that your gun was the one that hit him, okay?
“[Appellant:] To tell you the truth, I wasn’t even there. I was in the house when I heard the gunshot.”
“[Detective Pate:] “That’s what you’re gonna say?
“[Appellant:] That’s what I’m telling you. I was in the house when the gunshots went off.”
The detectives told appellant that they had witnesses and evidence linking him to the shooting. Appellant continued to deny involvement and wanted to know what proof the detectives had against him. When Detective Pate told him, “We have witnesses putting you at the crime scene doing the shooting,” appellant responded:
“[Appellant] (unintelligible), alright, well, I’ll wait for my attorney then, alright, yeah, I ain’t got no proof or no fingerprints that my hand was on the gun and you don’t even have no proof.
“[Detective Huntington:] We got better, we got live witnesses[.]
“[Appellant:] Well, I, well, I go to court then[.]
“[Detective Huntington:] We’re trying to give you the benefit of the doubt cause you’re not the killer[.]”
The detectives continued with their questioning. Appellant answered the questions the detectives proceeded to ask him.
Some time later, appellant asked, “Can my Mom come up in here? Can my Mom come in here?” Detective Huntington answered, “Yeah, she can come in here[.]” Appellant replied, “Alright, can I go get her? Is you all gonna, can y’all go get my Mama right now[?]” Detective Huntington responded by saying, “I’m gonna ask you a question. Are you gonna keep lying?” Appellant replied that he had no reason to lie, and the detectives continued to press him to tell the truth.
A short time later, appellant for the third time asked for his mother to be present:
“[Appellant:] Alright, can my Mom come in here and then I’ll finish talking.
“[Detective Huntington:] Yeah, she can come in here.
“[Appellant:] Come here, I’m not answering, I have nothing else to say.
“[Detective Huntington:] Okay, we’ll go get Mom.”
Both detectives walked out of the room.
At the hearing on the motion to suppress, Detective Pate testified that, at this point, he went to talk to appellant’s mother. The respective testimony of Detective Pate and Brenda Clark regarding this conversation differs greatly.
According to the detective, he filled Clark in on their investigation and some of the evidence they had against her son. He told her that several witnesses had identified appellant as one of two people involved in the shooting. He also told her that he did not believe appellant was telling the truth.
Appellant’s mother was concerned, and asked whether appellant would be tried as a juvenile or an adult. Detective Pate told her that because appellant was 17 years old, the District Attorney could decide to try him as an adult, but that he could not speculate about what the District Attorney might ultimately decide to do. Appellant’s mother also asked what penalty appellant faced. Detective Pate told her he also could not speculate about that, but did tell her that the maximum penalty a person could get for murder was 25-years-to-life or death.
Detective Pate testified that he did not tell appellant’s mother what to say to appellant or instruct her to make any promises to him. Nor did he ask for her assistance in getting appellant to tell the truth. He simply told her that it would be better for appellant if he told the truth, but did not tell her why.
Clark testified that the detective told her that appellant was lying and that he wanted her to get appellant to cooperate. He told her that if appellant cooperated, he could be tried as a juvenile, and that it was possible that he might get out of juvenile hall by January 1. When she asked how much time appellant faced, Detective Pate said it depended on the circumstances and what information appellant gave them. He told her that if appellant did not cooperate, the case would be sent to the District Attorney’s office and he would push for the maximum penalty of life.
As a result of her conversation with Detective Pate, Clark decided to encourage appellant to cooperate. She wanted to see her son tried as a juvenile rather than risk going to jail for life. She also decided to encourage him to cooperate because she realized the police already knew about his involvement in the shooting, and she was concerned about what would happen to him if he continued to lie.
Following her conversation with Detective Pate, Clark went into the interview room alone to speak with her son. The videotape continued to run, and the detectives were able to hear the entirety of their conversation. Appellant’s mother told him the police had evidence linking him to the shooting, and that if he came “100% clean on whatever they ask you,” he was “looking at maybe five years,” with the possibility of parole or probation because he did not “have a history of this.” She said that if he continued to lie, the police would “throw the book at [him],” and he would get “25 to life.”
At the hearing, Detective Pate denied ever telling Clark that appellant might get five years or probation “if he came clean.” Although Detective Pate knew that what Clark told her son about “maybe getting five years” was false, he did not believe he was required to correct it and he did not correct it. The interview resumed with Clark in the room, and appellant admitted his involvement in the shooting.
Appellant testified at the hearing that he had previously been arrested three times in 1997: first for threatening his brother and sister with a knife; second for threatening to hit his school principal; and third for making criminal threats and fleeing from a police officer. In 1998, he was arrested for battery and advised of his Miranda rights. He understood his rights and refused to talk to the police. Appellant was also arrested in 1999 and 2001. Appellant stated that the police did not try to talk to him when he was arrested in 1997, 1999, and 2001. Appellant indicated that he had gone to court on all of the cases, but stated that he was never appointed an attorney. Rather, he talked to probation officers about the cases. The probation officers had advised him of his rights, and he had understood those rights.
Appellant testified that the highest grade level he had completed by December 2003 was the ninth or tenth grade. He attended five different high schools not only because he had trouble understanding certain subjects and kept flunking his classes, but also because he kept getting expelled for bad behavior. Appellant had since earned his high school diploma.
After considering the evidence and arguments of counsel, the court denied the motion and appellant’s statements to the police, including his conversation with his mother, were admitted into evidence.
2. Standard of Review
This court reviews independently a trial court’s ruling on a motion to suppress a statement under Miranda. (People v. Waidla (2000) 22 Cal.4th 690, 730.) In so doing, the reviewing court must accept “the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.” (People v. Cunningham (2001) 25 Cal.4th 926, 992.) Where there is conflicting evidence unresolved by the trial court, the appellate court views the record in the light most favorable to the respondent. (People v. Jenkins (2000) 22 Cal.4th 900, 969; People v. Stansbury (1995) 9 Cal.4th 824, 831.)
An appellate court also reviews independently a trial court’s determination as to whether a statement was voluntary. (People v. Jones (1998) 17 Cal.4th 279, 296.) The court reviews the trial court’s findings as to the circumstances surrounding the confession, including the characteristics of the accused and the details of the interrogation, for substantial evidence. (Ibid.)
3. Appellant’s Requests to See His Mother
Appellant contends that his requests to see his mother constituted invocation of his Miranda right to remain silent, and that the subsequent confession was rendered inadmissible by the detectives’ failure to immediately cease the interrogation. Although the detectives stopped questioning him and brought his mother into the interview room after his third request when he refused to say anything further, appellant contends that the interrogation should have stopped sooner, after he made his two prior requests.
A juvenile’s implied assertion of Fifth Amendment rights must be evaluated under the totality of the circumstances surrounding the interrogation. (Fare v. Michael C. (1979) 442 U.S. 707, 725.) “We do not doubt that a juvenile’s request to speak to his or her parent must be considered as an indication that the minor wishes to invoke his or her Miranda rights. However, [People v. Burton (1971) 6 Cal.3d 375] does not set forth a per se rule; it does not state that whenever a juvenile asks to speak to his or her parent, interrogation must cease. Instead, a juvenile’s request to speak to a parent must be construed as an invocation of his or her Fifth Amendment privileges unless there is ‘“evidence demanding a contrary conclusion.”’ (People v. Burton, supra, 6 Cal.3d at pp. 383-384.) Thus, application of the Burton rule requires consideration of the circumstances surrounding the minor’s request.” (People v. Hector (2000) 83 Cal.App.4th 228, 237.)
The totality of the circumstances, including appellant’s age, intelligence, and experience, lead us to conclude that appellant did not invoke his Miranda rights until the third time he asked for his mother. Appellant was not a young juvenile, but rather was 17 years old. He did not appear to be of below average intelligence. He had completed ninth or tenth grade as of December 2003, and, although he had been expelled from five different high schools, he subsequently received his high school diploma while awaiting trial. He had had a number of prior encounters with the police and the courts dating back to the time he was 12 years old, and thus was not naïve or inexperienced with respect to police procedure. The record indicates that appellant understood his Miranda rights and knew how to assert them. The first two times he asked for his mother were not an invocation of the right to remain silent because appellant continued to talk to the detectives about the incident, attempting to convince them that he was not involved in the shooting. Under pressure to admit his involvement, it appears that appellant grew frustrated and finally refused to say anything more until he could see his mother, at which point the detectives stopped questioning him and brought his mother into the room.
4. Waiver of Miranda Rights
Appellant next contends the detectives failed to obtain a waiver of his Miranda rights before questioning him. At the beginning of the interrogation, the detectives gave appellant the Miranda warnings, and appellant indicated that he understood his rights. The detectives did not ask appellant if he wished to waive those rights, and appellant did not expressly waive them verbally or in writing.
It is settled that a defendant can waive his or her rights under Miranda either expressly or impliedly. (People v. Whitson (1998) 17 Cal.4th 229, 244, fn. 4, 246.) The issue is whether the defendant knowingly and voluntarily waived those rights, that is, whether defendant chose freely to give up his or her rights and was not intimidated, coerced, or deceived into doing so, and whether the defendant was fully aware of the nature of the rights and the consequences of giving them up. (Id. at p. 247.) An express waiver is not required where the defendant’s words or actions make clear that a waiver is intended. (Ibid.) Whether a defendant, including a juvenile, waived the right to an attorney and the right to remain silent is evaluated under the totality of the circumstances. (Fare v. Michael C., supra, 442 U.S. at p. 725.)
In People v. Whitson, the defendant was interviewed in a hospital emergency room by police following a car accident in which the defendant was injured and two people were killed. (17 Cal.4th at p. 237.) They advised the defendant of his Miranda rights, and advised the defendant that he did not have to speak to them. The defendant responded that he understood, and the police then questioned him. Two subsequent interviews with the defendant were also conducted in the hospital. As with the first interview, the police advised the defendant of his Miranda rights, the defendant affirmatively indicated that he understood those rights, and then spoke with the police without requesting a lawyer. (Id. at pp. 237-238.) The California Supreme Court affirmed the trial court’s ruling that the defendant had knowingly and voluntarily waived his rights to remain silent and to an attorney. His waiver was voluntary because it was not the product of physical or psychological coercion, or trickery or deceit. Although there was evidence of the defendant’s low intelligence, the court concluded that he knowingly waived his rights because there was no evidence that he lacked sufficient intelligence to understand his rights and the consequences of giving them up. (Id. at pp. 249-250.)
We agree with the trial court that appellant impliedly waived his Miranda rights. As previously discussed, appellant was 17 years old, appeared to be of average intelligence, and was familiar with his Miranda rights from previous contacts with law enforcement. He acknowledged that he understood his rights under Miranda, and then spoke with the detectives, answering their questions and denying any involvement in the shooting. There was no evidence of any physical or psychological pressure or threats by the police. After answering a number of questions, and in the face of continued urging by the detectives to stop lying and tell the truth, appellant invoked his rights, refusing to answer any more questions until he could see his mother. Our review of the record demonstrates that appellant understood his rights, freely chose to waive them at the outset of the questioning, and later exercised those rights when he could not convince the detectives of his version of the events. The implied waiver was knowing and voluntary.
5. Appellant’s Statement Regarding Waiting for an Attorney
Appellant next contends that his rights under Miranda were violated when, during the interrogation, appellant invoked his right to counsel and the detectives failed to immediately cease questioning him.
If a suspect requests counsel at any time during an interrogation, all questioning must cease until an attorney has been made available or the suspect himself reinitiates the conversation. (Davis v. United States (1994) 512 U.S. 452, 458 (Davis).) Determining whether the accused actually invoked his right to counsel is an objective inquiry, and “‘requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.’” (Id. at p. 459, quoting McNeil v. Wisconsin (1991) 501 U.S. 171, 178.) The statement must be sufficiently clear that a reasonable officer would understand it to be a request for counsel. Police questioning need not be stopped if the request is ambiguous or equivocal, i.e., the suspect might be invoking the right to counsel. (Davis, supra, 512 U.S. at p. 459.) Further, police officers do not have an obligation to ask clarifying questions when a suspect makes an ambiguous or equivocal request for counsel. (Id. at pp. 461-462.)
In Davis, the defendant was advised of his Miranda rights and waived them. After being questioned for an hour and a half, he stated, “ ‘Maybe I should talk to a lawyer.’ ” (Davis, supra, 512 U.S. at p. 455.) The police advised him of his rights again and asked him if he wanted a lawyer. The defendant answered that he did not want a lawyer and the interview continued for about an hour before the defendant said, “ ‘I think I want a lawyer before I say anything else.’ ” At that point, all questioning ceased. (Ibid.) The Supreme Court held that the defendant’s earlier statement was not an unequivocal request for counsel, and that, as such, the officers were not required to stop interrogating him. In addition, although it was good police practice to ask clarifying questions when presented with an ambiguous or equivocal statement that might be a request for an attorney, the officers were not required to do so. (Id. at pp. 461-462.)
In People v. Gonzalez (2005) 34 Cal.4th 1111 (Gonzalez), the defendant, a suspect in a police shooting, was advised of his Miranda rights and waived them. The police questioned him about the crime and asked him if he would be willing to take a lie detector test. The defendant agreed to take the test the next day, but also stated, “ ‘That, um, one thing I want to ask you to that, if for anything you guys are going to charge me I want to talk to a public defender too, for any little thing.’ ” (Gonzalez, supra, 34 Cal.4th at p. 1119.) The officer told the defendant that he could talk to a public defender “anytime [he wanted] to.” The officer also told the defendant that he would be booked for murder that night, although he might not be charged with it if he passed the test the next day. The California Supreme Court held that the defendant’s statement was not a sufficiently unambiguous request for counsel that further questioning was improper or that the defendant’s confession during the lie detector test had to be suppressed. “[D]efendant’s statement was conditional; he wanted a lawyer if he were going to be charged. The conditional nature of the statement rendered it, at best, ambiguous and equivocal because a reasonable police officer in these circumstances would not necessarily have known whether the condition would be fulfilled since, as these officers explained, the decision to charge is not made by police. Confronted with this statement, a reasonable officer would have understood only that ‘the suspect might be invoking the right to counsel,’ which is insufficient under Davis to require cessation of questioning. [Citation.]” (Id. at p. 1126.)
Here, appellant’s statement was not an unequivocal and unambiguous request for the assistance of counsel before answering any more questions. Up to that point, appellant repeatedly asserted that he was not involved in the shooting, and the officers repeatedly countered that he was lying. They confronted him with the evidence against him and, as the trial court observed, the situation in the interview room was becoming more heated. The officers could reasonably have interpreted the statement, “I’ll wait for my attorney then,” as posturing by appellant to bolster his story, to demonstrate that he was not afraid to go to trial on the evidence. “The question is not what defendant understood himself to be saying, but what a reasonable officer in the circumstances would have understood defendant to be saying.” (Gonzalez, supra, 34 Cal.4th at p. 1126.)
6. Misinformation Communicated to Appellant by His Mother
Appellant contends that his confession was rendered involuntary by his mother’s false promises of leniency. He argues that whether or not the detectives gave his mother the incorrect information about a lesser sentence if he told the truth, they knew that she conveyed a false promise to appellant and they did nothing to correct the misinformation. Appellant contends that this is the equivalent of an implied promise of leniency by a person in authority, and renders his statements involuntary.
“A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 659.) “[T]he terms ‘coerced’ and ‘involuntary’ [are used] interchangeably to refer to confessions obtained by physical or psychological coercion, by promises of leniency or benefit, or when the ‘totality of circumstances’ indicates that the confession was not a product of the defendant’s ‘free and rational choice.’” (People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1.) “[W]here a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law.” (People v. Boyde (1988) 46 Cal.3d 212, 238.)
When appellant’s mother spoke with him in the interview room, she told him that, “if you lie to them, continue to lie to them, they gonna give you 25 to life. If you come 100% clean on whatever they ask you on your part, nobody else’s part, but your part, you’re looking at maybe five years, but you have the possibility of parole, you have the possibility of probation, cause you don’t have a history of this . . . .”
There was conflicting evidence at the hearing regarding the source of this incorrect information. Detective Pate testified that he told appellant’s mother that appellant was lying to them, that they had evidence that appellant was involved in the shooting, and that appellant faced a maximum sentence of 25 years to life. He denied making any promises of leniency or enlisting appellant’s mother’s help in convincing appellant to tell the truth. Appellant’s mother testified that Detective Pate told her that appellant would be treated more leniently if she convinced him to tell the truth. The trial court resolved this conflict in favor of the prosecution, finding that Detective Pate was more credible than appellant’s mother, and that she was not acting as an agent of the police when she spoke with appellant.
These factual findings are supported by substantial evidence, and we accept them on appeal. (People v. Mayfield (1997) 14 Cal.4th 668, 759.) Accordingly, because appellant’s mother was not acting as a police agent, her false promise of leniency was not coercive police action that rendered appellant’s confession involuntary. (See Id. at p. 759 [coercive police activity is a prerequisite for a finding that inculpatory statements were involuntary; defendant’s father was not a police agent and thus, his conduct in speaking to the defendant could not render the defendant’s statements involuntary].)
Appellant does not challenge the trial court’s finding that his mother was not acting as a police agent when she spoke with him. Rather, he contends that because the detectives knew his mother had given him false information and made no effort to correct the misinformation, “this became a ‘false promise of leniency’ which was just as improper as if it had come directly from the lips of the interrogators.”
In support of this argument, appellant relies on People v. Hogan (1982) 31 Cal.3d 815 (Hogan), overruled on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836. In Hogan, the defendant maintained his innocence during two custodial interviews with the police. (31 Cal.3d at pp. 835-836.) He was thereafter permitted to speak with his wife, and, unbeknownst to them, their conversation was recorded. During their conversation, the defendant’s wife conveyed false information to him that she had received from the police that eyewitnesses had seen him commit the crimes. (Id. at pp. 836-837.) The defendant subsequently made incriminating statements to the police. (Id. at p. 838.) The Supreme Court found that the deceptive practices of the police, including suggesting to the defendant that he was mentally ill and that, if he cooperated, the police would help him, and giving his wife false information, resulted in psychological coercion that rendered the defendant’s confession involuntary. (Id. at pp. 840-843.)
This case is distinguishable from Hogan in that, here, the police did not give appellant’s mother the false information. Moreover, there is no support for appellant’s argument that failing to correct the misinformation is the functional equivalent of conveying that false information in the first place. The false information about leniency did not originate with the detectives, and their failure to correct it did not constitute ratification of appellant’s mother’s statements. The detectives were not in the room with appellant and his mother when she conveyed the false promises, and it is apparent from the videotape and transcript that appellant and his mother believed they were speaking privately and were not being overheard. Appellant’s mother did not repeat the false promises when the detectives were present, and appellant never asked about the punishment he faced. Because there was no police involvement in any incorrect belief appellant held after speaking with his mother, there was no police coercion. The trial court did not err in admitting appellant’s statement.
B. The Prosecution’s Use of Peremptory Challenges
Appellant contends his federal and state constitutional rights to a fair trial and equal protection were violated because the prosecutor used two peremptory challenges against African-Americans in the jury pool. Appellant is African-American. The jury that convicted him included no African Americans.
The right to trial by a jury drawn from a representative cross-section of the community is guaranteed under article I, section 16, of the California Constitution. (People v. Wheeler (1978) 22 Cal.3d 258, 272 (Wheeler).) The federal Constitution’s equal protection clause affords similar protection. (Batson v. Kentucky (1986) 476 U.S. 79, 88.) The right is violated when a prosecutor uses peremptory challenges to remove prospective jurors solely on the basis of group bias. (Wheeler, supra, 22 Cal.3d at p. 276.)
Recently, “‘the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant’s are made. “First, the defendant must make out a prima facie case by ‘showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justification for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]”’ (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted (Johnson).) ‘The high court clarified that “a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson, supra, at p. 170, reversing in part People v. Johnson (2003) 30 Cal.4th 1302, 1318 [requiring the defendant to “show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias”].)’” (People v. Guerra (2006) 37 Cal.4th 1067, 1100 (Guerra).)
“In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, ‘the trial court “must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .’”’ (People v. Reynoso (2003) 31 Cal.4th 903, 919.) ‘[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.’ (Ibid.) Inquiry by the trial court is not even required. (Id. at p. 920.) ‘All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.’ (Id. at p. 924.) A reason that makes no sense is nonetheless ‘sincere and legitimate’ as long as it does not deny equal protection. (Ibid.)” (Guerra, supra, 37 Cal.4th at p. 1100-1101.)
We review for substantial evidence the trial court’s ruling accepting the prosecutor’s reasons for challenging certain prospective jurors and finding that there was no purposeful discrimination. (Guerra, supra, 37 Cal.4th at p. 1104; People v. McDermott (2002) 28 Cal.4th 946, 971.) “We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]” (People v. Burgener (2003) 29 Cal.4th 833, 864.)
In this case, the prosecutor exercised his first peremptory challenge to excuse T.H. The defense made a motion pursuant to Wheeler, supra, 22 Cal.3d 258, and the court heard the motion in chambers. The court noted that both appellant and T.H. were African-American, that T.H. was the only African American currently seated in the jury box, and that of the 124 persons on the prospective juror panels, it appeared that approximately four were African-American, at least one of whom had been excused on hardship grounds. The court found that the totality of relevant facts gave rise to an inference of racial discrimination, and asked the prosecutor to explain his reasons for excusing T.H. The court found that the prosecutor’s stated reasons were race-neutral and denied the Wheeler motion.
The prosecutor subsequently exercised his tenth peremptory challenge to excuse prospective juror F.C. Defense counsel immediately made another Wheeler motion. Defense counsel noted that F.C. was African-American and only the second African American to be seated in the box of potential jurors. Among the prospective jurors remaining, there appeared to be one African American. The court found that appellant had stated evidence sufficient to draw an inference of discrimination. The prosecutor then explained his reasons for challenging F.C. The court concluded that the prosecutor’s reasons for challenging F.C. were race-neutral, and denied the motion.
1. Prospective Juror T.H.
The prosecutor explained that he had three reasons for challenging prospective juror T.H. First, T.H. had a family member who had been convicted of homicide. T.H. had told the court in chambers that her uncle had been convicted of a homicide about 30 years ago when she was a little girl. He had shot and killed a man he knew, but T.H. did not know why. She had never talked about it with him, and he had died about 15 years ago. She had not discussed the murder “in detail” with other family members. She did not think that this would affect her ability to be impartial.
Second, the prosecutor cited his concern that T.H. might feel sympathy for appellant in light of this family history. When asked whether she had any reason to believe that she might be more sympathetic to the defendant in this case than to the people, T.H. had answered, “That’s possible. I mean, honestly, that’s possible,” although she believed she could set any such sympathy aside in order to judge the case solely on the evidence. The court asked T.H. whether she would be sympathetic to any defendant in a murder trial, and she answered, “You know, I can’t answer that question. I think I’m looking -- I would have to look at the evidence.” She then said that she could put aside any sympathy and decide the case based on the facts.
Finally, the prosecutor cited the concerns T.H. had expressed about pending business obligations. She had sought to be excused for hardship, explaining to the court that she was the business development person for her company and that missing two upcoming conferences would “great[ly]” impact the business. The court did not excuse her at that time, indicating, “I’ll maybe take some of these things up with you again.”
Later in the proceedings, after the court finished questioning her about her uncle’s murder conviction, T.H. raised her hardship issue again. The court told her she would not be excused on that basis.
Subsequently, the prosecutor asked T.H. whether, in light of her pending business obligations, she would be able to give the trial her full attention. T.H. replied that her business obligations were “very pressing,” and that, because of the nature of her job, it would be “difficult for [her] to give full attention.” She indicated that, on a scale of one to ten, there was a likelihood of between seven and ten that her work would distract her. Asked by defense counsel whether she could resolve her other job-related commitments and focus on the trial, T.H. answered, “Absolutely,” and stated that it would “just require some multitasking.” When defense counsel asked whether she could “manage what needs to be managed if we leave you on this jury,” T.H. replied, “It is going to be extremely difficult, I’ll say that.”
Having reviewed the record, we conclude that substantial evidence supports the trial court’s finding that the prosecutor could reasonably view T.H. as an unfavorable prosecution juror. On its face, the prosecutor’s justification is race-neutral, and the reasons cited are all supported by the testimony on voir dire. The trial court evaluated the stated reasons, and found that the prosecutor challenged T.H. in good faith for reasons not related to race.
We reject appellant’s contention that these were not legitimate reasons for challenging T.H. She admitted possible sympathy for appellant because of her uncle’s experience. (See People v. Farnum (2002) 28 Cal.4th 107, 138 [“a prosecutor may reasonably surmise that a close relative’s adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution”].) Although her uncle’s conviction had occurred some 30 years earlier, the prosecutor was not required to accept reassurances that she could put aside any sympathy and evaluate the case based on the facts, particularly in light of T.H.’s earlier responses regarding her ability to be fair. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1011 [upholding challenge when, despite prospective juror’s contrary assurances, “the prosecutor had reason for her expressed skepticism that [he] would be fair to the People”].) In addition, the use of a peremptory challenge to excuse a prospective juror whose family member has had a negative experience with the criminal justice system is not unconstitutional. (See, e.g., People v. Roldan (2005) 35 Cal.4th 646, 703 [son in prison]; People v. Garceau (1993) 6 Cal.4th 140, 172 [family members had run afoul of the law and had been incarcerated], overruled on another point in People v. Yeoman (2001) 31 Cal.4th 93, 117-118; People v. Cummings (1993) 4 Cal.4th 1233, 1282 [brother had been convicted of a crime].)
Appellant also contends that the prosecutor’s stated reasons were pretextual because a non-African-American juror, Juror No. 4, who also had pressing job responsibilities, was left on the jury. Appellant’s comparative juror analysis does not assist appellant because the job-related concerns expressed by Juror No. 4, a cement contractor, were quite different. He stated, “It may be possible if I were out for an extended period of time that I might have to do some work in the evenings just to keep people happy, so to speak. It is commercial work, it can be done.” By contrast, T.H. indicated that missing two upcoming conferences would greatly impact her company. She raised her hardship claim twice, and was worried about her ability to give the trial her full attention. In any event, the other reasons cited by the prosecutor were sufficient justification for challenging her.
Prior to Miller-El v. Dretke (2005) 545 U.S. 231, in which the United States Supreme Court conducted a comparative juror analysis in the context of a federal habeas claim, California courts had refused to engage in comparative juror analysis for the first time on direct appeal. Since that decision, the California Supreme Court has undertaken such analysis assuming, without deciding, that comparative juror analysis on direct appeal is constitutionally required. (See, e.g., People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1017; People v. Avila (2006) 38 Cal.4th 491, 546; People v. Huggins (2006) 38 Cal.4th 175, 232.) Accordingly, we will do the same. We note that on January 24, 2007, the Supreme Court granted review in People v. Lenix (S148029), to decide this issue.
2. Prospective Juror F.C.
The prosecutor exercised his tenth peremptory challenge against F.C. When called upon by the court to justify the challenge, he articulated a number of reasons which centered on her answers to two questions on the juror questionnaire. F.C. had answered “yes” to questions asking whether she had “moral, religious or other principles which would make it difficult for [her] to determine whether or not someone is guilty of a crime,” and whether she had “an opinion or attitude about the criminal justice system which would make it difficult for [her] to be fair.”
When the court asked her to explain her thoughts behind those answers. F.C. responded, “I think I’ve misunderstood the question on the moral understanding. I don’t have that.” The court then asked her the questions again, and to each question she answered, “No, I do not.” The court asked if she could remember what gave rise to her “yes” answers, and F.C. responded, “Just, you know, molestations, anything to do with children.” The court asked if she meant that it would be uncomfortable for her to be a juror in a case involving child molestation, and F.C. answered yes. She indicated that she could sit as a juror on any other kind of case.
During voir dire, the prosecutor asked F.C. additional questions about her answers on the questionnaire. With respect to the question about moral or religious beliefs or principles, the prosecutor asked her what she was thinking of when she answered the question. F.C. responded, “General, in general what goes on in the world, I was thinking. I didn’t really dwell on it, of course, too much, to be truthful.” He asked if she had some more specific idea in mind, and she replied that she did not. He then asked the same question, what had been going through her mind, when she answered the question about an opinion or attitude about the criminal justice system. She answered, “Hmm, I don’t -- I don’t even know why I answered that way, no, nothing, No, I didn’t.” The court reminded F.C. that she had earlier had expressed a concern about child molestation cases, and F.C. affirmed that there was nothing other than child molestation going through her mind when she answered the question.
The prosecutor then questioned another prospective juror, Ms. N., who had also answered yes to the same two questions as F.C. The prosecutor asked how Ms. N. would feel about sitting on a jury. Ms. N. said that passing judgment on another person would be difficult, and conceded that fact-finding in a murder case “would be beyond me.” Ms. N. said she hoped that the truth would be readily apparent. It would be hard for her to make a decision “if the facts weren’t clean and clear and the case wasn’t explained properly enough for [her] to feel good about [her]self making that judgment . . . .”
The prosecutor then returned to questioning prospective juror F.C. The following colloquy took place:
“Q. Do you think one of the things that might have been going through your mind is, you know, I just don’t want to be put in this situation where I have to sit in judgment on another person, or I have to make a decision about somebody else’s death? You know, the person who was murdered has family members, this is very important to them. Obviously, the defendant is here. He has family members, very important to them. It is a tough, serious responsibility. And it is a tough situation to be put into.
“A. This is true.
“Q. Do you feel like you fall into that category where this might be a situation where, you know, I just don’t think I can be in that situation?
“A. True.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Q. Do you feel like there might be, for instance, and it is okay if it is, and this happens to people, but the seriousness and the weight of the responsibility might be too much for you in particular?
“A. I don’t think it would be too much, no, I don’t think that.
“Q. Okay. When you answered true before, what did you mean?
“A. Someone else’s life that I would have to make a decision on.
“Q. Okay.
“A. And look at the facts, put it all -- you know --
“Q. Do you feel like that would be a responsibility that is one that would be perhaps too emotional for you?
“A. Yes.”
When the prosecutor resumed questioning prospective juror F.C. the next day, she indicated that she had had a chance to reflect on what they had talked about the day before. She had concluded that “the emotional aspects of it, the responsibility of making this kind of a decision, would be a little bit too much.” When the prosecutor observed that she appeared to be “getting a little emotional right now,” she agreed. Under questioning by defense counsel, F.C. agreed that being a juror was an important civic responsibility, and that she could do the job.
In describing his reasons for challenging F.C., the prosecutor observed that she had answered the questions on the questionnaire privately, but then gave different answers when questioned in the court room in front of an audience. At times she said she was thinking of child molestation; at other times she said it was “things in general.” She was unable to articulate her thoughts and appeared to be “indecisive” and “weak-minded.” It was the prosecutor’s opinion that she was indecisive and “wishy-washy” about whether she could bear the emotional responsibility of being a juror. The prosecutor expressed concern that she would be unable to make a decision during deliberations, which, by default, would be a decision for the defense. He explained that, on the first day he had questioned F.C. about this, she had appeared “very nervous and scared beyond the average juror.” The next day, when he asked her again if she could handle the decision-making responsibility, she was “tearing up” and “wiping her eyes.” Although defense counsel had been able to “rehabilitate her” to the point where the prosecutor decided not to challenge her for cause, there was no “question that this is an inappropriate juror for the prosecution.” He pointed out that he had already excused another prospective juror, and planned to excuse Ms. N., neither of whom were African American, because they both had answered yes to the same two questions on the questionnaire.
Appellant contends that the prosecutor’s reasons for challenging F.C. were objectively unreasonable and pretextual. With respect to her answers on the questionnaire, appellant argues that F.C. adequately responded to those concerns. However, as we have already pointed out, the prosecutor was not required to accept F.C.’s contrary assurances or explanations. It is settled that a prosecutor may “exercise a peremptory challenge for any permissible reason or no reason at all . . . . (People v. Huggins, supra, 38 Cal.4th at p. 227.) Even a “‘reason that makes no sense is nonetheless “sincere and legitimate” as long as it does not deny equal protection.’” (People v. Stanley (2006) 39 Cal.4th 913, 936, quoting Guerra, supra, 37 Cal.4th at p. 1101.)
With respect to F.C.’s emotional ability to serve as a juror, appellant argues that this questioning was “unlike his questioning of any other juror.” According to appellant, F.C. appeared to interpret the prosecutor’s questions “to mean that she would have to judge whether [appellant] lived or died (i.e., a capital case).” The argument is not persuasive. Appellant ignores the fact that the prosecutor also questioned Ms. N. about whether she was emotionally up to the task of sitting as a juror in the case, and the suggestion that F.C. was under the impression that this was a capital case is speculative. Even if the evidence lent itself to that inference, under the applicable standard of review we draw all inferences in favor of the trial court’s ruling. The record supports the trial court’s ruling that the prosecutor’s reasons for excusing prospective juror F.C. were reasonable and race-neutral.
C. Sufficiency of the Evidence to Support the Conviction
Appellant contends the evidence was insufficient to support a conviction for first degree murder under the only theory relied upon by the prosecution--lying in wait. He argues that there was no evidence of a “substantial period of watching and waiting,” an element required for lying-in-wait first degree murder.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ (Id. at pp. 792-793.)” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
First degree murder by lying in wait requires “(1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage . . . .” (People v. Morales (1989) 48 Cal.3d 527, 557 (Morales); see also People v. Poindexter (2006) 144 Cal.App.4th 572, 584-585 (Poindexter) [holding that these elements are required for both first degree murder by means of lying in wait and the lying-in-wait special circumstance].)
The lying-in-wait special circumstance requires the additional finding that the killing was intentional. (§ 190.2, subd. (a)(15).) The lying-in-wait special circumstance is not at issue in this case.
Appellant concedes that there was evidence from which the jury could find a concealment of purpose and a surprise attack on the victim from a position of advantage, but contends there was no evidence of a “substantial period of watching and waiting.” According to appellant, the evidence shows that once he learned that Mayers was in the area, he walked quickly up a hill, shot down at Mayers from atop the hill, and then ran back down.
The Morales requirement of a “substantial period of watching and waiting” need not be for any particular minimum amount of time. (Morales, supra, 48 Cal.3d at p. 557; People v. Ceja (1993) 4 Cal.4th 1134, 1139-1140; People v. Edwards (1991) 54 Cal.3d 787, 823; Poindexter, supra, 144 Cal.App.4th at p. 585.) The jury instruction defining the period of lying in wait states that it must be sufficient to demonstrate that the defendant had a state of mind equivalent to premeditation or deliberation. (CALJIC No. 8.25.) In People v. Edwards, the court upheld the lying in wait special circumstance where the period of time was the few minutes required to walk a quarter of a mile. (54 Cal.3d at pp. 825-826.) In People v. Hardy, the defendants entered the home in the early morning hours and killed the victims in their bedrooms while they slept. The Supreme Court rejected the contention that there was no evidence of watching and waiting, reasoning that “the jury could reasonably conclude defendants concealed their murderous intention and struck from a position of surprise and advantage, factors which are the hallmark of a murder by lying in wait. Insisting on a showing that defendants actually watched the victims sleeping and waited a moment before attacking reads the law in too literal a fashion.” (2 Cal.4th 86, 164.)
The trial court instructed the jury pursuant to CALJIC No. 8.25 as follows: “The term ‘lying in wait’ is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise, even though the victim is aware of the murderer’s presence. The lying in wait need not continue for any particular period of time, provided its duration is such that it shows a state of mine equivalent to premeditation or deliberation. [¶] The word ‘premeditation’ means considered beforehand. [¶] The word ‘deliberation’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.”
Viewed in the light most favorable to the prosecution, the evidence here shows that appellant received a phone call alerting him that Mayers had just driven into the project. Appellant walked outside and watched Mayers drive by in his car. Appellant knew where Mayers was going because he always went to the same place--Jerome Dawkins’ apartment on California Street. Appellant then walked up to the top of a hill and saw Mayers down below, standing and talking to Jerome Dawkins outside Dawkins’ building. Mayers was standing facing Dawkins; appellant could see him from the side. Appellant shot his gun at Mayers three or four times, shooting to the best of his ability, and then ran back down the hill. He later burned the gloves he was wearing at the time of the shooting.
A reasonable jury could conclude that appellant was watching Mayers as soon as he drove into the projects and that appellant then began waiting for an opportune time to shoot him. The opportunity arose when Mayers left himself vulnerable to attack by getting out of his car to talk to Dawkins. Appellant secretly moved into a position of advantage and shot Mayers. There was substantial evidence from which the jury could find the “substantial period of watching and waiting” element of lying in wait first degree murder.
D. Jury Instruction on Lying in Wait
Appellant argues that the trial court erred in instructing the jury on lying in wait because there was no evidence to support that theory of murder. The argument has no merit. Having found that substantial evidence supported appellant’s conviction for first degree murder by lying in wait, we necessarily find that the trial court properly instructed the jury with CALJIC No. 8.25, which defines the concept of lying in wait.
E. Cumulative Error
Appellant contends that even if no one of the alleged errors in itself requires reversal, they do so cumulatively. We disagree.
Both state and federal law recognize that a number of errors, although independently harmless, may cumulatively rise to the level of depriving the defendant of due process and a fair trial. (See, e.g., United States v. Frederick (9th Cir. 1996) 78 F.3d 1370, 1381; People v. Hill (1998) 17 Cal.4th 800, 844.) A criminal defendant is entitled to a fair trial, not a perfect one. (People v. Box (2000) 23 Cal.4th 1153, 1214.) We have found no merit to any of appellant’s individual contentions of error, and thus they cannot constitute cumulative error. (People v. Beeler (1995) 9 Cal.4th 953, 994.)
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.