Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC642275.
Bamattre-Manoukian, Acting P.J.
Defendant Marlo Pelonio Diano was convicted by a jury of the first degree murder of 18-year-old Oanh Tran, who was renting a room on the second floor of a house in which defendant and his family later rented a room on the first floor. The jury also found true the special circumstance that the murder occurred while defendant was engaged in the commission of rape. (Pen. Code, § 187, 190.2, subd. (a)(17).) The trial court found that defendant had a prior conviction that constituted both a serious felony and a strike. (§§ 667, 1170.12, 1192.7, subd. (c).) The court sentenced defendant to prison for life without parole, consecutive to five years.
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that (1) his statement to police on September 18, 2006, was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the court erred in admitting evidence that he had previously choked his girlfriend, Maria Pilar; (3) the court erred in denying his motion for a mistrial; (4) the court erroneously denied his motion contesting the prosecutor’s race-based peremptory challenges of two prospective jurors; (5) the court gave erroneous instructions on felony murder; (6) CALCRIM No. 625 is prejudicially inadequate; (7) the court erred in instructing the jury with CALCRIM No. 375; (8) CALCRIM No. 730 is prejudicially inadequate; (9) the statutory felony-murder special circumstance is unconstitutional; and (10) the cumulative effect of the above claimed errors requires the reversal of the judgment. As we disagree with defendant’s contentions, we will affirm the judgment.
BACKGROUND
Defendant was charged by amended information with the murder of Oanh Tran. (§ 187.) The information further alleged that the murder was committed while defendant was engaged in the commission of rape (§ 190.2, subd. (a)(17)), and that defendant had a prior conviction that constituted both a serious felony and a strike (§§ 667, 1170.12). Defendant waived his right to a jury trial on the alleged priors.
Prior to trial the court held an Evidence Code section 402 hearing to determine whether any of defendant’s statements to police “meet the Miranda and voluntariness standards.” Following the hearing and the court’s review of the CDs of defendant’s July 22, 2006, and September 18, 2006 police interviews, the court ruled that the prosecution could introduce evidence of any or all of defendant’s interviews in its case in chief.
The Prosecution’s Case
In early summer 2006, after Oanh Tran turned 18, she rented a room in a house shared by others including Junyl Casilang, a friend of a friend. Tran usually kept the light on in her room, even while sleeping, because she was afraid. Defendant, his girlfriend Maria Pilar, and their young child began renting a room in the same house in July 2006. Defendant did not have a job, and Pilar worked part-time. When defendant told Casilang that he was looking for “weed, ” Casilang suggested that Tran might know someone. Tran said, “ ‘Oh, my homeboy might have some.’ ” Tran told her friend Nicholas Nuth around July 7, 2006, that she had arranged to get marijuana for defendant. Defendant also asked Nuth if he could get defendant “some weed.” Nuth told defendant that he had “no connections on marijuana, ” and he told Tran about his conversation with defendant.
Although Tran’s friends saw defendant when they visited Tran, they did not socialize with defendant. Tran specifically expressed negative feelings about defendant. Tran was dating Paul Lai, but they broke up in early July 2006. When they had tried two times to engage in sexual intercourse, Tran told Lai that she was uncomfortable undressing in from of him and that she was scared. She stopped both attempts, saying “it hurts.” After the breakup, Tran told a female friend that having intercourse hurt her, and that she was sad that her relationship with Lai was over. Tran might have begun drinking more than usual with her friends after the breakup, but she did not increase her infrequent use of marijuana. And, she did not drink at a birthday party she went to with her friends on Wednesday night, July 19, 2006.
Tran worked as a tutor at a learning center Monday through Friday, six hours a day in two split shifts. On Thursday, July 20, 2006, defendant babysat a five-year-old child while Maria Pilar and their child spent the day at her mother’s apartment. After Tran returned to her room following her morning shift on July 20, 2006, beginning around 12:44 p.m., she exchanged computer instant messages with Nicholas Nuth. Tran texted that her “roommate” just knocked on her door “for weed.” “Then I said okay I’ll call my hboy.” “And hes all knocking on it again and asked if I smoke weed so he can give me some.” “L.O.L.” “Haha I was like no used too but its okayy.” “Haha.” Tran and Nuth ended their messaging session at 12:50 p.m. Tran posted a computer message to all her friends telling them that she was taking a nap and asking them to wake her up at 2:30 p.m. Her computer signed off around 3:00 p.m.
Tran did not show up for her 3:30 p.m. shift on Thursday, July 20, 2006. Her employer called her cell phone several times, but nobody answered, so he left a voice mail message. Tran did not show up for her Friday shifts, either. A coworker who usually drove Tran back and forth for her morning shifts was not able to get her to answer either his knock on the locked door to her room or the rocks he threw into her open window before and after the Friday morning shift. The coworker saw defendant that morning while he knocked on Tran’s door, but he could not remember what defendant said to him. Tran’s friends tried to contact her by cell phone and online on Thursday afternoon and evening and all day Friday. Because they could not reach Tran, some of her friends went to her room Friday night. When they drove up to the house, they saw that the window in Tran’s room was open but her lights were off. They opened the door of her room with a spare key and discovered her dead body. One of her friends and a housemate called 911.
Around 8:53 p.m. on July 21, 2006, a San Jose police officer and the fire department were dispatched to Tran’s residence to perform a welfare check. They found Tran lying on an air mattress under a blanket, both of which were quite damp. She was wearing a black tank top, a black pair of athletic shorts, and a gold necklace. On her tank top and shorts were a number of fibers that appeared to be from the room’s area rug. She had round and V-shaped abrasions and scratches on her chin and neck. A firefighter checked for a pulse and for rigor mortis, replaced the blanket, and left. Other officers arrived, secured and investigated the scene, and transported witnesses to the police department to be interviewed.
Tran’s room was very hot. The room was fully carpeted and the area rug was bunched up against a wall. A desktop computer and a cell phone SIM card were on a workstation, but Tran’s laptop computer and cell phone were missing. There were various other items lying on the floor, on the workstation, and on the dresser, but nothing indicated signs of a struggle. A fan on the floor was running. An open Vaseline jar was on the floor with a big scoop of its contents missing. Dusty liquor bottles were on the windowsill. There was no damage to the door or evidence of forced entry. Officers seized Tran’s desktop computer and the SIM card.
Defendant was one of the witnesses transported to the police station for an interview. He had scratches on the left side of his neck below his ear and on his back, but no injuries to his hands. He told the first interviewing officer that he had last seen Tran the previous Wednesday. He said that a man had come looking for Tran on Friday morning, but had left when he realized she was not home. He said that he spent Friday with his child while his girlfriend was at work. In a later interview the next morning he said that he had been inside Tran’s bedroom one day the previous week. She allowed him to climb through her window after he had retrieved keys thrown onto the roof by the child he was babysitting. He also said that he had had sex with Tran the previous Friday or Saturday on the carpet in her room, using a condom which he took with him and then threw into the garbage. He said that she never asked him for money because “ ‘[s]he knows I don’t have a job.’ ” He last saw her Wednesday around lunchtime in the kitchen. She was wearing black shorts. He got the scratch on his neck on Friday around noon when his girlfriend accidently scratched him with her car key.
Maria Pilar testified that defendant called her on her cell phone Thursday around 5:30 p.m., telling her that he was using a phone that he had borrowed “from a guy named Ricky, ” and asking her when she was coming home. When she arrived home about 10 to 15 minutes later, the child defendant had been babysitting was gone. On Friday morning, defendant and Pilar had an argument and she accidentally scratched his left neck with her keys as he was trying to stop her from leaving. Friday night, defendant agreed to go to the police station for an interview and Pilar stayed with their child at her mother’s house.
On Saturday morning, defendant called Maria Pilar and asked her to come to the police station. While Pilar was speaking with the police for 20 to 30 minutes, defendant heard her voice and became upset that officers would not let him talk to her. He started yelling and officers handcuffed him for a few minutes. Pilar was taken to the room where defendant was waiting. Their conversation was secretly recorded, and a DVD of portions of it was played for the jury. During their conversation, defendant said, “I’m afraid to give my DNA.” “If I give my DNA... I already give my DNA. Whatever they do... from what I heard they did a clean job... that woman... it was clean... wet in water. If a dead body is wet in water, you won’t get anything. [¶]... no matter how much digging you do.” “She was raped from what I heard.” “Maybe, whoever did it, poured water so that they’ll see nothing... there’s a lot of those... that’s what I heard regarding that woman. Have you seen the movie... the movie, Sea (inaudible), where they were investigating the dead body on the road, suddenly it rained, the (inaudible) said, ‘It’s not gonna work no more.’ ”
Their conversation was in Tagalog, and the jury was given a transcript of an English translation of it that Pilar testified was accurate.
Maria Pilar and defendant left the police department and returned to their room shortly before noon on Saturday, July 22, 2006. Several times in the ensuing three weeks, officers talked to defendant and Pilar again about the case. Officers searched a garbage can on the side of the house on the afternoon of July 22, 2006, where they found and seized a torn condom wrapper.
Tran’s autopsy occurred on Monday, July 24, 2006. Because the refrigeration unit at the medical examiner’s office had malfunctioned over the weekend, Tran’s body was in a more advanced state of decomposition than what otherwise would have been expected. She did not have any injuries to her back or hands. Fibers similar to the ones found on her clothing were found in her hair, lips, chest, crotch and pubic areas. In addition, clumps of fibers and hair were found on her right arm and hand. She did not have any drugs in her system, but her blood alcohol content was.086. That does not necessarily mean that Tran had that blood alcohol level at the time of her death, as decomposition causes a body’s blood alcohol level to rise. The medical examiner determined that the cause of Tran’s death was asphyxia of undetermined etiology, and that the manner of her death was homicide.
A criminalist with the county crime lab testified that fingernail samples from Tran were tested for DNA. A “partial mixture” was detected that included Tran’s DNA and male DNA. Defendant was “a possible contributor” to that DNA. Vaginal swabs taken during Tran’s autopsy tested positive for semen. The DNA detected on the swabs that was not Tran’s DNA matched defendant’s DNA, which means that defendant is included as “a possible contributor” to the mixture. Defendant is also “a possible contributor” to the male-specific DNA that was detected on a neck swab taken from Tran, “a possible contributor” to the DNA detected on the area rug from Tran’s room, and “a possible contributor” to the DNA detected on a swab of the condom wrapper. Tran was excluded as a possible contributor to the DNA found on the condom wrapper swab, and it was inconclusive whether Maria Pilar could be included or excluded.
Defendant missed his Saturday morning class on July 22, 2006. On July 29, 2006, his next class, he told Mark Dalit that he had missed class the week before because he was being questioned about a young woman who had been killed at his house three or four days before she was found. Defendant said that the killer had put a pillow over her face or strangled her. Dalit asked defendant how he knew how the woman had been killed and if he had done it. Defendant said no. Defendant traded Tran’s laptop computer to Dalit later that day for methamphetamine.
Defendant and Maria Pilar’s room, which was directly under Tran’s room, was searched on August 2, 2006, and defendant was then interviewed at Pilar’s mother’s home. The interview was recorded, and a CD of a portion of it was played for the jury. During the interview, defendant said that he told Pilar that he had had sex with Tran, and that Pilar told him that she would give him one more chance. Defendant said that around midnight that Saturday night, he was standing near the door to his room when Tran went by. Her eyes were red but she did not smell of alcohol. She asked him if he wanted to go up to her room. He did, and they had sex. Defendant said that Tran “has experience, she’s not virgin.” “Cause I know, ... no ouch or something like that.” He used a condom, which he then threw in the garbage. She did not scratch him. On the next Thursday, he knocked on her door and asked her for some “weed.” She said to come back Saturday. Defendant said that Tran’s friend, whose name he did not know, had previously given him some “weed.” Defendant then agreed to go to the police department so that he could be shown some pictures.
Defendant’s August 2, 2006 police department interview was videotaped and a DVD of portions of it was played for the jury. During the interview, defendant said that he did not go into Tran’s room on that Thursday when he asked to buy some “weed” and she told him to come back Saturday. She did open the door, however. She was wearing short pants and a T-shirt. He did not have sex with her that day; he was babysitting. He had sex with her one time only.
On August 7, 2006, the Vaseline jar that had been in Tran’s room was turned over to the police by her friends, but it was never analyzed. Records of Tran’s cell phone showed that she was placing and receiving calls and text messages on her phone by accessing towers miles from her room after 10:30 p.m. and before 12:30 a.m. the Saturday before her death. There was no activity on her cell phone between 9:20 a.m. and 2:29 p.m. on the Thursday of her death. Then, between 2:29 p.m. and 7:53 p.m., she received several calls from her friends and her employer, but she placed no calls herself. At 7:53 p.m., a call was placed to Maria Pilar’s cell phone using Tran’s SIM card.
Officers interviewed defendant at his home on August 8, 2006. The interview was recorded and a CD of parts of it was played for the jury. During the interview, defendant first said that he called Pilar at work Thursday evening using his home phone. Although he never used Tran’s cell phone, he did give Tran Maria Pilar’s phone number so she could contact him about “weed.” He later admitted that he called Pilar using a SIM card he found and placed in another cell phone, and he gave the officers that SIM card. He continued to deny having had sex with Tran on that Thursday.
Defendant was arrested on August 9, 2006, for violating his probation by using drugs. The SIM card defendant had given to the police belonged to Tran. Tran’s laptop computer was recovered by the police on the morning of August 29, 2006. Officers interviewed defendant at the police department on September 18, 2006. That interview was tape recorded and two CDs of portions of it were played for the jury. During the interview, after defendant was advised of his Miranda rights, defendant said that he found Tran’s computer on the side of the road a few blocks from his home the Wednesday after she died. He did not use it. He sold it to Mark Dalit. Defendant continued to deny any involvement in Tran’s death. He also denied using methamphetamine on that Thursday.
The second CD was played as part of the prosecution’s rebuttal evidence.
The Defense Case
Tran’s mother and brother testified that Tran moved out shortly after her 18th birthday because she wanted to be independent. She would stay out past her stated curfew and be afraid to go home, because her father would yell at her. She asked for and was given some financial assistance from her mother and brother after she moved out. She asked for and was given $40 on July 19, 2006, for a friend’s birthday party. Tran’s landlord testified that Tran moved into her room in June 2006, and that he had not received any rent payments from her before she died.
Defendant testified in his own defense as follows. He was born in the Philippines and came to this country in 2002 when he was 21. He first worked as a caregiver for seniors in their homes, and then worked at Target, where he met Maria Pilar. They moved in together in 2004, and into the house where Tran lived in July 2006. At that point, the only job he had was babysitting, but Pilar was still working at Target. He admitted having been convicted in 2005 of aggravated assault on Pilar and misdemeanor criminal threats, after he got mad at her and choked her while he was on methamphetamine. He served time in jail and had to provide a sample of his DNA as a result of the conviction. He had to drug test and go to classes while on probation after getting out of jail. It was at one of these classes that he obtained the condom.
Defendant testified using a Tagalog interpreter.
Defendant has a history of using methamphetamine and marijuana, which he tried to hide from Maria Pilar. Tran introduced herself to defendant a few days after he moved in. After that, he saw her and her friends almost every day, and he asked Junyl Casilang, his roommate, and Tran if they could get him some marijuana. Tran told him that a friend would come by and sell him some, which he did.
On Thursday, July 20, 2006, defendant was babysitting and Maria Pilar was not home. Defendant had used methamphetamine early in the morning, and around 1:00 p.m. he went to Tran’s room to ask her to buy marijuana for him. She agreed to tell her friend to get some for him for Saturday. He went back to her room later and asked her if she wanted to smoke some of the marijuana, but she responded no. As he was leaving again, Tran called his name. She asked him, “ ‘Do you want to have sex with someone for $100.’ ” When he asked who, she responded, “ ‘Me.’ ” He was surprised. He told her that he would if she would agree to wait to be paid until Saturday, and she agreed. He checked on the child he was babysitting, retrieved a condom, and returned to Tran’s room.
They took off all their clothes and had sex on the carpet. Tran got a jar of Vaseline and defendant put some on his penis. Before he ejaculated, he put on the condom. After he ejaculated, he took off the condom and continued having sex with her. When they were finished, they used some baby wipes Tran had to clean themselves before they dressed. Defendant started to leave and Tran told him that he had better pay her on Saturday. He said that he would. Tran said that if defendant did not pay her, she would tell his girlfriend what had just happened. She repeated it three times, even though he said he had agreed to pay her.
Defendant testified, “I couldn’t think straight. I didn’t know what happened.” “I “just felt like my hands was on her neck, ” “both hands.” “I felt like I blacked out.” “I didn’t have any intention to kill anyone.” After coming out of the blackout, “I just saw her down on the floor.” “I saw my hand on her throat.” “When I took off my hands on her neck (indicating), I saw that she wasn’t moving anymore.” “[S]he wasn’t breathing, and she was dead.” “I was scared.” “I didn’t want to be caught.” “I thought of cleaning [her] up.” He grabbed something from her closet, wet it, and wiped her body with it underneath her clothes. He then lifted her onto her bed, turned off her cell phone and put it in his pocket, poured water on her face and neck, and covered her with a blanket. He looked out the window to see if anybody was outside. He then put the item he used to wipe Tran in a plastic bag, and the condom and its wrapper in his pocket, and left the room carrying the plastic bag and Tran’s laptop. He flushed the condom down the toilet, threw the wrapper in the trash, and put the laptop in his closet. He does not remember where he put the item he used to wipe Tran.
Defendant put the SIM card from Tran’s phone into another phone and called Maria Pilar. He later hid the SIM card and threw away the phone. Defendant did not tell Pilar what had happened when she came home. The next morning, he and Pilar argued. As he was trying to keep her from leaving, she accidently scratched his neck with her key. He saw Tran’s coworker come by and knock on her door. In the evening he went by bus to Target to surprise Pilar, and the police were at the house when the two of them returned. Somebody said that Tran was dead. He agreed to talk to the police and he went to the police station. He lied to the police because he could not trust them and he was afraid he would be arrested. He later traded Tran’s laptop to Mark Dalit for methamphetamine.
Verdicts, Findings on the Priors, and Sentencing
On November 19, 2008, the jury found defendant guilty of first degree murder, and further found that defendant was engaged in the commission of rape during the commission of the murder (§§ 187, 190.2, subd. (a)(17)). Following a court trial, the court found that defendant had a prior conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) that constituted both a prior serious felony and a strike. (§§ 667, 1170.12, 1192.7, subd. (c).) On January 9, 2009, the court sentenced defendant to prison for life without the possibility of parole, consecutive to five years.
DISCUSSION
Miranda Waiver
Defendant contends that the court erred in admitting his statement to the police on September 18, 2006, “the only warned interview, which occurred after his arrest.” “The key portions [of the interview] at issue here are the rights advisements and [defendant’s] statements, before police references to the death penalty, that he found the computer police showed him somewhere outside nearby, then traded it for drugs.” Defendant contends that in the interview, “before the Miranda advisement, a detective asks [him] if he had any problem with talking again, adding they would like to talk and show things to him; [defendant] agrees; the detective replies they have to read him his rights before they talk. The ensuing rights advisement reflects four rapid-fire advisements in standard legalese.” “No written advisements were attempted. The waiver of counsel at least, if not silence, must be considered implied at best. There was no evidence [defendant] was an experienced offender familiar with the system. This is a case of real language problems blurring abstract English-language concepts conveyed in compound rapid shotgun fashion in formulaic oral advisements, coupled with a vague and arguably manipulative waiver colloquy.” “Against this background, the prosecution failed to demonstrate [defendant’s] express and/or implied waiver of silence and counsel were knowing, intelligent, or voluntary. Even assuming [his] statements were voluntary, the prosecution failed to sustain its burden of demonstrating [he] voluntarily, knowingly, and intelligently waived his Fifth Amendment rights in connection with the final statement.”
The portion of the interview where the officers referenced the death penalty were not played for the jury.
The transcript of the recorded interview of defendant by Sergeants Knox and Simpson states: “KNOX: Marlo what’s happening? How are you? What’s going on? Take a seat. Thank you. How you doing? [¶] DIANO: Good. [¶] SIMPSON: Everything okay? (unintelligible). You look happy – gaining weight. [¶] DIANO: (Unintelligible) [¶] KNOX: You doing any weight lifting? [¶] DIANO: Yea. [¶] KNOX: You are? Pumping? Marlo, uh, we’ve got some things to show you, we, uh, would also like to talk to you again. Do you have any problem with that? [¶] DIANO: Go ahead. [¶] SIMPSON: We’d like to talk to you... [¶] DIANO: Yea, go ahead. [¶] SIMPSON: Okay, uh, like I said we have some things to show you, but before we do that we have to advise you of your rights, okay? So, I know before you were very worried that you’d be arrested, you’re already arrest, you know because, you’re in custody now, any time you like have handcuffs and that you can’t leave, we are required to, uh, (unintelligible), we’re required to read this to you, okay? [¶] KNOX: Marlo you understand you have the right to remain silent, do you understand that? [¶] DIANO: Yea. [¶] SIMPSON: Okay, anything you say can and will be used against you in court, do you understand that? [¶] DIANO: (Unintelligible). [¶] KNOX: Okay, you have the right to the presence of an attorney before and during any questioning, do you understand that? [¶] DIANO: (Unintelligible). [¶] KNOX: Yes? [¶] DIANO: (unintelligible). [¶] KNOX: Okay, if you cannot afford to hire an Attorney, one will be appointed for you free of charge before any questioning, if you want one, do you understand that? [¶] DIANO: Okay. [¶] KNOX: Okay. Okay, do you want to go ahead and answer some questions, look at some pho – pictures that we have? [¶] DIANO: Go ahead. [¶] KNOX: Okay, very good.”
The Attorney General contends that defendant’s waiver “of each of his individual rights was explicit, both at the time it was given and at the conclusion of the warnings, when [he] agreed to speak with the officers.” “[A] warning for each right was given in standard sequence and in a conversational tone, and no new right was mentioned until after [defendant] had confirmed his understanding of the previous right.” “The trial court had ample reason to find that [defendant’s] waiver had been knowing and voluntary.” The Attorney General further contends that defendant’s statement on September 18, 2006, “added little to [the] evidence” as defendant admitted approaching Tran for marijuana, but claimed that he found Tran’s phone in the garbage and claimed he found Tran’s laptop in the gutter, and he admitted selling the computer to Mark Dalit.
“[T]he prosecution may not use statements... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” (Miranda, supra, 384 U.S. at p. 444.) Thus, the Supreme Court has imposed on the police an obligation to advise a criminal suspect about his or her rights and to obtain a knowing and intelligent waiver of those rights prior to any custodial interrogation. (Id. at p. 479.) “The Miranda safeguards apply to confessions and ‘statements which amount to “admissions” of part or all of an offense’ regardless of whether they are exculpatory or inculpatory in nature. [Citation.] A statement obtained in violation of Miranda may not be admitted in the prosecution’s case-in-chief but, if voluntary, may be admitted to impeach the defendant. [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1092 (Guerra), disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.)
“No particular manner or form of Miranda waiver is required, and a waiver may be implied from a defendant’s words and actions. [Citations.]” (People v. Davis (2009) 46 Cal.4th 539, 585 (Davis); accord, Berghuis v. Thompkins (June 1, 2010, No. 08-1470) ___ U.S. ___ [2010 U.S. LEXIS 4379, pp. *20-*25] (Berghuis).) Officers need not obtain a completed and signed written waiver form in addition to an oral waiver. (Davis, supra, at p. 586.) However, unless the prosecution proves by a preponderance of the evidence that the waiver was made voluntarily, knowingly, and intelligently, the waiver is invalid. (People v. Whitson (1998) 17 Cal.4th 229, 248; Berghuis, supra, __ U.S. at pp. __ [2010 U.S. LEXIS 4379, p. *22].) To determine whether a Miranda waiver is valid, courts apply the totality of the circumstances test: “ ‘The due process [voluntariness] test takes into consideration “the totality of the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.” ’ [Citations.] This test ‘examines “whether a defendant’s will was overborne” by the circumstances surrounding the giving of a confession.’ [Citation.] We make the same inquiry to determine the voluntariness of a Miranda waiver. [Citation.] ‘[C]oercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment.’ [Citations.]” (Guerra, supra, 37 Cal.4th at p. 1093; see also Davis, supra, 46 Cal.4th at pp. 585-586.)
“On appeal, we review independently a trial court’s ruling on a motion to suppress a statement under Miranda. [Citation.] In doing so, however, ‘we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.’ [Citation.]” (Guerra, supra, 37 Cal.4th at pp. 1092-1093; see also Davis, supra, 46 Cal.4th at p. 586.) “We review independently a trial court’s determinations as to whether coercive police activity was present and whether the statement was voluntary. [Citation.] We review 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. [Citation.] ‘To the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence.’ [Citation.]” (Guerra, supra, 37 Cal.4th at p. 1093.)
Here, the issue raised by defendant is not whether defendant was adequately advised of his Miranda rights on September 18, 2006, but whether he understood the advisements and voluntarily waived his rights when he elected to make a statement. “Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” (Berghuis, supra, __ U.S. at pp. __ [2010 U.S. LEXIS 4379, pp. *25-*26].)
Following the Evidence Code section 402 hearing regarding the admission of the September 18, 2006 statement, the court stated that it had listened to a CD of the entire interview and read the transcript. The court concluded: “The defendant was properly Mirandized; the defendant clearly understood the questions presented; the defendant also had the capacity to waive his rights and speak with the officers; and the defendant expressly waived his Miranda rights and agreed to voluntarily speak with the officers. [¶] Taking into consideration the entire interview, including the psychological and death penalty comments by Detective Simpson, the court does not find the defendant’s statements during the interview were involuntary. [¶] The court also does not find that the defendant was coerced into giving any false statements. [¶] Specifically, the court finds that the waiver was knowingly and intelligently made.”
We agree with the trial court. The unedited CD of the September 18, 2006 interview, which the court reviewed for the Evidence Code section 402 hearing, and which we have set out in footnote 6, discloses that defendant appeared to understand and waive each of the advisements of his rights. Although his responses to the officer’s questions whether he understood each of his rights are difficult to hear, it sounds like the officer repeated defendant’s answer to each question (“yes” or “okay”) before resuming his recitation, and that defendant answered “Go ahead” when the officer asked him, “Okay, do you want to go ahead and answer some questions, look at some pho – pictures that we have?” English is not defendant’s first language, and he had asked for an interpreter during his first interviews in July 2006. He did not ask for a interpreter on September 18, 2006, and he appeared to understand the officers’ questions and statements prior to the Miranda advisements and the officers appeared to understand his answers. There was no indication that defendant was confused, misled, or reluctant to speak to the officers. In addition, defendant was not a stranger to the criminal justice system, as he had a 2005 felony conviction and he was in custody at the time of the September 18, 2006 interview for a violation of his probation unrelated to the charges in this case. And, defendant acknowledges that voluntary statements obtained in violation of Miranda, although not admissible in the prosecution’s case-in-chief, may be used for purposes of impeachment. Based on our review of the record, we conclude that the prosecution proved by a preponderance of the evidence that defendant’s Miranda waiver at the beginning of the September 18, 2006 interview was voluntary, knowing, and intelligent. (People v. Whitson, supra, 17 Cal.4th at p. 248; Guerra, supra, 37 Cal.4th at p. 1093; Berghuis, supra, __ U.S. at pp. __ [2010 U.S. LEXIS 4379, p. *20].)
The Prior Offense
Defendant opposed the prosecutor’s motion in limine to introduce evidence of defendant’s prior domestic violence on Pilar, contending that it did not show a common design or plan. The court ruled that it would not allow the prosecutor to introduce evidence of the facts underlying defendant’s prior offenses under Evidence Code section 1101, subdivision (b), but, if defendant testified, the prosecutor would be allowed to impeach him “with both the 245(a) and the 422.”
After defendant testified on direct examination that he had used methamphetamine hours before killing Tran, the prosecutor sought leave to question defendant “about the incident with Maria Pilar that resulted in the conviction, because he was also convicted at that time of being under the influence of methamphetamine, ” and about defendant’s statement to police “that when he takes methamphetamine, it makes him violent.” The prosecutor argued that because defendant admitted choking Pilar during the 2005 incident when he was under the influence of methamphetamine, “it’s relevant to a conscious disregard of human life.” Defense counsel agreed that the prosecutor should be able to question defendant as to the effects methamphetamine has on the way defendant feels and acts. “I think that’s a legitimate line of inquiry.” However, counsel argued that the prosecutor should not be able to question defendant on the facts underlying the 2005 offenses. After balancing the probative value and the prejudicial effect of the evidence (see Evid. Code, § 352), the court allowed the prosecutor to question defendant on the effects of methamphetamine on him “concerning that particular incident, his reaction, the fact that he choked her.”
On cross-examination, defendant testified that when he used methamphetamine, he “wouldn’t think straight, ” and sometimes he would “get mad easily.” “It depends if somebody makes me mad.” He was under the influence of methamphetamine when he physically assaulted Pilar in 2005. Maria Pilar did something to upset him, he got mad at her, and he choked her, but he knew that it was wrong and he stopped himself. And, he learned that methamphetamine could make him violent and could cause him to seriously hurt someone.
After a discussion “in detail” off the record, the parties agreed that the court would instruct the jury with a modified version of CALCRIM No. 375. As modified, the instruction told the jury that it “may, but [was] not required to, ” consider evidence of defendant’s prior offenses “for the limited purpose of deciding whether or not the defendant had knowledge of the effects of methamphetamine on his behavior. [¶] Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant’s credibility. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.”
The prosecutor argued to the jury that defendant admitted he had a prior conviction for felony aggravated assault and misdemeanor making criminal threats, and that it could consider those convictions in weighing his credibility. The prosecutor argued that the evidence showed that defendant was guilty of rape and felony murder. The prosecutor also argued that, if the jury did not find that there was a rape, and it believed that defendant killed Tran after she said she was going to tell Maria Pilar, but he did so without premeditation and deliberation, then there was enough evidence to show implied malice under a second degree murder theory. “[B]ased on the defendant’s conduct and his admissions to you of getting upset with [Tran], putting his hands on her throat, and choking her, you have evidence that the defendant claims he was under the influence of methamphetamine that afternoon.... [I]f you believe that he was, the fact that he would use methamphetamine to the point of being under the influence of it, and knowing how it after effects him [sic]-because you heard testimony that on the prior incident involving [Maria Pilar], when he choked her, he admitted of being under the influence of methamphetamine. And he described how that can make him violent when he’s provoked by another person. So if he has the knowledge of using methamphetamine can make him violent and he, nonetheless, uses it, and then he gets violent with a person and kills that person, he is acting with conscious disregard for human life. [¶] So, that would be one way of convicting him on that second degree theory, if you believe that she provoked him, there was no rape, and he was under the influence of methamphetamine.”
Defendant now contends that the court’s ruling “admitting evidence of supposed choking on this strained theory of implied malice based on violent drug tendencies (known methamphetamine rage) was error.” He argues that the evidence of choking was irrelevant, and that knowledge of the effects of methamphetamine on behavior was not an issue. “The issue was how the death and/or sexual contact happened, how long or hard the strangulation or other force (e.g. suffocation) was applied to [Tran], and with what wrongful intent if any. Prejudicial details about a dissimilar non-fatal assault on [Pilar] while on this drug to show ‘knowledge’ of the effects of methamphetamine on [defendant’s] behavior add[ed] nothing to this case.” Defendant separately contends that, even if the evidence was admissible on credibility issues, the court erred by instructing the jury with CALCRIM No. 375 as “improper expansive consideration of irrelevant and inflammatory evidence improperly reduced the prosecution’s burden of proof on key ultimate issues and created a strong risk [he] would be convicted based on irrelevant and inflammatory evidence and violent disposition, rather than upon the facts.” Defendant further contends that any failure by counsel to preserve these issues on appeal constitutes prejudicial ineffective assistance.
The Attorney General contends that the evidence was properly admitted. “Because [defendant] claimed the circumstances were innocent-insisting he had mysteriously blacked out, possibly as a result of methamphetamine usage and only after Tran had threatened to blackmail him-the prosecutor was entitled to show that [defendant] had behaved almost identically when Pilar had provoked him in the past.” The Attorney General further contends that defendant’s instructional-error claim fails for the same reason, and that his claim of ineffective assistance also “must fail.”
“A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings. [Citations.]” (People v. Price (1991) 1 Cal.4th 324, 440; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.) “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697.)
“Under Evidence Code Section 352, a trial court has discretion to ‘exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice....” [Citation.] The law is clear that ‘[i]ts exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value. [Citation.]’ [Citations.]” (People v. Garcia (1995) 41 Cal.App.4th 1832, 1848 (Garcia), disapproved on another point in People v. Sanchez (2001) 24 Cal.4th 983, 990-991, fn. 3; accord People v. Lewis (2001) 26 Cal.4th 334, 374.)
Malice may be implied “ ‘when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his [or her] conduct endangers the life of another and who acts with conscious disregard for life.’ ” (People v. Blakeley (2000) 23 Cal.4th 82, 87.) “[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.” (People v. Watson (1981) 30 Cal.3d 290, 296-297, italics omitted.) “Implied malice, like all other elements of a crime, may be proven by circumstantial evidence. [Citations.]” (Garcia, supra, 41 Cal.App.4th at p. 1849.)
In this case, evidence of the facts underlying defendant’s prior conviction for aggravated assault was relevant to prove the knowledge element of implied malice as well as on the issue of his credibility. The facts show that one of the dangers of using methamphetamine was demonstrated to defendant firsthand when, on a prior occasion, he choked his girlfriend and the mother of his child when something she did upset him. Defendant acknowledged that that incident taught him that methamphetamine could make him violent and could make him hurt someone. While this evidence was prejudicial to defendant’s defense theory, that is not what is meant by “undue prejudice” under Evidence Code section 352. “Case law makes clear that ‘ “ ‘[t]he ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against... [one party] as an individual and which has very little effect on the issues.’ ” ’ [Citation.]” (Garcia, supra, 41 Cal.App.4th at p. 1850.) As the evidence was highly relevant on the issue of implied malice, and the court could correctly determine that any potential for prejudice that might otherwise result from its admission could be minimized through the use of a limiting instruction, CALCRIM No. 375, we cannot say that the court abused its discretion in admitting the evidence and instructing the jury as it did. (Cf. Garcia, supra, 41 Cal.App.4th at pp. 1848-1850.) And, as we have addressed the issues, defendant cannot show that his counsel rendered ineffective assistance by any failure to preserve the issues for review.
Motion for Mistrial
During his cross-examination of defendant, the prosecutor asked defendant if he continued to deny any involvement in Tran’s death during each of his police interviews. Defendant responded, “That’s correct.” The prosecutor then asked, “So the police have never had an opportunity to question you about the version of events that you are now giving us, correct?” After an unreported bench conference requested by defense counsel, the prosecutor asked defendant, “Isn’t it true, sir, that the version you have given us here in court is one you have never given to the police, correct?” Defendant responded, “Yeah, I didn’t say that.” In response to further questions by the prosecutor, defendant testified that he never told Pilar, his family, or his friends what really happened either, and that he has had access to all the police reports, photographs, and prior testimony since his arrest in September 2006. At the end of the next day, while still cross-examining defendant, the prosecutor asked him whether he remembered his first police interview on July 21 and his last interview on September 18, 2006. When defendant said he did, the prosecutor asked: “And I want to make sure that I’m clear with my questions. That during those two dates, ... July 21st and September 18, that two-month window, at no time during that two-month period did you tell anyone, the police, your family, [Maria Pilar] what you told this jury the events that resulted in [Tran’s] death, correct?” Defendant responded, “I didn’t tell anyone about what I said to the jury about how she became dead.”
The court then excused the jury for the evening recess and defense counsel placed on the record his objection at the bench conference the previous day. Counsel argued that the prosecutor had been questioning defendant about whether he shared information with family and friends during the two years that defendant was in jail before trial. “The question itself I thought was improper, because... it, basically, is implying that [defendant] was using his two years to fabricate a story, and he didn’t share that story with anybody, when, in fact, it was the legal advice our office gave to [defendant] not to talk to anyone.” “I believe the court asked [the prosecutor] to rephrase his question to some extent, but, nevertheless, it covered I believe territory that was not properly relevant, and was basically a violation of [defendant’s] Fifth and Sixth Amendment rights and in terms of discussions he’s had with... matters covered by the attorney-client privilege. And it kind of relates to, in essence, kind of Doyle error.”
Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
The prosecutor argued, “I’m not asking if he talked with law enforcement after the public defender was appointed. I’m not asking if he talked with any agents of law enforcement. I’m simply asking if he told any of his family members the story he’s telling us. [¶] Now, if the defense wants to respond to that by asking the defendant why he didn’t tell anyone, that’s entirely up to them. But there is no rule that prohibits me from asking the defendant about conversations he’s having with family members and loved ones about his case after he has been charged.” The prosecutor also noted that there was “no evidence from which the jury can infer that the defendant ever had a conversation with a family member after September 18th.”
Defense counsel asked the court to declare a mistrial. “I don’t believe [the prosecutor’s] reference to an approximately 60-day time period this afternoon cures what happened yesterday, which covered a two-year period. [¶] [The prosecutor] has not established who went to see [defendant], under what circumstances he could have divulged information regarding the case. I just believe the entire line of inquiry is improper.” The court denied counsel’s motion for mistrial, stating, “Yesterday, when we had the side-bar conversation, we discussed this. I commented on the fact that [defendant] had waived his Miranda rights. He had willingly talked to the officers on a number of occasions. And now he’s testifying. [¶] After the side-bar conversation, I directed [the prosecutor] to rephrase his question, which he did. This afternoon you brought to my attention your concern about now being in a position where you may have to call a witness simply to testify about advising your client not to talk to anyone once you are appointed. [¶] So, based on your concerns, out of an abundance of caution, I directed [the prosecutor] to ask those questions so that it was real clear to the jury the time frame we were talking about.” The court further stated that the prosecutor indicated he was willing to enter into a stipulation about defendant being advised “not to discuss the case with anyone once an attorney is appointed, ” and that the court would consider a pinpoint instruction if there were a stipulation or if counsel wanted to call somebody from his office to testify “about that area.” Defense counsel did call an attorney from his office to testify about admonitions appointed counsel generally give to criminal defendants not to discuss their cases with anyone other than their counsel, but defense counsel apparently did not request an instruction on the issue.
Defendant now contends that the court’s “denial of a mistrial and failure to give any admonitions or instructions against the improper inferences raised by the prosecutor were error. The errors further denied [defendant] his rights to remain silent and to a fair trial free from impeachment with post-arrest silence.” Defendant further contends that, given the court’s rulings, asserting state or federal constitutional objections or requests for admonitions “was nothing short of futile.” “Nonetheless, if defense counsel were somehow required to lodge added objections or requests for admonitions/instructions to preserve the claim or blunt prejudice, the failure to do so denied [defendant] the effective assistance of counsel.”
The Attorney General contends that the court properly denied the motion for mistrial because any Doyle claim was without merit. “[A]lthough [defendant’s] versions of events changed as the police uncovered evidence against him, he never gave the police any version that was even remotely similar to his trial testimony. Accordingly, the prosecutor was justified in highlighting this incriminating evidence against [defendant]. Although the prosecutor at one point broadly noted that [defendant] ‘never’ told the police a version consistent with his trial testimony, the prosecutor later clarified his question by restricting the relevant time period to [defendant’s] prearrest statements. It is not reasonably likely the jury would have understood the prosecutor’s questioning in any way other than intended: to show that [defendant] lied to the police for two months before his arrest, and that none of his statements to the police or anyone else had been consistent with his trial testimony.” The Attorney General further contends that, even if Doyle error occurred, the error was harmless beyond a reasonable doubt.
“We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] ‘A motion for mistrial is directed to the sound discretion of the trial court. We have explained that “[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” ’ [Citations.]” (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In Doyle, supra, 426 U.S. at page 619, the United States Supreme Court held that a defendant’s post-arrest silence after receiving Miranda warnings cannot be used for impeachment. The two defendants in that case made no post-arrest statements to the police. When they testified at trial that they had been framed, the prosecutor asked why they had not told that story to the police when they were arrested. The trial court overruled defense objections to the prosecutor’s questions. (Id. at pp. 612-614.) The Supreme Court determined that this violated due process because Miranda warnings implicitly assure a suspect that his silence will not be used against him. (Id. at p. 618; see also Wainwright v. Greenfield (1986) 474 U.S. 284, 292.)
Whether Doyle error occurred must be considered in light of Greer v. Miller (1987) 483 U.S. 756 (Greer). The Greer court explained that a Doyle violation has two components, both of which must exist. The first element is that the prosecution makes use of a defendant’s post-arrest silence for impeachment purposes, either during questioning or by reference during closing argument. The second essential element is that the trial court permits that use. (Greer, supra, at pp. 761-764.) “The type of permission specified in Greer will usually take the form of overruling a defense objection, thus conveying to the jury the unmistakable impression that what the prosecution is doing is legitimate.” (People v. Evans (1994) 25 Cal.App.4th 358, 368.)
In Greer, the defense counsel immediately objected to the prosecutor’s question of the defendant why he did not tell his story when he was arrested. The court sustained the objection and instructed the jury to “ ‘ignore [the] question, for the time being, ’ ” but denied a motion for mistrial. (Greer, supra, 483 U.S. at p. 759.) The prosecutor did not pursue the issue further or mention it during closing argument, and the defense counsel did not request an instruction concerning the prosecutor’s question. The court did instruct the jury to “ ‘disregard questions... to which objections were sustained.’ ” (Ibid.) The Supreme Court held that because the trial judge explicitly sustained an objection to the only question that touched upon the defendant’s post-arrest silence, no further questioning or argument regarding that silence occurred, and the trial judge specifically advised the jury that it should disregard any questions to which an objection was sustained, no Doyle error occurred. (Greer, supra, at pp. 764-765.) The Supreme Court further held that the prosecutor’s attempt to violate Doyle by asking an improper question in the presence of the jury did not violate the defendant’s right to due process. (Greer, supra, 483 U.S. at pp. 765-766.)
In the case before us, we believe that no Doyle error occurred, as the trial court did not permit the prosecutor to use defendant’s post-arrest silence for impeachment purposes. The prosecutor had been questioning defendant about what he had told the police during all of the police interviews that had already been presented to the jury, and defendant said that he had denied any involvement in Tran’s death during those interviews. The prosecutor’s next question of defendant was whether he told the police his trial story. Although defense counsel did not object in front of the jury to the question, the court required the prosecutor to rephrase his question to clarify that this question, like the previous questions, also related to defendant’s pre-arrest, rather than post-arrest, statements. Accordingly, the original question, in context, was not improper under Doyle and did not violate the defendant’s right to due process. (Greer, supra, 483 U.S. at pp. 765-766.)
Even if we were to find that Doyle error occurred, we would find on the record before us that any error “was clearly harmless beyond a reasonable doubt.” (People v. Belmontes (1988) 45 Cal.3d 744, 787, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22, citing Greer, supra, 483 U.S. 756, and Chapman v. California (1967) 386 U.S. 18.) Under Chapman, the proper inquiry is: “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” (Neder v. United States (1999) 527 U.S. 1, 18.)
Here, defendant voluntarily spoke to officers several times before he was arrested. Thus, the prosecutor could properly question defendant about his statements during those interviews. During all those interviews, defendant denied any involvement in Tran’s death. There is no indication that defendant’s post-arrest silence was mentioned in the prosecutor’s argument. The evidence revealed that defendant went to Tran’s room seeking to obtain some marijuana. The next day, Tran was found dead apparently as a result of having been choked or suffocated. Her bedding was wet and her laptop and cell phone were missing. Defendant used Tran’s cell phone and he traded her laptop computer for methamphetamine, and he had scratches on his neck and back the day after Tran’s death. In addition, he could not be excluded as a possible contributor to the semen found on Tran, and to the fingernail and neck-swab samples taken from Tran. Before her death, Tran had been uncomfortable with undressing in front of, and attempting to have sexual relations with, her boyfriend. Yet defendant claimed after her death that Tran had had sexual relations with him twice, once for money, and that she did so willingly and with no apparent discomfort. Defendant testified that when Tran had threatened to blackmail him, he “blacked out” and accidently choked Tran to death. He told Pilar that somebody had washed Tran’s dead body and Dalit testified that defendant said that somebody had strangled or suffocated Tran. Defendant claimed that he found Tran’s cell phone and laptop computer after her death. On this record, we conclude beyond a reasonable doubt that any rational jury would have found defendant guilty as charged absent any Doyle error. Accordingly, any Doyle error was harmless and we cannot say that the trial court abused its discretion in denying defense counsel’s motion for a mistrial. (People v. Cox, supra, 30 Cal.4th at p. 953.)
Juror Peremptory Challenges
Defendant is Filipino and used a Tagalog interpreter at trial. During voir dire, the prosecutor exercised peremptory challenges to two prospective jurors who stated that they understood Tagalog, and the court overruled defendant’s objection to the challenges.
During voir dire, prospective Juror No. 3 stated that she was a registered nurse at Agnews Developmental Center, that her husband was an engineer, that she has three daughters, and that her brother-in-law was a police officer in Palo Alto. Although she does not drink alcohol, the fact that a witness did would not bias her against that person. She was “pretty much” fluent in Tagalog, so if a translation of a recorded Tagalog conversation differed from what she thought was being said, she would “have to say something is not right.” It would be difficult for her to accept the testimony in court if it was different from her impression of what was being said and she would “have to let the judge know.”
Prospective Juror No. 18 stated that he worked for a software company in Palo Alto, and his wife was a homemaker who teaches yoga part time. His friend’s father retired from the San Jose police department about eight years before the trial. His wife’s child was molested by family members in the Philippines, but nobody was prosecuted for it. Defendant looked like one of his cousins. His brother-in-law was a heavy methamphetamine user who was incarcerated for a couple of years. He believed his brother-in-law also used ecstasy; he was an addict who “probably tried everything.” Juror No. 18 also stated he can formulate sentences in Tagalog “after a few minutes” and he can understand most of what is said to him in Tagalog, but he does not speak it fluently and he would not question the translation of any testimony given in Tagalog.
Juror No. 3 was the fourth juror the prosecutor peremptorily challenged, and the seventh that was challenged overall. After seven additional prospective jurors were called and examined, Juror No. 18 (now sitting in seat No. 11) was the third juror the prosecutor peremptorily challenged and the sixth overall. Following a bench conference requested by defense counsel, and outside the presence of the remaining prospective jurors, defense counsel objected to the prosecutor’s challenges: “There have been, thus far, only two individuals I believe of Filipino descent who have been selected to come to the panel of 18; one being [Juror No. 3], and the other I believe [Juror No. 18]. [¶] With regard to [Juror No. 18], he said my client reminded him of his cousin, indicating to me perhaps [the juror] was Filipino. And [the juror] also indicated that he could understand Tagalog, and sometimes even speak the language. [¶] The law prohibits a systematic exclusion of jurors from a particular background. And at this time, I would like the court to inquire of [the prosecutor] as to his rationale for excluding these two individuals.”
The prosecutor first stated that he did not believe that Juror No. 18 was Filipino. However, when the court asked him “to demonstrate... permissible, nondiscriminat[ory] reasons [or] grounds for excluding the two jurors, ” the prosecutor stated: “With respect to [Juror No. 3], I would state that there were aspects of her background that I find very favorable in a juror. She’s married. She has children. She has a brother-in-law who’s a detective. Although, she’s had very little conversation with him about his work. So, those are aspects about her answers that I certainly found appealing. [¶] What I was troubled by one was her body language. I felt that she had a very defensive body language. I was uncomfortable with the fact that for all of the questions that were being posed by both sides, she, I don’t believe, one time raised her hand to volunteer any information to any of the questions that we were asking, to which I have to infer either she’s not interested in the proceedings, she’s not paying attention. It could be that she has nothing to offer. And I certainly accept that. But there were only a handful of jurors who said absolutely nothing to all of our questions, and she was one of them. [¶] But really what bothered me the most in her was when I asked her about Tagalog, and hearing a translation, and if she disagreed with the translation, how would she handle that. And she first said she would not follow the translator’s version. And when I pressed her on it, then she said, ‘okay, ’ she would talk to the court about it. But I wasn’t comfortable that even if your honor then told her: ‘You have to accept the testimony.’ And there may even be a conflict on that point. I may put on testimony as to what the translation of the conversation was in Tagalog, and it may be challenged by the defense. My own witness may not agree with the translation. [¶] So, this may very well become an issue in the case, because there was a critical discussion in the jail cell between the defendant and his girlfriend in Tagalog, where he was discussing D.N.A., cleaning up the body, questioning why was the victim’s body wet. I consider that to be very important testimony. And if there is a dispute over what was exactly said during that discussion, I am troubled by a juror who has expertise in that subject matter. Just as if we have a dispute over cause of death, and we have a juror who has a medical background and works as a doctor, she brings an expertise to a subject matter that may be in dispute. [¶] And that’s, ultimately, why I felt I had to excuse her, because I didn’t want to take the chance that she would tell the jurors what she thought was being said if that is different than what the witnesses said. And, of course, I’d have no way to challenge that statement.
“With respect to [Juror No. 18], I was definitely troubled by the fact that he thought the defendant looked like a cousin of his. He said it wouldn’t affect him. I understand that. But I’m not comfortable with a juror who is in any way relating to the defendant. And if he looks to the defendant for the next three weeks, and every time he looks at him he’s reminded of his cousin, that makes me uncomfortable. [¶] What also made me uncomfortable about [the juror] was when he talked about his brother-in-law being a meth user, having gone to jail, and also having used ecstasy. [¶] I believe the defense is going to make a significant issue of the fact that this woman who was brutally murdered by the defendant had experimented with ecstasy and may have experimented with methamphetamine. And the fact that the juror has a family member who has done the same thing, and has used methamphetamine, has used ecstasy, and has gone to jail because of that, I am concerned about how anyone in that situation is going to view the victim, and if that person is going to view the victim in a negative light.”
The court ruled, “Based on the questioning of the jurors, based on comments of counsel, the court’s going to find that it has not been proven that race was improperly used in excluding those two jurors. So, the court’s going to overrule [defense counsel’s] objection.”
On appeal, defendant contends that the prosecutor “did not adequately rebut the inference of group bias as to either juror.” He argues that the prosecutor’s stated ground for excusing Juror No. 3, that it she might not accept the Tagalog translation of testimony, was “a flatly unsupported reason... suggestive of pretext.” As to Juror No. 18, defendant argues that the prosecutor’s “questions and assumption of sympathy based on appearance (indeed, Filipino appearance) are themselves suggestive of stereotyping and group bias, ” and the juror “indicated no bias against drug users in response to a group query on the issue.”
The Attorney General contends that the trial court’s denial of defense counsel’s motion was “supported by the evidence.” The Attorney General argues that the prosecutor could reasonably challenge the jurors for the reasons stated by the prosecutor, and that defense counsel did not dispute below that it might be “problematic” to have jurors inject their own knowledge of Tagalog into deliberations or to have a juror sympathetic to the defense because he had a cousin who resembled defendant.
“Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. [Citations.]” (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix), citing Batson v. Kentucky (1986) 476 U.S. 79 (Batson), and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) When the defense raises a challenge to the prosecutor’s conduct, “[t]he Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from the opponent of the strike. The three-step procedure also applies to state constitutional claims. [Citations.]” (Lenix, supra, 44 Cal.4th at pp. 612-613.)
“A prosecutor asked to explain his conduct must provide a ‘ “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ [Citation.] ‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection.” (Lenix, supra, 44 Cal.4th at p. 613.)
“At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire.” (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.) “ ‘[R]ace-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.’ ” (Id. at p. 614, quoting Snyder v. Louisiana (2008) 552 U.S. 472, 477 (Snyder).)
“Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “ ‘with great restraint.’ ” [Citation.]’ ” (Lenix, supra, 44 Cal.4th at p. 613.) “ ‘[D]eterminations of credibility and demeanor lie “ ‘peculiarly within a trial judge’s province, ’ ” [citations], and... “in the absence of exceptional circumstances, we... defer to [the trial court.]” [Citation.]’ (Snyder, supra, 552 U.S. at p. 477.)” (Lenix, supra, at p. 614.) “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.]’ [Citation.]” (Id. at pp. 613-614, fn. omitted.) “ ‘[D]eference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike.’ (Snyder, supra, 552 U.S. at p. 479.)” (Lenix, supra, 44 Cal.4th at p. 619.)
In this case, the prosecutor stated that in striking prospective Juror No. 3, he relied on her defensive body language, her possible inattentiveness, and her difficulty in accepting a translation of Tagalog testimony if she did not agree with it. The prosecutor stated that in striking prospective Juror No. 18, he relied on the juror’s statement that defendant reminded him of his cousin, which might cause the juror to be sympathetic to defendant, while at the same time the juror’s family member’s drug use history might cause the juror to view the victim in a bad light. All of these are valid race-neutral reasons, and some of them relied on the prospective juror’s demeanor. In finding that the prosecutor’s stated reasons were credible, the trial court stated that it relied on its contemporaneous observations of the voir dire as well as both counsels’ arguments. (Lenix, supra, 44 Cal.4th at pp. 613-614.) As substantial evidence in the record supports the court’s findings (ibid.), on this record, we must defer to the trial court’s determination that the prosecutor had valid nondiscriminatory justifications for its peremptory challenges of prospective Jurors Nos. 3 and 18. (Ibid.)
Instructions on Rape and Voluntary Intoxication
Defendant contends that the court erred in instructing the jury that rape is a general intent crime, and in excluding intent to rape from the instruction on voluntary intoxication. “Although intent to rape was required for rape felony murder and the special circumstance, the jury was told this was merely a general intent, and that intoxication short of unconsciousness only applied to the other crimes designated as specific intent crimes, with rape excluded. These are affirmative errors in instructing general intent felony murder predicate crimes are not subject to an intoxication defense when they were.” Defendant further contends that, “[i]f somehow more specific instruction requests or state or federal objections were required, counsel’s failure to make them deprived [defendant] of the effective assistance of counsel.”
The Attorney General contends that the instructions given in this case “were virtually indistinguishable from those found beneficial to the defendant in [People v.] Osband [(1996) 13 Cal.4th 622 (Osband)].” “[T]he instructions for the felony-murder-rape special circumstance, which the jury found true, also required a finding that [defendant] specifically intended to commit rape.” The Attorney General further contends that defendant was not entitled to the intoxication instruction he claims here as the evidence presented did not support it.
“Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.” (§ 22, subd. (a).) “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether defendant premeditated, deliberated, or harbored express malice aforethought.” (Id. at subd. (b), italics added.)
There is no sua sponte duty for the trial court to instruct the jury on voluntary intoxication; “an instruction on voluntary intoxication, explaining how evidence of a defendant’s voluntary intoxication affects the determination whether defendant had the mental states required for the offenses charged, is a form of pinpoint instruction that the trial court is not required to give in the absence of a request.” (People v. Bolden (2002) 29 Cal.4th 515, 559; citing People v. Saille (1991) 54 Cal.3d 1103, 1120.) “This is so because the defendant’s evidence of intoxication can no longer be proffered as a defense to a crime but rather is proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt. In such a case the defendant is attempting to relate his evidence of intoxication to an element of the crime. Accordingly, he may seek a ‘pinpoint’ instruction that must be requested by him [citation], but such a pinpoint instruction does not involve a ‘general principle of law’ as that term is used in cases that have imposed a sua sponte duty of instruction on the trial court.” (People v. Saille, supra, at p. 1120.)
Even when a defendant requests an instruction on voluntary intoxication, he or she is entitled to such an instruction “only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of criminal intent.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 677.) A defendant charged with murder who raises the issue of voluntary intoxication is entitled to an instruction on the lesser offense of involuntary manslaughter if there is evidence that the voluntary intoxication rendered the defendant unconscious. (People v. Abilez (2007) 41 Cal.4th 472, 515-516.)
In Osband, the jury was instructed that rape was a general intent crime, and that felony murder as a result of the commission or attempted commission of rape required a finding that the perpetrator had “ ‘the specific intent to commit such crime.’ ” (Osband, supra, 13 Cal.4th at p. 685.) On appeal, the defendant contended in part that the instructions were contradictory and confusing. (Ibid.) Our Supreme Court disagreed. “Rape is a general intent crime. [Citation.] As the jury was informed in the instruction defining rape, performing a proscribed act was enough to violate the law. To find that felony murder occurred, however, the jury was required also to find ‘specific intent.’ ” (Id. at pp. 685-686.)
In this case, the trial court correctly instructed the jury pursuant to CALCRIM Nos. 252 and 540A that rape and involuntary manslaughter are general intent crimes but that murder and the special circumstance of murder committed while engaged in the commission or attempted commission of rape are specific intent crimes. (See Osband, supra, 13 Cal.4th at p. 685-686). The court also correctly instructed the jury pursuant to CALCRIM No. 625 that any evidence of defendant’s voluntary intoxication could be considered only in deciding whether defendant acted with an intent to kill, with deliberation and meditation, or was unconscious. (§ 22, subd. (b); People v. Abilez, supra, 41 Cal.4th at pp. 515-516.) As the court did not err in instructing the jury regarding rape and voluntary intoxication, defendant cannot show that he was prejudiced by counsel’s failure to request that the jury be instructed differently.
The court instructed the jury: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation, or the defendant was unconscious when he acted.... [¶] You may not consider evidence of voluntary intoxication for any other purpose.”
Defendant separately contends that CALCRIM No. 625 is prejudicially inadequate because it instructs the jury that it “may” consider the evidence of voluntary intoxication, “if any, ” in determining whether the defendant entertained premeditation or intent to kill or was unconscious. “In order for the defendant to receive a fair trial, the intoxication instruction needs to apprise jurors they ‘must’... consider all the evidence regarding intoxication.” “The incorrect language lightens the prosecution’s burden of proving every element of the offense beyond a reasonable doubt, thereby depriving [him] of due process and a fair trial.”
The Attorney General contends that defendant was not entitled to any instructions on intoxication and that, even if he was, the instruction as given did not lighten the prosecution’s burden of proof.
“ ‘ “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” ’ [Citations.] If the charge as a whole is ambiguous, the question is whether there is a ‘ “reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ ” (Middleton v. McNeil (2004) 541 U.S. 433, 437; Estelle v. McGuire (1991) 502 U.S. 62, 72.)
We find that the use of “may” in CALCRIM No. 625 did not reasonably suggest that the jurors were free to decide whether or not they wanted to consider the evidence of voluntary intoxication. Other instructions told the jury that it was to consider all of the evidence. Pursuant to CALCRIM No. 200, the court instructed the jury that “[y]ou must decide what the facts are. It is up to all of you, and you alone to decide what happened, based only on the evidence that has been present to you in this trial.” Pursuant to CALCRIM No. 220, the court instructed: “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial.” The use of “may” together with “only” in CALCRIM No. 625 merely conveyed a restricted duty to consider the intoxication evidence; the jurors were told that they were permitted to consider the evidence only for the specific purpose of deciding whether defendant possessed the requisite mental state, and for no other purpose. Accordingly, we find no reasonable likelihood that the jurors misunderstood the instruction to permit them to ignore the evidence of voluntary intoxication. (Middleton v. McNeil, supra, 541 U.S. at p. 437; Estelle v. McGuire, supra, 502 U.S. at p. 72.)
The Felony-Murder Special Circumstance
The court instructed the jury regarding the special circumstance of murder committed while engaged in the commission of rape using CALCRIM No. 730. The court instructed in part: “To prove that this special circumstance is true, the People must prove that: [¶] 1. The defendant committed or attempted to commit rape; [¶] 2. The defendant intended to commit rape; [¶] 3. The defendant did an act that caused the death of another person; [¶] And [¶] 4. The act causing the death and the rape or attempted rape were part of one continuous transaction. [¶].... [¶] In addition, in order for this special circumstance to be true, the People must prove that the defendant intended to commit rape independent of the killing. If you find that the defendant only intended to commit murder and the commission of rape was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.”
Defendant contends that the instruction did not “appear to properly convey the non-incidental requirement; instead, it convey[ed] misleading technical intent requirements and exclude[d] the core non-incidental element.” He argues that the instruction needed to explain that the special circumstance was not established if the underlying felony was merely incidental to the commission of the murder. “[W]hile technical concurrent intent to commit a felony is enough for felony murder, it is not necessarily enough for the special circumstance.” “Failure to convey this requirement is prejudicial federal constitutional error.”
The Attorney General contends that CALCRIM No. 730 correctly explained that the felony-murder special circumstance required a finding that the underlying felony was independent of the killing. “Simply stated, the wording of CALCRIM No. 730 is perfectly consistent with the requirements of the law.”
“ ‘[T]o prove a felony-murder special-circumstance allegation, the prosecution must show that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder.’ [Citations.]” (People v. Horning (2004) 34 Cal.4th 871, 907.) “ ‘In other words, if the felony is merely incidental to achieving the murder-the murder being the defendant’s primary purpose-then the special circumstance is not present, but if the defendant has an “independent felonious purpose” (such as burglary or robbery [or rape]) and commits the murder to advance that independent purpose, the special circumstance is present.’ [Citations.]” (Id. at p. 908.) “This does not equate... with a converse rule that if the defendant has an independent felonious purpose, the killing necessarily must further the goal of committing the underlying crime if the special circumstance is to apply.” (People v. Rundle (2008) 43 Cal.4th 76, 156, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; see also People v. Berryman (1993) 6 Cal.4th 1048, 1089-1090, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [“the felony-murder special circumstance does not require a strict ‘causal’ or ‘temporal’ relationship between the ‘felony’ and the ‘murder’ ” and “extends even to the situation in which the ‘murder was committed while the defendant was engaged in... the immediate flight after committing’ the felony”].) The felony-murder special-circumstance finding must be “based upon proof that the defendant intended to commit the underlying felony separately from forming an intent to kill the victim.” (People v. Rundle, supra, 43 Cal.4th at p. 156.)
Our Supreme Court has never suggested “that any precise language was required to explain [this] concept to the jury”; “[s]everal ways exists to explain the requirement.” (Horning, supra, 34 Cal.4th at p. 908.) As given, CALCRIM No. 730 explicitly stated that, beyond finding defendant had committed felony-murder, “in order for this special circumstance to be true, the People must prove that the defendant intended to commit [rape] independent of the killing.” (Italics added.) The instruction further informed the jury that, “[i]f you find that the defendant only intended to commit murder and the commission of [rape] was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.” (Italics added.) We believe that this language in the instruction adequately ensured that the jury based its felony-murder special circumstance finding upon proof that defendant intended to commit the underlying felony-rape-separately from forming an intent to kill the victim. (People v. Rundle, supra, 43 Cal.4th at p. 156.) Therefore, we find that the instruction adequately conveyed to the jury the distinction between special-circumstance felony murder and non-special-circumstance felony murder. No error has been shown.
Defendant separately contends that the felony-murder special circumstance was unconstitutionally applied in his case because it did not “genuinely narrow the class of persons subject to [it] as compared to other murder defendants.” “[T]he vague and indiscriminate dual use of the same facts to support first-degree murder and an LWOP term was not just a violation of state law premised on Eighth Amendment jurisprudence, but a federal constitutional deprivation of due process and equal protection based on vagueness and arbitrary application, a violation of cruel and unusual punishment guarantees, and an arbitrary deprivation of [defendant’s] state liberty interest in an informed jury determination on the issue.” Defendant recognizes that our Supreme Court has rejected similar claims (see e.g. People v. Pollock (2004) 32 Cal.4th 1153 (Pollock)), but raises the issue in order to exhaust his state remedies.
In Pollock, the court stated: “This court has consistently rejected the claim that the statutory special circumstances, including the felony-murder special circumstance, do not adequately narrow the class of persons subject to the death penalty. (People v. Gurule [(2002)] 28 Cal.4th [557, ] 663; People v. Kraft [(2000)] 23 Cal.4th [978, ] 1078; People v. Frye [(1998)] 18 Cal.4th [894, ] 1028-1029; People v. Musselwhite (1998) 17 Cal.4th 1216, 1265).” (Pollock, supra, 32 Cal.4th at p. 1195.) We are bound by our Supreme Court’s holdings. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we must reject defendant’s claim.
Cumulative Error
Defendant contends that the cumulative effect of the errors he claims deprived him of due process and a fair trial, and requires reversal of the judgment. Our Supreme Court has acknowledged that “a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill, supra, 17 Cal.4th at p. 844.) Based on our conclusion that no claimed trial error occurred in this case, we must reject defendant’s cumulative error argument.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., duffy, J.