Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Jack W. Morgan, Judge. Affirmed. Los Angeles County Super. Ct. No. TA 081881
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Defendant Calvin Dotson timely appealed from his convictions for first degree murder (count one) and conspiracy to commit murder (count two). The jury found personal firearm use and gang enhancements to be true. The court imposed 25 years to life on count one, plus 25 years to life for the personal use enhancement, and stayed imposition of punishment on count two pursuant to Penal Code section 654. The court recommended defendant, who was almost 15 at the time of the murder, be sent to the California Youth Authority. Among other things, defendant contends his statement to police was involuntary and should have been suppressed and the court made various errors relating to its giving aiding and abetting instructions during deliberations. We affirm.
Unless otherwise noted, all statutory references are to the Penal Code.
Where necessary, appellant’s claims he was denied the effective assistance of counsel are addressed within the discussion on the merits of the relevant issues.
FACTUAL BACKGROUND
I. Prosecution Case
On February 2, 2005, Los Angeles Police Department Officer Kurt Leiss discovered Bryan Williams’s body on the sidewalk on East 120th Street in Los Angeles.
Williams died from a gunshot wound to the chest. Pedro Ortiz, the deputy medical examiner who performed the forensic autopsy, removed two fragments of a projectile from Williams’s chest muscles.
Rafael Garcia, a criminalist assigned to the firearm analysis unit, examined the fragments removed from Williams’s chest and found they were consistent with a .30 caliber rifle bullet.
In February 2005, Lanale Rogers lived near the area where Williams’s body was found. Rogers knew Williams as “Bear” and had spoken with Williams after Williams had moved a couple of months before into the apartment complex where Rogers worked.
Rogers had been convicted of felony and petty theft charges in 2004 and 1995 respectively.
On the evening of February 2, Rogers was around when Williams was shot. Rogers was just leaving the manager’s apartment when he saw people, heard one shot, turned to look, and saw appellant and another person running in the street towards the park. No one else was running from the area. The two people were running very fast. There was some light at that time. Rogers was about 45 feet from appellant when he saw appellant running. Rogers did not see a car. The incident took place in a minute.
Rogers knew of appellant before that night; he had seen appellant going back and forth and knew appellant’s nickname was B-dog. Rogers had seen appellant with members of the Miller Gangster Bloods gang (Millers).
About two hours before the shooting, Rogers was at the liquor store on the corner of East 120th Street and Central. In the parking lot, appellant and another youth approached Rogers and asked for ammunition. Appellant’s companion asked for .32 caliber ammunition. Appellant then asked for .30-.30 ammunition. Appellant had a weapon partially hidden; Rogers saw the handle, grip and butt end. The weapon looked more like a rifle than a handgun. Rogers was shown a photo of different weapons and identified a M-1 carbine as the weapon most similar to the one appellant had.
Rogers did not come forward right away to report to authorities what he had witnessed because he did not want to be involved and did not want to place his family in jeopardy. Rogers had lived in the area for seven years and seen other violence. When police spoke to Rogers about another shooting he had seen, he asked if the police could move his family. Rogers knew what could happen and had four children who could get accidentally hurt. Rogers wanted out of the neighborhood as there were too many shootings and killings there.
Police showed Rogers a group of photos; he selected appellant’s photo as the person involved in shooting Williams. Rogers also identified appellant as the person who had asked him for ammunition at the liquor store on the day of the shooting.
After Rogers testified at the preliminary hearing, he was approached by two people in front of his apartment building; they said they heard he had testified, and said, “‘snitches doesn’t last long.’” Rogers considered that a threat. Rogers knew appellant was a gang member from either Athens Park or Millers.
Ernest Gillum knew appellant as B-dog or Baby B-dog. Gillum was a member of the Millers gang. Gillum did not want to testify and was concerned for his own safety as testifying violated the street code. At the end of October 2005, police questioned Gillum about a shooting near his house in February.
On the day of the shooting, Gillum spoke with appellant, who showed up at Gillum’s back window. Gillum let appellant, who was out of breath, inside. Appellant sat with Gillum, and they heard helicopters. Appellant asked Gillum if he had heard a shot, and Gillum said he had not. Appellant said he was responsible for the shooting that night. Appellant asked Gillum if he knew Bear, and then said, “‘I smoked him.’” Appellant used the term “crab,” which is a derogatory term for Crips gang members. Appellant said he ran up on Bear, asked where he was from, and shot him. Appellant said Bear asked for his momma and acted liked a little bitch. Gillum saw no weapon, and appellant said nothing about hiding a weapon in Gillum’s house. Appellant never mentioned the shooting again.
Gillum told police he did not believe appellant shot Bear at the time and he still did not believe it; others said they were responsible for the shooting. When police questioned Gillum, he said appellant showed him some kind of rifle. At trial, Gillum testified that statement was not true.
Detective Dan Myers questioned appellant on October 27, 2005. At the time, appellant was in custody on another matter. Myers had taken classes on interrogation techniques and how to elicit a truthful statement; his purpose in interviewing appellant was to understand why Williams had been killed. The interrogation took part in two sessions, was recorded, and the recording was played for the jury. At the end of the first session, appellant admitted he was present at the shooting. At the start of the second session, appellant said, “I pulled the trigger.” Appellant then described the events surrounding the killing. In Myers’s experience, a .30-.30 was rarely encountered in shooting investigations.
The jury was also provided with a written transcript of the interrogation.
The interrogation is described in detail below.
Douglas Jensen, a sergeant with the Los Angeles Sheriff’s Department, testified as a gang expert about gangs in the area of the crime and how they operated. Jensen knew appellant and opined appellant was a member of the Athens Park Bloods. Jensen testified about the crimes committed by the Athens Park Bloods. In Jensen’s opinion, a shooting like this one was done at the direction of, and for the benefit of, the gang. Jensen also opined that appellant shot Williams as an initiation.
II. Defense Evidence
Malcolm Richards, a private investigator, was present when defense counsel spoke to Rogers on May 24, 2006, at the scene of the shooting. Rogers said he witnessed some of the events relating to the shooting; Rogers said he had just left the manager’s apartment and was walking toward East 120th Street when he heard a shot, looked to the left, and saw two men running across the street. Rogers said he was by some bushes; Richards measured the distance from the bushes to where the shooting occurred; it was about 247.8 feet.
III. Appellant’s Statements to the Police
The details of the interrogation are set out in mostly chronological order; appellant used vague terms during the interrogation; at times, “they” meant his homies.
A. Miranda Waiver
First Detectives Dan Myers and Ben Perez asked if appellant had had his rights read to him in the past, and appellant said he had. Myers said they had to do it again. Perez told appellant of his right to remain silent, that anything he said could be used against him, that appellant had the right to the presence of an attorney during the interview, and that an attorney would be provided free of charge if he lacked funds. Appellant responded, “Yes, sir,” four times, to the repeated question of whether he understood each right.
B. The Interrogation
1. The First Session
When the detectives initially questioned appellant, they did not tell him they suspected him of committing murder; Myers said, “we wanted to talk to you about an incident that occurred earlier this year, okay?” The detectives then discussed the killing of appellant’s uncle. Appellant admitted association with the Athens Park Bloods gang, which was affiliated with the Millers. Appellant’s monikers were Balvin and Baby B Dog. When appellant appeared nervous, Myers said:
Okay, Listen, why don’t you relax, okay? I want you to make sure that you are honest. Cause that’s really the thing that’s going to help you is your honesty.
When appellant asked what the detectives wanted to know, Myers responded, “Well we are going to tell you, we are going to talk a little bit about that. But I just wanted to entertain a few things here.” The detectives then had appellant view some photos and told appellant they would talk about everything and answer any questions he had.
Appellant explained his best friend from Athens Park Bloods had been killed in August. When appellant again showed signs of nervousness, Myers instructed him:
Okay. Relax, okay. You are really tensed up. You are starting to shake. I just want to get a level of cooperation with you. You know, a level of character who you are as a person is what we are trying to understand. So some of these questions we know the answer to we wanted to see where you are coming from, just relax, okay? Your jaw is trembling, I understand. So Chucky B. was your good friend?
The detectives then discussed the murder of appellant’s friend Chucky B. When the detectives came to the reason for interrogating appellant, they did not inform him they suspected him of murder even though he was the “prime” suspect as Myers later testified. Rather, Myers said:
Okay. Well, we are not really here to talk about Chucky B., okay? What I want to talk about is a shooting that occurred on February the 2d of this year.
When appellant said he did not know what the detectives were talking about, they told him it was a shooting on 120th Street. Appellant acknowledged he “heard about” it. The Millers were angry at appellant because they wanted him on their side, but he did not join them so the Millers tried to discipline him; appellant tried to fight them, and his face was “messed up.” The detectives and appellant discussed how appellant heard others blamed him for the shooting and how others in the neighborhood claimed responsibility for the shooting. When Detective Myers told appellant that Popo, an 11-year-old, tried to take credit for the shooting, appellant asked why Popo would do that when Popo was not a gang member; it was Popo’s brother who was a gang member from Millers. The following exchange took place:
DETECTIVE MYERS: This is what this is about. You need to stop shaking. You are nervous and I understand.
[Appellant]: I ain’t trying to get in trouble for this, sir.
DETECTIVE MYERS: Well, that’s what we are trying to make sure. We want to make sure -- a lot of times something happens and it’s bad and we can’t change it, but what you can do is get in back on the right track. And we can do that by one being honest and say, hey listen I’m sure grandmother told you, for every action for everything that happens there’s a reaction, okay.
And sometimes things happen that we didn’t mean for them to happen, but they just happen. And the only way we can get back on the right track with that is to be honest and say, okay, this is what was meant to happen and that was it.
Myers told appellant police had talked to appellant’s family. Appellant admitted that he knew the boy who had been shot and that he was called Bear. Appellant was told to keep his mouth shut about the shooting. Little No Good told appellant’s family that appellant did the shooting; appellant fought Little No Good over it.
Later in the interrogation, Meyers said:
Before we go on that road, because what that’s going to do it’s going to make you seem like you are not willing to say something bad happened. I’m responsible in some way and here are the reasons because that’s what’s going to make -- that’s going to determine how this thing goes is your level of honesty. If you were there you need to tell us. Were you there when this happened?
Appellant denied being present at the shooting and said he was at his house. Appellant learned about the shooting when Little No Good called him. When appellant’s grandmother heard the word “blood,” she took appellant’s phone away and broke it. Later, on the streets, when they tried to blame appellant, he fought them.
Appellant had been in the gang only 10 or 11 months; when appellant denied involvement in the shooting or trying to make a name for himself, Myers said:
I’m really hoping that we don’t really need to talk too much about this with you. We are hoping that you are willing to say, you know what, look something bad happened and this is what happened. You understand.
At this point in the interrogation, appellant admitted he had been present at the shooting. Then Myers stated:
Okay. What happened? I know it’s hard, Calvin. Who were you with? I know it’s not easy. But you have to try to make this thing right and not make other problems, okay?
Then there was a break.
2. Second Session
When the session resumed, an officer indicated someone had left the room for about two minutes. When the officer asked appellant to tell the officer’s partner what appellant had just told the officer, appellant said, “ I pulled the trigger.” Appellant did it because they learned who appellant’s uncle was and threatened appellant if he did not do it. Appellant would have been killed if he had not pulled the trigger. Joker was the one who was going to kill appellant. Joker was dead by the time of the interrogation. Appellant believed Bounty Hunters killed Joker and his uncle. Appellant tried to learn who in the gang had killed his uncle, which angered the gang. Appellant was not sure who killed his uncle, but he suspected Joker and confronted him. As a result, appellant was disciplined and beaten by the Athens Park Bloods.
Although the transcript says appellant used the term “Bounty Hunter,” the tape indicates he said “Bounty Hunters.”
Appellant bought a blue Honda from the Millers, but did not know the car was stolen; that was why he was in custody. Appellant was caught with the stolen car the day after he bought it.
Appellant said he and RB were together when appellant shot Bear. They drove in a China van. After the shooting, a Mexican took the gun from appellant; it was a .30-.30 rifle. Afterwards at the park, appellant got out of the car and sat on the curb. When appellant left, the car was gone. Appellant did not have to get bullets for the gun because it already had bullets.
RB drove the van to the scene. Appellant was mad over his uncle. Appellant told the gang he had to fight them all because his uncle was his family. Appellant spoke with his family, and they planned to move. Appellant was being pressured by Joker. Joker told appellant he needed to kill or be killed. Joker followed appellant and RB in a separate car to watch. Joker told appellant to shoot, but appellant froze. Joker said if appellant did not shoot he knew what would happen.
Appellant saw the target walking towards him. RB drove slowly. Appellant turned his face, pulled the trigger and hit someone; he shot from the car. Appellant did not get out of the car. Appellant did not speak to the target and did not ask the target where he was from. Appellant was in the backseat behind the driver. Appellant did not know if RB said anything to the target. Appellant shot from the window and shot only once. Appellant received instructions over a “chirp.”
Appellant never told anyone about the shooting. Others knew about it because others were behind appellant and RB in another car. After the shooting, appellant went to the apartments over on San Pedro. Appellant did not know what happened to the van. Appellant said he did not take the gun to anyone’s house.
After the detectives obtained admissions from appellant, an officer said:
Calvin, let me ask you one more time. And I want to say that I think you stepping up like this speaks in volumes of who you are. We can go into about a story about how you spent the first 15 years of your life and it will probably be a very pleasant story, but I want to make sure that -- you know, it’s like you telling 90 percent of what the truth is and if you leave just 10 percent out or even less it kind of taints or makes the 90 percent that you told us that’s truth, it leaves some people well, is that really -- do you know want I’m saying [sic] to say. [¶] Did you go somewhere with that gun that night? Did you take that gun anywhere?
Appellant responded, “No, sir.”
Appellant was unable to identify a gun similar to the one he used; he estimated the gun was about four feet long. Appellant knew it was a .30-.30 because he was told it was. They had shown appellant how to use the gun. Appellant denied going to the liquor store or to Gillum’s house that day.
D. Relevant Court Proceedings
Defense counsel moved to suppress appellant’s statement to police on the basis appellant’s will had been overborne, noting he was 15 years old, in custody and there were many references to his shaking and trembling during the interview. Counsel noted the interview was about 40 minutes long (it was 47 minutes).
On appeal, appellant adds race as a factor without any explanation of why it was a factor.
At the Evidence Code section 402 hearing, Myers testified about advising appellant of his Miranda rights and the details of the interview. Neither Myers nor his partner threatened appellant, made any promises to him, or were in any way coercive in attempting to get him to talk. The prosecutor played the first 30 or 40 seconds of the tape, and Myers testified the tone of voice he used there was the same tone he used throughout the interview. Myers noted appellant was nervous throughout the interview and appeared angry and was trembling, but he also noted appellant appeared articulate, called him “sir” a number of times and was respectful.
The court listened to the tape and noted the tone remained the same and there was nothing coercive or intimidating in the officers’ voices. (See People v. Vasila (1995) 38 Cal.App.4th 865, 875.)
Appellant testified he remembered being read his rights, but did not understand them, and he was afraid during the interview. Appellant felt the detectives made it sound as if they would help him if he told them what had happened. Appellant said he was the shooter because he thought that was what the detectives wanted him to say. At the time of the interview, appellant did not know what a lawyer was though he had seen television shows with lawyers in them. The only reason he said he understood his rights was in “reaction.” The reason appellant said he was involved was because the detectives would not leave him alone.
Appellant had been arrested on at least three prior occasions. When asked if he had been arrested for driving a vehicle without the owner’s permission, appellant explained, it was “a D.A. reject.” Police had talked to appellant during the carjacking arrest and read him his Miranda rights. Appellant talked to the officers and denied committing the carjacking.
Appellant admitted that in the instant case, he told the detectives he understood his Miranda rights; appellant never told the officers he did not want to talk to them or that he wanted them to leave. Appellant testified they “should have seen” he did not want to talk. At no point did appellant stop answering questions.
Appellant made up the admissions about killing Williams so the detectives would leave him alone. Appellant admitted the detective’s tone on the recording that was played was the tone the detective used during the interview. Appellant was represented by a public defender on the carjacking, but he did not know a public defender was a lawyer.
The issue of the admissibility of appellant’s statement was tabled; later, after the noon recess, he formally moved to exclude the statement on the grounds it was involuntary, his will was overborne, and he did not understand his Miranda rights when he waived them.
The court stated it had been waiting for appellant to explain what kind of benefits he would get by admitting he had murdered someone or how such admission would free him from the police, but the court never heard it. Defense counsel argued appellant was extremely unsophisticated and immature and did not have the same thought processes as an adult. The court noted appellant had a criminal history, knew what a D.A. filing and reject were and had Miranda explained before. It was not reasonable to suggest appellant, who had been arrested three times and been represented at a prior hearing, did not know what his Miranda rights meant or what an attorney was.
The court opined the detective used an interrogation technique which encouraged appellant to tell the truth and did not use a menacing tone or do anything else overbearing. The court found appellant had provided a level of detail and information only someone involved in the crime could have know. Though the court recognized it was possible appellant could have heard the information from a third person, it stated it was not reasonable to suggest appellant would think he could walk out of the station by admitting he killed Williams. The court denied the motion to suppress finding the statement was voluntary, but stated the jury was entitled to make a finding on the truth of appellant’s statement and appellant could cross-examine the officers and present argument on the statement’s reliability and veracity.
The court gave CALCRIM No. 358 on viewing a defendant’s oral statement with caution.
DISCUSSION
I. Appellant’s statement to police and his waiver of his Miranda rights were voluntary.
A. Police Statement
Appellant contends the court erred when it denied his motion to suppress his statements to police as the statements were the direct result of an implied promise of leniency by the interrogating officers and were involuntarily obtained in violation of the due process clauses of the California and United States Constitutions. (See People v. Benson (1990) 52 Cal.3d 754, 778.) Subsumed within that contention is his argument that his waiver of his Miranda rights was also not voluntary.
Although the People submit that appellant forfeited his right to raise the issue of whether he lacked the capacity to waive his Miranda rights, at the hearing on the voluntariness of his statement to the police, appellant testified he did not understand his Miranda rights and his counsel argued appellant did not have the thought processes of an adult. Accordingly, we will address the issue on its merits.
“A defendant’s admission or confession challenged as involuntary may not be introduced into evidence at trial unless the prosecution proves by a preponderance of the evidence that it was voluntary. A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. On appeal, we review independently the trial court’s determination on the ultimate legal issue of voluntariness. But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including ‘“the characteristics of the accused and the details of the interrogation,”’ are subject to review under the deferential substantial evidence standard.” (Citations omitted.) (People v. Williams (1997) 16 Cal.4th 635, 659-660.)
The standard is the same for the issue of whether the waiver of Miranda rights was voluntary. (People v. Esqueda (1993) 17 Cal.App.4th 1450, 1483, fn. 19.)
“‘With respect to the conflicting testimony, the court must “accept the version of events which is most favorable to the People, to the extent that it is supported by the record.”’” (People v. Thompson (1990) 50 Cal.3d 134, 166.) Of course, the “burden to establish whether accused’s statements are voluntary is greater if the accused is juvenile rather than an adult.” (People v. Lewis (2001) 26 Cal.4th 334, 383.)
A confession violates due process guarantees when it was extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influence. (People v. Benson, supra, 52 Cal.3d at p. 778.) Moreover, “‘where 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.’” (Emphasis added.) (People v. Williams, supra, 16 Cal.4th at p. 660.)
In People v. Esqueda, supra, 17 Cal.App.4th at pages 1483-1484, the court set out basic principles relating to the issue of the voluntariness of statements:
“The question raised by the due process clause in cases of claimed psychological coercion, such as this one, ‘is whether the influences brought to bear upon the accused were “such as to overbear [the defendant’s] will to resist and bring about [statements or admissions] not freely self-determined.”’
“We note that the “‘mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent [statement or admission] involuntary.” In terms of assessing inducements assertedly offered to a suspect, “‘[w]hen the benefit pointed out by the police . . . is merely that which flows naturally from a truthful and honest course of conduct,’ the subsequent statement will not be considered involuntarily made.’”
“Moreover, ‘[w]hile the use of deception or communication of false information to a suspect does not alone render a resulting statement involuntary, such deception is a factor which weighs against a finding of voluntariness.’
“In determining whether admissions or statements were voluntary or coerced, we look to the totality of the circumstances, examining both the characteristics of the accused and the details of the interrogation.” (Citations omitted.)
“Characteristics of the accused which may be examined include the accused’s age, sophistication, prior experience with the criminal justice system, and emotional state.” (In re Shawn D. (1993) 20 Cal.App.4th 200, 209; see also People v. Williams, supra, 16 Cal.4th at p. 660 [other characteristics include the length of the interrogation, its location, its continuity as well as the defendant’s maturity, education, physical condition and mental health.]; People v. Lewis, supra, 26 Cal.4th at p. 383 [circumstances include “the minor’s age, intelligence, education, experience, and capacity to understand the meaning and consequences of the given statement.”].)
Appellant posits his will was overborne because at the time of his interrogation, he was 15 years old, had a ninth grade education, sought to please his interrogators, and the detectives used an interrogation technique in which they implied he would receive leniency if he cooperated and harsher treatment if he did not. Appellant describes the detectives as coaxing appellant and suggesting “some nebulous benefit” would come if appellant cooperated. In our opinion, it would be difficult to clearly imply a nebulous benefit, especially from simply urging someone to tell the truth.
Even though the detectives essentially exhorted appellant to tell the truth at various times during the interrogation, they made no promises or threats. Although appellant was in custody on another matter at the time, the interview was short lasting only about 47 minutes. During the first session, appellant initially denied knowing about the shooting, but he quickly admitted he had heard about it as someone was trying to pin the killing on him. Appellant denied being present at the shooting; however, by the end of that portion of the interview, appellant admitted he had been present at the shooting. After what was apparently a short break to turn the tape over, appellant admitted he had pulled the trigger and preceded to provide details of the shooing and the reason why he felt he had to do it.
“So long as a police officer’s misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence. Police officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into confessing. The cases from California and federal courts validating such tactics are legion.” (Original italics.) (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280-1281 [and cases cited therein].) The fact the detectives did not initially talk about this murder did not constitute a deceptive practice in this case but rather was a means of getting appellant to relax.
Appellant says he was young and unsophisticated, but Myers testified appellant was articulate and respectful and it was apparent appellant responded to questions appropriately. Appellant had had prior experience with law enforcement. The detectives did not tell appellant they would help him if he cooperated. Myers’s statement that appellant had “to try to make this thing right and not make other problems,” is too vague to raise to the level of even a slight threat. Assertions that one is better off telling the truth do not constitute false promises of leniency. (People v. Seaton (1983) 146 Cal.App.3d 67, 74.)
In People v. Vasila, supra, 38 Cal.App.4th at pages 874-877, the court found a confession was coerced because law enforcement officers went beyond encouraging the defendant to tell the truth and informing him a truthful statement would be to his advantage by promising additional benefits in the form of not instituting federal prosecution and releasing the defendant on his own recognizance. As those promises were a motivating factor in the confession, the court reversed the defendant’s convictions. (Id., at pp. 876-877; see also In re Shawn D., supra, 20 Cal.App.4th at pp. 212-217 [the court concluded a confession was involuntary partly because police implied the suspect would be treated as an adult if he failed to provide a confession].)
In In Shawn D., the court noted that threats or promises relating to the defendant’s relatives might cause a defendant’s will to be overborne, but stated, “if there is no express or implied promise made by the police, a defendant’s mere belief that his or her cooperation will benefit a relative does not invalidate an admission.” (In re Shawn D., supra, 20 Cal.App.4th at p. 209.) Similarly, we conclude appellant’s mere belief that he would benefit from cooperating (i.e., a belief the police would help him) without an express or implied threat or promise did not invalidate his admission.
Though appellant claimed to have been afraid during the interview, the court did not find his testimony was credible. The record indicates appellant was nervous and/or angry, but the detectives tried to calm appellant down. However, there is no indication of any egregious circumstance or outrageous police conduct such as a long interview, an interview in the middle of the night or that appellant was sleep deprived, exhausted or hungry or the use of lies, trickery or threats by the detectives. (Compare People v. Esqueda, supra, 17 Cal.App.4th at pp. 1484-1487.)
In sum, appellant’s statement was voluntary as there was no discussion by the detectives of anything other than appellant cooperating and telling the truth, no undue pressure amounting to coercion, no promise of any specific benefits he might receive or any harm that might occur if he did not confess, nor any improper implication of either, and no dishonesty and trickery amounting to false promise. (See People v. Holloway (2004) 33 Cal.4th 96, 115.).
B. Miranda Rights
Appellant claims he lacked the capacity to knowingly and intelligently waive his Fifth Amendment rights because he had only completed the ninth grade, he testified he did not understand his Miranda rights, he was afraid and scared during the interview, he thought the detective would help him if he talked, he said what he thought the detectives wanted to hear, he did not know what a lawyer was or that he could have one. Appellant cites to a number of journal articles basically urging that as a group, juveniles lack the psychological maturity and cognitive capacity to waive Miranda rights. Whatever value those articles have, there was no evidence of appellant’s particular incapacity to understand. Appellant’s position is largely an argument that juveniles always lack the capacity to understand and waive their Miranda rights. Moreover, appellant seems to suggest police must extensively question a juvenile when the juvenile states he or she understands and waives his or her Miranda rights. We leave such questions for another court and another day as California recognizes a juvenile, even one of subnormal mentality, may make a voluntary confession or waive his or her Miranda rights. (See People v. Ventura (1985) 174 Cal.App.3d 784, 790.)
The court rejected appellant’s claim he did not understand his Miranda rights finding not credible his claim he did not know what an attorney was given his prior police contacts and use of the term “D.A. reject.” Moreover, appellant was able to understand what the detectives were saying and to respond appropriately. Previously appellant had spoken to police after being Mirandized. The fact appellant was able to respond to the detectives’ questions in a meaningful way demonstrates his education and age were not impediments to his understanding and waiving his Miranda rights.
II. The court correctly gave the jury supplemental instructions on aiding and abetting and offered appellant the opportunity to present additional argument after giving the instructions.
A. Relevant Background
The jury began to deliberate at 3:45 p.m. on June 13, 2006. The next afternoon, the court appointed one of the alternate jurors to replace a juror who had been discharged. The jury then began deliberations anew.
The next morning, after beginning deliberations, the jury sent a note to the court that they were split eleven to one on first degree murder versus second degree murder on count 1. The court called the foreperson into the court. According to the foreperson, one juror was unwilling to consider the evidence and wanted evidence that had not been introduced at trial. The foreperson indicated that only a few minutes into deliberations, that juror said there was no need to discuss anything and nothing had been proved. That juror wanted evidence that someone actually saw appellant pull the trigger. That juror questioned appellant’s confession and thought the police must have done something to appellant when the tape was turned over to make him confess so that juror would not listen to the recording of the confession and refused to consider the instruction not to speculate. That juror said others could believe what they wanted, but he or she would not change his or her mind. That juror did find appellant was at the scene of the murder and was willing to convict of second degree murder, but could not find appellant was the shooter.
The court decided to postpone ruling on whether the juror should be discharged and proposed instructing the jury on aiding and abetting, stating the juror had a “misconception of the law,” and noted if someone aids and abets, they are as guilty as a principal. Defense counsel agreed with the court’s statement of law, but objected the jurors had “all the instructions they need right now.” Despite the court’s request for argument, defense counsel did not articulate any basis for the court not to give the instructions. The prosecutor argued the court had enough reason to discharge the juror for misconduct and refusing to deliberate, which was the prosecutor’s preference, even though the aiding and abetting instructions were appropriate. The prosecutor noted the jury had raised the theory, which conformed to the evidence. The court indicated it would give CALCRIM Nos. 400 and 401.
The court read the instructions to the jury. The parties stipulated the supplemental instructions did not need to be transcribed. The written instructions, with the court’s edits, are included in the clerk’s transcript. After reading the instructions to the jury and the jury leaving the courtroom, the court asked if there was “anything further anybody wants to say at this point or just adjourn.” Defense counsel responded, “No.”
B. Instructions
Appellant contends the court erred by giving supplemental aiding and abetting instructions after the jury indicated it was deadlocked when such instructions changed the prosecution’s theory (that appellant was the shooter) and were not supported by the evidence, which violated due process. (U.S. v. Salameh (2nd Cir. 1998) 152 F.3d 88, 139 [“improper for prosecutor to introduce a new theory of criminal liability at the last minute of a long trial”]; People v. Guiton (1993) 4 Cal.4th 1116, 1129 [“It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.”].) Appellant also urges the instructions were improper because the jury might have believed the court wanted him to be convicted of some offense. (People v. Stouter (1904) 142 Cal. 146, 149-150.)
Unlike Stouter where attempt instructions were given, the jury was not instructed on a different crime, but rather on principles applicable to the charge of murder. (See People v. Prucell (1937) 22 Cal.App.2d 126, 133-134; United States v. Gaskins (9th Cir. 1988) 849 F.2d 454, 458-459 [aiding and abetting is not a new or distinct offense].) It is not likely the jury thought the court was urging appellant be convicted of some offense as the information presented to the court was that the jury already felt he was guilty.
In the case at bar, it was not the prosecution (or the defense) which introduced a new theory after deliberations had begun, it was the jury itself which came up with the new theory. The court was fulfilling its duty pursuant to section 1093, subdivision (f) to: “from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case.” The court was clearing up what it perceived as confusion by one juror. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1212 [Section 1138 imposes a mandatory duty to clear up any instructional confusion expressed by the jury.].)
It was possible for the jury to believe appellant was at the scene of the murder but was not the shooter. During the first part of the interview, appellant admitted he was present. The jury might have discounted appellant’s admission he was the shooter because of the break in the interview. Gillum testified he did not believe appellant was the shooter. Rogers testified he heard the shot and saw appellant and another person running from the scene, corroborating appellant’s statement he (appellant) was present at the scene of the murder. Thus, the facts of the case support the aiding and abetting instructions. Moreover, the jury unanimously found true several personal use and discharge of a firearm enhancements, which seems to indicate it believed he was the shooter.
C. Argument
In People v. Bishop (1996) 44 Cal.App.4th 220, 230, when the jury was unable to reach a unanimous verdict on the special circumstance allegation of the personal use of a firearm, the court gave an additional instruction permitting culpability as an aider and abettor (the court had previously given aiding and abetting instructions on the murder charge at defendant’s request). The defendant argued he had been denied due process and the effective assistance of counsel because his counsel had been unable to address that theory of culpability in closing argument. (Id., at p. 231.) The court noted: “To effectuate the constitutional rights to counsel and to due process of law, an accused must be informed of the crimes with which he is charged in order to have a reasonable opportunity to prepare a defense and respond to the charges.” (Ibid.) Very similar to this case, the court noted the defendant did “not claim or even suggest defense counsel would have changed his closing argument to address his potential culpability as an aider and abettor. [Defendant’s] defense was he had nothing to do with the crimes and in closing argument urged the jury to adopt his version of the facts.” (Id., at pp. 234-235.)
In Bishop, the court concluded: “In sum, defense counsel did not seek leave to reopen argument to address this new theory of culpability on the special circumstance allegation. By failing to request additional argument to address this new theory of culpability, [defendant] has waived his objection to counsel’s lack of opportunity to present an argument on the aiding and abetting special circumstance instruction” and defense counsel was not unfairly prevented from arguing his defense or substantially misled in presenting his argument to the jury. (People v. Bishop, supra, 44 Cal.App.4th at p. 235; see also People v. Manning (1981) 120 Cal.App.3d 421, 427 [“[W]e hold that the alleged denial of the right to present argument cannot be raised for the first time on appeal and that the burden is on defendant to make his desire to present argument known to the trial court.”].)
Asking for the opportunity to present additional argument would not have been futile as appellant suggests. Just because the court stated it was going to give the supplemental instructions, there is no corollary it would have denied a request to present additional argument. After reading the supplemental instructions, the court asked if anyone wanted to say anything. Even though it was after the jury had left the courtroom, defense counsel could have requested the opportunity to present additional argument had he wished to do so. Appellant suggests he received ineffective assistance because his counsel did not make such a request. However, one can infer there was a tactical reason for not doing so as appellant’s defense was he had nothing to do with the murder. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Appellant does not point out any additional argument he would have made. Moreover, additional argument would have added nothing to his defense and would have provided the prosecutor with another opportunity to argue why appellant was guilty.
III. Appellant was not deprived of the opportunity for meaningful appellate review because the parties stipulated the reporter did not need to transcribe the supplemental instructions.
California Rules of Court, rule 31(c)(4) provides the reporter’s transcript must contain “all instructions given orally.” Citing that rule and People v. Gloria (1975) 47 Cal.App.3d 1, 6-7, appellant contends his convictions must be reversed despite the stipulation. In Gloria, an ancient case referring to phonographic notes, the court noted a court reporter had a duty to make “phonographic notes of what the judge says when he instructs the jury so an accurate transcript of the instructions as presented to the jury will be preserved for any appeal.” (Id., at p. 6.) However, the court went on to state, “This does not mean the normal reporter’s transcript in all criminal jury trials must include the instructions as given. It would only be in those cases where the appellant contends the written instructions copied by the clerk deviate from the instructions orally delivered to the jury that the appellant, either by objections to the transcripts below or by motion to augment the record on appeal, may seek a transcript of the instructions as orally presented to the jury.” (Citations omitted.) (Ibid.)
Now renumbered.
In People v. Garrison (1989) 47 Cal.3d 746, 780-781, the court rejected “defendant’s contention that the failure to report the reading of the instructions denied him due process. The parties stipulated that the court reported might be excused from reporting the reading of jury instructions. In light of counsel’s stipulation and defendant’s failure to suggest that there was any deviation in the reading from the typed copies contained in the record, we find no violation of due process.” Appellant makes no claim the written instructions deviate from the oral instructions. Appellant wants a reversal of his convictions based on the mere possibility there might have been some variation in the reading of the instructions. The burden is on appellant to not only show error but also injury from the error. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 409, p. 461; see also People v. Howard (1992) 1 Cal.4th 1132, 1165 [Although a defendant is entitled to a record that is adequate to permit meaningful appellate review, it is defendant’s burden to show any deficiencies in the record are prejudicial.].)
IV. Remand for a redetermination of presentence credit is not warranted.
At sentencing, the trial court asked what appellant’s actual credits were. Neither defense counsel nor the prosecutor had that information at hand. Defense counsel noted appellant was in custody on another matter when police interviewed him. In response to the court’s question, appellant stated he thought he had been arrested on October 28, 2005. Appellant had been arraigned on November 30. The court asked if either counsel objected to using November 1 as the initial custody date, and both counsel stated they had no objection. Based on that date, the court calculated 261 days of actual custody credit.
According to the probation report, appellant had been arrested in another case on May 11, 2005, for carjacking. A juvenile petition had been sustained in that case, and appellant was committed to a community camp placement where he was serving at the time police interviewed him in this matter. The probation report also shows appellant was arrested on October 28 in this matter. It appears that after his arrest at the camp, appellant was transported to juvenile hall.
Appellant contends this matter must be remanded to determine his proper presentence credits as the court’s award was based on speculation. The People contend appellant is entitled to presentence credit only if his confinement was due to his arrest in this matter.
The general rule is that “a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period.” (People v. Bruner (1995) 9 Cal.4th 1178, 1191.) “[W]here a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a ‘but for’ cause of the earlier restraint.” (Id., at pp. 1193-1194.) The burden is on the accused to establish entitlement to presentence custody credit. (Id., at pp. 1193-1194, fn. 10.) As appellant’s counsel failed to respond to the People’s argument any error was in his favor because he was in custody on another matter, appellant has not shown any prejudicial error.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J. ZELON, J.