Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FVW029702, Joan M. Borba, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Eric Moreno Fuentes (defendant) appeals his conviction for residential burglary and attempted murder. He contends that the court should have suppressed statements obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and that the court violated his rights under the Fifth Amendment when it instructed the jury and permitted the prosecutor to comment on arguable adoptive admissions made during questioning. He contends that the court’s refusal to instruct on assault by means likely to cause great bodily injury, a lesser related offense, violated his Sixth and Fourteenth Amendment rights to present a defense. Finally, he contends that there was insufficient evidence to permit the jury to determine that the attempted murder was deliberate and premeditated.
Finding no error, we affirm the judgment.
PROCEDURAL HISTORY
A jury convicted defendant of one count of first degree residential burglary (Pen. Code, § 459) and one count of willful, premeditated and deliberate attempted murder (§§ 664/187, subd. (a)). The court sentenced him to the middle term of four years for burglary and to a consecutive indeterminate life term for attempted murder. Defendant filed a timely notice of appeal.
All statutory citations refer to the Penal Code unless otherwise noted.
FACTS
On September 8, 2003, defendant entered a neighbor’s apartment while no one was home, looking for money to support his drug habit. Thirteen-year-old Julio Zamora came home and found defendant rifling through the dresser drawers in Julio’s mother’s bedroom. Julio recognized defendant, who used to live about three apartments away. Julio asked defendant what he was doing. Defendant asked Julio, “Who’s with you?” Julio replied, “No one.” Defendant then walked past Julio and shut the bedroom door. He turned back toward Julio and punched him several times in the face, knocking him to the floor. When Julio tried to get to his feet, defendant hit him again. Defendant made no effort to leave the room.
When defendant hit Julio the second time, Julio was “knocked” face down onto the bed. Defendant put his hands around Julio’s neck and began to strangle him. Julio struggled, and managed to roll over onto his back. He told defendant to let him go, that he was not going to tell anyone. He said this twice. Julio eventually managed to push defendant’s hand away from his neck and got to his feet. He tried to run away, but defendant grabbed him from behind and put his arm around Julio’s neck, choking him again. Julio felt his strength fading and couldn’t breathe. He thought he was going to die. He managed to elbow defendant in the face and broke his grip. He ran from the apartment to his aunt’s house.
At Julio’s aunt’s house, paramedics were called and he was taken to the hospital. Dr. Madahar, who treated him that day, testified that Julio had a few abrasions and contusions on his neck. There was no damage to the hyoid bone and no swelling of the soft tissues in the neck or internal bleeding. There were no petichial hemorrhages in Julio’s eyes, indicating that the flow of blood was not cut off during the incident. Julio told Dr. Madahar that he never lost consciousness during the incident. After about two hours in the emergency room, Julio was released with instructions to use Tylenol and an ice pack for any pain. Julio testified that his neck hurt for about five days and that he couldn’t raise his head for a period of time.
LEGAL ANALYSIS
DEFENDANT’S STATEMENTS WERE PROPERLY ADMITTED
After his arrest, defendant was questioned by Detective Planas. Planas read defendant his Miranda rights in Spanish, which is defendant’s native language. Defendant responded to each advisement, including the right to remain silent and the right to the assistance of an attorney during interrogation, that he understood. He agreed to answer questions. He answered the preliminary question, “Why are you here today?” by saying it was about a problem he had in 2003. (Defendant was not arrested until 2007.) When Planas asked him to explain the problem he had in 2003, defendant said “That’s where I don’t understand. I can remain quiet and not say anything, not answer or --.” Planas replied, “If that is what you wish, yes, but if you don’t talk to me what’s going to -- what is going to happen about what had happened [sic].” Defendant said, “No, because (Inaudible) because I was really wrong.” Planas replied, “Okay. Are you -- are you going to answer the questions that I am going to ask you?” Defendant replied, “Yes.” The interrogation then proceeded.
Defendant moved to suppress his statements to Plana, arguing that his statement that he did not understand his right to remain silent rendered his statements involuntary and his prior waiver ineffective, and that his request for clarification of his right to remain silent was in effect a request for legal advice, i.e., an invocation of his right to counsel. The court denied the motion.
On appeal, defendant contends that his request for clarification of his constitutional rights “constituted an invocation of those rights” and that questioning should have ceased “until and unless it became apparent that [defendant] actually understood those rights.”
To the extent that defendant argues that his request for clarification of his right to remain silent constituted an invocation of that right, we disagree. Once an accused has waived his right to remain silent and the interrogation has begun, the accused may halt the interrogation only by unambiguously indicating that he does not want to speak any further. (People v. Stitely (2005) 35 Cal.4th 514, 535.) Here, defendant did not indicate that he did not want to speak; rather, he stated that he did not understand and implicitly asked Planas whether he could “remain quiet and not say anything, not answer.” Planas told him that he could do so if he wished. After a further exchange, Planas asked defendant if he was going to answer questions, and defendant said “yes.” There is nothing in this exchange which indicated that defendant was invoking his right to remain silent. Nor, contrary to defendant’s contention, is there any ambiguity as to his understanding of his right to remain silent. He did not ask for clarification of the right, but rather for confirmation that he had the right to decline to answer questions. He got that confirmation. Thereafter, he did not invoke his right to remain silent but instead answered the detective’s questions.
When Planas responded to defendant’s request by saying that he could remain silent if he wished, he added “but if you don’t talk to me what’s going to -- what is going to happen about what had happened [sic].” Defendant contends that this was a veiled threat, implying that “the result might not be good should [defendant] choose not to answer the detective’s questions.” If this statement was indeed a veiled threat, defendant could argue that his subsequent decision to answer questions was not voluntary. That is not, however, the issue defendant has raised. Invocation of the right to remain silent and waiver of that right, voluntary or otherwise, are two separate issues, “and the two must not be blurred by merging them together.” (Smith v. Illinois (1984) 469 U.S. 91, 98, fn. omitted.) In the absence of any cogent argument and citation to pertinent legal authorities, under a separate caption stating a contention that his statements were not voluntary, defendant has waived this contention. (Cal. Rules of Court, rule 8.204(a)(1)(B); Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) In any event, Planas’s statement is not, on its face, a threat which would ordinarily be sufficient to overcome a person’s will, and there was no evidence that defendant’s will was actually “overborne” by virtue of Planas’s single question. (See Dickerson v. United States (2000) 530 U.S. 428, 434.)
Defendant also refers to violation of his Sixth Amendment right to counsel, but does not explain in his opening brief how that right was violated. (He mentions several right to counsel cases, but only by analogy to support his claim that he invoked his right to remain silent.) In his reply brief, he states that he did not request an attorney. We assume, therefore, that defendant’s reference to the violation of his right to counsel was not intended to assert a separate ground for reversal of his conviction. In any event, such a contention would fail: “[A]fter [obtaining] a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” (Davis v. United States (1994) 512 U.S. 452, 461.) The request for counsel must be unambiguous and unequivocal. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1125.) Defendant’s question to Planas concerning his right to remain silent contained no reference to wanting an attorney or wanting legal advice. Consequently, it is not a clear, unambiguous and unequivocal invocation of the right to counsel.
THE COURT’S RULING ON THE ADOPTIVE ADMISSIONS INSTRUCTION DID NOT VIOLATE DEFENDANT’S FIFTH AMENDMENT RIGHT TO REMAIN SILENT
Defendant contends that the trial court violated his rights under the Fifth Amendment when it allowed the jury to determine whether evasive statements he made during his interrogation or his silence in response to accusatory questions during the interrogation constituted adoptive admissions. He contends that this impermissibly allowed the prosecutor to comment on his silence.
Defendant objected to a proposed jury instruction, CALCRIM No. 357, which defines adoptive admissions and provides guidance to the jury for determining whether a statement or a failure to respond to an accusation amounts to an adoptive admission. Nevertheless, the court gave the instruction. Defendant cites three comments the prosecutor made during argument to the jury:
CALCRIM No. 357 states: “If you conclude that someone made a statement outside of court that (accused the defendant of the crime/ [or] tended to connect the defendant with the commission of the crime) and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in (his/her) presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if (he/she) thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose.”
“The defendant, when he [was] asked if he was trying to kill the boy to prevent him from pointing the finger at him as a witness, this is what he says, ‘Well, I think that’s what I was doing.’”
“Detective Planas asked the defendant, ‘What did you want to do? To kill him?’ The defendant replies, ‘I think so.’”
“Now, I think one of the most important things in the People’s case is [that] defendant not one time denies his intent to kill. Not one single time.”
We note at the outset that only one of these three so-called adoptive admissions involves defendant’s silence, i.e., his failure to deny that he intended to kill Julio. The prosecutor’s comments on the other two statements—that defendant “thinks” he was trying to kill Julio to prevent him from being a witness against him and that he “thinks” he wanted to kill Julio—are in no conceivable manner a comment on defendant’s silence, as defendant asserts. Consequently, we disregard them. With regard to the final example, that defendant failed to deny having an intent to kill, we disagree that the prosecutor’s comment was an impermissible comment on silence after the invocation of the right to remain silent.
If a suspect chooses to remain silent after a Miranda warning has been given, his silence may not be used against him at trial, whether to impeach his testimony or in any other manner. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118 (Coffman), citing Doyle v. Ohio (1976) 426 U.S. 610, 617-618 (Doyle).) Defendant contends that a suspect may selectively invoke his right to silence during an interrogation by refusing to answer specific questions. Existing California Supreme Court precedent is to the contrary, however. In People v. Silva (1988) 45 Cal.3d 604, the California Supreme Court held that once a suspect has waived his right to silence, he may reassert that right by refusing to continue the interrogation or by asking for an attorney, but that an expression of unwillingness to discuss certain subjects without manifesting a desire to terminate the interrogation all together is not an effective invocation of the right to remain silent. Statements obtained after such an attempted invocation of the right to silence may be used against the defendant. (Id. at pp. 629-630.)
In Coffman, the court declined to decide whether the prosecutor’s comment on the defendant’s refusal to answer questions on a specific topic without indicating a desire to terminate questioning all together violated Doyle. The court noted that in People v. Hurd (1998) 62 Cal.App.4th 1084, the Court of Appeal held that Doyle does not preclude a prosecutor from commenting on the defendant’s “‘refusal to provide critical details’” after having waived his right to remain silent. It noted as well that some federal courts have held that an accused can selectively invoke his right against self-incrimination and refuse to answer specific questions and that Doyle precludes comment on such refusals. (Coffman, supra, 34 Cal.4th at pp. 118-119.) The court refused to decide the issue, however, citing the absence of prejudice. (Id. at p. 119.) Consequently, we must abide by People v. Silva, supra, 45 Cal.3d 604. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) (See also People v. Michaels (2002) 28 Cal.4th 486, 510-511, wherein the court reaffirmed its ruling in People v. Silva, supra.)
Defendant has not cited to any portion of the transcript of his interrogation in which he asserted his right to terminate the interrogation in order not to answer questions about his intent to kill. Accordingly, the prosecutor’s comment on defendant’s failure to deny accusations that defendant intended to kill Julio was proper.
THE COURT WAS NOT REQUIRED TO INSTRUCT ON A LESSER RELATED OFFENSE
The defense asked the trial court to instruct the jury on assault with force likely to cause great bodily injury as a lesser offense of attempted murder. The court declined to do so.
Defendant concedes that under current California Supreme Court authority, the court was not required to instruct on assault, which is not a necessarily included lesser offense of attempted murder but a lesser related offense. (See People v. Parks (2004) 118 Cal.App.4th 1, 3.) However, he contends that refusal of such an instruction violates a defendant’s due process right to present a defense, if the defendant wishes to assert that he committed only a less serious crime than the charged offense.
This is precisely the issue the California Supreme Court decided in People v. Birks (1998) 19 Cal.4th 108, when it overruled People v. Geiger (1984) 35 Cal.3d 510. In Geiger, the court held that under some circumstances, the California Constitution mandates that lesser related offense instructions be given on request of the defendant, as a matter of fundamental fairness. (Geiger, supra, at pp. 519-524.) In Birks, the court overruled Geiger, in light of persuasive federal authority that there is no federal constitutional right to such an instruction. The court concluded that there is no reason to construe California law more broadly. (Birks, supra, at pp. 117-120, 123-124, 125-133.) This court is, of course, bound by precedent established by our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
SUBSTANTIAL EVIDENCE SUPPORTS THE FINDING THAT THE ATTEMPTED MURDER WAS DELIBERATE AND PREMEDITATED
Finally, defendant contends that there was insufficient evidence to support the jury’s finding that the attempted murder was premeditated and deliberate.
Deliberate means “‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.... ‘[P]remeditated’ means considered beforehand. [¶]... [¶] The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. [¶] The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include[d] an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree. [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill.’” (People v. Perez (1992) 2 Cal.4th 1117, 1123-1124 (Perez), quoting CALJIC No. 8.20.) The same principles apply to a finding of premeditation and deliberation for purposes of attempted murder. (People v. Bright (1996) 12 Cal.4th 652, 656, overruled on another point in People v. Izaguirre (2007) 42 Cal.4th 126, 132-134.)
“Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation that was previously set forth. Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] The standard of review is the same in cases such as this where the People rely primarily on circumstantial evidence. [Citation.] ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ [Citation.]” (Perez, supra, 2 Cal.4th at p. 1124.)
In this case, the evidence readily supports the conclusion that defendant considered his options and then decided to kill the boy. The evidence shows that when Julio surprised defendant during the burglary, defendant did not immediately attack Julio. Rather, he asked if anyone was with him. When Julio said “no,” defendant walked past him to the bedroom door and closed the door, trapping Julio inside with him. He then attacked the 13-year-old, punching him and knocking him down and then attempting to strangle him. When Julio managed to break free, defendant tried again to strangle him. This evidence unquestionably supports the conclusion that the attempted murder was deliberate and premeditated.
Defendant engages in a lengthy analysis of the evidence using the framework established in People v. Anderson (1968) 70 Cal.2d 15; the People reply in kind. Anderson posits that a combination of evidence of planning activity prior to the crime, evidence of a prior relationship between the parties or conduct toward the victim, which could supply a motive for the killing, and facts about the nature of the killing may permit an inference that the killing was deliberate and premeditated. (Id. at p. 27.) However, the Anderson guidelines are merely an aid to the analysis of circumstantial evidence bearing on deliberation and premeditation; they are not the sine qua non of a finding of deliberation and premeditation, and they are not exclusive. (Perez, supra, 2 Cal.4th at p. 1125.) The relevant question on appeal is whether a rational trier of fact could have been persuaded beyond a reasonable doubt that the defendant acted with deliberation and premeditation in attempting to kill his victim. (Id. at p. 1127.) Here, the answer is clearly “yes.”
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Miller, J.