Opinion
A159035
06-04-2021
THE PEOPLE, Plaintiff and Respondent, v. ZACHARY CORDELL HARRISON, Defendant and Appellant.
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR1802712
STREETER, Acting P. J.Zachary Cordell Harrison, convicted of first degree murder (Pen. Code, § 187, subd. (a)) with deadly use of a firearm (§ 12022.53, subd. (d)) and sentenced to 50 years to life in prison, appeals on grounds of an alleged violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), purportedly erroneous evidentiary rulings, erroneous denial of a mistrial motion, and insufficient evidence of first degree murder (lying in wait or premeditation and deliberation). Finding no error, we shall affirm.
Further undesignated statutory references are to the Penal Code.
I. BACKGROUND
A. The Killing of Robert Holtsclaw
On September 23, 2017, in the tiny town of Alderpoint on the Eel River in Humboldt County, Robert Holtsclaw was shot to death for no apparent reason while sitting in his pickup truck. Holtsclaw had spent the morning throwing horseshoes with his friend, Tory Hennings, at the town's annual horseshoe tournament staged at the fire hall. Holtsclaw and Hennings had known each other about a year and were social acquaintances who drank beer and smoked weed together. After losing quickly at the tournament, the two went back to Hennings's house on 6th Street in Holtsclaw's pickup truck, but before they went into the house, Hennings remembered he had left his dog at his mother's house that morning. They then backtracked to Hennings's mother's house two blocks away, picked up the dog, and headed back to Hennings's house, with Holtsclaw driving his truck and Hennings in the passenger seat. Hennings and Holtsclaw had been gone about five to ten minutes while retrieving the dog.
Alderpoint has a post office, a general store, and “maybe a couple hundred” residents.
As they drew close to Hennings's house, there was a closed gate blocking the road. The gate had been there about five or six years, and Hennings did not know who owned it. Sometimes the gate was open to traffic and sometimes it was closed. This time Hennings got out of the truck and went to open the gate. As he was walking back to the truck, he heard Holtsclaw say, “Zach has got a gun.” Hennings looked up and saw his longtime friend, Zachary Harrison, standing near one of the gate posts in his next door neighbor's driveway, about 40 feet away, pointing a black lever-action.30 30 hunting rifle at him. It looked like the same rifle Harrison had shown him a day or two earlier, saying he had just acquired it, and asking Hennings if he wanted to go hunting together.
Hennings had been friends with Harrison for some 20 years. Hennings had known Harrison since he was a kid, having lived across the street from each other, although Harrison had recently bought property in Oregon. They “grew weed” together sometimes, including during the summer of 2017, “when Bob got shot.” Hennings was seeing Harrison daily during that period, he perceived no conflicts between them, and he knew of no conflicts between Harrison and Holtsclaw. Hennings had not seen Harrison or his truck parked nearby when they arrived at his house the first time.
Scared, Hennings ran back to the truck, where Holtsclaw was still sitting. He jumped into the truck and “kind of hid behind” Holtsclaw, when a rifle shot rang out. Hennings heard Holtsclaw moan. Holtsclaw suffered a single bullet wound to the heart and died at the scene, probably within minutes. There was only one shot. Then Harrison walked away.
The autopsy ultimately showed that the bullet entered Holtsclaw's left arm, fractured his humerus, passed through his arm and entered the left side of his chest, where it lacerated his heart and tore a main coronary artery before it came to rest against the ribcage on his right side. Dr. Mark Super, who conducted the autopsy, concluded Holtsclaw had been killed by a high-velocity bullet wound of the left arm into the chest.
Afterwards, Hennings ran to a neighbor's house and hid until he saw Harrison's truck, a Ford F 250 with Oregon license plates, pass by, at which time he “felt a little safer.” He went back to Holtsclaw's truck, which by then was located in a ditch into which it had drifted after the shooting. By that time a neighbor had come over and was trying to help Holtsclaw, but he was unresponsive and appeared to be dead. Hennings got his dog from the truck and left the area.
Hennings came back an hour or so later to talk to the police. Hennings knew of no reason why Harrison would have wanted to shoot Holtsclaw. Harrison and Holtsclaw knew each other casually, but Hennings could not identify a motive for the killing.
Glenda Massey had lived in Alderpoint for most of her life and had known Harrison through his mother and stepfather for 15 to 20 years. She also knew Holtsclaw as “Bob” just by name, rather than as a friend. Massey, too, lived on 6th Street at the corner.
On September 23, 2017, Massey was at home, heard what sounded like a gunshot, and asked her husband to go outside and check. At that point, Hennings came into their yard. She had known him for many years as someone she had grown up with. Hennings was “upset” and “scared.” They went into her house, and Hennings said “Bob” had been shot. Hennings seemed disoriented and asked her to call 911, which she did. Massey described Hennings's behavior, which was erratic and nervous. Massey then walked up to the scene of the shooting, where she saw Holtsclaw's truck in a ditch and people trying to help him.
Jacqueline Juarez had lived in Alderpoint for 11 years. She lived at the end of 6th Street and was a neighbor to Hennings. She knew Harrison because she was a friend of his sister. On September 23, 2017, about 2:30 or 2:45 p.m., she heard a gunshot and then heard a car crashing into the ditch and heard someone moaning. She ran out of the house toward the truck in the ditch and saw a man holding his chest and moaning, and she called 911 immediately. She and her brother then got a towel to apply pressure to stop the bleeding from Holtsclaw's wound. They continued trying to help him until the EMTs showed up five or ten minutes later.
A couple of minutes after the gunshot, Juarez saw a large black Ford truck with Oregon plates leaving the driveway of the house next to Hennings's house, the Stillwell residence, where the shooting had occurred. Hennings testified the Stillwells were friends with Harrison and sometimes let him stay at their place when he was in Alderpoint. Juarez said the truck was driving fast down 6th Street, away from the scene of the crime. She recognized the Ford truck as belonging to Harrison.
Adam Hennings (Adam) testified that he has lived in Alderpoint for 30 years and is Tory Hennings's brother. He has also known Harrison for Harrison's whole life. He was somewhat acquainted with Holtsclaw, but “didn't hang out with him.” In September 2017, he was working as a volunteer firefighter.
On September 23, 2017, he had spent some time at the horseshoe tournament and then went home. About 2:55 p.m., he received an emergency call saying there had been a shooting on 6th Street, and he headed towards 6th Street. When he reached 4th Street, he saw his younger brother, Kai, on the street. Kai told him that Harrison was said to be the shooter. Adam saw in his rearview mirror Harrison's black, four-door F 250 truck parked near the post office and store and concluded it was safe to proceed to the scene of the shooting. He recognized the truck as Harrison's from prior knowledge and noticed the usual Oregon license plate on the truck.
He then went to 6th Street, saw Holtsclaw's truck in the ditch, and pulled him out of the truck for CPR. Holtsclaw was not moving or breathing when Adam found him. Adam and other rescue workers performed CPR on Holtsclaw for 45 minutes, when rescue efforts were called off.
Harrison left town and disappeared after the homicide, and it took law enforcement more than eight months to apprehend him.
B. The Sheriff's Investigation
Travis Mendes, a Humboldt County Sheriff's Deputy, was called out from the sheriff's office in Eureka on September 23, 2017, to go to 118 6th Street in Alderpoint, the Stillwell residence, where the shooting had occurred. Mendes arrived around 4:00 p.m. and cordoned off the crime scene with tape. He spoke to Tory and Adam Hennings. He took a video of the area showing where he located a spent.30 30 cartridge within about five feet of where Harrison had reportedly been seen with the rifle. Evidence technicians later arrived to process the scene.
Andrew Campbell, a sheriff's evidence technician, arrived in Alderpoint at 7:45 p.m. that evening. He collected a.30 30 Winchester casing and some other items, including a 12 gauge shotgun that was in the back seat of Holtsclaw's truck. A.38 caliber firearm was found in the driver's side pocket of Holtsclaw's truck.
Campbell also attended the autopsy of Holtsclaw and photographed the process. He watched Dr. Super remove a bullet from Holtsclaw's ribcage, and he collected it as evidence. On cross-examination, Campbell acknowledged that he did not find Harrison's fingerprints on any firearms associated with the case. He also did not find Harrison's fingerprints on the.30 30 casing found at the scene.
Dale Cloutier, a criminalist with the Department of Justice in Eureka, was asked to examine the expended bullet removed from Holtsclaw's body, the.30 30 cartridge casing found at the crime scene, and a.30 30 firearm to determine whether the bullet or the cartridge came from the firearm. He determined the cartridge retrieved from the scene was not fired from the rifle he examined. Harrison's fingerprints were not found on the.30 30 he examined, and counsel stipulated that the weapon was not the one that killed Holtsclaw. The.30 30 was not supplied to Cloutier near the time of the crime; he received it for testing close to a year later.
Cloutier opined it was most likely that the expended bullet had come from the expended cartridge case, but he had no test to conclusively verify that. The cartridge appeared to be manufactured by Barnes for the Winchester.30 30 rifle. The bullet was 100 percent copper and hollow-tipped. It spread out “like petals of a flower” at the tip. Hollow-point bullets are designed to be more deadly and to do more damage than lead core bullets. One hundred percent copper bullets are a “higher-end, ” “nicer” type of bullet, less common than lead core bullets and more expensive.
C. Harrison's Flight and Attempts To Evade Capture
1. September 23, 2017
Harrison left Alderpoint in his black Ford F 250 within an hour after he shot Holtsclaw and went on the run. Marina Cheney testified that she owns the Kettenpom Store in Kettenpom, “a small general store” “out in the middle of nowhere, ” half an hour's drive from Alderpoint. On September 23, 2017, about half an hour after the Holtsclaw shooting, a neighbor called Cheney and said there had been a shooting in Alderpoint, and the suspect might be heading her way. Shortly after the phone call, Cheney's employee told her that Harrison had pulled up in front of the store, and Cheney saw his black truck pull up on her surveillance camera. Cheney told her employee to lock the door, and Cheney called 911. Harrison tried to enter through the front door just as the employee was locking it. When he could not get in, he got back into his truck and left. This happened about an hour and a half after the shooting in Alderpoint.
Cheney saw Harrison's movements through the surveillance camera in her attached residence, to which she and her employee had retreated for safety. Because Kettenpom is in Trinity County, there was a delay in relaying the information to the Humboldt County Sheriff's office about Cheney's report, and the video was recorded over, but she was able to capture some still photos of Harrison. She described the truck Harrison was driving consistently with other witnesses' descriptions of Harrison's truck, but by now the license plate was a California plate with odd markings on it, as if it had been altered with duct tape or a Sharpie. That was the last reported sighting of Harrison for several months.
2. March 21, 2018
Susan Byram lived in the small town of Miranda in Humboldt County, and had worked at the Miranda Market for 10 years. She was working there on March 21, 2018, when she recognized Harrison from recent news publicity about the case. Harrison had paid cash for gasoline and was pumping it. No longer driving his Ford F 250, he was driving instead a white four-door sedan. Byram called 911, who reported to the sheriff's office that it was a Honda Accord with Texas plates. Byram provided law enforcement with video surveillance tape that was played for the jury.
Leslie Borges, then a Humboldt County Sheriff's patrol officer, was dispatched from Eureka to Miranda on March 21, 2018, to attempt to intercept Harrison. As she was heading toward Miranda on Elk Creek Road, she passed a white Honda Accord that matched the description of the white car Harrison had been seen driving, except it had a Nevada license plate on the back. Borges recognized Harrison as the driver of the white car when they passed each other going in opposite directions. She turned her car around, followed the white car, and caught up to it as it was turning off into a gravel and dirt side road. Because she had been informed that Harrison might be “armed and dangerous, ” she waited for backup.
As other units approached, she drove down the side road and saw the white vehicle stopped. She used her loudspeaker to attempt to talk Harrison out of the car, but there was no response. The white car's windows were tinted, and the officers could not see inside. They attempted to break the windows with a bean bag gun, but that did not work. They finally approached the vehicle and found it was unoccupied, but a Texas license plate was in the back seat. The sheriff's deputies then “deployed out into the wooded area to search” for a couple hours, but that was unsuccessful as well.
3. March 22, 2018
Justin “JD” Braud, the Undersheriff of Humboldt County, was a patrol sergeant in September 2017, and was part of the task force assembled to locate Harrison. He described some of law enforcement's efforts to locate Harrison. On March 22, 2018, Braud went to Alderpoint based on a tip that Harrison was there in a trailer home located behind the Stillwells' residence, the scene of Holtsclaw's murder. Four officers accompanying Braud triangulated around the trailer, and Braud called out for Harrison to come out and surrender.
Then, “[t]he trailer door suddenly swung open and [Harrison] was standing in the doorway, ” about 15 to 20 feet away. Braud told Harrison he was surrounded and needed to surrender. Harrison stepped back into the trailer and closed the door. About 30 seconds later, Harrison opened the door, put his hands up, and was directed by Braud to drop to his knees and lie face down on the ground.
Harrison “started to move down towards the ground kind of in... a crouching manner with his hands up, ” but then “he suddenly took off running.” He was running in the direction of two of Braud's fellow officers. Braud heard yelling and recognized the sound of the less lethal of the sheriff's shotguns, one that fired bean bag rounds. Braud followed Harrison's path and saw Harrison running with two deputies chasing him. Braud ran after them toward the Eel River. Harrison took a very steep path downhill through the brush. Braud eventually reached the bank of the river and saw some clothing near a rocky outcropping that appeared to have been recently deposited. Braud did not go into the water because “it was really swift and cold” from the winter run off. He had lost sight of Harrison. They searched the river, thinking he might have died trying to cross it.
Perhaps two hours later, Braud saw Harrison on the other side of the river walking naked along an elevated grassy area. Harrison appeared to be shivering, and Braud yelled to him that he would get him help. Harrison yelled back, but Braud could not hear what he said. Eventually Braud and his deputies got across the river, but it was getting late, and they could not pick up Harrison's trail.
Ryan Hill, then a patrol officer for the Humboldt County Sheriff's Department, on March 22, 2018, was dispatched to 6th Street in Alderpoint to help apprehend Harrison. After Harrison took off running, Hill was instructed to search the trailer from which Harrison had fled. In the bedroom area he found an air rifle and in the dining room, under one of the seat cushions, he found six rounds of.30 30 ammunition. Criminalist Cloutier would ultimately testify at Harrison's trial that the expended bullet casing found at the scene of the crime appeared to match the six cartridges of live ammunition retrieved from the trailer where Harrison was staying.
4. Harrison's arrest
Harrison was arrested on June 6, 2018, by Eureka police after someone called in and reported seeing Harrison at a Walmart. Eureka police officers contacted Harrison in the parking lot of Walmart and took him into custody without incident. Harrison gave a false name initially but did not try to run. He did not have any guns or ammunition on him when he was arrested.
D. Harrison's Statement to Law Enforcement upon Apprehension
Detective Mark Peterson, a Humboldt County Sheriff's Investigator and chief investigator in this case, had responded to the scene of the shooting when it was reported. He also interrogated Harrison in custody shortly after Harrison was arrested on June 6, 2018. Harrison's statement was not a confession. Instead it was a series of reasons why people, and specifically Hennings-his “best friend”-might have been motivated to falsely identify him as the shooter. He acknowledged he had been “on the run” for nearly nine months and said “it sucked.” Harrison said he knew he was “wanted for questioning in connection with [the] homicide.” He persistently expressed the desire to go home to his girlfriend and infant daughter.
He did not admit he had shot Holtsclaw, and in fact, as the judge noted, he “flat out denied” it at least six times in recordings played for the jury. In his statement, Harrison acknowledged he had met Holtsclaw several years previously at a party. He told Peterson that two or three months before the shooting, Holtsclaw had threatened him with a gun. The threat had occurred in Hennings's yard. In a video clip played for the jury, Harrison also said Holtsclaw had once “raped” him, or at least had told other people that he had hit Harrison over the head and knocked him out, then “fucked [Harrison] in the ass, ” which Harrison found “embarrassing.”
Harrison gave Peterson reasons why people may have falsely implicated him in the killing of Holtsclaw, which Peterson characterized as “[e]ither they did not like him for various reasons” or, specifically referring to Hennings, that Hennings wanted all the marijuana they had grown together as partners. Harrison ultimately gave Peterson another reason why Hennings might have “set him up, ” namely, that “Hennings had a sexual relationship with Mr. Harrison's girlfriend” and the mother of his child.
E. The Charges
On June 8, 2018, Harrison was charged with willful, deliberate and premeditated murder of Holtsclaw (§§ 187, subd. (a), 189, subd. (a)) and with personally using a firearm causing death (§ 12022.53, subd. (d)). After Harrison was held to answer at a preliminary hearing, the district attorney filed an information with the same allegations.
F. The Defense Case
Brian Grossman testified for the defense that he is currently a private investigator, was previously employed by the Humboldt County Probation Department, and prior to that worked for the Humboldt County Sheriff's Department for six years. He has lived in Humboldt County for most of his life and has been a hunter since he was seven or eight years old. He was familiar with.30 30 rifles, primarily manufactured by Winchester but also by Marlin. He reported that.30 30 rifles are “very common” among hunters in the county, as well as among farmers and ranchers for shooting coyotes and other predators.
Harrison did not testify, but his defense was complete innocence. His attorney argued to the jury in closing that Harrison was not involved in the homicide of Holtsclaw. She adopted a theme of “no one really knows what happened here.” She argued that Harrison had made consistent denials and was just at the “wrong place at the wrong time.” Some other person, as yet unidentified, or perhaps Hennings himself had killed Holtsclaw. She criticized the investigation by law enforcement, saying they made up their minds on the day of the shooting and never fully investigated the crime. They never even got a search warrant for the Stillwell residence. More than once counsel called Harrison a “scapegoat.” She said the case boiled down to “you are either [going to] believe Tory Hennings['s] testimony... or you are not, ” arguing the “whole Government's case... hinges on” Hennings's testimony. She criticized Hennings's demeanor on the witness stand and suggested he had a motive to frame Harrison. Indeed, Harrison's whole defense turned on the notion that Hennings was lying under oath and had turned against Harrison, his lifelong friend, for some unknown reason.
Defense counsel pointed out there was no physical evidence linking Harrison to the crime, for instance no DNA or fingerprint evidence. Harrison was not found in possession of the.30 30 rifle that killed Holtsclaw, he denied ever owning a.30 30, and the murder weapon had never been found, even though Harrison was the only suspect from the beginning of the investigation. In fact, Harrison's fingerprints were not found on any of the items seized by law enforcement when they searched the trailer where Harrison had been hiding on March 22, 2018. Defense counsel argued for acquittal and never directly addressed the degree of the offense, except to argue that lying in wait was not supported by the evidence.
G. The Trial, Verdict, and Sentence
On October 1, 2019, the attorneys delivered opening statements. The case was submitted to the jury at the end of the court day on October 7, 2019. All told, the jury deliberated for approximately 13 hours over the next two days. On October 9, 2019, the jury delivered a verdict of guilty of first degree murder (§§ 187, subd. (a), 189, subd. (a)) and found true the alleged enhancement for firearm use causing death (§ 12022.53, subd. (d)).
On November 18, 2019, Harrison was sentenced to 50 years to life in prison: 25 years to life for the murder and 25 years to life to be served consecutively for the firearm use causing death. The judge acknowledged he had discretion to strike the 25-to-life enhancement (§ 12022.53, subd. (h)), but he specifically chose to impose it based on the circumstances of the offense and Harrison's use of a “highly efficient tool created for killing... large animals at a distance, ” loaded with deadly ammunition that “bloomed out like... a flower” so that Holtsclaw was killed quickly and efficiently, with no ability to defend himself. Harrison filed a timely notice of appeal.
II. DISCUSSION
A. Alleged Miranda Violations
Harrison claims he was denied due process, deprived of a fair trial, and his privilege against self-incrimination was violated by the court's admission of portions of his statement to Detective Peterson.
1. Forfeiture and the settled statement
Harrison contends that Detective Peterson gave him inadequate Miranda advice and failed to obtain a sufficient waiver from him. The Attorney General argues in his respondent's brief that Harrison had forfeited the Miranda issue by failing to raise it in the trial court. Following his trial and conviction, Harrison secured a settled statement from Humboldt County Superior Court indicating that Judge Kaleb V. Cockrum had raised the Miranda issue himself and had made a tentative ruling that Harrison had voluntarily waived his Miranda rights, which he announced to counsel on the record. Judge Cockrum then heard argument from counsel, which was brief. Defense counsel said she was aware the court had reviewed the transcript of the statement “at length.” She did not request a further hearing, and the only additional argument she made on Harrison's behalf was that the transcript indicated he is bipolar and he admitted he had a small amount of alcohol to drink before the interview. The judge ruled from the bench that there had been a “consensual waiver” by Harrison of his Miranda rights and the statement was admissible under Miranda and related cases. Implicit was a ruling that the advisements Harrison had been given were adequate. “[T]he understanding of the court and counsel was that the Miranda issue had been raised and ruled upon....”
We understand from the settled statement that the judge reviewed the transcript of the Miranda advice and waiver carefully, considered the available challenges, and found them wanting. We therefore reject the Attorney General's forfeiture theory. Judge Cockrum ruled the entire statement was admissible under Miranda because Harrison had received the required advisements and voluntarily and knowingly decided to talk to Peterson. We infer from the settled statement that any further objection by Harrison's counsel based on Miranda would have been futile. We will therefore address Harrison's claim of Miranda error on the merits.
2. There was no Miranda violation
a. Detective Peterson's Miranda advice
Detective Peterson did not recite a typical TV Miranda advisement, one admonition after another, read from a card. Instead, the admonitions were interlaced with conversation and questions. Or as Harrison puts it, Peterson “engaged in polite chit-chat” and “ingratiating” conversation with Harrison while administering the Miranda warnings.
After Detective Peterson introduced himself and his partner, Harrison greeted them with an immediate, “[W]e should talk.” Detective Peterson asked Harrison if he would like to speak to them. Harrison answered, “Yeah.” The detectives and Harrison then proceeded to an interview room. Unprompted, Harrison spoke to them about the food at the jail, his living conditions there, and the fact that he had been on the run. Harrison also asked the detectives what kind of trouble he was in, what evidence they had against him, and what was going to happen next.
Peterson told Harrison that before they could talk to him, Peterson needed to ask him a couple of questions to make sure that Harrison understood his rights. Peterson asked Harrison if he understood he was under arrest for murder. Peterson confirmed with Harrison that he wanted to talk with the officers and proceeded to advise Harrison of his right to remain silent and that anything Harrison said could be used against him in a court of law. Peterson asked Harrison if he understood that right. Harrison answered, “Yeah.”
Harrison asked Peterson, “But if I say nothing, then what? Nothing happens. It's, like, fuck.” Peterson said, “Yeah, well, ” and continued with the Miranda advice, moving next to the right to counsel. Harrison said he wanted to “get to the bottom of this, ” and “to go home.”
Peterson then advised Harrison that he had a right to talk to an attorney, to have an attorney present before and during questioning, and if Harrison couldn't afford an attorney, one would be appointed. As Peterson explained this right to Harrison, Harrison interrupted him, saying he could not afford an attorney, unless they gave him a public defender. Peterson said Harrison would get a public defender at arraignment and reiterated, “you have the right to have an attorney present while we're speaking to you-if you want. Do you understand that right?” Harrison answered, “Yeah.” With respect to getting a public defender, Harrison expressed skepticism: “What is he gonna do?” Then he volunteered, “I don't need one of those guys... [¶]... [¶]... you know what I mean? They just waste time.”
Peterson then reiterated, “kind of like I just explained, if you cannot afford an attorney, one will be appointed free of charge to represent you before and during questioning if you desire.” Peterson again asked Harrison if he understood that and Harrison again answered, “Yeah.” Peterson then elaborated, “So not here today, I can't get you one, but basically, at arraignment, that's when they'll, you know, get you... [¶]... [¶]... an attorney.” He explained that “arraignment” would be Harrison's first court appearance.
Peterson affirmed Harrison's realization that “this is gonna be goin' on for a long time, no matter what.” Peterson told Harrison he wanted to hear from Harrison, and said Harrison's information could “very well” change the course of his investigation. Peterson, however, immediately reaffirmed, “but just so you understand, you know, you don't have to talk with me right now if you don't want to but I would like to talk with you, all right?” In response, Harrison expressed his desire to be set free. Peterson acknowledged Harrison's desire, but immediately asked Harrison again whether he understood the rights of which he had been informed. Harrison again answered, “Yeah.”
Harrison contends telling him that his statement could “very well” change the investigation was a “false incentive” for him to cooperate. But “ ‘ “[i]n assessing allegedly coercive police tactics, ‘[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' ”' ” (People v. Hoyt (2020) 8 Cal.5th 892, 935 (Hoyt).) This was not such a tactic.
Harrison next queried what Peterson thought he should do and told Peterson he did not want to say anything untruthful. Peterson told Harrison he was only interested in the truth. Peterson repeated that he was interested in talking with Harrison but needed to be sure “we're on the up and up, ” and again asked Harrison if he understood the rights that had been read to him. Harrison again answered, “Yeah.” Peterson then asked if, having those rights in mind, Harrison wanted to continue talking, to which Harrison responded, “Uh yeah. And, uh, like, I wanna dude.”
The Attorney General argues the advisements by Peterson were properly administered and Harrison knowingly, intelligently, and voluntarily waived his Miranda rights. Harrison disagrees. He asserts his Miranda waiver was involuntary in part because he had been “softened up” by Peterson, and the detective used deceptive techniques designed to minimize the importance of the rights Harrison was waiving.
b. Standard of review
On review of claimed Miranda error, we accept the trial court's determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda. (Hoyt, supra, 8 Cal.5th at p. 931; People v. Tully (2012) 54 Cal.4th 952, 990-991.)
c. “Softening up” and “minimizing” importance of Harrison's rights
Harrison's opening brief refers to various statements by Peterson during the interview that he calls “softening up” tactics (People v. Honeycutt (1977) 20 Cal.3d 150, 158, 160 (Honeycutt)), and others he claims were designed to minimize the significance of the rights Harrison was being asked to waive. Harrison claims Peterson's chatty tactics and incomplete advice led him to make statements that he would not have made in the absence of such tactics.
Harrison further contends that Peterson extracted a pre-Miranda- advisement agreement from him to discuss the murder charge, and Peterson tried (unsuccessfully) to solicit from Harrison the name of the murder victim before completing the Miranda advisement and waiver. Harrison answered that he did not know the victim's name. But he now calls it a “patent violation of the Miranda advisement process” because “the detainee is supposed to be advised of his rights and obtain an accurate understanding of them before committing himself to talking with the interrogators about the offense.” (See Honeycutt, supra, 20 Cal.3d at pp. 158-160.)
Harrison relies heavily on Honeycutt, but that relianceis misplaced. In Honeycutt, the defendant had slashed and stabbed his victim more than 100 times with a barbecue fork, killing him. (Honeycutt, supra, 20 Cal.3d at p. 154.) He was apprehended shortly after the crime and taken to the police station, where he was interrogated. (Id. at pp. 154, 158.) Before he was informed of his Miranda rights, he was engaged in conversation with one of the arresting officers, who realized on the way to the police station that he and the defendant had known each other for about 10 years. (Id. at p. 158.) The two were left by themselves, and after a “half-hour unrecorded discussion” between them, Honeycutt expressed his willingness to talk about the homicide. (Ibid.) At that point, the officer administered Miranda warnings and secured an express waiver from Honeycutt of his rights. (Id. at pp. 158-159.)
The Supreme Court held this was Miranda error because the officers had intentionally delayed administration of the Miranda warnings while they “ ‘soften[ed] up' ” the defendant with “ingratiating” conversation about “unrelated past events and former acquaintances and, finally, the victim. [The interrogator] mentioned that the victim had been a suspect in a homicide case and was thought to have homosexual tendencies.” (Honeycutt, supra, 20 Cal.3d at pp. 158, 160.) The pleasantries exchanged about mutual acquaintances combined with the interrogator's disparagement of the victim and the delayed administration of the Miranda advice led to the Supreme Court's decision that Miranda was violated. (Id. at pp. 160-161.)
Honeycutt has been limited to its facts by later Supreme Court cases. People v. Krebs (2019) 8 Cal.5th 265 identified “ ‘the two salient features of Honeycutt' as involving (1) an interrogating officer who had a prior relationship with the defendant and who sought to ‘ingratiate' himself ‘by discussing “unrelated past events and former acquaintances”' and (2) the officer disparaging the victim.” (Id. at pp. 306-307, citing People v. Scott (2011) 52 Cal.4th 452, 477-478;accord People v. Young (2019) 7Cal.5th 905, 924-925.)
This case does not involve either of the two “salient features” that led to Honeycutt's holding. The police in Honeycutt exploited the pre-existing relationship between the defendant and his interrogator. (Honeycutt, supra, 20 Cal.3d at p. 158.) No pre-existing relationship was involved here, and the “polite chit-chat” did not draw upon Harrison's emotional connection to past events and former acquaintances, as did the police “ ‘softening up' ” in Honeycutt. (Ibid.) Nor did Peterson disparage the victim. Harrison took care of that himself.
There is also no evidence that Peterson intentionally delayed giving Miranda advisements, as was the case in Honeycutt. Just the opposite. The record shows that Peterson persistently tried to advise Harrison of his rights, but Harrison interrupted, keeping up a conversation that would temporarily sidetrack the Miranda warnings. But Peterson kept redirecting the conversation back to Harrison's Miranda rights. We do not see the same kind of subtle coercion here that existed in Honeycutt.
d. The allegedly defective Miranda advisements
Under Miranda, the officer's advisement must “ ‘reasonably “conve[y]”' ” to a suspect the following four warnings: “ ‘[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.' ” (Florida v. Powell (2010) 559 U.S. 50, 59-60; Miranda, supra, 384 U.S. at p. 479.) Harrison points to two specific alleged legal deficiencies in the Miranda advisements given by Peterson: (1) the failure to assure Harrison explicitly that if he invoked his right to remain silent, there would be no adverse consequences; and (2) the failure to inform Harrison that if he wanted a public defender present during questioning, he could have one assigned and would not have to wait until arraignment.
i. The right to remain silent
After being informed of his right to remain silent and that anything he did say could be used against him in court, Harrison asked Peterson, “But if I say nothing, then what? Nothing happens. It's, like, fuck.” Peterson said, “Yeah, well, ” and continued with the Miranda advice, moving next to the right to counsel. Harrison claims he should have been told that if he decided to remain silent, there would be no adverse consequences, citing Doyle v. Ohio (1976) 426 U.S. 610.
Harrison cites no cases holding that Miranda imposes upon police officers the duty to impart such additional advice. It is frequently said that the required Miranda advice imparts its own “implicit” “assurance that silence will carry no penalty.” (E.g., Doyle v. Ohio, supra, 426 U.S. at p. 618.) If that is so, then we see no reason to impose upon police officers a duty to more fully explain or reaffirm the lack of consequences.
The gist of Harrison's question (and immediate self-answer) appears to have been whether remaining silent would eliminate his chances of going home quickly. In other words, Harrison thought maybe he could talk his way out of the trouble he was in and could be released. Peterson was not required to disabuse him of that impression. Miranda requires that arrestees be advised of their fundamental rights and waive them before custodial interrogation. It does not require officers to give advice to detainees as to where their best interests lie, and certainly not the same advice a defense attorney would give.
We further find Peterson's failure to respond directly to Harrison's question did not induce Harrison's waiver of his privilege against self-incrimination. Harrison's immediate answer to his own question-“Nothing happens. It's, like, fuck.”-although ambiguous, suggests to us that Harrison was still fixated on being allowed to “go home” and figured “[n]othing” would happen in that regard if he remained silent. It does not strike us as an expression of fear that if he remained silent the officers would “hold [that] against him, ” as he now urges on appeal. Harrison was accurately advised of his right to remain silent and warned that anything he said could be used against him in court, and he said he understood that right.
ii. The right to appointed counsel
When initially told he had a right to speak to an attorney and related rights, Harrison said he could not afford one, unless he could be given a public defender. Peterson then told Harrison, “you'll get a public defender at arraignment.” Harrison argues this conveyed to him the inaccurate impression that if he wanted to see a public defender, he would have to wait until he was arraigned. Peterson told him, “Um, and kind of like I just explained, if you cannot afford an attorney, one will be appointed free of charge to represent you before and during questioning if you desire.” But Peterson, he claims, then immediately nullified that advisement by saying, “So not here today, I can't get you one, but basically, at arraignment, that's when they'll, you know, get you... [¶]... [¶]... an attorney.”
Harrison claims this advisement about the availability of appointed counsel was flatly inaccurate because Peterson linked the right to appointed counsel to some future point in time, after interrogation. Harrison argues the advice he was given conveyed to him that “in theory” he had a right to the presence and advice of counsel during questioning, but “in reality” he could not get a lawyer until he was arraigned.
Harrison claims this advice was factually wrong because Peterson could have simply placed a call to the public defender's office and could have obtained an attorney to consult with Harrison before and during questioning, and well before arraignment. He intimates that an attorney would have been made available quickly. Harrison's claim of error in this sense goes outside the record on appeal. We have no information in the record as to how quickly an attorney could have been provided to Harrison by the Humboldt County Public Defender's office if Harrison had been willing to delay the interview with Peterson. And it did not seem that Harrison wanted to delay the interview.
Harrison suggests the advice given him about appointment of counsel “at arraignment” was a Miranda violation, citing People v. Bolinski (1968) 260 Cal.App.2d 705, 718 (Bolinski) and United States v. Garcia (9th Cir. 1970) 431 F.2d 134 (Garcia). In Bolinski, two separate sets of warnings were ruled inadequate. In the first, the defendant was advised that “if he was charged... he would be appointed counsel.” (Bolinski, supra, at pp. 718-720.) Significantly, though, in Bolinski, the defendant was never advised that he had a right to appointed counsel during police questioning. (Id. at p. 720.) “The advisement that ‘if he was charged' counsel would be appointed is not a substantial equivalent of an advisement that if he is indigent he is entitled to have appointed counsel present at the interrogation.” (Ibid.)
In the second instance, the defendant, then in Illinois and about to be taken on a three-day car trip to California, accompanied by California law enforcement officers, was advised by Deputy Sheriff Bender that “ ‘the court would appoint [an attorney] in Riverside County[, California].' ” (Bolinski, supra, 260 Cal.App.2d at p. 723.) “When asked whether he advised defendant that if he were unable to afford private counsel that one would be appointed at no cost, Bender testified that he told him that ‘a public defender would be furnished for him by the court.' ” (Ibid.) Again, however, the advice omitted any reference to the right to appointed counsel during interrogation.
Harrison points out in both instances the reference to appointed counsel was linked to a future point in time and therefore did not fully advise the suspect of his right to appointed counsel before and during interrogation. (Bolinski, supra, 260 Cal.App.2d at pp. 720, 723.) But as we read Bolinski, the key to the holding was the complete failure by law enforcement to advise Bolinski of his right to appointed counsel during questioning. The same deficiency is not present in this case.
In United States v. Garcia, supra, 431 F.2d 134, an arrestee made inculpatory statements to law enforcement after being told she could “ ‘have an attorney appointed to represent you when you first appear before the U.S. Commissioner or the Court.' ” (Ibid.) In discussing the per curiam opinion, Harrison omits a sentence crucial to the holding: “On no occasion was a warning given fully complying with Miranda.” (Ibid.) Again, we deal with a situation in which full Miranda advice was given to Harrison.
California v. Prysock (1981) 453 U.S. 355 (Prysock) cited Bolinski and Garcia with approval. (Id. at p. 360.) The essential holding of Prysock was that the exact words used in the Miranda opinion need not be recited in talismanic fashion in order to satisfy the demands of Miranda. (Id. at p. 359.) Harrison would have us read Prysock as disapproving of Miranda advice that links the right to counsel to a future court appearance. (Id. at p. 360.)
The more recent case of Duckworth v. Eagan (1989) 492 U.S. 195, not cited by either party, casts a different light on Prysock and clarifies that there was no Miranda error in the present case. In Duckworth, the Seventh Circuit Court of Appeals had held a Miranda advisement to be inadequate, in part in reliance on Prysock, because it included advice that an attorney would be appointed for the defendant “ ‘if and when you go to court.' ” (Duckworth, supra, 492 U.S. at p. 197.) Focusing on the advisement's “ ‘link[] [to a] future point in time,' ” the Supreme Court explained that its “suggest[ion]” in Prysock that such a link would render Miranda advice inadequate in and of itself was not the point of Prysock. (Duckworth, supra, at pp. 204-205.) Rather, “the vice referred to in Prysock was that such warnings would not apprise the accused of his right to have an attorney present if he chose to answer questions.” (Id. at p. 205.) In this case, as in Duckworth, the Miranda warnings did not suffer from the same omission.
In fact, Duckworth had more to say that applies to this case: “We think it must be relatively commonplace for a suspect, after receiving Miranda warnings, to ask when he will obtain counsel. The ‘if and when you go to court' advice simply anticipates that question. Second, Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one. The Court in Miranda emphasized that it was not suggesting that ‘each police station must have a “station house lawyer” present at all times to advise prisoners.' [Miranda, supra, ] 384 U.S., at [p.] 474. If the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel. Ibid. Here, respondent did just that.” (Duckworth v. Eagan, supra, 492 U.S. at p. 204, fns. omitted.) The court in Duckworth also explained that the advice given the defendant about appointment of counsel “ ‘if and when you go to court' ” was correct advice under Indiana law (ibid.), as was Peterson's advice in this case. Under California law, too, appointment of counsel for indigent defendants normally takes place at arraignment. (§ 987, subd. (a); People v. Enraca (2012) 53 Cal.4th 735, 756.)
Harrison never made an unequivocal and unambiguous request for counsel and thus did not trigger Peterson's obligation to cease interrogation. “If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” (Davis v. United States (1994) 512 U.S. 452, 461-462.) In fact, Harrison admits in his opening brief that his initial questions about a public defender were not sufficiently unequivocal to trigger Peterson's obligation to stop questioning him. The only remaining issue is whether the additional advice by Peterson, “So not here today, I can't get you one, but basically, at arraignment, that's when they'll, you know, get you... [¶]... [¶]... an attorney” was so confusing or so misled Harrison that his waiver must be deemed uninformed and therefore involuntary. We think not.
“ ‘While the use of deception or communication of false information to a suspect does not alone render a resulting statement involuntary [citation], such deception is a factor which weighs against a finding of voluntariness.' ” (Hoyt, supra, 8 Cal.5th at p. 934.) Although we think Peterson's advice about appointment of counsel at arraignment was legally correct, it may be that some public defender offices in the state make counsel available to defendants on short notice if they request consultation with an attorney in anticipation of an interview with the police. To the extent that is true in Humboldt County, as Harrison alleges, it is possible Peterson's advice-“not here today, I can't get you one”-was inaccurate. But Harrison has not shown that to be so, and as appellant he had the burden of producing a record affirmatively showing error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; People v. Hooper (2019) 40 Cal.App.5th 685, 696.)
The police in Hoyt were far more deceptive than Peterson was in this case, even assuming his statement about the availability of counsel was inaccurate and he knew it, which is far from clear. In Hoyt, after the defendant said he wanted to take a break in questioning overnight, the police “told defendant a break between ‘now and tomorrow' would be ‘too late' because ‘[o]nce a lawyer contacts you, we are precluded from speaking with you anymore, period.' ” (Hoyt, supra, 8 Cal.5th at p. 934.) This was factually inaccurate; still, the Supreme Court found the deception did not make Hoyt's statement involuntary. (Ibid.) We reach the same conclusion about Harrison's waiver here.
Harrison's own words convince us that Peterson's “deception” about counsel, if it was that, did not induce Harrison's waiver of his right to counsel. Rather, Harrison's own skepticism about the utility and effectiveness of appointed counsel led to his voluntary waiver: “What is [a public defender] gonna do?” and “I don't need one of those [public defender] guys... [¶]... [¶]... you know what I mean? They just waste time.” He said he understood his right to counsel as explained to him, which included advice of the right to appointed counsel before and during questioning.
e. Harrison's waiver of his rights
Finally, Harrison contends he never gave a valid waiver of his Miranda rights. A Miranda waiver must be knowing, intelligent, and voluntary under the totality of the circumstances of the interrogation. (People v. Suarez (2020) 10 Cal.5th 116, 160.) To be valid, a Miranda “waiver must be ‘voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception' [citation], and knowing in the sense that it was ‘made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.' ” (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219.)
Peterson did not ask Harrison explicitly whether he wanted to waive his rights, but Harrison said he wanted to continue talking to Peterson even after being advised of his rights. A waiver can be either express or implied. (People v. Flores (2020) 9 Cal.5th 371, 417; People v. Johnson (2010) 183 Cal.App.4th 253, 293.) “In reviewing a trial court's denial of a suppression motion, we accept its resolution of factual disputes when supported by substantial evidence and determine independently whether, on those facts, a challenged statement was obtained illegally.” (Hoyt, supra, 8 Cal.5th at p. 931.)
In this case, Harrison was asked whether, having his Miranda rights in mind, he wanted to continue talking to Peterson. He answered, “Uh yeah. And, uh, like, I wanna dude.” A suspect's willingness to continue with the interview may constitute an implied waiver of his Miranda rights under the totality of the circumstances. (People v. Parker (2017) 2 Cal.5th 1184, 1216; People v. Gonzales (2012) 54 Cal.4th 1234, 1269.) Though Harrison claims to find error in Peterson's reassuring chit-chat, it takes two to chit-chat. Harrison's evident eagerness to talk to Peterson comes through even in the written transcript, but we have also listened to audio recordings of segments of his statement. We agree with the trial court there was a valid waiver.
B. Inadmissible Testimony by Law Enforcement Witnesses
Harrison claims that certain testimony was allowed into evidence despite the court's prior ruling that it was more prejudicial than probative. (Evid. Code, § 352.) This evidence, he claims, considered cumulatively, was so prejudicial that its admission requires reversal of his conviction.
1. Deputy Borges's testimony that she went to Miranda “searching for a homicide suspect in a stolen vehicle”
During the discussion of the prosecution's motions in limine with respect to Harrison's interview with Peterson, the court and counsel discussed his statement that the white vehicle he was driving on March 21, 2018, had not been stolen. Defense counsel sought to exclude from evidence the statement regarding a “stolen” vehicle because (1) there was no evidence that Harrison ever stole a vehicle; (2) it was irrelevant; and (3) the word was, in any case, more prejudicial than probative under Evidence Code section 352. The judge agreed with the defense and ordered that statement eliminated from what the jury would hear.
Despite the previous ruling, when Borges was on the witness stand, she testified she had been dispatched to Miranda to “search[] for a homicide suspect in a stolen vehicle.” After an unreported bench conference, the judge admonished the jury that there was no evidence the car was stolen and they should not consider that information for any purpose. We presume the jury followed the instructions given them. (People v. Krebs, supra, 8 Cal.5th at p. 335.)
2. Deputy Borges's testimony that Harrison was reportedly “armed and dangerous”
When the prosecutor asked Borges why she waited at the top of the road after Harrison turned off, the defense attorney registered a hearsay objection, which the court sustained and then advised the jury: “Ladies and gentlemen, I'm sustaining the hearsay objection. You are not to consider this information for the truth of the matter but merely as to why the deputy took the actions that she did.” Borges then testified Harrison was reportedly “armed and dangerous, ” so she was waiting for backup. Thus, the evidence was admitted for a limited nonhearsay purpose, which was explained to the jury. Here, too, we must presume the jury followed the court's instructions.
3. Detective Peterson's testimony that Hennings “expressed fear” to him when they walked through the crime scene
Detective Peterson testified as the primary investigating officer and as the People's final law enforcement witness. Part of Peterson's testimony related to his interview of Hennings on the day of the shooting. Peterson described how he walked Hennings through the crime scene area to make sure he would “understand what [Hennings] was explaining, ” and then they walked through Hennings's residence “to make sure that there was nothing there that appeared to be suspicious or connected with the shooting, ” and there was not. The following colloquy then occurred: “Q: And what was Mr. Tory Hennings' demeanor like while you were speaking with him while he was telling you what happened? [¶] A: His voice was shaky at times. At times, especially when-when he was talking about the actual shooting, he appeared short of breath and he expressed fear to me. [¶] [Defense attorney]: Objection. Hearsay. [¶]...[¶] The Court: So, the objection is sustained.”
The court continued: “Officer, Just-I think there's some questions as to the language that was being used and I want to make sure you are testifying as to what you observed rather than what you may have heard. [¶] Go ahead Mr. [Prosecutor]. [¶] By [Prosecutor]: [¶] Q: How did Mr. Hennings express fear to you? [¶] [Defense attorney]: Objection. Speculation as well as hearsay, potentially. [¶] The Court: Well, it is sustained as far as we're not-you are not asking what he was saying. [¶] Is that correct, Mr. [Prosecutor]? [¶] Mr. [Prosecutor]: Yeah. [¶] The Court: It is overruled as you can say what you saw and his demeanor and behavior. [¶] The Witness: At this time, I don't think I would be able to describe it better than describing that he had a shaky voice and at times he was short of breath.”
The defense hearsay objection was sustained, and the witness's testimony was thereafter limited to his personal observations. A witness's testimony based on his own observations is not hearsay. (People v. Veamatahau (2020) 9 Cal.5th 16, 27.) Peterson's initial reference to “expressed fear” was not stricken, but in any event there was no error because that testimony either was not hearsay in that it was the witness's “ ‘present recollection of an impression derived from the exercise of the witness'[s] own senses' ” (People v. Lewis (2001) 26 Cal.4th 334, 356; Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 32; Cal. Law Revision Com. com., Deering's Ann. Evid. Code (2004 ed.) foll. § 702, p. 375) or was subject to a hearsay exception for evidence “of the declarant's then existing state of mind, emotion, or physical sensation” offered to prove Hennings's “state of mind, emotion, or physical sensation at that time.” (Evid. Code, § 1250, subd. (a).) Besides, Hennings's neighbor, Glenda Massey testified that Hennings was “upset” and “scared” when he arrived at her house, which makes Peterson's similar testimony harmless. There was no error, but even assuming error, there was no prejudice.
4. Detective Peterson's testimony that Harrison admitted he had owned “illegal” firearms in the past
While Peterson was questioning Harrison after his arrest, Harrison admitted he had possessed illegal guns in the past. Before that segment of the interview was played for the jury, defense counsel moved to preclude Detective Peterson from mentioning the word “illegal” in relation to Harrison's firearms. The judge ruled the word would be excluded as more prejudicial than probative (Evid. Code, § 352). The prosecutor agreed to edit the CD. Despite that ruling and the prosecutor's pledge, when Peterson was questioned by the district attorney he testified that Harrison had admitted owning “illegal firearms in the past.” The word “illegal” should not have been uttered. The judge admonished the jury to disregard it.
At the next recess, defense counsel moved for a mistrial.
5. Denial of the mistrial motion
Defense counsel's mistrial motion was based not only on the witness's use of the word “illegal, ” but also the earlier testimony about a “stolen” vehicle, after both words had been ruled inadmissible by the court. The prosecutor told the court he thought he had sufficiently instructed Peterson to avoid the inadmissible word and apologized for his testimony. The judge said he was “more than disappointed”; he was “angry” because “this is the second time in this case where the words ‘illegal' or ‘stolen' have slipped in....” The court upbraided the prosecutor but also found he did not engineer the insertion of the words into the trial intentionally.
The judge denied the mistrial motion. Harrison now claims we should consider the cumulative effect of all four alleged evidentiary errors in judging whether the mistrial motion was erroneously denied. It makes no difference whether we consider all four alleged errors or only the two urged in the trial court; the denial of the mistrial motion was not error.
Denial of a mistrial motion is reviewed under the deferential abuse of discretion standard. (People v. Gonzales (2011) 51 Cal.4th 894, 921.) “ ‘ “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.”' ” (Ibid.)
It was not an abuse of discretion for the court to deny the mistrial motion. We defer to the judge's finding that the prosecutor's error was not intentional. These were minor missteps cured by immediate instruction from the court. The gist of the witnesses' remarks-that Harrison may have been connected with illegal guns and stolen cars in the past-was minor in comparison to the charged offense. That Hennings “expressed fear” was harmless, and the “armed and dangerous” remark was properly limited by the court. An immediate admonition was given in each instance, and that was sufficient to cure any prejudice stemming from the witnesses' volunteered remarks.
C. Harrison's Statement Regarding Hennings's Alleged Sexual Encounter with Harrison's Girlfriend
Harrison claims he was denied a fair trial and due process by the trial court's ruling allowing the prosecutor to introduce a segment of Harrison's statement to Peterson that had not been ruled on previously in the prosecutor's motion in limine. (U.S. Const., 14th Amend.) He also includes in his argument heading a claim of deprivation of the effective assistance of counsel. He does not, however, include further reasoned argument or citation of authority for that heading. This failure relieves us of any obligation to consider Harrison's unsupported argument heading, and we deem the Sixth Amendment issue waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Cal. Rules of Court, rule 8.204(a)(1)(B).) Harrison further alleges the prosecutor was estopped from introducing the additional segment, which consisted of Harrison's expression of suspicion that Hennings had once had a sexual encounter with Cora, Harrison's girlfriend and the mother of his child.
Pursuant to California Rules of Court, rule 8.204(a)(1)(B), an appellant is required to “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.”
1.Factual background
Prior to trial, the prosecution filed motions in limine that, among other things, requested permission to present evidence of four segments of Harrison's June 6, 2018 custodial interview by Detective Peterson. The trial court conducted hearings and made its rulings. Harrison does not contest those rulings, except the Miranda ruling, which we have already discussed.
On the third day of testimony, the prosecutor sought permission to question Peterson about a different and previously undesignated portion of Harrison's custodial statement. The new passage began as follows: “Q: Did you and [Hennings] ever have a fallin' out? [¶] A: One time I thought he fucked my lady. In a motel room that we were at. And that was the only thing. But I think he knows that I know. [¶] Q: Was this before or after you guys were growing together? [¶] A: This was-this was kinda right at the beginning dude. [¶] Q: But you're still at his place growing together. [¶] A: I just started doing drugs. And we all would do it at the same time. And then I woke up and my lady comes out of the room-uh, the bathroom naked and then he came out afterwards. [¶] Q: Who is your old lady? [¶] A: (Cora). And (unintelligible). But see he knew I know. [¶] Q: So now you're accusing the mother of your child of being with another dude? [¶] A: My best friend. We were just in the beginning of the year. [¶] Q: So the best friend was (Tory). And the mother of your child is (Cora). And they- [¶] A: They got caught and I never said anything.”
The prosecutor suggested the passage could establish another motive for the homicide, namely that Harrison was actually trying to kill Hennings out of jealousy and revenge, not trying to kill Holtsclaw at all. Such a scenario, he suggested, would raise “a potential transfer[red] intent-type issue.” This prosecutorial theory was consistent with Hennings's testimony that it appeared Harrison was aiming the rifle at him. The prosecutor recounted that Hennings jumped into Holtsclaw's truck and “kind of hid behind Bob, ” and Bob was the one who got shot. “So I think having this additional information [on] motive is important.” The prosecutor ultimately argued this theory of motive, among others, to the jury.
On the other hand, the same passage also supported another theory that Harrison had offered to Peterson about “why somebody would set him up.” Hennings might have falsely accused Harrison as the shooter to get rid of him so that Hennings could have Cora all to himself. This was the gist of what Harrison told Peterson. To the extent the disputed passage gave Harrison one more reason why he might have been scapegoated, it cut both ways. And because he did not kill Hennings or otherwise confront him at the time he learned of the alleged sexual encounter, Harrison's attorney told the jury he would not likely have been aiming at Hennings on the date in question.
Defense counsel argued the statement relating to the sexual encounter should be excluded because allowing the additional excerpt into evidence would “change[] the defense's theory of the case, ” “impact[] [defense] tactics, ” and affect “how [they] question witnesses.” She suggested having this segment in the trial “would have impacted my opening” statement and, without providing specifics, “would have impacted which jurors I would have chosen to select.” These complaints were of a conclusory nature and do not provide concrete evidence that her theory of defense or selection of jurors was negatively affected by her reliance on the prosecutor's in limine motion. She did not identify any specific jurors she would not have chosen or why. The only detail she provided was that she would not have forgone cross- examining Hennings about the alleged encounter, yet she did not recall Hennings when she had the opportunity.
Defense counsel gave an opening statement but it was not transcribed.
The trial judge observed that the newly proffered evidence raised the issue of transferred intent, i.e., that Harrison may have been trying to kill Hennings rather than Holtsclaw. But he concluded that was “not a different factual theory as to what occurred that day, just as to why it occurred.” The judge commented that the disputed segment was “not new information, it's within the contents of the same document that we've all read.” The court explained, “If Mr. Harrison is the perpetrator, there's a black hole as to why, ” but “[a]s the case progresses, I think those theories can develop.” The court said its ruling was tentative.
With the court's permission, the next day defense counsel submitted a written motion to exclude the disputed passage. Her position was that she had formulated her trial strategy based on the in limine rulings. She alleged her voir dire had been affected, but the judge noted that she would have had to walk a thin line to avoid asking potential jurors to prejudge an issue. Defense counsel again specifically stated that she “chose not to cross Tory Hennings on this very issue due to those rulings..., which prevented the jury from first hearing about this issue from Defense.” She argued the passage was more prejudicial than probative, coming into the trial at this juncture. (Evid. Code, § 352.)
The trial court denied the defense motion to exclude the evidence, commenting that the disputed statement “provides motive for Mr. Harrison to draw down on Mr. Hennings, as Mr. Hennings described, ” and “I think defense counsel was on notice.” The judge explicitly ruled the evidence was not more prejudicial than probative and concluded with the comment that defense counsel was free to recall Hennings if she so desired. She did not recall Hennings. After both parties rested, the court agreed to give CALCRIM No. 562 on transferred intent at the prosecutor's request.
On appeal, Harrison claims the judge abused his discretion in allowing the evidence of the sexual encounter to come into the trial because it “changed the scope of the trial.” He also claims the prosecution was equitably estopped from pursuing the theory that the homicide of Holtsclaw was a mistake-that Harrison really intended to kill Hennings out of sexual jealousy-because it had not designated that portion of the interview in its motion in limine.
2. Abuse of discretion
The trial judge did not abuse his discretion by admitting the evidence. The jury could easily have concluded on its own, even without the disputed passage, that the shooting of Holtsclaw was a mistake and that Harrison's real target was Hennings. There was some implication raised by the defense that perhaps Hennings wanted to frame Harrison because he wanted to keep the whole marijuana crop they were growing together and all the proceeds, instead of having to split it with Harrison.
It was equally possible the jury would conclude that Harrison aimed to shoot Hennings so that he could keep the whole marijuana crop. Since the jury's settling on such a factual theory was a real possibility, the jury would need to be instructed on transferred intent. Transferred intent was effectively in the trial already, and the relevant pattern instruction (CALCRIM No. 562) had been requested by the prosecutor before trial and was ultimately given. The trial judge did not abuse his discretion by allowing the prosecutor to present all relevant evidence at his disposal to support the theory that Hennings was Harrison's real target, so long as it was not unduly prejudicial. (Cal. Const., art. I, § 28, subd. (f)(2) [Right to Truth-in-Evidence: “relevant evidence shall not be excluded in any criminal proceeding”]; Evid. Code, §§ 210, 352, 1101, subd. (b).)
As the trial court noted, the “black hole” in this case was motive. The evidence was overwhelming as to identity of the shooter, but Harrison's motive was largely a mystery. To the extent the prosecutor could shed further light on that point, the evidence was highly relevant, and the jury was entitled to hear it. As the judge said, the challenged evidence did not raise “a different factual theory as to what occurred that day, just as to why it occurred.” The jury was instructed with CALRIM No. 370, which told them the prosecutor was not required to prove motive, but Harrison's having a motive, or lacking one, could influence their assessment of his guilt. (People v. Larrios (1934) 220 Cal. 236, 251; CALJIC No. 2.51.)
Due process principles did not prohibit the evidence of sexual jealousy as a motive from being admitted at trial, as Harrison had notice of the existence of the evidence, the evidence was relevant (Evid. Code, § 1101, subd. (b)), and its relevance was not outweighed by any prejudice (Evid. Code, § 352). “ ‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.' ” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
Harrison essentially challenges the timing of the prosecutor's motion. His attorney admitted at trial that the evidence itself was inherently more probative than prejudicial, but claimed its admissibility should have been decided when the other in limine motions were heard. Harrison claims now the prosecutor's delay made it impossible to investigate the incident and to rebut the disputed evidence.
We conclude the timing did not render the statement inadmissible or the trial fundamentally unfair. (See People v. Partida (2005) 37 Cal.4th 428, 436, 439.) Harrison's attorney had possession of his statement to Peterson well before trial and already should have conducted her investigation. Harrison admits Hennings would not have been a helpful witness on this point, which reinforces trial counsel's decision not to call him. Harrison implies he could have called Cora as a witness if he had been given more notice of the introduction of this part of the statement. It is unclear to us what good Cora could have done for Harrison. Regardless whether she admitted or denied the sexual encounter with Hennings, it was Harrison's belief that was relevant, not whether the encounter ever occurred in fact. And even if she could have testified to her observations of Harrison's mental state before Holtsclaw was killed, we have no reason to believe that testimony would have been helpful to the defense. If it were, she already would have been on the witness list.
The judge had already ruled admissible a great deal of evidence about other motives Harrison might have had in shooting at Holtsclaw, including Holtsclaw's allegedly having “raped” Harrison some two or three months before the murder, and his allegedly having pulled a gun on Harrison around the same time. These allegations were at least as inflammatory as the “sexual encounter” testimony. The prosecution already had offered evidence that Harrison had a motive to shoot at Hennings in that either of them could have wanted to get rid of the other to keep their whole marijuana crop for himself. Adding one more potential motive for the jury to consider did not make it an abuse of discretion to admit the evidence.
But even assuming for the sake of argument the evidence should have been excluded, it is not reasonably probable that a result more favorable to Harrison would have been reached if his motion to exclude the passage had been granted. (People v. Watson (1956) 46 Cal.2d 818.) Nor was the evidence so prejudicial that it denied Harrison a fair trial or due process by rendering his whole trial fundamentally unfair. (See People v. Partida, supra, 37 Cal.4th at pp. 436, 439.)
3. Lack of notice: People v. Christian (1894) 101 Cal. 471
Relying on People v. Christian (1894) 101 Cal. 471, Harrison asserts the trial court erred in permitting the prosecutor to admit evidence of another possible motive for the shooting. In Christian, the complaint alleged, and at the preliminary hearing the prosecutor alleged, that Christian had assaulted one named victim, and thereafter the district attorney filed an information charging him with assault with a deadly weapon upon a different person. Christian was tried and convicted upon that information. (Christian, supra, 101 Cal. at pp. 472-473.)
The Supreme Court reversed, stating: “whenever a defendant is informed against for an offense different from that charged in the complaint upon which he was examined, or not included therein, he has had no examination for that offense, and is entitled to have the information set aside upon the ground that he has not been legally committed.” (People v. Christian, supra, 101 Cal. at p. 477.) The principles articulated by Christian were not violated here. Harrison was charged in the complaint with the murder of Holtsclaw, the information alleged the murder of Holtsclaw, and he was convicted by the jury of the first degree murder of Holtsclaw. There was no confusion regarding which act by Harrison formed the basis of the charge and conviction or who the victim was. Harrison had notice that was in accord with the evidence presented at the preliminary hearing and with the evidence at trial. Christian is inapposite.
4. Estoppel
Nor do the civil cases cited by Harrison describing the doctrine of judicial estoppel support Harrison's claim of error. Harrison's opening brief also claims the applicable principle is equitable estoppel. Neither judicial estoppel nor equitable estoppel was raised at trial by the defense as a reason for granting Harrison's motion to exclude the evidence, and Harrison cannot assert a claim of either form of estoppel on appeal for the first time. (People v. Thomas (2018) 29 Cal.App.5th 1107, 1114 [prosecutor's burden to raise estoppel in defense against suppression motion]; Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997 [general rule is that parties cannot raise new issues on appeal].)
But even on the merits, the judicial estoppel argument-which is the only one supported by argument and citation of authority-is without support because there is no showing that the prosecutor took two “totally inconsistent” positions in the trial, which is a necessary element of judicial estoppel. (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422; Thomas v. Gordon (2000) 85 Cal.App.4th 113, 118.) He simply presented evidence of alternative motives for the same crime. The “ ‘judicial machinery' ” was not “ ‘pervert[ed]' ” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183), and the disputed evidence had no identifiable negative impact on what the judge called Harrison's “some-other-dude-did-it defense.”
D. Sufficiency of the Evidence
Lastly, Harrison challenges the sufficiency of the evidence of first degree murder, alleging there was insufficient evidence of either of two theories advanced by the prosecutor: lying in wait or premeditation and deliberation. In reviewing a sufficiency of the evidence claim, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319, italics omitted; People v. Johnson (1980) 26 Cal.3d 557, 562, 576.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence and draw every logical inference the jury could have drawn from the circumstantial evidence. (People v. Baker (2021) 10 Cal.5th 1044, 1103; People v. Morales (2020) 10 Cal.5th 76, 88.) In this case, we conclude both of the prosecution's theories were supported by substantial evidence.
1. Lying in wait
One of the prosecutor's theories was that Harrison was guilty of first degree murder because he committed the crime while lying in wait. (§ 189, subd. (a).) The court instructed the jury on this theory, over defense objection, as one of two theories of first degree murder, using CALCRIM No. 521, which read in pertinent part: “The defendant is guilty of first degree murder if the People have proved that the defendant murdered while lying in wait or immediately thereafter. The defendant murdered by lying in wait if: [¶] 1. He concealed his purpose from the person killed; [¶] 2. He waited and watched for an opportunity to act; [¶] and [¶] 3. Then, from a position of advantage, he intended to and did make a surprise attack on the person killed. [¶] The lying in wait does not need to continue for any particular period of time, but its duration must be substantial enough to show a state of mind equivalent to deliberation or premeditation. [¶] A person can conceal his or her purpose even if the person killed is aware of the person's physical presence. [¶] The concealment can be accomplished by ambush or some other secret plan.” (See People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
The court also instructed on premeditation and deliberation. In summation, the prosecutor argued both theories and argued that either Hennings or Holtsclaw could have been the intended victim. In such circumstances, the jury need not agree unanimously on which theory applies, so long as each juror concludes beyond a reasonable doubt that the crime was first degree murder. (People v. Russell (2010) 50 Cal.4th 1228, 1256-1257.)
The evidence lent itself to an interpretation that the gate had been closed to force Holtsclaw to stop his truck and to force Hennings out of the truck. Harrison positioned himself so he could fire at Holtsclaw's truck from the left side at an angle at which Holtsclaw would have difficulty defending himself, even though he had a.38 caliber handgun in the pocket in the door of his truck. Harrison surprised them, said nothing, aimed his rifle, and fired a single shot at Holtsclaw's chest.
Harrison's attorney argued to the court that a jury instruction on lying in wait should not be given and told the jury that lying in wait had not been proven. Harrison now contends the lying-in-wait theory was not supported by substantial evidence because the evidence was clear that Harrison made no effort to conceal himself from the targets of his crime, there was no evidence he knew about Holtsclaw's or Hennings's movements in advance (making it unlikely he “waited and watched” for them), and he had not been waiting in that spot for very long before the shooting took place.
The trial judge had a different take on the evidence. He suggested the gate blocking access to Hennings's house had been closed purposely to force Holtsclaw to stop his truck and to lure Hennings out of the truck. Harrison then positioned himself so as to fire at Holtsclaw's truck from a 45-degree angle, on an even plane with the truck cab, so that Holtsclaw, who had a gun in his truck, would have no opportunity to defend himself. The clear import of the judge's remarks was that Harrison had closed the gate, had waited and watched for Hennings and Holtsclaw to return, and then had victimized them in vulnerable circumstances from a place of advantage in a surprise attack or ambush. The judge specifically said he believed Harrison had been “lying in wait.”
The trial judge's interpretation of the evidence was a reasonable one. Since the trial judge accepted this theory of the case, we cannot say that no reasonable juror could have done likewise. Based on the whole record, a rational trier of fact could have found the essential elements of lying in wait beyond a reasonable doubt.
2. Premeditation and deliberation
Harrison also claims the evidence was insufficient to support a first degree murder conviction under a theory of premeditation and deliberation. He claims there was no evidence of motive and that the nature of the crime was not such as to show those elements of first degree murder beyond a reasonable doubt. We disagree.
A “willful, deliberate, and premeditated killing” is murder in the first degree. (§ 189, subd. (a).) Pulling the trigger on a hunting rifle was a willful act leading to Holtsclaw's death. “ ‘Deliberation' refers to careful weighing of considerations in forming a course of action; ‘premeditation' means thought over in advance.” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” (People v. Thomas (1945) 25 Cal.2d 880, 900-901.) “ ‘ “A senseless, random, but premeditated, killing supports a verdict of first degree murder.”' ” (People v. Halvorsen (2007) 42 Cal.4th 379, 421.)
Here, the circumstances of the killing provide substantial evidence of a willful, deliberate, and premeditated murder. Even the time it took for Harrison to identify Holtsclaw's truck, raise his rifle, and take aim was a substantial period of time sufficient to premeditate and deliberate. (See, e.g., People v. Koontz, supra, 27 Cal.4th at p. 1080 [“ ‘[t]he process of premeditation and deliberation does not require any extended period of time' ”].) Harrison's time spent aiming his rifle gave Hennings a chance to run back to Holtsclaw's truck and try to hide behind Holtsclaw and gave Harrison time to deliberate. Harrison was armed with a hunting rifle containing high-velocity ammunition designed to do maximum damage, which shows he premeditated the killing.
As Harrison admits, it was possible for the jury to infer that Harrison closed the gate. The prosecutor argued he did this so as to trap Holtsclaw and Hennings in a vulnerable position within the sights of his rifle. This was evidence of planning. Harrison knew both men, had possible motives for killing either, and the manner of his killing was “particular and exacting.” (People v. Anderson (1968) 70 Cal.2d 15, 27; id. at pp. 26-27 [planning activity, motive to kill, and method of killing all relevant to assess premeditation and deliberation]; People v. Morales, supra, 10 Cal.5th at pp. 88-89 [Anderson factors are descriptive only, not normative or exhaustive]; People v. Thompson (2010) 49 Cal.4th 79, 114-115 [the “manner of killing, a close-range shooting without any provocation or evidence of a struggle, reasonably supports an inference of premeditation and deliberation”].)
But there was evidence to suggest Harrison had contemplated his crime for a much longer time. Whichever of the prosecutor's theorized motives may have led to Holtsclaw's murder, all the identified hypotheses reflected grievances from months gone by. Months to allow the anger to fester, months to premeditate and deliberate. The shooting bore no earmarks of being the product of a rash impulse; it appeared to be a cold-blooded murder executed with planning, efficiency, and precision. (See People v. Marks (2003) 31 Cal.4th 197, 232 [“ ‘calm,' ‘cool,' and ‘focused' manner of a shooting” supported finding of premeditation and deliberation].) The record contains substantial evidence that the homicide was willful, deliberate, and premeditated. There was substantial evidence of first degree murder under two theories.
DISPOSITION
The judgment is affirmed.
WE CONCUR: TUCHER, J., BROWN, J.