Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Ct. No. F08906766 Gary D. Hoff, Judge.
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
INTRODUCTION
Appellant/defendant Jaime Martinez-Lopez (defendant) purchased a Mitsubishi truck from Jose Alberto Gallegos (Gallegos) but failed to make timely payments. On the afternoon of October 19, 2008, Gallegos told his wife that he was going to meet defendant to collect the balance due on the truck. Gallegos never returned. On the morning of October 20, 2008, Gallegos’s body was found inside the smoldering remains of his own vehicle, which had been set on fire and dumped in a vineyard. Defendant was subsequently arrested and charged with the murder of Gallegos. During a postarrest interview, defendant admitted he shot and killed Gallegos, and set his car on fire while Gallegos’s body was inside his vehicle.
Defendant was convicted of count I, first degree murder (Pen. Code, § 187, subd. (a)), with the special circumstance that the murder was committed for financial gain (§ 190.2, subd. (a)(1)), and the special allegation that defendant personally discharged a firearm proximately causing death (§ 12022.53, subd. (d)); and count II, arson (§ 451, subd. (d)). He was sentenced to life without possibility of parole, plus 25 years to life for the firearm enhancement.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant argues the court should have excluded his postarrest statements, in which he admitted killing the victim and burning the car, because his statements were involuntary and obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Defendant concedes he was advised of the Miranda warnings, but argues the warnings were minimized by statements made by the interrogating detective just before he read the warnings when the detective advised defendant to tell the truth about what happened. Defendant also contends the jury was improperly instructed as to how to determine whether a witness was an accomplice, and whether defendant attempted to destroy evidence. We will affirm.
FACTS
A few months before October 2008, defendant bought a Mitsubishi truck from Gallegos. Defendant picked up the truck at Gallegos’s house in Kerman. Gallegos’s wife knew defendant by the nickname of “Tornillo.”
Defendant failed to make timely payments on the truck. Gallegos learned from his friend, Rodrigo Torres, that other people were driving the truck around the San Joaquin area. Gallegos decided to take the truck away from defendant.
About one week before Gallegos’s death, Torres drove Gallegos to San Joaquin so he could take back the Mitsubishi truck. Gallegos and Torres found the truck with someone other than defendant. Gallegos reclaimed the truck and drove it back to his house in Kerman.
Gallegos’s wife testified about an incident which happened on the day that Gallegos reclaimed the Mitsubishi truck. Defendant arrived at their Kerman residence with two other people, and he was carrying a “car amplifier.” Defendant asked Gallegos for the truck back. Gallegos asked defendant when he was going to bring the money, because defendant owed him $2,500 to $3,000 for the truck. Defendant replied he did not have the money, but he was going to borrow it. Gallegos was skeptical that defendant could get the money since defendant failed to pay him for several months. Defendant told Gallegos that was his own problem, and he would get the money. Defendant asked Gallegos to give him until October 19, 2008, to get the money. Gallegos agreed and gave the truck back to defendant, and defendant drove away in the Mitsubishi.
Gallegos leaves to meet defendant
On the afternoon of October 19, 2008, Gallegos took his wife and children to eat at McDonald’s in Kerman. Around 5:30 p.m., Gallegos stepped outside the restaurant and made a short call. According to Gallegos’s wife, Gallegos had arranged to meet defendant. Gallegos’s wife asked him if he wanted her to accompany him. Gallegos said no. Gallegos dropped off his wife and children at a relative’s house. Gallegos drove away in his burgundy Dodge Durango SUV, and his family never saw him again.
Testimony of Armando “Changa” Ayala
Armando Vasquez Ayala, also known as “Changa, ” was 16 years old and knew defendant and his family. Ayala testified that around 5:00 p.m. on October 19, 2008, he called defendant for a ride because he needed to speak to his work foreman. Defendant picked him up between 5:00 p.m. and 6:00 p.m. Defendant was not driving the Mitsubishi truck, but instead was driving a car that Ayala thought belonged to defendant’s cousin, known as “Cigarin.”
Ayala testified that defendant gave him $20, and told him to put gas in the car and buy a lighter. Defendant told Ayala to drop him off at a certain location, and then drive the car to a particular vineyard off Lincoln Avenue in Kerman. Defendant told Ayala to wait for him in that vineyard and put on the car’s emergency lights. Defendant said he would arrive in another vehicle and pull into the field. He told Ayala to go “in front” or “behind” the other vehicle and follow him into the field. Ayala agreed.
Ayala followed defendant’s instructions and dropped him off at “Tijuanitas” in Kerman. Defendant was dressed in black, including a black jacket and black gloves. Around 6:00 p.m or 7:00 p.m., Ayala drove a car defendant had been driving to the designated vineyard, parked just off Lincoln Avenue, turned on the emergency lights, and waited. Ayala admitted that based on defendant’s statements and request for a lighter, he thought defendant and another person were going to burn a stolen car, or burn a car that belonged to someone that they did not like.
Ayala testified that he watched his rearview mirror and saw a grey or dark-colored truck arrive in the area. The truck made a fast turn, almost overturned, corrected at the last moment, and turned on the dirt road that led into the vineyard. Ayala thought defendant and another person were in the truck. Ayala did not see any other cars in the area.
Ayala intended to drive into the field and follow defendant, but he could not start defendant’s car. Ayala tried to start the car for 15 or 20 minutes, but he gave up and walked into the field. Ayala found defendant walking on a dirt road between the grape vines. Ayala did not see the truck after it pulled into the field, but he saw lots of black smoke rising from the vineyard.
Defendant asked Ayala what happened to the car that defendant gave him. Ayala explained the car would not start. They walked back to the car and defendant tried to start it. Defendant began swearing and appeared “desperate” and “anxious” because the car would not start.
Ayala asked defendant whether the other person, who had arrived in the truck with defendant, could call for help. Defendant referred to the other person as “buey, ” said he was “over there, ” and told Ayala not to talk about that person. Ayala thought defendant meant the other person was “hiding.”
Detective Palma testified that the literal translation for “buey” was “an oxen that has been castrated.” The term is commonly used either as a friendly or derogatory substitute for “dude.”
Ayala testified that defendant called his cousin Freddie, known as “Cigarin, ” to help them start the car. Freddie arrived and started defendant’s car with jumper cables, and then left. Ayala entered the newly-started car and stepped into the back seat, because he expected the “other guy” would join them. Defendant got in the driver’s seat and told Ayala to get in the front seat. Ayala asked if they were going to pick up the other guy, and defendant said no.
As defendant drove Ayala back to his house, defendant told Ayala that he shot “the other guy” and the victim was “burning up.” Defendant said the victim had been driving the truck, defendant shot him in the head, the truck almost flipped over, and defendant managed to get into the driver’s seat and take control of the truck. Defendant said he put the gun to the victim’s head, the victim said to go ahead and shoot, and defendant shot him.
Ayala asked defendant why he shot the other man, and defendant said “they had problems, trouble between them, ” and the victim had “shit on his stick too much.” Defendant said the victim’s name was “Botella, ” and called him a “son of a bitch.” Defendant said he had to burn his own jacket because the victim had “smeared” it with blood. Defendant told Ayala not to tell anyone about what happened, but added that Ayala would hear people talking about someone who got burned.
Ayala testified defendant was not wearing a black jacket when they met in the field. Ayala did not see defendant get rid of the jacket and he did not see any blood on defendant. However, Ayala noticed that defendant stripped off his gloves and threw them in the field before they drove away.
Ayala testified he became frightened when defendant told him about shooting and burning the victim. Ayala did not see defendant with a gun, and he did not ask to see a gun because he was scared.
DISCOVERY OF GALLEGOS’S BODY
Around 9:30 a.m. on October 20, 2008, Fresno County Sheriff’s Detectives Palma and Toscano responded to a grape vineyard off Lincoln Avenue near Kerman. A Dodge Durango SUV was in the vineyard, and it had been completely burned. Witnesses in the area said the vehicle had been burning all night, and it was still smoldering when the officers arrived.
A body was in the driver’s seat. The detectives determined the SUV was registered to Gallegos and they believed his body was in the vehicle. A key ring and set of keys were in the vehicle’s center console. Gallegos’s wallet and jewelry were near the body. The investigators did not find a jacket or any gloves near the burned vehicle.
Captain Ronald Eldridge of the California Department of Forestry and Fire Protection (CAL FIRE), an experienced arson investigator, determined the vehicle fire started on the floorboard of the driver’s seat, right under the victim’s legs. The fire had burned with great intensity around the victim’s legs and lower body, and on the driver’s side and front of the vehicle. It burned with less intensity on the victim’s upper body and in the back of the vehicle. The fire burned itself out without any suppression efforts from the responding fire units.
Captain Eldridge could not rule out an electrical problem as the cause of the fire, but he believed such a cause was unlikely because the driver would have been able to get out of the car in time. Eldridge used an electronic hydrocarbon detector but found no evidence of flammable liquids in or around the vehicle.
Captain Eldridge believed arson was the most likely cause of the fire. The fire could have been started by simply lighting a paper bag and placing it on the driver’s side floorboard. Such a device could have caused the significant damage to the victim’s body and vehicle.
The autopsy
A forensic pathologist removed the victim’s partial skeletal remains from the burned driver’s seat of the Durango. The victim’s body was leaning slightly to the right. The intensity of the fire had burned away portions of the body, including the skull and brain. However, the victim was identified as Gallegos based on DNA comparisons between Gallegos’s parents and a blood sample obtained from the victim’s body.
The pathologist could not determine a definitive cause of death but concluded the victim died as the result of homicidal violence of undetermined origins. There was no evidence of a bullet in the body, and no injuries to the victim’s intact chest and abdominal organs. Based on low carbon monoxide levels in the victim’s blood, however, the pathologist determined the victim died before the fire occurred. The toxicologist results were negative for alcohol but positive for methamphetamine, and indicated the methamphetamine may have been in the victim’s body for over 24 hours.
DEFENDANT’S PREARREST INTERVIEW
The detectives learned from Gallegos’s family that he was supposed to meet “Tornillo” about the Mitsubishi truck when he disappeared. They also learned that Torres knew about Gallegos’s transaction with “Tornillo.”
On the afternoon of October 20, 2008, Detectives Palma and Toscano met Torres and his wife at the sheriff’s substation in San Joaquin. The detectives drove them around the area, and the Torreses showed the various locations where they had seen the Mitsubishi over the past few weeks. As the detectives returned Torres and his wife to the substation, they saw the Mitsubishi traveling on Manning Avenue. The Mitsubishi was being followed by a Dodge sedan and a Chevrolet pickup truck.
The detectives followed the Mitsubishi and the two other vehicles to an apartment and conducted traffic stops. Defendant was driving the Chevrolet pickup truck, and his father, Martin Tovar Martinez, was driving the Mitsubishi. The detectives, who were in civilian clothes, spoke to defendant and described him as calm. Detective Palma asked defendant if he was “Tornillo” and defendant said yes. Palma asked defendant if he would accompany them to the nearby substation in San Joaquin and answer questions. Defendant agreed, and the officers drove him to the substation.
First phase of the interview
Detectives Palma and Toscano interviewed defendant at the sheriff’s department substation in San Joaquin. They conducted the interview in Spanish and it was tape-recorded. The interview was conducted in two parts separated by a break.
At 8:05 p.m. Detectives Palma and Toscano started the first part of the prearrest interview with defendant. Palma assured defendant that he was not under arrest, he could ask for a break or something to drink, he could end the interview at any time, and all he had to do was ask. Defendant was calm and said okay.
Defendant confirmed he recently bought the Mitsubishi truck from “Jose, ” also known as “Botella.” The detectives later confirmed that “Botella” was Gallegos. Defendant said he went with Gallegos to the Department of Motor Vehicles (DMV) in Madera and they put his name on the truck. Defendant said this occurred around 5:00 p.m. or 6:00 p.m. on October 19, 2008.
Defendant said he bought the truck from Gallegos about three months earlier, with an agreed price of $3,000. Defendant made a down payment of $850 and Gallegos agreed to accept payments because defendant did not have the cash. Gallegos told defendant to pay off the truck in two months, and defendant agreed to make weekly payments of $200.
Defendant said the truck started to break down, and he reduced his weekly payments to $100 and used the rest of the money to fix the truck. Gallegos initially agreed to the reduced payments, but Gallegos started “ ‘fighting with his woman’ ” and demanded more money from defendant.
Defendant said he met Gallegos at 5:00 p.m. on October 19, 2008. Defendant gave him $2,400 as the final payment on the truck, and Gallegos gave him the pink slip. Gallegos drove defendant back to his house and they passed “Bocho, ” one of Gallegos’s friends. Defendant said that both Gallegos and Bocho used and sold crystal methamphetamine. Gallegos picked up Bocho and they talked about getting some crystal. Defendant said Gallegos dropped him off at his house between 6:30 p.m. and 7:30 p.m. and drove away with Bocho.
Throughout the interview, defendant gave inconsistent statements as to when Gallegos gave him the truck’s pink slip and when they went to the DMV: that Gallegos gave him the registration papers and kept the pink slip when defendant made the down payment; Gallegos gave him the pink slip and they went to the DMV when defendant made the down payment; and/or Gallegos gave him the pink slip and they went to the DMV on the afternoon of October 19, 2008, when defendant made the final payment.
Detective Palma asked defendant about his interactions with Ayala. Defendant said he drove a white Chevrolet pickup truck to Ayala’s house, left the truck there, and walked to a particular location where Gallegos picked him up. Palma asked defendant why he left his truck at Ayala’s house, met Gallegos on foot, and let Gallegos drive him back to his own house. Defendant chuckled and said he was “fatigued” and “nauseated” and did not have any energy.
Detective Palma testified defendant’s demeanor changed as the interview continued. Defendant repeatedly paused, looked down, and avoided eye contact when the officers asked more questions about Gallegos.
Second phase of the interview
At 9:45 p.m., the detectives told defendant they were going to take a break, and they walked with him to the front of the substation. Defendant stayed outside and by himself during the break, and he did not try to leave.
At 10:15 p.m., the detectives contacted defendant outside the substation to resume the interview. Palma was surprised he was still there. Defendant did not have any objections to continuing the interview and he went back inside. Palma testified that if defendant had left during the break, they would not have pursued or arrested him, but they would have continued the investigation.
When the interview resumed, Detective Palma asked defendant about the location of the truck’s pink slip. Defendant said it was in the truck’s glove box, and gave permission for an officer to retrieve the document from the truck.
An officer responded to the location where the Mitsubishi truck was parked, found the pink slip in the vehicle’s glove box, and brought it back to the substation. At trial, Gallegos’s wife identified Gallegos’s signature on the front of the pink slip. The name “Alejandro Martinez” was signed on the back in different handwriting.
Detective Palma testified that he used the second half of the interview to confront defendant about discrepancies in his prior statements. Palma told defendant that he had to explain if someone got him into this mess, and asked what happened to Gallegos. Defendant said he did not know what happened and thought Gallegos was with his family. Palma asked defendant if he was afraid of anyone, and defendant said no.
Palma testified that defendant’s demeanor changed during the second half of the interview. Defendant looked away from the officers, and he acted worried and evasive. Palma encouraged defendant to tell the truth and explain the situation. Defendant said he did not know what happened. Palma told defendant he was lying and covering up because Gallegos was dead. Defendant said he had nothing to do with it. Palma said defendant looked like he was guilty and he knew what happened. Defendant said he did not know.
Palma again advised defendant that he was not under arrest. He asked defendant if he was finished talking or if he was going to tell the truth. Defendant said he did not have anything to say. Palma asked defendant if he was going to wait and see what the officers were going to do. Defendant laughed in response.
Palma repeatedly challenged defendant’s story about Ayala’s existence. Defendant initially refused to identify where Ayala lived, but eventually agreed to point out his house.
The interview ended at 11:10 p.m. on October 20, 2008. The officers drove defendant home and he pointed out Ayala’s residence in San Joaquin.
THE INVESTIGATION CONTINUES
On October 21, 2008, Detective Palma interviewed Ayala about defendant and Gallegos. Ayala testified that he initially lied to Palma about his knowledge of defendant’s actions because he was afraid that he would get in trouble for going to the field to “help out” defendant. Ayala was also afraid because defendant told him not to say anything.
Ayala eventually told the detectives about defendant’s activities in the field, and that defendant admitted that he killed Gallegos and burned the vehicle. Based on Ayala’s statements, the detectives decided to arrest defendant.
DEFENDANT’S POSTARREST INTERVIEW
At 10:40 p.m. on October 21, 2008, sheriff’s deputies arrested defendant at his trailer in Raisin City. Defendant was taken to the sheriff’s department in Fresno and placed in a holding cell.
In the early morning hours of October 22, 2008, Detectives Palma and Toscano conducted an interview with defendant at the sheriff’s department in Fresno. The interview was conducted in Spanish and videotaped. The interview was conducted in two parts and separated by a break.
First phase of the postarrest interview
At 1:25 a.m. on October 22, 2008, Detectives Palma and Toscano moved defendant from the holding cell to an interview room, and started their interview with defendant. As he started the interview, Detective Palma advised defendant that he was under arrest and Palma was going to read his rights to him. Palma also told defendant it was important for him to tell the truth now and explain what happened.
At trial, Palma explained his basic strategy when he interviews a homicide suspect: “I want to hear what happened. I want to hear the motive why what happened happened. If there is anybody else involved, I want to hear about that. I want to hear a reason why that happened.” In homicide investigations, Palma tells a suspect “that I want to know the truth, ” and that it was in the suspect’s best interests “to tell us his side of the story as to how things happen and why things came about.” “We tell them that to tell us the truth as to what happened. That’s what we tell them.”
According to the interview transcript, Palma told defendant the following:
“[Palma]: It’s important for you to be honest and tell the truth. We’ve already had an interview before today, okay, and you told us—part of what you told was true, but there is more lacking. It’s important for you to show remorse about what happened and explain exactly how things happened. And if you have an explanation about why what happened, happened, if you were provoked or if it was in self defense or anything like that, it is important for you to tell us now, okay? I’m going to read you your Rights, if you have any questions … if you don’t understand any of these Rights, I will explain it to you.
In section I, post, we will address defendant’s contentions that Palma’s preliminary statements nullified the subsequent Miranda advisements, and rendered his postarrest statements involuntary and inadmissible.
After Palma made these statements, he advised defendant of the warnings pursuant to Miranda. Defendant said he understood his rights and started to answer questions.
Palma testified defendant was “evasive” when the interview began. Defendant did not give “fast and fluid” responses, he took some time to respond, and he appeared to think carefully before he answered. Defendant sat with his arms crossed, and “his forehead resting on his arms.” Defendant appeared “worried, thinking, head down, ” and he would “pick up his head at times, look that away, not face us.”
Detective Palma conceded he did not ask defendant how long he had been awake that day or whether he was tired. Palma testified defendant did not appear to be tired.
Palma told defendant it was better for him to tell what happened, express remorse now, and explain his reasons. Palma asked defendant if he killed Gallegos and burned the car. Defendant said no. Defendant said someone named “Reyes Mata Palomino” killed Gallegos and burned the car. Defendant said Reyes asked him to “herd” Gallegos to a certain location where Reyes was going to beat him up. Defendant said Gallegos owed Reyes some drug money.
Defendant said that Ayala was with him because they were going to see their work foreman. Defendant told Ayala to get another car and wait for him by the fields where they worked on Lincoln Avenue.
Detective Palma asked defendant if he had the money to pay off the truck. Defendant initially said yes, and then he said no. Defendant said Gallegos pestered him about paying off the truck and making the payments. Defendant was angry because Gallegos yelled and insulted him, and called him a “snot-nosed kid.” Defendant said that Reyes told him not to pay Gallegos for the truck.
Defendant said he was in Gallegos’s Durango SUV, and Reyes followed them in a Chevrolet Tahoe as they headed to Lincoln Avenue. Defendant got Gallegos to stop in the field by telling him that he had to urinate. Defendant said Reyes and others talked to Gallegos at the entrance into the field before they drove onto the dirt road. Defendant said Reyes got into the back seat of the Durango. Defendant also said Reyes got out of the Durango, pulled a revolver, and pointed it at Gallegos’s head. Defendant said he got out of the Durango and stood behind Reyes. Reyes shot Gallegos point-blank into the forehead.
Defendant said that after Reyes shot Gallegos, defendant went to the car where Ayala was waiting. The car did not start because the battery was dead. Defendant’s cousin arrived at the field to jump-start the battery. Defendant said he told Ayala not to talk about what happened because he was afraid.
Detective Palma asked defendant about Ayala’s statement, that the Durango almost flipped over before it pulled into the field. Defendant paused when he heard this question, and then said that he argued with Gallegos about the truck and Gallegos was not looking at the road. Palma asked defendant why he told Ayala that he shot Gallegos. Defendant denied making that statement to Ayala.
Palma asked defendant why he failed to mention anything about Reyes during their first interview. Defendant started crying and said he was afraid of “those guys” because they could “ ‘do something’ ” to his family. Palma repeatedly suggested to defendant that Reyes did not exist. Defendant replied that Reyes existed and lived in Madera. Palma asked defendant how Reyes and his friends knew that defendant was supposed to meet Gallegos that day. Defendant did not respond. Palma falsely told defendant that he had shoe prints at the crime scene, and defendant did not respond.
Palma testified that he did not find any shoe prints around the crime scene but he used deception as an interview technique.
Palma again asked defendant why he told Ayala that he had killed Gallegos. Defendant finally admitted he made the statement, but claimed he was “ ‘boasting’ ” so he could feel “ ‘more important than them.’ ” Defendant said he had the money to pay Gallegos for the truck, but Reyes told him not to pay Gallegos.
Throughout the first part of this interview, the detectives urged defendant to tell them the truth, to pick up his head and talk like a man, that no one would believe his story, and he should consider how other people would think about him. The detectives told defendant that it was better to tell the truth, explain everything, and show remorse for what happened. Defendant kept saying that he was telling the truth.
Palma told defendant the “ ‘game’ ” was over, and it would be good for him to show that he had a heart and felt bad about what happened, that he left a family without a husband and father. Palma asked defendant what his own child would think of his behavior. Defendant did not answer.
Palma asked defendant what provoked him to kill Gallegos. Defendant said he did not take Gallegos to the field “ ‘so they could kill him. I just took him there so they could beat him up.’ ” Defendant added, “ ‘How many times do you want me to tell you that I didn’t kill him?’ ”
The second phase of the postarrest interview
Around 3:00 a.m., the detectives took a break and escorted defendant from the interview room to the holding cell. They gave defendant a cup of coffee and a soda, and they processed the paperwork about the case. No one interviewed or spoke to defendant during this time.
About 45 to 50 minutes later, the detectives escorted defendant from the holding cell into their office. Detective Toscano told defendant that Reyes did not exist, and that defendant did the things that he blamed Reyes for. Defendant said yes, that it was true. The detectives asked defendant if he was willing to tell the truth and defendant said yes.
At 3:56 a.m., the detectives escorted defendant back to the interview room and activated the recording equipment. Palma testified defendant’s demeanor changed during the second portion of this interview. Defendant sat up straight, he talked freely, the conversation flowed, and he looked at the detectives as he answered questions.
Defendant admitted he killed Gallegos. Defendant said Gallegos was driving the Durango and defendant was in the passenger seat. Defendant used a silver-plated.357 magnum, and pulled it from his waistband. He fired one shot into Gallegos’s right temple. The Durango went out of control until defendant grabbed the steering wheel and reached the gas and brake pedals.
Defendant admitted he burned the Durango, and he used Gallegos’s “Bic” lighter to ignite a McDonald’s bag from the backseat. Defendant ran away when the vehicle started to burn. Defendant denied that he planned to kill Gallegos and claimed it occurred to him “all of a sudden.”
Gallegos’s wife testified that they had dinner at McDonald’s just before Gallegos left to meet defendant.
Defendant said he threw the gun into a canal after he took Ayala home. Defendant described the canal where he threw the gun, and said the weapon would have two live rounds and one expended casing. Defendant did not show the gun to Ayala.
A dive team from the sheriff’s department searched several canals near the crime scene and Ayala’s house, and they did not find any weapons. Palma conceded defendant could have accurately described the canal’s location. An investigator determined several canals flowed into underground pipes.
Defendant knew Ayala believed they were going to burn a stolen car. Defendant also knew that Ayala sat in the back seat of defendant’s car because he thought someone was going to leave the field with them. Defendant admitted he told Ayala that person “was burning over there inside the truck.”
Defendant said he decided to kill Gallegos because they argued about the Mitsubishi, and Gallegos treated him as if he were “a snotty kid.” Defendant pulled his weapon and told Gallegos to drive into the field. Gallegos told defendant to kill him, so defendant did. Defendant claimed he might not have fired if Gallegos had not said that. Defendant said the gun “discharged” and the shooting may have been an “accident.” Defendant admitted he burned the Durango to “cover up … the evidence.” He saw Gallegos’s lighter and it “occurred” to him to burn the vehicle. Defendant claimed that when he set the fire, Gallegos was bleeding profusely and he was already dead. Defendant said he did not take Gallegos’s watch and jewelry.
Defendant gave contradictory answers as to whether he had the money to pay off the truck. Defendant initially said he did not have the money, and then said he had the money, but he did not pay Gallegos.
The interview ended at 4:23 a.m.
ADDITIONAL PROSECUTION EVIDENCE
Detective Palma testified he tried to determine whether “Reyes Mata Palomino” existed, but could not find any evidence of this person in various state computer records.
At trial, Ayala testified about his interactions with defendant, his observations of the truck nearly flipping over, the smoke from the field, and defendant’s admission that he killed Gallegos and burned the Durango. Ayala admitted that he initially lied to the officers when he was asked about defendant and Gallegos, and he was afraid that he would get into trouble because he helped defendant.
Ayala testified that he made a deal with the district attorney that he could not be charged with burning or stealing the car if he gave truthful testimony.
The prosecution granted Ayala “use immunity” from prosecution, for the act of participating in the disposal of a stolen vehicle, in exchange for his truthful testimony at defendant’s trial.
Also at trial, Ayala testified about an incident with defendant’s father that occurred shortly before the trial. Defendant’s father spoke to Ayala about a week before his trial appearance. Defendant’s father told Ayala that it would be better if Ayala “didn’t come here” so he would not get himself “into trouble.” Ayala admitted that he failed to mention these statements to anyone prior to his appearance at trial.
As we will explain in issue III, post, the court instructed the jury about the limited admissibility of Ayala’s testimony about the statements of defendant’s father, that such statements could not be considered as showing defendant’s consciousness of guilt.
DEFENSE EVIDENCE
Defendant’s trial testimony
Defendant, who was 21 years old, testified he was working 10-hour shifts for an agricultural company at the time of his arrest. On October 20, 2008, after he was interviewed by the detectives, he went to bed around 2:00 a.m. On October 21, 2008, the day of his arrest, he got up at 4:30 a.m., went to work at 5:45 a.m., and worked until 4:30 p.m.
Defendant testified he did not shoot Gallegos or set his car on fire. Defendant testified about the events of October 19, 2008, consistent with his statement during the first half of his postarrest interview: Reyes shot and killed Gallegos and burned the Durango, Reyes had asked him to take Gallegos to the field, and defendant agreed because he thought Reyes and his friends were going to beat up Gallegos. Defendant admitted he was going to participate in the beating because he was angry at Gallegos about the Mitsubishi truck.
Defendant said he met Reyes earlier the same morning. Reyes saw defendant driving the Mitsubishi and recognized it as previously belonging to Gallegos. Reyes told defendant that Gallegos owed him money for drugs. Reyes asked defendant to bring Gallegos to him, so they could get their anger off their chest by beating up Gallegos. Defendant told Reyes to meet them at a particular field off Lincoln Avenue. Defendant called Ayala because he needed a way to get home after he lured Gallegos to the field. He told Ayala about the plan to beat up someone. He did not remember asking Ayala to buy a cigarette lighter, but he could have done so.
Defendant testified Ayala dropped him off at a particular location, Gallegos picked him up, and they went to Gallegos’s house to pick up the truck’s pink slip. Defendant testified Gallegos drove along Lincoln Avenue, and he got Gallegos to stop in the field by telling him that he had to urinate. Reyes was following them in a Chevrolet Tahoe SUV. When they arrived at the vineyard, Reyes got into the back seat of Gallegos’s SUV and made Gallegos drive into the field. Reyes and defendant got out and stood on the passenger side of the SUV. Reyes and Gallegos talked, and Reyes shot Gallegos through the open passenger door.
Defendant testified Ayala never asked him about the other guy in the field. Defendant admitted he later told Ayala that he shot the victim. He made that false statement so he could gain the respect of the younger kids in the area. Defendant admitted that he also told Ayala not to tell anyone that he killed Gallegos. Defendant conceded it was contradictory to do so, but he expected Ayala to have a “big mouth” and tell everyone anyway.
Defendant testified that during his postarrest interview, he was not afraid of Reyes when he initially told the detectives that Reyes killed Gallegos. After the break in the interview, however, he said that he became afraid of Reyes and falsely told the detectives that he shot Gallegos because he was “scared” and “traumatized, ” and he did not want anything to happen to his family. Just before he was arrested, defendant learned from his uncle that his aunt, Jeanette Lopez, had been beaten by some men who were looking for defendant. They “took it out” on his aunt when they could not find him. Defendant believed Reyes was looking for him and wanted to silence him about what happened to Gallegos.
On cross-examination, defendant said there was only one person with Reyes in the field, and that person never got out of Reyes’s car. Defendant admitted he made up the story about “Bocho, ” the person who allegedly discussed methamphetamine sales with Gallegos. He wanted the detectives to believe that “Bocho” might have been the person who killed Gallegos.
Additional defense evidence
Jeanette Lopez, defendant’s aunt, testified that around 10:30 a.m. or 11:00 a.m. on October 21, 2008, she was returning to her apartment in San Joaquin when a Hispanic male approached her. He asked who owned the Mitsubishi truck that had been parked at her apartment complex. Ms. Lopez falsely said she did not know. The man called her a liar and claimed she owned it. She tried to get into her apartment, but the man pushed his way inside. She fell and hit her head.
Deputy Sheriff Pinkston testified that around 10:35 a.m. on October 21, 2008, he responded to Ms. Lopez’s residence, and she was taken by ambulance to a hospital at her request.
DISCUSSION
I. Defendant’s postarrest statements were properly admitted
Defendant contends the trial court should have granted his motion to exclude the statements he made during his postarrest interview with Detectives Palma and Toscano, when he initially claimed “Reyes” killed Gallegos, and then admitted that he shot Gallegos and set the victim’s car on fire. Defendant asserts all of his postarrest statements were involuntary because of comments made by Palma immediately before Palma read the Miranda warnings to himthat it was important to tell the truth about what happened to Gallegos and express remorse. Defendant argues that even though Palma followed this statement by reading the Miranda advisements, defendant received contradictory information as to whether he had the right to remain silent or he had to answer the detectives’ questions. Defendant further argues Palma failed to obtain an express waiver of his constitutional rights, and any implied waiver was involuntary because defendant was extremely fatigued when he was arrested and interviewed, and he was confused by Palma’s admonishments to tell the truth.
The court conducted a pretrial evidentiary hearing as to whether defendant’s postarrest statements were voluntary. The only witnesses were Detective Palma and defendant.
We will review well-settled principles of voluntariness, and then turn to the testimony at the evidentiary hearing and the court’s ruling to determine whether defendant’s postarrest statements were voluntary and properly admitted.
A. Voluntariness
The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution prohibit the use of involuntary statements made to law enforcement officers. (People v. Massie (1998) 19 Cal.4th 550, 576 (Massie); People v. Neal (2003) 31 Cal.4th 63, 79 (Neal).) When a defendant challenges his or her statements as involuntary, the prosecution bears the burden of proving voluntariness by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489; Massie, supra, 18 Cal.4th at p. 576.) “On appeal, the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession is subject to independent review. [Citations.]” (Massie, supra, 19 Cal.4th at p. 576; People v. Holloway (2004) 33 Cal.4th 96, 114 (Holloway).)
“A statement is involuntary [citation] when, among other circumstances, it ‘was “ ‘extracted by any sort of threats …, [or] obtained by any direct or implied promises, however slight....’ ” ’ [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the ‘totality of [the] circumstances.’ [Citations.]” (Neal, supra, 31 Cal.4th at p. 79.) In considering the totality of the circumstances, the relevant factors include “ ‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 635, 660.)
“In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (Massie, supra, 19 Cal.4th at p. 576.) A confession is involuntary and inadmissible as a matter of law “if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence, ” and the wrongful inducement and the defendant’s statements are “causally linked.” (People v. Maury (2003) 30 Cal.4th 342, 404-405.) A statement that is involuntary or coerced is “obtained by physical or psychological coercion, by promises of leniency or benefit, or when the ‘totality of circumstances’ indicates the confession was not a product of the defendant’s ‘free and rational choice.’ [Citations.]” (People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1.) “The statement is involuntary only if the threat [or promise] actually induces defendant to make the statement. [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 442.)
It is well settled, however, that “ ‘mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.’ [Citation.] As [the California Supreme Court] stated in People v. Hill (1967) 66 Cal.2d 536[, 549], the distinction between permissible and impermissible police conduct ‘does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by the defendant if he speaks the truth as represented by the police.’ [Citation.] In terms of assessing inducements assertedly offered to a suspect, ‘ “[when] the benefit pointed out by the police … is merely that which flows naturally from a truthful and honest course of conduct, ” the subsequent statement will not be considered involuntarily made [citation].’ [Citation.]” (People v. Belmontes (1988) 45 Cal.3d 744, 773, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn 22.)
With these principles in mind, we turn to the testimony at the evidentiary hearing.
B. Detective Palma’s hearing testimony
At the evidentiary hearing, Detective Palma testified that at 8:05 p.m. on Monday, October 20, 2008, defendant was interviewed at the sheriff’s department substation in San Joaquin. Defendant was not under arrest. During this interview, defendant repeatedly said he did not know what happened to Gallegos, and he last saw Gallegos driving off with “Bocho.” The interview ended at 11:10 p.m. Defendant was allowed to leave and the detectives drove him to his residence in Raisin City.
Palma testified defendant was arrested at 10:40 p.m. on Tuesday, October 21, 2008, at the trailer where he lived in Raisin City. Defendant was watching television when the detectives arrived. Palma advised defendant he was under arrest and placed him in handcuffs. Defendant did not resist. The officers did not draw their weapons when they arrested defendant. A deputy transported defendant to the sheriff’s department in Fresno, and defendant was taken to a holding cell.
At 1:25 a.m. on Wednesday, October 22, 2008, defendant was escorted into an interview room by Detectives Palma and Toscano. The interview room’s door was closed but not locked. Defendant was under arrest but he was not in handcuffs or restraints. The interview was videotaped. The detectives were in plain clothes. They were armed but did not display their weapons. This was the first time that defendant was interviewed after his arrest.
According to the transcript, Palma began the interview by confirming defendant’s name, address, and birthday. Palma then made the following statements to defendant before he read the Miranda warnings:
“[Palma]. Okay, what I explained in the recording is that we contacted you at your address.… We arrested you and we brought you here and right now we’re at Fresno Sheriff’s Headquarters and we’re in Interview Room #156, okay? Because you are under arrest I am going to read you your Rights, okay? It’s important that now you are under arrest, now it is really true, right?
“A. Yes.
“[Palma]. It’s important for you to be honest and tell the truth. We’ve already had an interview before today, okay, and you told us—part of what you told was true, but there is more lacking. It’s important for you to show remorse about what happened and explain exactly how things happened. And if you have an explanation about why what happened, happened, if you were provoked or if it was in self defense or anything like that, it is important for you to tell us now, okay? I’m going to read you your Rights, if you have any questions … if you don’t understand any of these Rights, I will explain it to you.
“A. Yes.” (Italics added.)
Palma gave defendant the Miranda warnings in Spanish. Palma asked defendant if he understood his rights and defendant said yes. Palma did not hear defendant’s reply and again asked him to clarify whether he understood. Defendant again said yes. Palma did not ask defendant if he agreed to waive his rights. Instead, Palma started asking defendant a series of questions and defendant answered the questions.
During the first part of the interview, defendant claimed he lured Gallegos to the field at the request of “Reyes, ” Reyes shot and killed Gallegos, and Reyes set Gallegos’s car on fire. Detective Palma testified he doubted defendant’s story, but he used a conversational tone of voice and never yelled or screamed at him. The detectives repeatedly advised defendant that they did not believe him, and asked him to tell the truth.
Detective Palma testified defendant was “wide awake” during the interview, and his demeanor seemed the same as when he was arrested a few hours earlier.
“He was very thoughtful. [W]hen we were talking to him, he kept putting his head down. He kept avoiding eye contact with us. He kept looking away. When we would ask him certain questions … or we would confront him that he’s the one who did this, he would look down. [M]any times he would burry [sic] his head in between his arms in this manner. [¶ ] Many times I had to or we had to access him to look up, face us, which he would reluctantly do.”
Palma testified defendant never appeared to be tired when he put his head down. Defendant never said he was tired or asked to stop the interview. Palma was aware that defendant worked long hours in the fields. He did not ask defendant if he had worked that day or how many hours he had been awake.
At 3:00 a.m., the detectives took a break, and they escorted defendant from the interview room to the holding cell because the room was not secure. Defendant was not placed in handcuffs or restraints. They gave him a cup of coffee and a soda. The detectives went to their office and processed paperwork. No one talked to defendant while he was in the holding cell.
At 3:56 a.m., Detectives Palma and Toscano escorted defendant into their office and intended to book him into custody. Palma sat at his desk, and Toscano and defendant stood next to the desk. They had left the hand-held tape recorder in the interview room, and their discussion in the office was not tape-recorded.
Palma testified that Toscano advised defendant they did not believe his story about Reyes and this was his last opportunity to be honest and tell the truth. Toscano told defendant that Reyes did not exist and defendant said yes. Palma testified:
“We brought him into our office and basically told him, look, there is no Reyes; right? And he says no. You are Reyes? He says yes. Are you willing to talk to us and tell us your story now? He agreed to it. He said yes. And we went into the interview room and continued with the interview.”
Palma testified they escorted defendant back to the same interview room and activated the recording equipment. They did not re-advise defendant of the Miranda warnings. Palma asked defendant: “[N]ow let’s talk, explain.” Defendant admitted he shot Gallegos and set the car on fire, and also admitted he made up the story about Reyes.
At 4:23 a.m., the second half of the interview ended. Toscano and Palma walked out of the interview room, and defendant got up and followed them. Defendant was booked into custody and placed in handcuffs.
C. Defendant’s hearing testimony
At the evidentiary hearing, defendant testified he was 20 years old when he was arrested. He worked 10-hour shifts loading pipes for an agricultural company. He went to bed at 11:00 p.m. on the night before he was arrested, and he got up at 5:00 a.m. the next morning. He usually slept eight or nine hours a night. He was awake and watching television on the night he was arrested.
Defendant testified he was placed in a patrol car and slept for about five or six minutes. He was taken to the sheriff’s department and placed in a holding cell. He was tired but he did not sleep in the holding cell because he was “just thinking and thinking” about what the detectives were asking him, and what he had told them.
Defendant testified that when the detectives began the interview and asked questions, he was “[m]ore or less” awake. Defendant further testified he was wide awake during the entire interview, including both before and after the break, but he felt like going to sleep.
On cross-examination, defendant testified he remembered when Detective Palma advised him of his right to an attorney and to remain silent. He remembered that Palma asked if he understood his rights, and he said yes. He remembered that Palma offered to explain his rights if he did not understand. Defendant testified he never asked for an explanation because he understood his rights.
D. The parties’ arguments
The prosecutor argued defendant’s postarrest statements were voluntary and admissible because Palma testified defendant did not appear tired and defendant admitted he was awake during the entire interview. Defendant also admitted that he understood when Palma advised him of his rights, and he remembered that Palma offered to explain anything that defendant did not understand.
Defense counsel argued defendant’s postarrest statements were involuntary because Detective Palma’s pre-Miranda statements to defendant, that he needed to tell the truth, amounted to “a very slow and earnest and more impassion[ed] reading of what I’m calling the reverse Miranda, ” followed by a “fairly rapid reading” of the Miranda warnings. Counsel argued Palma’s pre-Miranda admonishment that defendant had to tell them the truth was completely contradictory to his right to remain silent. Defense counsel argued the error was compounded by Palma’s failure to obtain defendant’s express or implied waiver of his rights.
Defense counsel advised the court that he also intended to argue defendant was too sleep-deprived to waive his rights, but conceded the “sleep deprivation evidence did not come in as I had hoped and expected it would, and that ground has really been damaged” by defendant’s hearing testimony.
The prosecutor replied that defendant had the opportunity to say that he was confused by Palma’s statements. Instead, defendant never asked Palma to explain anything during the interview, and he never testified about his alleged confusion at the hearing. The record showed an implied waiver because defendant said he understood his rights and immediately answered questions.
E. The court’s ruling
The court denied defendant’s motion to exclude his postarrest statements. The court reviewed the videotape and transcript of the interview, and found defendant was properly advised of the Miranda warnings, he gave a valid implied waiver, and he did not receive “two sets of rights.”
“There was a statement that the detective was going to read rights to the individual and then instead of reading the rights, made statements about encouraging the defendant and stressing the importance of telling the truth and then reiterated that, in fact, they were going to read the rights, the rights were read.”
The court noted that defendant stated he understood his rights and started answering questions.
The court further noted the videotape showed defendant’s demeanor during the interview, that his arms and hands were folding on top of the table, his head was down, and there was “a lack of eye contact generally throughout the interview.” However, defendant was “responsive to the question[s], ” there was not a long delay between questions and responses, and his responses were related to the questions. At one point, defendant cried when he mentioned his daughter, but he did not display any emotions or indications that he did not understand what was being said to him. The court further noted that at the conclusion of the interview, the detectives got up and left the room, and defendant got up and followed them “without any urging or any other motioning to him to follow. He just left with them.”
The court concluded there was no Miranda violation, the warnings were read verbatim, defendant replied that he understood, and there was “at least an implied waiver” when defendant responded to questions. Defendant never invoked his rights, and he never made any statements to indicate he did not understand his rights or that he wanted to terminate the interview.
The court additionally held there was no evidence of “any sleep deprivation or anything else by the defendant’s demeanor or by what was said by the defendant or what was not said that will indicate that he couldn’t or didn’t understand or that his statement wasn’t knowing, voluntarily and intelligently done during the course of the interview.…”
F. Defendant’s prearrest statements were voluntary
Defendant raises several arguments in support of his underlying contention that his postarrest statements were involuntary and should have been excluded. As we will explain, these arguments are without merit.
We first note when defendant was initially interviewed on the evening of October 20, 2008, he was not subject to custodial interrogation. He was not under arrest and he voluntarily agreed to accompany the detectives to the sheriff’s substation and answer questions. Defendant’s prearrest statementsthat he did not know what happened to Gallegos, and Gallegos drove off with “Bocho”were not involuntary or the result of any coercive interview techniques. Defendant was repeatedly advised that he was not under arrest and he was free to leave, he voluntarily agreed to answer questions, he remained outside the substation and stayed by himself during the break, and he voluntarily returned for the second half of his prearrest interview. While the detectives repeatedly told defendant that they did not believe his story and urged him to tell the truth, these statements were not coercive and did not represent coercive interview techniques or improper promises. (People v. Belmontes, supra, 45 Cal.3d 744, 773.) Defendant was not arrested after this interview and he returned to his residence. Defendant’s prearrest statements were voluntary and admissible.
G. Palma’s pre-Miranda statements were not coercive
Defendant asserts that at the beginning of his postarrest interview, Palma improperly made preliminary statements that it was important to tell the truth about what happened to Gallegos, these statements effectively nullified the impact of the subsequent Miranda advisement that he had the right to remain silent, and rendered all of his postarrest statements involuntary and inadmissible.
Defendant’s arguments are based on United States v. San Juan-Cruz (9th Cir. 2002) 314 F.3d 384 (San Juan-Cruz), in which the court found the defendant received conflicting advisements on whether he had the right to counsel. In San Juan-Cruz, defendant had been deported by the Immigration and Naturalization Service. Thereafter, he was apprehended by the Border Patrol for illegally attempting to reenter the country. A Border Patrol agent advised defendant of his administrative rights, including that he had the right to have counsel present during questioning but not at the government’s expense. The agent then informed defendant that he faced criminal charges and advised him of the Miranda warnings, that he had the right to remain silent and the right to an attorney, and an attorney would be appointed if he could not afford one. Thereafter, defendant admitted he illegally entered the country. He was indicted for illegally attempting to reenter the country after being deported. (San Juan-Cruz, supra, at pp. 386-387.)
San Juan-Cruz held the agent improperly gave defendant “two different and conflicting sets of warnings, ” when he was advised of his administrative right to an attorney but not at government expense, and then advised pursuant to Miranda that he had the right to an attorney and one would be appointed to represent him if he could not afford an attorney. (San Juan-Cruz, supra, 314 F.3d at p. 388.) The court held “these two conflicting sets of instructions were read to him one after another and, as a result, their meaning became unclear.” (Ibid.)
“When one is told clearly that he or she does not have the right to a lawyer free of cost and then subsequently advised, ‘[i]f you can’t afford a lawyer, one will be appointed for you, ’ it is confusing. Requiring someone to sort out such confusion is an unfair burden to impose on an individual already placed in a position that is inherently stressful.” (Ibid.)
San Juan-Cruz concluded defendant could not “reasonably ascertain” whether “he could or could not retain the services of an attorney for free, ” because the agent failed to “convey clearly” that he had the right to have an attorney present prior to and during questioning. (San Juan-Cruz, supra, 314 F.3d at p. 388.)
“When a warning, not consistent with Miranda, is given prior to, after, or simultaneously with a Miranda warning, the risk of confusion is substantial, such that the onus is on the Government to clarify to the arrested party the nature of his or her rights under the Fifth Amendment. The Government should not presume after having read two sets of contradictory warnings to an individual that he or she possesses sufficient legal or constitutional expertise to understand what are his or her rights under the Constitution. [Citation.]” (Id. at p. 389.)
Defendant relies on San Juan-Cruz and argues Palma’s pre-Miranda statements amounted to a “threatening disclaimer” that it was important to tell the truth, show remorse, and explain what happened, and contradicted the subsequent Miranda advisement that he had the right to remain silent, and the entirety of his postarrest statements were involuntary.
Defendant’s argument lacks merit. In contrast to San Juan-Cruz, Palma did not read defendant two sets of advisements, and he did not engage in any inappropriate or coercive interview techniques when he asked defendant to tell the truth. “Absent improper threats or promises, law enforcement officers are permitted to urge that it would be better to tell the truth. [Citations.]” (People v. Williams (2010) 49 Cal.4th 405, 444.)
“As has been reiterated, ‘mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.’ [Citation.] In terms of assessing inducements assertedly offered to a suspect, ‘ “[w]hen the benefit pointed out by the police... is merely that which flows naturally from a truthful and honest course of conduct, ” the subsequent statement will not be considered involuntarily made. [Citation.]’ [Citation.]” (People v. Howard (1988) 44 Cal.3d 375, 398; Holloway, supra, 33 Cal.4th at p. 115.)
In addition, any suggestions made by the interrogating officers “that defendant may not have been the actual killer, or may not have intended that the victim die, ” are not coercive. (People v. Williams, supra, 49 Cal.4th at p. 444.) It is permissible for the officers to suggest “possible explanations of the events” and offer defendant “an opportunity to provide the details of the crime. This tactic is permissible. [Citation.]” (People v. Carrington (2009) 47 Cal.4th 145, 171.) “And there is nothing improper in pointing out that a jury probably will be more favorably impressed by a confession and a show of remorse than by demonstrably false denials. ‘No constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence.’ [Citation.]” (People v. Williams, supra, 49 Cal.4th at p. 444.)
Palma’s pre-Miranda statements to defendantthat it was important to tell the truth, show remorse, and explain what happenedwere not coercive, and were not accompanied by any threats, promises, or inducements to make defendant believe that he had no choice but to answer their questions. In contrast to the Border Patrol agent in San Juan-Cruz, Palma did not deliver contradictory advisements or admonish defendant that he had to answer questions. Palma did not promise lenient treatment in exchange for cooperation, or represent that the court or prosecutor would grant defendant any particular benefit if he told them what happened. (See, e.g., Holloway, supra, 33 Cal.4th at p. 116.)
Palma immediately advised defendant of his right to remain silent, thus impressing upon defendant the fact that while it was important to tell the truth, he had the right not to answer any of their questions. At the evidentiary hearing, defendant testified that he remembered being advised of his rights, particular the right to remain silent, and he never asked Palma for an explanation because he understood his rights. Palma’s pre-Miranda statements did not render defendant’s statements involuntary.
H. Waiver
Defendant additionally contends that even if Detective Palma properly advised him of the Miranda warnings, Palma failed to obtain an express waiver of rights from defendant. Defendant argues any implied waiver was involuntary because defendant was confused by Palma’s pre-Miranda exhortation to tell the truth.
Miranda admonitions must be given, and an individual in custody must knowingly and intelligently waive those rights, before being subjected to either express questioning or its “functional equivalent.” (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301; People v. Ray (1996) 13 Cal.4th 313, 336.) The prosecution has the burden of proving by a preponderance of the evidence that a defendant knowingly and voluntarily waived his Miranda rights. (People v. Whitson (1998) 17 Cal.4th 229, 248.)
A valid waiver may be express or implied. (People v. Whitson, supra, 17 Cal.4th at p. 246.) A waiver may properly be inferred when “the actions and words of the person interrogated” clearly imply it. (North Carolina v. Butler (1979) 441 U.S. 369, 373.) “The waiver inquiry ‘has two distinct dimensions’: waiver must be ‘voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception, ’ and ‘made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’ [Citation.]” (Berghuis v. Thompkins (2010) __ U.S. __ [130 S.Ct. 2250, 2260].) “[A] suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.” (Id. at p. 2264.) The court may infer a waiver of Miranda rights “ ‘from the actions and words of the person interrogated.’ [Citation.]” (Id. at p. 2263.) “Any waiver, express or implied, may be contradicted by an invocation at any time. If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease.” (Id. at pp. 2263-2264.) “[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will … show that the defendant did not voluntarily waive his privilege.” (Miranda, supra, 384 U.S. at p. 476.)
As we have explained, Palma’s pre-Miranda statements to defendant, that it was important to tell the truth, were not coercive. Palma properly advised defendant of the Miranda warnings and twice asked defendant if he understood his rights. Defendant said yes. Palma did not expressly ask defendant if he wanted to waive his rights and answer questions. Instead, Palma asked defendant about his contacts with Gallegos, and defendant immediately began answering questions with his story about Reyes. Defendant never said that he did not understand his rights, and defendant testified at the evidentiary hearing that he did not ask Palma to explain his rights because he understood them. Defendant never asked for an attorney or refused to answer questions. There is no evidence that Palma badgered defendant into waiving his rights. (See, e.g., People v. Davis (2009) 46 Cal.4th 539, 590; Neal, supra, 31 Cal.4th at p. 80.)
Indeed, while defendant apparently did not have prior experiences in criminal cases, the interrogation showed that defendant was “ ‘attempting to use the interview as much as the officers.’ ” (Holloway, supra, 33 Cal.4th at p. 116.) Once the detectives advised defendant about their conversation with Ayala, defendant abandoned his claim that Gallegos was last seen discussing drug deals with “Bocho.” Defendant eagerly changed his story to the assertion that “Reyes” asked him to “lure” Gallegos to the vineyard so “Reyes” could settle a dispute about a drug debt. Defendant’s eagerness to tell the story about “Reyes” demonstrated his implied waiver of the right to remain silent.
I. Fatigue
Defendant contends that he was too exhausted from his long workday to knowingly and intelligently waive his rights during the postarrest interview. The circumstances of the defendant’s arrest and interrogation refute this argument. Defendant was awake and watching television when the deputies arrived at his residence to arrest him at 10:40 p.m. on October 22, 2008. Detective Palma testified defendant was awake when he was arrested, and defendant displayed the same demeanor during the entirety of the postarrest interview. While defendant placed his head down on the interview table, Palma testified he seemed to be thinking about his responses to the detectives’ questions about whether he was involved in Gallegos’s murder.
At the evidentiary hearing, defendant testified about his long work hours and that he slept a little in the patrol car immediately after he was taken into custody. Defendant testified he did not he did not sleep in the holding cell at the sheriff’s department, prior to the postarrest interview, because he was thinking about his situation. Defendant further testified he was wide awake during the entire postarrest interview, including both before and after the break, even though he felt like going to sleep.
Defense counsel conceded at the evidentiary hearing that while he intended to argue defendant was too sleep deprived to waive his rights, the “sleep deprivation evidence did not come in as I had hoped and expected it would, and that ground has really been damaged” by defendant’s hearing testimony. There is no evidence that the detectives “exploited any ‘slowly mounting fatigue’ resulting from prolonged questioning, or that such fatigue occurred or played any role in defendant’s decision to confess. [Citation.]” (People v. Rundle (2008) 43 Cal.4th 76, 123, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th 390, 421, fn. 22.)
J. Deception
During the first part of the postarrest interview, Palma falsely told defendant that they found shoe prints at the crime scene. However, the use of deception comments does not necessarily render a statement involuntary unless the deception is of the type reasonably likely to procure an untrue statement. (People v. Jones (1998) 17 Cal.4th 279, 299.) “The 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. [Citations.]” (People v. Ray, supra, 13 Cal.4th 313, 340; see, e.g., People v. Farnam (2002) 28 Cal.4th 107, 182 [officer’s false statement that defendant’s fingerprints were found on victim’s property was not the type of deception likely to produce false confession]; People v. Thompson (1990) 50 Cal.3d 134, 166-167 [defendant’s statements admissible even though police falsely said that incriminating evidence had been found].)
Palma’s false advisement about shoe prints was not so coercive that it rendered defendant’s subsequent statements as involuntary. Defendant did not display any signs of distress when Palma made this statement, he “remained able to parry the officers’ questions” with his continued story about “Reyes” killing Gallegos, and he did not incriminate himself as a result of the remarks. (See, e.g., People v. Williams, supra, 49 Cal.4th at p. 443.)
K. Failure to readvise defendant of Miranda warnings
We further note the detectives were not required to readvise defendant of the Miranda warnings after the 56-minute break between the first and second parts of the postarrest interview. “[A] Miranda readvisement is not necessary before a custodial interrogation is resumed, so long as a proper warning has been given, and ‘the subsequent interrogation is “reasonably contemporaneous” with the prior knowing and intelligent waiver.’ [Citations.]” (People v. Smith (2007) 40 Cal.4th 483, 504.) In determining whether a subsequent interrogation is “reasonably contemporaneous” with a prior Miranda waiver, “[t]he courts examine the totality of the circumstances, including the amount of time that has passed since the waiver, any change in the identity of the interrogator or the location of the interview, any official reminder of the prior advisement, the suspect’s sophistication or past experience with law enforcement, and any indicia that he subjectively understands and waives his rights. [Citations.]” (People v. Mickle (1991) 54 Cal.3d 140, 170-171 [readvisement unnecessary when defendant twice received and twice waived his Miranda rights 36 hours before interrogation resumed]; see also People v. Lewis (2001) 26 Cal.4th 334, 386-387 [five-hour lapse of time since prior advisement]; People v. Smith, supra, 40 Cal.4th at pp. 504-505 [less than 12 hours since prior advisement]; People v. Stallworth (2008) 164 Cal.App.4th 1079, 1089 [16 hours].)
As applied in this case, the detectives were not required to re-advise defendant of the Miranda warnings, just 56 minutes after the initial advisement and implied waiver. Defendant was not questioned during the break, and he was interviewed by the same detectives who had previously advised him of his constitutional rights.
We thus conclude that defendant’s postarrest statements were voluntary, he was not subject to two contradictory sets of advisements, his implied waiver was knowing and intelligent, and the court properly admitted the entirety of his postarrest statements.
II. The jury was properly instructed about accomplice testimony
Defendant next contends Ayala was an accomplice to the charged offenses of murder and arson, and the trial court had a sua sponte duty to instruct the jury on the “natural and probable consequences” doctrine of accomplice culpability. The People assert the jury properly received the pattern cautionary instruction on accomplice testimony, and the trial court did not have a sua sponte duty to expand the accomplice instruction to include the “natural and probable consequences” theory given defendant’s failure to request that language.
A defendant cannot be convicted of a crime on the basis of an accomplice’s testimony unless that testimony is corroborated by other evidence connecting the defendant with the commission of the charged offense. (§ 1111.) When there is sufficient evidence that a witness is an accomplice, the trial court has a sua sponte duty to instruct the jury on the general principles governing the law of accomplices, including the need for corroboration. (CALCRIM No. 334; People v. Frye (1998) 18 Cal.4th 894, 965-966 disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th 390, 421, fn. 22; People v. Tobias (2001) 25 Cal.4th 327, 331.)
Section 1111 defines an accomplice as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” “In order to be chargeable with the identical offense, the witness must be considered a principal under section 31. [Citation.] That section defines principals to include ‘[a]ll persons concerned in the commission of a crime … whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission.…’ (§ 31.)” (People v. Fauber (1992) 2 Cal.4th 792, 833-834.)
A person is generally liable as an aider and abettor if he or she (1) has knowledge of the unlawful purpose of the perpetrator, (2) intends to assist the perpetrator in the commission of the crime, and (3) does assist in the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).)
An aider and abettor may also be liable as an accomplice under a “ ‘natural and probable consequences’ ” theory, which mandates that an aider and abettor is liable for any other crimes that are the natural and probable consequence of the target crime. (Prettyman, supra, 14 Cal.4th 248, 254.) The test to determine whether a crime is a natural and probable consequence of the target crime is whether a reasonable person in the alleged abettor’s position would or should have known that the charged offense was a reasonably foreseeable consequence of the target crime. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) To determine whether the ultimate offense was reasonably foreseeable, “all the circumstances leading up to the last act by which a participant directly or indirectly encouraged the principal in the commission of the crime” must be considered.” (Id. at p. 532.)
While a trial court has a sua sponte duty to instruct on the general principles of law regarding accomplices, the court does not have a corresponding sua sponte duty to instruct on the natural and probable consequences doctrine of accomplice liability, and about target and nontarget offenses, unless the prosecution relies on that doctrine to prove the defendant’s guilt or the defense requests the instructions. (People v. Avila (2006) 38 Cal.4th 491, 568-569 (Avila); Prettyman, supra, 14 Cal.4th at pp. 269-270; People v. Gonzalez (2002) 99 Cal.App.4th 475, 484-485 (Gonzalez).)
As applied to the instant case, the court instructed the jury with CALCRIM No. 334, the pattern instruction for accomplice liability. This instruction stated that the jury had to decide whether Ayala was an accomplice and subject to prosecution for the identical crimes charged against defendant, an accomplice’s testimony must be corroborated, and the supporting evidence may be slight. Defendant did not object or request modification of the instruction. The court did not instruct the jury on the “natural and probable consequences” doctrine of accomplice liability, and neither the prosecutor nor defendant requested such an instruction or relied on that theory of accomplice liability. As such, the court did not have a sua sponte duty to instruct on the natural and probable consequences theory of accomplices.
Defendant concedes that CALCRIM No. 334, as given to the jury, correctly defined the general rule to consider whether a witness was an accomplice. Defendant further concedes he did not object to CALCRIM No. 334. However, defendant argues the pattern instruction was “under-inclusive” because it failed to include the broader definition of accomplice culpability based upon the natural and probable consequences doctrine, which would have allowed the jury to find Ayala was an accomplice and that his testimony was subject to corroboration.
Defendant relies on the concurring opinion in Gonzalez, supra, 99 Cal.App.4th 475 and argues the trial court in this case had a sua sponte duty to instruct on the natural and probable consequences doctrine of accomplice culpability, even though defendant did not request the instruction. In Gonzalez, the jury was instructed on the basic rule of accomplice liability and the requirement for corroboration, but neither party requested instructions on the natural and probable consequences doctrine. On appeal, defendant argued for the first time that the trial court had a sua sponte duty to instruct on the natural and probable consequences doctrine. The majority opinion in Gonzalez relied on Prettyman and rejected this argument, and held a trial court only has a sua sponte duty to instruct where the prosecution relies on the natural and probable consequences doctrine. (Gonzalez, supra, 99 Cal.App.4th at pp. 484-485.)
Justice Mosk’s concurring opinion in Gonzalez disagreed with the majority opinion’s reliance on Prettyman. Justice Mosk believed that Prettyman only addressed a trial court’s “sua sponte duty to instruct on target offenses relevant to the natural and probable consequences principle in connection with the prosecution of a defendant pursuant to that principle. [Citation.]” (Gonzalez, supra, 99 Cal.App.4th at p. 486, conc. opn. of Mosk, J., italics in original.) Justice Mosk concluded that “[w]hen there is evidence that a witness--rather than acting as a direct aider and abettor--aided and abetted a target offense, the natural and probable consequence of which is the charged crime, the law of accomplices necessarily requires the jury to be so instructed, ” and concluded the natural and probable causes instruction in that case was “part of the law of accomplices.…” (Id. at p. 487.)
As applied to the instant case, defendant relies on the concurring opinion in Gonzalez and argues the trial court had a sua sponte duty to instruct on the natural and probable consequences doctrine, and the court’s failure to do so prevented the jury from considering whether Ayala was an accomplice and that his testimony had to be corroborated. Defendant’s argument lacks merit. First, a concurring opinion is not controlling authority. (In re Marriage of Bryant (2001) 91 Cal.App.4th 789, 795.) Second, the California Supreme Court has clarified that the court does not have a sua sponte duty to instruct on the natural and probable consequences doctrine of accomplice culpability, and about target and nontarget offenses, unless the prosecution relies on that doctrine to prove the defendant’s guilt or the defense requests the instructions. (Avila, supra, 38 Cal.4th at pp. 568-569; Prettyman, supra, 14 Cal.4th at pp. 269-270.) The court in this case did not have a sua sponte duty to instruct on the natural and probable consequences doctrine.
III. The jury was properly instructed with CALCRIM No. 371
As set forth in the factual statement, ante, Ayala testified that defendant’s father spoke to him about a week before trial, and told him that it would be better if he did not come to the court so he would not get himself “into trouble.”
Defendant contends the jury received conflicting instructions on how to consider Ayala’s testimony about defendant’s father, based on a comparison between a specific limiting instruction given immediately after Ayala’s testimony on this point, and the general pattern instruction of CALCRIM No. 371, on a defendant’s consciousness of guilt.
As we will explain, the entirety of the record refutes defendant’s arguments.
A. Background
When Ayala testified about defendant’s father’s advice, the trial court immediately instructed the jury about the limited admissibility of Ayala’s testimony on this point:
“[T]his evidence is being received for a limited purpose only. It is not offered for the truth of the matter asserted that, in fact, the threat was made or an effort to intimidate this witness was made, but it’s being offered only as to whether if that occurred, that it affected the truth, accuracy, or believability of Mr. Ayala as a witness. In other words, it’s being received only for the purpose of determining the credibility of Mr. Ayala as a witness in this case. You are not to speculate nor are you to consider or discuss that the defendant made any effort to fabricate or to suppress evidence in this case or whether the defendant made an effort to intimidate this witness. You may not consider this evidence as tending to show the defendant’s consciousness of guilt unless the court specifically instructs you otherwise.” (Italics added.)
During the instructional phase, the court instructed the jury with CALCRIM No. 303, about the limited purpose of evidence.
“During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and no other.
“Also during the trial certain evidence was admitted for a limited purpose concerning the efforts by others to suppress evidence. You were instructed at that time that evidence that someone may have made a threat or effort to intimidate a witness, Armando Vasquez Ayala, may only be considered by you for the purpose of determining the truth, accuracy, … or credibility of Mr. Ayala as a witness. You may consider that evidence only for that purpose and for no other. That evidence, even if you find it to be true, cannot be considered by you as a circumstance tending to show the consciousness of guilt by the defendant.” (Italics added.)
The court also instructed the jury about whether it could infer defendant’s consciousness of guilt based on certain conduct. CALCRIM No. 362 stated that if defendant knowingly made false or misleading statements about the crime, that conduct could show that he was aware of his guilt.
The court further instructed the jury with CALCRIM No. 371, another instruction about inferring defendant’s consciousness of guilt:
“If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.”
B. Analysis
We determine whether a jury is properly instructed from the entire charge of the court, not from consideration of parts of an instruction or from particular instructions. (People v. Hughes (2002) 27 Cal.4th 287, 360; People v. Castillo (1997) 16 Cal.4th 1009, 1016.) The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. (People v. Castillo, supra, 16 Cal.4th at p. 1016.) Accordingly, to prevail on a claim that the jury instructions were misleading, the defendant must prove a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) We assume jurors are intelligent persons capable of understanding and correlating all jury instructions given. (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149.)
Given the entirety of the instructions, the jury was specifically instructed as to the limited admissibility of Ayala’s testimony about the statements made by defendant’s father, and that such evidence could not be relied upon as tending to show defendant’s consciousness of guilt. The court repeated this specific admonition during the instructional phase, and again specifically instructed the jury that Ayala’s testimony was only admissible as to his credibility, and not as a circumstance tending to show defendant’s consciousness of guilt.
CALCRIM No. 371 did not contradict the court’s specific instructions on the limited admissibility of Ayala’s testimony about defendant’s father. Instead, the instruction was based on other aspects of Ayala’s testimony. Ayala testified that defendant said he shot Gallegos and set the victim’s vehicle on fire, and admonished Ayala not to tell anyone what had happened. In addition, defendant admitted during the second half of his postarrest interview that he set the fire in Gallegos’s vehicle to “cover up … the evidence.”
DISPOSITION
The judgment is affirmed.
WE CONCUR: Hill, P.J., Wiseman, J.