Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F09493
BLEASE, Acting P. J.
A jury convicted defendant Davis Nguyen of attempted murder and being a convicted felon in possession of a gun. It also sustained an allegation that he personally fired a gun during the attempted murder, inflicting great bodily injury. The trial court sentenced him to state prison for consecutive determinate terms for the substantive offenses, enhanced with a consecutive indeterminate term of 25 years to life.
On appeal, defendant argues that statements he made at the hospital were involuntary, which rendered statements he later made at home on his release inadmissible as a result. He also contends that statements he made at home were not admissible because he did not first receive the admonishments mandated in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda). Finally, he argues that a part of the instruction on attempted voluntary manslaughter as a lesser offense misstated the law. We shall affirm.
The Supreme Court has granted review to resolve a split in authority over whether January 2010 amendments to Penal Code section 4019 apply to pending appeals (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010 (S181963) [giving retroactive effect to amendments]; accord People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010 (S183552); People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010 (S182808); People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010 (S182183); contra, People v. Rodriguez (2010) 182 Cal.App.4th 535 , review granted April 13, 2010 (S181808); People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010 (S184314).) This court’s miscellaneous order No. 2010-002 (filed March 16, 2010) deems the issue to be included in all pending appeals without further briefing. However, defendant’s present conviction is for a violent and “serious” felony (Pen. Code, § 667.5, subds. (c)(12) & (c)(22); § 1192.7, subds. (c)(7), (c)(9), & (c)(40)), so he is among the class of felons who are excluded from additional credit in any event (§§ 4019, subds. (b)(2), (c)(2) & (f); 2933.1).
FACTS
Given defendant’s focus on appeal (and our determination that the trial court did not err in any respect), we do not need to relate the circumstances underlying his convictions in great detail. (We will include any other facts relevant to his claims in the Discussion.)
The victim had challenged defendant’s brother, with whom he had been friends prior to this point, to a one-on-one fight over the brother’s mistreatment of the victim’s sister. When the victim met up with the brother at Churchill Downs Park, the brother had a group of supporters, including defendant (who was standing next to his brother). The victim and the brother met in the middle of the basketball court and immediately began to fight before any of the victim’s supporters arrived. After placing a punch that seemed to stun the brother, the victim observed defendant step forward and fire a gun at him, at which point the victim fell to the ground and passed out. One of the victim’s group of supporters, who arrived after the fight had begun, then shot at defendant. Defendant had multiple wounds; his brother and other friends carried him to a car to get him to the hospital.
A deputy attempted to question defendant in the emergency room of Methodist Hospital about his injuries. Defendant provided him only with a false site (Franklin Boulevard) of the shooting without any details. Another deputy was dispatched to Mercy San Juan Hospital later that evening, where he met the helicopter transporting defendant to that location. As the deputy accompanied defendant to the emergency room, he asked him about the shooting. Defendant said he did not recall anything and had not seen anything. During a lull in defendant’s treatment, the deputy questioned him again. Defendant told him that he had been walking to a friend’s house on Franklin Boulevard when he heard shots and fell to the ground. He denied having any guns, and said he could not provide any other details. Later that night, a detective investigating the park shootings questioned defendant in his hospital room. Defendant was in “some sort of pain, but he was lucid.” Defendant stuck to his story of being shot on Franklin Boulevard. He denied shooting anyone or even handling guns, so the detective would not find any gunshot residue on his clothes or person. He denied being in the park, and asserted that a trail of blood found in the park was not his. He reiterated this account a few days later in an interview at his home with the detective. He did not know why anyone would have said they saw him at the park, or why his blood was found there.
Subsequent testing determined that blood in the park was defendant’s.
Predictably, defendant’s brother and one of their group testified that the people in the victim’s entourage were the aggressors, displaying weapons and shooting first. Defendant stepped in front of his brother to protect him. Neither of the witnesses admitted seeing defendant firing a gun (although the brother thought he heard gunshots “coming from” defendant).
DISCUSSION
I
A
Before trial, defendant moved to suppress the statements he made at the hospitals. His written motions had sought only to suppress the statements as fruits of an illegal search or seizure. (He moved separately to suppress the statements he made at home as fruits of custodial interrogation that violated the rules in Miranda, which we discuss in the next section.)
As at trial, the deputy testified at the hearing that he met defendant on the roof of Mercy San Juan Hospital (in case his condition was so grave that the deputy would need to take a dying declaration), where he saw that defendant was in “a lot of pain” and could speak only very softly. The Life Flight crew were also present in the elevator when the deputy began to question defendant about what had happened to him. At that point, defendant was not yet a suspect, so he was not restrained in any way. The deputy stopped his questioning while defendant received treatment, resuming during any lulls before defendant went to surgery. His questioning was friendly, because he perceived defendant to be a victim.
The detective’s hearing testimony was also consistent with his later account at trial. Defendant was not restrained in any way (his exact involvement in the park shootings not having been established). He appeared to be “in some amount of pain, ” and trying to get some rest. The detective did not suggest to defendant that he was under arrest, and maintained a normal conversational tone. Defendant never indicated that he did not want to talk with the detective. The detective recorded their interview (to which the court later listened).
The focus of defendant’s argument at the hearing was a suppression of his statements as the fruit of an illegal search or seizure (for which he admitted he lacked any authority), as he acknowledged that a claim of custodial interrogation was weak. In passing, he noted that if the court did not agree with this theory, “then I would just simply say that given the nature of the treatment that... any answers to the questions in the rooms were involuntary.” After the court rejected the claim of an illegal seizure of his statements and determined that defendant was not in custody at the hospital for purposes of Miranda, defense counsel reiterated his belatedly added claim that his hospital statements were not voluntary, based on the testimony and transcript that the court had reviewed. The court found that defendant was willing to speak to the deputies and detective, and being in even substantial pain did not otherwise establish coerciveness as a matter of law.
B
Defendant faults the trial court for considering only the degree to which his questioning was coercive rather than taking the totality of the circumstances into account, in particular the “state of his will.” He claims that his “voice provided a[n] unmistakable indicator of the degree of his... inability... to resist and remain silent.” Defendant then cites at length to the dissent in People v. Culver (1973) 10 Cal.3d 542 (Culver) as support for a finding that his statements were involuntary.
An admission (defendant’s statements at most amounting to a consciousness of guilt, not a confession of any sort) violates due process and is subject to exclusion as involuntary “if it is the product of coercive police activity.” (People v. Williams (1997) 16 Cal.4th 635, 659 [Williams]; accord, People v. Clark (1993) 5 Cal.4th 950, 988 [finding of coercive police activity is “prerequisite” to finding of involuntariness].) In addition to this essential element, a court must also consider the length and location of questioning, and a defendant’s circumstances such as physical and mental condition, education, and maturity. (Williams, supra, 16 Cal.4th at p. 660.) The ultimate question is whether the choice to make a statement was essentially free or whether q defendant’s will was overborne. (People v. Massie (1998) 19 Cal.4th 550, 576.)
It is therefore unsurprising that the trial court was focused on the actions of the police and defendant’s condition (weakened and in pain). Given the post hoc manner in which trial counsel litigated the issue without developing any further factual basis, the only pertinent circumstances are the conduct of the deputies and detective (who were not threatening, and were accusatory only to the extent of asking whether residue or blood tests would show defendant’s involvement in the shootings at the park); the vulnerable location (the potentially upsetting circumstance of undergoing treatment in a hospital); and the vulnerable condition of defendant (who was weak and in pain). However, as the trial court correctly noted, the latter are not irrebuttable indicia of involuntariness. In point of fact, even while weak and in pain, defendant adhered to the version of events he wished to present to law enforcement. It is evident that his will to resist was not overborne, regardless of the way in which defendant would now have us interpret his voice. As for Culver, it is not instructive in the present circumstances. The issue was whether the record established the administration of a drug that the United States Supreme Court had deemed to overbear the will of a confessing defendant. (10 Cal.3d at p. 546.) The majority found the record ambiguous regarding the time of administration and therefore resolved the dispute in favor of the ruling, and categorized the lone dissenter’s interpretation of the record as speculation. (Id. at pp. 546-47 & fn. 7.) Nothing in the record here establishes defendant had taken any equivalent medication; indeed, the record is devoid (given the belated litigation of voluntariness) of any evidence of the nature of defendant’s medications.
As a result, we do not find defendant’s statements in the hospitals to have been involuntary. We necessarily reject his related argument that his statements at home were a product of earlier illegal interrogations, and his contention that the errors were prejudicial.
II
A
At the same suppression hearing regarding the statements at the hospital, the detective testified he went to the home of defendant after his release from the hospital a few days later. The detective’s partner and defendant’s probation officer were with him. They knocked on the door and mentioned the presence of defendant’s probation officer. Someone admitted them. Defendant was sitting on the sofa in the living room, eating something while watching television. They asked if they could speak with defendant and his family, who assented without any apparent reluctance. Defendant appeared to be uncomfortable and in pain (he and his family asserting their belief that the hospital had released him too early).
At this point, the detective had information that defendant was one of the people who fired a gun at the park. The partner sat in front of defendant to question him; the detective stood next to him, while the probation officer stood behind them and did not ask any questions. The questioning remained calm without becoming accusatory. It lasted approximately 15 minutes. Defendant’s family remained in an adjacent room. The detectives did not at any point announce an intention to arrest defendant, restrain him, or draw their guns. Defendant never indicated any reluctance to answer the questions.
At some point, the recorder stopped functioning, so there is only a partial transcript of the questioning. After responding to their preliminary inquiries regarding how he was feeling and commenting that he was in much better shape than the day of the shooting, defendant agreed to talk with them. He adhered to his story about being shot elsewhere, adding that the shots came from a car.
In ruling on the admissibility of defendant’s statements at home, the court found the circumstances of the interview were not coercive, since he was not under arrest or restrained in any way in his home, and did not amount to custody. The court also noted defendant was willing to answer questions and did not ask for an attorney.
B
“To give force to the Constitution’s protection against compelled self-incrimination, the Court established in Miranda ‘certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation, ’” which include the right to remain silent, the potential for use of any statement in subsequent court proceedings, and the right to have an attorney present without cost to the suspect. (Florida v. Powell (2010) 559 U.S. ____, ____ [175 L.Ed.2d 1009, 1018] [italics added].) In the absence of custodial interrogation, Miranda safeguards are not required. (People v. Ochoa (1998) 19 Cal.4th 353, 401 [Ochoa].) We resolve any factual disputes regarding the circumstances surrounding the questioning in favor of the ruling and independently review the legal issue of whether a reasonable person in those circumstances would have felt free to terminate the interrogation and leave (id. at pp. 401-402 [citing Thompson v. Keohane (1995) 516 U.S. 99, 110, 112-113 [133 L.Ed.2d at pp. 383, 394]]), or in the present case to ask the questioners to leave. In the absence of a formal arrest, this would require the person to experience a restraint on the freedom of movement equivalent in degree to a formal arrest. (Ochoa, supra, 19 Cal.4th at p. 401.)
There is a laundry list of factors that are relevant to our inquiry, and none of them is determinative. (E.g., People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) Rather than repeat them all, we simply address the circumstance on which defendant relies in claiming reasonable people would have felt restraints on their freedom of movement equivalent to a formal arrest.
He contends the presence of his probation officer during the questioning, even in a nonparticipatory role, “is decisive” on the issue because defendant is compelled under the general terms of probation to cooperate with a probation officer. He asserts Minnesota v. Murphy (1984) 465 U.S. 420 [79 L.Ed.2d 409] (Murphy) is distinguishable.
We disagree. The probation officer summoned defendant to her office to question him about his involvement in an earlier crime for which he had not been charged or convicted. (Murphy, supra, 465 U.S. at pp. 422, 423-24 [at pp. 416-417].) Murphy rejected the idea that these circumstances, in which the defendant was obligated to appear and cooperate, converted otherwise voluntary statements into compulsory self-incrimination. (Id. at p. 427 [at p. 419].) It also ruled that these circumstances did not transform a routine interview into custodial interrogation that required advisements. (Id. at p. 430 [at p. 421].) After rejecting various rationales for treating them as equivalents (id. at pp. 431-33 [at pp. 421-423]), Murphy concluded that “Even a cursory comparison of custodial interrogation and probation interviews reveals the inaptness of the... analogy.... Custodial arrest is said to convey to the suspect a message that he has no choice but to submit to the officers’ will and to confess.” (Id. at p. 433 [at p. 423].) It also takes place in unfamiliar circumstances designed to confine a suspect until he provides answers. (Ibid.) By contrast, a probation interview takes place in familiar surroundings with a familiar questioner without any hint of physical restraints, over which the probationer can exercise a modicum of control in scheduling. (Ibid.) Certainly, defendant’s presence in his own home with family nearby as witnesses even further detracts from any notion that he would feel any nonphysical restraint on his ability to refuse to participate in questioning. Though defendant again adverts to his weakness and pain, we do not find these factors to be any more determinative than we did above, as he otherwise was able to stick to the story he wished to present. We thus conclude a reasonable person in defendant’s circumstances would not have felt a restraint on his freedom equivalent to a formal arrest.
Moreover, defendant utterly fails to demonstrate prejudice from admission of the statements he made at home. He does not identify anything significantly different than the admissible statements he made at the hospital, such that there is any possibility of a different result in their absence.
III
In their closing arguments, both parties essentially told the jury that its choice was really between attempted murder (if it believed defendant fired the first shot) or acquittal (if it believed the victim’s group fired the first shot, a claim that the prosecutor called “garbage”), defense counsel emphasizing that the jury must find defendant not guilty if it had any reasonable doubt whether defendant was acting in lawful self-defense. The prosecutor even remarked that neither party had addressed the lesser included offense, because he believed it did not apply. We note, however, that the prosecutor twice stated that it would not be reasonable to shoot the unarmed victim in self-defense even if the victim’s group fired first, which in essence suggested a factual scenario to the jury in which imperfect self-defense would apply.
Regarding self-defense, the oral and written instructions explained that “An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant killed [sic] a person because he acted in imperfect self-defense or defense of another. If you conclude that the defendant acted in complete self-defense or defense of another, his action was lawful and you must find him not guilty of any crime.” After clarifying the distinction between the two concepts, the instructions turned to the prosecution’s burden of proof on the issue. “The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of attempted voluntary manslaughter.” (Italics added.)
The emphasized portion of the instruction clearly should have read “attempted murder, ” as CALCRIM No. 604 now reads after an August 2009 revision (also correcting the other error pointed out above, which now reads “attempted to kill”), or should have said “guilty only of attempted voluntary manslaughter.” As a result, defendant asserts the misstatement precluded the jury from finding him guilty of only the lesser offense even if it believed he acted unreasonably in self-defense.
In People v. Her (2009) 181 Cal.App.4th 349, 353-354, we noted another error in CALCRIM No. 604, which suggests a defendant must be unreasonable both as to the imminence of death and the need for force to assert imperfect self-defense. However, we found this did not reasonably result in the prejudicial effect there asserted: the return of a guilty verdict on attempted murder if the jury found one belief reasonable but not the other. (The opinion was filed after the August 2009 revision, in which this error remains.) Defendant does not assert this issue on appeal.
The verdict demonstrates that the jury did not accept a theory of reasonable self-defense, as it did not acquit. The question is whether a reasonable juror would interpret the instruction as compelling a verdict of attempted murder even if the juror found that defendant was actually but unreasonably acting in defense of self or others. (Boyde v. California (1990) 494 U.S. 370, 378, 380 [108 L.Ed.2d 316, 329]; People v. Kelly (1992) 1 Cal.4th 495, 525.)
On the one hand, the instructions stated that attempted murder is “reduced” to attempted voluntary manslaughter if defendant was acting unreasonably in self-defense, then on the other stated that the jury must find defendant not guilty of attempted voluntary manslaughter if the prosecution failed to satisfy its burden of disproving unreasonable self-defense beyond a reasonable doubt. This confusion, however, would seem only to benefit defendant. Following the literal words of the instruction, a reasonable juror believing there was a reasonable doubt about whether defendant acted in unreasonable self-defense would first return a verdict of not guilty on the charge of attempted murder because defendant’s offense was reduced to attempted voluntary manslaughter, and then return a verdict of not guilty to attempted voluntary manslaughter (wondering, no doubt, about the point of the exercise in returning the second verdict or the resulting lack of distinction in result from lawful self-defense). Nothing, however, remotely suggests that a reasonable jury would believe it must return a guilty verdict on the offense of attempted murder even if it found that the prosecution had failed to disprove the defense beyond a reasonable doubt. We therefore reject the argument.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J. HULL, J.