Opinion
D057006
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. TYIERRE CHRISTIAN PERRY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD202276)
APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed; remanded with directions.
A jury found Tyierre Christian Perry guilty of the first degree felony murder of Spencer Watts (count 1: Pen. Code, § 187, subd. (a) (undesignated statutory references will be to the Penal Code unless otherwise specified)), the attempted robbery of Watts (count 2: §§ 211 & 664), and the robbery of Keenan Wheeler (count 3: § 211). The jury found true firearm enhancement allegations that Perry (1) personally used a firearm (a handgun) during the commission of the crimes (counts 1-3: § 12022.53, subd. (b)); (2) intentionally and personally discharged a firearm (a handgun) during the commission of the crimes (counts 1-3: § 12022.53, subd. (c)); and (3) intentionally and personally discharged a firearm (a handgun) during the commission of the crimes, proximately causing great bodily injury and death to a person other than an accomplice (Watts) (counts 1-2: § 12022.53, subd. (d)). The court sentenced Perry to an indeterminate prison term of 50 years to life plus a concurrent determinate term of 23 years.
Perry appeals, contending the court committed prejudicial constitutional Doyle error (1) by admitting during the People's case-in-chief testimony by San Diego Police Detective Bruce Pendleton that, while Perry was in custody after he was read his
Doyle v. Ohio (1976) 426 U.S. 610, 611, 619 (Doyle), discussed, post.
Miranda rights and invoked his right to remain silent until he had consulted with an attorney, Perry said, "I don't want to screw myself" and "[i]t was an accident"; and (2) by allowing the prosecutor to comment on those statements in his opening statement and closing arguments. Perry also contends the court committed prejudicial error by admitting—over his hearsay objection and as evidence to impeach prosecution witness Rosalyn Stanley's asserted failure of recollection at trial—Detective Pendleton's testimony regarding Antonio Winfield's statements to Stanley at a party purporting to show that he (Perry) confessed to shooting Watts. Last, Perry requests an order directing the trial court to prepare an amended sentencing minute order that "expressly states the determinate term imposed under count 3 is concurrent to the indeterminate term under count 1." We reject Perry's contentions and affirm the judgment, but remand the matter to the superior court with directions to amend the March 16, 2010 sentencing minute order to reflect the court's order that the 23-year determinate term it imposed as to count 3 is to be served concurrently with the term it imposed as to count 1.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
FACTUAL BACKGROUND
A. The People's Case
1. The homicide
On April 22, 2006, Keenan Wheeler and his friend Spencer Watts picked up Ecstasy pills they planned to sell that night. That evening, when Watts and Wheeler were at Duana Lewis's home, Watts received a telephone call and told the caller to "have Homey call me." Watts then received a direct-connect or walkie-talkie type call on his cell phone, and Lewis heard a male on the other end say, "you go meet me, cuz." Watts and Wheeler left Lewis's home at around 8:30 p.m. that evening.
Watts, who went by the nickname "Black," had received a direct-connect call on his cell phone to meet the person who wanted to buy the Ecstasy pills at the Walmart in the College Grove Shopping Center. Watts drove his car into the Walmart parking lot with Wheeler sitting in the front passenger seat. Each had a bag of Ecstasy pills.
According to Wheeler, two males got into the back seat of Watts's car. One—who the prosecutor argued in his closing was Perry—was the darker-skinned shooter who sat behind Watts. Wheeler testified the shooter was "probably" 5 feet 10 inches tall, was in his early- or mid-20's, "maybe" had a faint moustache, wore on his head a doo-rag and a baseball cap turned to the side, had a "thin" but muscular build, and weighed "maybe" 150 pounds. The second male, who had a lighter complexion and sat behind Wheeler, was not wearing a doo-rag or hat.
Watts asked the two males where they were from, and they both said, "Oceanside." According to Wheeler, the four men shook hands and the darker male sitting behind Watts (Perry) said, "Oceanside Crip" or "West Coast Crip." Robert Minton, a San Diego police officer who interviewed Wheeler at the scene after the shooting, testified that Wheeler told him the person who sat behind the driver's seat said they were Oceanside Crips.
According to Wheeler, Perry said he wanted to see the product and Watts handed him one of the bags of Ecstasy pills. Watts told him how much the bag cost and asked him for the money. Perry pulled out a gun and told the other male, "Go through his pockets." Perry also told Watts and Wheeler to give him everything in their pockets. Perry's companion took $20 from Wheeler's left pocket.
Perry tried to go through Watts's pockets, but Watts resisted and struggled with him. Perry said something like, "You think this is a game? You think I'm playing around?" Watts told Perry, "You are not going through my fucking pockets," and, "Fuck that. If you are going to shoot, shoot me. You might as well shoot me now." Watts then put the car in reverse.
Perry reached forward, tried to put the gearshift back in park, but put it in neutral, and the car started to roll backward. The male sitting behind Wheeler hopped out of the car and told Perry, "Shoot him." Perry immediately fired one shot and got out of the car. He and his companion ran away, taking one of Watts's three phones that had been by the gearshift.
Watts grabbed at his chest and started to tense up. Wheeler saw blood rush from Watts's nose and mouth, and then Watts became unresponsive. Wheeler grabbed one of Watts's cell phones, called 911 at about 8:55 p.m., and told the police dispatcher that a Black male tried to rob them and shot his friend. Watts died from the gunshot wound. The autopsy showed the bullet entered Watts's back and traveled through his right lung and heart.
2. The investigation
The police found two plastic baggies containing Ecstasy pills and a pair of rubber latex gloves near Watts's car.
Perry's fingerprints were found on the driver's side rear passenger door in two places. Both prints, which were from Perry's left middle finger, were pointed downward toward the back of the car.
A Motorola Boost push-to-talk cell phone (also known as a "Lady Thug" Motorola phone), which belonged to Latishia Rivera, was found on the ground about 10 feet from the car. Rivera's phone had been used for several communications with a cell phone found in the driver-side door of Watts's car. On April 20, 2006, there were 19 calls between these two phones; on April 22 (the day Watts was killed), there were 12 such calls; and the first communication on April 20 took place at 1:08 p.m. The last push-to-talk or direct-connect call between these two phones was made at 8:50 p.m. on April 22.
Rivera's cell phone had two contact entries under the name "Bklacc," and the speed dial numbers for these address book contact entries were 56 and 58 out of 60 entries, indicating the numbers were recently stored.
Rivera was Perry's girlfriend in April 2006, and the two were staying together in a house in El Cajon at that time. Rivera acknowledged that her push-to-talk phone was found at the scene of the crime. Perry did not have his phone during the weekend of April 22, 2006, either because he ran out of minutes or lost it. Rivera did not use her phone or lend it to anyone that weekend, and she did not know whether Perry took it. When the police interviewed her in 2006, she initially lied and said she lost her phone.
Rivera stated she did not recognize the phonebook entries for "Bklacc"—which is slang that she pronounced as "black"—in her phone. She had seen Perry use "CC" instead of "CK," but she did not think Perry would write "black" as "Bklacc." She acknowledged there were a lot of direct-connect calls between her phone and "Bklacc," but she did not make any of them, and, although it was possible Perry made those calls, she did not know whether he did.
Rivera said that on the night of April 22 she and Perry watched television together. She went to bed alone early that night, and Perry remained on the couch. Rivera did not know when she went to bed, but stated it was dark outside. Perry was in bed with her when she woke up the next morning.
After April 24, 2006, when she first met with the police, Rivera did not see Perry again until July 29 of that year, when she saw him in Vista and her daughter was conceived. Rivera's contacts with Perry after that date occurred when he called her from blocked telephone numbers. Their daughter was born in May 2007, and Rivera saw Perry after that, but she did not know how he ended up in Escondido, where he was arrested in mid-December 2007.
When she was interviewed in February 2007, Rivera said she just wanted Perry to do his time and come out because she was living on her own. She felt badly because her daughter would not have a father, and she just wanted Perry to be there for her.
Rivera testified that Perry was not involved in a gang in 2006. She acknowledged the acronym for South Oceanside Gangster Crips—SOGC—was used on her social network page, but she claimed she was not familiar with that gang. She admitted she wrote something about giving "hollaz to [South Oceanside Gangsta Crips]" on her page, and some poetry that mentioned Perry. Rivera identified another page with a post that said, "Wat it do [with] all da damn red" and "SOGC," with her picture.
San Diego Police Detective Bruce Pendleton testified about his interview with Rosalyn Stanley regarding the Watts homicide and whether she had information about who may have been involved in the killing. Detective Pendleton asked her about a conversation she had with Antonio "Tony" (or "Shorty-Six") Winfield. Stanley indicated she was at a party when Winfield told her he knew who killed Watts. Winfield said Perry told him that he only intended to rob Watts, not kill him.
As we shall discuss, post, Stanley claimed at trial that she had been in a "drug blur" at the party and did not remember talking to Winfield there and also did not remember what she said to Detective Pendleton during the interview.
San Diego County District Attorney Investigator Matthew O'Deane testified about his interview with Winfield. Winfield told him he was a close friend of both Watts and Perry. In August 2006, when Winfield saw Perry at a party and asked him about the shooting of Watts, Perry told Winfield that he met with Watts to buy Ecstasy pills, but he did not shoot Watts, and he dropped his phone when he was buying the drugs.
At trial, Winfield denied saying this, and claimed Perry told him he had nothing to do with the shooting. Winfield also denied telling Stanley that Perry told him it was his (Perry's) intention to rob Watts but not shoot him.
San Diego Police Detective Johnny Keene retrieved security videotapes from the Walmart at the shopping center on College Grove Avenue. One of the videos appeared to show Watts's BMW. It showed a car driving down one of the aisles in the parking lot, parking in a stall for two or three minutes, and then rolling backward.
After reviewing the videotapes, Dana Jones, an investigative technician for the prosecution, created a video that was shown to the jury. It showed two people walking up to and getting inside Watts's car. Watts's car then parked in a parking spot for a few minutes before backing up, and, as the car was backing up, a car that appeared to be a getaway car drove across the screen. Due to the quality of the video, it was difficult to determine whether anyone got out of Watts's car.
Jones created another video from the surveillance videos that appeared to show the getaway car. It showed a dark-colored four-door sedan-type car driving up and down the aisles, and then stopping as two males got into Watts's car. When Watts's car drove forward, it followed, and when Watts parked his car, the other car drove down an aisle parallel to Watts's car. After Watts's car backed out of the parking space, what appeared to be the other car drove across the screen and left the parking lot.
3. Gang evidence
The parties stipulated that Perry was a member of South Oceanside Gangster Crips on April 22, 2006 (the date Watts was killed). South Oceanside Gangster Crips is one of five documented Crips criminal street gang sets in Oceanside.
Oceanside Police Detective Gordon Govier testified about certain ways that Crip members speak and write. Crips will not use a "C" and "K" together because to do so is a sign of disrespect towards Crips gang members. Instead, a Crip member will use "CC" or "KK." The telephone contact "Bklacc" (in Rivera's cell phone) was consistent with how a Crips gang member would write. Detective Govier found writings on Perry's MySpace page that were consistent with how a Crips gang member would write.
Detective Govier testified that Crips gang members will use the term "cuz" as a greeting when communicating with each other or to let others know who they are. This term is a sign of disrespect when used towards a rival gang member or someone who is not part of the gang culture. He opined that if someone called Watts "cuz" while talking to him, it would have been a sign of disrespect, and it also could have been used to let Watts know with whom he was dealing and to instill fear in him.
4. Perry's arrest and incriminating statements; other evidence
On December 17, 2007, after searching for more than a year and a half, Perry was located and arrested in Escondido. Escondido police officers transported Perry to the San Diego Police Department. Detective Pendleton testified that while Perry was waiting to be transported to the county jail, Perry said he did not want to "screw himself." Perry's statement was not a response to any question or statement made by Detective Pendleton. Perry also stated, "This was accidental."
At trial, Wheeler stated he and Watts had gone to the mall in Oceanside about three weeks before Watts was killed. They talked to an African-American male with a doo-rag. Wheeler testified it was the same male he saw in a lineup about a month before trial, and he did not tell the police that it looked )like the same person because it just came to him as he was testifying. Wheeler also testified he picked Perry out of a live lineup, but that he could not tell the jury Perry was the shooter because he was not "110 percent sure" it was him; he picked out Perry in the lineup because he recognized Perry from seeing him in court. Wheeler also stated that when he was at a mall in Oceanside, he saw a person who looked like Perry talking to Watts.
B. The Defense Case
The defense presented testimony regarding the Walmart video surveillance, and a defense investigator's interview with Wheeler to support its theory that Perry was not the shooter.
DISCUSSION
I
DOYLE ERROR CLAIM
Perry contends his conviction must be reversed because the court committed prejudicial constitutional error in violation of Doyle, supra, 426 U.S. 610, and its progeny (1) by admitting during the People's case-in-chief testimony by Detective Pendleton that, while Perry was in custody after he was read his Miranda rights and invoked his right to remain silent until he had consulted with an attorney, Perry said "I don't want to screw myself" and "it was an accident"; and (2) by allowing the prosecutor to comment on those statements in his opening statement and closing arguments. We reject this contention.
A. Background
1. Defense exclusion motion and related Evidence Code section 402 hearing
Before trial, Perry moved for exclusion of evidence of the statements he made after he invoked his Fifth Amendment right to remain silent. The court conducted a pretrial hearing under Evidence Code section 402 to determine whether Perry's post-invocation statements were admissible.
The sole witness, Detective Pendleton, testified that Escondido Police Department officers arrested Perry and transported him to the San Diego Police Department headquarters. Detective Pendleton and his partner, Detective Beard, attempted to interview Perry there. He first read to Perry his Miranda rights. Detective Pendleton stated that when he asked Perry whether he was willing to talk to him, Perry asked for an attorney; and, after discussing Perry's request, Detective Pendleton stopped the interview.
Detective Pendleton stated that after Perry went through the booking process, which lasted about 15 to 20 minutes, he was placed in a holding cell for another 15 to 20 minutes while Detective Pendleton completed the booking paperwork. While Perry was in the holding cell, he asked Detective Pendleton how he could give the detective information about what happened. Detective Pendleton gave Perry his business card and told him he could have his attorney call him (Detective Pendleton). Detective Pendleton stated that, during this time, he did not ask Perry any questions about the shooting.
After the booking process and paperwork were complete, Detective Pendleton walked with Perry to the sally port—a secure garage-like area where police cars drive through to drop off and pick up prisoners—and put him in a patrol car to be transported to the county jail. However, Perry had left with his personal property a phone number he wanted, so he asked Detective Pendleton to find it for him. Detective Pendleton took Perry out of the patrol car and had him sit at a table so they could look through his personal property for the phone number.
After Perry sat down at the table, he said he did not want to screw himself. Perry's statement was not prompted by any questions from Detective Pendleton.
Detective Pendleton then asked Perry whether he now wanted to talk to him, and told Perry that if he did want to talk, he (Detective Pendleton) would have to take Perry upstairs again to re-admonish him. Perry said, "No, this was an accident."
Detective Pendleton testified he replied that he did not "see it as accidental," and the word "it" referred to the shooting. Perry responded, "There was a witness," and Detective Pendleton replied, "We [have] spoke[n] to a lot of witnesses." In turn, Perry said, "You guys are trying to put me [in] jail."
After Detective Pendleton was excused, and before hearing oral argument, the court indicated that Perry's statement, "[T]his was an accident," appeared to be an admissible spontaneous statement.
The prosecutor argued that Perry's first statement about not wanting to screw himself was made without any questions from Detective Pendleton, and both this statement and Perry's subsequent statement that "this was an accident" were admissible because they were voluntary, spontaneous statements. The prosecutor also argued there was no danger of error under Doyle, supra, 426 U.S. 610, because Perry volunteered his statements. Defense counsel essentially submitted on his motion papers and Detective Pendleton's testimony.
a. Court's ruling
The court denied Perry's motion to exclude evidence of his post-invocation statements, finding there were no "Miranda [or] due process violations" and stating it was prepared to allow the prosecution to introduce the statement "this was an accident" in the People's case-in-chief.
2. Opening statements
During his opening statement, the prosecutor told the jury that when Perry was about to be transported to jail, he told Detective Pendleton that he did not want to screw himself. The prosecutor later added, "[Y]ou will hear about [Perry's] admissions to the detective that this was an accident."
In his opening statement, defense counsel replied:
"Now you will hear about Mr. Perry's arrest. And they will say, well, he made this statement, 'This is accidental.' Mr. Perry supposedly was in the sally port waiting to be transported to jail and he supposedly made this statement that was not recorded. I'm not even sure it's accurate. And who knows even what it means. [¶] If you think he's talking about the crime charged, assuming he was even advised of the crime charged, assuming he was talking about
that, it might indicate he knew something about this, and Mr. Perry—we're not denying he touched the car. We're not denying that maybe he even knew some of the players involved, but what we are denying and what we are saying, they can't prove that he entered the car and shot Mr. Watts."
3. The court's rulings and Detective Pendleton's testimony during the prosecution's case-in-chief
During the People's case-in-chief, outside the presence of the jury and over defense counsel's objection under Doyle v. Ohio, supra, 426 U.S. 610, the court ruled that Perry's two statements were admissible as spontaneous admissions.
Detective Pendleton later testified on behalf of the prosecution that when he was in the sally port with Perry, Perry "said he didn't want to screw himself." The prosecutor then asked Detective Pendleton, "When you heard that, what did you say?" Defense counsel objected and the court sustained the objection.
The prosecutor asked Detective Pendleton, "So he said he didn't want to screw himself?" Detective Pendleton replied, "Correct."
The prosecutor then asked, "Did he say anything after that?" Detective Pendleton began to answer and stated, "I asked him if he . . . ." Defense counsel again objected and the court sustained the objection.
At the prosecutor's request, the court held a conference in chambers. The prosecutor indicated he wanted to ask Detective Pendleton what he asked Perry after Perry made his statement about not wanting to screw himself. The court stated, "I have no way of knowing what [Detective Pendleton] is going to say. So in an effort to prevent him from saying something that is ruled inadmissible, I would have to sustain the objection."
The court again ruled the prosecutor could elicit from Detective Pendleton testimony that Perry told him "I don't want to screw myself" and "[it was] an accident." The court commented, "Why [Perry] said what he said is up to his attorney and/or him to try to explain, if they choose to."
Later during the chambers conference, addressing the prosecutor, the court stated:
"Although you may not agree with it, any statement that [Detective Pendleton] made in the context of Mr. Perry having invoked his right to an attorney—any further discussions on that would be inappropriate to introduce to the jury, unless it's necessary. [¶] In this context incriminating statements by Mr. Perry [are] limited to, 'I don't want to screw myself; this was an accident.' And so then it becomes a strategic question for the defense on how they want to try to deal with that."
The court then addressed defense counsel:
"Okay. So to the extent that you believe the offer is going to be put in, no, this was an accident, I'm not sure . . . , do you object to [the prosecutor] asking did he further tell you that this was an accident?"
Defense counsel replied:
"No, as long as it's just what Perry said as opposed to what [Detective Pendleton] said. And I agree that the 'no' shouldn't be in there either. The statement is—has always been this was accidental. That was the statement he's testified to on numerous times. So I don't have any objections to—obviously, I have an objection, but Your Honor overruled it, indicating that to be a spontaneous statement saying this was accidental." [¶] And I don't mind [the prosecutor] leading [Detective Pendleton] . . . ."
Speaking again to the prosecutor, the court reiterated its ruling and attempted to further clarify the "boundaries" of the testimony the prosecutor could elicit from Detective Pendleton regarding Perry's second incriminating statement:
" 'This is an accident' was not responsive to the solicitation. And so that's why I'm saying . . . if that's what you want to use, then those are the two areas that are unsolicited, they are spontaneous. And as far as the court is concerned, not a violation of [Perry's] Miranda rights nor is it Doyle area, and I will let you go into that. But as I said yesterday, how you do that is up to you, and whether it is worth it to do it in that context is up to you, but [those] are the boundaries."
Following the chambers conference and in front of the jury, the following exchange took place between the prosecutor and Detective Pendleton:
"[The prosecutor]: Detective Pendleton, you testified that the defendant told you that he didn't want to screw himself, right?
"[Detective Pendleton]: Correct.
"[The prosecutor]: And that wasn't in response to any question that you asked him, right?
"[Detective Pendleton]: No.
"[The prosecutor]: Or any statement that you made to him, right?
"[Detective Pendleton]: Right.
"[The prosecutor]: And after hi[s] telling you that he didn't want to screw himself, and I would like you to answer yes or no if you can, after hi[s] telling you that, did he say to you this was accidental?
"[Detective Pendleton]: Yes."
4. Prosecutor's closing and rebuttal arguments
During his closing argument, the prosecutor referred three times to Perry's two post-invocation self-incriminating statements. First, he told the jury, "Didn't the defendant tell the police he didn't want to screw himself and that this was an accident almost a year and a half after this statement would ever have been made when he was arrested?" (Italics added.)
Second, the prosecutor stated that Perry was "taken to the police, [Detective Pendleton] gets his booking . . . information. And when they are to part ways, [Perry], while he was told why he is being arrested, once in Escondido, arrested for the murder of Spencer Watts—and, again, in San Diego, that he was arrested for that College Grove shooting, [Perry] says he didn't want to screw himself and this was accidental." (Italics added.)
Last, the prosecutor told the jury, "[I]t's running through [Perry's] mind should I talk to the detective, should I not talk to him, I don't want to screw myself. And he tells the detective that and then he tells him that's accidental and that's the evidence that you have. Another statement made by the defendant. No reason why the detective would make it up. That connects him to this case. Another incriminating statement." (Italics added.)
During his rebuttal argument, the prosecutor again referred to Perry's two post-invocation self-incriminating statements. Specifically, the prosecutor argued that, in order to agree with the defense theory that Perry did not shoot Watts, the jury "would have to conclude that [Perry's] statement[s] to [Detective Pendleton] that it was an accident and he didn't want to screw himself had nothing to do with the homicide." (Italics added.)
B. Analysis
As he acknowledges in his appellant's reply brief, Perry "principally relie[s] upon" the Ninth Circuit's decision in United States v. Bushyhead (2001) 270 F.3d 905 (Bushyhead) in support of his contention that the trial court here committed reversible Doyle error by permitting the prosecution at trial to present evidence of, and comment upon, his two post-arrest, post-Miranda warnings statements.
In support of this contention, Perry asserts the statements were protected under the Fifth Amendment to the United States Constitution because they "were explanatory in relation to [his] exercise of his right to remain silent [and] were part of the circumstances of [his] invocation of his right to remain silent." In other words, he maintains, "the statements were part of an 'explanatory refusal' to speak to police, and protected from disclosure under the Fifth Amendment." Under Bushyhead, he contends, "Doyle . . . exclude[s] . . . a defendant's invocation as well as an explanatory invocation"; and, if this court "determines [his] two statements were explanatory of his invocation, [then] Constitutional error is necessarily established." We reject Perry's contentions and conclude that his reliance on Doyle and Bushyhead is misplaced.
The starting point of our analysis is the Fifth Amendment, which provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." (U.S. Const., 5th Amend.) In Doyle, the United States Supreme Court held that this federal constitutional right to remain silent carries an implicit assurance that silence will carry no penalty. (Doyle, supra, 426 U.S. at p. 618; see also Miranda, supra, 384 U.S. at p. 468, fn. 37 ["[I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation."].) The facts, holding, and reasoning in Doyle are illustrative. There, the defendants had taken the witness stand and offered an exculpatory explanation for their participation in what the prosecution's evidence had portrayed as a routine marijuana sale transaction. (Doyle, supra, 426 U.S. at pp. 611, 613.) The narcotics agent who arrested them read to them their Miranda rights and began questioning them. (Id. at pp. 612, 614.) On cross-examination, the prosecutor impeached their testimony by asking them why they had not given the exculpatory explanation to the agent at the time of their arrest when he questioned them. (Id. at pp. 613-614.) The Supreme Court held that "use of the defendant[s'] post-arrest silence in this manner" (id. at p. 611) was fundamentally unfair and, thus, violated the due process clause of the Fourteenth Amendment. (Id. at p. 619.) The Doyle court explained that, "while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings" (id. at p. 618), and concluded that, "[i]n such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." (Ibid., fn. omitted.)
In a later decision, the high federal court clarified that, "[w]ith respect to post-Miranda warnings 'silence,' . . . silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted." (Wainwright v. Greenfield (1986) 474 U.S. 284, 295, fn. 13 (Wainwright), italics added.)
Here, relying on Bushyhead and what Perry calls the "explanatory refusal doctrine," under which he asserts "the entire manner of a defendant's invocation is constitutionally protected and cannot be introduced at trial," Perry contends his statements to Detective Pendleton in the sally port—"I don't want to screw myself" and "it was an accident"—were inadmissible "explanatory invocations" protected by the Fifth Amendment.
We conclude Bushyhead is not persuasive and decline to follow it. There, the defendant (Bushyhead) claimed on appeal from his first degree murder conviction that the trial court violated the Fifth Amendment and committed reversible Doyle error when it (1) permitted an FBI agent to testify that, after Bushyhead was arrested but before he received Miranda warnings, he told the agent, "I have nothing to say, I'm going to get the death penalty anyway" (Bushyhead, supra, 270 F.3d at pp. 907, 908, italics added); and (2) allowed the prosecutor to comment on this statement in both his opening statement and closing argument. (Id. at pp. 911-912.) Citing Wainwright, supra, 474 U.S. at page 295, footnote 13, for the proposition that "a person's statement invoking his right to silence is part of the 'silence' that must be protected" (Bushyhead, at p. 913), and concluding that Bushyhead's statement "was not an unsolicited confession but the invocation of silence itself" (id. at p. 912), the Ninth Circuit held in Bushyhead that the trial court "impermissibly infringed on Bushyhead's right to silence" (ibid.) by "admitting the testimony of [the agent] about Bushyhead's statement and . . . allowing the prosecutor to comment on this statement." (Id. at p. 913.)
For reasons not pertinent here, the Bushyhead court also held "the error of admitting the statement was harmless [beyond a reasonable doubt] under the standard of Neder [v. United States (1999) 527 U.S. 1 (Neder)] and Chapman v. California (1967) 386 U.S. 18 (Chapman)]." (Bushyhead, supra, 270 F.3d at p. 914.)
In support of its holding, the Bushyhead court commented that, "[j]ust as a prosecutor at trial cannot use the fact of defendant's post-Miranda silence, he also cannot use a statement such as 'I'm not going to say anything' or 'I'm not saying anything until my lawyer gets here.' " (Bushyhead, supra, 270 F.3d at p. 913.) We agree with both this portion of the Bushyhead court's analysis and its holding that the trial court committed Doyle error by admitting evidence of, and allowing the prosecutor to comment upon, Bushyhead's first statement, "I have nothing to say," as this was an unequivocal statement of a desire to remain silent protected by the Fifth Amendment. (See Doyle, supra, 426 U.S. at p. 618; Miranda, supra, 384 U.S. at p. 468, fn. 37; Wainwright, supra, 474 U.S. at p. 295, fn. 13.)
However, we do not agree with the Bushyhead court's conclusion that the trial court in that case also committed Doyle error by admitting evidence of, and allowing the prosecutor to comment upon, what Perry refers to as the "explanatory portion" of Bushyhead's statements: "I'm going to get the death penalty anyway." (See Bushyhead, supra, 270 F.3d at p. 913.) In support of this portion of its holding, the Ninth Circuit cited Wainwright, supra, 474 U.S. 284, United States v. Whitehead (9th Cir. 2000) 200 F.3d 634 (Whitehead), and United States v. Velarde-Gomez (9th Cir. 2001) 269 F.3d 1023 (Velarde) for the proposition that "[t]he privilege against self-incrimination prevents the government's use at trial of evidence of a defendant's silence—not merely the silence itself, but the circumstances of that silence as well. The entirety of Bushyhead's statement was an invocation of his right to silence and is therefore protected by the Fifth Amendment privilege against self-incrimination." (Bushyhead, supra, 270 F.3d at p. 913, italics added.) In our view, the Bushyhead defendant's second "explanatory" statement—'Tm going to get the death penalty anyway"—did not constitute an invocation of his constitutional right to silence as it was neither a "statement of a desire to remain silent [nor a statement] of a desire to remain silent until an attorney has been consulted" (Wainwright, supra, 474 U.S. at p. 295, fn. 13.), even though it immediately followed his first statement—"I have nothing to say"—which was an unequivocal invocation of his right to silence. Thus, this second statement was not protected by the Fifth Amendment privilege against self-incrimination. Accordingly, we disagree with the Bushyhead court's conclusion that "[t]he entirety of Bushyhead's statement," including the statement that "I'm going to get the death penalty anyway," was a protected invocation of the right to silence. (See Bushyhead, at p. 913.)
For the same reasons, we also are not persuaded by the Ninth Circuit's additional conclusion that the Bushyhead defendant's second statement, "I'm going to get the death penalty anyway," was a constitutionally protected "circumstance" of his "silence." (See Bushyhead, supra, 270 F.3d at p. 913.)
In support of both of these conclusions, as noted, the Bushyhead court relied on Wainwright, Whitehead, and Velarde. (Bushyhead, supra, 270 F.3d at p. 913.) We believe such reliance is misplaced. In Wainwright, the defendant, who had received Miranda warnings, refused to answer any questions after repeatedly stating he wanted to talk to an attorney before making any statement, and, unlike the Bushyhead defendant, he made no other statement. (Wainwright, supra, 474 U.S. at p. 286.) In Whitehead, the defendant made no statement at all; he simply remained silent. (Whitehead, supra, 200 F.3d at pp. 636-637.) In Velarde, the defendant similarly exercised his Fifth Amendment privilege against self-incrimination by remaining silent and nonresponsive during his pre-Miranda warnings interrogation. (Velarde, supra, 269 F.3d at p. 1027.) None of these three cases involved a defendant who, like the Bushyhead defendant, made a voluntary self-incriminating "explanatory" statement after making a statement unequivocally invoking his constitutionally protected right to remain silent. For all of the foregoing reasons, we decline to follow Bushyhead and conclude that Perry's reliance on that case is misplaced.
We also conclude Perry's reliance on Doyle is misplaced. Here, the court did not allow the prosecutor to use at trial Perry's invocation of his Fifth Amendment right to silence. As discussed, the court found, and we agree, that Perry's statements were spontaneous statements, the admission into evidence of which did not constitute Doyle error. Detective Pendleton's testimony during the Evidence Code section 402 hearing shows that about 30 to 40 minutes after he gave the Miranda warnings to Perry and stopped the interview when Perry asked for an attorney, Perry spontaneously stated in the sally port area that he did not want to screw himself. Detective Pendleton stated he had not asked Perry any questions before Perry made this statement. Detective Pendleton testified he then asked Perry whether he now wanted to talk to him and told Perry that if he did want to talk, he (Detective Pendleton) would have to take Perry upstairs again to re-admonish him. Perry replied, "No, this was an accident." Perry's statement, "No," in response to Detective Pendleton question whether he (Perry) wanted to talk to him was an unequivocal invocation of Perry's constitutional right to remain silent. However, his statement that "it [(the shooting)] was an accident," like his statement that he did not want to screw himself, was not an invocation of Perry's constitutional right to remain silent. The record shows both statements were spontaneous, voluntary, and thus admissible statements. For all of the foregoing reasons, we conclude the court did not commit Doyle error.
Even if we were to conclude the court committed constitutional Doyle error, and we do not, we would also conclude any such error was harmless beyond a reasonable doubt under the applicable harmless-error standard. (See Neder, supra, 527 U.S. at p. 15; Chapman, supra, 386 U.S. at p. 24; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 60.) The prosecution presented overwhelming evidence (discussed more fully, ante, in the factual background section of this opinion), apart from the evidence of his two self-incriminating statements to Detective Pendleton, from which any reasonable jury could find Perry was the shooter who murdered Watts. Wheeler's description of the shooter, the discovery of Perry's fingerprints on the rear driver's side of Watts's car, the evidence of Perry's confession (discussed, post) to Winfield at a party that Stanley attended, Perry's stipulated South Oceanside Gangster Crips gang membership at the time of the shooting, and Wheeler's testimony showing the shooter (who sat behind Watts) identified himself as a "Crip," amply support Perry's convictions in this matter.
II
CLAIM OF EVIDENTIARY ERROR (HEARSAY)
Perry also contends the court committed prejudicial error by admitting—over his hearsay objection and as evidence to impeach prosecution witness Stanley's asserted failure of recollection at trial—Detective Pendleton's testimony regarding Winfield's statements to Stanley at a party purporting to show that he (Perry) confessed to shooting Watts. We reject this contention.
A. Background
Winfield, a witness for the prosecution, testified he is a "very close" friend of Perry. In mid-2006 he spoke with Stanley, who was upset about Watts's death, at a party in Oceanside that Perry also attended. On direct examination, Winfield stated that he asked Perry at the party whether he had anything to do with the shooting of Watts. According to Winfield, Perry replied, "No." Winfield also testified that Perry never told him that he shot Watts and that Perry never told him that he planned to rob Watts but shot him instead.
Stanley also testified as a prosecution witness. She was a reluctant witness who acknowledged she did not want to testify and had to be subpoenaed. Stanley testified she was dating Watts and had a sexual relationship with him before he was killed. She had known Winfield "since [she] was really young," they went to school together, she "used to hang out" with him in high school, and she called him "Tony."
Stanley testified she did not remember talking about Watts's death with Winfield at a party, and she did not remember Winfield ever telling her he knew who killed Watts. She acknowledged Winfield could have told her he knew who killed Watts when she was experiencing a "drug blur," but she did not remember having such a conversation with Winfield.
The prosecutor then asked Stanley, "But if someone told you that [he] knew who killed the person that you were romantically involved with, is that the type of thing you think you would remember?" Stanley answered, "I think I would remember."
The prosecutor also asked Stanley, "Did Mr. Winfield ever tell you that [Perry] confessed to killing Mr. Watts?" She replied, "I don't remember having the conversation with Tony about this." Stanley also stated she did not remember Winfield ever telling her that Perry told Winfield it was not his intention to kill Watts and that he just planned to rob Watts. She acknowledged she could have had this conversation with Winfield, but she did not recall doing so.
Stanley's testimony regarding her police interview was contradictory. She stated several times that she did not remember meeting with police and talking about this case. However, she testified she did remember telling detectives she was not sober around that time.
To impeach Stanley's testimony, the prosecution called Detective Pendleton, whose testimony also served to impeach Winfield's testimony. Over a defense hearsay objection, which the court overruled, Detective Pendleton testified about his interview with Stanley regarding the killing of Watts. Detective Pendleton met with Stanley at her Vista apartment on November 9, 2006, and asked her about a conversation she had with Winfield. Stanley said she was at a party when Winfield told her he knew who killed Watts. Winfield told her he hung out with that person, who was a Crip. Stanley indicated to Detective Pendleton that Perry was the only Crip at the party. Winfield told her that Perry had told him he (Perry) only intended to rob Watts, not kill him. Stanley told Detective Pendleton that she went outside after she heard this, Perry approached her and asked her what Winfield had told her, and then Perry said Winfield better not have told her what he (Perry) thought Winfield told her or there was going to be a problem. During Detective Pendleton's interview of Stanley, it appeared to him that Stanley was concerned about her safety.
Detective Pendleton's testimony also impeached Stanley's claim that she had been very intoxicated when she met with him in 2006. Detective Pendleton indicated that, during his 20 years as a law enforcement officer, he had received training in recognizing whether a person was under the influence of drugs or alcohol, and he had extensive experience in encountering and interviewing people who were under the influence. When he interviewed Stanley, he did not observe any symptoms indicating she was intoxicated or under the influence of drugs or alcohol. She appeared to be sober, she was not slurring her words, her eyes were not blood shot, and he did not smell the odor of alcohol.
B. Applicable Legal Principles
"Impeachment is the process of challenging or impugning the credibility of a witness. One commonly used method of impeachment is the adducing of evidence of a prior statement by the witness inconsistent with his testimony on the stand, for which purpose the statement is not considered to be hearsay." (People v. Sam (1969) 71 Cal.2d 194, 208.)
Evidence Code section 1235 "makes admissible the prior inconsistent statement of a witness not only to impeach credibility but also to prove the truth of the matters stated." (People v. Fierro (1991) 1 Cal.4th 173, 221, disapproved on another ground in People v. Letner and Tobin (2010) 50 Cal.4th 99, 204-206; see also People v. Johnson (1992) 3 Cal.4th 1183, 1219 ["A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770."].)
Evidence Code section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Section 770 of the Evidence Code provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action."
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"In enacting section 1235 of the Evidence Code, the Legislature has retained the fundamental requirement that the witness' prior statement in fact be 'inconsistent with his testimony at the hearing' before it can be admitted." (People v. Sam, supra, 71 Cal.2d at p. 210.) "Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. [Citation.] However, courts do not apply this rule mechanically. . . . When a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness's 'I don't remember' statements are evasive and untruthful, admission of his or her prior statements is proper." (People v. Johnson, supra, 3 Cal.4th at pp. 1219-1220.)
1. Standard of review
We review a ruling that evidence was admissible under an exception to the hearsay rules for an abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 308.) A reviewing court may overturn the trial court's exercise of discretion only upon a clear showing of abuse. (People v. Martinez (2000) 22 Cal.4th 106, 120.)
C. Analysis
Perry contends the record in this case "does not contain evidence from which the trial court was justified in finding Stanley was lying." We reject this contention and conclude the court did not abuse its discretion by admitting, over Perry's hearsay objection, Detective Pendleton's testimony regarding Stanley's hearsay statements because (1) there is a reasonable basis in the record for concluding that Stanley's "I don't remember" statements were evasive and untruthful; and (2) the court properly admitted Detective Pendleton's testimony under the prior inconsistent statement exception to the hearsay rule codified in Evidence Code section 1235. (See People v. Johnson, supra, 3 Cal.4th at pp. 1219-1220.) Here, the court had the opportunity to view Stanley's demeanor when she testified as a prosecution witness before Detective Pendleton took the witness stand, and, therefore, the court was in the best position to assess the credibility of her claimed nonrecollection. (See People v. Coffman and Marlow, supra, 34 Cal.4th at p. 78.) Furthermore, Stanley was a reluctant witness who stated to the prosecutor, in front of the jury, "I don't know why you would bring me here." She explicitly acknowledged, again in front of the jury, that she did not want to testify, and she claimed she had been "scolded and harassed in an office here."
Also, Stanley's relationship with Winfield, and Winfield's close friendship with Perry, supports a reasonable inference that Stanley had a motive to be evasive in her answers to the prosecutor's questions. Specifically, Winfield testified at trial that he was a "very close" friend of Perry; and Stanley testified that she had known Winfield, to whom she familiarly referred as "Tony," since she was "really young," and that she "used to hang out" with him in high school.
In addition, although Stanley based her inability to remember on her claim that she had been using drugs and suffered from what she called "drug blurs" around the time Detective Pendleton interviewed her, Detective Pendleton testified that when he interviewed Stanley he did not observe any symptoms indicating she was intoxicated or under the influence of drugs or alcohol. Stanley's testimony regarding her police interview was also contradictory. She stated several times that she did not remember meeting with police and talking about this case. However, she testified she did remember telling detectives she was not sober around that time.
For all of the foregoing reasons, we conclude there is a reasonable basis in the record for concluding that Stanley's "I don't remember" statements were evasive and untruthful, and the court did not abuse its discretion by admitting Detective Pendleton's testimony regarding Stanley's statements as it was admissible under Evidence Code section 1235. Accordingly, we affirm the judgment.
III
CLERICAL ERROR (SENTENCING MINUTE ORDER)
Last, Perry requests an order directing the trial court to prepare an amended sentencing minute order that "expressly states the determinate term imposed under count 3 is concurrent to the indeterminate term under count 1." The People state they "agree[] that the minute order dated March 16, 2010, should be amended to properly reflect the trial court's pronouncement of a concurrent term for count [3]." We grant Perry's request.
"The reason for requiring a minute entry of the judgment in a criminal case is to furnish a concise record showing the crime of which the defendant has been convicted and the punishment imposed, which will protect him against a subsequent prosecution for the same offense." (People v. Blackman (1963) 223 Cal.App.2d 303, 307.) "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) "'If the judgment entered in the minutes fails to reflect the judgment pronounced by the court, the error is clerical, and the record can be corrected at any time to make it reflect the true facts.' " (People v. Rowland (1988) 206 Cal.App.3d 119, 123.)
Pertinent here is the fact that the jury found Perry guilty of the first degree felony murder of Watts as charged in count 1 (§ 187, subd. (a)), and of the robbery of Wheeler as charged in count 3 (§ 211). The jury found true various firearm enhancement allegations, including the allegation in count 3 that Perry intentionally and personally discharged a firearm during the commission of the robery (§ 12022.53, subd. (c)).
At the March 16, 2010 sentencing hearing, the court sentenced Perry to an indeterminate prison term of 50 years to life plus a concurrent determinate term of 23 years. The court ordered that the term imposed as to count 3 be served concurrently with the term imposed as to count 1. Specifically, the court stated: "As relates to count 3, the court takes the mid term of [three] years. . . . [¶] . . . Additionally, the court takes pursuant to . . . section 12022.53, subdivision (c), the 20 years for a term of 23 years as relates to count 3. And the court is prepared to run count 3, as well as count 1, concurrent."
As the People acknowledge, the abstract of judgment correctly reflects this concurrent sentencing. However, as the People also acknowledge, the court's sentencing minute order does not reflect the court's oral pronouncement of judgment that the 23-year term it imposed as to count 3 be served concurrently with the term it imposed as to count 1. Specifically, the minute order states: "TOTAL TERM: 50 Years to Life PLUS 23 Years." It correctly reflects that the court imposed the mid-term of three years for Perry's count 3 conviction and states the count 3 20-year firearm enhancement (§ 12022.53, subd. (c)) is "Consecutive to Count 3." The minute order fails to reflect that the 23-year determinate term imposed as to count 3 is to be served concurrently with the term imposed as to count 1.
Accordingly, we grant Perry's request that the matter be remanded to the superior court with directions that it amend its March 16, 2010 sentencing minute order to reflect that the 23-year determinate term the court imposed as to count 3 is to be served concurrently with the term it imposed as to count 1.
DISPOSITION
The judgment is affirmed and the matter is remanded to the superior court with directions to amend the March 16, 2010 sentencing minute order to reflect the court's order that the 23-year determinate term it imposed as to count 3 is to be served concurrently with the term it imposed as to count 1.
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NARES, J.
I CONCUR:
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HUFFMAN, Acting P.J.
I CONCUR IN THE RESULT:
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AARON, J.