Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1234419. W. Charles Morgan, Judge.
David Joseph Macher for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Hollenhorst Acting P.J.
Defendant Adrian Reyes appeals judgment entered following a jury conviction for first degree murder (Pen. Code, § 187, subd. (a); count 1). The jury also found true the conduct enhancements of committing the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)), discharge of a firearm causing death (§ 12022.53, subd. (d)), and vicarious discharge of a gun in the commission of a gang-related crime (§ 12022.53, subd. (e)). The trial court sentenced defendant to 50 years to life.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court erred in denying his motion to suppress his statements made at the Riverside police station, after making involuntary, incriminating statements at the San Bernardino sheriff’s station. In addition, defendant contends the trial court erred in not instructing the jury on self-defense or on the right to self-defense by the initial aggressor or in instances of mutual combat. Defendant also argues his sentence constituted cruel and unusual punishment.
We reject defendant’s contentions and therefore also conclude there was no cumulative error requiring reversal. The judgment is affirmed.
Defendant has also filed a petition for writ of habeas corpus with this appeal, which is disposed of by a separate order.
1. Facts
Defendant moved with his family from Orange County to Riverside County eight or nine months before Derek Ochoa’s murder on January 11, 2006. At the time of the murder, defendant was 15 years old and Ochoa was 16.
The day before Ochoa’s murder, as defendant was walking home from high school with a friend, a carload of gang members drove up to defendant and asked where he was from. When defendant responded, “Delhi, ” they punched him in the face. As the men drove away, they yelled, “Riverside.” Defendant assumed the assailants were members of the 5150 Riverside gang (sometimes referred to as “5150 gang”).
After the assault on January 10, defendant went home with a black eye and spent the rest of the afternoon and evening at home with a bad headache. Defendant called his cousin and best friend, Andres Munoz, and told him about the assault. Munoz said they should retaliate.
The next day, Munoz picked up defendant at school and took him home to get his gun. They then went searching for defendant’s assailants. Defendant claimed he did not intend to use his gun. He just wanted to show it off to his companions. A third person named “Victor, ” accompanied defendant and Munoz. According to defendant, their plan was that, if they encountered 5150 Riverside gang members, they would punch one of them and drive away, just as had been done to defendant the day before.
Meanwhile, around 4:00 p.m. that same afternoon, Ochoa was waiting outside his house for his parents to take him to a meeting with his school counselor. While waiting, he walked down the street. Defendant and his companions drove past Ochoa, who had begun to cross the street. When they saw Ochoa, they made a U-turn and pulled up next to Ochoa and stopped.
Defendant, who was in the backseat of Munoz’s car, asked Ochoa, “What’s up, fool?” In response, Ochoa smiled and ran up to Munoz’s car. Defendant claimed he got scared, opened the car door, stepped out of the car, and fatally shot Ochoa in the back, abdomen, and hand. According to one witness, after shooting Ochoa, the assailant yelled “Delhi.” The assailant then got back in the car and the car sped away.
When defendant got home, he called his aunt in Norco and asked to stay with her. He told her he wanted to change schools because he was tired of being assaulted at school. He moved in with his aunt that same day.
The car involved in the murder was found at Munoz’s parents’ home. The gun was not recovered. According to defendant, it was returned to the previous owner because defendant had not paid for it as agreed. There was no evidence that Ochoa had a gun when he was shot.
Detective Castillo, a gang expert, testified at trial that Delhi is an Orange County street gang and the Alley Boyz gang is one of its main rivals. Castillo explained that if an Orange County student belonging to the Delhi gang transfers to a Riverside high school, and is beaten up by a 5150 Riverside gang member, the Delhi gang member is expected to retaliate with equal or greater violence; otherwise the Delhi gang’s status decreases. Castillo further explained that if the Delhi gang members do not find anyone from the 5150 gang but find a lone Alley Boyz gang member, the Delhi gang members would assault the Alley Boyz member instead because of the rivalry between the two gangs. The Alley Boyz member would be a victim of opportunity.
Although defendant told law enforcement detectives he was not in a gang, there was evidence that he was in the Delhi gang. Drawings of Delhi gang words and symbols were found in defendant’s bedroom. The Delhi gang and Alley Boyz gangs were rivals. According to defendant, the Alley Boyz gang was in Santa Ana. Ochoa told his friends and defendant that he was from Santa Ana and was an Alley Boyz member. Defendant saw Ochoa every day at school. Although defendant and Ochoa were from rival gangs, defendant claimed he was not Derek’s enemy but was also not his best friend.
2. Admissibility of Defendant’s Postpolygraph Test Statements
Defendant contends his statements, made at the Riverside police station on February 10, 2006, were inadmissible because they were involuntary and the tainted product of coerced statements he gave at the sheriff’s station. He claims his statements were involuntary because the police ignored his invocation of his right to remain silent, engaged in deception, and promised him leniency in return for his statements. In addition, defendant argues his young age of 15 years made him more susceptible to coercion.
A. Factual and Procedural Background
Before trial, defendant moved to exclude his statements made after his polygraph exam on February 10, 2006, on the grounds they were taken in violation of Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda), and were involuntary. The challenged statements included defendant’s statements made (1) during the postpolygraph questioning by the examiner at the sheriff’s station, (2) during a postpolygraph interview by Detectives Brandt and Medici, and (3) during another interview the same day by Brandt and Medici, after defendant was transported to the Riverside police station and advised of his Miranda rights.
Attached to defendant’s suppression motion were transcripts of these statements, as well as the prepolygraph discussion between defendant and polygraph examiner, Robert Heard, and the polygraph exam. These recorded statements, taken on February 10, 2006, are summarized as follows.
(1) Prepolygraph Discussion
Before the test, Heard explained the polygraph exam process to defendant and told him he was not under arrest. Defendant was not physically restrained in the polygraph exam room. Heard told defendant it was defendant’s decision as to whether to take the polygraph test. No one could force him to take it, and if he did not want to talk, he should tell Heard and he would be permitted to leave. Defendant said he understood. Heard added that defendant should take the polygraph only if he intended to tell the truth.
Defendant acknowledged that he was taking the polygraph because Ochoa was fatally shot. Heard gave defendant a list of eight questions Heard was going to ask defendant during the test. Before administering the test, Heard asked defendant what happened on January 11, 2006. Defendant said he was driving around with his cousin, Munoz, looking for defendant’s assailant, who had given him a black eye. Defendant thought Ochoa’s assailants were probably from the 18th Street or 5150 street gangs, although he was not certain because he was not present when the shooting occurred.
Heard gave defendant a polygraph consent form, asked defendant to read it, and read the form aloud to defendant. Defendant confirmed that no one was forcing him to take the polygraph and he had not received any promises in return for taking the exam. Heard warned defendant that there would be adverse consequences if he failed the examination. After defendant read the consent form, Heard answered defendant’s questions about the meaning of various words used in the consent form. Defendant then signed the consent form.
(2) Polygraph Exam
After a “dry run, ” defendant acknowledged he understood everything. Defendant was asked the eight questions three times, in a different order each time. Defendant denied he was involved in Ochoa’s death.
(3) Questioning After the Polygraph
After taking a break and analyzing the test results, Heard told defendant he had failed the polygraph. The test indicated defendant had lied about not being involved in the shooting. Heard asked defendant what actually happened. Defendant said that while he was driving around, neither he nor Munoz possessed or fired a gun. Defendant claimed the shooter was an 18th Street gang member.
Heard told defendant there were witnesses who saw shots fired from defendant’s car. Heard said his only uncertainty was whether defendant or Munoz was the shooter. Heard suggested defendant acted in self-defense. Heard wanted to know if defendant felt remorse and if he would commit another murder. Heard urged defendant to tell the truth. When Heard again asked defendant what happened, defendant said he did not know. The shots were fired by “Ramon.”
Heard told defendant witnesses had observed someone exit his car. Heard asked defendant who fired the shots. Defendant said he did not want to talk about the shooting anymore. Heard said the police would continue to investigate and asked defendant if he shot in self-defense. In response, defendant asked what would happen if he said nothing. Heard said the investigation would continue. He would give his report to the detectives and they would decide what to do.
Defendant said that regardless of whether it was him or someone else, “everybody in the car’s still gonna go 25 years.” Heard asked him what he was talking about and said he would not give legal advice. Heard added that defendant would be in “some trouble.” If defendant did not want to talk about it, Heard said he “could” assume under the circumstances defendant was the shooter. Heard again asked defendant what happened. Defendant said he did not want to talk about the shooting because everyone in the car would get 25 years in prison. Heard asked if defendant was the shooter, and defendant repeated he did not want to talk about it. Heard showed defendant the polygraph test results. Defendant said he did not want to say anything because everyone in the car would go to jail.
When Heard asked if defendant felt he had been treated fairly, defendant said he had. Heard asked how many people were in the car. Defendant said there were three people but would not say if the third person was the shooter. Munoz was the driver. Defendant said, “I won’t talk about this.” Heard said, “Okay [¶]... [¶] it’s your call. Oh, I’m certainly not gonna force you to do anything you don’t wanna do. That, all I can encourage you to do, Adrian, is you need to help Adrian... alright?” Heard told defendant he had paged the detectives, adding that defendant should be honest and tell them he felt bad about what happened and that it would not happen again. Defendant said it would not happen again and he felt bad.
Heard told defendant, “[f]ifteen year olds don’t go to state prison.” Defendant said he would still go to juvenile hall. Heard responded that he did not know what would happen. Defendant had not told him anything yet. Heard told defendant to tell the detectives the truth. Defendant asked if he would go to jail if he named the shooter. Heard said he did not know. Defendant should ask the detectives. Four times defendant asked Heard, if he named the shooter, would he go home. Heard responded each time that he could not answer defendant’s question, and added that it would be best if he told the truth. Defendant told Heard not to ask any more questions and asked Heard to call the detectives. Heard said he would and left the room.
(4) Postpolygraph Interrogation by Brandt and Medici
Detectives Brandt and Medici entered the polygraph room and questioned defendant. Brandt asked defendant if he was in the front passenger’s seat of the car. Defendant said he was not saying anything. Brandt asked if certain named people were involved in the shooting. Defendant said “no, ” and said he would not name anyone because “we’re going to jail anyway.” Brandt said that regardless of whether the jail time was minimal or substantial, defendant needed to tell the truth. Defendant said his biggest concern was going to jail for a long time. Brandt asked him how long he thought he would go to jail. Defendant said a murder sentence was 25 years. Brandt asked him how many 15 year olds received 25 years in jail. Defendant said, “none.” Brandt asked defendant why he thought he would be any different. Defendant said he did not know.
Brandt asked defendant whether Ochoa had anything in his hands or reached into a pocket. Defendant said he did not know. Brandt told defendant Ochoa had a gun in his pocket. Brandt suggested Ochoa was reaching for the gun and defendant could have been acting in self-defense, as opposed to committing a cold-blooded murder, with no remorse. Defendant said Ochoa always had a gun. He had one at school and was always saying he was going to shoot everyone. Defendant would not say who shot Ochoa. Brandt asked if defendant thought Ochoa was going to shoot him. In response, defendant asked what would happen to Munoz. Brandt said he had no idea because defendant did not say what Munoz did. Brandt did not know what role Munoz played in the shooting. Defendant said Munoz was the driver and “had nothing to do with it.”
Brandt asked defendant what happened. Defendant said Ochoa ran up to their car. They were frightened because Ochoa always had a gun. Defendant thought Ochoa was reaching for a gun. Defendant panicked and “I just shot.” Defendant was in the backseat. When Ochoa was almost at the car window, defendant got mad and opened the car door to get Ochoa to back up. After he shot Ochoa, defendant got back in the car and left. Munoz dropped off defendant at his house. Defendant then went to his aunt’s house. Munoz went home.
Defendant told Brandt he did not want to identify the other person in the car. Defendant said it was just defendant who shot Ochoa. Defendant asked, if he told who the third person was, whether Brandt would tell the person defendant had identified him. Brandt said he would not tell. Defendant said the other person was Victor. The three were looking for defendant’s assailant but were not going to shoot him. They were going to beat him up like he had done to defendant the day before.
Defendant got the gun from someone in Los Angeles about a week before the shooting. It was a.38-caliber revolver. Defendant left in the car after the shooting and did not know where his gun was at the time of his statement to Brandt. Brandt said the gun was found at Munoz’s house. Defendant said the gun was thrown away. He did not leave it in the car. Defendant then said he left the gun in the car and Munoz or Victor told him the gun was returned to the person in Los Angeles.
Brandt asked defendant why there were Delhi gang drawings at his house. Defendant said he did not know why. He just liked doing the letter drawings. Defendant used to live in the Delhi neighborhood and his best friend was from the gang, Boys from the Hood. Defendant denied that anyone yelled Delhi after the shooting.
Defendant said Ochoa told him he was from Santa Ana. Defendant did not believe Ochoa was in a gang. Defendant shot him simply because he ran up to the car, and defendant and his companions were scared because Ochoa always carried a gun.
Medici next questioned defendant. Defendant said Munoz was his best friend. Defendant knew Ochoa. He saw Ochoa everyday at school but they did not normally talk to each other. Ochoa was not defendant’s best friend or enemy.
When defendant saw Ochoa approach the car, defendant thought Ochoa was on drugs because he was not acting normal. He appeared angry. Ochoa might have thought the others in the car were 5150 or 18th Street gang members. Ochoa probably did not recognize defendant. Defendant thought Ochoa was about to shoot him. Defendant originally did not intend to shoot Ochoa.
After Brandt and Medici finished interviewing defendant in the polygraph examination room at the sheriff’s station, defendant was transported to the Riverside police station, advised of his Miranda rights, and interrogated further by Brandt and Medici.
(5) Riverside Police Station Interrogation
After arriving at the Riverside police station, Brandt told defendant he was going to ask defendant additional questions for purposes of clarification regarding what defendant had previously stated. Brandt noted that because defendant was not free to leave, Brandt was going to advise defendant of his Miranda rights before questioning him further.
After defendant waived his Miranda rights, Brandt and Medici interrogated defendant, during which defendant essentially repeated what he had already told Brandt and Medici at the sheriff’s station. Defendant admitted he shot Ochoa as Ochoa ran toward the car. Defendant claimed he shot Ochoa because he was scared. Defendant also stated that, within a month before the shooting, he saw Ochoa carrying a gun at school.
(6) Motion to Suppress Evidence
During the hearing on the suppression motion, the court noted it had reviewed the various recorded statements. Brandt further testified at the hearing. He stated that he transported defendant from his home to the sheriff’s station for a polygraph exam on February 10, 2006, which was prearranged with defendant’s mother, who consented to the polygraph. After completion of the polygraph, Brandt and Medici questioned defendant in the polygraph room. Defendant was not restrained in any way. Brandt did not advise defendant of his Miranda rights before speaking to him at that time. Brandt did not yell at defendant or point any weapons at defendant during his postpolygraph interview of defendant.
After watching portions of the videotaped interviews and listening to oral argument on the motion, the trial court found that defendant was in custody during his postpolygraph interview with Brandt and Medici. The court thus concluded defendant should have been advised of his Miranda rights before the postpolygraph questioning. As a consequence, the trial court excluded, as inadmissible, Brandt’s and Medici’s postpolygraph interviews conducted in the polygraph interview room.
The trial court further found, based on the totality of the circumstances, that defendant’s statements during the postpolygraph interviews were voluntary and therefore his statements made to Brandt and Medici at the Riverside police station, after defendant was advised of his Miranda rights, were admissible. A portion of that interview was thus introduced into evidence at trial.
B. Applicable Law
It is not disputed that defendant was in custody after completion of the polygraph exam, when Heard told defendant he had failed the polygraph test and had lied about his nonparticipation in the murder. Because defendant was not advised of his Miranda rights at this point, his statements made thereafter, while at the sheriff’s station, were inadmissible under Miranda v. Arizona, supra, 384 U.S. at pages 444-445, 475.
The issue on appeal is whether the trial court erred in allowing defendant’s subsequent statements made at the Riverside police station after defendant was advised of his Miranda rights. The operative question is thus whether defendant was subjected to coercion within the meaning of the Fifth and Fourteenth Amendments when he was interrogated at the sheriff’s station and, if so, whether his statements made thereafter at the Riverside police station were the tainted product of the earlier statements.
The prosecution has the burden of proving defendant’s statements were voluntary and were not the result of any form of compulsion or promise of reward. (People v. Boyde (1988) 46 Cal.3d 212, 238, overruled on another point sub nom. Boyde v. California (1990) 494 U.S. 370.) A confession is involuntary if it is “obtained by force, fear, promise of immunity or reward....” (People v. Esqueda (1993) 17 Cal.App.4th 1450, 1483 (Esqueda).) The question is whether the influences brought to bear upon the defendant “were ‘such as to overbear [his] will to resist and bring about confessions not freely self-determined.’ [Citation.]” (People v. Hogan (1982) 31 Cal.3d 815, 841, disapproved on another point in People v. Cooper (1991) 53 Cal 3d 771, 836.)
Courts apply a “‘totality of circumstances’” test to determine whether a confession is voluntary. Among the factors to be considered are the crucial element of police coercion; the length of the interrogation; its location; its continuity; and the defendant’s maturity, education, physical condition, and mental health. (People v. Massie (1998) 19 Cal.4th 550, 576 (Massie); People v. Williams (1997) 16 Cal.4th 635, 660 (Williams).) In the trial court, the prosecution must prove voluntariness by a preponderance of the evidence. (People v. Benson (1990) 52 Cal.3d 754, 779 (Benson).)
“Determinations as to the voluntariness of a statement for both the federal and state constitutional guaranties of due process of law--which is a resolution of a mixed question of law and fact that is nevertheless predominantly legal--are reviewed independently. ([Benson], supra, 52 Cal.3d at p. 779.) So too determinations as to the presence of coercive state activity and the existence of causality--also predominantly legal mixed questions. (Ibid.)” (People v. Mickey (1991) 54 Cal.3d 612, 649 (Mickey).) On appeal, the court must “examine the uncontradicted facts to determine independently whether the trial court’s conclusion of voluntariness was properly found. With respect to conflicting testimony, the appellate court accepts that version of the facts most favorable to the finding below, to the extent it is supported by the record.” (People v. Boyde, supra, 46 Cal.3d at p. 238.) Thus, the trial court’s findings as to the circumstances surrounding defendant’s statements are upheld if supported by substantial evidence. (Williams, supra, 16 Cal.4th at p. 660.)
We thus will consider whether the trial court erred in finding that defendant’s statements were voluntary.
C. Discussion
It is undisputed defendant was not subjected to overt physical brutality. This absence, however, is not dispositive, “for ‘coercion can be mental as well as physical, and... the blood of the accused is not the only hallmark of an unconstitutional inquisition.’” (People v. Montano (1991) 226 Cal.App.3d 914, 934, quoting Blackburn v. Alabama (1960) 361 U.S. 199, 206.)
Defendant argues his admissions were involuntary and coerced because Heard, Brandt, and Medici used psychological coercion and ignored defendant’s repeated attempts to terminate questioning. Defendant complains that Heard, Brandt, and Medici lied to him about the facts of the murder, led him to believe he would receive more lenient treatment if he confessed, engaged in “tough talk, ” and suggested mitigated scenarios.
Based on our review of the record, we conclude defendant’s statements were not coerced or involuntary. Although Heard continued to question defendant after defendant indicated several times that he did not want to speak or answer questions, defendant did not confess that he shot Ochoa. Heard ultimately terminated the postpolygraph questioning upon defendant’s request. Likewise, even though Brandt and Medici continued questioning defendant after he told them he did not want to talk, this alone did not constitute coercion. While the failure to end questioning after a suspect repeatedly attempts to end an interrogation may support a finding of coercion, continuing questioning alone is not necessarily dispositive. Defendant’s reliance on Esqueda, supra, 17 Cal.App.4th 1450, is misplaced because in Esqueda there were many other factors supporting a finding of coercion, in addition to officers’ repeatedly ignoring the defendant’s attempts to end the lengthy, oppressive interrogation.
In Esqueda, the court held that the defendant’s statements were not voluntary, not only based on the defendant’s repeated attempts to end the lengthy, eight-hour interrogation, but also based on numerous additional coercive circumstances, including deception, lies, and proffered mitigation scenarios. In Esqueda the court concluded the defendant’s Miranda waiver was defective and his statements admitting murder were not voluntary and violated his Fifth Amendment right of silence: “We are mindful the focal point of Miranda and of the concerns for voluntariness are protection of the accused’s right of silence. Once a defendant has waived his or her right of silence, the police have some latitude to interrogate with other than Chesterfeldian politeness. Where, however, the waiver is defective, the defendant has indicated a desire for silence, and the police have taken advantage of his exhaustion, emotions, and minimal education, and have used lies and threats to achieve their result, we do not hesitate to declare such an interrogation violative of the fundamental constitutional protections guaranteed each citizen by the Fifth and Fourteenth Amendments.” (Esqueda, supra, 17 Cal.App.4th at p. 1487.)
Here, defendant was a young high school student but showed an ability to assert his rights. Furthermore, unlike in Esqueda, supra, 17 Cal.App.4th 1450, his waiver of Miranda rights was not defective and there is no evidence defendant was exhausted or highly emotional. The officers did not threaten defendant and the use of lies was minimal, unlike in Esqueda. Esqueda involves far more outrageous circumstances leading to the defendant confessing to murder. The defendant confessed after eight hours of police interrogation, with little, if any, respite from the police constantly pressuring the defendant to confess.
The questioning began at 1:40 a.m., with the defendant eventually confessing the following day at around 2:00 p.m., after the officers had told defendant they were going to continue interrogating until he confessed, even if they had to continue for “two straight days.” (Esqueda, supra, 17 Cal.App.4th at p. 1486.) During the incessant interrogation, the police continually lied to the defendant about his girlfriend, who was the murder victim, and repeatedly suggested various mitigated and nonmitigated scenarios. (Id. at p. 1485.)
In concluding the defendant’s statements were coerced, the Esqueda court stated: “The police detectives used lies, accusations, exhaustion, isolation and threats to overcome Esqueda’s resistance. Detective Hill screamed at him for his involvement of the children in this affair. As we have pointed out, the other officers appealed to his manhood, his religion, and his Hispanic heritage, and, when all else failed, clearly advised him his refusal to talk would be interpreted as evidence of premeditation and support a charge of first degree murder. They repeatedly told Esqueda that if he admitted the shooting was an accident, he would be better off, and clearly suggested to him he would avoid the more serious charge by that admission. The message was very clear. Failure to tell them what they wanted to hear would result in greater charges.” (Esqueda, supra, 17 Cal.App.4th at p. 1486.)
When Esqueda finally confessed, “[h]e was exhausted, he had had nothing to eat, he had gotten sick and vomited, he had been processed, he had been shown pictures of the autopsy, and he had been told they would continue to question him until they got what they wanted. As Valle said at one point, ‘We’re gonna do it by getting to your emotions because that’s what you have to do.’ They got to his emotions, and he gave them a story they could finally accept. End of interview.” (Esqueda, supra, 17 Cal.App.4th at p. 1486.) Under these circumstances, the Esqueda court concluded the totality of the circumstances surrounding the defendant’s statements raised a strong doubt as to their voluntariness. (Id. at p. 1487.)
This case is also distinguishable from People v. Neal (2003) 31 Cal.4th 63, in which a police detective intentionally continued interrogation in deliberate violation of Miranda in spite of the defendant’s invocation of both his right to remain silent and right to counsel. (People v. Neal, supra, at pp. 80-81.) Unlike in the instant case, the defendant in Neal invoked his right to counsel seven to 10 times and the detective made both a promise and a threat to defendant, which the court held undermined the voluntariness of the defendant’s confessions. (Id. at p. 81.)
Defendant argues that all statements made after he was transported to the Riverside police station were inadmissible, even though made after he was advised of his Miranda rights, because the preceding statements were coerced and involuntary. We disagree. Defendant signed a consent form to take a polygraph test and voluntarily took the polygraph test. Thereafter he answered Heard’s postpolygraph questions, without confessing to the murder. While defendant several times stated that he did not want to talk, thereby invoking his right to silence, he continued to talk to Heard, without confessing to shooting Ochoa or admitting to being involved in any way. Defendant demonstrated he was not easily intimidated and exhibited an ability to comprehend his predicament. He also indicated he was aware of the possibility of being sentenced to 25 years to life for murder and stated several times that regardless of what he said, he and his companions would end up going to jail or juvenile hall if he disclosed facts concerning the shooting. After defendant made it clear he did not want to talk, Heard ceased questioning defendant.
As to defendant’s statements to Brandt and Medici at the sheriff’s station, following the postpolygraph questioning by Heard, the trial court excluded those statements because defendant was not advised of his Miranda rights. While Brandt and Medici should have advised defendant of his Miranda rights before questioning him at the sheriff’s station, defendant’s statements were not coerced or involuntary such that defendant’s subsequent statements made at the Riverside police station were also inadmissible.
Although Brandt and Medici lied that they were informed Ochoa had a gun and suggested defendant might have acted in self-defense, this was not a sufficient basis for concluding defendant’s statements were involuntary. The suggested defense of self-defense was permissible because, “this by itself could be considered merely pointing out the consequences which would ‘naturally flow from a truthful and honest course of conduct, ...’” (Esqueda, supra, 17 Cal.App.4th at p. 1485.) Without defendant disclosing the factual circumstances of the shooting, self-defense was a potential natural consequence.
In addition, Brandt and Medici did not engage in excessive “tough talk, ” as was the case in Esqueda, supra, 17 Cal.App.4th 1450, in which the Esqueda court concluded the police went too far: “They implied questioning would only stop if Esqueda gave them the story they wanted. They told him what they wanted when he asked what they wanted him to say. At first they said they wanted the truth. Later, they said they wanted to hear only who killed Ana and suggested it would be better for him if it was an accident. They said they knew it was him and that it was only a matter of intentional or accidental killing. They told him his only way out was to say it was an accident. They implied by so saying he would not have to go to prison and would be out with his children.” (Id. at pp. 1485-1486.) The police also told the defendant that “they would keep at it ‘if we have to be here two straight days, ...’” (Id. at p. 1486.)
In the instant case, defendant was not subjected to over eight hours of persistent, aggressive, grueling interrogation, during which he was relentlessly pressured to confess that he was the murderer. Defendant was not told what to say and was not told that the only way out was to confess to murder and say it was an accident. Defendant was also not told directly or by implication that if he confessed, he would not go to prison and would be released from custody.
After defendant agreed to take the polygraph test, he was transported to the sheriff’s station at 9:00 a.m. from his house. There was no evidence he was sleep deprived or hungry during the subsequent questioning. The polygraph and questioning at the sheriff’s station lasted about two and a half hours. He was then transported to the Riverside police station, where he was advised of his Miranda rights, and questioned for another 40 to 60 minutes, with questioning ending at around 2:00 to 3:00 p.m. Defendant was given breaks and offered food and water. There is no evidence that he was overly emotional during the questioning, that he was promised anything, or that he was threatened in any way.
Defendant complains that he was told 15 year olds do not go to prison. The record reflects that Heard told him this but it did not persuade defendant to make any involuntary statements. Near the end of Heard’s postpolygraph interrogation of defendant, Heard told defendant he could not tell defendant what would happen if defendant told the truth because defendant had not yet told Heard what had happened. After noting that defendant had said he could end up going to prison for 25 years to life, Heard said: “Fifteen year olds don’t go to state prison.” While this was untrue, it apparently had little impact on defendant. Defendant noted he nevertheless would have to go to juvenile hall. Heard thereafter urged defendant to tell the truth. When defendant asked Heard what would happen if defendant told the truth, Heard said he could not say. When defendant insisted on not talking anymore, despite Heard’s attempts to engage defendant in conversation, Heard terminated the questioning.
Coercive activity must be “the ‘proximate cause’ of the statement in question.” (Mickey, supra, 54 Cal.3d at p. 647; accord, People v. Musselwhite (1998) 17 Cal.4th 1216, 1240 (Musselwhite).) Heard’s statement that 15 year olds do not go to prison was not the proximate cause of any incriminating statement made by defendant to Heard.
Defendant argues Brandt also misled him into believing he would not go to prison. Brandt asked defendant “How many 15 year olds do you know that go to jail for 25 years?” Brandt stated this after defendant told Brandt his greatest concern was that he would go to jail for a long time. When defendant said none, Brandt asked defendant why it would be any different for defendant. Brandt neither promised defendant leniency nor improperly misled him. Brandt merely indicated it was not common for a 15 year old to be sentenced to 25 years in prison, which was true.
The use of deception by the police may invalidate a confession, particularly if it is used to make more plausible a promise of leniency, as, for example, where an officer misstates the law in a way that leads the defendant to believe he may avoid liability if he confesses to certain conduct. (People v. Cahill (1994) 22 Cal.App.4th 296, 315.) However, “... deception does not necessarily invalidate a confession” (People v. Thompson (1990) 50 Cal.3d 134, 167); rather, it is merely one factor to be considered. (In re Shawn D. (1993) 20 Cal.App.4th 200, 209.) “Lies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary. [Citation.] [¶] Rather, there must be a proximate causal connection between the deception or subterfuge and the confession. ‘A confession is “obtained”... if and only if inducement and statement are linked, as it were, by “proximate” causation.... The requisite causal connection between promise [or deception] and confession must be more than “but for”: causation-in-fact is insufficient.’ [Citation.]” (Musselwhite, supra, 17 Cal.4th at p. 1240, quoting Benson, supra, 52 Cal.3d at p. 778.) Here, for purposes of establishing coercion, there was an insufficient connection between defendant confessing he shot Ochoa and the officers’ statements that 15 year olds do not go to prison and Ochoa had a gun.
Also, as defendant recognizes, the fact the interrogation at the sheriff’s station was not accompanied by Miranda advisals does not invalidate the later Mirandized statements unless the later admissions were in fact involuntary or the tainted product of the initial statements or confession. (People v. Samayoa (1997) 15 Cal.4th 795, 831; Wong Sun v. United States (1963) 371 U.S. 471, 487-488.) “It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” (Oregon v. Elstad (1985) 470 U.S. 298, 309 [incriminating statements made by burglary suspect while subject to custodial interrogation, without having been given Miranda warnings, were excludable; but statement given later at the police station, after the police gave defendant his Miranda warnings, was not excludable].)
After independently reviewing the record in its entirety, we conclude the trial court properly ruled defendant’s statements, both at the sheriff’s station and thereafter at the Riverside police station, were voluntary beyond a reasonable doubt. (Benson, supra, 52 Cal.3d at p. 780.) Defendant has not established psychological coercion, deception, threats, false promises, or other overbearing coercive tactics requiring suppression of defendant’s statements made during interrogation at the Riverside police station. The trial court appropriately determined that defendant spoke, not because of coercion applied by the police, but freely and voluntarily. After independent review, we agree.
Since defendant’s statements made at the sheriff’s station were voluntary, his waiver of Miranda rights at the Riverside police station and statements made thereafter were likewise volitional. Unlike in Missouri v. Seibert (2004) 542 U.S. 600, 616, the circumstances in the instant case need not “be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that [he] retained a choice about continuing to talk.” (Id. at p. 616.)
Here, a reasonable person would have understood the advisement of Miranda warnings given to defendant as conveying that defendant was not required to talk and there was no evidence that defendant was coerced into waiving his rights. We thus reject defendant’s contention that his statements made at the Riverside police station were inadmissible because they were the tainted product of defendant’s previous statements.
During oral argument on appeal, this court granted the parties leave to file supplemental briefing on the recent United States Supreme Court decision, Berghuis v. Thompkins (2010) 560 U.S. ___ [130 S.Ct. 2250]. In Berghuis, the United States Supreme Court held that the defendant did not invoke his right to remain silent under Miranda by remaining silent during the first two hours and 45 minutes of a three-hour interrogation. (Berghuis, at p. 2260.) Before the interrogation, the defendant was advised of his Miranda rights. (Berghuis, at p. 2256.) The court in Berghuis stated that in order to assert the right to remain silent, one must unambiguously invoke the right, such as by stating the desire to remain silent or to not talk with the police. (Id. at p. 2260.)
The Berghuis court further noted that, even absent the defendant’s invocation of his right to remain silent, his statement made “during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived [Miranda] rights’ when making the statement.” (Berghuis v. Thompkins, supra, 560 U.S. at p. ___ [130 S.Ct.at p. 2260].) In Berghuis, the court held the defendant impliedly waived his right to remain silent by responding to questions during the interrogation under circumstances in which the defendant was not coerced to respond. (Id. at pp. 2263-2264.)
The instant case is distinguishable from Berghuis in several respects. Defendant was not arrested or advised of his Miranda rights before the prepolygraph questioning, the polygraph test, or the postpolygraph questioning at the sheriff’s station by Heard and Detectives Brandt and Medici. Also, unlike in Berghuis, during this questioning, defendant actually stated he did not want to be questioned any further, yet the officers continued interrogating him, and ultimately defendant made incriminating statements. As a consequence, the trial court excluded defendant’s statements made during these interrogations at the sheriff’s station.
As noted in our tentative decision, even though defendant asserted his right to remain silent and the officers nevertheless continued questioning him in violation of defendant’s Fifth Amendment right, there was no reversible error because the trial court excluded defendant’s statements obtained during the improper interrogation at the San Bernardino sheriff’s station, and only admitted into evidence defendant’s statements made later at the Riverside police station after defendant was properly advised of his Miranda rights. Since defendant’s statements made at the Riverside police station were not coerced and were made voluntarily after being properly advised of his Miranda rights, under Berghuis v. Thompkins, supra, 560 U.S. at page ___ [130 S.Ct. at page 2264], the trial court properly admitted into evidence the statements for impeachment purposes.
Accordingly, the trial court did not err in denying defendant’s motion to suppress his statements made at the Riverside police station.
3. Self-Defense Jury Instructions
Defendant contends the trial court erred in rejecting his request for jury instructions, CALCRIM Nos. 505 and 3471, on self-defense and on the right to self-defense by the initial aggressor or in instances of mutual combat. We disagree.
Defense counsel submitted a written request that the trial court give CALCRIM No. 3471 but did not request CALCRIM No. 505. The trial court denied defendant’s jury instruction request, concluding CALCRIM No. 3471 did not apply to the facts in the case. Both parties requested instruction on imperfect self-defense, CALCRIM No. 571, which the court read to the jury.
CALCRIM No. 3471, requested by defendant, states:
Defendant argues he was entitled to the mutual combat instruction on the basis there was evidence that, when defendant drove up to Ochoa and said, “What’s up, fool?” this could be viewed in the gang context as a challenge to engage in mutual combat, and Ochoa’s response of smiling and then running up to defendant’s car conveyed acceptance of defendant’s invitation to mutual combat.
The trial court’s rejection of the mutual combat instruction is reasonable and well founded, particularly since there was no gang expert testimony supporting such a mutual-combat theory and no evidence of any physical contact between defendant and Ochoa. Furthermore, it does not appear from the record that defendant asserted at trial that he initiated mutual combat or intended to engage in a fight with Ochoa. To the contrary, defendant argued that Ochoa’s behavior was unanticipated, crazy, and likely the consequence of being on drugs. Defendant claimed he merely panicked and shot Ochoa when, out of fear, Ochoa charged towards him. Under such circumstances, there was insufficient evidence to support a mutual combat instruction and therefore the trial court appropriately rejected CALCRIM No. 3471.
The trial court also was not required to give sua sponte CALCRIM No. 505 on perfect self-defense because, “‘[f]or killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is “imperfect self-defense, ” i.e., “the defendant is deemed to have acted without malice and cannot be convicted of murder, ” but can be convicted of manslaughter. [Citation.] To constitute “perfect self-defense, ” i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated, “[T]he circumstances must be sufficient to excite the fears of a reasonable person....” (Pen. Code, § 198; see also § 197, subds. 2, 3.)’” (People v. Romero (1999) 69 Cal.App.4th 846, 853.)
CALCRIM No. 505, states in relevant part: “The defendant is not guilty of murder... if he was justified in (killing/attempting to kill) someone in self-defense. The defendant acted in lawful self-defense if:
Defendant argues for the first time on appeal that the trial court erred in not giving this self-defense instruction sua sponte. He bases his contention on defendant’s statements to Brandt and Medici that Ochoa threw something at defendant’s car, smiled at defendant when defendant said, “What’s up, fool?, ” and then ran up to the car, while reaching for a gun in his pocket.
The evidence could not reasonably be construed as supporting a finding that a reasonable person would believe defendant’s use of force was necessary, since defendant got out of the car and shot Ochoa, who was unarmed. The trial court thus was not required to give sua sponte CALCRIM No. 505 on self-defense. While defendant may have feared Ochoa might be carrying a gun and engage in violence because he was known to be in a gang and carry a gun, a reasonable person would not believe Ochoa’s act of running toward defendant’s car was a sufficient basis for defendant stepping out of the car and shooting him three times, even assuming Ochoa put his hand in his pocket as he approached.
A trial court’s duty to instruct sua sponte on particular defenses arises “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 157.) Here, there was not substantial evidence supporting a finding of perfect self-defense, as defined in CALCRIM No. 505. The trial court thus was not required to give CALCRIM No. 505.
4. Cruel and Unusual Punishment
Defendant contends his sentence constitutes unconstitutional cruel and unusual punishment pursuant to both the federal and state Constitutions because it represents a disproportionately high sentence in light of the particular facts of this case and defendant’s young age of 15 years.
A. Waiver
The People argue defendant waived the objection by not raising it in the trial court. Several published decisions have found waiver of a criminal defendant’s claim of cruel and unusual punishment. (E.g., People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27 (DeJesus).) In each case, however, the court went on to address the claim. Moreover, Kelley simply cited DeJesus, without any substantive discussion of the waiver issue. Also, DeJesus is questionable authority for a blanket rule of waiver of cruel and unusual punishment claims.
The issue in DeJesus was whether the trial court should have considered its discretion under People v. Dillon (1983) 34 Cal.3d 441 to reduce a conviction of first degree murder based on cruel and unusual punishment. The court in DeJesus reasoned that “... Dillon makes clear that its holding was premised on the unique facts of that case. [Citation.] Since the determination of the applicability of Dillon in a particular case is fact specific, the issue must be raised in the trial court.” (DeJesus, supra, 38 Cal.App.4th at p. 27.) In contrast, where the issue is merely whether a sentence is cruel and unusual punishment, there normally are no “fact specific” issues. Rather, “‘[w]hether a punishment is cruel or unusual is a question of law for the appellate court, ...’” (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1390.)
The California Supreme Court has stated with respect to sentencing claims: “In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (People v. Scott (1994) 9 Cal.4th 331, 354.) It is at least arguable that a sentence that constitutes cruel and unusual punishment is not one “otherwise permitted by law” but simply imposed in a procedurally or factually flawed manner. DeJesus did not consider that question.
Furthermore, as the court in DeJesus recognized, it is appropriate to consider even an issue that has been waived “in order to ‘forestall a subsequent claim of ineffectiveness of counsel’” for failure to raise the issue. (DeJesus, supra, 38 Cal.App.4th at p. 27.) For these reasons, we elect to consider defendant’s contention.
B. The Constitutionality of Defendant’s Sentence
Defendant complains his sentence of 50 years to life for committing first degree murder is cruel and unusual punishment, and suggests a 25-year-to-life sentence would be acceptable. (§ 187, subd. (a).) We disagree. Defendant’s sentence consisted of a 25-year-to-life term for the murder conviction and a consecutive 25-year-to-life term for the accompanying section 12022.53, subdivision (d) enhancement (discharge of a firearm causing death). The court stayed sentencing on the remaining two enhancements (committing the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)) and vicarious discharge of a gun in the commission of a gang-related crime (§ 12022.53, subd. (e)).
Both the federal and state Constitutions require that the punishment fit the crime. Under the prevailing view, the Eighth Amendment of the federal Constitution is violated when a sentence is “‘grossly disproportionate’” to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) Similarly, the California Constitution is violated when the punishment “is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) Here, defendant’s sentence violates neither the state nor federal Constitution.
A three-prong test has been established to determine whether a sentence is cruel and unusual punishment under the state Constitution. The courts “examine the nature of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense. [Citations.]” (People v. Alvarado (2001) 87 Cal.App.4th 178, 199.) Defendant challenges his sentence only as to the first prong, “the nature of the particular offense and offender.” (Ibid.)
Defendant argues his sentence is excessive because of his young age and absence of any criminal history, other than a municipal ordinance violation for school truancy. We disagree. As defendant concedes in his appellant’s opening brief, “there can be no doubt that murder is among the most serious of all crimes, ” particularly first degree murder. Defendant argues that, nevertheless, sentencing him to 50 years to life, when he committed the crime at such a young age and has no criminal history, is cruel and unusual punishment because there is little possibility that he will live long enough to have a parole hearing, much less be released from prison. This is untrue since there is the possibility defendant will be released after 50 years in prison, at the age of 65.
More importantly, defendant was sentenced to 25 years to life for murder and defendant concedes in his appellant’s opening brief that “25 years to life is not regarded as cruel and unusual punishment for a crime such as the murder in this case.” In essence, he is complaining that, because of defendant’s youth, imposing the additional 25-year-to-life sentence for the gun enhancement constitutes cruel and unusual punishment (§ 12022.53, subd. (d)). We note that, in addition to the gun enhancement, the court also found true two stayed gang enhancements for committing the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)) and vicarious discharge of a gun in the commission of a gang-related crime (§ 12022.53, subd. (e)).
We cannot say that defendant’s sentence of 25 years to life for murder, plus 25 years to life for the gun-use enhancement, along with the stayed gang enhancements, constitutes cruel and unusual punishment. Despite defendant’s youth, his lengthy sentence does not shock the conscience or offend fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424.) Even though defendant did not have a criminal history and was only 15 years old when he committed murder, he was not an unsophisticated, naïve offender. During defendant’s interrogations, he exhibited an ability to withstand intimidation during questioning by law enforcement officers and demonstrated a perceptiveness and relatively good understanding of his rights and the legal system.
More importantly, the nature of defendant’s crime was extremely egregious and violent, justifying a base term of 25 years to life in prison, and defendant’s use of a gun and commission of the murder for the benefit of a gang, justified an additional consecutive 25-year-to-life term. There was evidence that the shooting was an act of gang violence instigated by defendant in retaliation for being punched in the eye the day before by a rival gang member. Furthermore, the victim appears to have been an innocent bystander who had nothing to do with the fight the day before and was not carrying a gun. Defendant nevertheless stepped out of the car and shot the victim at close range, and then got back in the car and left the scene, leaving the victim dying on the ground. There was also evidence defendant acted with premeditation, out of revenge for being punched in the eye the day before.
In view of such callousness and culpability, defendant’s lengthy sentence does not constitute cruel and unusual punishment, even though he was 15 years old when he committed the murder. Defendant was sentenced to an indeterminate sentence of 50 years to life in prison. Therefore, defendant’s complaint that, in all likelihood, he would not outlive his indeterminate 50-year sentence is pure speculation.
In People v. Em (2009) 171 Cal.App.4th 964 (Em), the defendant, who was 15 years old when he committed the charged crimes, was sentenced to two consecutive 25-year-to-life sentences for murder committed during a robbery by gang members. The defendant was involved in a robbery in which a fellow gang member robbed the victim and then shot him. (Id. at pp. 966-968.) The defendant was charged with aiding and abetting or conspiring with other gang members in committing the robbery, and was convicted of murder based on the felony-murder doctrine. (Id. at p. 969.) The court in Em rejected the defendant’s contention his sentence constituted cruel and unusual punishment under the state and federal Constitutions based on his young age. (Id. at pp. 966-967, 971, 977.)
The Em court explained that, as to defendant’s state constitutional challenge, “Defendant was 15 years nine months old when Mr. Davila was murdered, and, according to the probation officer, he was immature. When balanced against the seriousness of the crime, defendant’s active participation in Mr. Davila’s robbery and murder, the senseless and coldblooded nature of the murder, defendant’s prior gang-related criminal history, and the danger he presents to society, we hold defendant’s sentence was not disproportionate to the crime for which it was imposed, based on the first prong of the In re Lynch [(1972) 8 Cal.3d 410] test.” (Em, supra, 171 Cal.App.4th at p. 976.)
The Em court similarly concluded, as to the defendant’s federal constitutional challenge, that the defendant’s sentence was not “grossly disproportionate to the crime of murder, with a gang enhancement for the vicarious discharge of a firearm resulting in death.” (Em, supra, 171 Cal.App.4th at p. 977.) The reasoning in Em applies equally to the instant case, with defendant’s criminal acts in the instant case being even more heinous, since defendant personally shot the victim.
Defendant’s punishment is unquestionably severe, but so was his criminal conduct, which posed grave risks to the public, equal to those of other violent offenders, young and old alike. We cannot say defendant’s sentence is constituted cruel and unusual punishment under the federal or state Constitutions.
6. Disposition
The judgment is affirmed.
We concur: Richli J., King J.
“A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if:
1. (He/She) actually and in good faith tries to stop fighting;
[AND]
2. (He/She) indicates, by word or by conduct, to (his/her) opponent, in a way that a reasonable person would understand, that (he/she) wants to stop fighting and that (he/she) has stopped fighting(;/.)
<Give element 3 in cases of mutual combat.>
[AND
3. (He/She) gives (his/her) opponent a chance to stop fighting.]
If a person meets these requirements, (he/she) then has a right to self-defense if the opponent continues to fight.
[If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend (himself/herself) with deadly force and was not required to try to stop fighting.]”
1 The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury;
2 The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;
AND
3 The defendant used no more force than was reasonably necessary to defend against that danger.
... Defendant’s belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the... killing was not justified....” (CALCRIM No. 505; see also People v. Romero, supra, 69 Cal.App.4th at p. 853.)