Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C149474-A.
RUVOLO, P. J.
Appellant was the driver in a drive-by shooting that resulted in the death of one of the victims. The issue at trial was whether appellant, who did not shoot, had the requisite knowledge and intent to be convicted of first degree murder. The jury found that he did.
On appeal, appellant challenges the introduction into evidence of his pretrial statements to police that were made before he received Miranda warnings, at a time when police considered appellant only to be a witness and not a suspect. Appellant also challenges the admission of statements he made, both before and after he received Miranda warnings, that were not tape-recorded, and were introduced by way of the interviewing officer’s recollection, as prompted by his handwritten contemporaneous notes. We reject appellant’s claim of inadmissibility as to both categories of statements.
Appellant also challenges the adequacy of the jury instructions with respect to his unrecorded statements, and with respect to his intent to kill. Finally, he contends that his sentence of life in prison without parole is unconstitutional because his passengers, who were the actual shooters, received lesser sentences. We reject all of these additional contentions as well, and affirm appellant’s conviction and sentence.
Facts and Procedural Background
A. The Drive-By Shooting
On September 26, 2003, just before dark, Nathan Newsome, a convicted drug dealer, and his friend Jeremy Folliott were walking along Coolidge Avenue in Oakland, near School Street, when they encountered their friend Jose Roberto, who also sometimes sold drugs in their neighborhood. Roberto was dressed up in anticipation of a date with a young woman who worked as an in-home care provider in the neighborhood. As the three men were standing in a driveway talking, they were joined by Marlone King, who was Folliott’s cousin and a friend of the other two men. None of the men in the group was armed at the time.
After some time, Newsome heard two or three “pop-pop” sounds coming from his right, and soon spotted a small gray or brown four-door car driving along Coolidge, with its driver’s side facing Newsome and his friends. The car looked full of people, but Newsome could not specify how many people, identify them, or even determine their race.
There was a hand sticking up from the rear passenger side of the car, with flames coming out of it. Newsome quickly realized that the people in the car were shooting at his group. As eight to ten more shots were being fired, Newsome pushed Folliott toward a parked car and told him to get down. Newsome himself crouched down with his hands on his head and moved farther up the driveway to try to avoid getting shot.
After the shooting stopped, Newsome looked around to see if his friends were all right, and saw Roberto on the ground. When Roberto did not respond to his call, Newsome went over to him and saw that he had a hole in his head and was bleeding. Newsome ran across the street to his aunt’s house and yelled up to her to call 911.
Roberto died at the hospital early the following morning. An autopsy determined that the cause of his death was a bullet wound to the head. The bullet that killed him had passed through his eye, brain, and skull, and then lodged under the skin at the back of his head, where it remained until it was removed during the autopsy.
The police recovered seven nine-millimeter shell casings from the scene. A criminalist with firearms expertise examined the casings, as well as the bullet removed from Roberto’s head. He concluded that all seven casings were fired from the same Glock nine-millimeter pistol, and that the bullet was most likely fired from a gun of the same type, though he could not say so for certain. He later examined and test fired a specific Glock pistol, and determined that it was the same one that had fired the casings found at the scene.
B. Appellant’s Statements to Police
In June 2004, appellant was taken to jail in Oakland in connection with a car theft that apparently bore no relation to the drive-by shooting of Roberto. The Oakland Police Department had a practice of randomly asking new jail inmates whether they had information about crimes of violence. In response to such an inquiry, appellant told a police officer that he had information about Roberto’s killing, and gave him the names of brothers David and Jamal Everett. On June 10, 2004, the officer relayed this information to another officer, Phil Green, who was the lead investigator on the case. Green did background checks on the Everett brothers, and decided to interview appellant.
We will refer to David and Jamal Everett collectively as the Everett brothers.
Early the next morning, Green took appellant from the jail to an interview room at the Oakland Police Department. At that time, Green did not consider appellant to be a suspect in Roberto’s killing; as far as Green knew, appellant was only a witness who had information about it. Green therefore did not give appellant Miranda warnings before his first interview with him. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).)
In a statement that was not tape-recorded (the unrecorded morning statement), appellant told Green the following story. Appellant was a member of a group of friends from the neighborhood of Georgia and Maple Streets in Oakland. The group included the Everett brothers and Stephen Bell, whom appellant was able to identify easily from photo lineups that Green showed him. Appellant’s group, particularly Bell, had a “funk” (i.e., a problem or conflict) with a group of people from the neighborhood around School Street. On the date Roberto was killed, the Everett brothers, each armed with a handgun, asked appellant and Bell if they wanted to ride with them in a dark brown or black Toyota Camry that appellant had stolen earlier that day. David Everett had a Glock nine-millimeter, and Jamal had a.38 that was black with a brown handle. The Everett brothers told appellant and Bell that they were going to “handle” their issue with the people from School Street. Appellant and Bell did not go with them. Appellant heard shots shortly thereafter—first two shots, and then a lot of them—but he was not present at the shooting. The Everett brothers returned less than a minute later. A day or two later, Jamal Everett showed appellant a newspaper article about the killing of Roberto and told appellant, “ ‘we killers now,’ ” or “ ‘yeah, we some killers,’ ” or something to that effect.
Portions of this statement, and of appellant’s recorded morning statement (see post), were contradicted by appellant’s later statements.
After a break, the officers returned to the interview room and told appellant that they knew there had been more than two people in the car from which Roberto was shot, and they wanted him to tell them the truth about his involvement in the shooting. Appellant still was not given Miranda warnings at this time. Appellant then gave an additional unrecorded statement (the supplemental unrecorded morning statement) in which he continued to maintain that all he had done was provide the Everett brothers with the stolen car they used, and that he had not been otherwise involved.
After obtaining appellant’s supplemental unrecorded morning statement, at about 10:30 a.m., the police tape-recorded an interview with appellant (the recorded morning statement). The tape of the recorded morning statement was played for the jury at trial, and a transcript was entered into evidence as an exhibit. Appellant did not receive Miranda warnings before making his recorded morning statement; the transcript reflects the officers’ understanding, at the time, that appellant was not present at the scene when Roberto was shot, but knew who was responsible.
In the recorded morning statement, appellant said he was from the area around Maple and MacArthur in Oakland, and that around the time of Roberto’s murder, he heard that “some people on School Street” had come and “shot up” his area. Appellant said that on the evening of Roberto’s murder, he was hanging out with Bell and the Everett brothers outside an apartment building on Georgia Street. At some point, the Everett brothers retrieved some guns from behind the building. David Everett had a Glock, which appellant had used himself, for no particular reason, several days earlier. Jamal Everett had a black.38 with a short barrel and a brown, wooden handle. The Everett brothers got into a dark brown or black Camry, which appellant had stolen for them earlier that day at David Everett’s request, and drove away, leaving appellant and Bell in front of the apartment building. Appellant and Bell walked to a nearby store, and while they were there, the Everett brothers returned and asked Bell if he wanted to come with them, explaining that they were “about to go and handle that down there on School Street.” Appellant and Bell declined the invitation. When asked what appellant thought the Everett brothers meant when they said they were going to “handle that,” appellant said “I guess... go shoot up School Street, [or] somethin[g].”
The Everett brothers then drove away, and appellant and Bell returned to their spot in the courtyard area of the apartment building. A few minutes later, they heard two gunshots, and then “a whole bunch” more—12 or 15 altogether—coming from the direction of School Street or the freeway. They went down to the corner and looked down the street. About 30 seconds later, the Everett brothers returned, parked the car, and ran. Only the brothers were in the car, with Jamal Everett in the driver’s seat. A day or two later, Everett showed appellant a newspaper story about the shooting, indicating that someone had been killed, and said to appellant, “Yeah, yeah. We be some killers.” The day after that, David Everett told appellant something about not having any more bullets, because they had used them all.
Appellant also told Green that David Everett had since been arrested for kidnapping and was in custody, and Everett was in custody at juvenile hall. Possibly to explain why he was providing this information, appellant told Green that Bell had shot at him about five days before the interview.
After appellant gave the recorded morning statement, he was returned to jail. Later that day, the officers located Bell, retrieved Jamal Everett from juvenile hall, and brought both of them to the Oakland Police Department. After interviewing Bell, but not Everett, the officers once again removed appellant from jail and brought him back to an interview room at the Oakland Police Department, near the interview rooms in which Bell and Everett were being kept. By this time, appellant had apparently become a suspect in the case, and Green advised him of his Miranda rights before asking him any questions about the shooting of Roberto. Appellant waived his rights and agreed to speak to the officers. They showed him Bell’s and Everett’s names on the interview room doors, and Green told him they wanted the truth from him. Appellant then said to Green, “I was only the driver in this” (i.e., in the shooting incident).
Appellant later confirmed on tape, in his recorded evening statement (see post), that before appellant made his unrecorded evening statement, Green read appellant his Miranda rights, and appellant waived them and agreed to talk.
The officers then conducted a second unrecorded interview of appellant (the unrecorded evening statement). During the unrecorded evening statement, appellant related a different version of the events surrounding the shooting. He told the officers that Jamal Everett and Bell approached him and asked him to drive them to School Street in the stolen Camry. Everett sat in the front passenger seat, and Bell in the rear on the left. David Everett was not present.
Appellant contended he was not aware that he and the other two young men were going to do anything other than drive by and see what was happening. He denied having had any knowledge that Bell and Everett were going to shoot anyone. After appellant turned the car onto Coolidge Street, Everett and Bell told him to slow down, and he did. As they came near a group of people standing on the sidewalk to their left, Bell fired two shots at the group through the open sunroof, using a black.38-caliber gun with a brown handle, and then Everett sat on the frame of the front passenger side window and fired 10 shots at the group over the roof of the car, using a nine-millimeter Glock. No one in the group on the sidewalk fired back. In the unrecorded evening statement, appellant related essentially the same version of the incident in which Everett showed him the newspaper account of Roberto’s murder, including the remark that “ ‘We killers now.’ ”
During the unrecorded evening statement, according to Green, appellant said something that Green paraphrased in two different ways at appellant’s trial. Appellant said either that he “flinched” in his seat when Bell shot because Bell “shot before they [were] supposed to shoot,” or “I flinched when I heard the shot. You weren’t supposed to shoot then.” Green did not ask appellant when it was that the other two men were supposed to shoot.
At the end of the unrecorded evening statement, Green turned on the tape recorder, and appellant gave another statement (the recorded evening statement). The recorded evening statement was also played for the jury at trial, and a transcript was introduced as an exhibit.
Appellant also gave a third tape-recorded statement, which reiterated the recorded evening statement’s version of the events, but without using Bell’s or Everett’s names. This recording was also played for the jury at trial, and its transcript was entered into evidence, but it did not add anything of substance to the recorded evening statement.
In the recorded evening statement, appellant admitted that the version of the events he had related in the morning was inaccurate in some respects. He explained that he had not come forward earlier, and had told an inaccurate version in the morning, because he was scared. He stated that just before driving off in the Camry, he had been at the apartment building on Georgia Street with Jamal Everett and Bell, and that he did not remember whose idea it was for them to get into the car and drive off. He reiterated that he drove; Everett was in the front passenger seat; and Bell sat in the back seat behind the driver. David Everett was not with them.
Everett and Bell suggested that they “go down by School Street,” explaining that they wanted “to see if somebody was out... see if some people was [sic] out there.” Appellant did not know who the people were, but he admitted being aware that there was, in Green’s words, “a little bit a [sic] funk goin’ on between School Street” and appellant’s group, and that the two groups were enemies, though appellant did not know why. Appellant denied having any idea that anything bad was going to happen; he said he “thought we were just rollin’... goin’ down there. See what’s goin’ on there.” He said he did not know at the time that anyone was, in Green’s words, “gonna go do a shooting.”
Green interpreted “rollin[g]” to mean “driving around.”
Shortly after appellant turned the car onto School Street, both Everett and Bell told him to slow down or stop. Appellant asked why, but started to slow down without waiting for an answer. Bell then reached up through the open sunroof and started shooting a black.38 with a brown handle toward the driver’s side of the car, into a group of people whom appellant did not recognize.
The shooting caused appellant to “jump” and take his foot off the accelerator. Appellant denied that he was surprised when the shots were fired, and admitted that he knew Bell and Everett had brought guns with them. His understanding was that they were carrying the guns because there had been shootings in their own neighborhood the day before. Appellant explained that when the shots were fired, he “was like, ‘Whatcha’ll doin’? Y’all trippin’,” and averred that he “didn’t know they was gonna go shoot nobody” and “didn’t know they was gonna start shootin’.”
Green interpreted these statements to mean that appellant denied having any knowledge that a shooting was going to occur.
After Bell shot twice, Everett moved so that he was sitting on the passenger side doorframe with his torso out the window, and started shooting about 10 shots over the roof of the car, using a nine-millimeter Glock. Appellant was familiar with the Glock, having shot it into the air himself a few days earlier.
After Bell and Everett stopped shooting, they told appellant to drive off, and he drove onto the freeway. Appellant was so “spooked” and nervous at that point that he began speeding, until Bell and Everett told him to slow down and drive normally. Appellant got off the freeway in San Leandro. After a dispute about what to do with the guns, the three men decided they needed to get a different car, so appellant stole one for them, choosing a four-door model so it would be easier for the person in the back seat to get out of the car and run if the police stopped them. They then went to appellant’s house in Fremont and hid the guns in some bushes in the back yard.
Appellant denied knowing that anyone had been shot during the School Street incident until two days later, when Jamal Everett showed him a story about it in the newspaper and made the remark about “ ‘we some killers.’ ” When asked how he felt about the fact that someone had died as a result of the incident, appellant responded, “I don’t... it ain’t cool, but you know....” Prompted to explain further with the question “But what?,” appellant responded, “I don’t know. I don’t want nobody to die.”
C. Pretrial and Trial Proceedings
On March 16, 2005, appellant, Bell, and Jamal Everett were jointly charged with the murder of Roberto. (Pen. Code, § 187, subd. (a).) The information also alleged the special circumstance of drive-by murder. (§ 190.2, subd. (a)(21).) A principal in the offense was alleged to have been armed with a firearm (§ 12022, subd. (a)(1)), and appellant was alleged to have incurred three prior felony convictions and a prior prison term. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise specified.
Appellant successfully moved to have his trial severed from that of Bell. Appellant also moved orally to suppress his pretrial statements to the police, both on the ground that the morning statements were not preceded by Miranda warnings, and on the ground that they were not voluntary. On this issue, the trial court held an evidentiary hearing, at which Green was the sole witness, and also listened to the tape recordings.
Before appellant’s trial began, Jamal Everett’s case was severed from that of appellant and Bell. Everett was tried first, convicted of second degree murder, and sentenced to 40 years to life in prison. On December 30, 2009, we affirmed Everett’s conviction and sentence. (People v. Everett (Dec. 30, 2009, A122196 [nonpub. opn.].) On September 3, 2008, after appellant’s trial but before he was sentenced, Bell pleaded no contest to voluntary manslaughter (§ 192, subd. (a)), with an arming allegation (§ 12022, subd. (a)), with the understanding that he would be sentenced to 12 years in prison.
At the evidentiary hearing, Green testified as follows: He was the lead investigator on the homicide of Roberto. His first contact with appellant was when he and his partner retrieved appellant from jail and took him to the Oakland Police Department for an interview, because they had been told that appellant had information on Roberto’s killing, and specifically, that he had been invited to accompany the people who committed the drive-by shooting. At the time, Green had no indication at all that would lead him to believe appellant was involved in the killing. Appellant was in jail on an auto theft charge, and Green wanted to speak with him not as a suspect, but only as a witness, and therefore did not read him his Miranda rights. Green surmised that appellant might have indicated his willingness to provide information about the homicide in an effort to “work off” the auto theft, but the subject never actually came up, and Green never promised appellant anything in that regard.
Green explained later in the hearing that in his view, a person “become[s] a suspect,” such that Miranda warnings are required, “when I have information that implicates them into a crime or where I have some foundation that would link them to be a principal, someone that I’m focusing on, someone that I wish to use their information against them.” He acknowledged that someone can be a suspect even when the police do not necessarily have enough information to obtain a warrant.
The trip from the jail to the police department took only a couple of minutes, during which appellant was probably handcuffed, but the handcuffs were removed when he was placed in the interview room. Green and his partner interviewed appellant off tape for about 40 minutes, and then took him out for a restroom break. When they returned, they spoke with him off tape for another 35 minutes, and then began tape recording him. During all of his morning statements, appellant consistently maintained that when Roberto was killed, he and Bell were not at the scene, but heard the gunshots from a distance. Green had no reason to doubt this version of the events at that time. At the conclusion of the interviews, appellant was returned to jail without being arrested in connection with Roberto’s killing.
After interviewing appellant, Green had some other officers find Bell and bring him to the police station. Again, Green did not give Bell Miranda warnings before starting to interview him, because most of the information Green had up to that point indicated that Bell was a witness and not a suspect in Roberto’s killing. In the course of their conversation, however, Bell informed Green that contrary to what appellant had said, Bell and appellant had in fact been in the car during the drive-by shooting. This was the first time Green learned that appellant was present when Roberto was killed. At that point, Green promptly stopped questioning Bell and gave him Miranda admonitions. Bell waived his rights and agreed to talk with Green and his partner.
Green apparently had some third-hand information that Bell might have been the shooter in the incident at that point, but it was based on hearsay and speculation, and he had nothing to corroborate it. In any event, there is no indication in the record that he had any information of any kind implicating appellant.
That evening, before Green interviewed appellant again and elicited his evening statements, he gave him his Miranda rights and obtained a waiver. At no time during his morning or evening statements did appellant indicate that he did not want to speak with Green, wanted to stop the interview, or wanted a lawyer.
The trial court denied appellant’s motion to suppress, and the case proceeded to trial. On August 19, 2008, the jury convicted appellant of first degree murder, and found the drive-by shooting and arming allegations to be true. The trial court granted the prosecution’s motion to strike appellant’s priors. Appellant was sentenced to life in prison without the possibility of parole, and timely appealed.
Discussion
A. Admissibility of Appellant’s Morning Statements
Appellant’s first contention on appeal is that the statements he gave the police during the morning of June 11, 2004—the morning unrecorded, supplemental morning unrecorded, and morning recorded statements (collectively the morning statements)—should not have been admitted into evidence, because appellant was not given Miranda warnings before he talked to the police. This contention raises the question whether Miranda warnings are required in the context of the following fact pattern. A person who is in jail pending trial on one crime voluntarily indicates that he is in possession of information regarding another crime. As a result of that offer of information, the person is taken from jail to the police station to be questioned about that other crime. At the time the person is questioned, the police view the person as an uninvolved witness in regard to the other crime, and treat him accordingly.
Appellant has not pointed to any evidence in the record indicating that the police knew or suspected that he was present at Roberto’s murder before they spoke with Bell, which was after appellant gave the morning statements. Indeed, the evidence in the record is to the contrary. As Newsome explained at appellant’s trial, he was not able to identify any of the people in the car from which Roberto was shot, or even to determine their race. Thus, the police could not have learned from Newsome that appellant was in the car. When appellant originally came forward at the jail, he told the police there that he had information about Roberto’s murder, and gave them the names of the Everett brothers, but did not indicate that he was present. Indeed, he expressly averred during each of the morning statements that he was not present when Roberto was shot, and Green testified at the Miranda hearing that he had no reason to believe this was untrue. As Green explained at trial, “In the morning, [appellant] was brought to my attention and I interviewed him as a witness and that’s what he claimed he was.”
“[I]t has been repeatedly recognized that it is difficult to apply basic Miranda principles in the context of questioning directed to a prisoner who is already under detention in a custodial facility.” (People v. Macklem (2007) 149 Cal.App.4th 674, 692.) Moreover, the specific fact pattern present in this case is not addressed by any of the authorities cited in the parties’ briefs, because in those cases, the prisoner being interviewed was not a mere witness, but a suspect. In the leading case on the issue of Miranda warnings in the context of already-incarcerated persons, Mathis v. United States (1968) 391 U.S. 1, the interrogation involved whether the prisoner had violated federal tax laws. Similarly, in People v. Fradiue (2000) 80 Cal.App.4th 15, the questioning involved a prison inmate suspected of having possessed drugs in his cell. In People v. Macklem, supra, 149 Cal.App.4th 674, the defendant, who was housed in a protective unit for special prisoners while awaiting trial for murder, assaulted another inmate. He was then moved to a different detention facility, where a detective questioned him about the jail assault, and elicited admissions both about that crime and about the murder.
The case law does provide us with guidance, however. In both People v. Macklem, supra, 149 Cal.App.4th 674, and People v. Fradiue, supra, 80 Cal.App.4th 15, the courts held that the interrogation of an already-in-custody defendant was not custodial for Miranda purposes. In reaching this conclusion, both courts examined the facts in light of the factors identified as relevant by the Ninth Circuit in Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424. Those factors include: “(1) the language used to summon the inmate for questioning, (2) the physical surroundings of the interrogation, (3) the extent to which the inmate is confronted with evidence of his guilt, and (4) the additional pressure exerted to detain him. [Citation.]” (People v. Fradiue, supra, 80 Cal.App.4th at p. 20.)
Applying these factors to the present case, we reach the same result. Appellant was not summoned for questioning, nor was any pressure exerted in connection with his detention. Rather, appellant volunteered to give information about the killing of Roberto, apparently in the hope of leniency regarding the car theft for which he had been jailed. He was interrogated in an interview room in the police station, a brief walk from the jail, and was not handcuffed or otherwise subjected to greater confinement than was inherent in his being in jail to begin with. He was not confronted with any evidence of his guilt, because the police were not in possession of any such evidence. On the contrary, Green treated appellant during the interview in a manner entirely consistent with his belief that appellant was only a witness, rather than a suspect, in Roberto’s killing. Based on all of these factors, we find no error in the trial court’s conclusion that Miranda warnings were not required in connection with the interviews that generated appellant’s morning statements to the police.
The fact that an interview takes place in a locked interview room at a police station does not necessarily mean that the interviewee is in custody for Miranda purposes. (See People v. Stansbury (1995) 9 Cal.4th 824, 831-834; see also Oregon v. Mathiason (1977) 429 U.S. 492, 495.)
We rely on Green’s state of mind only to the extent that it was manifested to appellant. In that regard, Green’s behavior toward appellant is one factor relevant to whether a reasonable person in appellant’s position would have believed that he was in custody with respect to Roberto’s murder, as distinct from being in custody with respect to the car theft for which he had been arrested. (See People v. Stansbury, supra, 9 Cal.4th at pp. 830, 832.)
B. Admissibility of Appellant’s Unrecorded Statements
At the time of appellant’s interviews, the Oakland Police Department had a policy of memorializing the initial portions of interviews by taking handwritten notes instead of tape recording, and then going over the same ground in a tape-recorded statement afterwards. Green explained at trial that the reasons for this were that “walking in and setting a tape recorder down in front of somebody isn’t conducive to open conversation.” In addition, the tape recorders they were using used cassette tapes that had to be flipped over every 30 minutes, which also interrupted the flow of conversation. Thus, the practice and procedure of the Oakland Police Department was first to “try to get through to the truth or what we believe to be the truth the best we can,” and only then to “record that information on the tape.”
Appellant now argues, citing statutes and appellate opinions from other jurisdictions, as well as the American Law Institute’s Model Code of Pre-Arraignment Procedure, section 130.4(3) and a 2006 report by the California Commission on the Fair Administration of Justice, that it violates a defendant’s Fifth and Fourteenth Amendment due process rights for the courts to admit into evidence an officer’s testimony regarding admissions made by a defendant at an in-custody interrogation that was not tape-recorded. Appellant acknowledges that the California Supreme Court has expressly held otherwise, most recently in People v. Gurule (2002) 28 Cal.4th 557, 602-603. We are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore need not discuss the issue further.
The report is available on the Internet at (as of Feb. 23, 2010). It gave rise to legislation requiring the recording of custodial interrogations in homicide and violent felony cases (Sen. Bill No. 511 (2007-2008 Reg. Sess.) (as of Feb. 23, 2010), but the legislation was vetoed by the governor (as of Feb. 23, 2010).
C. Jury Instructions Regarding Appellant’s Unrecorded Statements
Appellant’s trial occurred in August 2008. By that time, the policy preferring the CALCRIM instructions over those based on CALJIC had been in effect for over two years. (People v. Thomas (2007) 150 Cal.App.4th 461, 465 [“The California Judicial Council withdrew its endorsement of the long-used CALJIC instructions and adopted the new CALCRIM instructions, effective January 1, 2006.”].) Nonetheless, in the present case, for reasons not evident from the record, and apparently without objection from either counsel, the trial court based its instructions entirely on CALJIC.
Appellant does not argue that this choice, in and of itself, was error. Nor was it. “The Judicial Council’s adoption of the CALCRIM instructions did not render any of the CALJIC instructions invalid or ‘outdated’.... CALJIC instructions that were legally correct and adequate on December 31, 2005, did not become invalid statements of the law on January 1, 2006. Nor did their wording become inadequate to inform the jury of the relevant legal principles or too confusing to be understood by jurors. The Judicial Council’s adoption of the CALCRIM instructions simply meant they are now endorsed and viewed as superior. No statute, rule of court, or case mandates the use of CALCRIM instructions to the exclusion of other valid instructions.” (People v. Thomas, supra, 150 Cal.App.4th at pp. 465-466.)
After an extensive off-the-record discussion in chambers, the court reviewed the jury instructions with counsel in open court, giving them an opportunity to make their objections on the record. When the court came to CALJIC No. 2.71, appellant’s counsel objected on the basis that in appellant’s recorded evening statement, appellant’s statements regarding his intent were exculpatory, and therefore the statements “[did] not even rise to the level of an admission.” The prosecutor responded that all of appellant’s statements to Green were admissions, and the court overruled the objection. Appellant’s counsel made no further argument.
On appeal, appellant now argues that the trial court erred in giving CALJIC No. 2.71 rather than CALCRIM No. 358. Appellant complains that by so doing, the trial court improperly failed to advise the jury that it should view the evidence of appellant’s unrecorded out-of-court statements with more caution than his recorded ones, because of the possibility, which exists only with unrecorded statements, that the person who heard them (in this case, Green) did not testify accurately as to their existence or precise content. Appellant acknowledges that his trial counsel did not object to CALJIC No. 2.71 on that ground, but argues that this failure did not waive the point, because the instruction must be given sua sponte, citing People v. Slaughter (2002) 27 Cal.4th 1187, 1200.
As given in this case, CALJIC No. 2.71 read as follows: “An admission is a statement made by the defendant which does not by itself acknowledge his guilt of the crimes for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. You are the exclusive judges as to whether the defendant made an admission, and if so, whether the statement is true in whole or in part. Evidence of an oral admission of a defendant not made in court should be viewed with caution.”
As most recently revised, CALCRIM No. 358 reads as follows: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [¶] [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]” (Square brackets in original, except those indicating paragraphing.)
Contrary to the implication made in appellant’s briefs, however, People v. Slaughter, supra, 27 Cal.4th 1187 did not address the question whether any particular form of instruction must be given sua sponte when some of the defendant’s out-of-court admissions were tape-recorded and others were not. What People v. Slaughter held was only that “When evidence is admitted establishing that the defendant made oral admissions, the trial court ordinarily has a sua sponte duty to instruct the jury that such evidence must be viewed with caution. [Citation.]” (People v. Slaughter, supra, 27 Cal.4th at p. 1200.) An instruction to that effect was given in this case. As already noted, the trial court told the jury, as part of CALJIC No. 2.71, that “Evidence of an oral admission of a defendant not made in court should be viewed with caution.”
People v. Slaughter also stated, by way of explanation of its holding, that “ ‘the purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.]’ [Citation.] Accordingly,... this cautionary instruction should not be given if the oral admission was tape-recorded and the tape recording was played for the jury. [Citation.]” (People v. Slaughter, supra, 27 Cal.4th at p. 1200.) Nothing in this discussion, however, requires the trial court to instruct the jury sua sponte regarding any distinction it should make between tape-recorded statements and other oral out-of-court admissions. In short, the authorities on which appellant relies do not convince us that the trial court was required sua sponte to give an instruction drawing that distinction, such as CALCRIM No. 358.
Appellant did not request that the court modify CALCRIM No. 2.71, or give CALCRIM No. 358 instead, in order to reflect the concern he now expresses. A party may not complain on appeal that a jury instruction that is correct in law and responsive to the evidence was incomplete unless the party requested appropriate clarifying or amplifying language. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) When the trial court gives an instruction that is an accurate statement of law, but misleading in the particular case, the defendant forfeits any claim of error by failing to request modification or clarification. (Ibid.) Accordingly, appellant cannot raise this issue now.
D. Jury Instructions Regarding Intent to Kill
Background
The prosecution’s theory of appellant’s liability for first degree murder was that he aided and abetted a drive-by murder. (See § 189 [“any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree”].) The prosecution also set out to prove the special circumstance of drive-by murder (§ 190.2, subd. (a)(21)), again on an aiding and abetting theory. (See generally People v. Rodriguez (1998) 66 Cal.App.4th 157, 163-165 [defendant may constitutionally be sentenced to life in prison without the possibility of parole based on conviction of first degree murder and finding of special circumstance, even if first degree murder charge and special circumstance allegation are both based on same drive-by shooting].)
Both the provision of section 189 classifying drive-by murder as first degree murder, and section 190.2, subdivision (a)(21), making drive-by murder a special circumstance, require that the shooting have been intentionally aimed at a person outside the vehicle, with the specific intent to kill. Appellant, who was charged as an aider and abettor, had to be found to have shared that specific intent in order to be found culpable. Thus, before giving the substantive instructions, the trial court instructed the jury, in accordance with CALJIC No. 3.01, that “[a] person aids and abets the commission... of a crime when he: [¶]... 1, with knowledge of the unlawful purpose of the perpetrator, and [¶] 2, with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] 3, by act or advice aids, promotes, encourages, or instigates the commission of the crime.” As the prosecutor repeatedly stressed in her closing argument, whether appellant had the requisite intent was the key question that the jury had before it in this case.
With respect to drive-by murder, the trial court instructed the jury with CALJIC No. 8.25.1. That instruction lists the elements of drive-by murder as (1) “the defendant committed the crime of murder”; (2) “the defendant perpetrated the murder by means of discharging a firearm from... a motor vehicle intentionally at another person outside of the vehicle”; and (3) “the defendant specific[ally] intended to kill a human being.”
The court also instructed the jury with CALJIC No. 8.80.1, which introduces the jury to special circumstances allegations. This instruction told the jury that if it found that “the defendant is not the actual killer of a human being, you cannot find the special circumstance to be true as of the defendant unless you are satisfied beyond a reasonable [doubt] that the defendant, with the intent to kill, aided, abetted,... or assisted any actor in the commission of murder in the first degree.”
The court then gave CALJIC No. 8.81.21, which lists the elements of the drive-by murder special circumstance as: (1) “the murder was perpetrated by means of discharging a firearm from a motor vehicle”; (2) “the perpetrator intentionally discharged the firearm at another person or persons outside of the vehicle”; and (3) “the perpetrator at the time he discharged the firearm specifically intended to inflict death.” Finally, the court reminded the jury, in the words of CALJIC No. 8.83.1, that they could not find the drive-by murder special circumstance true “unless the proved surrounding circumstances not only are... consistent with the theory that the defendant had the required specific intent [but also] cannot be reconciled with any other rational conclusion.”
2. Discussion
Appellant’s trial counsel did not object to any of the instructions quoted above, or request that they be further modified. Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Campos (2007) 156 Cal.App.4th 1228, 1236.) Accordingly, respondent argues that appellant has forfeited the right to challenge the adequacy of the trial court’s instructions on the issue of intent. In response, appellant cites section 1259, which provides, as relevant here, that we may “review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” Without necessarily agreeing that appellant’s substantial rights were affected by the asserted errors, we will exercise our discretion, in the interests of justice, to review appellant’s challenges to the instructions despite his trial counsel’s failure to object to them.
Appellant contends that CALJIC No. 8.81.21, relating to the intent requirement for the drive-by shooting special circumstance, was defective because it did not make clear that in order for the jury to find the special circumstance, the prosecution had to prove appellant himself, in addition to the “perpetrator” of the murder, had the specific intent to kill. He also contends that CALJIC No. 8.80.1 did not solve the problem, because it only requires that the aider and abettor, with the intent to kill, assisted “any actor” in the commission of first degree murder. Thus, appellant argues, these instructions permitted the jury to find the special circumstance true even if it believed that appellant intended to assist only Bell, and not Jamal Everett, in the drive-by shooting. This finding would have been improper, because the evidence established that the actual murder was committed by Jamal Everett.
In reviewing appellant’s challenges to the instructions, “we do not view the instruction in artificial isolation but rather in the context of the overall charge. [Citation.] For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 777.) “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.]” (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on another ground by People v. Reyes (1998) 19 Cal.4th 743.) Moreover, a potential ambiguity in the instructions does not require reversal if the prosecution’s argument made clear to the jury what the correct reading of the instructions was, as applied to the evidence. (See People v. Kelly (1992) 1 Cal.4th 495, 526; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1321-1322.) In the present case, the prosecutor pointed out to the jury that, it first had to decide whether appellant was guilty of first degree murder, and then, in order to decide whether the special circumstance allegation had been proven, “you need to decide if this has been proven: [t]hat Jose Roberto was murdered [by] means of discharging a firearm from a motor vehicle; that Jamal Everett intentionally discharged the firearm at another person or persons outside the vehicle; and that at the time of the shooting, the perpetrator specifically intended to inflict death.” In addition, she explained that because appellant was not the actual killer, in order for the jury to find the special circumstance, it had to find “that [appellant] acted with the intent to kill as an aider and abettor. So... that he, [appellant], had the intent to kill and that he aided and abetted... the crime of drive-by murder.”
In the present case, given the evidence, the overall jury instructions, and the prosecutor’s closing argument, we do not think it is reasonably likely that the jury could have concluded that appellant intended to help Bell kill someone at School Street, but did not intend to help Jamal Everett do so. Appellant stole the car for use by both of the other men, knew that both of them were armed, and slowed the car based on instructions from both of them when they caught sight of Roberto’s group. Under the circumstances, we do not believe any reasonable juror could have convicted appellant based on the hypothetical incorrect theory suggested in appellant’s brief.
Appellant also contends that the jury could have been confused by the use of “defendant” instead of “perpetrator” in CALJIC No. 8.25.1, the instruction on drive-by murder as a basis for first degree murder. As appellant correctly points out, there was no evidence in this case that the “defendant,” i.e., appellant, actually committed the drive-by shooting. Again, however, any potential confusion on this score was dispelled by the prosecutor’s closing argument, in which she made clear that in order to find appellant guilty of first degree murder, the jury had to find that “as an aider and abettor, he aided and abetted a principal, and the principal... [m]urdered by shooting a firearm from a motor vehicle.” She went on to explain that “[t]he principal, namely Jamal Everett” (italics added), had to have “[i]ntentionally shot at a person who was outside the vehicle... and... intended to kill that person,” and that appellant had to have “shared the intent....” Thus, in the context of the instructions as a whole, the evidence, and the arguments of counsel, it is not reasonably possible that the jury misunderstood the use of the word “defendant” in CALJIC No. 8.25.1. Accordingly, we find no reversible error in the challenged instructions.
E. Constitutionality of Appellant’s Sentence
As already noted, appellant was sentenced to life without the possibility of parole (LWOP) based on his conviction of first degree murder with the special circumstance of drive-by shooting. He now complains that this sentence violates due process and equal protection, and constitutes cruel and unusual punishment. His argument is not that LWOP is an inherently disproportional sentence for drive-by murder. Rather, appellant contends that his LWOP sentence is unconstitutional in this case because he, who was only the driver, received a sentence greater than those imposed on Bell, who was one of the shooters, and who received 13 years to life, and on Jamal Everett, who actually killed Roberto, and who received 40 years to life. Without citing any California case so holding, appellant contends that “[i]t is an elementary principle that the punishment given to an offender should be proportionate not only to his own culpability, but... also... to his and his co-defendants’ relative culpabilities, and... his co-defendants’ sentences.”
Prior to trial, appellant rejected a prosecution offer of 15 years to life.
Such an argument would be unmeritorious. “A punishment violates the Eighth Amendment if it involves the ‘unnecessary and wanton infliction of pain’ or if it is ‘grossly out of proportion to the severity of the crime.’ [Citation.] A punishment may violate article I, section 17 of the California Constitution if ‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.]” (People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231.) None of these attributes applies to an LWOP sentence for the cold-blooded murder of an unarmed man, committed by shooting him from a car while he was standing on the sidewalk.
Appellant cites People v. Clark (1993) 5 Cal.4th 950, 1039, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, and People v. Davis (1995) 10 Cal.4th 463, 549, fn. 45, as holding that intracase proportionality review applies in capital cases in California. Those cases, however, used the term “intracase” only to refer to the assessment “whether the [death] penalty is disproportionate to a defendant’s personal culpability” (People v. Clark, supra, 5 Cal.4th at p. 1039), not to any comparison between defendant’s sentence and those imposed on others.
This distinction is clear on the face of the opinion in People v. Clark. In that case, the defendant argued that his sentence was “unconstitutionally disproportionate... in comparison to those convicted of similar offenses....” (People v. Clark, supra, 5 Cal.4th at p. 1039.) The Supreme Court rejected that contention in the following words: “As we have previously observed, ‘ “[i]ntercase” proportionality review is not required by the federal Constitution [citation], and we have consistently declined to undertake it [citations].’ [Citation.] Defendant provides no reason for us to depart from our prior holdings.” (Ibid.)
In short, the rule in California, even in capital cases, is that “[t]he sentence received by an accomplice is not constitutionally or statutorily relevant as a factor in mitigation. Such information does not bear on the circumstances of the capital crime or on the defendant’s own character and record.” (People v. Bemore (2000) 22 Cal.4th 809, 857; accord, People v. Vieira (2005) 35 Cal.4th 264, 300.) A fortiori, in this noncapital case, the fact that appellant received a greater sentence than Bell and Everett is not grounds either for reversal of his conviction or for modification of his sentence.
Disposition
The judgment is affirmed.
We concur: SEPULVEDA, J., RIVERA, J.
In the fall of 2009, after appellant’s trial, the instruction was revised to add the words “not contained in an audio or video recording,” so that the last sentence of the instruction, as quoted above, now reads “Evidence of an oral admission of the defendant not contained in an audio or video recording and not made in court should be viewed with caution.” As a Comment to the instruction explains, the added portion of the instruction “is applicable when there are both recorded and unrecorded oral statements by the defendant. If there are no recorded statements, it should be deleted.” (Com. to CALJIC No. 2.71 (Fall 2009 ed.) p. 98.)