Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Riverside, W. Charles Morgan, Judge. Super. Ct. No. SFW005363
NARES, Acting P. J.
Hugo Alberto Delariva (Hugo) and María Delariva (Maria) were jointly tried by separate Riverside County juries. Hugo's jury convicted him of the first degree murder (Pen. Code, § 187, subd. (a)) of his uncle, Tomas Delariva, and found true enhancement allegations that he committed the murder for financial gain (§ 190.2, subd. (a)(1)) and while lying in wait (§ 190.2, subd. (a)(15)). Maria's jury convicted her of the first degree murder (§ 187, subd. (a)) of Tomas, her husband, based on a theory of aiding and abetting. The court sentenced Maria to a prison term of 25 years to life and Hugo to life in prison with the possibility of parole.
Because the victim, both defendants, and one of the witnesses share the last name Delariva, and two other witness share the last name Reyes, we will refer to these parties by their first names for the sake of convenience and clarity. We intend no disrespect.
All further statutory references are to the Penal Code unless otherwise specified.
Maria appeals, contending her murder conviction must be reversed because the prosecution presented insufficient evidence that she either committed or aided and abetted the murder in this case, as required by both the United States and California Constitutions.
Hugo appeals, contending (1) the judgment of conviction should be reversed because the court prejudicially erred in failing to suppress Hugo's incriminating statements to Investigator Robert Masson, which he obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the judgment of conviction should be reversed because his incriminating statements were involuntary, and thus the court prejudicially erred in admitting those statements; (3) his conviction and the special circumstance true findings should be reversed because the court prejudicially erred in refusing to instruct the jury under CALCRIM No. 522 that evidence of provocation could be considered in determining the degree of murder; (4) his conviction and the special circumstance true findings should be reversed because the court failed to properly instruct the jury on the essential element of malice aforethought, as required by People v. Rios (2000) 23 Cal.4th 450; and (5) the judgment of conviction should be reversed because the cumulative effect of the foregoing errors irreparably prejudiced his right to a fair trial.
We reject Maria's and Hugo's contentions. Accordingly, we affirm the judgments.
FACTUAL BACKGROUND
A. The People's Case
Hugo was the nephew of the victim, Tomas; Maria was Tomas's wife and Hugo's aunt. About a year before Tomas was stabbed to death, Hugo arrived from Mexico and started living with Tomas, Maria and their children. Hugo and Maria eventually began having an affair.
Sergeant Chad Loeffler of the Riverside County Sheriff's Department testified that on the morning of September 16, 2003, he was dispatched to the area of West Markam and Indian Avenue in the City of Perris and arrived at that location at around 8:30 a.m. He saw a red Dodge Ram truck parked in a nearby open field The area was mainly rural with a lot of open fields. As he approached the truck, Sergeant Loeffler saw through the open passenger door Tomas's body lying on his stomach on the front floorboard with his head on the passenger side and his legs on the driver's side. Tomas had numerous puncture-type wounds to the upper area of his chest and back, and he did not have a pulse. A knife with blood on it was found just outside the truck door. The blood was later determined to be that of Tomas. An autopsy revealed that Tomas was stabbed 33 times, the stabbings perforated both of his lungs and his heart, and he died as a result of those wounds.
All further dates refer to calendar year 2003 unless otherwise specified.
Later that day, Maria's brother, Aaron Reyes, notified police about a possible second crime scene at which two pools of blood were found on the ground near the intersection of Wilson Avenue and Rider Street in Perris, about five miles from where Tomas was found in the truck. DNA testing revealed that the blood was Tomas's.
Tomas and Maria's son, Esteban Delariva, testified that Hugo, who is his cousin, woke him up very early in the morning on September 16 and told him that Tomas's truck had overheated while they were driving to Aaron's home, and Tomas had sent Hugo back to the house to get water and another truck. Hugo drove his truck with Esteban as a passenger to a location about a mile away near Wilson Avenue and Rider Street, where Tomas's truck supposedly broke down, but neither Tomas nor his truck was there. They drove to their uncle Alberto Delariva's home about two blocks away to look for Tomas. When they did not see Tomas's truck there, they drove to Aaron's house in Moreno Valley, where Hugo told Aaron the story about Tomas's truck overheating. Esteban drove back home, and Hugo and Aaron carpooled to their job site in Anaheim.
Silvia Reyes is Maria and Aaron's sister. Silvia worked with Maria and frequently saw her and Tomas. She testified that she spoke to Tomas about her suspicion that Maria and Hugo had begun a relationship, and Tomas said he had talked with Maria, who told him that she would leave Tomas and go with Hugo if Tomas kicked Hugo out of their house.
Silvia stated that on the day Tomas was killed she saw Maria at work at about 6:00 a.m., and Maria was scared that something had happened to Tomas. Maria relayed to Silvia Hugo's story about the truck overheating and how Tomas was missing. Silvia and Maria then left work to look for Tomas in the fields. With Maria driving, they located Tomas's truck about an hour later. Tomas had been stabbed and was dead on his stomach on the floor of his truck. According to Silvia, Maria hugged Tomas while screaming. Silvia called her husband and the police. She also called Aaron and asked him to bring Hugo to the scene. The police took Silvia, her husband, and Maria to the police station.
Maria and Silvia's brother Aaron testified he was a foreman at a construction job in another county and Hugo worked for him. Aaron stated that he lived in Moreno Valley, and every morning Hugo would drive himself over to his house, and then Aaron would drive them both to the job site. Their work started at 7:00 a.m., and they would leave for work between 4:00 and 4:30 a.m..
Aaron testified that on the day Tomas was killed, Hugo and Esteban arrived at Aaron's house at around 4:00 a.m. Aaron asked Hugo why he was not wearing his construction boots and why he was wearing the pair of ripped pants that he had told Hugo were not safe to wear at work. Hugo said he left his boots at home because they were wet, which did not make sense to Aaron. Hugo also said he left his house early that morning with Tomas, Tomas's truck had overheated, and he (Hugo) went back to the house, met up with Esteban, and they went back to help Tomas but were unable to find him. Aaron stated that Esteban left first to look for Tomas and then Aaron and Hugo drove to work together.
Aaron stated that at around 8:30 a.m., after he and Hugo arrived at work, he (Aaron) received a phone call from his sister Silvia, who told him that Tomas's truck had been found. A police officer came on the phone and asked him to bring Hugo to the scene. Aaron drove Hugo to the scene, but did not tell him what was going on. Instead, he told Hugo they were going to another job site. When they arrived, police officers spoke to both Hugo and him, and then Hugo left with some of the officers.
Aaron stated that he was taken separately to the police station, where he later met up with Maria and Silvia. Aaron told a sheriff's department investigator that Hugo's timeline did not make sense because Hugo said he left for work at 3:30 a.m., Tomas's truck broke down, Hugo returned to the house and got another truck and still arrived at Aaron's home by 4:00 a.m. Although the police told him they had already searched and found nothing at the Wilson Avenue location where Hugo said the truck broke down, Aaron went there after he left the police station. Aaron found two spots of blood about 18 inches in diameter on the street, which became the second crime scene.
1. Investigator Masson's testimony before Hugo's jury
Investigator Robert Masson of the Riverside County Sheriff's Department, whose first language is Spanish and who is a certified Spanish-speaking officer, testified separately before Hugo's jury and Maria's jury.
Before Hugo's jury, Masson testified that he was asked to assist his fellow investigator, Robert Joseph, with the interview process at the crime scene. Both Masson and Joseph met with Hugo there. The investigators had Hugo direct them to the location on Wilson Avenue where Tomas's truck supposedly had broken down─50 yards south of where Tomas's blood was found later that day. Hugo said the truck overheated and Tomas sent him home to get water. When Masson finally informed Hugo about Tomas's death, Hugo had no reaction and asked no questions. Hugo's lack of reaction to his uncle's death caught Masson's attention.
The investigators took the family to the sheriff's station in Perris for questioning. Masson spoke again with Hugo there, in Spanish, and Hugo denied involvement in Tomas's murder. Masson testified that when he asked Hugo why he was not wearing proper work clothes, Hugo indicated it was not uncommon to go to work wearing tennis shoes and said he washed his boots the day before and they had not yet dried. Masson indicated that Hugo initially denied having a sexual relationship with his aunt, Maria, but later admitted he had such a relationship with her.
Masson also indicated that after Hugo initially denied any knowledge about who had killed Tomas, he eventually told Masson, "I know who did it," but said he did not know his name. However, Hugo eventually told Masson the killer's name was Armando.
When Hugo named the killer, Masson twice advised him in Spanish of his Miranda rights (discussed in greater detail, post). After the Miranda advisements, Hugo indicated he understood his rights and was willing to continue talking to Masson.
Hugo vacillated between saying Maria knew and did not know about the plan to kill Tomas. Masson indicated that Hugo said he had approached Armando about killing Tomas two weeks before the murder because he was angry about how Tomas treated Maria and the children. Hugo also told Masson that Armando agreed to kill Tomas for $1,500.
Hugo told Masson that he called Armando the night before the murder, picked Armando up and then dropped him off at a nearby park where he was going to hide out for the night. Armando came to the house early in the morning and left with Hugo and Tomas in the truck between 1:00 and 1:20 a.m.. Hugo told Tomas, who was driving the truck, that Armando was going to work with them. Hugo told Masson that Armando was sitting behind Tomas, and Hugo was sitting next to Tomas. When they left with Armando, Hugo knew how Armando was going to kill Tomas.
When the truck overheated and stopped, Armando put a wire around Tomas's neck and began choking him. Tomas started yelling to Hugo for help, saying, "Get him off me. Get him off me." Hugo got out of the truck, went around it, and opened the driver's side door. By that time, Armando had dragged Tomas to the passenger side of the truck and had stuck the knife into him. Tomas continued to call to Hugo for help, saying, "Get him off me." Hugo said that while Tomas was still kicking, Armando told Hugo to put the paper towels that were in the truck on the front seat so that Hugo would not get stained with blood. Hugo said he got scared when he saw the blood and then ran away.
2. Investigator Masson's testimony before Maria's jury
Masson testified before Maria's jury that he interviewed Maria in Spanish at the sheriff's station in Perris on the day Tomas was murdered. During the interview, Masson asked her about her relationships with Hugo and her husband Tomas, and whether she was having any problems with Tomas. Maria initially indicated her relationship with Hugo was over, and the last time they had sex was two weeks earlier. She said she had told Hugo she could not leave with him because of her children and her house. Maria also said she did not know whether Hugo was involved in Tomas's death, but Hugo had previously told her that if she did not leave with him, something would happen to Tomas.
After that interview, Masson spoke to Hugo, and then returned and interviewed Maria again. Maria indicated she and Tomas had been having marital problems since 1990. Hugo and Maria began their sexual relationship in late 2002. Hugo arrived from Mexico in August of that year. When Maria asked Tomas for a divorce in early 2003, Tomas said she would leave without the house and their four children if she left. Maria told Hugo she could not leave Tomas because she could not lose her home and children.
Hugo suggested to Maria on numerous occasions that he was going to kill Tomas. Maria told Masson that "[s]ometimes [Hugo] did tell me... that he was going to kill [Tomas]." Maria said she told Hugo, "As far as [I'm] concerned, do whatever you want. But you are not going to involve me in your things, you are not getting me involved." She also told Masson that she told Hugo to "do whatever you want, if you want to kill him, kill him, do whatever you want..., but... you are not going to tie me up in that." On some occasions, she told Hugo to "do it," and on other occasions she told him "don't do it."
Masson testified that later in the second interview, Maria told him she was growing tired of Tomas and wanted to get rid of him. She also told him she would tell Hugo, "[Y]es, yes, do it, do it, do it." However, she would regret it and tell Hugo, "[N]o, you can't do that because I can't live with that."
Maria also told Masson that Hugo asked to borrow $1,500 from her to get his truck out of impound. She told Hugo she could not give him the money because Tomas would get mad. Hugo told her not to worry because Tomas was not going to notice. Maria told Masson that she gave $1,500 to Hugo on Monday, September 8. She also said that the last time Hugo told her he was going to kill Tomas was on Friday, September 12, when he met her in a parking lot and told her he was going to hire someone to kill Tomas. She said she responded by telling Hugo to go ahead and do it, but "don't get me involved."
Maria told Masson that although she normally woke Hugo up between 3:00 and 3:30 a.m., on the morning of September 16, the day Tomas was killed, she woke him up at 1:00 a.m. She heard Hugo ask Tomas for a ride to her brother Aaron's house, and Tomas told her he was going to take Hugo to work and would be right back.
Maria also told Masson that Hugo, not Tomas, returned to the house, and he was sweating and had some blood on him. Hugo put his clothes in the washing machine and told Maria that Tomas "was gone." Maria indicated that Hugo forced her to have sex with him. Hugo asked her for a ride to Aaron's, but she told him she could not give him a ride because it would appear she was involved. Maria suggested to Hugo that he tell people the truck overheated and they were robbed. Maria also told Hugo, "If you did the things and you didn't know how to get them done,... I'm not going to help you. Don't mix me up in your things." Maria said she overheard Hugo and Esteban talking, and she asked Hugo in Esteban's presence, "Where is your uncle?" Masson testified that Maria asked Esteban this question after Hugo told her what had happened to Tomas.
B. The Defense Cases
1. Hugo's defense case
With both juries present, Hugo's counsel presented the testimony of Investigator Masson as Hugo's defense witness. Masson stated that after he finished questioning Hugo about the events leading to Tomas's death, Hugo asked Masson whether he could speak with Maria. Masson checked with Maria and she agreed to talk to Hugo. Hugo and Maria were placed in the same interview room and left alone for about 20 to 25 minutes, with Masson observing their interaction through a video system that included audio. During his conversation with Maria, Hugo tried to touch and kiss her several times, but she rebuffed him. Hugo rested his case.
By stipulation of the parties, the video of the physical interaction between Hugo and Maria was played for Hugo's jury.
2. Maria's defense case
By stipulation of the parties, the same video of the physical interaction between Hugo and Maria in the interview room was played for Maria's jury.
DISCUSSION
I. MARIA'S APPEAL
Maria contends her murder conviction must be reversed because the prosecution presented insufficient evidence that she either committed or aided and abetted the murder in this case, as required by both the United States and California Constitutions. We reject this contention.
A. Standard of Review
When assessing a challenge to the sufficiency of the evidence, we must view the evidence most favorably to the prosecution and determine whether any rational trier of fact could have found the elements proven beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Stated differently, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence─that is, evidence which is reasonable, credible, and of solid value─such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
"The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.)
We do not reweigh the evidence, resolve conflicts in the evidence or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
B. Analysis
Maria's jury convicted her of first degree murder under the aiding and abetting theory argued by the prosecutor, and the aiding and abetting instructions the court gave.
" 'A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' " (People v. Hill (1998) 17 Cal.4th 800, 851.)
Here, substantial evidence supports Maria's conviction of first degree murder under the aiding and abetting theory. The People presented credible evidence from which a reasonable trier of fact could find beyond a reasonable doubt that Maria knew of Hugo's intent to hire someone to kill Tomas. Investigator Masson testified that he interviewed Maria on September 16, the day of the murder. As shown by the transcript of the interview and Masson's testimony, Maria told Masson that, "Sometimes [Hugo] did tell me... that he was going to kill [Tomas]." She also told Masson that the last time Hugo told her he was going to kill Tomas was on Friday, September 12, when he met her in a parking lot and told her he was going to hire someone to kill Tomas.
The People also presented credible evidence from which a reasonable trier of fact could find beyond a reasonable doubt that Maria, by act and advice, aided and encouraged Hugo with the intent or purpose of facilitating and encouraging the commission and cover-up of the murder. Masson testified that Maria told him she and Hugo began their sexual relationship in November 2002 and that when she asked Tomas for a divorce in early 2003, Tomas said she would leave without the house and their four children if she left. Maria also told Masson she was growing tired of Tomas and at times wanted to get rid of him. She indicated that after she told Hugo she could not leave Tomas because she could not lose her home and children, Hugo suggested on more than one occasion that he would take care of Tomas and do something to him to get him out of the way. Maria acknowledged to Masson that she would tell Hugo to "do it, do it, do it," but do it in a way that did not involve her. She claimed, however, that she told Hugo on other occasions, "[D]on't do it."
The People presented additional credible evidence from which a reasonable trier of fact could find beyond a reasonable doubt that Maria intended to facilitate and encourage the commission of the murder notwithstanding her statement to Masson that she sometimes told Hugo, "[D]on't do it." In addition to the foregoing evidence showing that Maria had both a motive to have her husband killed and knowledge that Hugo intended to hire someone to kill him, the People presented substantial evidence that Maria gave Hugo the money he needed to hire the killer and that she actively participated in the planning, execution, and cover-up of the murder. As the People correctly point out in their respondent's brief, Maria omits in her appellant's opening brief any reference to Masson's testimony that Maria told him she gave Hugo $1,500 on Monday, September 8, at Hugo's request. Although the defense recalled Masson to elicit his testimony that Maria told him she gave the $1,500 to Hugo to get his truck out of impound, and Hugo did not tell her he needed the money to kill Tomas, Masson testified on cross-examination that Maria also told him that Tomas, not Hugo, paid $1,300 to have Hugo's truck taken out of impound. However, the jury could reasonably discredit Maria's claim that the money was intended to get the truck out of impound because Masson testified that Maria told him the last time Hugo told her he was going to kill Tomas was on Friday, September 12, four days after Maria gave Hugo the money, when he met her in a parking lot and told her he was going to hire someone to kill Tomas. Masson also testified that Maria told him she responded by telling Hugo to go ahead and do it, but "don't get me involved."
Masson's testimony also showed that Maria's own statements indicated she actively participated in the execution and cover-up of the murder. Maria told him that although she normally woke Hugo up at 3:00 a.m., on September 16 she woke him up at around 1:00 a.m. She also told Masson that she also woke up Tomas at that time and heard Hugo ask Tomas for a ride. A rational jury could reasonably infer that Maria woke up Hugo two hours earlier than normal to assure additional time for the commission of the murder and that she woke up Tomas at that time to give Hugo an opportunity to ask him for a ride and assure his presence. Regarding the cover story, Masson indicated that Maria acknowledged it was she who told Hugo, "Tell them that the car overheated. You guys got robbed."
In sum, substantial evidence shows that Maria had knowledge of Hugo's plan to hire someone to kill Tomas, and she encouraged and aided Hugo with intent to facilitate the commission of the murder. Accordingly, we affirm Maria's conviction.
II. HUGO'S APPEAL
A. Miranda
Hugo first contends the judgment of conviction should be reversed because the court prejudicially erred in failing to suppress Hugo's incriminating statements to Investigator Masson, which (he asserts) Masson obtained in violation of Miranda, supra, 384 U.S. 436. We conclude this contention is unavailing.
1. Background
Hugo filed a motion in limine to suppress the incriminating statements he made to Investigator Masson during questioning on September 16, claiming they were involuntary and obtained in violation of his Miranda rights. The court conducted an evidentiary hearing under Evidence Code section 402 regarding the motion. The People offered a videotape recording of Hugo's interrogation and live testimony of Masson and Martin Silva, who was also an investigator for the Riverside County District Attorney's Office.
a. Transcript of the Miranda advisements Masson gave to Hugo
Of particular importance to the issue presented here, the English translation of the transcript of Hugo's interrogation in Spanish at the sheriff's station shows that the following exchange occurred between Investigator Masson and Hugo when Masson twice advised Hugo of his Miranda rights:
The record indicates this transcript was marked for identification at trial as exhibit No. 82.
"Masson:... You have the right to be silent because sometimes you say things against you or against the law. You have the right to have an attorney present when you are talking. If you don't have enough money to have an attorney, one will be pointed, OK? Ah, and since we are still talking, do you still want to continue talking to me? You are saying yes with the head, right?
"Hugo: Uh huh.
"Masson: Do you also understand your rights? Yes? You are... you are saying yes? OK, OK, what happened?
"Hugo: The rights, what are my rights?
"Masson: I already read you your rights.
"Hugo: Ah, can you repeat them for me, please?
"Masson: That you have the right to be silent. Anything you say, can... can be used... used against you in the court of law. You have the right to have an attorney present when we are talking to you, OK? One is going to be pointed out for you if you don't have enough money to have... to get an attorney, OK?" (Italics added.)
b. Masson's testimony
Masson testified that his mother was from Cuba, his father was from Ecuador, they were Spanish-speaking parents, and the first language he learned at home was a combination of Cuban Spanish and Equadorian Spanish. He became involved in the investigation of this case on September 16. He briefly spoke in Spanish with Maria at the scene and had no reason at that time to believe she was involved in the murder of her husband, Tomas. Family members told him that Hugo was the last person seen with Tomas. Masson spoke with Hugo in Spanish when Hugo arrived at the crime scene. He considered Hugo to be an important witness because he was the last person seen with his uncle, but he did not consider Hugo to be a suspect.
Masson stated that he asked Hugo whether he would be willing to show him the route he had taken that morning with Tomas and give a statement at the station. Hugo agreed to do both. Investigator Joseph drove an unmarked detective vehicle, Masson sat in the back, and Hugo sat unrestrained in the front seat where a suspect would not have been allowed to sit. During the drive, which took 35 to 45 minutes, Hugo showed the investigators where Tomas's truck broke down and the location of Aaron's house in Moreno Valley. The investigators recorded on audiotape the conversation that took place during the drive. Hugo told them that Tomas's truck broke down while he was driving Hugo to Moreno Valley to carpool to work and that at Tomas's request he ran back to the house, got some water, and drove with Esteban back to where the truck had broken down, but could not find it.
Also during the drive, the investigators told Hugo that Tomas was dead. Hugo did not become extremely upset or emotional, and Masson was interested as to why he was not reacting upon hearing that his uncle was dead. The investigators had no evidence at that time that Hugo was involved in the homicide, and he did not admit any such involvement.
Masson also testified that when they drove Hugo to the station in Perris, he and Joseph still had nothing to indicate that Hugo was a suspect, and they did not give him any indication that he was not free to leave. They took Hugo to an interview room. Masson's interview of Hugo was recorded on videotape. The videotape was identified by Masson during the hearing, but it was not admitted into evidence. However, the videotape was played at the court's direction to refresh Masson's memory about what he and Hugo said during the interview.
Masson stated that during the interview, Joseph pulled him aside and told him that a family member indicated that Hugo was not wearing the right type of clothes for the type of work he did. Masson questioned Hugo about this and asked whether anything had happened between him and Tomas. Hugo denied that anything had happened. Masson asked whether Hugo would be willing to take a polygraph test, and Hugo indicated that he would.
Masson indicated that Joseph later interrupted the interview again and told Masson he had learned that Hugo had a relationship with Maria. Masson stopped the interview with Hugo and spoke with Maria, who was in another room. Maria admitted to Masson that she had a sexual relationship with Hugo. Masson returned to the interview and asked Hugo about his relationship with Maria. Hugo denied he had a sexual relationship with Maria, but then admitted he did have one after Masson confronted him with the information Maria provided. Hugo again denied involvement in Tomas's death. Masson told Hugo the family would find out about his affair with Maria, but he did not promise Hugo leniency. Hugo expressed concern about being put in the "can." Masson indicated he did not know what was going to happen to Hugo and said he would have to speak with the district attorney.
Masson testified he never threatened Hugo during the interview, but did repeatedly tell him he wanted to know the truth. He stated that Joseph interrupted the interview again and told him that Maria believed Hugo was possibly involved in what had happened to Tomas. Masson said he returned to the interview, told Hugo there were some problems with what Hugo was telling him, and again told Hugo to tell him the truth. When Masson told Hugo he was going to arrest Maria, Hugo said he knew who killed his uncle.
Masson stated he then advised Hugo of his Miranda rights. Masson did not read the Miranda advisements from a card; he recited them from memory. He tends to be a fast talker when he speaks in Spanish, and he spoke fairly quickly when he advised Hugo of his Miranda rights. At the end of the Miranda advisements, Masson used the Spanish word "apuntado," and thus told Hugo that if he could not afford an attorney one would be "pointed" for him. Masson indicated he had used the word "apuntado" many times to mean "appointed," and stated, "it's probably not the proper way, but it's a slang way to say to appoint." When Masson asked Hugo whether he understood his rights and wanted to continue talking to him, Hugo nodded his head, but then asked Masson to explain his rights again.
In the interest of clarity, we reiterate that during his first Miranda advisement, as translated by a court-certified translator from Spanish into English, Masson told Hugo: "You have the right to be silent because sometimes you say things against you or against the law. You have the right to have an attorney present when you are talking. If you don't have enough money to have an attorney, one will be pointed, OK?" (Italics added.)
Masson advised Hugo of his Miranda rights a second time, this time more slowly. Masson acknowledged he did not again ask Hugo whether he understood his rights and was willing to waive them, but Hugo gave no indication that he did not understand his rights or was unwilling to continue talking to Masson. Hugo then told Masson what happened to Tomas and how he (Hugo) was involved in his death.
Again in the interest of clarity, we reiterate that Masson gave Hugo the following second Miranda advisement: "[Y]ou have the right to be silent. Anything you say, can... can be used... used against you in the court of law. You have the right to have an attorney present when we are talking to you, OK? One is going to be pointed out for you if you don't have enough money to have... to get an attorney, OK?" (Italics added.)
c. Silva's testimony
Investigator Silva grew up in Mexico and speaks fluent Spanish. He spoke Spanish all the time at home both in Mexico and in the United States. He has been given special liaison assignments in the district attorney's office because of his proficiency in speaking Spanish. He has served as a liaison with the Mexican government and has contact with Mexican law enforcement officials almost on a daily basis. He has testified in about a dozen cases as a designated Spanish-speaking expert in Riverside County courts. In those hearings, he reviewed transcripts and discussed in English the meaning of Spanish words.
Silva reviewed the tapes and transcripts of Hugo's interviews with Masson and found that Masson made "a lot" of mistakes in his use of the Spanish language. Nevertheless, when he listened to Masson speaking in Spanish, he understood everything he said.
Silva indicated he is familiar with the Spanish version of the different parts of the Miranda advisement, and he listened to both of the Miranda advisements that Masson gave to Hugo in Spanish. The Spanish version of the Miranda advisement that Masson first gave to Hugo was "not the verbatim standard admonishment" that Silva would have used, but "the gist of it is there." In the first Miranda advisement that he gave to Hugo, Masson used the term "apuntao" as his translation for the English word "appointed. Silva testified that "apuntao" is not a word in the Spanish language, and "really doesn't mean anything, because it's misspelled." The word should be "apuntado," not "apuntao." Silva opined, however, that anyone who speaks Spanish would hear the word "apuntao" and know that it means "apuntado." Silva indicated that "apuntado" derives from the verb "apuntar," which means "to point" or "to appoint." An accurate English translation of the word Masson used─"apuntao"─could be "pointed." In this case, Silva opined, the court-certified translator appropriately translated "apuntao" as "pointed," but he would have translated "apuntao" as "appointed."
Silva indicated that Masson spoke more slowly when he gave the second Miranda advisement to Hugo, which was a clearer statement of Hugo's Miranda rights. Silva could not say that this second Miranda advisement was correct, but he opined that "[t]he meaning is there and the message is there as to what [Hugo's] rights were."
d. Arguments and ruling
The prosecutor argued that Hugo voluntarily agreed to go with the investigators to the station and, although Masson insisted that Hugo tell the truth and Masson developed information showing that Hugo was not being completely honest, at all times Hugo was treated as a witness and he was not in custody during the interview. The prosecutor also argued that although the first Miranda advisement "[left] something to be desired," Hugo asked for clarification, and Masson gave a second Miranda warning that included all of his Miranda rights. Furthermore, the court could find an implied waiver and conclude from a preponderance of the evidence that Hugo knowingly and voluntarily waived his rights and chose to speak to Masson.
Hugo's counsel argued that Hugo's statements to Masson should be suppressed because Masson's questions about Hugo's clothing and his relationship with Maria were accusatory in nature, Hugo was treated as a suspect rather than as a witness, and he was not advised of his Miranda rights before Masson asked those questions. When Masson did advise Hugo of his Miranda rights, Masson did so in a very fast manner so that Hugo had to ask Masson to repeat those rights. When Masson did so, he did it in a manner that left much to be desired, and he did not inquire whether Hugo understood or waived his Miranda rights.
Mario Valenzuela.
The court denied Hugo's motion to suppress the incriminating statements he made to the investigators from the time of the initial contact through and including the time he confessed. The court found that under the totality of the circumstances, Hugo was "not in custody until the [Miranda] advisement was given, or potentially a reasonable person would not have believed that [he was] in custody until he was advised." The court noted that "there are no magic words that have to be said [under] Miranda" and found that Masson's "inartful" Miranda advisements "accomplished" the conveyance of Hugo's Miranda rights.
2. Applicable legal principles
Miranda held that a defendant who is in custody "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." (Miranda, supra, 384 U.S. at p. 479.)
These rights may be waived, as long as the waiver is voluntary, knowing and intelligent. (Miranda, supra, 384 U.S. at p. 444.) There are two dimensions to the waiver: " 'First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.' " (People v. Clark (1993) 5 Cal.4th 950, 986.)
"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under [Miranda], supra, 384 U.S. 436, we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we ' "give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.' " (People v. Wash (1993) 6 Cal.4th 215, 235-236.)
3. Analysis
Hugo contends that (1) once he was in custody, Masson "failed to properly advise him of his Miranda rights before continuing to question him"; and (2) on the facts of this case, he "cannot be deemed to have knowingly and intelligently waived his Miranda rights." Specifically, Hugo asserts that because Masson twice told him that he had the right to have an attorney "pointed" or "pointed out" for him, Masson's "botched attempt" to advise him in Spanish of his Miranda rights did not reasonably convey to him that, if he was indigent, he had the right to have a lawyer appointed for him, free of charge, before he answered any more of Masson's questions. Hugo also asserts that once Masson gave his "botched" advisements regarding the right to an appointed attorney, Masson "did not even ask Hugo whether he understood the [Miranda] rights and was willing to waive them and be interrogated." Hugo's contentions are unavailing.
a. Propriety of Masson's Miranda advisements
Substantial evidence supports the court's finding that Masson's "inartful" Miranda advisements reasonably conveyed to Hugo his right under Miranda to have an attorney appointed for him prior to any questioning if he could not afford one (Miranda, supra, 384 U.S. at p. 479). As already noted, Masson advised Hugo (in Spanish) that (1) "[i]f you don't have enough money to have an attorney, one will be pointed," and (2) "[o]ne is going to be pointed out for you if you don't have enough money to... get an attorney." (Italics added.) Silva, the People's Spanish language expert, testified that although the Spanish version of Masson's first Miranda advisement was not the standard admonishment that Silva would have used, "the gist of it is there." Silva stated that although Masson used the term "apuntao" as his translation for the English word "appointed, any Spanish-speaking person who heard the word "apuntao" would have known know that it meant "apuntado," and although that word could mean "pointed," he would have translated it as "appointed." Silva also opined that Masson's second Miranda advisement to Hugo was a clearer statement of Hugo's Miranda rights, and "[t]he meaning [was] there and the message [was] there as to what [Hugo's] rights were." During his testimony, Masson indicated that although his use of the word "apuntao" as the Spanish translation of "appointed" was "probably not the proper way," his use of that word was "a slang way to say to appoint."
We take judicial notice that (1) "designar" is the Spanish translation of the verb "to appoint," and thus "designado" would have been an accurate Spanish translation of "appointed"; and (2) "apuntar" is the Spanish translation of the verbs "to point" and "to aim." (Merriam-Webster's Online Spanish-English Dict. & (as of March 1, 2010).)
Even if we were to assume Hugo did not understand "apuntao" to mean "appointed," rather than "pointed" or "pointed out," the immediately preceding and unchallenged Miranda advisement that he had the right to have an attorney present when Masson was talking to him reasonably conveyed to him that an attorney would be there to represent him if he wanted one to be there. Although Masson literally told Hugo during the second Miranda advisement that an attorney "is going to be pointed out for you if you don't have enough money to have... to get an attorney," the advisement reasonably conveyed to Hugo that this "pointing out" of an attorney for him was contingent on his not having enough money to "get" an attorney.
For the foregoing reasons, we conclude under the totality of the circumstances presented in the record that Masson's Miranda advisements reasonably conveyed to Hugo that an attorney would be appointed for him free of charge if he could not afford one.
b. Knowing and intelligent waiver
We also reject Hugo's contention that he cannot be deemed to have knowingly and intelligently waived his Miranda rights. A court may find a knowing and intelligent waiver of Miranda rights based on an implied waiver, that is, one that can be clearly inferred from the actions and words of the person interrogated. (North Carolina v. Butler (1979) 441 U.S. 369, 373; People v. Whitson (1998) 17 Cal.4th 229, 247-248, 250.) For example, when a defendant expressly affirms his understanding of his rights and proceeds to answer questions and make statements he knows are tape recorded, an implied waiver has occurred. (People v. Sully (1991) 53 Cal.3d 1195, 1233.) "Once a defendant has been informed of his rights and indicates he understands those rights, his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them." (People v. Strawder (1973) 34 Cal.App.3d 370, 379, disapproved on another ground in People v. Bustamante (1981) 30 Cal.3d 88, 102.)
Here, Hugo asserts that "it appears [he] did not understand his Miranda rights" as shown by the fact that following Masson's first Miranda advisement, Hugo asked Masson "what are my rights?" and then asked Masson to repeat them. Hugo also complains that Masson's failure to ask him again whether he understood his rights and was ready to waive them, after Masson gave the second Miranda advisement, "failed to ensure that Hugo understood his rights and was willing to waive them."
We conclude that Hugo knowingly and intelligently waived his Miranda rights based on an implied waiver. The record shows that immediately after he gave the first Miranda advisement, Masson said to Hugo, "[D]o you still want to continue talking to me? You are saying yes with the head, right?" When Hugo responded, "Uh huh," Masson asked him, "Do you also understand your rights?" Hugo apparently changed his mind and asked, "[W]hat are my rights?" Hugo then asked Masson to repeat them, and Masson complied by giving the second Miranda advisement, which we have already concluded reasonably conveyed to Hugo his Miranda rights.
The transcript of the interview and Masson's testimony during the evidentiary in limine proceeding show that upon hearing his rights again, Hugo gave no indication to Masson that he did not understand his rights, and he expressed no hesitation about continuing the interview. During that evidentiary hearing, the following exchange occurred between the prosecutor and Masson:
"[Prosecutor]: After you gave the clarification, did [Hugo] indicate to you or express any hesitation or any misunderstanding of those rights?
"[Masson]: No, he did not.
"[Prosecutor]: Did he tell you he was unclear in any way?
"[Masson]: No, he did not.
"[Prosecutor]: Did he tell you he still had some questions?
"[Masson]: No, he did not."
"[Prosecutor]: And did you then ask him some questions about what had occurred?
"[Masson]: Yes."
If Hugo had any lingering doubts about his rights, he was aware he could ask Masson for clarification as shown by Masson's willingness to repeat the Miranda advisement moments earlier. Hugo's silence and failure to express any hesitation after he listened to the second Miranda advisement conveyed to Masson that he in fact did understand his rights. Such silence and lack of expression of any hesitation, coupled with his willingness to immediately continue talking to Masson about what had happened, reasonably conveyed that he was not invoking his Miranda rights.
B. Voluntariness of Hugo's Incriminating Statements
Hugo next contends the judgment of conviction should be reversed because his incriminating statements were involuntary, and thus the court prejudicially erred in admitting those statements. Specifically, he claims his statements were involuntary as a result of his youth, his recent arrival in the United States from Mexico, his inexperience with the criminal justice system, and Masson's use of coercion and promises of leniency. These contentions are unavailing.
1. Applicable legal principles
The federal and state Constitutions bar the use of involuntary confessions against a criminal defendant. (Jackson v. Denno (1964) 378 U.S. 368, 385-386; People v. Benson (1990) 52 Cal.3d 754, 778.) A confession is involuntary if it is "not ' "the product of a rational intellect and a free will." ' " (Mincey v. Arizona (1978) 437 U.S. 385, 398.)
"The test for determining whether a confession is voluntary is whether the questioned suspect's 'will was overborne at the time he confessed.' " (People v. Cruz (2008) 44 Cal.4th 636, 669.) " 'A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions.' " (Ibid.) Whether a statement is voluntary depends upon the totality of the circumstances surrounding the interrogation. (People v. Neal (2003) 31 Cal.4th 63, 79.)
On appeal, a trial court's determination as to the issue of the voluntariness of a confession is reviewed independently. (People v. Jones (1998) 17 Cal.4th 279, 296.) The trial court's determinations as to whether coercive police activity was present, whether certain conduct constituted a promise, and, if it did, whether such a promise operated as an inducement, are also subject to independent review. (Ibid.) " 'However, "the trial court's findings as to the circumstances surrounding the confession─including 'the characteristics of the accused and the details of the interrogation'... ─ are clearly subject to review for substantial evidence." ' " (Ibid.)
2. Analysis
Hugo complains that Masson exerted pressure on him during the interview at the station. Specifically, Hugo cites portions of the interview transcript indicating that Masson asked him whether something happened with him and Tomas, such as a fight; told Hugo that telling the truth is better than telling lies if something did happen; asked whether he would pass a polygraph test and suggested he would not; told him that washed shoes can still have blood on them; asked why he killed Tomas and then whether he or Maria killed Tomas and encouraged him to tell the truth about it; and accused him of lying about his relationship with Maria.
" 'The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' " (People v. Jones, supra, 17 Cal.4th at pp. 297-298, quoting People v. Ray (1996) 13 Cal.4th 313, 340.)
Hugo has not shown such impermissible coercion. The business of police detectives is investigation, and they may elicit incriminating statements by any legal means. (People v. Jones, supra, 17 Cal.4th at p. 297.)
Here, while Masson's questions and statements became increasingly sharp, direct, and intense, this change in the tenor of the interview was justified, and Masson did not engage in coercive, impermissible ploys. The record shows that as the interview progressed Masson obtained information from both Investigator Joseph and Maria indicating that Hugo was not being truthful about certain matters, and Masson became appropriately more adamant that Hugo be truthful in his statements. During the evidentiary in limine proceeding on the motion to suppress Hugo's incriminating statements to Masson, Masson testified that during his interview with Hugo at the station, Joseph pulled him aside and told him that a family member had indicated that Hugo was not wearing the right type of clothes for the type of work he did. Masson questioned Hugo about this and asked whether anything had happened between him and Tomas. The record shows that the transcript of the interview consists of 145 pages, and Masson's interrogation of Hugo about the clothes he was then wearing begins at page 36. Masson's suggestions that Hugo might not pass a polygraph test, about which Hugo complains in this appeal, began soon thereafter, as shown by page 37 of the transcript.
Masson's in limine testimony indicated that Joseph later interrupted Masson's questioning of Hugo again and told Masson he had learned that Hugo had a relationship with Maria. Masson stated he stopped the interview and spoke with Maria, who was in another room. Masson also testified that when Maria admitted to him that she had a sexual relationship with Hugo, he returned to the interview and asked Hugo about his relationship with Maria. Hugo denied he had a sexual relationship with her and only admitted he did have one after Masson confronted him with the information that Maria had provided. Masson's interrogation of Hugo about this new information, his accusation that Hugo was having sex with Maria, his demand that Hugo stop lying, and Hugo's reply that he was not lying, occur at pages 57 and 58 of the transcript. Masson's question asking Hugo whether Maria or he killed Tomas, about which he complains on appeal, is recorded on page 59 of the transcript. On the next page, the transcript shows that Hugo continued to deny knowing the identity of the person who killed Tomas. However, at page 61, the transcript shows that Hugo acknowledged that "another guy" killed Tomas, indicating that he knew who killed Tomas. As shown by page 62, Masson then asked Hugo for the name of the killer, and Hugo replied, "I swear to you, I don't know," and "I'm tell... telling you the truth, now I am." Shortly thereafter, as shown by page 64 of the transcript, Hugo told Masson that the killer's name was Armando, indicating to Masson that Hugo may have been involved in the homicide. Masson then gave the two Miranda advisements to Hugo, as shown by page 65 of the transcript.
The foregoing record establishes that the tenor of Masson's questioning became increasingly sharp and intense as Masson obtained information indicating that Hugo was not being truthful. Having reviewed the totality of the circumstances surrounding Hugo's interrogation, we are persuaded that his incriminating statements to Masson were not the result of coercion. Given that Hugo was ostensibly the last person to have seen Tomas alive and substantial evidence shows that Masson had reasonable grounds to believe that Hugo was methodically lying to him, Masson's increasingly sharp and intense questioning of Hugo about what happened to Tomas that morning, Hugo's inappropriate work attire, his relationship with Maria, and his veracity, was reasonable. Given the circumstances, nothing in the record indicates that Masson subjected Hugo to undue or impermissible pressure.
We reject Hugo's claim that Masson made impermissible express or implied promises of leniency that rendered Hugo's statements involuntary and thus inadmissible. Hugo bases this claim on Masson's statements that "if something happened with your uncle, tell me right now and I can talk to them"; "[t]ell me the truth, before you get in more trouble"; "[t]ell me the truth. I'll speak to... to the attorney. Let me see what happens"; "[i]f something happened with your uncle, tell me the truth, that way I can tell the attorneys"; and "[t]hen I talk to the attorney and I talk about everything." Beyond pointing out the fact that lying would make matters worse, Masson only told Hugo that if Hugo told the truth, Masson would speak with the attorneys and relay the truthful version of what happened, and he and Hugo would see what would happen. Masson did not suggest that Hugo would receive any beneficial treatment.
C. CALCRIM No. 522
Hugo also contends his conviction and the special circumstance true findings should be reversed because the court prejudicially erred in refusing to instruct the jury under CALCRIM No. 522 that evidence of provocation could be considered in determining the degree of murder. We reject this contention.
CALCRIM No. 522 provides: "Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.] [¶] [Provocation does not apply to a prosecution under a theory of felony murder.]"
1. Applicable Legal Principles
CALCRIM No. 522, which is the CALCRIM analogue to CALJIC No. 8.73, is a pinpoint instruction. (See People v. Rogers (2006) 39 Cal.4th 826, 879; see also bench notes to CALCRIM No. 522.) "A pinpoint instruction 'relate[s] particular facts to a legal issue in the case or "pinpoint[s]" the crux of a defendant's case, such as mistaken identification or alibi.' " (People v. Ward (2005) 36 Cal.4th 186, 214, quoting People v. Saille (1991) 54 Cal.3d 1103, 1119.) Although a trial court is required to give a pinpoint instruction on a defense theory upon request when there is evidence supportive of that theory, it is not required to give a pinpoint instruction on the court's own motion. (People v. Rogers, supra, 39 Cal.4th at pp. 878-879; People v. Saille, supra, 54 Cal.3d at p. 1119.)
To warrant the giving of CALCRIM No. 522, there must be substantial evidence "from which the jury could find that the defendant's decision to kill was a direct and immediate response to the provocation such that the defendant acted without premeditation and deliberation." (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705, citing (among other authorities) People v. Wickersham (1982) 32 Cal.3d 307, 329, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 200.)
In Wickersham, the California Supreme Court explained that the evidence of provocation must "justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately...." (People v. Wickersham, supra, 32 Cal.3d at p. 329, italics added.)
2. Analysis
Hugo asserts that "the requested instruction [(CALCRIM No. 522)] was warranted because there was evidence that [he] had Tomas killed because of the cruel and abusive way Tomas treated Maria and their children." Thus, he maintains, "[t]he jury could reasonably conclude based on the evidence the homicide, even if intentional, occurred in a heat of passion provoked or caused by Tomas' ongoing abuse of Hugo's loved one or ones, such that Hugo was not guilty of first degree murder and was guilty, at most, only of a lesser offense of second degree murder."
Hugo's assertions are unavailing. Masson testified that Hugo told him that he approached Armando about killing Thomas because Hugo was angry at Tomas and because of the way Tomas treated Maria and the children. Masson also testified that Hugo said he got along with Tomas, but Tomas was strict and would scold him at times for coming home late, but they never physically fought or yelled at each other. Tomas's son, Esteban, testified that Tomas was strict and would discipline his children by spanking them, but he was not a violent person and, although his parents argued, they did not physically fight. Silvia testified that Tomas was very strict and had hit the children, and she felt his discipline was a "little more" than normal.
Because there is no evidence of any particular instances of Tomas physically abusing his children, and there is no evidence that he physically abused Maria, we conclude that the evidence of Hugo's vague statement to Masson that he was angry at Tomas and the way Tomas treated Maria and the children was insufficient to warrant an instruction on provocation under CALCRIM No. 522. Our review of the record discloses no evidence that would justify a jury determination that Hugo formed the intent to kill as a direct response to some provocation and had acted immediately. (See People v. Wickersham, supra, 32 Cal.3d at p. 329.)
D. Malice Aforethought Instruction
Citing People v. Rios (2000) 23 Cal.4th 450 (Rios), Hugo next contends his conviction and the special circumstance true findings should be reversed because the court failed to properly instruct the jury on the essential element of malice aforethought. Specifically, he asserts that because there was evidence of provocation arising from "Tomas's ongoing abuse of Maria and their children," the trial court "erred in failing to instruct the jury that in order to convict [him] of murder the prosecution had to prove the killing was not committed upon a sudden quarrel and/or heat of passion." These contentions are unavailing.
Although he does not do so specifically, Hugo apparently refers to CALCRIM No. 570, an instruction he requested. That instruction states in part that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion," and that "[t]he People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
In Rios, the California Supreme Court explained that heat of passion, sudden quarrel, provocation and imperfect self-defense are not elements of voluntary manslaughter that the People must prove beyond a reasonable doubt in order to obtain a conviction permit a conviction of that offense; they are mitigating circumstances that reduce an intentional and unlawful killing from murder to voluntary manslaughter by negating the murder element of malice. (Rios, supra, 23 Cal.4th at pp. 454, 460-461, 469-470.) Rios also explained that if the issue of heat of passion or imperfect self-defense is properly presented in a murder case, the People must prove beyond a reasonable doubt that the mitigating circumstance at issue (i.e., heat of passion or imperfect self-defense) was lacking in order to establish the element of malice. (Id. at p. 462.)
Here, we have concluded that there is no evidence that would justify a jury determination that Hugo formed the intent to kill as a direct response to provocation and that he had acted immediately thereafter. Because the evidentiary record does not support a reasonable inference of heat of passion, we also conclude the issue of heat of passion was not properly presented in this case, and thus the court did not err in refusing to instruct the jury under CALCRIM No. 570 or give any other instruction on the issue of voluntary manslaughter.
E. Claim of Cumulative Error
Last, Hugo contends the judgment of conviction should be reversed because the cumulative effect of the foregoing claimed errors irreparably prejudiced his right to a fair trial. We reject this contention.
1. Applicable legal principles
A series of trial errors, though harmless when considered independently, may in some circumstances rise by accretion to the level of prejudicial, reversible error. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) A defendant is entitled to a fair trial, but not a perfect one. (Ibid.)
2. Analysis
Hugo has failed to meet his burden of showing any such cumulative errors or prejudice. He has also not shown he was denied a fair trial.
DISPOSITION
The judgments are affirmed.
WE CONCUR: McINTYRE J., AARON J.