Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C149474C
RUVOLO, P. J.
At the age of 17, appellant participated in a drive-by shooting that resulted in the death of one of the men at whom the shots were fired. Appellant later admitted to the police that he fired several shots at the group, but averred that he did not intend to kill the man who died. The markings on the fatal bullet were consistent with its having been fired from the gun appellant admitted using. The jury convicted appellant of second degree murder.
On appeal, appellant argues that his statements to the police should not have been admitted into evidence because the police did not honor his request to call his mother or a lawyer. We reject this contention on the ground that substantial evidence supports the trial court’s implied factual finding that appellant made no such request.
Appellant also contends that the trial court should have instructed the jury sua sponte on involuntary manslaughter as a lesser included offense. We reject this contention as well, because there was no substantial evidence to support such an instruction. Accordingly, we affirm the judgment.
Facts and procedural background
A. The Shooting
During the late evening of September 26, 2003, a young man named Jose Roberto, whom his friends called Pepe, went to a house in Oakland near the intersection of Coolidge Avenue and Nicol Street. He was there to meet with a young woman named Natalie, who worked as a home-care nurse for someone who lived at the rear of the house. Roberto had spoken with Natalie several times, and was dressed up in anticipation of going on a date with her that evening.
While Roberto was waiting for Natalie in the driveway of the house, his good friend, Marlone King, saw him and stopped to talk with him. As the two young men were talking, their two friends Jeremy Folliott (King’s cousin) and Nathan Newsome, happened by and joined in the conversation. Newsome’s aunt lived across the street from where the men were gathered. Newsome was a friend of appellant’s brother, whom King also knew. None of the men in the group was armed with a gun.
After the four men had been standing in the driveway talking for about five or ten minutes, King and Newsome heard “pop” sounds coming from the direction of Nicol Street. At first, they did not understand what was happening. As the sounds continued, however, they realized that they were gunshots, which were coming from a car that was driving by. King remembered the car as a brown, four-door, “square-type” foreign model. Newsome remembered it as a brown or grey four-door compact such as a Honda or Toyota. Later that evening, Newsome told the police that it had been a black or grey Honda Civic.
When King and Newsome saw flashes of flame coming from the car’s windows, they realized that someone was shooting at them from inside the car. King saw the flames coming from two places on opposite sides of the car, and saw an arm extended from the rear passenger side. Newsome also saw flames coming from the car’s rear windows on both sides, and glimpsed a hand coming out of the window on the passenger side and firing over the roof of the car.
King told Roberto to get down, and saw Folliott and Newsome hurrying up the driveway. After the shots stopped, King saw that Roberto was still on the ground and was bleeding around the head and shoulders. Newsome ran across the street to his aunt’s house to tell her to call 911, while King stayed with Roberto.
B. The Police Investigation
Oakland Police Officer Sylvian Brewster and her partner were the first law enforcement officers to respond to the scene of the shooting. By the time they arrived, emergency medical personnel were already there, giving Roberto emergency treatment and preparing to take him to the hospital. Brewster secured the scene pending the arrival of other officers.
Oakland Police Evidence Technician Cheryl Cooper arrived at the scene of the shooting at about 9:42 p.m., before the ambulance crew had taken Roberto away. Cooper found seven spent shell casings, all of which were nine-millimeter Lugers, on the side of the street opposite to where Roberto was when he was shot. She did not find any bullets or any other shell casings.
Roberto was pronounced dead at the hospital at 1:09 a.m. on September 27, 2003. Doctor Sharon Van Meter, a forensic pathologist, performed an autopsy on Roberto. She testified that the cause of Roberto’s death was a bullet that entered his head at the left upper eyelid, traveled through his brainstem, and lodged between the skull and the scalp at the back of Roberto’s head. Roberto was otherwise uninjured. Van Meter recovered the fatal bullet from Roberto’s body.
Richard Schorr, a firearms expert, testified that the firing-pin impressions on the nine-millimeter casings that Cooper found on the street at the crime scene indicated that all seven had been fired from the same gun, which was probably a nine-millimeter Glock. Later on, the police provided Schorr with a nine-millimeter Glock, which he test fired. The results confirmed that it was the same gun that fired the casings found at the scene. The placement of the casings found on the street, as recorded by the police, was consistent with the gun having been fired from “something [that] was moving.” Schorr also testified that the markings on the nine-millimeter bullet recovered from Roberto’s body indicated that it had probably been fired from a Glock, although he could not say for certain that it was the same Glock that fired the casings, and it could have come from one of a couple of other models of gun.
C. Appellant’s Statements to Police
On June 11, 2004, the police picked appellant up at the Alameda County Juvenile Hall (Juvenile Hall) and took him to the Oakland Police Department to be interviewed. As discussed post, appellant later moved to suppress the statements he made during the interview. The motion was denied, and appellant’s three tape-recorded statements were played for the jury at appellant’s trial.
On the tapes, appellant related that on the night of the shooting, he and his friend Steve Bell were “out on a pass” from Camp Sweeney (a juvenile offender facility) for the weekend. Late in the evening, around 9:00 p.m., appellant was on a street corner with Bell and some other friends. Appellant was carrying a black nine-millimeter Glock with about eight bullets in it, which he had purchased on the street during the preceding day from “a dope fiend in Berkeley,” because the seller was only asking $20 for it. Bell had a black.38-caliber revolver with a brownish handle. Appellant had smoked a little marijuana, but had not ingested any other drugs or alcohol.
Timothy Allen, whom appellant and Bell knew, pulled up in a gray Toyota Cressida, and invited appellant and Bell into the car. Bell got into the back seat on the driver’s side. Appellant got into the front passenger seat initially, but moved to the back seat when the car’s occupants “started plottin[g].” By “plotting,” appellant meant that since he and Bell both had guns with them, they decided they might as well “go get” (i.e., shoot) “some of the people that [they were] havin[g] problems with.” The people in question were from the School Street area. One of them was named J.D.; appellant did not know the other person’s name. They had been “[s]mashin[g]” (i.e., insulting or harassing) Bell by telling him that he was not from School Street.
The three men drove along Coolidge Avenue past the corner where they thought their targets would be, but appellant did not see them, so they drove back around again. Appellant then spotted the people and pointed them out, and urged Bell to shoot, and then to shoot again. After Bell had fired two shots, appellant “got out the window” and started to shoot his own gun, firing over the roof of the car in the direction of the driver’s side. Appellant and Bell both emptied their guns as they drove away.
There were five or six people in the group at whom appellant and Bell were firing. Appellant was aiming at the person he knew as J.D., because J.D. was the person that was having problems with appellant’s friend. According to appellant, he was shooting at J.D. in order to scare him and induce him to leave appellant’s friend alone. Appellant told the police that he did not intend to kill J.D., but acknowledged that he was aiming at him and trying to shoot him, and was aware that J.D.’s death could result. Appellant did not intend to kill Roberto.
The actual identity of J.D. is not clear from the record, but J.D. was not Roberto.
When appellant and Bell finished shooting, Allen drove them away. At the time, appellant was not aware that anyone at whom they were shooting had actually been hit. After appellant went back to Camp Sweeney, he learned from Bell, who had read it in the newspaper, that Roberto had been hit. Appellant acknowledged to the police that because appellant had the nine-millimeter Glock, while Bell had a.38-caliber revolver and Allen did not have a gun, any nine-millimeter bullet found in Roberto’s body would have to have been fired by appellant.
After the interview, during the early morning of June 12, 2004, appellant was formally arrested for murder. He was then taken to the Youth Services Division to be transported back to Juvenile Hall.
D. Trial Court Proceedings
On June 15, 2004, a complaint was filed charging appellant, together with Allen and Bell, with murdering Roberto. (Pen. Code, § 187, subd. (a).) The complaint also alleged that appellant intentionally murdered Roberto by discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)), and that he personally and intentionally used and discharged a firearm, causing death. (§§ 12022.7, subd. (a); 12022.5, subd. (a); 12022.53, subds. (b), (c), (d).) After a preliminary hearing, the same allegations were reiterated in an information filed on March 16, 2005.
All further statutory references are to the Penal Code unless otherwise noted.
Because appellant was over 14 years old at the time of the crime, and he was subject to the death penalty or life imprisonment without parole and was alleged to have used a firearm, the complaint requested that appellant be tried as an adult. (§ 190.2; Welf. & Inst. Code, §§ 602, subd. (b)(1); 707, subds. (d)(2)(A) & (d)(2)(B).) By the time the case came to trial in 2008, appellant was no longer a minor.
Appellant was born in July 1986. Thus, he was 17 years old when Roberto was killed in September 2003.
On February 4, 2008, appellant’s trial counsel filed a motion to suppress the statements appellant made to the police in June 2004. The trial court held an evidentiary hearing on the motion starting on May 21, 2008, and concluding on June 2, 2008, at which time it was denied.
On May 19, 2008, appellant’s case was severed from that of his codefendants for trial. Jury selection for the trial began on May 21, 2008, and concluded on May 29, 2008. The presentation of evidence began on June 2, 2008, and concluded on June 4, 2008. On June 9, 2008, the jury found appellant guilty of second degree murder, and found true the allegations that appellant personally used a firearm, causing death. On July 29, 2008, appellant was sentenced to a total term of 40 years to life. This timely appeal ensued.
DISCUSSION
A. Admissibility of Appellant’s Statements to Police
As already noted, the trial court held an evidentiary hearing on appellant’s motion to suppress his statements to the police. The evidence at that hearing was as follows. On June 11, 2004, Sergeant Phil Green of the Oakland Police Department and his partner, both wearing plain clothes, picked appellant up at Juvenile Hall and transported him to the Oakland Police Department Homicide Section for questioning. Although Green was not in uniform, he was wearing his police badge in a visible location, but appellant denied seeing it. Appellant was not given Miranda warnings at Juvenile Hall before being taken to the police station. According to Green, between the time he met appellant at Juvenile Hall until he was placed in an interrogation room at the police station, appellant never requested that he be given an attorney or allowed to call his mother.
This date was about a month before appellant’s 18th birthday.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
According to appellant, he was alarmed when two men in plain clothes picked him up from Juvenile Hall and refused to tell him who they were, or anything other than that they were taking him “downtown.” Appellant testified that before leaving Juvenile Hall, he asked to call his mother or a lawyer, but was not permitted to do so. He asserted that a Juvenile Hall employee, Bennie Elzy, overheard him making this request and asked why he wanted a lawyer, and that he then repeated it, explaining that he wanted to call his mother or his lawyer so that they could meet him “downtown.”
Appellant called Elzy as a witness at the evidentiary hearing, but she testified that she did not remember the incident due to the passage of time, and did not recall one way or the other whether she heard appellant ask the police to let him make a call. She acknowledged, however, that it was not unusual for minors at Juvenile Hall to ask officers or the staff to let them make a phone call to a parent or a lawyer. Elzy had known appellant through her work since he was about 12 or 13 years old, and he was “just like any other kid” in terms of his willingness to ask questions or make requests.
Appellant was put into the interrogation room at about 6:20 p.m., without having been given any Miranda warnings. Between then and 11:17 p.m., the police interviewed appellant’s codefendants, Allen and Bell. Appellant testified that during this time, the police came into the interrogation room, showed him a photograph, and asked him who it was. Appellant averred that he again asked to call his mother or a lawyer during this conversation, but was not permitted to do so at that time or afterwards. In contrast, Green testified that he did not talk to appellant between the time he was put into the interrogation room and 11:17 p.m., and the police log regarding appellant’s stay in the interrogation room did not reflect that the police had any substantive contact with appellant during that period. The police did show appellant a photograph of the crime scene, but this occurred later on, during the tape-recorded interview.
At 11:21 p.m., Green returned to the room, and told appellant that he was suspected of being involved in a shooting, and that the police wanted to talk to him about it. Green testified that he gave appellant Miranda warnings at this time, and then he and his partner questioned appellant in an unrecorded conversation for about an hour. Appellant denied having been advised of his rights before the police started questioning him. He acknowledged, however, that before he was advised of his Miranda rights, the police told him that he was being questioned in connection with a murder.
There is an inconsistency in appellant’s testimony in this regard. On redirect examination, he testified that the reason he asked to call a lawyer or his mother on this occasion was that he had been told he was being questioned about a murder, and knew that this was a serious offense. In his direct testimony, however, he stated that his request for a phone call was made before he left Juvenile Hall, and that he did not know at that time why the men who had come to collect him were taking him downtown.
According to Green, appellant did not ask to talk to his mother or to a lawyer at any time during the interrogation. At trial, Green testified again that at no time between Green’s first contact with appellant at Juvenile Hall and the end of their interviews did appellant ever ask to call his mother or a lawyer.
Appellant acknowledged that after he started talking to the police, they did give him Miranda warnings, and that he did not ask for a lawyer or ask to talk to his mother after they had done so. Appellant then gave the three tape-recorded statements that were the subject of his motion to suppress. At the start of the first tape-recorded interview, Green noted that appellant had been given Miranda warnings and reiterated their content. Appellant confirmed on the tape that he had been given the warnings, and that he had agreed to talk to the police after receiving them.
Green testified that his custom and practice was to allow juvenile suspects to call their parents upon request; that appellant never made such a request during the unrecorded portions of their encounter; and that if appellant had asked to call his mother, Green would have permitted him to do so. As an example, Green testified that when appellant’s codefendant, Bell, asked for a lawyer during a follow-up interview with the police, Green and his partner memorialized the request in their notes, and then immediately concluded the interview and left. Green acknowledged, however, that he did not tell appellant that he could make any phone calls, did not tell him how he could get a lawyer, and did not offer him a chance to use a telephone.
At the conclusion of the evidentiary hearing, the court engaged in a colloquy with appellant’s trial counsel, and confirmed that counsel did not have any evidence corroborating appellant’s testimony. Appellant’s trial counsel then acknowledged that the issue boiled down to one of credibility as between Green and appellant. The court pointed out that by the time of his interview with the police in this case, appellant had extensive prior experience with the juvenile justice system, had been given Miranda warnings on several occasions, had waived those rights and given statements in the past, and had expressly waived them during the tape-recorded portion of his interview in this case. The court also took note that at the end of the interview, when the police asked appellant if they had “treat[ed] [him] all right” during his encounter with them, appellant responded affirmatively.
The trial court denied the motion “based upon the totality of the circumstances and everything that has been in front of th[e] court,” without expressly stating on the record that the court was making a factual finding that appellant did not ask to call his mother or an attorney. In context, however, it is clear from the trial court’s remarks that the motion hinged on a straightforward credibility issue, which the court resolved adversely to appellant. Thus, we read the record as including an implied factual finding by the trial court that appellant did not in fact invoke his right to contact his mother or an attorney, either before or during his interview by the police. This implied finding is one of historical fact, which we must affirm if it is supported by substantial evidence. (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134; People v. Lewis (2001) 26 Cal.4th 334, 383-384.)
In this case, the trial court’s implied finding is supported by Officer Green’s unequivocal testimony that appellant did not ask to call his mother or an attorney at any time between the time he was picked up at juvenile hall to be taken to the police station and the end of his discussions with the police. This testimony was corroborated by appellant’s tape-recorded admission, toward the end of the interview, that the police had treated him appropriately. The trial court’s decision to reject appellant’s uncorroborated contrary testimony as not credible is also supported by appellant’s prior history of waiving his rights after receiving Miranda admonitions.
Appellant relies on authorities holding that uncontradicted testimony that a minor suspect asked to call a parent before or during an interrogation must be considered sufficient to show an invocation of the minor’s Fifth Amendment rights. (People v. Burton (1971) 6 Cal.3d 375, 383-384.) In the present case, however, appellant’s testimony was squarely controverted by Green’s. Thus, these cases are inapposite. Under the applicable standard of review, the record provides us with no basis for reversing the trial court’s ruling denying appellant’s motion to suppress his statements.
Because we accept the trial court’s factual finding that appellant never asked to speak with his mother or a lawyer before giving his statements to the police, we need not address the issue whether a minor’s request to speak with a parent must be honored as an invocation of the minor’s Fifth Amendment rights. This issue is currently before the California Supreme Court in People v. Lessie, No. S163453 (review granted July 23, 2008; argued Nov. 3, 2009).
B. Failure to Instruct on Involuntary Manslaughter
Appellant requested that the trial court instruct the jury on voluntary manslaughter as a lesser included offense. The request was refused. Appellant now contends that it was error for the trial court not to instruct on involuntary manslaughter sua sponte. This question is one of law, on which our standard of review is de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1218; People v. Turk (2008) 164 Cal.App.4th 1361, 1367.)
A trial court “must instruct on a lesser included offense when ‘there is evidence from which a jury composed of reasonable persons could conclude the defendant was guilty of the lesser crime. [Citations.]’ [Citations.]” (People v. Evers (1992) 10 Cal.App.4th 588, 595.) Conversely, as appellant acknowledges, “a trial court need not instruct the jury on a lesser included offense where no evidence supports a finding that the offense was anything less than the crime charged.” (People v. Gutierrez (2009) 45 Cal.4th 789, 826.)
In determining whether sufficient evidence supports a proposed lesser included offense instruction, the court should not weigh the evidence or determine the credibility of the witnesses. However, if the evidence supporting the lesser included offense is minimal and insubstantial, the court need not instruct on its effect. (People v. Evers, supra, 10 Cal.App.4th at p. 595.)
Respondent argues that the instruction was not required because the evidence showed that appellant intended to kill J.D. As appellant correctly points out, however, in finding appellant guilty of second rather than first degree murder, the jury implicitly absolved him of harboring the specific intent to kill. Thus, we agree with appellant that respondent’s argument is without merit to the extent that it rests on the premise that appellant had such an intent.
Similarly, we are not persuaded by respondent’s alternative argument that appellant was not prejudiced by the omission of the instruction because the evidence supports the jury’s finding that appellant acted with malice.
By the same token, however, the jury’s verdict that appellant was guilty of second degree murder implies a finding that appellant deliberately fired his gun into a crowd of people with conscious disregard for the danger to human life inherent in that act. (See People v. Cook (2006) 39 Cal.4th 566, 596.) Thus, the question before us is whether there is substantial evidence in the record that would have justified a reasonable jury in finding that instead, the killing occurred unintentionally, in the sense that appellant acted only “ ‘without due caution and circumspection’ ” rather than with conscious disregard of a known danger to life.
To support that contention, appellant relies on his statements to the police that his “intention wasn’t to kill,” and specifically, that he was not trying to kill Roberto. In the very same portion of his interview, however, appellant acknowledged that “just by simply pullin[g] the trigger, there’s a good chance you’re gonna end up killin[g] somebody,” and that he “was tryin[g] to shoot J.D.” Thus, by appellant’s own admission, he acted with precisely the state of mind contemplated by the elements of second degree murder, rather than with mere negligence or lack of caution. Accordingly, appellant’s disclaimer of an intent to kill, taken in the context of his description of the state of mind he did have, did not constitute substantial evidence supporting an involuntary manslaughter instruction.
As appellant put it, “my intention wasn’t to kill, but... I can be shooting at a leg and it might bounce off the ground and shoot him in the head or somethin[g].”
Appellant also relies on Newsome’s response to a question posed to him on cross-examination by appellant’s trial counsel. Counsel asked, “Didn’t you tell the police that you thought the gun was being fired in the air?” Newsome responded, “Initially it could have been. I don’t know who they were—I don’t know what they were firing at or who they were firing at.” In the overall context of the evidence, including appellant’s own admission that he was “tryin[g] to shoot J.D.,” Newsome’s vague statement that the gun “[i]nitially... could have been” fired in the air rather than at a group of people is far too slender a thread from which to hang the argument that substantial evidence supported an involuntary manslaughter instruction.
DISPOSITION
The judgment is affirmed.
We concur: SEPULVEDA, J., RIVERA, J.