Opinion
E063987
03-30-2017
THE PEOPLE, Plaintiff and Respondent, v. RUBEN BANUELOS, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Eric A. Swenson and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1305060) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Eric A. Swenson and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Ruben Banuelos appeals his conviction for second degree murder and shooting at an occupied dwelling. He raises numerous issues, including the contentions that there was no substantial evidence to support the murder conviction either on the basis that he personally shot the victim or under the provocative act doctrine, and that the evidence was insufficient as a matter of law to support the murder verdict under the provocative act doctrine. He also asserts instructional error with respect to the provocative act doctrine, Miranda error and prosecutorial misconduct.
We find no error or misconduct, and we affirm the judgment.
PROCEDURAL HISTORY
Defendant was charged with the first degree murder of Nanette S., including the special circumstance that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle, with the intent to inflict death. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(21); count 1.) He was also charged with the willful, deliberate and premeditated attempted murder of Roberto R. (Pen. Code, §§ 187, subd. (a), 664; count 2.) The information alleged as to both counts 1 and 2 that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury or death to another person other than an accomplice. (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.53, subd. (d).) Finally, he was charged with willfully and maliciously discharging a firearm at an inhabited dwelling and with personal use of a firearm in the commission of that offense. (Pen. Code, §§ 246, 667, 1192.7, subd. (c)(8), 12022.5, subd. (a); count 3.)
A jury found defendant not guilty of first degree murder and returned a "not true" finding on the special circumstance allegation as to count 1. It found him guilty of second degree murder and found true the allegation that defendant personally discharged a firearm proximately causing death. It found him not guilty of attempted murder and not guilty of any lesser offense with respect to count 2, and found him guilty of shooting at an inhabited dwelling as alleged in count 3. It found true the allegation that he personally used a firearm in the commission of count 3.
The court imposed a term of 15 years to life on count 1, with a consecutive term of 25 years to life for the firearm enhancement on that count. It imposed and stayed the sentence on count 3 and its enhancement pursuant to Penal Code section 654.
Defendant filed a timely notice of appeal.
FACTS
On the afternoon of June 6, 2013, defendant and another man were in defendant's gold Honda Civic, stopped in the middle of the street in front of the residence occupied by Nanette S. and Roberto R. Roberto asked the men to leave. They were drinking beer, and he was concerned that they might damage one of his two cars, both of which were parked on the narrow street. An argument ensued, and after a heated exchange, defendant drove off.
A short time later, while Roberto and Nanette were outside their house discussing the incident, the car returned. Nanette was standing on the sidewalk near the mailbox in front of the house, while Roberto had walked a short distance down the street to greet his brother, who had just returned from work. Roberto saw a rifle protruding from the driver's window. The rifle was pointed at him. He yelled to Nanette that "they have a gun." He then heard a gunshot. The window of his parked car shattered. As the shots continued, Roberto ran into his backyard and retrieved a loaded nine-millimeter semiautomatic pistol he kept hidden there. As he did so, he heard a loud "boom" that sounded different from the gunshots. Roberto's brother Rafael testified that defendant's car had crashed into another car parked in front of Roberto's house.
Roberto ran through the house toward the front. As he did so, he heard one or two more gunshots. When he exited the front door, he saw defendant's car in the street directly in front of his house. He fired one or two shots at the car from the top step outside his front door. As he did so, defendant's car veered off and crashed into the back of a truck parked on the opposite side of the street. Roberto went down the steps into the front yard and fired another shot at defendant's car.
After firing the third shot, Roberto walked out through the front gate. Nanette was standing just outside the gate. Roberto heard her say, "Babe." She was holding her side. When she moved her hand, he could see blood. He realized that she had been shot. He sat her down on the steps, then continued firing at the Honda. The Honda was still behind the truck, spinning its wheels as the driver tried to dislodge it from the truck. The driver then put the car in reverse, back toward the house. Roberto kept firing until he either ran out of bullets or the gun jammed. As the Honda drove away, Roberto ran into the house and hid his pistol under the dining room table. He knew he should not have been firing a gun and did not want to get into trouble.
Roberto went back outside. He tried to use Nanette's cell phone to call 911, but was unable to unlock the phone. He then noticed shell casings and one live round on the ground. He picked them up and threw them in the trash, then resumed trying to call 911. Eventually, he and his brother put Nanette into a car and drove her to the hospital, where she died from her wound.
Defendant was arrested later that day. A video of his interview was played for the jury. Defendant admitted having the confrontation with a man on Joy Street. He stated that he drove home to retrieve his .22-caliber rifle and returned to Joy Street expecting to fight the man. He denied that he shot first, but admitted that he saw a man and a woman in front of the house before he fired his rifle at the house.
Nanette was struck by a single bullet, which travelled from her left upper back through the lower lobe of her left lung, through the right ventricle of her heart, through the middle lobe of her right lung and came out through the front right side of her chest. The bullet was not recovered.
LEGAL ANALYSIS
1.
THE EVIDENCE SUPPORTS THE SECOND DEGREE MURDER VERDICT
UNDER THE PROVOCATIVE ACT DOCTRINE
The prosecution relied on three theories by which the jury could have found defendant guilty of second degree murder: That defendant unintentionally shot Nanette while acting with implied malice in shooting at the occupied house; that defendant intended to kill Roberto but shot Nanette instead; and provocative act murder, i.e., that Roberto unintentionally shot Nanette in response to defendant's act of shooting at their house. Defendant contends that there is insufficient evidence to support the verdict of second degree murder on any theory that depends upon a finding that he fired the shot that killed Nanette, and that there is insufficient evidence to support a guilty verdict under the provocative act doctrine.
We need not address the sufficiency of the evidence as to either theory that would require a finding that defendant's weapon killed Nanette. Reversal on grounds of insufficient evidence is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.) As we discuss, the evidence is sufficient to support the second degree murder verdict under the provocative act doctrine, which, as defendant notes, was the prosecution's primary theory. Accordingly, we need not address defendant's contentions with respect to any other theory.
Roberto's Response to the Shooting Was Not an Independent Intervening Act
"Under the provocative act doctrine, when the perpetrator of a crime maliciously commits an act that is likely to result in death, and the victim kills in reasonable response to that act, the perpetrator is guilty of murder. [Citations.]" (People v. Gonzalez (2012) 54 Cal.4th 643, 654 (Gonzalez).) Here, there was substantial evidence that Roberto rather than defendant shot Nanette: As noted above, the bullet that killed Nanette was not recovered, and the pathologist who performed the autopsy testified that she could not determine the caliber of the bullet from the characteristics of the wound because of the elasticity of the skin. However, the defense called a pathologist who testified that, for a number of reasons, it was more probable that the wound was caused by a nine-millimeter round than by a .22-caliber round. Defendant does not suggest that this evidence was not credible, and he implicitly accepts that it was sufficient to establish that Roberto fired the shot that killed Nanette. His contention is that the evidence does not support a verdict based on provocative act murder because his act was not the proximate cause of Nanette's death. He contends that because he was fleeing from the scene and had ceased firing before Roberto began shooting at him, Roberto's actions constituted an independent intervening cause of Nanette's death. For purposes of discussion, we will assume that the evidence supports this contention. As a matter of law, however, defendant's contention fails.
Defendant cites the substantial evidence rule as the standard of review. The resolution of factual issues is reviewed under the deferential substantial evidence rule. (Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514.) Defendant's arguments, however, are based on what he contends is the undisputed evidence. The sufficiency of undisputed evidence to support a conviction is a question of law, which we review de novo. (People v. Villalobos (2006) 145 Cal.App.4th 310, 316, fn. 3.)
In a provocative act case, "'[t]he defendant is liable only for those unlawful killings proximately caused by the acts of the defendant or his accomplice. [Citation.] "In all homicide cases in which the conduct of an intermediary is the actual cause of death, the defendant's liability will depend on whether it can be demonstrated that [the defendant's] own conduct proximately caused the victim's death . . . ." [Citation.] "[I]f the eventual victim's death is not the natural and probable consequence of a defendant's act, then liability cannot attach." [Citation.]' [Citation.] When the defendant commits an inherently dangerous felony, the victim's self-defensive killing is generally found to be a natural and probable response to the defendant's act, and not an independent intervening cause that relieves the defendant of liability. [Citations.] The question of proximate cause is ordinarily decided by the jury, unless undisputed evidence reveals 'a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus.' [Citation.]" (Gonzalez, supra, 54 Cal.4th at pp. 655-656.)
It is beyond question that the act of shooting at an occupied house while two of the occupants of the house are standing in front of it is reasonably likely to provoke a violent response, including returning fire if either of the occupants has a gun. Defendant contends, however, that Roberto's act of shooting at his vehicle after it was apparent that defendant was "in full retreat and not posing a life-threatening danger" was not reasonably foreseeable and amounted to an independent intervening act. As he notes, however, in order to "'"rise[] to the level of an exonerating, superseding cause,"'" the intervening act must not only be unforeseeable but also must be an "'"extraordinary and abnormal occurrence."'" (People v. Cervantes (2001) 26 Cal.4th 860, 871.) Even if the evidence unequivocally established that defendant was in full retreat and no longer posed a threat to Roberto or Nanette, it is entirely foreseeable and by no means extraordinary that Roberto might nevertheless fire some additional shots at defendant's car. Moreover, contrary to defendant's contention, there is no requirement that the other person's response must be objectively reasonable. Rather, it must merely be reasonably foreseeable. (Gonzalez, supra, 54 Cal.4th at p. 658; People v. Cervantes, at p. 871.)
Defendant also contends that because he was fleeing when Roberto fired the shot that struck Nanette, Roberto was not validly acting in self-defense, and the provocative act doctrine therefore does not apply. Defendant relies on a sentence quoted above from Gonzalez, supra, 54 Cal.4th 643, that when a defendant commits an inherently dangerous felony, "the victim's self-defensive killing is generally found to be a natural and probable response to the defendant's act." (Id. at p. 655.) Gonzalez does not hold that the provocative act doctrine requires that the shooter acted in valid self-defense, however; rather, the statement merely refers to a single scenario in which the doctrine may apply. Rather, as Gonzalez makes clear, the test is whether the fatal act was a reasonably foreseeable response to the defendant's actions. (Ibid.) Here, the evidence unquestionably supports the conclusion that Roberto's actions were reasonably foreseeable in response to defendant's actions. Accordingly, it supports the conclusion that defendant's actions were the proximate cause of Nanette's death.
Shooting from the Car Did "Go Beyond" What Was Necessary to Commit the Underlying Offense of Shooting at an Inhabited Dwelling
Under the provocative act doctrine, the provocative act must be "one that goes beyond what is necessary to accomplish an underlying crime and is dangerous to human life because it is highly probable to provoke a deadly response." (Gonzalez, supra, 54 Cal.4th at p. 655.) Defendant contends that the evidence is insufficient as a matter of law to support the murder verdict based on the provocative act of shooting at an inhabited dwelling while either Nanette or Roberto was standing in front of the dwelling because "shooting from the vehicle did not go beyond what was necessary to commit the underlying crime of shooting at an inhabited dwelling."
Penal Code section 246 penalizes any person who "maliciously and willfully discharge[s] a firearm at an inhabited dwelling house." As used in that section, an "inhabited" dwelling is one "currently being used for dwelling purposes, whether occupied or not." (Pen. Code, § 246.) Accordingly, the crime can be committed even if a defendant knows that no one is present within or around the dwelling. If, on the other hand, a defendant knows that people are present on the property or within the house, the act of shooting at the dwelling also constitutes assault with a firearm. (People v. Felix (2009) 172 Cal.App.4th 1618, 1621-1622, 1627-1630.) This is true even if the shooter does not specifically intend to cause injury to any person: "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.)
Here, by defendant's own admission, he was aware that both Roberto and Nanette were standing in front of the house when he began firing. Defendant dismisses this as a mere circumstance and not an affirmative act on his part that goes beyond what was necessary to commit the crime of shooting at an inhabited dwelling. He is mistaken. Shooting at the house despite his knowledge that people were present is an act that goes beyond what is necessary to violate Penal Code section 246. Accordingly, we reject his contention that shooting at an occupied dwelling, with the knowledge that people were present, cannot as a matter of law constitute a provocative act for purposes of provocative act murder.
2.
THE COURT PROPERLY INSTRUCTED THE JURY ON
PROVOCATIVE ACT MURDER
Defendant next contends that the court erred when it instructed the jury that shooting at an occupied dwelling while Nanette and Roberto were standing outside the house constituted a provocative act as a matter of law. He contends that whether an act is a provocative act is a question of fact to be decided by the jury.
Defendant made a timely objection to this instruction in the trial court.
We review claims of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) In reviewing a claim that an instruction has misstated the applicable law, we must determine, from the jury instructions as a whole, as well as the entire trial record, whether there is a reasonable likelihood that the jury understood the instruction as defendant asserts. (People v. Kelly (1992) 1 Cal.4th 495, 525; People v. Haskett (1990) 52 Cal.3d 210, 235.) An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
Here, contrary to defendant's contention, the instruction did not state that shooting at an occupied dwelling while two people were standing outside is a provocative act as a matter of law. The instruction stated:
"The defendant is charged in Count 2 with attempt murder in violation of Penal Code section 644/187, and in Count 3 with shooting at an inhabited dwelling, in violation of Penal Code section 246. The defendant is also charged in Count 1 with murder.
"A person can be guilty of murder under the provocative act doctrine even if someone else did the actual killing. To prove the defendant is guilty of murder under the provocative act doctrine, the People must prove that:
"First, the defendant is guilty of attempted murder as set forth in CALCRIM 600, or the defendant is guilty of shooting at an inhabited dwelling house as set forth in CALCRIM 965, and in the commission of one of those two crimes, the defendant intentionally did a provocative act.
"Second, the defendant knew that the natural and probable consequences of the provocative act were dangerous to human life and that he acted with conscious disregard for life.
"Third, in response to the defendant's provocative act, Roberto [R.] killed Nanette [S.]; and,
"Fourth, Nanette [S.]'s death was the natural and probable consequence of the defendant's provocative act.
Because defendant was acquitted of attempted murder, we omit the instructions pertaining to attempted murder as the provocative act.
". . . A provocative act with respect to shooting at an inhabited dwelling is where:
"First, the defendant is guilty of shooting at an inhabited dwelling as set forth in CALCRIM 965; and,
"Second, that the provocative act committed goes beyond what is necessary to accomplish the shooting at an inhabited dwelling; and,
"Third, whose natural and probable consequences are dangerous to human life because there is a high probability that the act will provoke a deadly response.
"In order to prove that Nanette [S.]'s death was the natural and probable consequence of the defendant's provocative act, the People must prove that:
"First, a reasonable person in the defendant's position would have foreseen that there was a high probability that his act would begin a chain of events resulting in someone's death.
"Second, the defendant's act was a direct and substantial factor in causing Nanette [S.]'s death.
"And, third, Nanette [S.]'s death would not have happened if the defendant had not committed the provocative act.
"A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that caused death. The People allege that the defendant committed the following provocative acts: Attempted murder of Roberto [R.] or shooting at an inhabited dwelling while Roberto [R.] or Nanette [S.] were standing in front of the dwelling.
"You may not find the defendant guilty unless you all agree the People have proved the defendant committed at least one of these acts. However, you do not need to all agree upon which act . . . ."
Contrary to defendant's contention, there is nothing in this instruction that tells the jury that shooting at an inhabited dwelling while two people were standing in front of the dwelling is a provocative act. On the contrary, the instruction states that this is one of the prosecution's theories and informs the jury that it can find defendant guilty on that theory only if it (1) finds defendant guilty of shooting at an inhabited dwelling and (2) determines that doing so while two people were standing in front of the dwelling is a provocative act in that it goes beyond what is necessary to accomplish the shooting at an inhabited dwelling. There is no reasonable probability that this instruction misled the jury to believe that it did not have to determine as a question of fact that defendant's act of shooting at an inhabited dwelling while two people were standing in front of it was a provocative act.
As we have discussed in the preceding section, it is a correct statement of law that shooting at an inhabited dwelling when a defendant has actual knowledge that people are present is an act that goes beyond the elements of shooting at an inhabited dwelling.
Also contrary to defendant's contention, the prosecutor did not in his argument reinforce any erroneous statement in the instruction. On the contrary, the prosecutor correctly argued that shooting at the house while two people were standing in front of it is an additional act that satisfies the requirements of the provocative act doctrine and urged the jury to find defendant guilty on that basis.
Consequently, defendant's argument fails.
3.
THE FIREARM ENHANCEMENT ON COUNT 1
WAS SUPPORTED BY THE EVIDENCE
The jury found true the allegation that in connection with count 1, defendant personally discharged a firearm, proximately causing death. (Pen. Code, § 12022.53, subd. (d).) Defendant concedes that Penal Code section 12022.53, subdivision (d), does not require that a defendant personally fire the bullet that directly caused the harm. (People v. Bland (2002) 28 Cal.4th 313, 338.) However, he contends that because his act of shooting at the house was not the proximate cause of Nanette's death, as he argued elsewhere, the finding is not supported by the evidence. We rejected his argument on causation in section 1, ante. Accordingly, we reject this contention as well.
4.
DEFENDANT'S STATEMENT TO DETECTIVE VOORHEES WAS ADMISSIBLE
Defendant contends that his statement to Detective Voorhees, in which he admitted his involvement in the shooting, was improperly admitted because he had a few hours earlier invoked his right to remain silent concerning a different incident and Voorhees did not "scrupulously honor" defendant's right to remain silent.
The issue arose as follows: A short time after the shooting, defendant was arrested following a hit and run accident in which he was driving his father's car, rather than the car he was driving at the time of the shooting. He was read his Miranda rights and confirmed to the officer that he understood them. When the officer asked if he wanted to talk about the incident, defendant said, "no." The officer did not ask any further questions. Defendant was booked and released. The reading of defendant's rights and his refusal to be interviewed occurred around 6:45 p.m. Defendant was identified as a suspect in the shooting later that evening and was taken into custody. Sometime after 2:00 a.m. on the following morning, defendant was interviewed by Detective Voorhees. After some initial questions about defendant's family and social background, Voorhees read defendant his Miranda rights. Defendant said that he understood his rights, but asked, "At any point I could ask for a lawyer?" Voorhees responded, "Anytime you could ask for a lawyer, okay?" He then proceeded to question defendant about the car accident and his activities the prior day, eventually leading into questions concerning the shooting. Defendant admitted exchanging shots with Roberto but believed that his shots had missed Roberto and Nanette. When Voorhees told him that he had shot the woman in the chest, that she was dead and that defendant was now "looking at murder," defendant said he did not want to talk anymore. Voorhees asked, "Okay, well, are you saying you don't wanna talk to me or?" Defendant replied, "I wanna have a lawyer to be present though." Defendant said that he did not mean "that" to happen, and asked if it was from one of his bullets. Voorhees asked, "Are you—are you talking to me? Are you—are you addressing this again?" Defendant made an ambiguous reply. Voorhees then terminated his questioning.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Defendant moved to exclude his statement to Voorhees. The trial court found the statement admissible. After hearing testimony from both Voorhees and Officer Najmulski, who had administered the earlier Miranda advisement, the court made the following factual findings:
"First of all, . . . I do find the testimony of both Officer Najmulski and Detective Voorhees to be credible. I do find that Officer Najmulski did advise Detective Voorhees of the fact that the defendant had invoked upon the advisement of his Miranda rights during the questioning with respect to the hit-and-run accident.
"I further find that Detective Voorhees knew or should have known of the fact of the invocation . . . . [¶] . . . [¶]
"With respect to the invocation, I also make a factual finding that [defendant] did not invoke the right to counsel. Upon the first advisement and invocation, he invoked his right to silence. He did not request counsel to be present before questioning, and for that reason, although it's not controlling, I do find that there was not an invocation of the right to counsel.
[¶] . . . [¶]
"In this particular case, I do find that Detective Voorhees did scrupulously honor the previous admonition . . . and that his . . . questioning was directly towards . . . the ongoing murder case . . . . [¶] . . . [¶] . . . [T]he advisements were at least six hours apart, given that Officer Najmulski advised sometime around 6 o'clock and the interview of [defendant] in the murder case took place sometime after midnight.
"The officers did not—Detective Voorhees in particular did not pressure [defendant] in any respect to waive his rights. The waiver by [defendant], I do find, was free and voluntary and knowing and intelligent. He was aware of his rights.
"This was demonstrated by the fact that he previously exercised his right to remain silent upon the first invocation earlier in the day and that he also demonstrated that he understood his rights by cutting off the questioning at a time when . . . the necessity for an attorney at the time the serious nature of the offense became more clear to him.
[¶] . . . [¶]
"Taking all of these comments and findings into account, I do find that the People, acting through law enforcement in this matter, did scrupulously adhere to the defendant's first invocation. They were entitled to inquire as to his willingness as to speak to law enforcement with respect to the murder case approximately six hours later, and they did advise fully the defendant of his rights."
Defendant now contends that this was error because the facts as found by the trial court compel the conclusion that his right to silence was not "scrupulously honored" within the meaning of Michigan v. Mosley (1975) 423 U.S. 96 (Mosley).
"'In reviewing Miranda issues on appeal, we accept the trial court's resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported, but independently determine from undisputed facts and facts found by the trial court whether the challenged statement was legally obtained.' [Citation.]" (People v. Martinez (2010) 47 Cal.4th 911, 949 (Martinez).) Here, because the facts as found by the trial court are undisputed, we confine our review to the admissibility of the statement as a matter of law.
In Mosley, supra, 423 U.S. 96, the Supreme Court addressed the application of the Miranda decision under circumstances similar to this case. In that case, the defendant was interrogated at the police station robbery bureau about two restaurant robberies. After he was advised of his rights, the defendant stated that he did not want to discuss the robberies. The interrogation ceased immediately and the interrogator did not attempt to persuade the defendant to reconsider his position. (Mosley, at pp. 97-98.) After an interval of "more than two hours," the defendant "was questioned by another police officer at another location [in the same building] about an unrelated holdup murder." (Id. at pp. 104-105.) He was again given a full Miranda warning at the outset of questioning and was given a full and fair opportunity to exercise his right to consult an attorney or his right to remain silent. There was no further questioning about the robberies that were the subject of the first interrogation. (Mosley, at pp. 104-105.)
The court held that the second interrogation complied fully with the "guidelines" established in Miranda. The court held that the Miranda decision "must rest on the intention of the Court in that case to adopt 'fully effective means . . . to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored. . . .' [Citation.]" (Mosley, supra, 423 U.S. at p. 103.) The "critical safeguard identified" in Miranda is the person's right to cut off questioning. (Mosley, at p. 103.) "Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subject discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting." (Id. pp. 103-104.) Therefore, the court held, the admissibility of statements obtained after the person in custody has decided to remain silent depends on whether his right to cut off questioning was scrupulously honored. (Id. at p. 104.)
The court went on to hold that under the circumstances present in Mosley, there was no Miranda violation: "Before his initial interrogation, Mosley was carefully advised that he was under no obligation to answer any questions and could remain silent if he wished. He orally acknowledged that he understood the Miranda warnings and then signed a printed notification-of-rights form. When Mosley stated that he did not want to discuss the robberies, Detective Cowie immediately ceased the interrogation and did not try either to resume the questioning or in any way to persuade Mosley to reconsider his position. After an interval of more than two hours, Mosley was questioned by another police officer at another location about an unrelated holdup murder. He was given full and complete Miranda warnings at the outset of the second interrogation. He was thus reminded again that he could remain silent and could consult with a lawyer, and was carefully given a full and fair opportunity to exercise these options. The subsequent questioning did not undercut Mosley's previous decision not to answer Detective Cowie's inquiries. Detective Hill did not resume the interrogation about the White Tower Restaurant robbery or inquire about the Blue Goose Bar robbery, but instead focused exclusively on the Leroy Williams homicide, a crime different in nature and in time and place of occurrence from the robberies for which Mosley had been arrested and interrogated by Detective Cowie. Although it is not clear from the record how much Detective Hill knew about the earlier interrogation, his questioning of Mosley about an unrelated homicide was quite consistent with a reasonable interpretation of Mosley's earlier refusal to answer any questions about the robberies. [Fn. omitted.]
"This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation." (Mosley, supra, 423 U.S. at pp. 104-106, italics added.)
Although defendant tries to distinguish the instant case by pointing out that the second interrogation began with questions about the hit and run accident and by a series of seemingly social questions designed, in defendant' opinion, to soften him up, we find these distinctions immaterial. More than six hours had elapsed since the first interrogation, and defendant had been out of custody for several hours before being arrested for questioning about the murder. His initial interrogation had ceased immediately when he asserted his right to remain silent. He was given a new Miranda warning before any questioning took place concerning the murder. He asked at that time if he could ask for a lawyer "[a]t any point," and was assured that he could. When he later stated that he did not want to answer any more questions or that he would do so only if he had an attorney present, the interrogation ceased. At no time was he pressured to continue answering questions after he invoked his right to silence and/or counsel. Defendant was clearly aware of his rights and invoked them when he chose to do so, without interference from either officer.
The circumstances of this case are similar to those in Martinez, supra, 47 Cal.4th 911. The facts pertinent to the issue in this case—whether questioning about a crime may be permissible after the defendant has invoked his or her right to remain silent during questioning about a different crime—are as follows: The defendant was arrested for an assault on Sabrina P. After being read his rights, the defendant said he was willing to talk, but denied any involvement in the assault. After 10 minutes or so, he replied to a question by saying, "That's all I can tell you." The interrogation then ceased. (Id. at p. 944.) The next morning, Detectives Carroll and Aguillon, neither of whom had been involved in the first interrogation, sought to question the defendant about the rape, robbery and murder of Sophia T. (Id. at pp. 917, 945.) At the beginning of the interrogation, Detective Carroll asked the defendant if he recalled being read his rights the night before. The defendant said he did. Carroll then asked if he remembered those rights and understood them. The defendant said that he did. When the detective asked if the defendant was still willing to talk, the defendant answered, "Yeah." The detectives then asked about the assault on Sabrina P. After taking a short break to compare the defendant's recorded voice with the 911 call recording of the man who reported the assault on Sophia T., the detectives returned to the interview room and began asking questions about Sophia's murder. (Id. at pp. 944-945.) The defendant sought to suppress statements he made thereafter. He raised a number of issues related to Miranda, including the contention that his right to remain silent was not honored when Carroll and Aguillon interrogated him the day after he invoked his right to silence with respect to the assault on Sabrina P. (Martinez, at p. 946.)
Other Miranda issues that do not pertain to this case were addressed in People v. Martinez, supra, 47 Cal.4th at pages 943 through 953. We need not discuss the facts underlying those issues.
The California Supreme Court held that the second interrogation complied with Miranda under the principles enunciated in Mosley, supra, 423 U.S. 96. In Mosley, the court held that there was no Miranda violation because "'the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation." (Michigan v. Mosley, supra, 423 U.S. at p. 106.)" (Martinez, supra, 47 Cal.4th at p. 950.) Martinez was factually similar, the court held, because "the detectives waited overnight to approach defendant again, and their questioning shifted quickly from Sabrina P.'s assault to a different crime, Sophia's murder. Although the detectives did not reread defendant his Miranda rights verbatim, they did remind him of the admonition given the night before and then specifically asked him if he remembered those rights and whether he still wanted to talk. Defendant responded affirmatively. Given that defendant had been read his Miranda rights the night before and on at least four prior occasions, the record fails to support any inference that defendant was unaware of his rights and the significance of his waiver." (Martinez, at p. 950.)
Here, similarly, there was a gap of about six hours between the two interrogations, Voorhees asked only a few questions about the hit and run accident, and did so only for the purpose of establishing the events that led up to the shooting. Voorhees read defendant his rights before asking any questions about either the hit and run accident or the shooting. And, given that defendant had successfully invoked his right to remain silent during the first interrogation and did so again during the second interrogation when he felt it was in his interest to do so, the record clearly does not support any inference that defendant was unaware of his rights or that he did not voluntarily waive them during the second interrogation.
Defendant relies on People v. Honeycutt (1977) 20 Cal.3d 150 to contend that Voorhees's preliminary conversation before reading him his rights was a "softening up" to get him to continue to talk. Honeycutt is distinguishable, however. In that case, the defendant was arrested near the home of a murder victim. Detective Williams, who arrested the defendant, attempted to talk to him after he was put into the patrol car, but the defendant did not initially respond. During the ride to the police station, the defendant volunteered that Williams knew him under a different name. Williams realized that he had known the defendant through police contacts for about 10 years. In the interrogation room, the defendant was hostile toward Williams's partner, Detective Tague. After Tague left the room, Williams engaged the defendant in a half-hour unrecorded discussion. Williams testified at the suppression hearing that they had discussed unrelated past events and former acquaintances and finally discussed the victim. He mentioned to the defendant that the victim had been a suspect in a homicide case and was thought to have homosexual tendencies. They did not discuss the murder. However, Williams testified, during the course of this discussion, he could see that the defendant was "softening up," and that at the end of the half-hour discussion, the defendant indicated that he would talk about the murder. (Id. at p. 158.) The defendant was not advised of his Miranda rights until three hours after his arrest. The defendant at first said that he had no rights, but then said he understood his rights and expressly waived them. He then confessed that he beat and stabbed the victim to force him to return some money. (People v. Honeycutt, at p. 159.)
Williams testified that he structured the interrogation as he did specifically to elicit a confession. The court held that this violated the spirit of the Miranda decision, if not the letter: "It must be remembered that the purpose of Miranda is to preclude police interrogation unless and until a suspect has voluntarily waived his rights or has his attorney present. When the waiver results from a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation, the subsequent decision to waive without a Miranda warning must be deemed to be involuntary for the same reason that an incriminating statement made under police interrogation without a Miranda warning is deemed to be involuntary. The [trial] court thus erred in refusing to suppress defendant's extrajudicial statements." (People v. Honeycutt, supra, 20 Cal.3d at pp. 160-161.)
Nothing similar happened in this case. Voorhees began his conversation with defendant by asking a few questions about defendant's age, education, job and living situation. Before asking any questions related to either the hit and run accident or the homicide, Voorhees read defendant his rights and assured him that he could ask for a lawyer at any time. He then began by asking about defendant's activities before the hit and run accident, asked a few questions about the accident, and then segued into asking about the events leading up to the homicide. As noted above, when defendant realized that the shooting incident had led to Nanette's death, he invoked his rights and questioning ceased immediately, except for a few questions to clarify whether defendant was invoking his right to remain silent all together, whether he just wanted a break, or whether he was asking to consult an attorney before further questioning.
5.
THE PROSECUTOR DID NOT COMMIT MISCONDUCT
DURING HIS CLOSING ARGUMENT
During closing arguments, the prosecutor used the phrase "license to kill" with respect to defendant's claim of self-defense. Defendant now contends that this was prosecutorial misconduct and requires reversal of his conviction.
An objection based on prosecutorial misconduct in closing argument is timely if it is made after the prosecutor's argument and before defendant's closing argument because it gives the court sufficient opportunity to admonish the jury before the start of deliberations. (People v. Peoples (2016) 62 Cal.4th 718, 801.) Here, the day after the prosecutor's argument and before beginning his closing argument, defense counsel moved for a mistrial based in part on the prosecutor's use of the "license to kill" argument. The motion was denied.
"'The standards governing review of misconduct claims are settled. "A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such '"unfairness as to make the resulting conviction a denial of due process."' [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial." [Citation.] . . . When a claim of misconduct is based on the prosecutor's comments before the jury, "'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" [Citations.]'" (People v. Gonzales (2012) 54 Cal.4th 1234, 1275.)
The prosecutor made the following arguments: "I'll say it again when I get more into the defenses in this case, but that self-defense is a license to kill. There is a very limited set of circumstances that we as a society have laid out and said, we're giving you this license to kill under this very narrow set of circumstances. The law doesn't allow people to just bring firearms and go engage people because they felt slighted or disrespected, because what happened in this case is what we're worried about. Innocent people get killed." He later argued, "When you look at self-defense, when you look at those justifications or excuses, that right to use deadly force, the license to kill, that's instruction 505. . . ."
Defendant quotes an additional instance of the prosecutor's use of that phrase. It does not appear on the page of the reporter's transcript he cites, and we have not located it elsewhere in the reporter's transcript.
Defendant contends that the prosecutor's language was not only inflammatory, in that it appealed to jurors' emotions, but was also a misstatement of the law.
Although the phrase is somewhat inflammatory, we are not persuaded that its use amounted to misconduct under either the state or the federal standard. First, it is not a misstatement of the law. Rather, it is a colorful statement of the principle that under certain circumstances, the law recognizes that a person has the right to kill another person. Second, the prosecutor's argument concerning self-defense was neither incorrect nor inflammatory.
During the hearing on the mistrial motion, the prosecutor explained that by using the phrase "license to kill," he intended to convey to the jury the gravity of the concept of self-defense, and that because it does allow a person to end another person's life, it applies only in very narrow circumstances. --------
During his argument, immediately after referring to self-defense as a license to kill, the prosecutor correctly explained the concept of self-defense and explained why, in his view, it did not apply to the facts of this case. He argued that defendant did not have a right to go home and arm himself in order to defend himself from a threat that did not then exist. This is a correct statement of the law: Only an imminent danger of death or great bodily injury gives rise to the right to kill in self-defense. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) He also argued that the evidence did not support defendant's claim that Roberto shot first, thus arguably giving rise to a claim of self-defense. As far as can be discerned from the written record, there was nothing inflammatory about either argument sufficient to render the trial fundamentally unfair, nor did either argument involve the use of deceptive or reprehensible methods to persuade the jury. (People v. Gonzales, supra, 54 Cal.4th at p. 1275.) Nor is there a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (Ibid.) Consequently, there was no misconduct.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. FIELDS
J.