Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF123528 Christian F. Thierbach, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Joey Alfredo Diaz.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Ray Aguirre, Jr.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Edward Juan Cuellar.
OPINION
RICHLI, Acting P.J.,
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Janelle Marie Boustany and Megan Beale, Deputy Attorneys General, for Plaintiff and Respondent.
On October 21, 2004, fellow Corona Vatos or Varrios Locos (CVL) gang members Johnny Ray Aguirre, Joey Alfredo Diaz, and Edward Juan Cuellar chased Centennial High School football player Dominic Redd into an apartment complex located in Corona. All three jumped on Redd and beat him. During the brawl, one of the three defendants pulled out a knife and stabbed Redd 13 times. Redd died as a result of the multiple knife wounds.
All three defendants were tried together, but by separate juries. Diaz and Aguirre were tried by the same jury (the red jury) and were convicted of second degree murder. Cuellar, who was tried by his own jury (the blue jury), was convicted of first degree murder. Defendants now contend jointly and individually as follows:
1. Diaz and Aguirre contend that the trial court erred by failing to instruct the jury with lesser related instructions of assault with force likely to cause great bodily injury.
Aguirre has joined in the arguments raised by Diaz that are applicable to him. Diaz and Cuellar have joined in the issues raised in all of the briefs that benefit them.
2. Cuellar contends reversal is required because Diaz’s in-court testimony was presented to Cuellar’s jury after Cuellar and the prosecution had already rested on his case.
3. Diaz contends that hispretrial statement was improperly admitted both on the grounds that he invoked his right to remain silent during the interview and that it was coerced and involuntary.
4. Diaz contends that the trial court improperly instructed the jury that he was an accomplice as a matter of law.
We find no prejudicial error as to any of the above claims and therefore affirm the judgments.
I
FACTUAL BACKGROUND
A. Testimony in Front of the Red and Blue Juries
On May 11, 2005, Lisa Allen lived in the Contadora apartment complex located at 990 Marguerita Drive in Corona with her 15-year-old son, Dominic Redd. The apartment complex was located on the corner of Rimpau and Circle City. Redd attended Centennial High School. On that day, Redd missed the bus and walked home.
Theresa Harris lived in the same complex. On her way home to the complex on that day, while stopped at the corner of Rimpau and Circle City, she observed three “boys” standing together at the intersection. One of the boys, whom she identified in court as Diaz, knelt down and put a hand on the ground in a three-point football stance. Harris turned onto Circle City. Harris’s brother, David Sewell, was out running at the same time.
Harris thought that Cuellar and Aguirre looked like the other two boys, but she was not sure.
Sewell observed Redd walking toward Rimpau. At this point, Harris had pulled into the complex and was stopped. She observed Redd run to his apartment door. Redd appeared to be trying to unlock his door but was having trouble. He kept looking over his shoulder. Harris then saw the same three boys she had seen at the corner run by the driver’s side of her car toward Redd.
Debra Robledo, who lived across from the apartment complex, identified Diaz, Aguirre, and Cuellar as the three boys who ran into the complex after Redd. They were also seen running into the complex by Aguirre’s sister, Frances, and his uncle, William Woods, around this same time.
Redd ran from his door because he could not get it open. He got to the front of Harris’s car before Diaz, Aguirre, and Cuellar jumped on him. Redd got free and ran off with the boys chasing him. Harris found Sewell and told him some kids were “jumping [a] black kid . . . .” When they returned to the complex, Sewell found Redd lying in a planter with a large gash in his upper abdominal area. He was lying in a pool of blood. Redd told Sewell, “Oh, God. Don’t let me die.”
Other residents and workers at the apartment complex heard yelling in the complex, including “bullshit,” and “motherfucker.” They then found Redd bleeding in the planter.
Robledo observed Diaz, Aguirre, and Cuellar all run out of the complex together. They stopped for a few seconds. She believed that Diaz tucked a shiny object under his T-shirt, and they all then ran off.
Robledo identified Cuellar as the one with the knife at the preliminary hearing.
Several Corona police officers arrived at the scene. Redd was bleeding profusely and gasping for air; he did not know who had stabbed him. Redd was rushed to the hospital by paramedics, where he was pronounced dead at 6:20 p.m. as a result of 13 stab wounds.
Prior to the stabbing incident, Redd was part of a group that was “mad dogging” Hispanic students at Centennial high school. References to the Crip gang were found in Redd’s backpack, which had been dropped on the ground near where he was stabbed, and during a search of his room.
Diaz and Aguirre were detained on May 16, 2005, after they were chased by police into a cemetery near Aguirre’s apartment. Cuellar was detained on May 18, 2005.
Diaz’s home was searched, and a knife was found in a duffle bag. No blood was found on the knife.
Corona Police Detective Robert Newman testified as a gang expert familiar with the CVL gang, which he said was known as the Corona Varrio Locos. CVL was a turf-based gang that claimed all of Corona. CVL’s primary activities included murder, assaults with deadly weapons, robberies, vandalism, and tagging. Documented CVL gang members had committed the predicate crimes of attempted murder and assault with a deadly weapon.
There had been a violent riot between Hispanic and African-American gangs in 2004 at Centennial High School. The rivalry between the two ethnic groups dated back to at least 2001 and continued at the time of Redd’s stabbing. After Redd’s death, there was gang graffiti in the area between CVL and African-American gangs regarding retaliation for the murder.
Gang members gain respect and status in the gang by either committing the most violent crimes or making money for the gang by committing robberies or selling drugs. To get into CVL, a person would either be jumped in, would commit a crime, or could join if his family was already a member.
Detective Newman identified Aguirre, Diaz, and Cuellar as members of the CVL gang. Diaz was known as Micro, Cuellar as Lil Cartoon, and Aguirre as Turtle. Detective Newman did not believe that Redd was an active gang member. Based on Detective Newman’s knowledge of the attack on Redd, he believed that the murder was committed for the benefit of, at the direction of, or in association with CVL.
While Cuellar was in custody at juvenile hall on August 14, 2006, waiting for transfer to court, he was placed in a holding cell. After Cuellar was taken out of the cell, gang graffiti that said “Corona Fourth Street, Cartoon, CVL” was found on the floor.
B. Testimony in Front of Cuellar’s (the Blue) Jury Only
David Becerra (who was also a member of CVL and was known as Ju-Ju) was Cuellar’s brother. Becerra told Corona Police Detective Edward Fanchin that Cuellar had told him that he, Diaz, and Aguirre chased Redd, hit him, and then “stuck” him with “something.” Cuellar told him that they killed him. Cuellar told Becerra that Redd was claiming the Crip gang and said “Fuck you, Vato.” Cuellar told Becerra that “they” stabbed him; he did not say which one of them stabbed Redd.
Becerra was with Cuellar when he was arrested; the clothes in the car belonged to him, not to Cuellar. Becerra told Detective Fanchin they were going to Arizona.
Corona Police Detective Daniel Bloomfield interviewed Cuellar on May 19, 2005, at 2:00 a.m. The interview was videotaped and shown to his jury.
Cuellar admitted that he had been jumped into CVL over a year earlier. The clothes found in the car when he was arrested belonged to Becerra.
Cuellar initially denied any knowledge of the stabbing of Redd. Cuellar then stated that he and Diaz had been shot at by some Black youth two or three weeks prior to Redd’s stabbing, and he believed that Redd was one of the Black youth in the car. On the day of the stabbing, he (self-admittedly known as Little Cartoon), Diaz (who he said was known as Micro), and Aguirre (who he said was known as Turtle) saw Redd while at they were at the corner of Rimpau and Circle City. Redd started running, and they chased him into the apartment complex. They caught up to Redd, and all three of them started beating him up.
Cuellar told the detectives that one of them then pulled out a knife and stabbed Redd. Cuellar refused to say which one but denied he did it. They did not pass around the knife. Cuellar did not know beforehand that one of them had a knife and thought they were just going to beat Redd up. Cuellar finally claimed that Diaz stabbed Redd. Aguirre pushed Cuellar back and then told Diaz to “stick” Redd after they had beat him up.
C. Testimony in Front of the Diaz and Aguirre (Red) Jury
Diaz was interviewed at 1:00 a.m. on May 17, 2005, by Detective Bloomfield. The videotape was played for the jury. Diaz waived his Miranda rights. Diaz initially denied any involvement in the stabbing of Redd. Diaz then admitted that he, Aguirre, and a third person (whom he refused to identify) chased after Redd after Redd “dogged” them. Diaz admitted that he stabbed Redd in the leg and then dropped the knife. He did not say whether Aguirre or the other person stabbed Redd. At the end of the interview, Diaz appeared to be throwing CVL gang signs and “flipping . . . off” the police through the two-way mirror.
The interview had to be conducted at the late hour because of rules on holding juveniles.
The details regarding the conditions of the interview will be discussed more fully, ante.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda).
Aguirre was interviewed on May 17, 2005, at 3:00 a.m. The videotape of the interview was shown to the jury.
Aguirre was jumped into CVL (which he said was the Corona Vatos Locos) gang when he was about 12 years old, and some people called him Turtle. Diaz was dating Aguirre’s sister.
Aguirre admitted running after Redd; however, he claimed that he and Diaz lagged behind the third person (whom he refused to identify). Diaz and Aguirre gave up the chase, but the third person continued to chase Redd. Diaz and Aguirre remained at the corner of Rimpau and Circle City just outside the apartment complex. They never hit or stabbed Redd. The third person returned to where they were waiting and told them he had stabbed Redd. Aguirre started yelling “[f]uck” and “[s]hit” loudly. At another point, Aguirre admitted that all three of them were hitting Redd but that the third person stabbed him. Diaz and Aguirre were starting to walk away when the third person stabbed Redd. Aguirre was afraid he would be killed if he “ratted” out the third person.
D. Defense
Diaz testified on his own behalf in front of both juries. He admitted that he was initially evasive with police detectives during his pretrial interview. He admitted that he was a CVL member and that his nickname was Micro.
Diaz was at Aguirre’s house on May 11, 2005. They left and went looking for “weed.” On the way, Diaz saw Redd walking on the street. Redd was “dogging” him. They drove to Cuellar’s house. They told Cuellar about seeing Redd walking down Rimpau trying to “dog us with his chest out.” All three of them walked around the neighborhood to see if they could find someone with marijuana. Diaz was not carrying a knife and did not think that any of them had one.
As they were walking, they saw Redd across the street. Diaz said to the others, “Fuck that fool. Let’s go get him. I’m gonna get him.” Diaz intended to hit Redd, not stab or kill him. They could not catch up to Redd. When Redd smiled at them for not catching up, Diaz became enraged.
Diaz, Aguirre, and Cuellar separated in order to corner Redd. When Diaz got back together with them, Aguirre and Cuellar were already beating up Redd. They were hitting Redd with their fists. Diaz joined in the brawl, hitting Redd in the body and head.
During the fight, Diaz observed Cuellar pull out a knife and start stabbing Redd. Diaz and Aguirre stepped back and looked at each other as if to say, “What the fuck is this fool doing,” but they did not tell him to stop. Diaz then told Aguirre and Cuellar to get out of there, and they ran out of the complex. Cuellar told Diaz that he got rid of the knife, but Diaz did not know where. They ran to Cuellar’s house. Cuellar told Diaz and Aguirre that he “stabbed that fool.”
Diaz told the detectives that he stabbed Redd in the leg to protect Cuellar and to “throw off the cops” as to who really stabbed him. By the time of trial, he no longer wanted to protect Cuellar because Cuellar did not reciprocate and protect Diaz. Diaz admitted that he was still close to Aguirre, but not with Cuellar.
Aguirre and Cuellar presented no evidence.
II
PROCEDURAL BACKGROUND
The red jury found Aguirre and Diaz guilty in count 1 of second degree murder (Penal Code, §187, subd. (a)) with a true finding on the allegation that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The jury found the allegation that Diaz personally used a deadly and dangerous weapon (§ 12022, subd. (b)) not true.
All further statutory references are to the Penal Code unless otherwise specified.
The blue jury found Cuellar guilty of first degree murder (§ 187, subd. (a)). The jury also found the special circumstance of active gang participation with the intent to kill true (§ 190.2, subd. (a)(22)), and the jury found true the allegation that the crime was committed to benefit a criminal street gang (§ 186.22, subd. (b)).
The trial court sentenced Aguirre and Diaz to a total term in state prison of 15 years to life. Cuellar was sentenced to life without the possibility of parole. Defendants filed timely notices of appeal.
III
ASSAULT INSTRUCTION
Aguirre and Diaz contend that the trial court erred by failing to instruct the jury on assault with force likely to cause great bodily injury (§ 245).
Although Cuellar has joined in the arguments made by Diaz and Aguirre on appeal, he did not appear to join in the request for the instruction in the lower court and therefore would be foreclosed from making a claim of error on this basis. (See People v. Lacefield (2007) 157 Cal.App.4th 249, 256 [defendant must request lesser related offense instruction].)
After the parties had discussed the instructions in chambers, Aguirre’s counsel stated on the record that he was hoping the trial court would instruct the jury with section 245, which he stated was a lesser related instruction. Diaz joined in requesting the instruction. The trial court stated that it was “error” to give instructions on factually related lesser offenses. The trial court concluded, “With the overturning of the Geiger decision, factually related lessers are a distant memory.”
Section 245 provides in part that a defendant is guilty of a felony if he “commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury . . . .”
People v. Geiger (1984) 35 Cal.3d 510.
The trial court did agree to instruct the jury with the lesser included offense of voluntary manslaughter on a theory of heat of passion based on testimony that Redd was “mad dogging” defendants prior to his murder.
Under the now-overruled Geiger, defendants were entitled to jury instructions on offenses that were not “necessarily included” in the charged offense, but instead were merely “related,” if (1) there was some basis for a finding of guilt of the related offense, (2) the offense was closely related to that charged and must be shown by the evidence, and (3) the defendant’s theory of the case was consistent with his or her guilt of the related offense. (People v. Geiger, supra, 35 Cal.3d at pp. 531-532.) However, in People v. Birks (1998) 19 Cal.4th 108, the California Supreme Court overruled the holding of Geiger that a defendant’s unilateral request for a related-offense instruction must be honored over the prosecution’s objection. (Birks, at p. 136.) Despite the authority presented by Aguirre from other jurisdictions criticizing the Birks determination, we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, when defense counsel stated on the record that he was seeking the assault instruction, the prosecutor said nothing. The prosecutor did not consent or agree to the giving of that instruction. The prosecutor did not need to object to the instruction because the trial court never indicated that it was going to give it. Thus, under the dictates of Birks, the trial court was precluded from instructing the jury with the lesser related offense.
Diaz and Aguirre both claim on appeal that they were in fact requesting what amounted to a defense instruction, not a lesser related offense instruction. Initially, neither party raised this as a reason for so instructing the jury in the lower court, and therefore they have waived such claim on appeal. Moreover, the offense of assault with a deadly weapon is not a defense to murder. Instead, it is a theory of criminal liability based on a different offense. It is the prosecution’s function to select and propose the charges. (People v. Birks, supra, 19 Cal.4th at p. 136.) The prosecution chose to only charge murder in this case. Diaz and Aguirre could not add a charge under the guise that lesser related offenses do not constitute additional charges, but actually are defenses. We cannot find error.
Additionally, Diaz and Aguirre were not foreclosed from presenting a defense. As stated by the California Supreme Court, “[N]othing in our holding prevents the defendant from arguing in any case that the evidence does not support conviction of any charge properly before the jury, and that complete acquittal is therefore appropriate.” (People v. Birks, supra, 19 Cal.4th at p. 136, fn. 19.) As recognized by Diaz, he argued to the jury that he was only guilty of assault, not murder. Aguirre also argued to the jury he was only guilty of assault. Diaz and Aguirre were not foreclosed from presenting their theory of assault to the jury. Had the jury concluded that Diaz and Aguirre did not intend to kill Redd, but simply intended to commit assault, they would have acquitted them. Hence, on the theory that they were foreclosed from presenting a defense, reversal is not mandated here.
Finally, it is inconceivable that, had the jury been instructed on the lesser related offense of assault with a deadly weapon, they would have found Diaz and Aguirre only guilty of assault. Diaz and Aguirre participated in the chase of Redd and actively participated in beating him up. One of them (possibly Diaz) pulled out a knife and stabbed Redd 13 times. Diaz, Aguirre, and Cuellar were all CVL gang members and did not stop the person from stabbing Redd. The evidence overwhelmingly supported that Diaz and Aguirre were guilty of nothing less than second degree murder.
IV
DIAZ’S TESTIMONY PRESENTED TO CUELLAR’S JURY
Cuellar contends that the trial court committed reversible error when his separate jury was presented evidence of Diaz’s defense when Cuellar and the prosecution had already rested on his case.
A. Additional Factual Background
Prior to trial, the People filed a trial brief advising the trial court that it intended to introduce each of the defendants’ pretrial statements, and therefore multiple juries would likely be necessary under People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] (Aranda/Bruton).
Diaz initially filed a motion to sever his trial from that of his codefendants. Later, Diaz and Aguirre agreed to share one jury, for tactical reasons, and therefore Cuellar would have his own jury. The trial court was concerned about repeated references to Aguirre by Diaz in his pretrial interview, but both parties waived any Aranda/Bruton problems. The red jury tried Diaz and Aguirre. In addition to the testimony presented to both juries, they heard the pretrial statements made by both of them, as outlined, ante. The blue jury tried Cuellar. In addition to the testimony presented to both juries, they heard his pretrial statement and testimony by Becerra and Detective Fanchin regarding statements made by Cuellar prior to his arrest, as set forth, ante.
After the prosecution rested, Cuellar rested his case and asked that his jury be excused. Diaz indicated that he was going to testify; Cuellar did not want his jury to hear the testimony. The prosecution wanted Cuellar’s jury to hear Diaz’s testimony and claimed that the law supported that if one codefendant testifies, both juries should hear the evidence. The trial court agreed. Cuellar’s counsel responded that Cuellar’s case was over, and he had rested.
The trial court first noted that the only reason the trials had been severed was because of the Aranda/Bruton problem based on Cuellar implicating Diaz in his interview. The trial court then ruled, “Mr. Diaz did not mention Mr. Cuellar at all in his statement, but I have no idea what he’s gonna testify to today. But it doesn’t take a whole lot of guesswork to surmise that he may try to lay the blame on someone else, including Mr. Cuellar. But if he does so, he’s subject to cross-examination by Mr. Cuellar. [¶] I think the testimony comes in in front of both juries. That’s why they pay Appellate Court judges the big bucks, to educate us trial judges. I think I’m correct in this. I think the testimony comes in before both juries.”
Diaz testified as set forth, ante, in front of both the blue and red juries. The prosecution cross-examined Diaz as to when he was lying: in court or at the time of the police interview. The prosecution also noted Diaz had admitted that he had stabbed Redd in the leg during his pretrial interview.
Cuellar’s counsel also conducted cross-examination of Diaz. Diaz admitted that he found out when Cuellar was arrested, which was after Diaz’s police interview, that Cuellar was blaming Diaz for committing the stabbing. Diaz claimed he was “[n]ot really” pointing the finger at Cuellar because Cuellar had implicated him as the one who stabbed Redd; however, he admitted it was part of the reason.
Cuellar’s jury did not hear Diaz’s pretrial statement, and counsel for Cuellar did not request that he be allowed to introduce the statement.
B. Analysis
Both parties recognize that there is no authority for the situation that occurred here, i.e., when a trial is conducted with separate juries, and one defendant rests, whether the codefendant’s testimony can nonetheless be admitted against the defendant at the request of the prosecution.
There is long-standing authority for the proposition that “no denial of a fair trial results from the mere fact that two defendants who are jointly tried have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution.” (People v. Turner (1984) 37 Cal.3d 302, 313.) “A codefendant’s extrajudicial statement implicating another defendant need not be excluded when the codefendant testifies and is available for cross-examination. [Citations.]” (People v. Hoyos (2007) 41 Cal.4th 872, 896, fn. omitted.)
Here, had there not been the Aranda/Bruton problem prior to trial, the trial court could have in fact tried Diaz, Aguirre, and Cuellar together even if they were going to testify against each other. Further, as long as Diaz was available for cross-examination, his pretrial statement and testimony could be admitted. However, this presumes a joint trial. In the instant case, the trial court did empanel separate juries, and Cuellar had rested his case prior to Diaz choosing to testify. Hence, the prosecution had completed its case-in-chief and had nothing to rebut due to Cuellar choosing not to present any evidence.
Conceivably, the prosecution could have sought to reopen its case to present Diaz’s testimony. “When the case of the People is closed and the defense is in, the remainder of the People’s case is limited to evidence in rebuttal of that produced by the defense and should be so limited by the court, except where a proper showing is made for reopening the case in chief for the receipt of further evidence.” (People v. Rodriguez (1943) 58 Cal.App.2d 415, 419.)
However, we have found no authority for the proposition that the prosecution may reopen its case-in-chief in order for the codefendant’s defense to be presented to the defendant’s jury when separate juries have been impaneled. (But see § 1099 [codefendant can be dismissed from joint indictment in order to be called by the prosecution as a witness against defendant].) Furthermore, the prosecutor in this case never requested to reopen his case, so the trial court was foreclosed from even considering whether such presentation of evidence was proper. We decline to decide this issue because we conclude that if the trial court erroneously permitted Diaz to testify in front of Cuellar’s jury, such error was harmless beyond a reasonable doubt.
Since we assume without deciding that the admission of Diaz’s testimony against Cuellar was error, we will assume such error implicates Cuellar’s federal constitutional rights to due process, a fair trial, and to present a defense and therefore will evaluate the error under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) Applying that standard, we believe that the blue jury’s verdict of premeditated and deliberate first degree murder was supported by the evidence and that Diaz’s testimony was not so prejudicial as to warrant reversal.
We note that the People analyze prejudice under the theory that there was Aranda/Bruton error. However, that is not Cuellar’s claim of error. His claim is based on the violation of his due process rights and right to present a defense due to the trial court allowing Diaz’s incriminating testimony to be presented to his jury after he had rested his case.
In order to find first degree murder in the instant case, the jury had to find that either Cuellar committed premeditated and deliberate first degree murder or aided and abetted first degree murder. In order to find premeditation and deliberation, the jury could consider, but not exclusively, the factors in People v. Anderson (1968) 70 Cal.2d 15, which include planning activity, motive, and manner of killing. (Id. at pp. 26-27.)
It was undisputed that Cuellar was involved in chasing and beating up Redd. Cuellar admitted in his pretrial statement that he was involved in the altercation. Cuellar also provided a motive in that Redd had been with a group of Black youth who had shot at him the week prior. Although Cuellar initially denied that he knew any of them had a knife, he eventually admitted he saw Diaz with the knife and that Aguirre told Diaz to “stick him.” At no time did Cuellar claim that he did not agree with the decision to stab Redd. Cuellar remained at the scene while Redd was stabbed 13 times. The method and severity of Redd’s attack is sufficient by itself to support the blue jury’s finding that Cuellar aided and abetted premeditated and deliberate murder. (People v. Bolden (2002) 29 Cal.4th 515, 561.)
Furthermore, Diaz’s testimony was not overly prejudicial. Although Diaz implicated Cuellar as the person who stabbed Redd, Cuellar’s jury was well aware that prior to trial Diaz had admitted to stabbing Redd. Further, the fact that the blue jury did not hear Diaz’s pretrial statement was not prejudicial. The jury was aware that Diaz had admitted to the stabbing during that interview and was now blaming Cuellar. Hearing Diaz’s statement would not have added anything to the determination of Diaz’s credibility. Diaz also admitted he was pointing the finger at Cuellar because Cuellar had done the same to him. Essentially, the blue jury was left with testimony by Cuellar that Diaz stabbed Redd and that Diaz accused Cuellar of stabbing Redd.
In assessing the above credibility determination, the jury was instructed that Diaz was an accomplice as a matter of law, as will be addressed more fully, post. Based on that instruction, the jury had to determine, before finding that Diaz’s testimony was true, that there was other independent, corroborating evidence that supported his testimony. Cuellar’s counsel argued in closing that, based on this instruction, Diaz’s testimony should be viewed with distrust. The jury therefore had to find independent evidence supporting Diaz’s theory of how the events unfolded. The testimony of Diaz (whose credibility was certainly questionable and whose testimony the jury was required to find was corroborated by other independent evidence) was not overly compelling.
Moreover, the prosecution did not rely upon Diaz’s in-court testimony in arguing Cuellar’s guilt to the jury. The prosecutor maintained that Diaz was the one who initially had the knife and stabbed Redd. The prosecutor also discredited Diaz’s testimony. The prosecution argued that Cuellar was guilty on an aiding and abetting theory, not that he was the one who stabbed Redd.
Cuellar claims that the admission of Diaz’s testimony was undoubtedly prejudicial relying on the fact that he was convicted of premeditated and deliberate first degree murder and the gang special circumstance, while Diaz and Aguirre were only convicted of second degree murder. (DAOB 37-38.} However, these verdicts were reached by two different juries. We believe that the evidence before both juries supported premeditated and deliberate first degree murder convictions. The fact that the red jury concluded that Diaz and Aguirre were only guilty of second degree murder is not inconsistent with the blue jury’s determination that Cuellar was guilty of premeditated and deliberate first degree murder. In fact, the trial court at sentencing noted that it was not sure what testimony the red jury was listening to; it felt “this was as clear-cut an example of first-degree murder as I have ever seen.” Further, the trial court refused to reduce Cuellar’s sentence to second degree murder to conform with the other two sentences based on the fact it believed that the red jury had gotten it wrong.
Based on the foregoing, we find that, although the trial court may have committed error by allowing Diaz to testify in front of Cuellar’s jury, an issue we need not decide under the facts of this case, such error was harmless beyond a reasonable doubt.
V
ADMISSION OF DIAZ’S CONFESSION
Diaz contends that hisrights against self-incrimination were violated when he unequivocally advised the officers that he no longer wanted to speak with them after he had waived his Miranda rights. He also claims that his confession was involuntary and coerced.
A. Additional Factual Background
Diaz brought a motion to suppress his pretrial statement prior to trial on the grounds that his statement was involuntarily made. The trial court reviewed Diaz’s videotaped interview prior to ruling on the motion to suppress.
Pursuant to the videotape and accompanying transcript, Diaz initially waived his rights and agreed to talk to the detectives. He initially denied any involvement in the beating and stabbing of Redd but admitted he thought he had been brought in because of the incident. Detective Bloomfield and another detective then told Diaz they had found his tennis shoes, and the shoes had blood on them; they showed him the shoes. Diaz claimed it was paint.
Diaz was advised that this was his one and only chance to give his side of the story. There was a long period of silence. Without changing his demeanor or moving in his chair, Diaz says, “That’s all I gotta say.” Detective Bloomfield then told Diaz that he did not “seem like a cold-blooded ruthless killer” and asked him whether Redd had done something to him and the others to cause the fight. There was another long pause. Diaz then asked the detectives, “What was the warrant for?” This related to the detectives telling him earlier that they had searched his house.
Thereafter, after further questioning, which involved the frequent use of profanity by the detectives, Diaz started to question where the blood on his shoes may have come from and where they got pictures of him for a supposed lineup. Diaz continued to deny his involvement. After being asked again whether he remembered hitting Redd, Diaz finally stated that Redd “dogged” him, that he did not take that “shit,” and that they beat up Redd. Diaz still maintained he did not know Redd had been stabbed.
Diaz at one point asked what he was going to be charged with and was told that he was facing a murder charge. He responded, “So.” The detectives again asked Diaz how many times that he stabbed Redd. Diaz responded, “Why do you guys think that I stabbed him?” and started laughing. The detectives became more aggressive, advising him that he was acting like he was happy this happened and that he did not care. Diaz responded, “Yeah, it’s fucked up. He died, but what can you do?” Diaz continued to deny he stabbed Redd. He also refused to give up Cuellar’s name.
Thereafter, Detective Anderson became angry with Diaz, claiming that he was not taking this seriously. He told Diaz that he could tell the news media that Diaz was laughing during the interview. He also told Diaz that his mother did not raise him to do this and that she was going to be devastated. Diaz then told the detectives that he had stabbed Redd in the leg and then threw the knife on the ground. He did not know if anyone picked it up and used it. He still refused to name Cuellar.
After the detectives walked out of the room at the end of the interview, Diaz began to move around in his seat and make gang signs. He also made an obscene hand gesture toward the two-way mirror.
In ruling on Diaz’s suppression motion, the trial court found by a preponderance of the evidence that Diaz was advised of his constitutional rights, understood them, and voluntarily waived them. The trial noted that Diaz had said, “‘That’s all I go to say,’” one time toward the end of the interview and then said, “‘That’s it. I’m done.’” The trial court believed that these statements were made after Diaz had already made incriminating statements. It concluded that this was not a statement that could be understood unequivocally to mean that he wanted to stop the interview. This was further evidenced by the fact that Diaz continued to talk to the police after making these statements.
The trial court also concluded that the detectives did not threaten Diaz. The trial court noted that for 90 percent of the interview, Diaz denied any involvement. He gave the impression that he was somewhat sophisticated and “not at all uncomfortable” in talking to the police. The police did raise their voices and use profanity.
The detectives’ references to the fact that the media would be told that he was laughing about the charges and that his mother would see it did not in any way intimidate Diaz into making any incriminating statements. The trial court found (by a preponderance of the evidence) that the statements made by Diaz were freely and voluntarily given.
B. Diaz Did Not Invoke His Right to Remain Silent
Diaz claims that his statement to the detectives, “That’s all I gotta say,” was an unambiguous invocation of his right to remain silent and that the interview should have been terminated at this point. He further argues that the trial court erred when it concluded that Diaz had made incriminating statements prior to requesting that the interview stop.
Even if a defendant voluntarily has waived his rights to remain silent and to have counsel present, the defendant may revoke the waiver during the interview. If such a revocation is made, “all further attempts at police interrogation should cease.” (People v. Jennings (1988) 46 Cal.3d 963, 977.) In addressing whether a defendant invoked his right to speak to an attorney after voluntarily waiving his Miranda rights, the United States Supreme Court stated in Davis v. United States (1994) 512 U.S. 452 [114 S.Ct. 2350, 129 L.Ed.2d 362], “But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. [Citation.]” (Id. at p. 459.) “[T]he suspect must unambiguously request counsel.” (Ibid.) In other words, a defendant must “articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” (Ibid.) The court also concluded, “Unless the suspect actually requests an attorney, questioning may continue.” (Id. at p. 462; see also People v. Stitely (2005) 35 Cal.4th 514, 535.) This reasoning equally applies to a defendant’s invocation of the right to remain silent.
A defendant has not invoked his or her right to silence when the defendant’s statements were merely expressions of passing frustration or animosity toward the officers or amounted only to a refusal to discuss a particular subject covered by the questioning. (People v. Jennings, supra, 43 Cal.3d at p. 978; People v. Silva (1988) 45 Cal.3d 604, 629-630.)
On appeal, we review independently the trial court’s legal determinations of whether a defendant’s subsequent statements, made after knowingly, intelligently, and voluntarily waiving his Miranda rights, constituted an invocation of his right to silence. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1125.)
Here, based on the context of Diaz’s statement “That’s all I gotta say,” a reasonable officer in Detective Bloomfield’s position would have concluded that Diaz’s remark was expressed frustration with the questioning and that the officer need not end the interview. Furthermore, this statement was made in relation to questioning about blood found on his shoes; it was reasonable to infer Diaz was only referring to questioning on the shoes. Diaz did not change his demeanor or move to get up when he made the statement. This is especially telling in that when Diaz finally stated that he was done talking at the end of the interview, he immediately got up. This statement was certainly ambiguous and did not require the detectives to end their questioning.
Moreover, after making this statement, Diaz was asked several questions by Detective Bloomfield and the other detective. There was long pause. After this pause, rather than reiterate that he was done talking, Diaz asked a question of the officers regarding the warrant on his house. The detectives could reasonably determine that he was willing to talk to them based on his reinitiation of conversation with them, even had they questioned whether his statement, “That’s all I gotta say,” was an invocation of his right to remain silent.
Based on the foregoing, Diaz did not make a statement that unambiguously and unequivocally would advise the detectives that he no longer wanted to speak with them. The detectives had no obligation to terminate the interview. Accordingly, the trial court properly found that the statement was not obtained in violation of Diaz’s Miranda rights.
C. Diaz’s Confession was Voluntarily Made
“An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution [citation] as well as article I, sections 7 and 15 of the California Constitution [citation].” (People v. Weaver (2001) 26 Cal.4th 876, 920.) Where a defendant claims his confession was involuntary, the People have the burden to show, by a preponderance of the evidence, that the statements were made voluntarily. (People v. Jones (1998) 17 Cal.4th 279, 296.) Under both state and federal law, the courts apply a totality of circumstances test to determine voluntariness. (People v. Haley (2004) 34 Cal.4th 283, 298; People v. Bradford (1997) 14 Cal.4th 1005, 1041.)
“A finding of coercive police activity is a prerequisite for a finding that a confession was involuntary under the due process clauses of the federal or state Constitution. [Citations.]” (People v. Clark (1993) 5 Cal.4th 950, 988.) Police are prohibited from using only those psychological ploys that, 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 p. 298, quoting People v. Ray (1996) 13 Cal.4th 313, 340.)
“In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (People v. Massie (1998) 19 Cal.4th 550, 576, quoting People v. Memro (1995) 11 Cal.4th 786, 827, quoting Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225 [93 S.Ct. 2041, 36 L.Ed.2d 854]; see also People v. Holloway (2004) 33 Cal.4th 96, 114.)
On appeal, “‘the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to voluntariness of the confession is subject to independent review.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 471.)
Although Diaz was only 16 at the time of the crime, he was clearly savvy. He talked back to the officers numerous times, turning the tables on the officers by asking his own questions. He even laughed at one point in the interview. The officers remained mostly calm throughout the interview. At times, the detectives raised their voices, but at no time did such statements by the detectives elicit any incriminating statements. All of the ploys used by the detectives — showing Diaz bloody shoes, telling him that he had been identified from a lineup, and even telling him that his mother was going to be devastated — did not induce Diaz into giving up Cuellar, and he only admitted stabbing Redd in the leg. Most telling that Diaz was not coerced into making his statement was the fact that at the end of the interview, he was throwing gang signs and “flipping off” the police through the two-way mirror. Clearly, Diaz was not intimidated by the detectives and only told them things that he thought would help him or that were based on gang bravado.
Based on the totality of the circumstances, Diaz’s statement was voluntarily made.
VI
ACCOMPLICE INSTRUCTION
Diaz contends that the trial court improperly instructed the red jury that he was an accomplice as a matter of law.
A. Additional Factual Background
Just prior to the instructions being given, Cuellar’s counsel requested that his jury be given an instruction on accomplice testimony as a matter of law pursuant to Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 335. Aguirre’s counsel joined in the request. There was no objection from Diaz’s counsel.
The jury trying Diaz and Aguirre were instructed with a modified version of CALCRIM No. 335 as follows: “An accomplice is a person who is subject to prosecution for the identical crime charged against the co-defendants. Someone is subject to prosecution if he personally committed the crime or if: [¶] 1. He knew of the criminal purpose of the person who committed the crime; [¶] 2. He intended to, and did in fact aid, facilitate, promote, encourage, or instigate the commission of the crime. [¶] If the crime of murder was committed, then Joey Diaz was an accomplice to that crime. [¶] You may not convict defendant Aguirre of murder or a lesser offense based on the testimony of an accomplice alone. You may use the testimony of an accomplice to convict the defendant only if: [¶] 1. The accomplice’s testimony is supported by other evidence which you believe; [¶] 2. That supporting evidence is independent of the accomplice’s testimony; and [¶] 3. The supporting evidence tends to connect the defendant to the commission of the crime. [¶] Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact about which the witness testified. [¶] On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.”
The same instruction was given to Cuellar’s jury regarding conviction of defendant Cuellar.
B. Analysis
Initially, although not raised by the People, we find that Diaz has waived this claim on appeal. At the time that Cuellar requested the instruction and Aguirre joined in the request, Diaz made no objection. Since this was not a sua sponte instruction, Diaz could have objected to it being given. (See People v. Box (2000) 23 Cal.4th 1153, 1209 [when an accomplice is a codefendant, an accomplice instruction must be given when requested by a defendant].) Had Diaz objected, the trial court may have been persuaded to instruct that it was up to the jury to determine whether he was an accomplice. (See CALCRIM No. 334.) By failing to object to the accomplice as a matter of law instruction in the lower court, Diaz has waived his claim on appeal. Regardless, such instruction was properly given.
An accomplice is defined in section 1111 as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” This provision “serves to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives.” (People v. Davis (2005) 36 Cal.4th 510, 547.) If the evidence establishes as a matter of law that a witness was an accomplice, the jury must be instructed to view the accomplice’s testimony with distrust and that the testimony must be corroborated. (People v. Zapien (1993) 4 Cal.4th 929, 982.)
This case is similar to that of People v. Alvarez (1996) 14 Cal.4th 155. In that case, two defendants were tried together. Both testified and to some extent incriminated the other in the crime. The trial court instructed the jury that the defendants were accomplices as a matter of law, i.e., that each defendant was subject to prosecution for the identical offense and that each of their testimonies should be viewed with distrust. (Id. at pp. 217-218.)
On appeal, one of the defendants complained that he was prejudiced by the instruction because the jury viewed his testimony with distrust. The California Supreme Court concluded that the trial court properly instructed the jury with the accomplice as a matter of law instruction even though it may have infringed on his defense, because when he chose to testify such instruction was properly given in favor of the codefendant. (People v. Alvarez, supra, 14 Cal.4th at p. 218.) The California Supreme Court concluded, “Under the law, a defendant is surely equal to all other witnesses. But, under the same law, he is superior to none.” (Id. at p. 219, fn. omitted.)
Similarly here, Diaz and Aguirre were tried in front of the same jury, a decision agreed upon by Diaz for tactical reasons. Aguirre was entitled (after Diaz testified, and indicated that Aguirre was present when the stabbing occurred) to have the jury instructed that Diaz’s testimony had to be corroborated. Diaz certainly qualified as an accomplice, as he was equally culpable in Redd’s murder. (§ 1111.) Diaz was no more superior to any other witness, and the trial court had the authority to give such instruction for Aguirre’s benefit.
Since we conclude that the trial court was obligated to so instruct the jury once Diaz chose to testify, we do not address his claim of prejudice. Diaz chose to be tried with Aguirre for tactical reasons, i.e., to place the blame on Cuellar. Once Diaz made the decision to testify, he was subject to the trial court’s determination that Aguirre was entitled to instructions that he was an accomplice as a matter of law. (People v. Alvarez, supra, 14 Cal.4th at p. 219.) Any resulting prejudice was of Diaz’s own doing, especially in light of the fact that he failed to object to the instruction. We cannot find that Diaz is entitled to reversal on this ground.
VII
DISPOSITION
The judgments are affirmed.
We concur: GAUT, J., MILLER, J.