Opinion
D049791
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM TERRELL TUCKER, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted William Terrell Tucker of one count of attempted first degree murder (Pen. Code, §§ 664 & 187, subd. (a)) and one count of assault with a deadly weapon (§ 245, subd. (a)(2)). The jury found true allegations that he personally used and intentionally discharged a handgun (§ 12022.53, subds. (a)(d)). Tucker admitted an allegation as to both counts that he committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to further criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1). He also admitted a prison prior allegation (§§ 667.5, subd. (b) & 668), a serious prior felony conviction allegation (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)), and one strike prior allegation (§§ 667, subds. (b)-(i), 668 & 1170.12).
All further statutory references are to the Penal Code.
At time of sentencing, the court on its own motion dismissed under section 1385 the prison prior allegation. The court sentenced Tucker to an indeterminate prison term of 15 years to life for the attempted murder count; a consecutive indeterminate term of 25 years to life for the section 12022.53, subdivision (d) gun use allegation; and a five-year consecutive determinate term for the prior serious felony conviction. The court stayed sentencing with respect to the street gang allegation (§ 186.22, subd. (b)(1)), the gun use allegations under subdivisions (a) through (c) of section 12022.53, and the assault with a deadly weapon count (§ 245, subd. (a)(2)).
Tucker contends (1) the evidence was insufficient to support the attempted first degree murder and assault convictions and gun use enhancement because the only evidence linking him to the shooting was the victims "hunch" or "common sense" suggesting Tucker was the shooter; (2) even if he was the shooter, the evidence was insufficient to support the attempted first degree murder conviction; (3) the court erred in finding an implied waiver of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 479 (Miranda) following an abbreviated Miranda advisement; and (4) the failure of the prosecutor to offer, or the court to grant, use immunity to Henry Scott (Scott), a defense witness who invoked his Fifth Amendment privilege against compelled self-incrimination at trial, violated Tuckers rights to present a defense and to have a fair trial. We affirm the judgment.
FACTUAL BACKGROUND
A. The Peoples Case
At around 7:46 p.m. on October 3, 2005, the shooting victim in this case, Jerry Wright, Jr. (Wright), was sitting on the stairs near his apartment in the Bay Vista Apartments complex on Logan Avenue in San Diego. The Lincoln Park street gang claimed Lincoln Park—the area where the Bay Vista Apartments are located in southeastern San Diego—as their territory, and many members of that gang lived in that apartment complex. Although the Lincoln Park and OFarrell gangs were both affiliated with the Bloods, they had been rivals for over a decade.
A homicide detective who had been assigned to the Street Gang Unit of the San Diego Police Department testified to the boundaries of Lincoln Park: "Lincoln Park is actually located in the south eastern part of San Diego, and the[] boundaries would be to the north, . . . Imperial Avenue, to the west would be 45th Street, to the east would be 58th Street, and to the south would be Division[,] which is the [border] of National City . . . ."
Although Wright did not claim membership in any street gang, his brother had been a member of the OFarrell Park gang. Tucker is a documented member of the Lincoln Park gang, and his gang moniker was "Finny Boy."
The OFarrell Park gang is also known as the OFerro Park gang.
During the evening in question, as he was sitting on the stairs, Wright saw a group of seven or eight males standing nearby, and he heard someone in the group say something about "cleaning up the set." In the area where Wright lived, gangs were sometimes referred to as "sets," and Wright understood the phrase "cleaning up the set" to mean cleaning up Lincoln Park.
Tucker was one of the males in the group. Wright recognized him because he had seen Tucker near the apartment complex on previous occasions and had also seen him at the complex earlier in the day. Wright went to the basketball courts at the apartment complex. After he saw the group of males disburse, Wright decided to go back home.
As he was walking up the stairs leading to his apartment, Tucker approached him quickly from a dark "backside" area near the stairs and asked Wright for a "swisher," which is a cigar. Tucker was wearing a black hooded sweatshirt and a black beanie on his head.
As he continued to walk up the stairs, Wright heard a noise and saw a male he knew as "Hankie"—identified at trial as Scott by Scotts girlfriend—who was falling and stumbling, and making noise because he hit a gate. Scott was wearing a black hooded sweatshirt and a green bandanna over the lower portion of his face, "Ninja style" with just the eyes showing. Scott, whom Wright had also seen on prior occasions, was one of the males Wright had seen in the group earlier that evening. Scott was stooped over behind Tucker and making "trembling" noises. He had shot himself in the upper buttocks and down through his front left leg in the groin area.
Wright, who was on the fifth or sixth stair, jumped down off the stairs and started to run because what was happening was "too much commotion" for him, and he felt that Tucker was "trying to get" him. Wright did not look at Tucker as he turned to run. As Wright was running in front of Tucker, who was at most a few steps away, Wright heard a "pow" noise and a bullet hit him in the back. As he continued to run a second bullet hit him in the right arm. Wright ran through the basketball courts and out to the street where he passed out. At the hospital, Wright told his father that "Finny Boy"—Tucker—shot him. At trial Wright denied telling San Diego Police Department Detective Johnny Keene that he saw Tucker pointing a gun at him.
Detective Richard King, a City of San Diego police officer, testified that on October 3, 2005, he was on duty patrolling near the Bay Vista Apartments. He received a radio call reporting that shots had been fired at around 8:10 p.m. While en route to the Bay Vista Apartments he received information on the radio that the shooting victim could not be found. Because he had worked in the area for a long time, he knew that shooting victims often went to Paradise Hospital. Detective King drove to the hospital and learned that the shooting victim, Wright, had arrived moments before he arrived.
Detective King contacted Wright, who was on a gurney, conscious, and wearing an oxygen mask. Wright told him that he was shot by two men near his apartment in the Bay Vista Apartments. He said he had been going toward his apartment when a black male asked him for a swisher. Wright said he looked at the male and then saw another male come up. Wright saw that each male had a gun in his waistband, and they were pulling out the guns. He turned to run, heard a shot, felt pain in his back and in his arm, and ran out toward Logan Avenue. Wright told Detective King he thought he had previously seen them around the complex and he would recognize them if he saw them again.
Detective Keene, who was assigned to the Street Gang Unit of the San Diego Police Department, testified that he interviewed Wright at the hospital on October 4, 2005, and he was accompanied by another detective. Wright was in some pain, but resting comfortably, and was alert and able to speak without slurring his words. Wright told Detective Keene that on October 3, as he was sitting on the steps that lead up to his apartment door, he saw a group of Lincoln Park gang members and overhead them talking about needing to clean up Lincoln and make it more Lincoln. Wright said he thought to himself that they were talking about him, but he did not think any drastic steps would be taken.
Wright told Detective Keene that after he went to the basketball courts, when he was six or seven steps up the stairs to his apartment, a male came toward him from under the stairs and asked him for a swisher. Wright then saw a second male coming toward him from behind the first male, and the second male was wearing a green bandanna over the lower portion of his face. Wright realized something was about to happen and, rather than run up the stairs and bring problems to his mothers apartment, he turned and ran down the stairs in an attempt to get away. As he did so, he heard gun shots and felt pain in both his back and right arm, ran through the basketball court and collapsed on Logan Avenue.
Wright also told Detective Keene that when he first saw the second male wearing the bandanna, he looked back at the first male and saw the first male raising a gun in his direction. This was the moment when he turned and ran. Before he interviewed Wright, Detective Keene was informed that the shooters nickname was Finny Boy, but he did not discuss with Wright the name of any person suspected of being involved in the shooting.
Detective Keene brought two separate photo line-ups to the hospital to show to Wright. The first photo line-up contained a picture of Tucker. After Wright gave his statement, Detective Keene gave a photo line-up admonishment to Wright and then showed him the first photo line-up. Wright viewed the line-up, pointed to the photograph of Tucker, and said that he had seen him around the Bay Vista Apartments, and that he (Tucker) could have been involved in the shooting.
Detective Keene then showed Wright the second photo line-up, in which there was a photograph of Scott. Wright viewed the line-up, pointed to the photograph of Scott, and said that he knew Scott, that Scott was a Lincoln Park gang member, and that he had seen Scott around the Bay Vista Apartments. Wright also told Detective Keene that the second suspect had a green bandanna covering the lower portion of his face, and that Scott could be the second suspect, but he could not be sure.
Detective Keene returned to the hospital a couple of days later on October 6 to interview Wright again because Wright appeared to go right to the photographs of the two people that Keene thought were the suspects, and he wanted to ask Wright whether he was afraid. Wright told Detective Keene he did fear retaliation. Wright repeated his account of what happened.
B. The Defense
Tuckers grandfather, Tinny Tucker, testified he was at home "kind of late" on a Monday night, and Tucker was with him. He stated he thought it was on October 3, 2005, but "maybe its another date." He helped Tucker work on Tuckers car. Later that night he and Tucker went into the house and Tucker watched a football game on television. He had never seen Tucker wear a black "hoodie" sweatshirt.
Tuckers brother, Leonard Ingram, stated that on October 3, 2005, Tucker was at home watching a football game on television. He saw Tucker leave in the evening with Jeanine Hamilton.
Tuckers friend, Jeanine Hamilton, stated she and Tucker left his house and went to Wal-Mart at around 9:30 p.m. She identified herself and Tucker in a Wal-Mart surveillance video that was dated October 3, 2005, and time-stamped 9:30 p.m. A receipt from Wal-Mart indicated they left the store at around 9:52 p.m.
Tuckers grandmother, Elizabeth Sabathia, testified that Tucker called her on October 3, 2005, at around 8:30 p.m. or earlier.
DISCUSSION
I.
SUFFICIENCY OF THE EVIDENCE: SHOOTING
Tucker first contends the evidence was insufficient to support the attempted first degree murder and assault convictions and the gun use enhancement because the only evidence linking him to the shooting was the victims "hunch" or "common sense" suggesting Tucker was the shooter. As we shall discuss, Tucker ignores the overwhelming body of direct and circumstantial evidence that supports his convictions and the enhancement, and he invites this court to improperly weigh conflicting evidence and reevaluate the credibility of witnesses.
A. Applicable Legal Principles
In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319, italics omitted.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).)
The same standard of review applies in cases in which the People mainly rely on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. "If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.] [Citation.] "Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." [Citation.]" (Id. at pp. 792-793.)
A jury may reasonably rely on the testimony of a single witness, unless the testimony is physically impossible or patently false. (Evid. Code, § 411; People v. Cudjo (1993) 6 Cal.4th 585, 608.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
B. Analysis
Tucker maintains the evidence was insufficient to prove he fired the shots that struck Wright in the back and arm. He relies on Wrights trial testimony that he did not look at Tucker when he (Wright) turned around to run away, that he did not know whether Tucker had anything in his hand, and that he did not tell Detective Keene that Tucker had pointed a gun at him. Tucker also relies on Wrights testimony in response to the prosecutors request on redirect examination for an explanation of the basis of Wrights belief that Tucker shot him. Wright testified that the basis of his belief was "`[c]ommon sense. I got a lot of it and thats what it is." Tucker also asserts that no other witness claimed to have seen him with a gun, and according to Wrights testimony "it would have been virtually impossible for [Tucker] to have run down the stairs, receive the gun from Scott and use it to shoot Wright in the time frame he described."
The record, however, contains substantial evidence from which a reasonable trier of fact could find beyond a reasonable doubt that Tucker was the shooter, and we reject Tuckers contention that the only evidence linking him to the shooting was Wrights hunch or "common sense" that Tucker was the shooter. Wright testified that at around 7:46 p.m. on the night of the shooting, as he was sitting on the stairs near his apartment, he saw a group of males standing nearby and heard someone in the group say something about "cleaning up the set." Wright understood the phrase "cleaning up the set" to mean cleaning up Lincoln Park. Wright indicated that the Lincoln Park street gang claimed Lincoln Park—the area in which the apartment complex was located—as their territory. He also testified that his brother had been a member of the rival OFarrell Park gang.
The defense stipulated that Tucker was a documented member of the Lincoln Park gang. Scotts girlfriend and Detective Keene both testified that Tuckers gang moniker was "Finny Boy." Wright testified he recognized both Tucker and Scott among the males in the group who discussed "cleaning up the set."
Detective Kings testimony established that the shooting occurred at around 8:10 p.m. on October 3, 2005. Wright testified that as he was walking up the stairs leading to his apartment, Tucker approached him quickly from a dark area near the stairs and asked Wright for a swisher (cigar). Wright then heard a noise and saw a male he knew as "Hankie," who was falling and stumbling, and making noise because he hit a gate. Scotts girlfriend testified that "Hankie" is Scotts nickname. Wright saw that Scott was stooped over behind Tucker. It is undisputed that Scott had just shot himself in the upper buttocks.
Showing his familiarity with Scott, Wright testified that Scott was also known as "Little Mikie Dred," "Baby Rico" and other nicknames.
Wright indicated he immediately jumped down off the stairs and started to run because he felt Tucker was trying to "get" him. Wright also testified that as he ran in front of Tucker, who was only a few steps away, he heard a "pow" noise and felt a bullet hit him in the back. A second bullet hit him in the right arm as he continued to run.
Wright testified he told his father at the hospital that "Finny Boy"—Tucker—shot him. Officer John Cortez corroborated this testimony, stating that as he was standing at the crime scene a little after midnight, Wrights father approached him and said that he had just returned from seeing his son at the hospital, and that his son told him Finny Boy was the one who shot him.
Tuckers contention that it would have been impossible for him "to have run down the stairs, receive the gun from Scott and use it to shoot Wright in the time frame he described" is unavailing. There was no evidence to show that Tucker was on the stairs, and substantial evidence shows that he carried a gun that he used to shoot Wright. Specifically, Detective King testified that when he contacted Wright at the hospital, Wright told him that he was shot near his apartment in the Bay Vista Apartments. Wright told the detective that he had been going toward his apartment when a black male asked him for a swisher. Wright said he looked at that male and then saw another male come up. Wright also told the detective that he turned to run when he saw each male pull a gun from his waistband, and that he heard a shot, felt pain in his back and in his arm, and ran out toward Logan Avenue.
Detective Keenes testimony also shows that Tucker was armed with a gun. Detective Keene indicated that during his first interview with Wright at the hospital, Wright told him that when he first saw the second male who was wearing the bandanna (Scott), he looked back at the first male (Tucker) and saw that he was raising a gun in his direction.
Detective Keenes testimony does indicate that when he presented to Wright during that first hospital interview the photographic line-up containing a photograph of Tucker, Wright pointed to Tuckers photograph but did not identify Tucker as the shooter. Wright told Detective Keene that that he had seen the man around the Bay Vista Apartments, and that he could have been involved in the shooting. Detective Keene, however, stated that he returned to the hospital on October 6 to interview Wright again because he wanted to ask Wright whether he was afraid. Specifically, Detective Keene testified that he felt Wright knew who had shot him but he was not identifying anyone because of fear. During the second interview, Wright told Detective Keene he did fear retaliation because his family grew up in a rival gang area, his brother and father had associated with a gang that was a rival to the Lincoln Park gang, and he feared for the safety of his mother, who lived in the Bay Vista Apartments where the shooting took place.
Wrights father testified that gangs frequently retaliate against people who "come forward." Wrights mother testified that she moved away from the Bay Vista Apartments because she received a phone call from a male who threatened that "if these guys get sentenced or whatever something was going to happen to [her] and [her] husband." Detective King testified, based on his experience as an officer in high-crime gang areas, that in gang areas witnesses commonly describe a crime but then stop short of telling the police who did it because of fear of retaliation. San Diego Police Department Detective Bruce Pendleton also testified, based on his more than three years of experience with the street gang unit, that it is really difficult to investigate a gang-related case because "witnesses are reluctant to come into court to get on the stand and point out a person who might be a member of the gang because theyre afraid of what the . . . gang will do to them or their family members."
In sum, the jury did hear Wright testify that he did not know whether Tucker had anything in his hand when he (Wright) turned to run immediately prior to the shooting, and that he did not tell Detective Keene that Tucker had pointed a gun at him. The jury also heard Wrights father testify that when he went to the hospital to see his son, he did not speak with Wright, and he did not tell Officer Cortez that Wright told him Finny Boy was the person who shot him. However, the jury heard Wrights testimony indicating that Tucker, who the defense stipulated was a member of the Lincoln Park gang, and Scott were in the group of males whom he overheard discussing something about "cleaning up the set," which to him meant cleaning up Lincoln Park. The jury also heard Wrights father and mother, Detective King and Detective Pendleton testify about the reluctance of witnesses in gang-related cases to identify those who have committed crimes because of their fear of retaliation. The jury heard Officer Cortezs testimony that Wrights father told him at the crime scene that Wright had told him at the hospital that Finny Boy—Tucker—was the person who shot him. The jury also heard both Detective Kings testimony showing that Wright told him at the hospital that each of the two men who approached him at the Bay Vista Apartments pulled a gun from his waistband; and Detective Keenes testimony showing that Wright told him at the hospital that the first male he saw—Tucker—raised a gun in his direction. In addition, the jury heard testimony that Scott had shot himself in the buttocks and was in a stooped position immediately before Wright was shot; that Wright was only a few steps away from Tucker when he was shot; and that Wright, who had selected the photographs of both Tucker and Scott from the photographic line-ups, later admitted to Detective King that he feared retaliation.
From the foregoing evidence, we conclude that a reasonable trier of fact could find beyond a reasonable doubt that Tucker was supposed to distract Wright while Scott shot him, but that Scott had shot himself as he was pulling the gun out of his pants and, while Scott was stooped over in pain, Tucker took over and fired several shots at Wright as Wright was running away. The jury heard and weighed the conflicting evidence, and made a determination about the credibility of the witnesses. Tucker ignores or minimizes the probative value of much of the foregoing body of direct and circumstantial evidence that supports his convictions and the enhancement, and he invites this court to weigh conflicting evidence and reevaluate the credibility of witnesses. This we cannot and will not do. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Jones, supra, 51 Cal.3d at p. 314.)
II.
SUFFICIENCY OF THE EVIDENCE: FIRST DEGREE MURDER
Tucker also contends that even if he was the shooter, the evidence was insufficient to support his attempted first degree murder conviction. We reject this contention.
A. Applicable Legal Principles
"An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 12a; see also People v. Swain (1996) 12 Cal.4th 593, 604-605.)
Section 187, subdivision (a) provides: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." Section 189 provides in part: "All murder which is perpetrated by means of . . . willful, deliberate, and premeditated killing . . . is murder of the first degree." That section also provides that "[t]o prove the killing was deliberate and premeditated, it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act."
"In order to prove an attempted murder charge, there must be sufficient evidence of the intent to commit the murder plus a direct but ineffectual act toward its commission. [Citation.] Although malice may be express or implied with respect to a charge of murder, implied malice is an insufficient basis upon which to sustain a charge of attempted murder because specific intent is a requisite element of such a charge. [Citation.] Thus, to sustain a charge of attempted murder, the evidence must demonstrate a deliberate intention unlawfully to kill a fellow human being. [Citation.]" (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
"There is rarely direct evidence of a defendants intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendants actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . . [Citation.]" (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.)
"Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation. [T]he test on appeal is whether a rational trier of fact could have found premeditation and deliberation beyond a reasonable doubt based upon the evidence presented. The three categories of evidence for a reviewing court to consider with respect to premeditation and deliberation are: (1) prior planning activity; (2) motive; and (3) the manner of killing. The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." [Citations.]" (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223-1224, fns. omitted.)
B. Analysis
1. Intent to kill
We reject Tuckers assertion that the prosecution failed to establish by any credible evidence that he had the specific intent to kill Wright. The record contains substantial evidence from which a rational trier of fact could find beyond a reasonable doubt that Tucker intended to kill Wright. As already discussed, substantial evidence shows that he armed himself with a handgun when he went with Scott to the Bay Vista Apartments. Detective Keene testified that Wright told him he turned and ran when he saw the first male—who the record shows was Tucker—raise his gun in Wrights direction. Wright indicated at trial that he started to run because he felt Tucker was trying to "get" him. Wright also testified that as he ran in front of Tucker, who was only a few steps away, he heard a "pow" noise and felt a bullet hit him in the back. As already discussed, the act of firing a gun toward a victim at a close range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill. (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.)
2. Premeditation and deliberation
Tucker also contends the evidence was insufficient to establish premeditation and deliberation because, if he was the shooter, he "suddenly assumed that role immediately after" Scott "bungled it" and shot himself, and thus he (Tucker) could only be guilty of second degree murder because he "reacted in a matter of a few seconds to sudden and unexpected events." We reject these contentions.
Evidence of premeditation need not be overwhelming and "we need not be convinced beyond a reasonable doubt that defendant premeditated the murder[ ]. The relevant inquiry on appeal is whether "any rational trier of fact" could have been so persuaded. [Citations.]" (People v. Wharton (1991) 53 Cal.3d 522, 546.) "In this context, premeditated means considered beforehand, and deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. [Citations.] The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
In People v. Anderson (1968) 70 Cal.2d 15, the California Supreme Court "identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing. However, . . . "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate courts assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]" [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1249, italics added.)
Here, as to prior planning activity, Wright testified he recognized both Tucker and Scott among the males in the group who Wright had overheard discussing "cleaning up the set" before the shooting. As already discussed, the testimony of Detectives King and Keene shows that Wright told the officers that Tucker was carrying a gun when he first approached Wright near the stairs. A jury could also reasonably infer from Wrights testimony that Tucker and Scott had been waiting in the dark for him to return to his apartment. After Scott shot himself and was stooped over in pain, Tucker took matters into his own hands and fired several shots at Wright as Wright was running for his life. Tuckers conduct shows he reflected before he acted.
There was also evidence of motive. The gangs involved in this case were rivals. Wright indicated that the Lincoln Park gang claimed Lincoln Park—the area in which the Bay Vista Apartments are located—as their territory. He also testified that his brother had been a member of the rival OFarrell Park gang. Tucker was a documented member of the Lincoln Park gang. A reasonable trier of fact could infer Tucker had a motive to shoot Wright because Wrights family was associated with a rival gang.
The manner of the shooting also supports a finding of premeditation and deliberation. Tuckers acts of arming himself with a concealed and loaded handgun and firing shots at a vital area of Wrights body at close range after Scott "bungled" the plan by shooting himself suffice to support a finding of premeditation and deliberation. (See People v. Koontz (2002) 27 Cal.4th 1041, 1081-1082.) When Scott incapacitated himself, Tucker could have abandoned the plan and left the apartment complex. He chose instead to fire his gun at Wright at close range.
Viewing the evidence in the light most favorable to the judgment, we conclude there was sufficient evidence from which any rational trier of fact could reasonably find beyond a reasonable doubt that Tucker acted with intent to kill, premeditation, and deliberation.
III.
MIRANDA: IMPLIED WAIVER
Tucker next contends the court erred in finding an implied waiver of his rights under Miranda following an abbreviated Miranda advisement. We reject this contention.
A. Background
Following Tuckers arrest, Detectives Keene and Christie interrogated him after Detective Keene properly advised him of his Miranda rights and Tucker indicated he understood those rights. Detective Keene never expressly asked Tucker whether he waived those rights and wished to speak. Tucker proceeded to speak with the detectives immediately after he indicated he understood his Miranda rights.
During the interrogation, which was videotaped, Tucker gave what he characterizes on appeal as "conflicting responses and statements which later proved to be unreliable." The transcript of the interrogation indicates that the detectives confronted Tucker with the fact that he had been identified as the shooter, and they asked him what he knew about the shooting and gave him an opportunity to give his side of the story.
Before trial, defense counsel objected to the prosecutions use at trial of Tuckers statements on the ground that although he had indicated to the detectives that he understood his Miranda rights, they never asked whether he waived those rights. The prosecutor argued that Tuckers waiver of his Miranda rights was implied because the videotape showed he was not coerced, he appeared to agree to speak to the detectives, he appeared to hear and understand everything they said, he answered the detectives questions, and at no time during the interview did he stop the interview or indicate he had not understood something. The court granted the Peoples motion to admit Tuckers postarrest statements.
At trial, Detective Keene testified to Tuckers statements during the interrogation, and the court allowed the jury to watch the videotape and read copies of the transcript.
B. Applicable Legal Principles
Miranda held that a defendant who is in custody "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." (Miranda, supra, 384 U.S. at p. 479.)
These rights may be waived, as long as the waiver is voluntary, knowing and intelligent. (Miranda, supra, 384 U.S. at p. 444.) There are two dimensions to the waiver: " First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." (People v. Clark (1993) 5 Cal.4th 950, 986 (Clark).)
"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendants rights under Miranda[], supra, 384 U.S. 436, we accept the trial courts resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we "give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence. [Citations.]" (People v. Wash (1993) 6 Cal.4th 215, 235-236.)
C. Analysis
Tucker asserts that Detectives Keene and Christie "attempted an end-run around the Miranda requirements by intentionally failing to ask [Tucker] whether he was willing to waive the rights they had just described." He cites People v. Jablonski (2006) 37 Cal.4th 774, 816 (Jablonski), for the proposition that "[w]hen police use such calculated tactics in order to subvert Mirandas requirements, any statements later obtained are inadmissible."
Tucker misconstrues the holding in Jablonski. In that case, the law enforcement officers who interrogated the defendant had agreed in advance that they would continue to question him, even if he invoked his Miranda rights, in order to obtain impeachment evidence should he testify. (Jablonski, supra, 37 Cal.App.4th at p. 810.) During the course of the interrogation, the defendant invoked his right to counsel 11 times. (Ibid.) Based on the facts of that case, the California Supreme Court concluded that the officers repeated refusal to honor the defendants invocation of his Miranda rights did not induce an involuntary statement. (Id. at p. 816.) The Jablonski court explained that "[n]either the length nor physical circumstances of defendants interrogation appear[s] to have been coercive; the interrogation was spread over a four-hour period from mid-morning to mid-afternoon with a refreshment break and a lunch break. Nor was the tone of the questioning as evidenced in the transcript particularly harsh or accusatory—indeed, defendant argues that the excessive friendliness of the interrogators should be deemed a factor in favor of finding involuntariness." (Id. at p. 816.) The high court, however, expressed its disapproval of the officers tactics, stating that "the deliberate, intentional and repeated violation of that rule may violate a defendants constitutional rights. At minimum, [a]s we have emphasized on more than one occasion, [such] misconduct ... is "unethical" and must be "strongly disapproved." [Citations.] [Citation.]" (Id. at p. 816, italics added.)
Here, Detectives Keene and Christie, unlike the officers in Jablonski, did not engage in "deliberate, intentional and repeated violation" of the Miranda rule by repeatedly refusing to honor the defendants invocation of his Miranda rights. The transcript of the videotaped interrogation shows that Tucker immediately began to answer the detectives question after he indicated he understood his Miranda rights. At no time during the interview did Tucker attempt to invoke his Miranda rights, stop the interview, or indicate he had not understood something. Here, as in Jablonski, the tone of the questioning as evidenced in the transcript was not "particularly harsh or accusatory." (See Jablonski, supra, 37 Cal.App.4th at p. 815.) The totality of the circumstances surrounding the interrogation reveals that Tucker understood his Miranda rights and made an informed and uncoerced choice to answer the detectives questions. We conclude Tucker voluntarily, knowingly and intelligently waived his Miranda rights. (Miranda, supra, 384 U.S. at p. 444; Clark, supra, 5 Cal.4th at p. 986.)
IV.
USE IMMUNITY
Last, Tucker contends the failure of the prosecutor to offer, or the court to grant, use immunity to Scott, a defense witness who invoked his Fifth Amendment privilege against compelled self-incrimination, violated Tuckers rights to present a defense and to have a fair trial. We reject this contention.
Use immunity is "[i]mmunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom . . . ." (People v. Cooke (1993) 16 Cal.App.4th 1361, 1366 (Cooke), quoting Kastigar v. United States (1972) 406 U.S. 441, 453.) "Use immunity does not afford protection against prosecution, but merely prevents a prosecutor from using the immunized testimony against the witness. Use immunity provides sufficient protection to overcome a Fifth Amendment claim of privilege." (Cooke, supra, at p. 1366.)
A. Background
The defense called Scott as a witness. He admitted he was at the Bay Vista Apartments on October 3, 2005. Scott invoked his Fifth Amendment privilege against self-incrimination when the prosecutor asked him at what time he arrived at the apartment complex, whether he saw Tucker at any time that day, and whether he saw a shooting that day.
B. Analysis
The People argue, and Tucker does not contest, that he forfeited any claim of error based on the failure of the prosecutor to offer, or the court to sua sponte grant, use immunity to Scott, because Tucker did not ask the prosecutor to grant such immunity, he did not claim the prosecutors failure to do so was misconduct, and he did not ask the court to grant immunity. A claim of error not addressed in the trial court is not preserved for appellate review and is thus forfeited. (People v. Lucas (1995) 12 Cal.4th 415, 459, 460 (Lucas); People v. Sutter (1982) 134 Cal.App.3d 806, 813 (Sutter).)
Even if Tucker had preserved such claims for review, they are unavailing. "A prosecutor may grant immunity from prosecution to a witness on condition that he or she testify truthfully to the facts involved. [Citation.]" (People v. Boyer (2006) 38 Cal.4th 412, 455, italics added; see also § 1324 ["Nothing in this section shall prohibit the district attorney or any other prosecuting agency from requesting an order granting use immunity or transactional immunity to a witness compelled to give testimony or produce evidence"].) However, as Tucker himself acknowledges, the California Supreme Court has held that "the defendant has no power to force the prosecution to grant immunity to defense witnesses. [Citation.]" (Lucas, supra, 12 Cal.4th at p. 459.)
Tucker also acknowledges that inSutter, supra, 134 Cal.App.3d at page 816, the Court of Appeal explained that "[w]hile the prosecutor may not prevent or discourage a defense witness from testifying [citations] it is difficult to see how the Sixth Amendment of its own force places upon either the prosecutor or the court any affirmative obligation to secure testimony from a defense witness by replacing the protection of the self-incrimination privilege with a grant of use immunity. [Citation.]"
In Cooke, supra, 16 Cal.App.4th 1361, a prosecution for attempted murder with premeditation while armed with and using a firearm, a percipient witness subpoenaed by the defense invoked his Fifth Amendment privilege not to testify, and the district attorney declined to grant the witness transactional immunity. (Id. at pp. 1363-1364, 1366.) After the court heard in camera what the witnesss testimony would be, it refused to grant judicial use immunity, concluding that the witnesss testimony would be cumulative of other evidence. (Id. at p. 1366.) Holding that the trial courts refusal to grant judicial use immunity was not error, the Court of Appeal explained that a grant of immunity to a third-party witness would create a conflict for the prosecutor, and stated: "A district attorney who cross-examines a judicially immunized defense witness must narrow his or her questioning to avoid impeding the witnesss prosecution, and even then will still face difficulties in proving that the evidence used against that witness was not obtained from or derived from earlier testimony." (Id. at p. 1370.) Rejecting the appellants claim that the trial courts denial of use immunity was a due process violation, the Cooke majority explained that the Court of Appeal rejected that same argument in Sutter, supra, 134 Cal.App.3d 806. (Cooke, supra, 16 Cal.App.4th at p. 1370.) Declining the appellants invitation to declare a doctrine of judicial use immunity for defense witnesses in criminal cases, the Cooke majority stated: "[N]o California Court of Appeal or Supreme Court case has ever granted such immunity to a defense witness, and we will not do so now." (Id. at p. 1371.)
Tucker cites no persuasive legal authority in support of his claims. His reliance in his reply brief on a dissent in Cooke, supra, 16 Cal.App.4th 1361, is unavailing. Relying on federal case law and dicta in People v. Hunter (1989) 49 Cal.3d 957, the dissent argued that judicial use immunity must be granted where the immunity is properly sought in the trial court, the defense witness is available to testify, the proffered testimony is clearly exculpatory, the testimony is essential, and there is no strong countervailing governmental interest. (Cooke, supra, 16 Cal.App.4th at pp. 1374-1375 (dis. opn. of Poche, J.).) The dissent, however, acknowledged that the Cooke majority correctly determined that the Supreme Court in Hunter did not decide the issue of whether an essential witness for a criminal defendant should be granted judicial use immunity in appropriate circumstances. (Cooke, supra, 16 Cal.App.4th at p. 1374.) We decline to follow the dissenting opinion in Cooke.
DISPOSITION
The judgment is affirmed.
We concur:
AARON, J.
IRION, J.