Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV030154, Gerard S. Brown and Ingrid Adamson Uhler, Judges. Affirmed in part and reversed in part.
Judge Uhler assertedly misinstructed the jury on the elements of the crime of making a criminal threat (see part V, post) and on the result of a deadlock (see part VI, post). Judge Brown presided over the trial and made all of the other challenged rulings.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
Defendant Lanny Woosley was convicted of 11 crimes, including two unusually nasty murders. He had acquired an illegally modified handgun that could fire over 30 rounds per second; in an apparent “road rage” incident, he or an accomplice used it to mow down a couple of high school students -- total strangers to them -- who were on their way home from a party.
Defendant’s appellate contentions, however, revolve around procedural issues, lesser counts, and sentencing. They are that:
1. The trial court erred by allowing the prosecution to introduce portions of defendant’s statements to the police that were obtained in violation of Miranda.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
2. The trial court erred by failing to give a unanimity instruction.
3. The trial court essentially instructed the jury that it did not have to find two of the statutory elements of the crime of making a criminal threat.
4. When the jury sent out a note indicating that it was deadlocked, the trial court gave an erroneous response.
5. In imposing an upper term sentence, and in imposing consecutive sentences, the trial court violated Cunningham.
Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856].
6. The trial court erroneously imposed a 20-year personal and intentional firearm discharge enhancement, even though this enhancement had not been pleaded or found true.
7. The jury erroneously found more than one multiple-murder special circumstance true.
8. The trial court erroneously imposed a parole revocation restitution fine.
9. The abstract of judgment is erroneous.
We find no error affecting the conviction. However, aside from defendant’s challenge to consecutive sentencing, we agree with his claims of sentencing error. Hence, we will reverse the judgment with respect to the sentence only and remand for re-sentencing.
I
FACTUAL BACKGROUND
A. September 2003: Assault With Intent to Commit a Sexual Offense (Count 7), Forcible Oral Copulation (Count 8), and Making a Criminal Threat Against Doe (Count 9).
Defendant sold Jane Doe some methamphetamine on credit. Doe gave the money to her friend, Melissa Hacker, and asked her to deliver it to defendant. Hacker kept it instead.
Defendant phoned Doe several times, demanding his money. One evening in September 2003, he went to her home and demanded the money. He displayed a handgun.
After Doe’s two children had gone to bed, defendant pointed the gun at her head and ordered her to orally copulate him. She refused, but he said “if [she] didn’t he would shoot [her] in the head.” She then complied. Defendant was sitting on her couch. He put the gun down on the couch. Doe testified: “[W]hen I would see him not looking at it, . . . I would try to grab for it,” but every time she tried, he spotted her doing so, and he grabbed the gun himself.
Thereafter, according to Doe, “[defendant] kept driving by my house, calling me, letting me know he was there, that he was watching me.” In his phone calls, he said that he wanted his money. As a result, she gave him some collectible DVD’s.
B. October 14, 2003: Attempted Murder of Hacker (Count 4), Making a Criminal Threat Against Hacker (Count 5), and Attempted Murder of Dunning (Count 6).
Defendant failed to pay his methamphetamine supplier. The supplier therefore kidnapped him, phoned his family, and demanded that they pay a ransom. After about 13 hours, defendant escaped or was released.
A week or so later, defendant’s cousin saw defendant with an AP9-model handgun. Defendant told him that it fired very rapidly -- “[W]hen you pulled the trigger it emptied the clip.”
In October 2003, defendant told Hacker “[p]robably four” times “[t]hat he wanted his money or he was going to kill [her].” One of these threats was made face to face; the rest were left as phone messages.
On October 14, 2003, around midnight, Hacker was driving home from a friend’s house in her van; her friend, Steven Dunning, was with her. They realized that they were being followed by what they identified as a Nissan Maxima.
Hacker turned onto Amethyst Avenue, but it was a cul de sac. As she was making a U-turn, the Maxima stopped, partially blocking her way. The passenger in the Maxima got out. He was holding a gun. As Hacker drove back around the Maxima, the passenger fired a rapid burst of shots. Bullets riddled the van; some passed within inches of Hacker and Dunning, but they were not hit. Neither Hacker nor Dunning saw the gunman clearly enough to be able to identify him.
Erik Rivas testified pursuant to a grant of immunity. Erik had been friends with defendant for four or five years. When defendant was kidnapped, Erik moved in with defendant and his family.
According to Erik, defendant regularly carried a gun. It was an AP9 that defendant had modified so as to make it fully automatic.
Erik testified that he drove defendant to collect a drug debt from a woman. They were in Erik’s Toyota Camry. When they found her, she was in a van, on a cul de sac. She tried to drive past them; she almost hit Erik’s car, but Erik “pulled away and she went through and [defendant] got out and . . . shot the gun at them . . . .” Eight or nine stray bullets even hit Erik’s car; one passed through his jacket, but he was not hit.
C. January 18, 2004: Murder of Heyman (Count 1), Murder of Harris (Count 2), and Attempted Murder of Universal (Count 3).
On January 18, 2004, defendant visited the home of Alejandro and Mayra Rivas in Hesperia. Alejandro Rivas was Erik Rivas’s brother. Mayra’s cousin, Alexis Jimenez, was also there. Defendant and Jimenez had not met before; however, they were around the same age, and they seemed to get along well. Around 10:00 p.m., defendant and Jimenez said they wanted to go out. They borrowed the Rivases’ maroon Honda Accord.
Sometime after 11:00 p.m., Michael Universal was taking his friends Chris Heyman and Blake Harris home from a party in Upland. They had all been drinking; Universal had had “a few” beers. Universal was driving his father’s Ford Mustang. He got on the I-210 freeway at Campus Avenue, heading east. He denied having any “confrontation” with any other vehicle. He stayed in the slow lane the whole the way.
Harris, who had been talking to his girlfriend on his cell phone, asked Universal to go back to Upland to pick her up. Universal got off at the Haven Avenue offramp. He turned left (north) onto Haven, went over the freeway, then got into a left-turn lane, preparing to get back onto the freeway and go west. There were two left-turn lanes; the Mustang was in the one farthest to the left.
Suddenly, shots were fired into the Mustang. Universal was not hit, but Heyman and Harris were killed. The shots came from the rear and a little to the left of the Mustang — i.e., from southbound Haven. At the scene, the police later found 48 nine-millimeter shell casings.
A search of defendant’s home revealed a collection of newspapers containing articles about the shooting.
D. January 18-19, 2004: Carjacking (Count 10) and Arson of Property (Count 11).
At the time of trial, victim Carlos Marquez was unavailable to testify. Diana Boiteau, however, testified that, in January 2004, Marquez was driving a Chevrolet Malibu that she had rented for him.
On January 18, 2004, sometime between 10:00 p.m. and 1:00 a.m., Marquez arrived at Boiteau’s hotel room. He was “extremely upset, like hysterical.” He told her that, when he had been stopped at a stop sign, another car stopped nearby; a person got out and fired two shots into the engine of the Malibu. “They” then took the car. He said that there had been some stereo equipment in it.
When the police questioned Marquez, he admitted driving a Malibu that Boiteau had rented. However, he denied ever being carjacked. Likewise, at the preliminary hearing, Marquez denied ever being carjacked. This time, he also denied driving a rental car. He denied even knowing Boiteau. Nevertheless, at the preliminary hearing, Boiteau identified Marquez.
On the night of January 18-19, Erik went out to the garage of defendant’s house in Rancho Cucamonga and found both defendant and Jimenez there. According to Erik, defendant told him that a Mustang had cut him and Jimenez off on the freeway. When they got off the freeway, at Haven, defendant got out of the car, pulled out a gun, and “sprayed” the Mustang. There were three people inside. Defendant saw them “slumped over.” He “was pretty much bragging about it.” He showed Erik the gun.
Defendant also told Erik that he had carjacked a Malibu. He showed him some stereo equipment that he had gotten from the car. Jimenez was present when defendant was telling Erik all this. Later, Erik saw a Malibu in front of defendant’s house.
On January 19, 2004, around 3:00 or 4:00 a.m., defendant and Jimenez got back to the Rivases’ home in Hesperia. They were in a Malibu; they said they had left the Accord behind. According to the Rivases, “They were talking about a Malibu and jacking this guy for speakers . . . .” The next day, the Rivases saw the speakers from the Malibu.
Erik moved out of defendant’s home, because “[he] didn’t want to know nobody that killed nobody.” Their relationship had actually started to sour two or three weeks earlier, when defendant stole a speaker box that he had previously given Erik out of Erik’s car. After Erik moved out, defendant’s family accused him of stealing some tools. He denied doing so.
About a week after the shooting, Erik ran into defendant at the home of a mutual friend. Erik had heard that his brother’s car had been used in the shooting. Erik told defendant that, if his brother “were to go down for this shooting,” then he was “going to say something about it . . . .” Defendant responded, “I wasn’t the shooter. I was just the driver.”
On January 20, 2004, Jimenez committed a carjacking in Fontana. A police chase ensued. After colliding with a police car, Jimenez appeared to be reaching for a gun; the police opened fire. Jimenez died in a hail of bullets.
An AP9 nine-millimeter handgun was found by Jimenez’s body. This turned out to be the weapon used to shoot up Hacker’s van, as well as the weapon used to kill Heyman and Harris. Originally semiautomatic, the gun had been modified to make it fully automatic. It could fire at the rate of about 1,900 rounds a minute. Neither the prosecution expert nor the defense expert had ever heard of a handheld gun that fired that fast. The defense expert testified, “I’ve seen military weapons a little higher in terms of rate of fire, but for this type of weapon it’s actually almost an unbelievable figure.”
On January 24, 2004, defendant’s cousin saw defendant vacuuming out a brand new Malibu; it had a rental company sticker. He did not see any bullet holes in it. Defendant asked him if he knew of anybody who needed Malibu parts. Later, he heard defendant say he “had to get rid of it, possibly blow it up.”
On January 25, 2004, around 1:30 a.m., firefighters responded to a car fire near Chino Airport. The car turned out to be Marquez’s Malibu. A flammable liquid had been used to start the fire. There were no visible bullet holes in the car; however, part of the hood had melted away.
E. Defendant’s Statements to Police.
On January 26, 2004, defendant agreed to go to the police station for an interview. He told police that on January 18-19, 2004, he was at the Rivases’ home all night; the next day, he learned that Jimenez had taken the Rivases’ Accord without their permission.
On January 27, 2004, officers asked defendant if they could speak to him again. He did not want to be interviewed at home, lest that upset his mother; he agreed to go to the police station instead. The interview was conducted by Detective Brad Toms. It was audiotaped and videotaped.
At first, defendant told essentially the same story. Detective Toms accused him of lying; he said he had evidence that defendant had been in the car when the Haven overpass shooting occurred. Detective Toms suggested “[h]ypothetically” that defendant was just driving around with Jimenez when Jimenez unexpectedly started shooting.
Defendant then essentially adopted Detective Toms’s suggestion. He said that, on January 18, 2004, he and Jimenez borrowed the Rivases’ Accord to buy some methamphetamine in Pomona from a friend of Jimenez, but the friend was not home. They got back on the I-210 freeway, heading east, toward defendant’s house (which was near Archibald and Highland Avenues). Defendant was driving.
They got off at Campus Avenue. At that point, defendant said, “the car” almost hit them. (After saying that, however, defendant denied that “the car” was the Mustang.) Defendant then changed his mind about the best route to his house; he decided to get back on the freeway. When he did, “the Mustang was there . . . .” The Mustang “swerved over towards us . . . and we were playing like, you know, little fucking bullshit . . . .” Jimenez told defendant to “speed up to ’em.”
Both cars got off at Haven. The Mustang turned left (north). Defendant turned right (south). Once again, however, he changed his mind about the best way to go. He made a U-turn so he could get back on the freeway, intending to go west. There were two left-turn lanes leading to the freeway. Defendant was in the inside lane; the Mustang was in the outside lane, stopped. There were three people in the Mustang.
Defendant said: “And then I made a left-hand turn to get back on the freeway and I heard pow, pow, pow.” He repeatedly said that Jimenez “hung out the window.” Defendant looked back in his rearview mirror and saw the victims “all still.” Jimenez said, “Keep driving,” so defendant continued on to his house.
When they arrived, Erik was in the garage. Defendant admitted telling him about the shooting but denied telling him that he was the shooter. Defendant claimed that Erik was lying: “[H]e . . . has a grudge against me because I took his amp.”
At first, defendant told Detective Toms that the gun belonged to Jimenez. Eventually, however, he admitted, “It’s my gun,” adding, “ . . . I’m obsessed with that . . . gun.” He had gotten the gun after he himself was kidnapped. Detective Toms asked him, “Why would you give your gun to [Jimenez?]” Defendant answered, “I don’t know.” “[I]t doesn’t make no sense,” defendant conceded, “why would you have anybody hold your bitch for you[?]”
After initially denying knowing anything about the Malibu, defendant admitted, “We took it.” He explained that Jimenez “said that since he did [the shooting], to make sure I won’t tell on him, . . . I had to do something.” At this point, Jimenez had a shotgun, which he had gotten from the trunk of the Accord. Defendant had his own gun, but it “ha[d] no more ammo in it.”
Jimenez ordered defendant to drive to Fontana, then switched seats with him. They saw “[a] Mexican guy” in a Malibu. Defendant got out, pointed his gun at the guy, and told him to get out of the car and walk away. They left the Accord in Fontana and drove the Malibu back to Hesperia. When they got there, Jimenez told the Rivases what had happened.
Defendant gave Jimenez the gun in exchange for the Malibu and the stereo from the Malibu. Defendant drove the Malibu around for a while, then took it to Chino, poured gas on it, and burned it. He explained, “I didn’t want the karma . . . .”
Finally, defendant admitted “making that bitch [i.e., Doe] suck my . . . dick because she . . . owed me money.” He admitted having a gun with him at the time, although he claimed it was inoperable. He also admitted shooting at Hacker’s van. He claimed that Hacker had been about to ram Erik’s car.
F. Defendant’s Testimony.
Defendant’s trial testimony was essentially consistent with his statement to Detective Toms, except as noted below.
Defendant admitted committing the charged forcible oral copulation. He also admitted telling Erik to follow Hacker and to block her van. He claimed, however, that he just wanted to talk to her. When she “took off,” he testified: “I grabbed the gun, and I pulled the trigger and I shot the van.” He could not explain why he fired, although he denied having the intent to kill. He denied making “any threats of death or great bodily injury” against either Doe or Hacker.
Defendant testified that, on January 18, 2004, as he and Jimenez were driving back from Pomona, his AP9 was in a bag on the passenger-side floorboard. When they were on the Campus Avenue offramp, a Mustang on the onramp crossed into their lane and ran them off the road. After they got back on the freeway, Jimenez said, “Hey, there’s that Mustang. Speed up.” Defendant complied.
After defendant got off on Haven, made a U-turn, and got ready to get back onto the freeway, he saw the Mustang again. Although it was in a left-turn lane, it was pointing diagonally to the right, as if the driver intended to get back onto Haven. Defendant therefore swerved around it on the left, even though this took him into the southbound traffic lanes.
At defendant’s house, after the shooting but before the carjacking, defendant realized for the first time that Jimenez had a sawed-off shotgun, wrapped in a jacket.
A few days after the shooting, defendant ran into Erik at a friend’s house. Erik warned him, “[I]f my brother gets wrapped up into this . . . I’m going to say anything to make you the shooter.” Previously, defendant’s mother had thrown Erik out of the house because she believed that he had stolen some tools. Also, defendant had lent Erik money to buy an amplifier; when Erik failed to pay him back, defendant had taken the amplifier.
II
PROCEDURAL BACKGROUND
A jury found defendant guilty on two counts of first degree murder (Pen. Code, §§ 187, subd. (a), 189); three counts of attempted murder, one of which (Universal) was found to be willful, deliberate, and premeditated (Pen. Code, §§ 187, subd. (a), 664, subd. (a)); two counts of making a criminal threat (Pen. Code, § 422); assault with intent to commit a specified sexual offense (Pen. Code, § 220); forcible oral copulation (Pen. Code, § 288a, subds. (a) & (c)(2)); carjacking (Pen. Code, § 215); and arson of property (Pen. Code, § 451, subd. (d)).
Some firearm-related enhancements were found true; others were found not true. In connection with the forcible oral copulation count, a “one-strike law” special circumstance was found true. (Pen. Code, § 667.61, subd. (e)(4).) Two multiple-murder special circumstances were found true. (Pen. Code, § 190.2, subd. (a)(3).)
Defendant was sentenced to four consecutive life terms (including two without the possibility of parole), plus a total determinate term of 44 years 4 months.
III
DEFENDANT’S MIRANDA CONTENTIONS
Defendant contends that portions of his statements to the police were obtained in violation of Miranda.
A. Additional Factual and Procedural Background.
1. The beginning of the interview.
Detective Toms interviewed defendant at the police station. It is undisputed that, at the beginning of the interview, defendant was not in custody. Detective Toms said:
“Det. B. Toms: I want you to understand that this is a voluntary interview.
“Lanny Woosley: Yeah.
“Det. B. Toms: Okay. You don’t have to talk to me if you don’t want to talk to me.
“Lanny Woosley: I have no problem.
“Det. B. Toms: Okay. Great. Um[,] if there is ever a problem and you want to do anything[, t]he door is unlocked, the bathroom is right there, you want to take a break, you want to do whatever you want to do[,] let me know.
“Lanny Woosley: All right.
“Det. B. Toms: I’ll give you a ride home when we’re done.
“Lanny Woosley: All right.”
2. Defendant’s first request to go home.
Initially, defendant maintained that he had been in Hesperia, asleep, when the shooting occurred. Detective Toms claimed to have proof that defendant had actually been in the car with Jimenez. Starting on page 33 of the unredacted transcript, there was this exchange:
“Det. B. Toms: . . . Let me ask you a question. Will you take a polygraph right now?
“Lanny Woosley: Voluntarily?
“Det. B. Toms: Yeah, of course, everything is voluntarily.
“Lanny Woosley: Hum. What time is it? I got to get back home.
“Det. B. Toms: It’s ten o’clock.
“Lanny Woosley: I got to get back home. I’ll do it tomorrow. For sure.
“Det. B. Toms: Well[,] I got to get it cleared up tonight[,] dude.
“Lanny Woosley: Well.
“Det. B. Toms: I can have someone here in twenty[-]five minutes.
“Lanny Woosley: No. I got to go home cause I get up early.
“Det. B. Toms: For what?
“Lanny Woosley: I got to take my girlfriend to school and I got to find a job.
“Det. B. Toms: Dude[,] you haven’t been looking for a job for days.
“Lanny Woosley: Yeah, I got an application down from.
“Det. B. Toms: Lanny.
“Lanny Woosley: Yes.
“Det. B. Toms: Dude[,] you got to tell me the truth here[,] man.
“Lanny Woosley: I am.” (Italics added.)
3. Defendant’s second request to go home.
At page 55, Detective Toms said:
“Det. B. Toms: Lanny[,] help me out[,] man. Let me go tell those families.
“Pause in speaking.
“Lanny Woosley: I want to go home.
“Det. B. Toms: You don’t want to help me out?
“Lanny Woosley: I can’t.
“Det. B. Toms: Why? Why? Lanny.
“Lanny Woosley: Hum?
“Det. B. Toms: Check it out[,] man. I know what you[’re] worried about.
“Lanny Woosley: What? What am I worried about? I’m wondering if I’m going to jail.
“Det. B. Toms: I know that’s what you[’re] worried about.
“Lanny Woosley: . . . Why? Why do I, why should I go to jail?
“Det. B. Toms: Lanny[,] I don’t know why.
“Lanny Woosley: I didn’t do anything.” (Italics added.)
4. Defendant’s admission of stealing the car.
Starting on page 66, defendant admitted being the driver when Jimenez committed the shooting; however, he denied any knowledge that the shooting was going to occur.
On page 95, defendant admitted taking the Malibu:
“Det. B. Toms: How did you get the car?
“Lanny Woosley: We took it.”
Defendant then admitted carjacking the Malibu at gunpoint, although he claimed that Jimenez had a shotgun and forced him to do it and that his own gun was not loaded.
5. Defendant’s third request to go home.
At page 102, defendant said:
“Lanny Woosley: I’m telling you everything I know. Just arrest me or left [sic] me go. I got to go home. I got to get home to my sick mom. I’m already going to jail. Fucking shit, he fucking stupid mother fucker, fucking shoot these innocent kids and shit. I feel like I got to do something the fucking you know so I can be you know do some dirt with him so fucking so I don’t get in trouble of shit or so he doesn’t think I’m going to fucking snitch on him so he doesn’t fucking kill me.” (Italics added.)
Detective Toms tried to interrupt him, but defendant continued on in this vein, concluding:
“Lanny Woosley: . . . And I’m telling you the truth now. You know? So what’s my rights?
“Det. B. Toms: Are you going to, do you want to continue [to] talk to me[,] or?
“Lanny Woosley: No, I’m done. I got. I just.
“Det. B. Toms: I mean there is a lot of questions.
“Lanny Woosley: Like what?
“Det. B. Toms: Tons.
“Lanny Woosley: Like what?
“Det. B. Toms: Well I mean. Are you sure you don’t want to talk to me anymore?
“Lanny Woosley: Like what, though[?] What’s the questions?”
Detective Toms began asking questions again. Defendant soon admitted burning the Malibu.
6. Defendant’s request for a lawyer, followed by defendant’s self-admonition.
Starting on page 114, Detective Toms said:
“TOMS: Okay, listen to me, there’s a problem because there’s difference[s] in statements.
“WOOSLEY: Yeah. [¶] . . . [¶]
“TOMS: And I have a lot of questions to ask you to clear that stuff up. All right, but because of the things that are happening here, because you know, a couple of things that you said, I want to let you know what you[r] rights are.
“WOOSLEY: Huh.
“TOMS: Okay.
“WOOSLEY: Yeah.
“TOMS: Do you understand what I’m sayin’?
“WOOSLEY: So, I want to talk to my lawyer, please then. Oh, what do you mean, why do I have to, why, why, why, okay, I’m already, I’m goin’ to jail, right?
“TOMS: Well, you know . . .
“WOOSLEY: Come on, be straight up with me.
“TOMS: Here’s the, here’s the deal. What you’re telling me is not the exact truth[,] dude.
“WOOSLEY: I’m telling you exactly what happen[ed] on the night.
“TOMS: Listen, okay I know that.
“WOOSLEY: What else do you want to know?
“TOMS: You, you’re telling me your version of what happened that night, but I have other versions . . .
“WOOSLEY: I was only . . .
“TOMS: . . . from other people that you talked to.
“WOOSLEY: [B]ut they weren’t there.
“TOMS: Right.
“WOOSLEY: I, I could have told them fuckin’ anything, right? I’m telling you exactly what happened cause I was the only one that was there.
“TOMS: Why would you tell them something different than you’re telling me?
“WOOSLEY: Cause I wanted to be cool, maybe. . . . [M]aybe that’s my way of fuckin’ blocking that shit out in my head.
“TOMS: Maybe it is. But the thing is . . .
“WOOSLEY: Maybe it is.
“TOMS: . . . is, I want to know why that you told those things and before I can ask you those questions, I want to make sure you understand your rights.
“WOOSLEY: Yeah.
“TOMS: Okay.
“WOOSLEY: [Y]ou have the right to remain silent anything you say can and will be used against you in the court of law. [I]f you can[’]t afford an attorney, (inaudible) afford one, an attorney, one will be appointed to you (inaudible) but if you (inaudible) if you can not afford an attorney, one will be appointed to you uh, (inaudible).
“TOMS: Pretty close.
“WOOSLEY: Pretty close.
“TOMS: Pretty damned good. I read it off a card.
“WOOSLEY: It’s not that hard. It’s not that hard.
“TOMS: Well I read it off the card to make sure it’s right.
“WOOSLEY: You’ve got to ask me if I understand the rights and then you go on.
“TOMS: That’s exactly right.
“WOOSLEY: (inaudible) recite it, anything you can, anything you say can and will be used against you in a court of law. You have the right to an attorney. Anything, or, if you cannot afford an attorney, one will be appointed to you at the, at the cost of somethin’, or, of if you cannot afford to pay for an attorney, one will be, uh, I don’t know, it says somethin’ about that.
“TOMS: Watch a lot of TV?
“WOOSLEY: Yeah. Well, I just, I remember it.
“TOMS: Well that’s, that’s pretty damn good.” (Italics added.)
7. Detective Toms’s formal admonition.
After some further conversation, on page 123, Detective Toms gave defendant the following Miranda warning:
“TOMS: All right, you know this by heart, but I’m going to go ahead and read it to you anyway. . . . You have the right to remain silent. Anything you say can be used against you in court. You have the right to an attorney before and during questioning. If you cannot afford an attorney, one will be appointed for you, by the court, free of charge, before questioning. Do you understand the rights I’ve just explained to you?
“WOOSLEY: Yes I do.
“TOMS: And with these rights in mind, are you willing to talk to me?
“WOOSLEY: Yeah . . . .”
B. Additional Procedural Background.
Defendant filed a pretrial motion to suppress that portion of the interview that followed page 115, when he said, “So, I want to talk to my lawyer, please then.” He argued, among other things, that this statement had been obtained in violation of Miranda.
Defendant also argued that this statement had been coerced. He has not reasserted this claim on appeal.
In response, the People argued that Miranda did not apply because defendant had not been in custody. They also argued that his request for a lawyer was an “anticipatory invocation” and/or equivocal.
The trial court found that defendant was in custody for the first time at page 95, when he admitted carjacking the Malibu. Hence, at that point, Detective Toms should have given him a Miranda warning. However, it also found that defendant was effectively given a Miranda warning at page 116, when he recited his rights himself. Accordingly, it granted the motion to suppress, but only with respect to pages 96 through 116.
The trial court disregarded defendant’s statement at page 102, “I got to go home,” because pages 96 through 116 were “already out anyway” and because “that’s before his rights were read.” Similarly, it disregarded defendant’s request for an attorney at page 115, explaining, “[I]t doesn’t matter because he hasn’t been read his Miranda rights anyway yet . . . .”
C. Analysis.
1. General legal background.
“Defendants who are in custody must be given Miranda warnings before police officers may interrogate them. [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 198.)
“To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent. [Citation.] As long as the suspect knowingly and intelligently waives these rights, the police are free to interrogate him. [Citation.] However, if, at any point in the interview, the suspect invokes his rights, questioning must cease. [Citations.] Statements obtained in violation of these rules are inadmissible to prove guilt in a criminal case. [Citations.]” (People v. Stitely (2005) 35 Cal.4th 514, 535.)
“The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] ‘Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is . . . reconstructed, the court must apply an objective test to resolve “the ultimate inquiry”: “[was] there a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” [Citations.] The first inquiry, all agree, is distinctly factual. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a “mixed question of law and fact” . . . .’ [Citation.] Accordingly, we apply a deferential substantial evidence standard [citation] to the trial court’s conclusions regarding ‘“basic, primary, or historical facts: facts ‘in the sense of recital of external events and the credibility of their narrators . . . .’”’ [Citation.] Having determined the propriety of the court’s findings under that standard, we independently decide whether ‘a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 401-402, quoting Thompson v. Keohane (1995) 516 U.S. 99, 112-113 [116 S.Ct. 457, 133 L.Ed.2d 383], id. at p. 110, and id. at p. 112.)
“[A] police officer’s subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda. [Citation.]” (Stansbury v. California (1994) 511 U.S. 318, 324 [114 S.Ct. 1526, 128 L.Ed.2d 293].) However, “[a]n officer’s knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. [Citation.] Those beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her ‘“freedom of action.”’ [Citation.] Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officer’s degree of suspicion will depend upon the facts and circumstances of the particular case.” (Id. at p. 325, quoting Berkemer v. McCarty (1984) 468 U.S. 420, 440 [104 S.Ct. 3138, 82 L.Ed.2d 317].)
2. The finding that defendant was not in custody until he admitted taking the Malibu.
As already noted, the trial court found that defendant was not in custody until he admitted being involved in carjacking the Malibu (page 95). Defendant argues that it should have found that he was in custody earlier, when he asked to go home the interview did not stop (pages 33-34 and 55).
Preliminarily, defendant forfeited this contention by failing to raise it below. “A judgment will not be reversed on grounds that evidence has been erroneously admitted unless ‘there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .’ [Citation.] . . . Miranda-based claims are governed by this rule.” (People v. Mattson (1990) 50 Cal.3d 826, 853-854, quoting Evid. Code, § 353.) Thus, the defendant’s Miranda objection at trial must have been made on the same grounds as those raised on appeal. (People v. Hill (1992) 3 Cal.4th 959, 982, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Visciotti (1992) 2 Cal.4th 1, 54.)
In his motion to suppress, defendant argued only that the portion of the interview following his request to talk to a lawyer, on page 115, should be suppressed. At the hearing on the motion, the trial court expressly found that defendant was not in custody when he asked to go home; defense counsel did not disagree. Finally, when the trial court suggested that defendant was first in custody on page 95, when he admitted taking the car, defense counsel adopted its suggestion. Defendant never argued, however, that he was in custody any earlier than page 95.
Separately and alternatively, however, we agree with the trial court: None of the circumstances surrounding defendant’s requests to go home indicated that he was in custody. The first time, defendant was responding to Detective Toms’s request that he take a polygraph test; he was indicating that he did not have enough time for the test, not that he wanted to leave immediately. Moreover, even after Detective Toms responded, “ . . . I got to get it cleared up tonight,” defendant repeated, “I got to go home cause I get up early.” This confirms that Detective Toms’s response was not, in effect, a refusal to let him go home. Detective Toms having requested the interview in the first place, obviously it was in his interest to continue it. He was free to try to persuade defendant that he should (rather than that he had to) remain. After he said, “Dude[,] you got to tell the truth,” defendant simply decided that it was in his best interest to continue the interview.
Similarly, the second time that defendant said, “I want to go home,” Detective Toms responded, “You don’t want to help me out?” This implied that defendant was indeed free to go, if that was what he really wanted to do; once again, defendant simply decided that it was in his best interest not to leave. Nothing in either of these exchanges overrode Detective Toms’s initial assurances that the interview was voluntary.
Defendant also argues that the trial court applied an incorrect burden of proof on this issue. At one point in the hearing, the trial court opined that defendant was not in custody when he admitted taking the Malibu. It based its opinion on the fact that it was reasonable for Detective Toms to continue to question him: “ . . . I do believe that the officer had a right to continue to ask Mr. Woosley questions about . . . the taking of the car . . . . I don’t think at that point in time he was absolutely positively in a position where all of a sudden by operation of law or otherwise [he] became in custody.” Shortly afterward, however, the trial court changed its mind: “As I think about it more, I don’t think that really matters. Because the real inquiry is not what the officer should do. The inquiry is at what point objectively is Mr. Woosley in custody. And that determines what the officer should do . . . .” It therefore ruled that defendant was in custody when he admitted taking the Malibu.
Defendant seizes upon the trial court’s remark, “I don’t think at that point in time he was absolutely positively . . . in custody.” (Italics added.) He claims that this shows that the trial court was erroneously placing the burden or proof on him, instead of on the prosecution. (See People v. Davis (1967) 66 Cal.2d 175, 180-181 [prosecution has burden of disproving custody].) Not so. The trial court was not addressing the burden of proof. It only meant that, if all of the other facts tended to show that defendant was not in custody, the fact that he admitted taking the Malibu did not require a contrary finding. In any event, it eventually changed its mind on this point.
Finally, even assuming the trial court applied an erroneous burden of proof, the error was not prejudicial under any standard. The asserted error did not affect the trial court’s findings of historical fact; it affected, at most, its finding as to when custody began. This, as already discussed, is a mixed question of law and fact that we review independently. In his reply brief, defendant even concedes that “this [c]ourt will make an independent review of the uncontradicted facts which will largely moot [this point].” We conclude this asserted error was harmless.
3. The continuation of the interrogation after defendant’s request for a lawyer.
Defendant argues that his request for a lawyer, on page 115, precluded any further interrogation.
“If the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. [Citation.] But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation. [Citation.] This ‘second layer of prophylaxis for the Miranda right to counsel,’ [citation], is ‘designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,’ [citation].” (Davis v. U.S. (1994) 512 U.S. 452, 458 [114 S.Ct. 2350, 129 L.Ed.2d 362], quoting McNeil v. Wisconsin (1991) 501 U.S. 171, 176 [111 S.Ct. 2204, 115 L.Ed.2d 158] and Michigan v. Harvey (1990) 494 U.S. 344, 350 [110 S.Ct. 1176, 108 L.Ed.2d 293].)
In Edwards v. Arizona (1981) 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378], the Supreme Court held that, once a suspect has requested counsel, the interrogation cannot resume even if the police give a new Miranda warning, and even if the suspect thereafter purports to waive the right to counsel: “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” (Edwards, at p. 484, italics added, fn. omitted.)
The People assert that defendant’s request for a lawyer was a mere “anticipatory invocation,” and hence “of no legal consequence,” because he “had not been taken into custody at this point . . . .” (See generally McNeil v. Wisconsin, supra, 501 U.S. at p. 182, fn. 3; People v. Avila (1999) 75 Cal.App.4th 416, 421-423.) The trial court, however, found that defendant was in custody as of page 95; his request for counsel occurred on page 115. We have combed the People’s brief in vain for any argument (as opposed to this bare assertion) that the trial court’s custody finding was erroneous. Indeed, elsewhere in their brief, the People take the position that, in making this finding, “the court understood and correctly applied the law.”
The trial court disregarded defendant’s request for a lawyer for two reasons. First, it explained that defendant had not yet been given a Miranda warning. However, a suspect in custody who has been given a Miranda warning cannot be questioned after he or she has requested a lawyer; a suspect in custody who has not been given a Miranda warning deserves the same solicitude, or more -- certainly not less.
Second, the trial court explained that it had already excluded that portion of defendant’s statement after he was in custody (page 95) and before he was given a Miranda warning (page 116), and that this included page 115, on which he asked for a lawyer. Under Edwards, however, assuming defendant did effectively invoke his right to counsel, giving him a Miranda warning would not allow the police to reinitiate questioning.
To make an effective invocation, however, “the suspect must unambiguously request counsel.” (Davis v. U.S., supra, 512 U.S. at p. 459.) “[I]f 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. [Citations.]” (Id. at p. 459.) “[W]hen a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney.” (Id. at p. 461.)
In addition, as already mentioned, further questioning is not barred if “the suspect himself reinitiates conversation.” (Davis v. U.S., supra, 512 U.S. at p. 458.) “‘An accused “initiates”’ further communication, exchanges, or conversations of the requisite nature ‘when he speaks words or engages in conduct that can be “fairly said to represent a desire” on his part “to open up a more generalized discussion relating directly or indirectly to the investigation.”’ [Citation.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 642, quoting People v. Mickey (1991) 54 Cal.3d 612, 648, quoting Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045 [103 S.Ct. 2830, 77 L.Ed.2d 405] [plur. opn. of Rehnquist, J.].)
Here, defendant’s request for a lawyer -- “So, I want to talk to my lawyer, please then” -- standing alone, was unequivocal. However, it did not stand alone. In virtually the same breath, defendant launched an inarticulate barrage of questions about the case. When Detective Toms demurred (“Well, you know . . .”), defendant insisted, “Come on, be straight up with me.” Defendant prodded further, asking “What else do you want to know?” At that point, it was unclear whether defendant’s request for a lawyer was sincere or a mere trial balloon, which he retracted immediately so that he could engage in a further discussion. (Cf. Oregon v. Bradshaw, supra, 462 U.S. at pp. 1045-1046 [plur. opn. of Rehnquist, J.] [defendant who had requested counsel reinitiated conversation by asking, “‘Well, what is going to happen to me now?’”].)
Detective Toms therefore quite properly insisted on giving defendant a Miranda warning. He stated, “[B]efore I can ask you those questions, I want to make sure you understand your rights.” Even when the suspect reinitiates the conversation, the police are well advised to administer a Miranda warning before proceeding. Moreover, in the unusual circumstance here, that the suspect has not been given a Miranda warning already, we can think of no better way to determine whether the suspect’s request for a lawyer is unequivocal than by following the tried-and-true Miranda procedure. This is the exact opposite of “badgering”; it does not trigger a similar concern that the police may be trying to grind the suspect down.
Defendant argues that the trial court made no finding that his request for counsel was equivocal. At the same time, however, it made no finding that it was not equivocal. Instead, stating, “We can argue all day long whether or not that’s an equivocal invocation,” it concluded that “it doesn’t matter,” because it was resting its ruling on other grounds. Nevertheless, the question of whether the invocation was equivocal was clearly raised and litigated. Because we apply an independent standard of review to this question, the trial court’s findings on it (or the lack thereof) are irrelevant.
Defendant also argues that, before giving a Miranda warning, Detective Toms engaged in prohibited interrogation -- for example, by saying, “What you’re telling me is not the exact truth[,] dude.” “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Rhode Island v. Innis (1980) 446 U.S. 291, 301 [100 S.Ct. 1682, 64 L.Ed.2d 297], fns. omitted.) Detective Toms was evidently walking a fine line -- he was trying to “be straight up” with defendant, by answering his immediate questions, while postponing any substantive discussion of the case until after defendant had been Mirandized. To this end, he basically said that he believed that defendant was not “telling . . . the exact truth,” because he had heard “other versions”; he said he wanted to ask more questions, but, he concluded, “before I can ask you those questions, I want to make sure you understand your rights.” This was not calculated to elicit any incriminating information from defendant, and significantly, in the upshot, it did not.
We therefore conclude that, in light of the uncertainty surrounding defendant’s apparent invocation of his right to counsel, Detective Toms was allowed to clarify it by giving a Miranda warning. As we will discuss further below, defendant was given a valid Miranda warning, and he responded with a valid waiver of his Miranda rights, including his right to counsel. Accordingly, interrogation beyond that point was not barred.
4. The trial court’s finding that defendant’s self-admonition was effective.
The trial court found that defendant was effectively given a Miranda warning on page 116, when Detective Toms said, “ . . . I want to make sure you understand your rights,” and defendant replied, “[Y]ou have the right to remain silent anything you say can and will be used against you in the court of law. [I]f you can[’]t afford an attorney, (inaudible) afford one, an attorney, one will be appointed to you (inaudible) but if you (inaudible) if you can not afford an attorney, one will be appointed to you uh, (inaudible).”
Defendant argues that this “self-admonition” was inadequate, because it was not delivered by Detective Toms and because it did not include all of the required information. He did not raise the first point (the identity of the admonisher) in his written motion to suppress; however, he did preserve it by raising it at the hearing on the motion. He never raised the second point (the adequacy of the admonition) at all; thus, he has forfeited it. We will discuss it on the merits below, but only as an alternative to forfeiture.
In Miranda itself, the United States Supreme Court stated, “[W]e will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.” (Miranda v. Arizona, supra, 384 U.S. at pp. 468-469, fn. omitted.) “Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.” (Id. at p. 468.)
That court, however, “ha[s] never insisted that Miranda warnings be given in the exact form described in that decision. In Miranda itself, the Court said that ‘[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.’ [Citations.] . . . ‘[T]he “rigidity” of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant,’ and . . . ‘no talismanic incantation [is] required to satisfy its strictures.’ [Citation.]” (Duckworth v. Eagan (1989) 492 U.S. 195, 202-203 [109 S.Ct. 2875, 106 L.Ed.2d 166], fn. omitted, quoting Miranda v. Arizona, supra, 384 U.S. at p. 476 and California v. Prysock (1981) 453 U.S. 355, 359 [101 S.Ct. 2806, 69 L.Ed.2d 696].) “The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’ [Citation.]” (Duckworth, at p. 203, quoting Prysock, at p. 361.)
Here, Detective Toms had just indicated that he was going to give defendant a Miranda warning. Defendant preempted him by reciting the warning himself. Detective Toms, however, immediately endorsed defendant’s version; he praised it as “[p]retty close” and “[p]retty damned good.” He thereby adopted the warning and made it his own. (Cf. Evid. Code, § 1221 [adoptive admission exception].) Thus, we are not in the position of trying to decide whether, despite the absence of a warning, defendant was aware of his rights; rather, we conclude that he was effectively warned.
We find support for this conclusion in People v. Nitschmann (1995) 35 Cal.App.4th 677. There, a police officer told the defendant, “ . . . ‘I have to read you your rights . . . .’” (Id. at p. 680.) The defendant responded, “ . . . ‘I have the right to remain silent, anything I say, if I say can and will be used against me in a court of law. I have the right to an attorney, if I cannot afford one, one will be appointed to me by the State. I know the whole bit.’” (Id. at p. 681.) The defendant then confirmed that he understood his rights and that, even with those rights in mind, he wanted to talk to the officer. (Ibid.) The appellate court held that this was sufficient compliance with Miranda: “Appellant indicated he was aware of his Miranda rights and waived them. . . . Detective Aceves was not required to repeat the Miranda admonition . . . .” (Nitschmann, at p. 682.)
Defendant also argues that his self-admonition was defective. Admittedly, he had trouble articulating exactly what would happen if he could not afford an attorney. However, he did say that he had a right to an attorney, and that if he could not afford one, one would be appointed for him. While he could not specify exactly who would pay for such appointed counsel, clearly he meant that he would not; indeed, that is the very meaning of a right to “appointed” counsel.
In his reply brief, defendant additionally argues that his self-admonition was defective because it “failed to include the requirement that an attorney is to be present before any further questioning” and also because Detective Toms failed to ask him whether he understood his rights and failed to take an express waiver. Although defendant forfeited these points by failing to raise them in his opening brief (People v. Failla (2006) 140 Cal.App.4th 1514, 1519-1520, fn. 3 [Fourth Dist., Div. Two]), we also reject them, alternatively, on the merits.
Nitschmann rejected an argument essentially identical to defendant’s first point: “There is no question that appellant’s self-admonition did not expressly recite that he was entitled to the presence of an attorney before and during questioning. That is to say, there was no self-admonition as to when an attorney would be provided. However, the dialogue between the detective and appellant reasonably shows that he was aware of his right to counsel then and there.” (People v. Nitschmann, supra, 35 Cal.App.4th at p. 682.) The defendant went on to argue that, even if he had actual knowledge of this right, he nevertheless had to be given an express warning. The court responded: “We decline appellant’s invitation to exalt form over substance. A suspect may not ‘out Mirandize’ the police by reciting his Miranda rights before the officer has admonished him and later claim the admonition was defective.” (Id. at p. 683.)
Here, similarly, the record as a whole indicates that defendant knew that he could insist on having an attorney present before any further questioning. As soon as Detective Toms said, “ . . . I want to let you know what you[r] rights are,” defendant responded, “So, I want to talk to my lawyer, please then.” Detective Toms also told him, “[B]efore I can ask you those questions, I want to make sure you understand your rights.” (Italics added.) In response, defendant correctly noted that those rights included his right to remain silent, as well as his right to an attorney. Given this evidence that he knew and understood this particular right, under Nitschmann, his self-admonition was adequate.
Finally, even though Detective Toms did not obtain an express waiver of rights at this point, “an express waiver is not required where a defendant’s actions make clear that a waiver is intended. [Citations.]” (People v. Whitson (1998) 17 Cal.4th 229, 250; accord, North Carolina v. Butler (1979) 441 U.S. 369, 373 [99 S.Ct. 1755, 60 L.Ed.2d 286].) As already noted, Detective Toms told defendant, “ . . . I want to make sure you understand your rights.” Defendant’s response was to recite those very rights, thereby affirmatively indicating that he did, in fact, understand them. After that, defendant -- without any prompting from Detective Toms -- reinitiated a discussion of the facts of the case. The only reasonable conclusion is that defendant knowingly, intelligently, and voluntarily waived his Miranda rights. (Whitson, at p. 250; see also People v. Medina (1995) 11 Cal.4th 694, 752; People v. Sully (1991) 53 Cal.3d 1195, 1233.)
5. The continuation of the interrogation after defendant was given a Miranda warning.
Defendant argues the Miranda warning he was given was ineffective because it came in “midstream,” after he had already been subjected to custodial interrogation. Yet again, defendant forfeited this argument by failing to raise it below. (See part III.B.2, ante.) We address it on the merits solely as an alternative ground for rejecting it.
Two United States Supreme Court cases have a bearing on this contention.
First, in Oregon v. Elstad (1985) 470 U.S. 298 [105 S.Ct. 1285, 84 L.Ed.2d 222], officers arrived at the defendant’s house with a warrant for his arrest for burglary. (Id. at p. 300.) They questioned him there, without giving him any Miranda warning, producing his admission that he had been present during the burglary. (Elstad, at pp. 300-301.) Thereafter, at the police station, he was given a Miranda warning; he waived his rights and gave a full confession. (Elstad, at p. 301.)
The court held that the first statement had to be suppressed, but not the second: “It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective . . . .” (Oregon v. Elstad, supra, 470 U.S. at p. 309.) “[A] careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible. The warning conveys the relevant information and thereafter the suspect’s choice whether to exercise his privilege to remain silent should ordinarily be viewed as an ‘act of free will.’ [Citation.]” (Id. at pp. 310-311, quoting Wong Sun v. U.S. (1963) 371 U.S. 471, 486 [83 S.Ct. 407, 9 L.Ed.2d 441].)
The defendant argued that “a confession can[not] be truly voluntary once the ‘cat is out of the bag.’” (Oregon v. Elstad, supra, 470 U.S. at pp. 303-304.) The court disagreed: “This Court has never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver. . . . [T]his expansive view of Fifth Amendment compulsion [would] effectively immunize[] a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver of the privilege of remaining silent. [Citation.] This immunity comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual’s interest in not being compelled to testify against himself. [Citation.] When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder.” (Id. at p. 312.)
The second pertinent case is Missouri v. Seibert (2004) 542 U.S. 600 [124 S.Ct. 2601, 159 L.Ed.2d 643]. There, a police officer questioned the defendant, who was in custody, for 30 to 40 minutes, without giving her a Miranda warning. (Seibert, at p. 604-605.) Eventually, she admitted some guilty knowledge. At that point, the officer turned on a tape recorder and gave her a Miranda warning. By reminding her of her earlier admission, he got her to confirm it. (Seibert, at p. 605.) The officer later admitted that this was a deliberate “interrogation technique”: “question first, then give the warnings, and then repeat the question ‘until I get the answer that she’s already provided once.’ [Citation.]” (Id. at p. 606.)
A four-justice plurality held that the defendant’s postwarning statement was inadmissible. In essence, it adopted the “cat out of the bag” argument that Elstad had rejected: “The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture?” (Missouri v. Seibert, supra, 542 U.S. at pp. 611-612 [plur. opn of Souter, J.], quoting Miranda v. Arizona, supra, 384 U.S. at p. 467.) “[I]t is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content.” (Seibert, at p. 613.) “Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again.” (Ibid., fn. omitted.)
Justice Kennedy, however, wrote separately, concurring only in the judgment. (Missouri v. Seibert, supra, 542 U.S. at p. 622 [conc. opn. of Kennedy, J.].) He stated, “In my view, Elstad was correct in its reasoning and its result.” (Id. at p. 620.) However, “[t]his case presents different considerations. The police used a two-step questioning technique based on a deliberate violation of Miranda.” (Ibid.) “Further, the interrogating officer here relied on the defendant’s prewarning statement to obtain the postwarning statement used against her at trial.” (Id. at p. 621.) “The technique used in this case distorts the meaning of Miranda and furthers no legitimate countervailing interest.” (Ibid.) He concluded: “The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed.” (Id. at p. 622.)
Because “Justice Kennedy provided the fifth vote in a 5-4 decision, and decided the case on narrower grounds than the majority,” his separate concurrence represents the holding in the case. (U.S. v. Nunez-Sanchez (5th Cir. 2007) 478 F.3d 663, 668, fn. 1.) Accordingly, “‘Seibert requires the suppression of a post-warning statement only where a deliberate two-step strategy is used and no curative measures are taken; where that strategy is not used, “[t]he admissibility of postwarning statements [] continue[s] to be governed by the principles of Elstad.”’ [Citation.]” (Id. at p. 668, quoting U.S. v. Courtney (5th Cir. 2006) 463 F.3d 333, 338; accord, U.S. v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158 [“Justice Kennedy’s opinion narrowed the Seibert exception to those cases involving deliberate use of the two-step procedure to weaken Miranda’s protections”].)
Admittedly, at least one court has questioned whether Justice Kennedy’s concurrence is in fact controlling: “[A]rguably Justice Kennedy’s proposed holding in his concurrence was rejected by a majority of the Court. [Citation.]” (U.S. v. Carrizales-Toledo (10th Cir. 2006) 454 F.3d 1142, 1151.) “When the plurality and concurring opinions take distinct approaches, . . . there is no ‘narrowest opinion’ representing the ‘common denominator of the Court’s reasoning[]’ . . . .” (Ibid., quoting King v. Palmer (D.C. Cir. 1991) 950 F.2d 771, 781.) In Seibert, however, “both the plurality and Justice Kennedy agree[d] that where law enforcement officers deliberately employ a two-step interrogation to obtain a confession . . ., the trial court should suppress the confession.” (U.S. v. Williams, supra, 435 F.3d at p. 1158, fn. omitted.) Moreover, the four dissenting justices would have held “that we are bound by Elstad . . . .” (Missouri v. Seibert, supra, 542 U.S. at pp. 622-623 [dis. opn. of O’Connor, J.].) Thus, it seems clear that, if “the deliberate two-step strategy” that concerned Justice Kennedy had been absent, a majority of the court would have followed Elstad.
There is no evidence that Detective Toms was deliberately using a two-step interrogation technique in an effort to circumvent Miranda. Defendant does not argue otherwise. He no longer contends that any portion of his statement was involuntary. We therefore conclude that, pursuant to Elstad, once defendant was given an adequate Miranda warning, his subsequent statements were admissible; any earlier failure to administer the warning does not require their suppression.
IV
FAILURE TO GIVE A UNANIMITY INSTRUCTION
Defendant contends that, with respect to making a criminal threat against Jane Doe (count 9), the trial court erred by failing to give a unanimity instruction.
“In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
Defendant argues that the jury could have found him guilty of making a criminal threat based on either (1) his act of holding a gun to Doe’s head and demanding oral sex, or (2) his later acts of driving by Doe’s house and phoning her. Driving by her house was not a verbal, written, or electronic threat, as Penal Code section 422 would require. (People v. Franz (2001) 88 Cal.App.4th 1426, 1439-1442.) However, we may assume, without deciding, that the jury could have found that defendant committed the crime of making a criminal threat by phoning Doe.
The prosecution can make an election by “tying each specific count to specific criminal acts elicited from the victims’ testimony” -- typically in opening and/or closing argument. (People v. Diaz (1987) 195 Cal.App.3d 1375, 1382; e.g., People v. Jantz (2006) 137 Cal.App.4th 1283, 1292; People v. Mayer (2003) 108 Cal.App.4th 403, 418-419; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455.) Here, in closing argument, the prosecutor made it clear to the jury that count 9 was based exclusively on defendant’s demand for oral copulation: “And then, we have Jane Doe saying he threatened to shoot her if she didn’t perform oral sex on him. So [CALJIC No.] 9.94, ‘A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person.’ Threatening to kill somebody meets that criteria and threatening to shoot somebody meets that criteria.” He also noted: “We have Jane Doe saying she had her two kids in the adjacent bedroom sleeping when the threat was made.” (Italics added.) This constituted a sufficient election.
Separately and alternatively, even assuming the trial court should have given a unanimity instruction, the error was harmless. The applicable harmless error test is that of Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. (People v. Wolfe (2003) 114 Cal.App.4th 177, 188 [Fourth Dist., Div. Two].) “Under that test, an appellate court may find an error harmless only if, after conducting a thorough review of the record, the court determines beyond a reasonable doubt that the jury verdict would have been the same absent the error. [Citation.]” (People v. Bolden (2002) 29 Cal.4th 515, 560.)
The evidence that defendant’s subsequent phone calls constituted the crime of making a criminal threat, even if arguably sufficient, was weak. There was no evidence that these calls included any express threats, and the only way the jury could have concluded that the calls constituted an implied threat was in light of defendant’s original express threat. A fortiori, it could not have found that the implied threat was “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” except in light of the express threat. Accordingly, we are convinced, beyond a reasonable doubt, that no juror could have found defendant guilty based on the subsequent phone calls unless that same juror also found defendant guilty based on the express threat. Hence, we are convinced that the jury verdict was unanimous.
Defendant argues that a reasonable juror could have found that he made the express threat but that it did not cause Doe to be in reasonable and sustained fear. He points out that she tried, more than once, to grab for his gun. He also relies on her testimony that, up until that night, he had been “really nice” and “treated [her] with respect.” She testified, however, that she was in fear for her life. She did not want to orally copulate defendant, but she complied with his demand. She also testified that the oral copulation lasted “20 minutes, half an hour.” In light of the fact that a drug dealer with a gun was threatening to shoot her, her testimony showed reasonable and sustained fear as a matter of law. This is true no matter how “nice” defendant had previously been and no matter how brave Doe managed to be. It is simply inconceivable that any juror could have found that this did not constitute the crime of making a criminal threat but that several phone calls a few days later did.
V
INSTRUCTIONS ON THE ELEMENTS OF MAKING A CRIMINAL THREAT
Defendant contends that the trial court effectively told the jury that it did not have to find two of the elements of making a criminal threat. (Pen. Code, § 422.)
A. Additional Factual and Procedural Background.
1. Charges.
Defendant was charged with two counts of making a criminal threat. One element of this crime is “gravity of purpose” -- i.e., that the threat, “on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution . . . .” (Pen. Code, § 422.) Another element is “reasonable and sustained fear” -- i.e., that the threat causes the victim “reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety . . . .” (Ibid.)
2. Original instructions and verdict forms.
The trial court instructed the jury on this crime using CALJIC No. 9.94. It is undisputed that this instruction correctly stated the elements of the crime, including, but not limited to, gravity of purpose and reasonable and sustained fear.
However, the verdict forms for counts 5 and 9 that the trial court originally gave the jury required the jury not only to find defendant “guilty” or “not guilty” of the crime, but also to make separate “true” or “not true” findings on each of these two elements, which were labeled as “allegation[s].” (Capitalization altered.)
The trial court gave the jury written instructions regarding the “Statement of Offenses” and the “Possible Verdicts.” Like the verdict forms, these required the jury not only to find defendant “guilty” or “not guilty” on counts 5 and 9, but also to make separate “true” or “not true” findings on the gravity of purpose and reasonable and sustained fear “allegation[s].”
The trial court never actually read the “Statement of Offenses” and “Possible Verdicts” to the jury. Instead, it gave the jury an oral summary of the “Possible Verdicts” instruction. Thus, with regard to count 5, it instructed:
“We then move on to Count V. And Count V is criminal threats towards Melissa Hacker. And you would have either 5-A, guilty of criminal threats, or 5-B, not guilty.
“And then there is what’s called a gravity of purpose allegation as to Count V. And it is the threat and crime on its face and under the circumstances on which it was made was so unequivocal, unconditional, immediate and specific as to convey to Melissa Hacker a gravity of purpose and an immediate prospect of execution to be either true or not true.
“And also with respect to the criminal threats there is an allegation called reasonable or sustained fear. And that is Melissa Hacker was reasonably in sustained fear of her safety and the safety of her immediate family, and/or the safety of her immediate family, to be true or not true.”
It gave a similar oral instruction with regard to count 9.
3. Revised instructions and verdict forms.
While the jurors were deliberating, the parties belatedly realized that these two elements of the crime should not have been treated as special allegations; they stipulated “that that’s not necessary . . . .” The trial court indicated that it would modify the “Statement of Offenses” and “Possible Verdicts” instructions, “with . . . black ink.” In addition, it would take away from the jury the verdict forms that purported to require separate “true” or “not true” findings. It then stated for the record: “[Defense counsel] had been advised by both the Court and [the prosecutor], and he has no objection [to having] the Court modify the verdicts and take the special findings out at this time.”
The trial court told the jury: “There was just a slight error made in regards to the verdict forms and statements of offense and possible verdicts as to Counts V and IX. I’ve corrected that. So I’m going to give them back to you. . . . [¶] . . . [¶] The only thing I changed was a slight error in terms of the verdict forms as to Counts V and IX.”
4. The jury’s question.
The next day, the jury sent out the following question:
“We do not find verdict forms for:
“5. Gravity of purpose allegation as to count 5
“5. Reasonably or sustained fear allegation as to count 5
“9. Gravity of purpose allegation as to count 9
“9. Reasonably or sustained fear allegation as to count 9”
The trial court responded in writing: “Those were the errors that I previously told you about on the verdict forms. The allegations as to Counts 5 & 9 do not apply -- those are the ‘elements’ of the offense. So the defendant is either not guilty or guilty of Counts 5 & 9, w/o a requirement that you find those ‘allegations’ true or not true.”
The next day, the trial court informed defense counsel of the question and its response and asked whether he had any objection. He replied that he did not.
B. Analysis.
Defendant argues that the jury was effectively told that it could find him guilty of making criminal threats without finding either gravity of purpose or reasonable and sustained fear.
Preliminarily, the People argue that defendant forfeited this contention by failing to object to the trial court’s response to the jury’s question.
A failure to object can waive the fact that the trial court responded to a jury question outside the presence of the parties or their attorneys. (People v. Jennings (1991) 53 Cal.3d 334, 383-384; People v. Garcia (1984) 160 Cal.App.3d 82, 88-89; People v. Chagolla (1983) 144 Cal.App.3d 422, 432-433 [Fourth Dist., Div. Two].) It can waive the trial court’s failure to “inquir[e] more directly about the reason for the request . . . .” (People v. Roldan (2005) 35 Cal.4th 646, 728-729.) It can also waive a complete failure to respond at all. (People v. Boyette (2002) 29 Cal.4th 381, 430; People v. Kageler (1973) 32 Cal.App.3d 738, 745-746.) And trial counsel may be held to have invited the asserted error if he or she approves the trial court’s response. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193; People v. Bohana (2000) 84 Cal.App.4th 360, 372-373.)
We have found no case, however, holding that mere failure to object waives a substantive error in the content of the trial court’s response. Ordinarily, the rule is that “[t]he appellate court may . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (Pen. Code, § 1259, italics added.) We cannot see why the fact that the assertedly erroneous instruction was given in response to a jury question should be a reason to depart from this rule.
Turning to the merits, “‘the question is whether there is a “reasonable likelihood” that the jury understood the charge as the defendant asserts.’ [Citation.]” (People v. Bland (2002) 28 Cal.4th 313, 332, quoting People v. Kelly (1992) 1 Cal.4th 495, 525, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385].) The jury had already been correctly instructed on the elements of the crime. When the trial court first contacted the jury, it indicated that the only problem involved the “Statement of Offenses” instruction, the “Possible Verdicts” instruction, and the verdict forms. Moreover, those were the only things that it corrected. As a result, the jury was no longer being asked to return “true” and “not true” findings on the gravity of purpose and reasonable and sustained fear “allegations.” Significantly, however, the trial court did not suggest that there was any problem with the instruction defining the offense, and it did not correct or modify this instruction. Accordingly, the jurors had no reason to suppose that the definition of the offense had changed.
Defendant therefore relies primarily on the trial court’s second contact with the jury. To a lawyer, of course, the trial court’s further explanation is perfectly clear -- what had previously been called “allegations” were really “elements”; therefore, “the defendant is either not guilty or guilty,” and there was no “requirement that [the jury] find those ‘allegations’ true or not true.” According to defendant, however, nonlawyer jurors were likely to misunderstand this as meaning that it could find the defendant either guilty or not guilty without having to find either gravity of purpose or reasonable and sustained fear.
The jurors, however, had just been given a crash course on elements, allegations, and the difference between them. As to each crime, they had been instructed that “each of the following elements must be proved . . . .” (CALJIC Nos. 8.10, 8.40, 8.41, 8.66, 9.00, 9.02.1, 9.06, 9.09, 9.46, 9.94, 10.10, & 14.80, italics added.) They had also been instructed that the prosecution had to prove, beyond a reasonable doubt, “every essential element of the charge” or “of the crime.” (CALJIC Nos. 2.61 & 2.62, italics added.)
By contrast, they had been instructed, in connection with the attempted murder counts, that “[i]t is also alleged . . . that the crime attempted was willful, deliberate and premeditated murder. If you find the defendant guilty of attempted murder[,] you must determine whether this allegation is true or not true.” (CALJIC No. 8.67, italics added.) Similarly, with respect to the various firearm enhancements, they had been instructed that “[t]he People have the burden of proving the truth of this allegation,” and that they were to “[i]nclude a special finding on this question in your verdict using a form that will be supplied for that purpose.” (CALJIC Nos. 17.19, 17.19.1, & 17.19.5, italics added.)
Yet another instruction referred to “the crimes of voluntary manslaughter[,] assault with a machine gun, and assault,” as distinct from “the allegations of personal use of a firearm and personal discharge of a firearm causing death . . . ." (CALJIC No. 3.39, italics added.)
In closing argument, the prosecutor likewise distinguished between a substantive offense and an “allegation,” stating: “[W]e have 11 counts, but you’ve heard the [j]udge make reference to ‘special allegations’ as well. [¶] I think there’s a tendency or inclination . . . to take the special allegations less seriously than the alleged counts. Don’t do that. These special allegations are very, very important, and it’s a very big part of the job at hand.”
We also note, once again, that the trial court did not mention, much less modify, the instruction defining the offense. It therefore seems most likely that the jurors, even if not trained as lawyers, understood the trial court’s note. In particular, it seems highly unlikely that they understood it to mean that they could find defendant guilty of making a criminal threat without having to find either the gravity of purpose or the reasonable and sustained fear elements of this offense.
VI
INSTRUCTION TO THE DEADLOCKED JURY
Defendant contends that, when the jury indicated that it was deadlocked, the trial court erred by giving it an improperly coercive instruction.
A. Additional Factual and Procedural Background.
Counts 1, 2, and 3 charged defendant with murder of Heyman, murder of Harris, and attempted murder of Universal, respectively. Each of these counts included personal firearm use and discharge enhancement allegations. (Pen. Code, §§ 12022.5, subd. (a)(1), 12022.53, subds. (b), (c), (d).)
On the third day of deliberations, the jury sent out a note stating: “We’re split on the issue of [defendant] being the shooter in counts 1, 2 & 3, as it applies to allegations -- in being the user of the firearm. [¶] What should we do now?”
The trial court responded: “You need to consider each charge and each allegation separately. Depending upon the evidence and the jury instructions you may or may not be able to resolve all the issues in this case. Further deliberations, readback of testimony, and/or clarification of jury instructions may or may not assist you in resolving the issues in this case as it relates to the charges and allegations. If you are not able to resolve the issue(s) and remain ‘split’ then ultimately the court may have to declare a mistrial as to only those charges or allegations that you cannot resolve.”
Later that day, the jury indicated that it had arrived at verdicts. In those verdicts, which were read the following day, the jury found the personal firearm use and discharge enhancement allegations in connection with counts 1, 2, and 3 to be not true.
The clerk’s and reporter’s transcripts for the day do not indicate that the trial court discussed either the question or the response with counsel. The next day, however, on the record and in the presence of counsel, the trial court read both the question and the response, and it stated that it had given its response “without any objection . . . .” It also asked defense counsel, “[W]ith regards to any communication the Court had with the jurors, do you want to make any objection for the record?” He replied, “No, [y]our Honor.”
B. Analysis.
Once again, the People argue that defendant forfeited this contention by failing to object to the trial court’s response to the jury’s question. For the reasons already stated (see part V.B, ante), we disagree.
We turn to the merits. Defendant argues that “language informing jurors that the consequence of a failure to decide is a mistrial [is] forbidden.” He relies on People v. Gainer (1977) 19 Cal.3d 835. There, however, the court’s actual holding was that “it is error for a trial court to give an instruction which . . . states or implies that if the jury fails to agree the case will necessarily be retried.” (Id. at p. 852, italics added, fn. omitted.) In the case before it, it condemned “[t]he portion of the instruction beginning with the phrase, ‘You should consider that the case must at some time be decided,’ with its attendant implication that a mistrial will inevitably result in a retrial . . . .” (Id. at p. 851, italics added.) It explained: “[S]uch statements are legally inaccurate. It is simply not true that a criminal case ‘must at some time be decided.’ The possibility of a hung jury is an inevitable by-product of our unanimous verdict requirement. Confronted with a mistrial, the People retain the authority to request dismissal of the action. [Citation.] Moreover, this option is frequently exercised . . . when the prosecution concludes that its inability to obtain a conviction stemmed from deficiencies in its case. Thus the inconclusive judgment of a hung jury may well stand as the final word on the issue of a defendant’s guilt.” (Id. at p. 852, fn. omitted; see also People v. Barraza (1979) 23 Cal.3d 675, 683 [“the trial judge herein erred in instructing the jury that ‘If you fail to agree upon a verdict, the case will be tried before another jury’”].)
The trial court’s instruction in this case did not share the vice identified in Gainer. It told the jury that the result of a failure to decide “may” be a mistrial; that was legally accurate. It did not tell the jury that a mistrial would necessarily result in a retrial; that would have been “legally inaccurate.” (People v. Gainer, supra, 19 Cal.3d at p. 852.) Defendant does not explain, and we do not see, any way in which the instruction was unduly coercive. To the contrary, it would have been coercive not to answer the jury’s question truthfully; that could have left the jurors with the impression that they simply had to agree, no matter how long that might take, and that they did not have the “escape hatch” of a mistrial.
We therefore conclude that the challenged instruction was not improperly coercive.
VII
APPRENDI/BLAKELY/CUNNINGHAM
Defendant contends that, in imposing the upper term on count 4 and in imposing consecutive sentences, the trial court violated the federal constitutional rule that any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be found by a jury (or admitted by the defendant) and proved beyond a reasonable doubt. (See generally Cunningham v. California, supra,127 S.Ct. 856; Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
The People argue that defendant forfeited this contention by failing to raise it below. We disagree. Any objection below would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
The trial court’s reasons for imposing the upper term on count 4 are not entirely clear. At the beginning of its pronouncement of judgment, it purported to find a laundry list of aggravating and mitigating factors. It found one aggravating factor relating to the defendant: “The defendant has engaged in violent conduct which indicates a serious danger to society.” (See Cal. Rules of Court, rule 4.421(b).) However, it also found four mitigating factors relating to the defendant: (1) “The defendant has no prior record of criminal conduct”; (2) “[t]he defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process”; (3) “[t]he defendant is ineligible for probation, and but for that ineligibility would have been granted probation”; and (4) “the defendant has shown some remorse.” (See Cal. Rules of Court, rule 4.423(b).)
The court then found four aggravating factors relating to “the crime”: (1) “The crime involved great violence, great bodily harm, threat of great bodily harm and other acts disclosing a high degree of cruelty, viciousness and callousness”; (2) “[t]he defendant was armed with or used a weapon at the time of the offense;” (3) “[t]he defendant occupied a position of leadership in the crime”; and (4) “[t]he manner in which the crime was carried out indicates planning, sophistication or professionalism.” (See Cal. Rules of Court, rule 4.421(a).) However, it did not find that any of these factors attached to any particular count.
Finally, it proceeded to sentence defendant in a count-by-count fashion. When it imposed the upper term on count 4, it purported to rely on only one aggravating factor: “[The court] is choosing the aggravated term on the basis that the defendant in this particular case, the attempted murder of Melissa Hacker, occupied a position of leadership.” Hence, it does not appear to have been relying on the other aggravating factors that it had found earlier. It also does not appear to have weighed this aggravating factor against the mitigating factors relating to the defendant that it had found earlier.
The People argue that all of the aggravated factors that the trial court found “reflected” defendant’s admission, in connection with counts 4 and 6, that he fired the shots at Hacker’s van. Indeed, arguably, there was a jury finding that defendant was the shooter -- at least in connection with count 6, which involved the identical shooting. (See part VIII.A, post.) We do not agree, however, that a finding (or admission) that defendant was the shooter was tantamount to a finding (or admission) that these aggravating factors (except possibly arming/weapon use) applied.
For example, defendant’s admission that he was the shooter did not require a finding that he occupied a position of leadership. Although Erik admitted driving defendant to collect a drug debt, that did not necessarily mean defendant was acting as his leader; also, Erik denied knowing that defendant was going to shoot. Likewise, even though the crime undoubtedly involved a threat of great bodily harm, this aggravating factor did not apply unless it threatened great bodily harm to such an extent as to make it “‘distinctively worse’” than the ordinary attempted murder, so as to justify the imposition of the upper term. (People v. Rodriguez (1993) 21 Cal.App.4th 232, 241, italics added, quoting People v. Moreno (1982) 128 Cal.App.3d 103, 110.) As none of the bullets actually struck Hacker, a reasonable jury could have found that it did not.
Finally, the jury also made no finding as to whether the aggravating factors outweighed the mitigating factors. Thus, even assuming that arming/weapon use had been proven as a matter of law, a reasonable jury could still have found that this factor was outweighed by defendant’s lack of a criminal record, his voluntary acknowledgement of wrongdoing, and his display of remorse. We therefore conclude that the imposition of the upper term on count 4 violated the Sixth Amendment. However, we reject defendant’s challenge to the trial court’s choice of consecutive sentencing. The “imposition of consecutive terms . . . does not implicate a defendant’s Sixth Amendment rights.” (People v. Black (2007) 41 Cal.4th 799, 821.)
VIII
FAILURE TO PLEAD OR TO OBTAIN A FINDING ON A 20-YEAR
PERSONAL AND INTENTIONAL FIREARM DISCHARGE ENHANCEMENT
Defendant contends the trial court erred by imposing a 20-year enhancement for a personal and intentional firearm discharge in connection with count 4, because no such enhancement was either pleaded or found.
A. Additional Factual and Procedural Background.
In connection with count 4 (attempted murder of Hacker), the information alleged:
1. “[T]hat a principal personally and intentionally discharged a firearm . . . within the meaning of Penal Code section[] 12022.53(c) and (e)(1).” (Italics added.)
2. “[T]hat a principal personally used a firearm . . . within the meaning of Penal Code section[] 12022.53(b) and (e)(1).” (Italics added.)
By contrast, in connection with count 6 (attempted murder of Dunning), the information alleged:
1. “[T]hat said defendant(s) . . . personally and intentionally discharged a firearm . . . within the meaning of Penal Code section 12022.53(c).” (Italics added.)
2. “[T]hat said defendant(s) . . . personally used a firearm . . . within the meaning of Penal Code section 12022.53(b).” (Italics added.)
Accordingly, in connection with count 4, the jury found:
1. “[T]hat a principal personally and intentionally discharged a firearm . . . .” (Italics added.)
2. “[T]hat a principal personally used a firearm . . . .” (Italics added.)
But connection with count 6, the jury found:
1. “[T]hat defendant . . . personally and intentionally discharged a firearm . . . .” (Italics added.)
2. “[T]hat defendant . . . personally used a firearm . . . .” (Italics added.)
In sentencing defendant on count 4, the trial court imposed a 20-year enhancement, citing Penal Code section 12022.53, subdivision (c). It also imposed -- but then stayed -- a 10-year enhancement, citing Penal Code section 12022.53, subdivision (b).
B. Analysis.
Penal Code section 12022.53 provides several enhancements applicable to the use of a firearm in the commission of attempted murder, provided other specified facts are found.
Under Penal Code section 12022.53, subdivision (b) (subdivision (b)), a defendant who personally used a firearm is subject to an enhancement of 10 years. Under Penal Code section 12022.53, subdivision (c) (subdivision (c)), a defendant who personally and intentionally discharged a firearm is subject to an enhancement of 20 years. Thus, subdivision (b) and subdivision (c), by their terms, apply only to personal use and personal and intentional discharge, respectively.
By contrast, Penal Code section 12022.53, subdivision (e) (subdivision (e)) extends the same penalties to any principal in the crime, but only if a criminal street gang enhancement (Pen. Code, § 186.22, subd. (b)) would otherwise apply. That is, any principal in a crime in which any principal personally used a firearm is subject to an enhancement of 10 years; any principal in a crime in which any principal personally and intentionally discharged a firearm is subject to an enhancement of 20 years.
Finally, Penal Code section 12022.53, subdivision (j) provides: “For the penalties in this section to apply, the existence of any fact required under subdivision (b) [or] (c) . . . shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” Similarly, Penal Code section 1170.1, subdivision (e) provides: “All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.”
We may assume, without deciding, that the information adequately alleged a subdivision (c) enhancement (People v. Riva (2003) 112 Cal.App.4th 981, 1002-1003), or, alternatively, that defendant waived its failure to adequately allege a subdivision (c) enhancement -- by failing to demur (see People v. Ramirez (2003) 109 Cal.App.4th 992, 997), by failing to object when the trial court instructed the jury on the subdivision (c) enhancement in connection with count 4 (see People v. Toro (1989) 47 Cal.3d 966, 977, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3), or otherwise. The fact remains that the jury made no finding that defendant (rather than some other principal) personally and intentionally discharged a firearm.
The People argue that we should construe the verdict as a finding that defendant personally and intentionally discharged a firearm. We recognize that defendant admitted being the shooter in this incident. We also recognize that “‘“[t]echnical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice. [Citations.]” [Citation.]’ [Citation.] A statutory requirement that the jury expressly find against a defendant on an issue is satisfied if the intention to convict of the crime is unmistakably expressed. [Citation.] ‘The verdict is insufficient only “if it be susceptible of a different construction than that of guilty of the crime charged.”’ [Citation.] The same rules apply to a finding on a sentence enhancement allegation. [Citation.]” (People v. Chevalier (1997) 60 Cal.App.4th 507, 514, quoting People v. Jones (1997) 58 Cal.App.4th 693, 710-711.) Here, the verdict is susceptible of a different construction, and the jury’s intention is by no means “unmistakably clear.” The People have not cited, and we have not found, any case that would authorize us to construe the verdict in the way they want.
The trial court did not even purport to impose the 20-year enhancement under subdivision (e). If it had done so, it would have erred, because there was no finding -- indeed, there was no evidence -- that a criminal street gang enhancement applied.
We therefore conclude that the 20-year -- and 10-year -- enhancement findings on count 4 must be stricken.
IX
OTHER SENTENCING ISSUES
A. Duplicative Multiple-Murder Special Circumstances.
The jury found true two multiple-murder special circumstances (Pen. Code, § 190.2, subd. (a)(3)) -- in connection with both count 1 and count 2. Defendant contends that only one multiple-murder special circumstance can be found true in any given case. The People concede that defendant is correct. We agree. (People v. Marshall (1996) 13 Cal.4th 799, 855.) Accordingly, we will strike one of the multiple-murder special circumstances.
B. Parole Revocation Fine.
Defendant contends that the trial court erred by imposing (albeit then staying) a parole revocation fine. (Pen. Code, § 1202.45.) As the People concede, the parole revocation fine was erroneous, because defendant’s sentence did not “include[] a period of parole . . . .” (Pen. Code, § 1202.45; see People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Petznick (2003) 114 Cal.App.4th 663, 687; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182-1183.)
C. Error in the Abstract of Judgment Regarding the “Degree” of the Attempted Murders.
Defendant contends that the abstract of judgment erroneously states that his two attempted murder convictions (counts 4 and 6) were for “1st [degree]” (i.e., premeditated) rather than unpremeditated attempted murder. (Capitalization altered.) Once again, the People concede that defendant is correct, and we agree. However, the error is moot, because the trial court will prepare a new abstract on remand.
X
DISPOSITION
The judgment with respect to conviction is affirmed. The judgment with respect to sentence is reversed. On remand, the trial court shall resentence defendant in a manner consistent with this opinion.
We concur: GAUT J., KING J.