Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FWV036464 Joan M. Borba, Judge.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Theodore M. Cropley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, Acting P. J.
INTRODUCTION
A jury found defendant guilty of shooting at an occupied motor vehicle (Pen. Code, § 246) (count 2) and assault with a firearm (§ 245, subd. (a)(2)) (count 3). The jury found true the allegation that defendant personally used a firearm when shooting at the motor vehicle. (§ 12022.5, subd. (a).) The trial court sentenced defendant to a term of five years in state prison. Defendant contends the trial court erred by denying his motion to suppress statements that were obtained in violation of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436, 467-474 (Miranda).) We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury was hopelessly deadlocked as to the attempted murder charge (§§ 664, 187, subd. (a)) (count 1), and the court dismissed the charge.
The jury was hopelessly deadlocked as to the findings for the special allegations other than the one they reached a verdict. The court struck the allegations “based on the jury not being able to reach a verdict . . . .”
FACTS
For clarity, we divide the facts into three sections: (1) facts related to the crimes at issue in this case; (2) facts concerning defendant’s statements to Officer Zick, both before and after defendant was notified of his Miranda rights; and (3) facts concerning events at trial.
A. Defendant’s Crimes
Prior to the commission of the crimes at issue in this case, defendant dated Melanie, who is the mother of the victim’s child. Defendant had a history of threatening the victim and driving by the victim’s house while playing loud music.
On December 25, 2005, the victim and his child visited a friend at the friend’s house. The victim and his child left the friend’s house and began driving to the victim’s house, which is located in Ontario. While stopped at an intersection, the victim saw defendant stopped in another vehicle at the same intersection. The victim took a different route home than he normally does; the victim hoped defendant would think the victim was a different person because the victim was scared. However, at a different intersection, defendant stopped next to the passenger side of the victim’s vehicle.
The victim and defendant drove side-by-side, and defendant pointed a gun at the victim. The victim saw the gun and decided to turn left. As the victim made the left turn, he heard four gunshots. The victim continued to make his left turn; defendant did not follow him. The victim arrived at his house, and the victim’s brother discovered a bullet hole in the rear passenger side door of the victim’s car. The victim called 911 and informed the operator that defendant shot at him.
During the 911 call, police interviews, and trial, the victim referred to hearing varying amounts of gunshots. He claimed to have heard one shot, two shots, and four shots; at trial he testified to hearing four shots.
Fontana Police Department officers arrived at defendant’s home, placed defendant in handcuffs, and sat him down on the street curb while they waited for Ontario Police Department officers to arrive. Officer Zick from the Ontario Police Department then arrived at defendant’s home and questioned him as he sat on the curb to ascertain if defendant was in fact the suspect police had been looking for.
In the meantime, another officer investigated the intersection where the shooting took place and discovered two .22-caliber “Super X” brand shell casings. The victim was transported to Fontana in order to identify a possible suspect. The victim identified defendant as the person who shot at his car. Officer Zick then handcuffed defendant and placed him in the backseat of his patrol car. Officer Zick described defendant as being “[v]ery nervous” and sweating profusely.
Officer Zick requested permission to search defendant’s vehicle; defendant consented. An officer discovered five .22-caliber “Super X” brand live rounds in defendant’s vehicle. Officer Zick requested permission to search defendant’s house; defendant consented. Officer Zick found .45-caliber ammunition inside the house. A gun was not found.
A forensic specialist from the Ontario Police Department conducted a gunshot residue test on defendant’s hands. The test results were negative. The forensic specialist examined the bullet hole in the victim’s car. While the forensic specialist believed it was caused by a small caliber bullet, he “wouldn’t necessarily say [it was caused by] a [.]22.”
B. Defendant’s Statements to the Police
1. Pre-Miranda
Officer Zick transported defendant to the police station. After arriving at the police station, Officer Zick interrogated defendant, which was recorded on DVD. Officer Zick testified that defendant was not free to leave at any point during the interrogation.
During the interrogation, prior to notifying defendant of his Miranda rights, Officer Zick informed defendant that defendant had been “pointed out as a suspect” in an assault that took place in Ontario. Defendant denied assaulting anyone and claimed not to have been in Ontario. Officer Zick asked defendant about his prior arrest record. Defendant said that he had been arrested once before for driving under the influence. Officer Zick inquired as to where defendant grew up. Defendant discussed where he was born and the different areas where he has lived. The officer again asked defendant if he had been in Ontario on the day of the crimes. Defendant stated that he had been in Ontario for a brief time in the morning.
Officer Zick asked defendant why people would have reported seeing defendant’s vehicle and license plate in Ontario, ostensibly at night when the crimes occurred. Defendant responded by claiming that an incident similar to this one had occurred in Fontana involving “some guy—[defendant] used to be with his girlfriend.” Defendant began to describe incidents that he believed involved the victim and Melanie making false reports to the police.
For clarity, we will refer to the “guy” as “victim” because we are able to infer from the facts that defendant is referring to the victim in this case, although we recognize that neither defendant nor Officer Zick refer to the victim by name. We will also refer to defendant’s former girlfriend as “Melanie,” for the same reason.
Due to the repeated mention of prior incidents by defendant, the victim, and witnesses, we label the prior incidents by number to assist the reader in tracking the various episodes.
Defendant described, in detail, an incident in which Melanie arrived at his home at approximately 1:00 a.m. to retrieve her possessions from defendant’s house. Melanie arrived at defendant’s house with officers from the Fontana Police Department because she falsely claimed defendant had threatened her with a gun. Defendant stated that he and his father had called the “Watch Commander” to complain about the police accompanying Melanie to his home at 1:00 a.m. Officer Zick often interjected in defendant’s story with minor comments, such as “I hear you,” “[u]h-huh,” and “[n]ice,” but did not ask questions, allowing defendant to continue describing the history between defendant, the victim, and Melanie.
b. Prior Incident No. 2
Defendant then began relating an incident that occurred between the victim and Melanie. Defendant described an occasion when the victim and Melanie were arguing over their child. In order to keep his child, the victim called the police to falsely report that Melanie tried to “run him over.”
Defendant interchanges his use of pronouns, referring to “him” when ostensibly speaking about Melanie and “her” when speaking about the victim. We infer from his story that he intended to say the victim made a police report, rather than Melanie making a police report.
c. Prior Incident No. 1 – Further Details From Defendant
Defendant then provided more details regarding an incident in Fontana when Melanie tried to recover her belongings from his house. Defendant discussed his feelings about Melanie, saying that he “wasn’t going to settle down with her anyway.” Defendant claimed that the victim and Melanie “both ha[ve] a history of doing some stuff like [calling the police with false accusations].”
Officer Zick then asked defendant a third time if he had been in Ontario on the day of the crimes. Defendant again claimed to have only been in Ontario during the morning. Officer Zick again asked why witnesses would have claimed to have seen defendant’s vehicle and license plate in Ontario. Defendant denied that anyone had seen him in Ontario, and that “[the victim] even tried to do the same thing to [Melanie], tried to go get her witnesses to. . . .”
2. Post-Miranda
As defendant was speaking, Officer Zick interrupted and notified defendant of his Miranda rights. Defendant stated that he understood his rights. Officer Zick then inquired as to whether defendant wanted to continue talking. Defendant said “[o]kay” and asked why he had been arrested. After the officer informed defendant of the charges, defendant continued talking with the officer.
Officer Zick again asked defendant whether he had been in Ontario on the day of the crimes. Defendant repeated that he had only been in Ontario during the morning. Officer Zick then began a series of pointed questions, asking defendant if he owned any firearms or ammunition; defendant denied owning any firearms or ammunition. Officer Zick then interrogated defendant regarding who he lived with, why there was gang writing on the walls in defendant’s house, and why drug paraphernalia was found in the home. Officer Zick asked defendant about the .22-caliber bullets inside defendant’s vehicle. Defendant claimed he “do[es]n’t own a .22,” and that “[he] do[es]n’t need to own any kind of gun [because he]’ll use [his] hands.”
a. Prior Incident No. 3
Defendant then began describing another prior incident with the victim. Defendant stated that he “confronted” the victim once when the victim had “threaten[ed defendant] over the phone.”
b. Offense in the Instant Case
Officer Zick asked defendant why officers would have found bullet casings in the street where the victim claimed the shooting took place. Defendant stated he did not know and then speculated that “[the victim]’s that crazy that he probably shot his own fucking car and said [defendant] did it.” Defendant denied knowing the type of vehicle the victim owned and again claimed that the victim was “lying.” Defendant went on to deny being in Ontario at the time of the crimes and stated he had not shot a gun the day of the crimes.
c. Prior Incident No. 3 – Further Details From Defendant
Defendant then retold the story regarding confronting the victim, after the victim threatened defendant over the telephone. The interrogation concluded with defendant claiming that “[i]t ain’t worth it. It’s not even worth fighting over a girl. I wouldn’t even fight.”
C. Motions and Testimony at Trial
1. Motion to Exclude Defendant’s Statements
During pretrial motions, defense counsel made a motion to suppress the statements defendant made to Officer Zick. The court held a hearing on the matter and denied the motion—deeming all of the statements defendant made to Officer Zick admissible. The trial court found the delay in notifying defendant of his Miranda rights did not constitute a “softening up or a cajoling on behalf of the officer in order to ingratiate himself and to ingratiate a conversation, disparagement of the victim, et cetera, to the point where it would be considered cajoling and [defendant] would waive his Miranda rights.” Further, the court found that “[t]here was no mention of an attorney by the defendant at any point. The Miranda waiver was voluntary. And . . . evidence before the admonition . . . did not constitute a softening up.”
During trial, defense counsel objected to the admission of defendant’s statements to Officer Zick. The trial court overruled the objection. During trial, defense counsel objected a second time to the introduction of defendant’s statements to Officer Zick, for the purpose of putting the objection on the record.
2. Testimony Related to Statements Made by Defendant to Officer Zick
This section contains brief summaries of the testimony of several witnesses, which is relevant to the harmless error analysis, post.
a. Officer Zick’s Testimony
At trial, Officer Zick testified to statements made by defendant while defendant was in the back of the officer’s patrol car and statements made during the pre- and post-Miranda warning interrogations. Additionally, the DVD recording of the interrogation was played for the jury and the jury was given transcripts of the recording.
b. The Victim’s Testimony
The victim testified to the facts of the crimes at issue in the case and about prior incidents occurring between himself and defendant. With the exception of incident No. 3, the victim testified to different prior incidents than those described by defendant during the pre- and post-Miranda warning interrogations.
i. Prior Incident No. 4
The victim described occasions where defendant drove by his house approximately 50 times, while playing loud music.
ii. Prior Incident No. 5
The victim also testified regarding an incident when defendant came to the victim’s house and told the victim “that [the victim] need[ed] to give [his] son back to Melanie by ten o’clock or [defendant]’ll be back to take care of [the victim].” The two began yelling at one another and the victim walked toward defendant’s vehicle. Defendant exited his vehicle and a gun fell off defendant’s lap onto the ground. The two continued to yell at each other and defendant eventually left.
iii. Prior Incident No. 3
The victim testified to a separate incident involving several of defendant’s friends, which began when Melanie abruptly hung up on the victim during an argument. The victim used the “*69” telephone feature to call Melanie; defendant answered the telephone. Defendant told the victim, “Don’t call my house. You’re lucky I let her talk to you.” The victim responded, “Fuck Ontario,” because he believed defendant was a member of the gang “Onterio Varrio Sur.” Later, three of defendant’s friends “ran up on [the victim, his brother, and friends],” while defendant stayed in his car. One of defendant’s friends yelled, “Who said, ‘Fuck Ontario?’” while flashing a gun.
In the reporter’s transcript, when referring to the “Onterio Varrio Sur,” Ontario is spelled “Onterio.”
iv. Prior Incident No. 6
The victim testified to another prior incident involving himself and defendant. The victim, his child, Melanie, and Melanie’s daughter, were in front of a house, when defendant arrived and began yelling. The victim spoke to defendant and then heard defendant cocking a gun. The victim asked defendant if he was going to shoot him in front of the children. Defendant told the victim, “You’re lucky your kids are with you.”
c. The Victim’s Brother’s Testimony
i. Offense in the Instant Case
The victim’s brother testified that when the victim arrived home on the night of the shooting, the victim said, “I was shot at.” The victim’s brother looked at the car and saw “the bullet hole under the . . . passenger side back door.”
ii. Prior Incident No. 4
The victim’s brother further testified to seeing defendant “driving by [his] house” on previous occasions.
d. The Victim’s Neighbor’s Testimony
i. Prior Incident No. 4
The victim’s neighbor testified that he witnessed defendant’s car “just passing by, six to eight times.”
ii. Prior Incident No. 5
The victim’s neighbor saw defendant and the victim arguing with each other on one occasion. The victim and his neighbor spoke after the incident of defendant and the victim yelling at one another, and the victim told his neighbor that defendant had a gun, which had fallen off his lap. On the night of the shooting at issue in this case, the victim’s neighbor was outside his house, washing his vehicle, when defendant arrived home; however, he did not hear any gunshots that night.
e. Melanie’s Testimony
Melanie stated that defendant “would talk about [the victim] a lot. He would just say that, no matter if [defendant and Melanie] were together or not, even if it was 20 years from now, [defendant] was going to get [the victim].” Melanie heard defendant say that “he would kill [the victim]” two or three times. Melanie also thought that defendant was obsessed with the victim.
i. Prior Incident No. 4
Melanie testified that defendant drove by the victim’s house two or three times a day, playing loud music.
ii. Prior Incident No. 6
Melanie testified regarding a prior incident when she was in front of her mother’s house with her daughter, the victim, and the child she shares with the victim, when defendant drove by and yelled at them. Melanie did not see a gun that day; however, she had seen defendant with a gun in his car two or three times before.
iii. Prior Incident No. 1
Melanie also testified regarding an occasion when she attempted to retrieve her belongings from defendant’s house. Melanie stated that she was not able to take her belongings because when defendant saw she had the police with her, he told the police that she did not have any property inside the house. Melanie then left defendant’s home and returned to her house, where she was met by defendant in her driveway. Defendant told Melanie that “[she] F’d up. [She] shouldn’t have done that,” which she believed referred to bringing the police to defendant’s house. Defendant then told her, “You and your family are dead.” Melanie called the police, who arrived and spoke to defendant, but she does not believe they made a report of the incident.
iv. Prior Incident No. 3
Melanie testified that she once called the victim from defendant’s house and the victim called her back at defendant’s house. Melanie heard defendant threaten the victim over the telephone, saying “not to call the house, that he doesn’t know who he’s messing [with], that he’s from Ontario. He said ‘You don’t know me, you don’t know the people that I know, don’t call my house again.’”
v. Prior Incident No. 2
Melanie testified that the victim made a false report to the police accusing her of attempting to run him over with a car, when the two were fighting over their child.
3. The Prosecution’s Use of Defendant’s Interrogation
In addition to playing the DVD recording of defendant’s interrogation during trial, the prosecutor referenced statements made by defendant to Officer Zick during closing arguments. The prosecutor argued that defendant appeared nervous in the recording of the interrogation because he “talk[ed] fast” and “couldn’t articulate an entire sentence,” and such behavior is evidence of “consciousness of guilt.” Further, when addressing the issue of motive, the prosecutor argued, “Read his transcript [of the interrogation]. It’s 40 pages. It’s 40 pages. Mine is all marked up. But it is 40 pages of the defendant talking about Melanie and [the victim]. 40 pages. All he can talk about is those two individuals. He doesn’t even mention them by name. But that’s all he talks about.”
The prosecutor went on to contend that the failure to present a police report verifying the incident between defendant and Melanie, concerning her attempt to retrieve property from defendant’s house in Fontana, was not important because defendant’s statements to Officer Zick on “[p]ages 7 through 10” of the interrogation transcript corroborate Melanie’s testimony.
The prosecutor also pointed out the consistencies between defendant’s statements to Officer Zick and the testimony given by the witnesses at trial. The prosecutor argued that defendant’s statement that he dated Melanie corroborated the witnesses’ testimony, as well as defendant’s statement that he argued with the victim over the telephone. The prosecutor cited pages 30 and 31 of the transcript, instructing the jury to “[r]ead it. It’s very lengthy. [Defendant] details it out exactly what happened with this phone call, and that he went over to the victim’s house and he confronted him about his phone call. And he, he goes over to the victim’s house. And this is what he says on [p]age 31, line 12 . . . .” The prosecutor also referenced the consistencies between defendant’s statements to Officer Zick regarding the incident with Melanie in Fontana and the testimony given at trial.
When arguing about the facts related to the gunshot residue test, the prosecutor noted defendant’s statement to Officer Zick on “[p]age 29,” that he knew gunpowder “shoots all the way up your arm.” The prosecutor argued that such knowledge was proof that defendant “knows how to get rid of [gunshot residue] . . . .” The prosecutor went on to argue that defendant’s statements and conduct during the interrogation were “consciousness of guilt,” because defendant “was never told who was making the accusations [and h]e was never given the name [of the victim] . . . [or] the name of Melanie . . . [y]et he talks for 40 pages about how this guy is trying to set him up.” As further proof, the prosecutor pointed out that “[i]t’s not even until [p]age 14 that [defendant] is told that he is being accused of an assault and shooting at an occupied vehicle, not until [p]age 14.” The prosecutor then asked, “If you’re not guilty, why are you going to spend 40 pages talking about this guy setting you up?” The prosecutor argued defendant’s ability to identify the victim without information from Officer Zick was also proof that defendant was obsessed with the victim. The prosecutor stated the transcript of the interrogation “should be People’s No. 1.”
The prosecutor went on to argue the case, citing “[p]age 30” to support the argument that the victim was not “setting” up defendant; “[p]age 14” to support the argument that defendant owned the property in his car, which had gang writing on it; “[p]age 21” to support the argument that defendant “knows the gang lingo”; “[p]age 14, [l]ine 23” to support the argument that defendant was motivated to commit the crimes “because [the victim] was with [defendant’s] girl”; and “[p]age 16” to support the argument that defendant had knowledge of the bullets in his car.
DISCUSSION
Defendant contends the trial court erred by denying his motion to suppress statements that were obtained in violation of his Miranda rights. (Miranda, supra, 384 U.S. at pp. 467-474.) We separate defendant’s contention into two parts: (1) the statements made prior to the Miranda warning being given; and (2) the statements made after the Miranda warning was given. We conclude the post-Miranda warning statements were properly admitted and the admission of the pre-Miranda warning statements was an error, but that error was harmless.
A. Post-Miranda Warning Statements
We begin by addressing the trial court’s decision to admit the statements made by defendant after the officer notified him of his Miranda rights.
“The threshold issue when interrogators question first and warn later is . . . whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires.” (Missouri v. Seibert (2004) 542 U.S. 600, 611-612 (Missouri).) “[F]acts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” (Id. at p. 615.) After applying these five factors, if we find “[i]t would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before[, then we must conclude that t]hese circumstances . . . challeng[e] the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that []he retained a choice about continuing to talk.” (Id. at pp. 616-617.)
The People contend that an analysis pursuant to Missouri, supra, 542 U.S. 600, is not applicable because (1) defendant did not make any incriminating statements during the pre- and post-Miranda warning interrogations and (2) Officer Zick did not intentionally engage in question first, warn later techniques described in Missouri. (Missouri, at pp. 613-614.) We disagree. Defendant’s statements were incriminating; we discuss this in detail in our harmless error analysis, post. Further, Officer Zick’s error was not as egregious as the error at issue in Missouri, which we also discuss post; however, he did execute the question first, warn later technique, whether intentionally or not. Accordingly, we conclude the People’s argument that an analysis pursuant to Missouri is unwarranted, is without merit.
In reference to the completeness and detail of the pre-Miranda warning interrogation, defendant provided information regarding his whereabouts on the day of the crime; defendant admitted a prior arrest for driving under the influence; defendant discussed where he has lived throughout his life; defendant described a prior incident with Melanie, where he accused her of falsely informing the police that he had threatened her with a gun so that they would escort her to his house to recover her belongings (prior incident No. 1); and defendant discussed the details of an incident where the victim filed a false police report against Melanie during a fight over the custody of their child (prior incident No. 2). The pre-Miranda warning interrogation was not as complete as the post-Miranda warning interrogation because it did not address the evidence uncovered by police, such as the ammunition and drug paraphernalia.
As to the overlapping content of the two interrogations, defendant made similar statements during the pre- and post-Miranda warning interrogations on the topic of his whereabouts on the day of the crime. During both interrogations, defendant discussed his history with the victim and Melanie; however, he spoke about different prior incidents during the pre- and post-Miranda warning interrogations.
In regard to the timing and setting of the first and second interrogations, both took place in the same room and were not separated by any significant moment in time. The officer simply interrupted defendant to notify him of his Miranda rights and then continued with the interrogation. We have reviewed the DVD recording of the interrogation and note that Officer Zick spent approximately 30 seconds informing defendant of his Miranda rights before resuming the conversation with defendant.
Concerning the continuity of police personnel, only one officer conducted the pre- and post-Miranda warning interrogations.
In reference to the degree to which Officer Zick’s questions treated the interrogations as continuous, after giving the Miranda warning, Officer Zick immediately referred back to defendant’s pre-Miranda answers, by asking, “So that means—so you’re a hundred percent positive you weren’t in Ontario today?” Officer Zick did not question defendant as though a new interrogation had begun.
Despite the seemingly continuous nature of the pre- and post-Miranda warning interrogations, we conclude the Miranda warning was effective because after giving the Miranda warning, Officer Zick asked defendant, “Do you want to talk to me now about what’s going on?” At this point, it would have been natural for defendant to refuse to speak to Officer Zick. A reasonable person in defendant’s shoes would have understood he retained a choice about continuing to talk. We do not find that it would have been unnatural for defendant to refuse to repeat the information that he had already provided to Officer Zick. Accordingly, we conclude it was reasonable for the trial court to find that in these circumstances the officer’s warnings functioned effectively as Miranda requires. Consequently, we find no error in the trial court’s decision to deny defendant’s request to exclude the statements he made in the post-Miranda warning interrogation.
B. Pre-Miranda Warning Interrogation
We now address the trial court’s decision not to exclude statements defendant made prior to the officer notifying him of his Miranda rights.
Miranda warnings are required “prerequisites to the admissibility of any statement made by a defendant.” (Miranda, supra, 384 U.S. at p. 476.) A defendant can waive his Miranda rights by making “[a]n express statement that [he] is willing to make a statement and does not want an attorney followed closely by a statement . . . .” (Id. at p. 475.) It is impermissible to presume a defendant waived his rights if the record is silent. (Ibid.) “[W]e independently determine whether the challenged statement was obtained in violation of Miranda’s rules.” (People v. Weaver (2001) 26 Cal.4th 876, 918.)
The statements defendant made prior to being notified of his Miranda rights were inadmissible because Miranda warnings are required “prerequisites to the admissibility of any statement made by a defendant.” (Miranda, supra, 384 U.S. at p. 476.) There is nothing in the record indicating that defendant was informed of his Miranda rights prior to entering the interrogation room with Officer Zick. Consequently, we conclude the trial court erred by not excluding the statements defendant made prior to being notified of his Miranda rights.
We note that the trial court chose not to exclude defendant’s statements because it found that defendant made the statements “voluntar[ily]” and that defendant was not “cajol[ed]” by the officer. This standard is found in the language of Miranda; however, it concerns a defendant being “threatened, tricked, or cajoled into a waiver.” It is not a standard by which to review the admissibility of statements made when Miranda warnings were not given. (Miranda, supra, 384 U.S. at p. 476.) The trial court also admitted the statements because defendant did not request an attorney during the interrogation; however, it is impermissible to assume a defendant waived his rights where the record is silent. (Id. at p. 475.)
C. Harmless Error
The People contend that any error the trial court made by not excluding defendant’s statements was harmless because during the interrogations defendant did not make any incriminating statements regarding the crimes at issue in this case. We reject the People’s reasoning, but conclude the error was harmless.
1. Verdict Unattributable to Trial Court’s Error
The erroneous admission of a defendant’s statement that was taken in violation of the defendant’s Miranda rights is reviewed under the harmless “beyond-a-reasonable-doubt” standard of review, set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Neal (2003) 31 Cal.4th 63, 86.) “The beyond-a-reasonable-doubt standard of Chapman ‘requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citation.] ‘To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is ‘whether the . . . verdict actually rendered in this trial was surely unattributable to the error.’ [Citation.] [¶] In Chapman, the court stated that ‘error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot . . . be conceived of as harmless.’ [Citation.]” (Ibid.)
Many of the issues defendant addressed during the pre-Miranda warning interrogation were discussed again during the post-Miranda warning interrogation or testified to by witnesses at trial. First, during the pre-Miranda warning interrogation, defendant discussed his whereabouts on the day of the shooting. Defendant also addressed where he had been during the day of the crimes after he was informed of his Miranda rights. Second, pre-Miranda,defendant described a previous incident involving Melanie arriving at his home with police officers (prior incident No. 1). At trial, Melanie testified regarding the same incident (prior incident No. 1). Third, defendant informed Officer Zick that the victim had made a false police report alleging that Melanie had attempted to run over him with a car (prior incident No. 2). Melanie testified to the false report at defendant’s trial (prior incident No. 2). Fourth, defendant’s demeanor during the pre-Miranda warning interrogation was essentially the same as his post Miranda warning demeanor. In addition, Officer Zick testified regarding defendant’s behavior during the interrogation. Accordingly, we find that the information contained in defendant’s pre-Miranda warning interrogation was also presented to the jury in the post-Miranda warning interrogation or witness testimony.
Furthermore, while the prosecutor repeatedly referred to defendant’s pre-Miranda warning interrogation during closing arguments, we note that the prosecutor’s arguments were lengthy and detailed, and relied on a great deal of evidence other than defendant’s statements. An example is the prosecution’s discussion of the ballistics evidence: “We have a bullet hole in the car. We have a bullet hole consistent with a 22-caliber weapon, accord[ing] to [the expert witness]. We have 22-caliber casings in the intersection. We have 22-caliber live rounds located in defendant’s car. We have live rounds in the car within an hour of that shooting. And both the casings and live rounds are X Winchester brand.”
Additionally, the prosecution’s arguments as to each individual count did not rely on the statements defendant made during the pre-Miranda interview. When arguing that the evidence supported a finding that defendant had shot at an occupied motor vehicle (§ 246), the prosecutor directed the jury’s attention to the testimony of the victim and the evidence regarding the shell casings found on the street.
When arguing that defendant should be found guilty of assault with a firearm (§ 245, subd. (a)(2)), the prosecutor relied upon Melanie’s testimony arguing, “We have Melanie who came in and testified that the defendant has a gun in his car that he drives around with the gun. She had seen that gun in his car. . . . So we know that he has a gun, and this time he used it.” The prosecution did not rely on defendant’s pre-Miranda warning statements.
When arguing that defendant personally used a firearm (§ 12022.5, subd. (a)), the prosecutor did not refer to any specific evidence presented during the trial, saying, “The fact that he just simply points the weapon at the victim is sufficient to establish that firearm enhancement.”
We note that the prosecutor stated that the motivation for presenting defendant’s statements to Officer Zick was to prove defendant’s intent to commit the crimes. However, defendant was found guilty of general intent crimes (§§ 246, 245, subd. (a)(2)); the jury was unable to reach a verdict on the specific intent crime (§§ 664, 187, subd. (a)).
Although section 246 provides that a defendant must have acted “maliciously and willfully” in shooting at an occupied motor vehicle, it is a general intent crime. (People v. Overman (2005) 126 Cal.App.4th 1344, 1356-1358.)
We conclude that the majority of the information provided by defendant during the pre-Miranda warning interrogation was attested to by witnesses at trial or repeated by defendant during the properly admitted post-Miranda warning interrogation. In addition, the prosecution’s references to defendant’s statements during closing arguments were negligible given the considerable reliance placed on other evidence. Accordingly, we conclude beyond a reasonable doubt that the verdict rendered in this trial was unattributable to the court’s error of admitting defendant’s pre-Miranda warning statements.
2. Instant Case is Distinguishable from Missouri
We further conclude that Officer Zick’s interrogation of defendant is distinguishable from the interrogation at issue in Missouri. First, in Missouri, there was evidence in the record that the police officers planned not to notify the defendant of her Miranda rights. (Missouri, supra, 542 U.S. at pp. 604-605.) The record in the current case does not contain any evidence of such planning on the part of Officer Zick. Second, in Missouri, the officers questioned the defendant without notifying her of her Miranda rights, then gave her “a 20-minute coffee and cigarette break,” after which they informed her of her Miranda rights, turned on the tape recorder and “confronted her with her prewarning statements.” (Missouri, at p. 605.) In this case, Officer Zick confronted defendant with one prewarning statement regarding his whereabouts on the day of the crime. Defendant repeated his pre-Miranda warning answer and Officer Zick did not attempt to lead defendant into repeating the other statements he made prior to being informed of his Miranda rights. Accordingly, we find the court’s error in admitting defendant’s pre-Miranda warning statements to be harmless beyond a reasonable doubt.
3. The People’s Argument
The People’s argument that the admission of defendant’s pre-Miranda warning statements was harmless because the statements were not incriminating fails because “no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statements given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.” (Miranda, supra, 384 U.S. at p. 477.)
In this case, the prosecutor stated that the victim’s testimony and defendant’s statements to the police, concerning his history with the victim and the mother of the victim’s child, would be used to prove defendant’s “intent to commit this crime . . . .” Due to these facts, we must reject the People’s reasoning because defendant’s statements to Officer Zick were incriminating. Nevertheless, we reaffirm our determination that the trial court’s error in admitting the statements was harmless beyond a reasonable doubt, considered within the context of all the evidence.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KING, J.