Opinion
H043817
10-12-2017
THE PEOPLE, Plaintiff and Respondent, v. FLORENCIO ADAN ANSELMO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS141700A)
Defendant Florencio Adan Anselmo was convicted by a jury of first degree murder by lying in wait, with the special circumstance of lying in wait and an additional finding that he personally used a deadly weapon, a knife. (Pen. Code, §§ 187, subd. (a); 190.2, subd. (a)(15); 12022, subd. (b)(1).) On appeal, he contends that (1) insufficient evidence supported the jury's finding of premeditation and deliberation; (2) insufficient evidence supported the jury's finding of lying in wait, both as to the theory of first degree murder and as a special circumstance; (3) he received insufficient advisement of his Miranda rights before he confessed to killing the victim; (4) the trial court erred in giving CALCRIM No. 3428, which limited the jury's use of evidence that defendant was mentally impaired; and (5) the court erred in instructing the jury on lying in wait with CALCRIM Nos. 521 and 728. He further asserts that the cumulative effect of these errors produced an unreliable verdict and deprived him of a fair trial. We find no prejudicial error and therefore must affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Background
Defendant and the victim, Maria Ceja, had been in a relationship on and off for about a year before she was killed on July 5, 2014. For three or four months during that period he lived with Ceja, three of her children, and two young grandchildren. He was not living with Ceja on July 4, but he had frequent contact with her by voice mail and text messages, and about a week or two before that day he came to her home with flowers. About two days before July 4 he helped Ceja fold newspapers for her job delivering them.
Defendant and Ceja broke up about every other month, and Ceja had other boyfriends besides defendant. Ceja liked to go dancing, which caused the two to argue. Defendant did not like Ceja to go out, to drink, or to talk to anybody else. On one occasion she showed her son, Jesus, a bite mark in her lip, which he believed had been caused by defendant. Jesus never heard defendant threaten his mother, but he was concerned when he heard a couple of voice-mail messages to her from defendant and saw a photo he had sent her, which showed defendant holding a knife to his throat. Ceja appeared to be upset and worried by the photo.
Jasmin, an adult daughter who lived with her two children in Ceja's apartment, had also seen Ceja worried about her safety. About a month before the killing, defendant had left a voice mail for Ceja saying that " '[i]f you're not going to be for me, you're not going to be for anyone.' " Ceja told Jasmin that if anything happened to her, Jasmin would know who it was, namely defendant. About a week before she was killed, Ceja showed Jasmin a picture sent by defendant, showing him with a knife on his neck.
On July 4, 2014, Ceja went to Mariano's, a nightclub with two bars inside. At 9:01 p.m., defendant left her a voice mail telling her how much he loved her and saying that he was going to Mariano's to see if she was there.
A surveillance video at the club showed defendant arriving at 9:25 p.m. Ceja was sitting inside with a group of friends. Video footage showed defendant approaching Ceja and making contact with her at their table, followed by some discussion or argument; one of the friends pushed defendant's arm off and walked away. Defendant then grabbed Ceja's hand and led her to the dance floor. Over the next 40 minutes they danced several times.
Loriann Rodrigues, one of Ceja's friends, had moved Ceja earlier because defendant "kept coming up and trying to get her to dance, and he kept grabbing at her arm." Ceja kept telling defendant no, and at one point Rodrigues stood up and confronted defendant. Shortly thereafter Rodrigues called the security guard over to take defendant away from the table. Defendant refused to move away; he grabbed his cowboy hat and threw it on the ground. Security escorted defendant out of the club. After that, defendant was seen on video surveillance outside, pacing back and forth, trying to make phone calls, and occasionally leaning up against Ceja's car.
While defendant was outside, Esperanza Reyes, another of Ceja's friends at the club, was in the restroom with Ceja when Ceja said, "Listen. He's threatening me." She played a voice message for Reyes on her phone. Reyes heard an angry male voice yelling, " 'You will see that this time I'm going to kill you. I already told you before I am going to kill you."
Ceja left the club just before 11:19 p.m. Phone records from Ceja's cell phone between 10:20 and 11:18 p.m. listed 16 calls made from defendant's phone to Ceja's, and another six after that, ending at 12:10 a.m. the next day. At 10:24 p.m. he left a voice mail in which he cried, telling her it was her fault and saying, "[Y]ou're going to pay for this, you don't know it, but you are." In another voice mail at 10:32 p.m. he repeatedly said, "Why did you do this to me?" and asked twice when she would be leaving. At 10:37 p.m. there was only crying, followed by "I'm going to wait for you" and inaudible speech. At 11:00 p.m. there was crying; then he said, "It's your fault. It's your fault that they put me outside like a garbage can." After more crying he called her a "puta" and told her she was "going to pay . . . if not now, tomorrow."
When Ceja left in her car, defendant walked to a Shell station across the street and got into a cab parked there. At Ceja's apartment her 12-year-old daughter, Y., was watching a movie when she heard a scream outside. Looking out the window, she saw her mother's car, which was still running, and ran toward it. Defendant was leaning into the driver's side, but when he saw Y., he tried to close the door. Ceja's foot was blocking the door, so defendant grabbed his hat from the roof of the car and ran away. Y. went to her mother and saw blood on her chest. She yelled to her brother, Jesus, to call 911.
Ceja's apartment was between four and seven miles from Mariano's.
Jesus, then 17, spoke to the 911 operator as he tried to keep his mother awake. Her chest was bleeding and she struggled to breathe. When the first officer on the scene, Derek Gibson, arrived at 12:15 a.m., he saw a stab wound in the center of Ceja's chest. She was unconscious and her breathing was shallow. The parties later stipulated that Ceja died from two stab wounds to the chest.
Detective Dale Fors located Ceja's cell phone inside the car. He sent a text message to defendant's phone, saying, "Why did you do this to me?" At about 4:00 p.m. on July 5, defendant was found at the home of a friend. He was intoxicated, so he was taken to the police station, yelling obscenities in Spanish. Defendant was kept in a holding cell and observed for about five hours until he appeared sober and alert. During that period defendant asked Officer Anthony Garcia if he would allow his lady to see another guy; when he received no response, he added, "That's why I'm here." Defendant continued yelling insults and threats to kill Officer Garcia.
Detective Rodolfo Roman questioned defendant at the police station after reading defendant his Miranda rights. The entire interview was conducted in Spanish. Afterward officers took defendant to the place where he had told them the weapon was located. There inside a tree was a black cowboy hat, orange boots, and a camouflage folding knife. On the boots and knife was blood, which was stipulated to be Ceja's. After returning to the station, detectives conducted another interview. Both interviews were video-recorded and played for the jurors, who were also given transcripts with English translations. During the first interview, defendant admitted that he stabbed Ceja out of anger at being thrown out of the bar; he "wanted to get even with her." After waiting for her outside the bar, he told the detectives, he took a taxi to her apartment, hid inside her van, and confronted her when she arrived.
Defendant was charged by information with one count of first degree murder committed willfully, deliberately, and with premeditation. (§ 187, subd. (a)). The information further alleged that defendant had carried out the murder by lying in wait, within the meaning of section 190.2, subdivision (a)(15). An additional enhancement allegation stated that defendant had personally used a deadly weapon, a knife, within the meaning of section 12022, subdivision (b)(1).
Trial began on June 8, 2016. After testimony by prosecution witnesses, the defense presented numerous text messages and voice mails from defendant in the days preceding the stabbing, in which he declared his love for Ceja and asked her for forgiveness. The jury also heard about defendant's bringing flowers to Ceja and helping her fold newspapers shortly before that night.
On June 17, the jury found defendant guilty as charged and found the allegations of lying in wait and personal use of a weapon to be true. On July 28, 2016, the trial court denied defendant's subsequent motion to set aside the verdict or, alternatively, grant a new trial. It then sentenced defendant to life without the possibility of parole. Defendant's appeal is timely.
Discussion
1. Sufficiency of the Evidence
Defendant first contends that there was insufficient evidence to support first degree murder, because his "mental deficits and defects" and his emotional distress prevented him from engaging in the necessary reflection for premeditation and deliberation. He further disputes the factual support for a finding of lying in wait, both as a theory of first degree murder and as a special circumstance. Because his guilt was not established beyond a reasonable doubt, he argues, he was deprived of his constitutional right to due process.
As defendant recognizes, this court's review is circumscribed by settled principles. "We ' " 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " ' (People v. Clark (2011) 52 Cal.4th 856, 942.) . . . . 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' (People v. Brooks (2017) 3 Cal.5th 1, 57 (Brooks); People v. Casares (2016) 62 Cal.4th 808, 823-824 (Casares).) " 'Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.' (People v. Yeoman (2003) 31 Cal.4th 93, 128." (Casares, supra, at p. 823.) " ' "If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding." ' " (People v. Salazar (2016) 63 Cal.4th 214, 245 (Salazar).) The same standard applies when examining the sufficiency of the evidence supporting a special circumstance finding. (Casares, supra, at p. 824; Brooks, supra, at p. 57.)
a. Premeditation and Deliberation
" 'In the context of first degree murder, premeditation means " 'considered beforehand' " [citation] and deliberation means a " 'careful weighing of considerations in forming a course of action . . . ' " [Citation.] "The process of premeditation and deliberation does not require any extended period of time." ' " (Salazar, supra, 63 Cal.4th at p. 245.) " 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of premeditation and deliberation excludes from murder of the first degree those homicides . . . which are the result of mere unconsidered or rash impulse hastily executed.' [Citation.]" (Brooks, supra, 3 Cal.5th at p. 58; see also Casares, supra, 62 Cal.4th at p. 824 [premeditation means "thought over in advance," while deliberation "refers to careful weighing of considerations in forming a course of action"].)
Our Supreme Court has described "three categories of evidence relevant to deciding whether to sustain a verdict of first degree murder based on premeditation and deliberation: (1) evidence of planning activity prior to the killing, (2) evidence of the defendant's prior relationship with the victim from which the jury could reasonably infer a motive to kill, and (3) evidence that the manner in which the defendant carried out the killing 'was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life in a particular way for a "reason" which the jury can reasonably infer from facts of type (1) or (2).' " (Brooks, supra, 3 Cal.5th at p. 59, citing People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Our high court has cautioned, however, that "the Anderson factors are simply an 'aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.' " (Brooks, supra, at p. 59.) " 'In other words, the Anderson guidelines are descriptive, not normative.' " (Casares, supra, 62 Cal.4th at p. 824, quoting People v. Koontz (2002) 27 Cal.4th 1041, 1081.)
In this case, defendant argues, "the only rational conclusion" from the evidence is that he was unable to engage in premeditation or deliberation because he suffered from "grave mental deficits and defects" and post-traumatic stress disorder (PTSD), which caused him to react to stressful situations with rash and impulsive behavior. Defendant recalls the testimony of defense expert Edward Macias, a neuropsychologist who had examined defendant. Dr. Macias met with defendant four times, each for an hour and a half to two hours: the first was after defendant had been in jail for a year; the last, six months later. After administering a battery of neuropsychological tests and hearing defendant's account of his childhood, Dr. Macias concluded that defendant was "mildly mentally retarded" and had PTSD, with dissociative episodes. Defendant began drinking at seven years old, and his father was abusive and would strike defendant in the head. Because of his "brain impairment," defendant did not have the coping skills to handle stressful situations; if "something negative" happened in a relationship, or if he was publicly humiliated, he could be very depressed or very angry and lose control over what he was doing. His PTSD put him at risk for violent behavior and anger outbursts.
Dr. Macias acknowledged, however, that defendant showed no signs of delusional disorder or formal thought disorder. He further agreed that "killing someone very close to you who[m] you loved" could supply the traumatic event underlying a diagnosis of PTSD. Moreover, exacting revenge on someone by going to a bar to find the person, approaching the person in the bar, calling the person repeatedly, threatening the person, taking a cab to the person's house, hiding in a van to wait for the person to arrive, approaching the person when she is enclosed in a car, pulling out a knife, stabbing her twice, running away, and hiding from the police were all "goal-directed" acts that could be those of an unimpaired subject as well as one prone to violent outbursts due to PTSD.
The defense also called Dr. Carolyn Murphy, a forensic psychologist. Dr. Murphy interviewed defendant through an interpreter about a month before her trial testimony. She observed a childlike, anxious, mildly depressed individual with "cognitive limitations," who scored in the "borderline range of intellectual functioning," but who could nonetheless pay rent and buy food and other things for himself. Dr. Murphy also reported symptoms of post-traumatic stress, which she suspected rose to the level of PTSD. Having read the transcript of the police interrogation of defendant, Dr. Murphy noted that defendant did not answer some questions directly or consistently; at times his answer was a "stream of [consciousness]." That indicated to Dr. Murphy that defendant could have been confused by those questions; she admitted, however, having not watched the video recording of the interview, that in those instances he might have been simply ignoring the question entirely.
In rebuttal to the defense experts' testimony, the prosecution presented Dr. Julian Filoteo, a clinical psychologist working as a university professor and staff psychologist at the Veterans Administration. Since 1999 he had seen two or three cases a week in which PTSD was a possible diagnosis; one in four of those with PTSD symptoms did not necessarily have the disorder. Dr. Filoteo agreed that even diminished control over one's behavior did not mean a particular individual could not control his or her behavior on any one occasion; psychologists needed to be "very careful not to overapply [the diagnostic] criteria" in order to make a diagnosis and to be "very, very careful" not to assume that a diagnosis would produce a specific behavioral consequence. Dr. Filoteo further agreed that a person with a mental illness "[a]bsolutely" can still function in society; even those with severe cognitive deficits may still know right from wrong, plan, and make decisions.
Having met with defendant for approximately seven hours and watched the video recording of defendant's confession to the police, Dr. Filoteo agreed that defendant had a "mild intellectual deficit," but he disagreed with the previous experts' diagnosis of PTSD. Defendant did have symptoms associated with PTSD—namely, nightmares of his father hurting him, sleep disturbances, and crying—but they did not rise to the level of the disorder. A person with PTSD typically has trouble going to work and engaging in social activities; and if PTSD is severe enough to cause a violent response to a rejection or embarrassing event, there should be a history of violence in the person's background. Likewise, a moderate to severe traumatic brain injury could result in an increase in aggressiveness and violent behavior. Defendant did not report any history of violent social situations, trouble with coworkers, or a violent reaction to being escorted out of Mariano's. Although he had difficulties with memory, he did not necessarily have a brain injury—and if he did, it would be only a mild one; to be a moderate or severe brain injury, the person would have to have been unconscious for longer than 30 minutes, and defendant did not report that duration of unconsciousness in his history.
Clearly, the competing evaluations of defendant's cognitive and emotional functioning were a matter for the jury to weigh in its consideration of premeditation and deliberation. It could have inferred, based on the defense experts' testimony, that defendant's cognitive limitations made him likely to react rashly and impulsively in a stressful emotional situation. But it was not irrational for the jury instead to credit Dr. Filoteo's testimony and conclude that defendant was not so impaired as to be unable either to "th[ink] over in advance" his threat to kill Ceja or to engage in a "careful weighing of considerations" before carrying out his plan. (Cf. Casares, supra, 62 Cal.4th at p. 824; Salazar, supra, 63 Cal.4th at p. 245.) As noted earlier, the "preexisting thought and reflection" that constitute premeditation and deliberation need not be expressed as a cold, calculated judgment, but may be arrived at rapidly. (People v. Stitely (2005) 35 Cal.4th 514, 543.) In his police interview, defendant admitted that he was angry at being ejected from the bar and that he waited outside the bar near Ceja's car before taking a cab to her home. By this point, he told the detectives, he had already made up his mind to kill Ceja, and he threatened to kill her even before she left the club. He hid in Ceja's unlocked van for about 20 minutes until she arrived at the apartment complex where she lived. "To prove the killing was 'deliberate and premeditated,' it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act." (§ 189.) Taken together, the evidence before the jurors was more than sufficient to support their conclusion that the killing was carried out after premeditation and deliberation, notwithstanding the cognitive and emotional challenges defendant apparently faced.
b. Lying in Wait as a Theory of First Degree Murder and as a Special Circumstance
Our Supreme Court has "differentiated between the lying-in-wait special circumstance and lying in wait as a theory of first degree murder on the bases that the special circumstance requires an intent to kill (unlike first degree murder by lying in wait, which requires only a wanton and reckless intent to inflict injury likely to cause death) and requires that the murder be committed 'while' lying in wait, that is, within a continuous flow of events after the concealment and watching and waiting end. [Citations.] Contrary to defendant's argument, the lying-in-wait special circumstance is not coextensive with either theory of first degree murder; it does not apply to all murders and is not constitutionally infirm." (Casares, supra, 62 Cal.4th at p. 849; accord, People v. Delgado (2017) 2 Cal.5th 544, 576 (Delgado).)
The lying-in-wait special circumstance requires proof of " 'an intentional killing, committed under circumstances that included a physical concealment or concealment of purpose; a substantial period of watching and waiting for an opportune time to act; and, immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.' " (People v. Becerrada (2017) 2 Cal.5th 1009, 1028 (Becerrada), quoting People v. Stevens (2007) 41 Cal.4th 182, 201 (Stevens); People v. Clark (2016) 63 Cal.4th 522, 628-629.) If " ' "the evidence supports the special circumstance, it necessarily supports the theory of first degree murder." ' " (People v. Mendoza (2011) 52 Cal.4th 1056, 1073 (Mendoza); People v. Nelson (2016) 1 Cal.5th 513, 550 (Nelson).) " 'The concealment [that] is required, is that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendant's plan to take the victim by surprise. [Citation.] It is sufficient that a defendant's true intent and purpose were concealed by his actions or conduct.' " (People v. Morales (1989) 48 Cal.3d 527, 555; People v. Arellano (2004) 125 Cal.App.4th 1088, 1096 (Arellano).) The element of concealment is satisfied by a showing that a defendant's true intent and purpose were concealed by his actions or conduct (e.g., hiding in a van). (Mendoza, supra, at p. 1073.)
The situation presented to the jury is reminiscent of that described in People v. Superior Court (Lujan) (1999) 73 Cal.App.4th 1123, 1128 (Lujan), where the reviewing court observed, "[I]n domestic violence cases, decisions to kill are often made quickly and often there are long-standing emotional issues involved. In such situations, murders are not always planned long in advance and executed pursuant to a preexisting plan. Nevertheless, where a defendant makes a decision to kill, conceals his purpose, watches and waits, and takes the victim by surprise, the murder was accomplished by means of lying in wait." (Ibid.; accord, Arellano, supra, 125 Cal.App.4th at p. 1095, fn. 4.)
That defendant had already threatened Ceja does not, as defendant argues, foreclose the finding that he concealed his purpose. Ceja had no way of knowing if, much less when, he would act on his threats. (See People v. Johnson (2016) 62 Cal.4th 600, 632 [while victim may have been concerned about his safety from the gang, he did not necessarily expect that he would be executed on that occasion]; see also Arellano, supra, 125 Cal.App.4th at p. 1095 [although the recipient of death threats might have expected an attack sometime in the future, she had no way of knowing when and where the attack would occur, and repeated threats of imminent death "tended to dilute the effect of those warnings"].)
Viewed in the light most favorable to the verdict, the record contains substantial evidence—evidence that is "reasonable, credible, and of solid value" (People v. Johnson (1980) 26 Cal.3d 557, 578; Nelson, supra, 1 Cal.5th at p. 550)—to support the finding that defendant intentionally killed Ceja by lying in wait. Defendant hid in Ceja's van for about 20 minutes, until she arrived at her apartment complex. He then did not wait for her to park in her assigned spot and get out of her car; he signaled her to stop and confronted her as she sat in the driver's seat with the engine running. Given these circumstances the jury could rationally find that after concealing himself for a substantial period of watching and waiting, defendant took Ceja by surprise and attacked her with his knife from a position of advantage. No due process violation occurred. 2. Miranda Waiver
Before trial defendant moved to exclude the statements he made to the police detectives during his 46-minute initial interview in the evening of July 5, 2014. Defense counsel argued that defendant's "mild mental retardation, cognitive deficits, abusive background[,] diagnosis of Post-traumatic Stress Disorder, and intoxication raises [sic] serious questions regarding his ability to understand and appreciate the implications of waiving his Miranda rights. Moreover, the incorrect, trivialized Miranda warning, the absence of an express waiver, no prior experience with the legal system and the . . . neuropsychological findings [by Dr. Macias] all imply that Anselmo did not knowingly and intelligently waive his Miranda rights."
When arrested at 4:25 p.m., defendant was intoxicated, so detectives waited five hours before beginning the first interview. Detective Roman started by saying, "Ok. Let me read you some, some things before asking you some questions. . . ." He then read defendant his Miranda rights in Spanish and asked defendant, "Do you understand the rights that I have explained to you?" Defendant answered, "Correct." Detective Roman asked, "Yes?" Defendant nodded yes, at which point the detective asked defendant a series of questions unrelated to the crime in order to determine that defendant was able to respond appropriately. Questioning about the night before followed.
In the motion to exclude, defense counsel argued that the detective trivialized the required warnings in his introductory comment, "Let me read you some, some things . . . ." Counsel pointed out that defendant never expressly waived his rights. No knowing and intelligent waiver could have been implied, his attorney added, because he had no prior experience with the United States legal system, was of low-functioning intelligence, exhibited symptoms of PTSD, and was intoxicated. Testifying at the motion hearing, however, Detective Roman stated that he had no trouble communicating with defendant, who responded appropriately and understandably to the questions asked of him. Although defendant appeared to have a problem with numbers, he did not seem to have trouble recalling the details of events. He "could have been" under the influence of alcohol, but by the time of the interview, five hours after his arrest, he was not so affected that he could not understand what was said to him.
The trial court, having reviewed both the video and the transcript, found that defendant had made an implied waiver of his rights, as he "actually seemed fine with talking [and] didn't seem reluctant to answer the questions." Nor did defendant appear to be under the influence: his speech was not slurred, his answers seemed to be responsive, and his behavior on the video recording "seemed normal to the [c]ourt." The court further rejected the argument that defendant's cognitive disability vitiated his waiver, as he "still fully understood what he was saying [and] understood his rights."
On appeal, defendant renews his claim that his "limited intellectual and cognitive functioning, his inexperience with the criminal justice system, and his [PTSD] symptoms rendered him incapable of understanding or waiving his Miranda rights." He further points out that he lacked a formal education and was illiterate. The introduction to the warnings, he repeats, could have appeared to defendant as a "mere preamble to the questions" that would follow, and the warnings themselves "were read quickly, with very brief, irregular pauses." Finally, defendant calls attention to his "distressed and confused state" during questioning, with the video showing him "hanging his head, crying, and displaying confusion and uncertainty even when asked simple questions such as his date of birth and age." At various points in the interview, defendant gave nonresponsive answers, had trouble recognizing Ceja's apartment from a photo, called Ceja "Cejas," and forgot the name of one of Ceja's children despite having lived with them.
Defendant acknowledges that the detectives were not required to obtain an express waiver of his rights; "[r]ather, a valid waiver of Miranda rights may, as here, be inferred from the defendant's words and actions. [Citation.]" "In general, if a custodial suspect, having heard and understood a full explanation of his or her Miranda rights, then makes an uncompelled and uncoerced decision to talk, he or she has thereby knowingly, voluntarily, and intelligently waived them." (People v. Cunningham (2015) 61 Cal.4th 609, 642; see North Carolina v. Butler (1979) 441 U.S. 369, 374-375 [in particular circumstances of the case, including background and conduct of the accused, waiver may be inferred from suspect's actions and words during interrogation].) "In determining the validity of a Miranda waiver, courts look to whether it was free from coercion or deception, and whether it was ' " 'made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." ' " (People v. Davis (2009) 46 Cal.4th 539, 585-586 (Davis), quoting People v. Whitson (1998) 17 Cal.4th 229, 247 (Whitson).)
Our review of this issue is well defined: We accept the trial court's determination of disputed facts and inferences, including the credibility of witnesses, if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda. (Davis, supra, 46 Cal.4th at p. 586; Whitson, supra, 17 Cal.4th at p. 248; People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 217.) In making this independent determination, however, we " ' " ' give great weight to the considered conclusions' of a lower court that has previously reviewed the same evidence." [Citations.]' " (Whitson, supra, at p. 248.) Here, the trial court's finding that defendant understood and impliedly waived the rights he was giving up was supported by the testimony of Detective Roman and the court's own inferences from defendant's verbal and nonverbal responses during the video-recorded interview.
We are unconvinced by defendant's assertion that the admonition was "trivialized" by the detective's introductory "Let me read you some, some things before asking you some questions." " 'Reviewing courts . . . need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably "conve[y] to [a suspect] his rights as required by Miranda." ' [Citation.]" (People v . Kelly (1990) 51 Cal.3d 931, 948-949.) This is not a situation comparable to those in which interrogator misleads the suspect into devaluing his or her rights by "minimizing their legal significance," such as by representing the warnings as a mere technicality (cf. People v. Musselwhite (1998) 17 Cal.4th 1216, 1237); at most the prefatory statement here focused defendant's attention on the significance of the questions the detective was about to ask. Nor can we reject the trial court's factual finding that defendant was not so impaired that he was unable to understand the importance of his rights, the nature of the questioning, and the implications of his answers. Having independently reviewed the interrogation in light of defendant's background and his emotional expression and conduct during the interview, and according the trial court's conclusions the "great weight" they deserve (Whitson, supra, 17 Cal.4th at p. 248), we find no error in its denial of the motion to exclude defendant's post-arrest answers to the detective's questions. Defendant understood the Miranda warnings he was given, validly waived his Fifth Amendment right to remain silent and to an attorney, and voluntarily admitted planning to kill Ceja and carrying out that plan as she sat in her car.
Exhibit 1A, the video recording of the interview, was provided to this court. Our impression of defendant's evident emotional state and cognitive awareness lends support to the trial court's view that defendant was sufficiently alert and in control of the information he was conveying to the detectives. His crying episodes were frequent but brief, most often triggered by his recollection of being "dragged" out of Mariano's "by force," "like dogs." His demeanor was relatively calm as he described the knife and how he stabbed Ceja and ran away. Unequivocally he told the detectives, "I don't deny anything," and he offered to show them where he had hidden the knife.
Even if we found error, we would reject defendant's assertion that the court's admission of the challenged statements was prejudicial. Reversal of a ruling admitting statements made without a valid Miranda waiver is not required if the error was harmless beyond a reasonable doubt. (People v. Thomas (2011) 51 Cal.4th 449, 498; People v. Cunningham (2001) 25 Cal.4th 926, 994; see People v. Elizalde (2015) 61 Cal.4th 523, 542 [error in admitting defendant's answers to questions about gang affiliation without Miranda admonitions harmless where that fact was "amply established by independent and uncontradicted evidence"].) Defendant suggests that without the confession, "the evidence left room for reasonable doubt." He concedes that his prior threats, along with Y.'s testimony that she saw defendant next to her mother's car, "would arouse a strong suspicion that he was the stabber." Those threats, documented in the voice mail messages Ceja received that night, provided ample circumstantial evidence of defendant's guilt, particularly when viewed in light of the history of his relationship with Ceja, the arguments they had had over her social activities without him, the recorded events at Mariano's, and defendant's agitated response to being rejected by Ceja and escorted out of the bar. Most telling is Y.'s eyewitness account of hearing her mother scream and running outside to see defendant leaning inside the car with the door open and Ceja in the driver's seat with two fatal stab wounds in her chest. While defendant points out that the jury "might have doubted [Y.'s] testimony," he offers no reason to conclude that Y. was not a credible witness whose testimony was demonstrably false or inherently improbable. (See People v. Brown (2014) 59 Cal.4th 86, 105 [credibility of in-court witness should be left for jury's resolution absent "demonstrable falsity or physical impossibility"]; People v. Elliott (2012) 53 Cal.4th 535, 585 ["Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction"]. Reversal is not required based on defendant's disclosures to the detectives during questioning. 3. Jury Instructions
Among the instructions the jury received were CALCRIM Nos. 521, 728, and 3428, on the degrees of murder, the special circumstance of lying in wait, and the defense of mental impairment, respectively. Defendant contends that "he was harmed by errors in the wording" of these instructions.
a. CALCRIM No. 3428
As read to the jury, CALCRIM No. 3428 stated: "You have heard evidence that the defendant may have suffered from a mental defect or disorder. You may consider this evidence only for the limited purpose of deciding whether at the time of the charged crime the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically malice aforethought required for murder as charged in Count1, and the intent to kill required for lying in wait as charged in Enhancement 1."
Defendant complains that this instruction failed to mention premeditation and deliberation as elements for which the jury could consider his mental impairment. He points out that once the trial court gives an instruction on a legal point, it has a duty to do so correctly. (Cf. People v. Pearson (2012) 53 Cal.4th 306, 325 [although a trial court has no sua sponte duty to give a pinpoint instruction on the relevance of evidence of voluntary intoxication, when it does choose to instruct, it must do so correctly].)
Defendant acknowledges that he did not request an addition to the instruction focusing the jury on premeditation and deliberation. " 'A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.]" (People v. Landry (2016) 2 Cal.5th 52, 99-100; People v. Rojas (2015) 237 Cal.App.4th 1298, 1304 (Rojas).) If a defendant could have asked for modification or clarification of the instruction he or she challenges on appeal, the forfeiture rule is "triggered" and the appellate court "review[s] the alleged instructional error only to determine if [the defendant's] substantial rights were affected . . . i.e., whether the giving of [the instruction] resulted in a miscarriage of justice. [Citation.]" (Rojas, supra, at p. 1304; People v. Townsel (2016) 63 Cal.4th 25, 59-60 (Townsel); see §1259 [notwithstanding lack of defense objection, appellate court may review any instruction given, refused, or modified "if the substantial rights of the defendant were affected thereby"].)
Defendant maintains that appellate review is not precluded here because his constitutional trial rights were affected. " 'Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) Here, as defendant invokes his trial rights under the Fifth, Sixth, and Fourteenth Amendments to the federal constitution, we will review his claim of error notwithstanding his failure to request a modification. (See Townsel, supra, 63 Cal.4th at p. 60 [reviewing claim of constitutional violation despite the lack of objection to CALJIC No. 3.32].)
In this case, if his failure to request such clarifications is disregarded, and even if error occurred, it does not compel reversal. Our Supreme Court has repeatedly held that " ' "incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in [People v.] Watson [(1956) 46 Cal.2d 818].' [Citations.] '[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.' [Citation.] [¶] . . . [¶] Further, the Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (People v. Beltran (2013) 56 Cal.4th 935, 956; see People v. Larsen (2012) 205 Cal.App.4th 810, 829-830 [error in failing to give CALCRIM No. 3428 instruction nonprejudicial under Watson, where intent element was properly defined for the jury].)
Here, we cannot find a reasonable likelihood of a different outcome had defendant requested amplification of CALCRIM No. 3428 to encompass specifically premeditation and deliberation. "It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538-539.) Unquestionably the jurors were instructed on the intent or mental state required for first degree murder. The trial court told them that they could consider evidence that defendant had a "mental defect or disorder" when deciding whether, at the time of the charged crime, defendant acted "with the intent or mental state required for that crime." (Italics added.) We presume that the jurors associated the "intent or mental state" required for "the charged crime" with the mental elements of first degree murder, including premeditation and deliberation, which the court had already defined pursuant to CALCRIM No. 521. (See People v. Sanchez (2001) 26 Cal.4th 834, 852 [jurors are presumed able to "understand and correlate" instructions and to have followed the court's instructions].) There is no likelihood that a reasonable jury, considering CALCRIM No. 3428 in the context of the entire body of instructions on first degree murder, would have misunderstood the instruction as meaning it could not consider any mental impairment of defendant when determining whether the killing was by premeditation and deliberation.
Defendant's effort to distinguish Townsel is not persuasive. In that case the court instructed the jury with CALJIC No. 3.32 on how it could apply evidence of mental defect or disorder to the charges before it, which included murder, dissuading a witness, and witness-killing as a special circumstance. The defendant contended that the instruction given, directing the jurors to consider that evidence "solely" in determining whether the defendant " 'actually formed the mental state which is an element of . . . murder,' " (Townsel, supra, 63 Cal.4th at p. 59), limited the jury's consideration to malice aforethought, thus precluding its consideration of the evidence on the question of premeditation and deliberation. The Supreme Court, noting its prior decision in People v. Rogers (2006) 39 Cal.4th 826, 878 (Rogers), rejected this position, although it did find error in the instruction's preclusion of the jury's consideration of the evidence for the dissuading charge and the witness-killing special circumstance. With respect to premeditation and deliberation, the Townsel court found the instruction sufficient, because once the jury found malice, it was directed to make the further finding of premeditation and deliberation, which undisputedly was a mental state. (Townsel, supra, at pp. 62-63.)
In Rogers, the defendant likewise argued that the instruction with CALJIC No. 3.32, which generally permitted the jury to consider a mental defect or disorder in determining whether the defendant actually formed the required mental states, was inadequate because it did not specifically identify premeditation and deliberation. The Supreme Court on that occasion held, "We previously have rejected claims that a trial court erroneously failed to identify premeditation and deliberation as a mental states to which evidence of mental disease or defect was relevant, in cases where the trial court either explained that premeditation and deliberation were mental states necessary for a conviction of first degree murder . . . . In [those] cases, in light of full instructions defining first degree murder including an explanation of premeditation and deliberation, we concluded 'a reasonable jury would have understood that the requisite mental states (as set forth in the definitions of the crimes) were the same "mental states" that could be considered in connection with the evidence of defendant's mental disease, defect, or disorder.' [Citation.]" (Rogers, supra, 39 Cal.4th at p. 881.) Even though premeditation and deliberation had not been specifically identified as mental states, "no reasonable juror would have assumed premeditation and deliberation were not 'mental states' as that term was used in the instruction relating defendant's evidence of mental disease or defect to the mental state necessary for the charged crimes." (Id. at p. 882, citing People v. Castillo (1997) 16 Cal.4th 1009, 1017.)
Here, too, the instructions, taken together, adequately informed the jury that any evidence of mental defect or disorder could be used "only for the limited purpose" of deciding whether, at the time of the killing, defendant actually formed "the intent or mental state" required for murder. The challenged portion of the instruction—that it was the People's burden to prove beyond a reasonable doubt that defendant acted "with the required intent or mental state, specifically malice aforethought required for murder"—merely repeated the admonition it had given regarding the burden of proof for each element of murder.
Even if error occurred, and even if there were not (as we concluded above) abundant evidence of premeditation and deliberation in the record, the jury also found that defendant killed Ceja by lying in wait. That finding alone designated the crime as one of first degree murder. " 'Lying in wait is the functional equivalent of proof of premeditation, deliberation, and intent to kill.' . . . Once a sufficient period of watching and waiting is established, together with the other elements of lying-in-wait murder, no further evidence of premeditation and deliberation is required in order to convict the defendant of first degree murder. [Citations.]" (People v. Sandoval (2015) 62 Cal.4th 394, 416; see also People v. Wright (2015) 242 Cal.App.4th 1461, 1496 [showing of lying in wait makes unnecessary separate proof of premeditation and deliberation].) The court included "the intent to kill required for lying in wait" as part of its instruction on the use of defendant's asserted mental impairment. Thus, any misdirection of the jury as to premeditation and deliberation would not have altered the verdict.
b. CALCRIM Nos. 521 and 728
Defendant nevertheless takes issue with the instructions on lying in wait, particularly with respect to the amount of time necessary for the waiting to amount to premeditation and deliberation. In accordance with CALCRIM No. 521, the court stated, "The defendant is guilty of first degree murder if the People have proved that the defendant murdered while laying [sic] in wait, or immediately thereafter. The defendant murdered by laying [sic] in wait if, one, he concealed his purpose from the person killed, two, he waited and watched for an opportunity to act, and three, then from a position of advantage he intended to and did make a surprise attack on the person killed. The lying in wait does not need to continue for any particular period of time, but [its] duration must be substantial enough to show a state of mind equivalent to deliberation or premeditation." (Italics added.)
As a special circumstance, lying in wait was explained to the jury pursuant to CALCRIM No. 728, as follows: "A person commits a murder by means of lying in wait if, one, he or she concealed his or her purpose from the person killed, two, he or she waited and watched for an opportunity to act, three, then he or she made a surprise attack on the person killed from a position of advantage, and four, he or she intended to kill the person by taking the person by surprise. [¶] Lying in wait does not need to continue for any particular period of time, but [its] duration must be substantial and must show a state of mind equivalent to deliberation or premeditation." The court continued with the instruction by repeating its prior definitions of deliberation and premeditation.
Both as a theory of first degree murder and as part of the lying-in-wait special circumstance, premeditation was defined for the jury as "decid[ing] to kill before committing the act that caused death." Defendant was said to have acted deliberately "if he carefully weighed and [sic] considerations for and against his choice, and knowing the consequences, decided to kill." --------
Defendant first contends that these instructions told the jury that a substantial period of time, which is not defined except by linking it with premeditation and deliberation, would lead the jury to assume that the duration of waiting "by itself shows a state of mind equivalent to deliberation or premeditation." In defendant's view, CALCRIM Nos. 521 and 728 are "misleading with respect to the theory of premeditated and deliberate murder, for they equate a particular mental state, which they fail to differentiate in any meaningful way from premeditation and deliberation, with the mere passage of time." In other words, "[t]he jury, so instructed, could only suppose that a substantial period of waiting for the victim to arrive by itself compels the conclusion that the defendant's mental state was that of premeditation and deliberation." "[B]y describing the requisite duration of the lying in wait as a duration substantial enough to show the equivalent of premeditation or deliberation, the instructions distort the concepts of premeditation and deliberation and prevent the jury from concluding that the defendant may not have premeditated or deliberated despite the passage of a substantial period of time waiting for the victim to arrive." According to defendant, this conflating of the two concepts violated the requirement that premeditation and deliberation be proved beyond a reasonable doubt, improperly favored the prosecution, and "nullified" his defense of mental impairment.
" ' "It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions." [Citation.]' [Citation.] ' " 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " [Citation.]' " (People v. Covarrubias (2016) 1 Cal.5th 838, 905; see also People v. Thomas (2011) 52 Cal.4th 336, 356 ["A single jury instruction may not be judged in isolation, but must be viewed in the context of all instructions given"].)
We can find no reasonable likelihood that the jury understood the lying-in-wait instruction in the way asserted by defendant. The court gave the jury thorough instructions on first degree murder as well as voluntary manslaughter. The instructions included the specific admonition that "[t]he length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances." The jurors were also cautioned that the test of premeditation and deliberation is "the extent of the reflection, not the length of time." Connecting the duration of lying in wait to premeditation and deliberation could not have negated the full and specific instructions on premeditation and deliberation, particularly since the court told the jury that each theory of first degree murder has different requirements. Reviewing the instructions as a whole, as we must, the reference to the duration of lying in wait in CALCRIM Nos. 521 and 728 could not reasonably have misled the jury into discarding the entire explanation of premeditation and deliberation in the remaining instructions.
Defendant next looks to the lying-in-wait instruction, which he perceives as internally inconsistent to the detriment of his due process rights. Defendant points to the requirement of a "substantial" period of waiting and watching for an opportunity to act, part of both the theory of first degree murder and the special circumstance. According to defendant, CALCRIM Nos. 521 and 728 both contain an "internal contradiction within the instruction requiring a 'substantial' period of time in concealed waiting for the opportunity to act and the instruction's direction to find such substantial time provided there was time enough for the development of a mental state which 'can be reached quickly' and which is not to be tested by the length of time available for developing it . . . The internal inconsistency of the instruction precludes any confidence that the jury found the element of a 'substantial' duration of the concealment of purpose." Instead, defendant believes, the jurors would "necessarily" be led to infer "that a 'substantial' period of time is the time it would take for a person to make 'a cold, calculated decision to kill,' which, the instruction explains, can be reached quickly, so that the jury would understand that the concealment of purpose may begin and end 'quickly.' "
We are unconvinced by defendant's reasoning. He concedes that our Supreme Court has repeatedly approved of the description of "substantial period" in the lying-in-wait instructions without finding it necessary to impose a minimum duration on the jury's findings. On the contrary, " '[a]lthough we have held the period of watchful waiting must be "substantial" [citation], we have never placed a fixed time limit on this requirement. Indeed, the opposite is true, for we have previously explained that "[t]he precise period of time is also not critical." [Citation.] . . . [A] few minutes can suffice.' " (People v. Russell (2010) 50 Cal.4th 1228, 1244, quoting People v. Moon (2005) 37 Cal.4th 1, 23; Mendoza, supra, 52 Cal.4th at p. 1073; Nelson, supra, 1 Cal.5th at p. 550.) The court has likewise rejected claims that the description of the time element is contradictory and confusing. (See People v. Bonilla (2007) 41 Cal.4th 313, 332-333 [instruction on lying-in-wait special circumstance is neither contradictory nor unconstitutionally imprecise]; Stevens, supra, 41 Cal.4th at pp. 203- 2004 [special circumstance not confusing or constitutionally flawed, as "any overlap between the premeditation element of first degree murder and the durational element of the lying in wait special circumstance does not undermine the narrowing function of the special circumstance"].) In this case, moreover, there is no likelihood that the jury found a concealment of purpose that began and ended quickly, because defendant concealed himself in Ceja's van for 20 minutes, which unquestionably was a substantial period. We thus see no reasonable probability that the jury, having been instructed correctly with all of the elements of both lying in wait and premeditation and deliberation, reached an erroneous verdict in finding defendant guilty of first degree murder. 4. Cumulative Error
Defendant finally contends that reversal is required because he was deprived of his right to due process by the cumulative effect of all the errors he has asserted. As we have found no prejudicial error, there is nothing to cumulate, and hence, no denial of a fundamentally fair trial. (Cf. People v. Parker (2017) 2 Cal.5th 1184; Brooks, supra, 3 Cal.5th at p. 82.) All of his claims of error are either without merit or nonprejudicial. The evidence is overwhelming that defendant lay in wait for the victim before he stabbed her to death: He killed her with intent, by physically concealing himself and his purpose, waited a substantial period of time for her to return home, and when she appeared, immediately attacked her by surprise from a position of advantage. (Becerrada, supra, 2 Cal.5th at p. 1028; Delgado, supra, 2 Cal.5th at pp. 575-576.) Reversal is not warranted in these circumstances.
Disposition
The judgment is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.