Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C149675
Kline, P. J.
Appellant Jarell Maurice Johnson was found guilty, following a jury trial, of the murder of Maria King. On appeal, appellant contends (1) the trial court erred in denying his motion to suppress incriminating statements obtained in violation of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); and (2) the redaction of his videotaped confession was error under constitutional and statutory law and was prejudicial to his defense. We shall affirm the judgment.
Procedural Background
On April 8, 2005, appellant was charged by information with the murder of Maria Catherine King. (Pen. Code, § 187, subd. (a).) On December 6, 2005, the district attorney filed an information also charging Derrell Lamont Morgan with King’s murder, pursuant to Penal Code section 187, subdivision (a). On December 20, 2005, the trial court granted the district attorney’s motion to consolidate the two cases.
On September 25, 2006, a jury convicted appellant and Morgan of murder in the second degree. On November 17, 2006, the trial court sentenced appellant to 15 years to life in state prison.
Also on November 17, 2006, appellant filed a notice of appeal.
Factual Background
Prosecution Case
Cynthia Luttrell, a police officer with the Berkeley Police Department, was patrolling northwest Berkeley on the night of February 7, 2005. While talking with the owner of the Marina Liquor Store at University Avenue and Bonar Street, Luttrell observed three young Black men wearing dark clothing enter the store just before midnight. She later learned their names were Jarell Johnson, Korey Usher and Lawrence Dillon. The men purchased snacks, left the store, and walked across the street to the convenience shop at the Shell gas station. About a half hour later, Luttrell saw the young men walking north on Sacramento Street, a few blocks from the liquor store. They were joined by a fourth Black man of the same age group. She saw them turn right on Hearst Avenue, which is near Ohlone Park.
Lawrence Dillon testified that after leaving the stores, he, appellant and Usher walked toward BART and lounged in the park, smoking and drinking, across the street from the station. Dillon stated that appellant walked back toward University Avenue to get something from the store and returned in “a little bit.” Appellant did not say anything to Dillon and Usher when he returned. Dillon said, “[h]e just walked past us nonchalant.”
Around 1:00 a.m. on February 8, 2005, Herbert Miller, a resident property manager at an apartment complex on University Avenue, heard a bottle break on the street and “stomping on the ground.” From his office window, he saw two figures wearing dark clothing kick something in the middle of the street. They were on California Avenue, near an Out of the Closet thrift store, approximately 30 to 40 feet from the intersection with University Avenue. They took turns kicking the side of the object, about three to four times each, “[n]ot in any kind of organized fashion, but just kind of back and forth, just kicking, winding up, a kicking, again winding up and kicking again.” Miller saw them begin to walk away, but one of the figures turned around, ran back, and jumped on the object with both feet. They then walked toward Ohlone Park, two blocks away. Miller was not sure the object was a body, but he had a “bad feeling” and called 9-1-1.
Berkeley police and paramedics responded to the emergency call. They found Maria King, a frail and unresponsive woman, lying in the middle of the street, with significant trauma to her face and head. She was transported to Highland Hospital where she was treated for multiple facial fractures and traumatic brain injury. Dr. Miriam Bullard, an attending physician at Highland, testified that King also had bruising to her anterior chest, facial swelling and lacerations to her scalp. King never regained consciousness and died almost two weeks later, on February 21, 2005.
Dr. Sharon Van Meter, a pathologist in Alameda County, performed King’s autopsy on February 22, 2005. The autopsy showed that King had a number of small bruises on her body, but extensive injury to her head, including a skull fracture. Dr. Van Meter concluded that the cause of death was “[b]lunt trauma to the head. [¶] . . . [¶] . . . from multiple blows.”
While emergency responders attended to King, the Berkeley Police Department dispatched several officers to search for suspects in the neighborhood. Officer Skylar Ramey detained two young men wearing dark clothing, Korey Usher and Lawrence Dillon, at the intersection of Hearst and California Avenues, on the south side of Ohlone Park. Officer Stanley Libed spotted a Black man in dark clothing, appellant, near the intersection of Delaware and California Avenues, on the north side of Ohlone Park. Libed pulled directly in front of appellant, stated he needed to speak with him, and then immediately handcuffed appellant. Because of appellant’s “calm” demeanor, Libed did not think he was involved in the offense. Appellant said “something about getting off the 15 bus” and going to BART. Libed testified that he walked appellant “back a few steps” to California Avenue and “gestured back towards University where we could see all the lights and everything else just to explain to him why I stopped him.”
Appellant’s reply brief states that appellant “was stopped at gunpoint by a uniformed officer.” Appellant does not cite where in the record it mentions that Officer Libed used a gun, and we have found no reference to a gun in our review of the record.
“Just on a whim,” Libed used his flashlight to glance down at appellant’s feet because he was aware that the offense involved stomping or kicking. To his “great surprise,” Libed saw blood on appellant’s shoe. Almost immediately after, appellant gestured toward the police lights and stated, “I kicked some lady back there. She grabbed my hair.”
Libed broadcast on the air that he had a detainee with blood on his shoe. Officer William Cocke responded to Libed’s message and came to the site where appellant was detained. In the presence of the officers, appellant said, “I kicked her ass. She freaked out on me.” Another officer brought eyewitness Herbert Miller for a field show-up. According to Libed, Miller stated that appellant’s clothing looked “very similar” to that of the dark figures he saw kicking the body. Subsequently, Libed verbally “Mirandized” appellant. A few minutes later, appellant stated, “I beat the shit out of her.”
After a Berkeley police sergeant showed up, the officers determined there was enough probable cause to arrest appellant for the assault of King. When appellant asked the charges, Libed responded that it would depend on the condition of the victim. Libed transported appellant to the Berkeley Police Department, re-Mirandized him using an admonition form, and took appellant’s statement. The statement read: “ ‘I’m really sorry it all happened. I didn’t mean for any of this to happen. I really hope she’s okay. Around midnight I was walking west on University towards the BART station to go home. I’d been drinking with some friends in Oakland, and I just got off the No. 15 bus. . . .’ [¶] . . . [¶] ‘I saw a bunch of stuff by the thrift store on University at California. I went looking for some records in the pile. I was hoping to find some Jimmie Hendrix or Bob Marley. There was a homeless person on the sidewalk sleeping next to the pile and I tried not to disturb them. . . .’ [¶] . . . [¶] ‘I had to get pretty close to the person while looking through the box and suddenly the homeless lady reached for the box [and] said, “What the fuck?” and I slapped her hand away. . . .’ [¶] . . . [¶] ‘She then started screaming, grabbed my dreads, and pulled them. She really freaked out. I got scared, and I reacted to defend myself. I studied martial arts. . . .’ [¶] . . . [¶] ‘And the training kicked in and I defensed [sic] myself on instinct. I kicked her while she was on the ground twice. And then I stopped. I realized what had happened, that she was no longer a threat, and I stopped and walked away back towards BART. As I was walking away, I realized what I had done. And I started feeling really bad. So when Officer Libed stopped me a little later I cooperated completely. I’m really sorry. I hope she’s ok.’ ”
Libed testified that this statement was the first indication he had that appellant had been drinking. Libed did not investigate appellant’s sobriety level, and stated that he did not remember smelling alcohol on appellant’s breath. After finishing the statement, appellant asked Libed to return to the jail and tell him about the condition of the victim.
The following morning, Detective Lionel Dozier and Sergeant Howard Nonoguchi videotaped an interview with appellant. At trial, a redacted version of the video was played which eliminated all references to appellant’s codefendant, Derrell Morgan. In the video, appellant confirmed that Officer Libed had read him his rights and that he understood those rights. Appellant stated that he was drinking in Oakland with friends the night before and then took the No. 15 bus by himself to University Avenue. He was walking down University when he saw some junk, boxes, clothes and a homeless lady. He decided to look through the boxes for records, and explained, “I reached for a box BAM, I grabbed the box from where she was at, she tried to reach for it, and she, she said ‘what the fuck’ and she reached for the box and I knocked her hand away and she probably grabbed my collar . . . and she grabbed my hair . . . and I beat the shit out of her, man.”
Appellant described the attack further, stating, “[I] punched her like first she had my hair—BAM—she tried to run from me, I BAM, I gave her another one, I kicked her in her head like three times,” and “she was like ‘what the fuck,’ I’m like ‘Bitch, watch out,’ . . . she tried to grab my collar . . . BAM, ‘Bitch, get the fuck off me, yo.’ [¶] . . . [¶] Hit her in her jaw like twice, like BAM, BAM, I gave her like some uppercuts, BAM, BAM. And then she let me go, she tried to run in the street, I’m, she was running, she turned was around, I BAM.”
The parties stipulated that appellant never indicated that he went back and stomped on the body with both feet. The court also informed the jury of another stipulation by all parties “that at three different places in the interview in response to questions, the defendant Mr. Johnson told the detectives ‘I was by myself.’ ”
Detectives also spoke with acquaintances of appellant and codefendant Derrell Morgan. On March 29, 2005, Christon Parker, a friend of appellant and Morgan, told Detectives Robert Rittenhouse and Lionel Dozier that he knew the identity of the second attacker but would not give a name. He also said appellant would never name the other attacker because “they [were] like brothers.” Rittenhouse testified that during subsequent interviews with Parker on April 30, and May 5, 2005, Parker recalled driving past the crime scene with Morgan, and recalled Morgan saying that was where he “beat” and “went dumb” on the woman.
Lawrence Dillon’s ex-girlfriend, Sashay Long, also testified about the identity of the attackers. Dillon told Long on February 8, 2005, that on the night before, Morgan and appellant walked past Dillon and another young man. Appellant and Morgan were “giggling,” but would not tell Dillon why they were laughing. Weeks later, Dillon and Long saw Morgan at a liquor shop, and Dillon told Long that Morgan was the other guy with appellant on the night of the attack.
DNA analysis of the blood on appellant’s shoe was “consistent” with a blood sample taken from Maria King. There was a one in 990 billion chance among Caucasians, one in 2.2 trillion chance among African-Americans and one in 7.6 trillion chance among Hispanics that an unrelated individual would have had the same DNA profile as the blood found on appellant’s shoe.
The prosecution also introduced evidence of a prior similar incident between appellant and a homeless person. Maurice Thompson testified that, in 2003, a man smashed a bottle on his head while he was sleeping on the sidewalk with other homeless people. Thompson identified appellant as the attacker. As Thompson chased after appellant, appellant and his friend continued to throw more bottles and garbage until they were all detained by police officers near the scene. Thompson recalled that when appellant was sitting in the police car waiting to be transported, he was “still smiling and laughing” at Thompson.
The two young men detained for the attack on Thompson were appellant and Korey Usher. Officer Kenneth McKellar of the Oakland Police Department took Thompson’s statement on the night of the incident. The statement identified Usher as the man who broke the bottle over Thompson’s head.
Defense Case
The victim, Maria King, a homeless woman living on the street for many years, had “mental problems” and was arrested on various occasions for trespassing or public drunkenness. On one occasion in May 2004, she resisted arrest by flailing, kicking and using foul and discriminatory language. She kicked the window of a patrol car and an officer’s kneecap.
Rebuttal
Appellant punched a fellow inmate, John Ellwanger, at Santa Rita Jail on September 3, 2006, during the course of the trial. Ellwanger had joked that “it sounded like [appellant] and his celly were making sex.” Appellant hit Ellwanger more than once. Ellwanger required seven stitches, but did not file a complaint.
Discussion
I. Motion to Suppress Statements to the Police
Appellant asserts that the trial court erred in admitting his first three statements because they resulted from the functional equivalent of interrogation. He further argues that the subsequent Miranda admonitions before his fourth and fifth statements did not cure the original violation, and therefore the trial court should have suppressed all of his incriminating remarks.
A. Trial Court Background
Pursuant to Miranda v. Arizona, supra, 384 U.S. 436, on August 2, 2006, appellant filed a motion to suppress statements he made to Officer Libed, Sergeant Nonoguchi and Detective Dozier over the course of the night he was arrested for the assault of Maria King. Appellant sought the suppression not only of his statements to Libed while detained near Ohlone Park, but also his written statement and videotaped interview which took place in the Berkeley police station after Miranda advisements had been given.
At the suppression hearing, Officer Libed testified that after hearing a police broadcast of an attempted murder, he stopped and handcuffed a young Black man, appellant, a few blocks from the crime scene. Libed told appellant that he “may be in the wrong area at the wrong time” and then walked appellant “[t]wo or three steps” to the intersection to point out the police lights two blocks away. Knowing that the incident involved kicking, Libed “happened to glance down” with his flashlight. After seeing a red substance on appellant’s shoe, Libed “leaned a little bit closer . . . to get a better look.” Libed testified that he did not tell appellant to look at his shoe, did not shine the flashlight at the shoe more than once, did not look at appellant or ask questions. However, Libed’s police report stated, “I directed Johnson’s attention to the substance,” and Libed admitted that at preliminary hearings he had stated, “I may have pointed at it.” He also acknowledged that he was “pretty sure” he did not say anything to appellant about the substance, but he was not absolutely certain. Almost immediately after Libed illuminated appellant’s shoes, appellant said, “I just kicked some lady back there after she grabbed my hair.”
Libed then discreetly broadcast this information because he “didn’t want [appellant] to respond to that.” When Officer Cocke arrived to assist, Libed told Cocke about the blood and appellant’s incriminating statement, but Libed testified “this [wa]s not saying anything to [appellant] about this incident at all.” The officers were not talking about the assault when appellant said, “I kicked her as she freaked out on me.” After the eyewitness stated that appellant’s clothes were very similar to those of the people he had observed kicking an object, Libed decided to Mirandize appellant because “enough had transpired to make [me] believe that he was the suspect.” Libed had lost his card which listed the Miranda advisements, so he recited the warnings by memory. Appellant responded that he understood his rights and wished to tell Libed what happened. However, Libed did not question appellant further because he wanted to return to the station and use proper forms. He marked on the back of his hand that this first Miranda warning took place at 1:15 a.m. While waiting for Libed’s supervisors, appellant “spontaneously said I beat the shit out of her.” Libed marked the time of this statement as 1:22 a.m.
Libed said that while they were waiting at the detention site he purposefully avoided discussing the nature of the crime with appellant. He explained, “[appellant] appeared to want to tell us what happened spontaneous—he made spontaneous statements. I did not want to start discussing the matter because he seemed to want to talk about it on his own. I [didn’t] have to have a custodial interrogation at the scene.” Instead, they talked about where appellant grew up and what kind of career he wanted. Libed said he was “very careful not to talk about the incident of the offense” during these casual conversations.
At the police station, approximately an hour later, Libed read the Miranda admonition which was printed at the top of a three-page waiver and confession form. Libed asked appellant if he understood each of the rights, to which appellant responded yes. Libed did not attempt to probe appellant’s level of understanding, nor did he investigate whether appellant was intoxicated. Appellant also said yes when asked if he would like to talk. Libed then proceeded to take appellant’s written statement in the presence of another officer. Libed described this as “an interactive process” as he would ask questions and then repeat and write down appellant’s answers. Appellant read over and signed the statement a little after 2:00 a.m. on February 8, 2006.
Sergeant Nonoguchi also testified at the suppression hearing. He stated that a little after 10:00 a.m. on February 8, 2005, he and Detective Dozier asked appellant if they could talk to him about the offense, and appellant agreed. They asked appellant if he remembered and understood the rights Officer Libed had given him, and “having those rights in mind,” if appellant wished to talk again. Appellant said “Uhm-hmm.”
The interview, which was videotaped, was played without redaction at the suppression hearing. The trial court then addressed the admissibility of appellant’s various statements to the police, considering each statement separately. Regarding appellant’s comments at the detention site near the park, the court said that moving a detainee a very short distance so he could see the police lights is “not exactly the same as bringing the suspect to the crime scene.” The court also said, “Shining a flashlight on the shoes of the suspect is something that the officer’s entitled to do, and is not in and of itself an interrogation technique. There [we]re no questions asked and the evidence indicates that.” The court noted the ambiguity of evidence regarding whether Officer Libed pointed at the shoes, but, “[g]iven all the facts . . . [there was not] the functional equivalent of interrogation or anything close to it.” The court concluded that appellant’s statements were “made spontaneously” and therefore were admissible. The court also found that Libed properly gave appellant the Miranda admonition before taking appellant’s written statement at the police station, and that Nonoguchi drew appellant’s attention to his rights before interviewing him on videotape. As there was “no violation of the Miranda rule with respect to the tape-recorded statement” or the written statement, the court ruled this evidence admissible as well, essentially denying the suppression motion in full.
B. Legal Analysis
When reviewing a denial of a suppression motion based on an alleged Miranda violation, “ ‘ “[w]e must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citation.]” ’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 128.) The People bear the burden of establishing by a preponderance of evidence that a defendant’s statements were not obtained in violation of his or her right against self-incrimination. (Colorado v. Connelly (1986) 479 U.S. 157, 168-169; People v. Bradford (1997) 14 Cal.4th 1005, 1034.)
The Fifth Amendment privilege against self-incrimination is protected by procedural safeguards that ensure any waiver of this right is made “voluntarily, knowingly and intelligently.” (Miranda, supra, 384 U.S. at p. 444.) The safeguards articulated in Miranda require that “[p]rior to any questioning, the [suspect] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” (Ibid.) Statements, whether inculpatory or exculpatory, obtained in violation of Miranda may not be used by the prosecution at trial. (Id. at pp. 444, 479.)
Miranda admonitions apply only to statements obtained from custodial interrogation. (Miranda, supra, 384 U.S. at p. 444.) If either custody or interrogation is absent, “ ‘Miranda simply does not come into play.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “The test for custody does not depend on the subjective view of the interrogating officer or the person being questioned.” (People v. Mosely (1999) 73 Cal.App.4th 1081, 1088.) Instead, the trial court must apply “an objective legal standard and decide if a reasonable person in the suspect’s position would believe his freedom of movement was restrained to a degree normally associated with formal arrest.” (Ibid.)
Interrogation, or its functional equivalent, is defined as “any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response.” (People v. Mosely, supra,73 Cal.App.4th at p. 1089; accord, Rhode Island v. Innis (1980) 446 U.S. 291, 301 (Innis).) The inquiry “focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” (Innis, at p. 301.) However, if a suspect in custody voluntarily makes spontaneous statements not in response to police questions or conduct, those statements are admissible. (Miranda, supra, 384 U.S. at p. 478; People v. McDaniel (1976) 16 Cal.3d 156, 172.) Furthermore, police officers are not obligated to prevent the suspect from volunteering incriminating statements. (People v. Edwards (1991) 54 Cal.3d 787, 815-816.)
Here, appellant made a series of incriminating statements at three different locations in the early and midmorning of February 8, 2005. Two of these statements, “I just kicked some lady back there,” and “I kicked her ass as she freaked out on me,” were made before Officer Libed gave appellant his Miranda warnings. A third statement, “I beat the shit out of her” came after Libed verbally Mirandized appellant, but while he was still on the street near Ohlone Park. The two other statements at issue, the written statement taken by Libed, and the videotaped interview with Sergeant Nonoguchi and Detective Dozier, were given at the police station, after a formal Miranda admonition and a reminder of those rights. Given that Libed immediately handcuffed and moved appellant toward the police lights, and then transported him to the police station, we will assume that appellant made each of these statements while in custody. However, we will review each of the statements separately to determine if any resulted from interrogation or its functional equivalent.
Appellant made his first remark, “I just kicked some lady back there,” immediately after Libed shined his flashlight on appellant’s shoes. The question is whether Libed knew or should have known that this action, in combination with moving appellant a few steps toward the police lights, was likely to elicit an incriminating response from appellant. (Innis, supra, 446 U.S. at p. 301; People v. Mosely, supra,73 Cal.App.4th at p. 1089.)
Libed testified that although he originally thought appellant was not associated with the offense, he “happened to glance down” at appellant’s shoes because he knew the attempted murder involved kicking. As it was the middle of the night, Libed could not simply look down to confirm his initial impression that appellant was uninvolved. Therefore, he used his flashlight, and when he unexpectedly spotted a red substance, he did not ask questions or verbally refer to the evidence in any way. Libed did not shine the flashlight at appellant’s shoes more than once, nor did he look at appellant’s face for a response. The officer “bent down, because [he] was surprised,” but otherwise did not visibly or verbally react to seeing the blood. There was some dispute as to whether Libed pointed or otherwise “directed” appellant’s attention to the shoes with his flashlight. However, Libed testified at the suppression hearing that his actions “at the scene [were] clearly not intentional” as everything happened too quickly.
Appellant cites several cases to support his contention that this behavior violated his rights, but only two involve non-verbal police conduct. In People v. Taylor (1986) 178 Cal.App.3d 217, a detective walked over to the suspect, who was being held at gunpoint, and showed him a glove and bracelet that were found under a nearby tree. Although the officer did not say anything, the display prompted the suspect to make incriminating statements, which the appellate court held were inadmissible. (Id. at p. 222.) In People v. Ferro (1984) 63 N.Y.2d 316, officers placed stolen furs in front of the defendant’s prison cell. Without any verbal communication from the officers, the defendant made statements about the furs that the appellate court once again found inadmissible. (Id. at p. 320.)
The present set of facts are distinguishable from Taylor and Ferro. Most notably, Libed did not approach appellant from a distance with evidence in hand to deliberately show him. “A couple minutes” after moving appellant toward the police lights, Libed took his flashlight and “quickly glanced down at [appellant’s] feet.” Given that it was dark, Libed’s act of checking appellant’s feet with his flashlight was simply normal conduct for a police officer rather than an action that Libed should have known would prompt appellant to respond. Appellant correctly points out that Libed’s intent is not the relevant inquiry. However Innis did not intend to strip officers of all normal police activities because they may prompt the suspect to talk about the offense. (Innis, supra, 446 U.S. at pp. 299-300.) Miranda and Innis were concerned about “techniques of persuasion” that “reflect a measure of compulsion” such as line-ups and psychological ploys, not basic police actions such as handcuffing and looking over a suspect. (Innis, at pp. 299-300; Miranda, supra, 384 U.S. at pp. 477-478.)
We also agree with the trial court that moving appellant a few steps toward police lights was not “the kind of thing that the U.S. Supreme Court justifiably was concerned with.” Interrogation requires “a measure of compulsion above and beyond that inherent in custody itself.” (Innis, supra,446 U.S. at p. 300; accord, People v. Jefferson (2008) 158 Cal.App.4th 830, 840.) Libed did not transport appellant to the crime scene or say anything about the scene once they were in view. As appellant was moved only a few steps, we do not believe this was a coercive tactic that was the functional equivalent of interrogation.
Nor do the separate actions of moving appellant two or three steps and shining a flashlight on his shoes combine to form the functional equivalent of interrogation. “ ‘Under both state and federal law, courts apply a “totality of circumstances” test to determine the voluntariness of a confession. [Citations.]’ ” (People v. Haley, (2004) 34 Cal.4th 283, 298.) Given that appellant had been detained for just a short period of time, that Libed shined the light on appellant’s shoes “a couple minutes” after moving him a mere “two to three steps,” that Libed hardly reacted to the evidence, and that appellant and Libed were located two blocks away from all the other police activity, we conclude that Libed’s actions, under the totality of circumstances, were not the functional equivalent of interrogation. Therefore, appellant’s first statement was admissible.
Appellant’s second statement, “I kicked her ass. She freaked out on me,” occurred after Officer Cocke joined Libed at the detention scene near Ohlone Park. Libed acknowledged that he told Cocke about the red substance and appellant’s first incriminating statement, but this conversation “[wa]s not saying anything to [appellant] about this incident at all.” Again, this situation differs from the case law appellant cites. Libed did not discuss the evidence with appellant, as did the officer in United States v. Orso (9th Cir. 2000) 234 F.3d 436, 438-439; nor did Libed and Cocke carry on a poignant conversation about the evidence that might appeal to the suspect’s sensitivities, as in Innis, supra, 446 U.S. at page 295.
Libed confirmed that appellant’s statement was not in response to police questioning or conversation, and that the officers were not even talking about the assault when appellant volunteered that he “kicked her as she freaked out on me.” Libed and Cocke could not reasonably have known that this brief discussion of the situation between themselves would later prompt appellant to make incriminating statements. Therefore, this second statement was not the functional equivalent of interrogation and was also admissible. (See United States v. LaPierre (9th Cir. 1993) 998 F.2d 1460, 1466 [“While it undoubtedly would have been sounder police practice for [the officers] to have refrained from discussing [the case] within [the suspect’s] earshot, we cannot say that the officers should have known that their conversation was likely to evoke an incriminating response”]; see also People v. Mayfield (1997) 14 Cal.4th 668, 734-735 [officers’ discussion of suspect’s request to see his father was not the functional equivalent of interrogation].)
After the eyewitness field show-up, Libed verbally gave appellant his Miranda warnings. While waiting for transport to the police station, appellant made his third incriminating comment, “I beat the shit out of her.” Appellant does not contend that Libed’s verbal Miranda warnings were unacceptable, and the trial court did not find any error with the content of the warning. Nor was there any apparent connection between appellant’s statement and any police questioning, conversation, or action. Because volunteered statements, offered both before and after Miranda admonitions, are “not barred by the Fifth Amendment,” the trial court properly ruled that this third statement was admissible. (Miranda, supra, 384 U.S. at p. 478; see People v. McDaniel, supra, 16 Cal.3d at p. 172.)
Appellant made his fourth statement, a written confession, after Libed repeated the Miranda warnings and gave appellant a waiver form with his rights printed at the top. Appellant signed the statement that was attached to the waiver. The trial court found appellant’s “waiver was complete and knowledgeable.” While Detective Dozier and Sergeant Nonoguchi did not reread the Miranda rights before they videotaped appellant’s fifth and final statement, Nonoguichi did remind appellant of his rights, and appellant agreed to talk. The trial court stated, “the Miranda admonition ha[d] been given to [appellant] on three different occasions and there has been, in my judgment, a complete and knowledgeable and voluntary waiver of his rights under the Miranda decision.” We find no reason to disturb this finding. Appellant argues nonetheless that “the initial error cannot be ignored in reference to subsequent events.” However, we have not found an initial error, and hence, appellant’s fourth and fifth statements, which were proffered after he received Miranda admonitions and effectuated a waiver of his rights, were also admissible.
The preponderance of the evidence clearly shows that none of appellant’s five statements were obtained in violation of his Miranda rights. Therefore, it was not error to admit all of appellant’s incriminating remarks.
II. Redaction of Videotaped Statement
Appellant also argues that the redaction of his videotaped statement prejudicially deprived him of evidence needed to support his defense. He asserts, “[t]he redactions left [appellant’s] counsel unable to argue effectively against the prosecution’s position [that] the videotaped description of the assaults was true.” According to appellant, if the jury had understood the extent of appellant’s lies during the interview, it may have discounted the video and given more credence to the other evidence describing appellant’s lesser role in the attack, and thus have convicted him of a lesser crime. Appellant also contends the redactions were impermissible under Evidence Code section 356 and on due process grounds.
A. Trial Court Background
In addition to appellant’s description of the assault that Detective Dozier and Sergeant Nonoguchi captured on videotape, appellant told the officers that, after getting drunk in Oakland with friends, he took the bus to Berkeley to “talk to [his] partner. [¶] . . . [¶] . . . Derrell” who lived in the area. He tried calling Derrell, but “his phone was turned off.” He then described his encounter with King and reiterated at least three times, “I was by myself.” Even after the officers insisted that another person was with appellant, he replied “Was you all there?” and said it was “[b]ogus” that an eyewitness saw two figures “[b]ecause I was by myself.” Apparently frustrated with the officers’ attempt to ascertain the identity of the second attacker, appellant asked to return to his cell and the interview ended shortly thereafter.
On August 3, 2006, during in limine hearings, the court acknowledged “some concerns about various portions of the statement that may implicate another party.” The prosecutor and defense counsel for Derrell Morgan requested that the court redact sections of the recording to eliminate all references to Morgan so that the jury would “have no idea another person was involved” from appellant’s confession. Defense counsel for appellant argued that the whole recording should be admitted, except for the last few lines after appellant requested to return to his cell, in order to suggest appellant lied not only about his solo participation in the offense but also exaggerated the extent of his actions in order to protect Morgan.
The court ordered a series of redactions, first removing the few lines appellant spoke about coming to Berkeley to “talk to his partner. [¶] . . . [¶] My partner is Derrell,” and that Morgan lived in the neighborhood. The second redaction edited out appellant’s statement that he used a payphone to call Morgan. The remaining redactions included appellant’s remarks that he was by himself despite the officers’ insistence that appellant did not act alone. The court found these redactions appropriate, pursuant to People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton), because the redactions were not “distorting the statement in any way. . . . There [wa]s no omitting of exculpatory material.” The court also ordered redaction of the last portion of the interview in which the officers continued to converse and question appellant after he said, “What’s up, man, I mean all of this interrogation bullshit, man, can I go back to my room or something, man.”
After further argument from appellant’s counsel, the court said, “I see no prejudices here to either party. I see no prejudice to Mr. Johnson [appellant]. I obviously see no prejudice to Mr. Morgan with the redactions in place. . . . [¶] So I will order these redactions made.”
Appellant’s counsel then formally moved to sever the trials, arguing that the redactions deprived appellant of a defense. Appellant’s counsel explained that he hoped to demonstrate to the jury that appellant’s written statement supported the eyewitness account that appellant kicked King just a few times, and therefore the videotape was replete with exaggerations and lies. The court denied the motion. When the court suggested adding the three statements appellant made about being alone to the redacted videotape, appellant’s counsel said he did not believe it cured the problem, but “that’s up to the court.” The court did not add the three statements back to the tape.
On August 8, 2006, appellant’s counsel filed a motion requesting “that the court reconsider its order redacting [appellant’s] videotaped statement, grant his motion to sever, or exclude the videotape entirely.” Additionally, appellant’s counsel filed a declaration under seal for the court to review in camerain which he reiterated his reasons for requesting that the whole videotape statement be admitted. Later that day, the trial court stated that it “examined [the declaration] line by line” but denied the motion for reconsideration because the redaction and joint trial did not in “any way either deprive the defendant Mr. Johnson of a defense, nor [did] it prejudice Mr. Johnson in any way.”
On August 28, 2006, appellant’s counsel again asked the court to reconsider its ruling regarding the videotape redactions. “Incorporating everything that [was] said earlier in the course of [the trial court’s] rulings,” the court denied the request to reconsider. However, the court and prosecutor agreed to allow appellant’s counsel to ask Detective Dozier or Sergeant Nonoguchi on cross-examination whether appellant stated that he was alone three times. Two days later, upon general agreement from all counsel, the court made the following announcement and instruction to the jury: “You [the jury] recall that [a video] was viewed by you yesterday in connection with the testimony of Detective Dozier. I will inform you that certain portions of this interview were redacted, that is removed from the videotape and from the transcripts associated with the tape. This was done on the . . . order of the court, by me solely, for reasons related to issues of law, which are not before you. There was no impropriety of any kind by anyone involved in that interview . . . [y]ou are not to speculate as to what those reasons might have been, nor are you to speculate as to what may have been contained in those portions of the interview. [¶] With respect to the portions of the interview which are removed by order of the court I will inform pursuant to a stipulation of all counsel that at three different places in the interview in response to questions, the defendant Mr. Johnson told the detectives ‘I was by myself.’ Those were his words.”
B. Legal Analysis
Courts have expressed “grave constitutional doubts . . . [about] joint trials when the confession of one defendant implicates codefendants.” (Aranda, supra, 63 Cal.2d at pp. 529-530, fn. omitted.) In such cases, courts must consider whether the admissions of a defendant violate the codefendants’ “right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” (Bruton, supra, 391 U.S. at p. 126; see also Cal.Const., art. I, § 15; Pen. Code, § 686.) The Aranda court offered three possible solutions to avoid a constitutional violation: (1) hold a joint trial if statements implicating the codefendant are redacted without prejudice to the declarant; (2) sever the trials if the prosecution insists on using the confession but effective redactions cannot be made; or (3) exclude the incriminating statement altogether if a fair redaction is not possible. (Aranda, at pp. 530-531.)
California trial courts have frequently adopted the first method, and the redactions are generally upheld when they do not prejudice the declarant or codefendant. (See, e.g., People v. Mitcham (1992) 1 Cal.4th 1027, 1045; People v. Jacobs (1987) 195 Cal.App.3d 1636, 1649; People v. Manson (1976) 61 Cal.App.3d 102, 150.) The declarant defendant “is prejudiced in this context when the editing of his statement distorts his role or makes an exculpatory statement inculpatory.” (People v. Lewis (2008) 43 Cal.4th 415, 457 (Lewis).)
The court here attempted to redact the incriminating statement in such a way that did not prejudice either appellant or Derrell Morgan. The court solicited input from all parties. When appellant’s counsel objected to the results, the court independently suggested adding in appellant’s three answers of “I was by myself.” However, appellant’s counsel refused to take a position on this proposal, and the court returned to its original set of redactions.
Now on appeal, appellant argues that the redactions were prejudicial because “[i]f the jury had viewed all of [appellant’s] videotaped statements . . . [appellant’s] counsel could have argued persuasively that [appellant] in his description of events had been describing not his actions but those of [Derrell] Morgan. Such an argument, in turn, would have been the linchpin of the defense’s contention [that appellant] was guilty not of murder but of involuntary manslaughter.” Appellant’s argument is without merit.
As previously noted, the court removed appellant’s references to talking to or calling Morgan, the location of Morgan’s home in the neighborhood, and appellant’s statements about being alone. None of these redactions distorted how appellant attacked the victim or his description of the actual offense. Furthermore, the edits did not turn exculpatory statements into inculpatory material, as appellant did not say anything to lighten his role in the offense. In fact, he did just the opposite. While appellant may have distorted his role, the redactions did not.
Additionally, as stated earlier, appellant’s counsel had other ways of presenting his argument that appellant exaggerated his conduct, which his counsel eventually utilized. The parties agreed to a statement, which the court read aloud, that clearly informed the jury that during the videotaped interview, appellant said he was alone three times. The court also allowed appellant’s defense counsel to cross-examine Detective Dozier and Sergeant Nonoguchi about whether appellant said three times he was alone in attacking Maria King. Hence, we agree with the trial court’s conclusion that there was no prejudice to either Morgan or appellant with the redactions in place.
The present case is distinguishable from the case law appellant cites for support. In People v. Douglas (1991) 234 Cal.App.3d 273, the court redacted an incriminating statement defendant made to the police because it discussed the participation of defendant’s brother, his codefendant at trial. With the redactions in place, “the jury knew that two knives were used in the attack . . . and that [defendant] denied having done anything with one of the knives.” (Id. at p. 284.) The “strong implication” that resulted from the sanitized testimony was that defendant and his brother each used a knife, and the jury was not told that defendant had repeatedly denied using either knife. (Ibid; see also People v. Tealer (1975) 48 Cal.App.3d 598, 603-604 [reviewing court held it was error to modify defendant’s statement so as to “throw the entire onus of the planned robbery on defendant by converting the sometimes ambiguous and partially exculpatory ‘we’ into an unmistakable ‘I’ ”].)
In the present case we have a very different situation. It was appellant who distorted his testimony to serve his alleged goal of protecting Morgan. The trial court simply removed references to the codefendant, as required by Aranda-Bruton. We do not believe the instruction in Aranda to redact in a way that does not prejudice either the declarant or codefendant was designed to protect the declarant from his own inculpatory statements.
Appellant also cites Evidence Code section 356 for the proposition that he was entitled to have his whole statement come into evidence. Section 356 provides in relevant part, “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party.” A recent California Supreme Court decision discussed the possible conflict between Aranda-Bruton and Evidence Code section 356, and recognized the primacy of a codefendant’s constitutional rights. The “limits on the scope of evidence permitted under Evidence Code section 356 may be proper when, as here, inquiring into the ‘whole on the same subject’ would violate a codefendant’s rights under Aranda or Bruton.” (Lewis, supra, 43 Cal.4th at p. 458.) The trial court in Lewis “precluded defendant only from bringing out his own hearsay statements that expressly inculpated his codefendants. These limits were permissible notwithstanding Evidence Code section 356.” (Ibid.) As the trial court here did no more, we too hold the redactions were permitted.
Finally, even indulging appellant’s dubious assumption that the redacted material would have been marginally helpful and should have been admitted, the trial court’s redactions were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23-24; People v. Anderson (1987) 43 Cal.3d 1104, 1128.) Under this standard, we “ ‘determine on the basis of “our own reading of the record and on what seems to us to have been the probable impact . . . on the minds of the average jury,” [citation]’ ” whether the redaction of appellant’s videotaped statement was sufficiently prejudicial as to require reversal. (People v. Anderson, supra, at p. 1128.) “[I]f the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless.” (Id. at p. 1129.)
As stated previously, the redactions did not deprive appellant of his constitutional right to present a defense because he had other ways of introducing the same evidence. (See People v. Maury (2003) 30 Cal.4th 342, 414 [exclusion of polygraph did not preclude defendant from presenting other factual evidence or of testifying himself].) Moreover, the “properly admitted evidence [was] overwhelming and the incriminating extrajudicial statement [was] merely cumulative” of other evidence. (People v. Anderson, supra, 43 Cal.3d at p. 1129.) The blood on appellant’s shoe matched the victim’s DNA, with only a statistically remote possibility of error. The eyewitness observed two attackers kick and stomp the victim several times and later stated appellant’s clothing looked “very similar” to the figures he saw. Maurice Thompson gave testimony of a prior similar offense in which appellant and his friend had assaulted Thompson a few years before while he was sleeping on the street. Appellant himself made several incriminating statements before the videotaped interview, such as “I beat the shit out of her,” which we have held admissible, and which demonstrated the extent of appellant’s conduct. Given all of this other evidence, we believe “ ‘ “the probable impact . . . [of the redacted material] on the minds of the average jury” [citation]’ ” would have been negligible, and thus any error in admitting the redacted interview was harmless beyond a reasonable doubt. (Id. at p. 1128.)
Disposition
The judgment is affirmed.
We concur: Haerle, J., Richman, J.