Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR34080
Simons, J.
Raymond Leonce (appellant) appeals after a jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a)) and found true firearm use allegations pursuant to Penal Code section 12022.53, subdivisions (b), (c), and (d). Appellant was sentenced to 50 years to life in state prison. He contends (1) the trial court erred in admitting his pretrial statements because they were involuntary and also obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and (2) the prosecutor committed prejudicial misconduct when she improperly explained the law of manslaughter to the jury. We disagree and affirm.
BACKGROUND
On March 25, 2004, at approximately 2:00 a.m., a resident of a ranch located off Lakeville Highway was awake in his home when he heard three gunshots. Later that morning, at approximately 6:05 a.m., the body of Tawanna Martin-Bergen (the victim) was discovered lying in the middle of a gravel driveway in a remote area between Lakeville Highway and an equestrian center. The cause of death was a gunshot wound to the back of the victim’s head. Detectives found three nine-millimeter shell casings at the scene. At the time of her death, the victim was 44 years old.
Janie Eichler testified that she met the victim when they worked together at Marin General Hospital, and they became “very close” friends. Eichler and the victim had been friends for about a year when they met appellant at a club in August 2003. Thereafter, appellant and the victim began dating, but they broke up in November. Around the time the victim and appellant broke up, appellant and Eichler began to date, but they did not tell the victim. The victim continued to confide in Eichler about how much she loved appellant and wanted to be with him, and Eichler continued to keep her relationship with appellant a secret.
Most of the factual background comes from the trial testimony of Eichler.
On March 20, 2004 (the Saturday prior to the victim’s death), Eichler, the victim, and appellant went out to a club together. Eichler wanted to reveal her relationship with appellant, but she was concerned she would lose her friendship with the victim. Although nothing regarding the relationship was said that night, Eichler believed the victim figured it out when Eichler and appellant danced together.
During the next few days, Eichler and the victim spoke several times on the phone, including one long conversation on Wednesday, March 24. The conversation was about their friendship and was “teary” and “emotional,” but appellant and the victim decided “everything was going to be fine.” Around 9:30 p.m. on March 24, appellant called Eichler while she was still at work and said he wanted her to hear two messages that the victim had left on his phone. According to Eichler, in the messages the victim told appellant, “ ‘You will never hurt another woman,’ ” and “ ‘You fucked with the wrong nigger’s wife, and then fucked over her best friend. I’m going to let that nigga, they’re going to take care of you, but I’m going to take that bitch. I’m going to take care of her and her blood is going to be on your hands.’ ” At 11:30 p.m. that night, appellant picked up Eichler from work and they went out for something to eat. Eichler saw appellant take his gun with him, but Eichler stated this was not unusual because he often carried a gun with him. Eichler suspected appellant carried the gun because he was afraid of her ex-husband Charles, who had threatened appellant.
Instead of getting something to eat, Eichler and appellant decided to drive to the victim’s house so they could return the victim’s cell phone, which she had left in appellant’s car the previous Saturday. Eichler called the victim’s house from appellant’s cell phone around 1:00 a.m. to tell her they were coming to give the victim her cell phone and so appellant and the victim could “ ‘talk it out.’ ” When Eichler and appellant arrived at the victim’s home, the victim entered the backseat of the car, but she said they could not just sit parked in front of the house. They began to drive and the mood was “laughy, jokey.” Eventually, the victim directed them down a road that was dark, “like something on [a] horror movie.” Appellant backed down an unpaved road and stopped the car. He said he had to urinate and he exited the car. The victim told Eichler she was going to get out and talk with appellant, and although Eichler initially told the victim not to get out of the car because it was so dark, Eichler eventually told the victim to “[t]ell him what’s in your heart.” Neither appellant nor the victim were mad when they exited the car. Eichler remained in the car, watched as appellant and the victim walked away from the car into the dark, and turned on some music.
Eichler had been sitting in the car for approximately 15 minutes when she heard three gunshots. Appellant returned to the car, asked Eichler if she was okay, asked for his cell phone, and said, “ ‘That dude fell hard.’ ” (Eichler clarified that appellant calls everyone “dude,” including herself.) He was calm, but Eichler was “freaking out.” Appellant stated he needed to “go back and get his casings,” but Eichler insisted they leave immediately. Eichler was concerned about the victim, but she did not want to hear about what happened and did not want to return to the scene.
On the way back to her house, Eichler told appellant to pull over and she vomited on the side of the road. She may have previously told detectives that appellant changed clothes while she was vomiting, but at the time of trial she stated she could not remember because she did not want to look at appellant once they were back in the car. As they continued to drive, appellant was pulled over by a California Highway Patrol officer at 3:25 a.m. As the officer approached the car, appellant told Eichler to “ ‘get it together.’ ” Appellant did not act out of the ordinary, and the officer noted on the back of the ticket that appellant and Eichler were a “nice couple.” Appellant and Eichler returned to Eichler’s home around 4:00 a.m. and appellant fell asleep.
Appellant awoke around 5:30 a.m. and left for work. Eichler was still scared and upset and she called her ex-husband, who took her to a mental crisis center. Eichler told her ex-husband what happened “in a roundabout way,” but at the crisis center the counselor mentioned “emergency respite” for Eichler’s children, and Eichler left without telling anyone what had happened.
Appellant called Eichler later in the day to tell her the victim’s brother had called to say the victim was dead, and they needed to talk to the detectives. Appellant spoke to detectives on the phone and initially offered to meet them at the victim’s home; however, due to the increasing presence of family members at the house, the detectives asked appellant to meet them at the Marin County Sheriff’s Department. Appellant picked up Eichler and they drove to the interview together.
The victim’s brother testified that he believed the victim and appellant were dating. Upon learning of his sister’s death, he called appellant to share the news, and asked about the last time appellant saw the victim. Appellant replied that he had not seen the victim since the previous Saturday. The victim’s brother became suspicious because appellant did not inquire further about how or when the victim died. The victim’s brother suggested that appellant go to the victim’s house so the police could talk with him.
Appellant and Eichler arrived at the Marin County Sheriff’s Department around 9:00 p.m. on March 25. The lead detective on the case, Dave Pedersen (Pedersen), testified that when they arrived, neither was a suspect. Pedersen conducted the interview with appellant in an interview room, and the interview was recorded. The interview lasted throughout the night and appellant was arrested around 6:00 a.m. the next morning. Also the next day, detectives searched appellant’s house. Detectives found a Beretta semi-automatic nine-millimeter pistol in appellant’s bedroom closet. A criminalist later confirmed that the spent casings found at the scene were fired from this Beretta, as were the bullet fragments found in the victim’s skull.
Appellant was charged with murder (Pen. Code, § 187, subd. (a)) as well as violations of Penal Code section 12022.53, subdivisions (b), (c), and (d) for personally using and intentionally discharging a handgun and proximately causing bodily injury and death.
Prior to trial, appellant filed a motion to suppress his statements given during the interview. He argued that any statements he made were involuntary and obtained in violation of Miranda, supra, 384 U.S. 436. The trial court concluded that appellant’s statements were voluntary; however, the court found appellant was in custody for Miranda purposes approximately four hours and 40 minutes into the interview, and his statements were inadmissible after this point. The court therefore admitted, and the jury viewed, a videotape of the first four hours and 40 minutes of appellant’s interview.
At trial, defense counsel conceded that appellant shot the victim; however, the defense’s position was that the evidence did not support the inference that the shooting was premeditated or carried out with malice, but rather was consistent with voluntary manslaughter.
The jury returned a verdict of first degree murder and found true the firearm use allegations. Appellant filed a motion to reduce the offense (Pen. Code, § 1181(6)), arguing that the evidence supported murder in the second degree, but not murder in the first degree. The court denied the motion, finding the evidence as a whole was sufficient to sustain the verdict. The court sentenced appellant to 50 years to life in prison. Appellant filed a timely notice of appeal.
DISCUSSION
On appeal, appellant contends the trial court erred in finding that his pretrial statements were voluntary and in determining at which point appellant was in custody for Miranda purposes, and therefore the admission of his statements violated his right to due process and his right against self-incrimination. Appellant further contends he was deprived of due process and a fair trial because the prosecutor misled the jury on the law of manslaughter. We reject these contentions in turn.
I. Appellant’s Interview
After being informed of the victim’s death, appellant offered to go to the victim’s home to talk with detectives. The victim’s home was “filling up fast” with other family members, and detectives asked if appellant instead could meet them at the Marin County Sheriff’s Department. Appellant agreed to meet with detectives and to bring Ms. Eichler along as well. Appellant and Eichler arrived at the Marin County Sheriff’s Department between 9:00 p.m. and 10:00 p.m. on March 25, 2004. Appellant was interviewed between the hours of 10:00 p.m. on March 25 and 7:00 a.m. on March 26, and he spoke with a total of three detectives for approximately five to six hours of interviewing.
Though detectives working on the case were from Sonoma County, they had received permission from the Marin County Sheriff’s Department to use their facilities.
Appellant initially sat down in the interview room with Pedersen. Pedersen elicited some basic personal information from appellant and then Pedersen clarified that appellant voluntarily came to the sheriff’s department on his own, he was there to try to help the detectives with the case, he was not under arrest, and he was free to leave at any time.
Appellant began by stating that the last time he saw the victim was the previous Saturday when he went out to a club with the victim and Eichler. He stated that the victim left her cell phone in his car that night and he last spoke with her on Monday or Tuesday regarding the cell phone. He stated he had not tried to contact the victim since Monday or Tuesday. When asked if he had any information that might be helpful, appellant said the victim had told him about a stalker that was bothering her, and she had joked that “if you don’t see me Wednesday, . . . you know what happened to me.” Appellant admitted he and the victim previously had an intimate relationship, but the relationship ended several months prior and although they remained good friends, he did not know about any other men currently in her life.
Appellant then discussed his actions on the night the victim died. He stated he picked up Eichler from work at 11:30 p.m., they went home to put their daughters to bed, and they went to get something to eat at Denny’s. He admitted he and Eichler were in a relationship, but said the victim knew about it and there were no problems.
At this point, Pedersen brought out appellant’s cell phone record and asked appellant to explain his phone calls from the previous night. Appellant claimed he did not know anything about a call made from the victim’s phone to his cell phone, and he stated that a call to the victim’s house at 1:00 a.m. was made by Eichler. He continued to deny that the victim had been in his car the previous night, although he eventually recalled that he and Eichler had driven by the victim’s home at some point. He then recalled that Eichler exited the car and knocked on the victim’s door, but he stayed in the car to listen to his voice mail and he did not know if the victim came outside.
Pedersen told appellant, “[T]his is gonna all come down on you. . . . [I]t’s very apparent to me that you know what happened to [the victim] and what I’m telling you is, is I’m, right now, you’re absolute best friend in the whole world because I can tell your side of the story. Of what happened last night. . . . [¶] . . . [¶] I need you to tell me what happened. What did [the victim] do? She came outside, she got in the car and she left with you. That . . . is not a question anymore.” Appellant admitted the victim joined Eichler and him in the car in order to accompany them to Denny’s; however. he stated the victim was not feeling well and so after driving around a bit, they decided not to go to Denny’s and he took the victim home. Appellant stated they never drove as far as Lakeville Highway.
Pedersen then told appellant that a “red stop light camera” placed his vehicle at the turnoff for Lakeville Highway, and appellant recalled that he may have turned down that road in order to turn around to drive back to the victim’s home. After further discussion, appellant recalled that he stopped the car on Lakeville Highway in order for the victim to throw up and for him to urinate. They returned to the car and he drove the victim home.
Pedersen asked appellant if it was possible the victim did not reenter the car after exiting to vomit, and appellant then began to explain that he never actually saw the victim get back in the car, but he heard the car door close and he assumed the victim was in the backseat. He then drove back to the victim’s home, thought he heard the car door open and assumed she exited the car at her house. He clarified that the last time he actually saw the victim was when she stepped out of the car to vomit. Appellant maintained this version of his story, during which time Pedersen spoke at length about the distinction between premeditated murder and “crime of passion” murder, reiterated that he viewed appellant as a witness, told appellant “I’m the guy who can tell your side of the story” and “I will write exactly the way you tell it to me,” and encouraged appellant not to take responsibility “for something that you did not personally do.”
Approximately three hours into the interview, detective Tim Duke (Duke) entered the interview room. Duke specifically inquired about the phone calls made from appellant’s phone, and Pedersen told appellant that he already knew the answers to some of the questions he would be asking, “kind of like a truth test.” Pedersen reminded appellant that honesty was “extremely important.” When asked further about his cell phone activity, appellant explained that he had received two threatening messages that night telling him “you fucked with the wrong woman, you’re gonna die” and “you fucked with the wrong woman’s wife, . . . you fucked with the wrong best friend . . . [¶] and her blood is on your hands.” Appellant repeated his claim that he mistakenly believed the victim had returned to the car and he drove her home, but Duke told appellant the story was “bullshit” and tough to believe. Duke told appellant “You are a witness . . . . [W]hat I do know is that body was left there and you know that body was left there. So, what I don’t want you to do is lie to me about that. That’s one thing that is not gonna help you and if we continue down that route, I’m just gonna get up and leave . . . .”
Appellant then admitted Eichler and the victim used to argue about him, but he thought “[e]verything was cool” that night. When he exited the car to urinate, the victim followed him outside and told him how he had “[done] her wrong.” The victim began to raise her voice, and at that moment appellant realized it was the victim’s voice on the threatening messages he received. Appellant tried to help the victim calm down, but the victim was angry and said she would find her own way home. Appellant returned to the car and again tried to convince the victim to return, but she refused. Appellant drove off and when he looked back he could see the victim standing there wiping her tears. He tried to call her later to see if she was okay, but she did not answer her phone.
Duke responded by telling appellant, “That was [35] minutes of my life that I will never get back again because you just gave me the biggest smoke up my ass that I think that I’ve ever heard. . . . [¶] You know that’s not the truth. The only thing you gave me was a little bit more of the truth, but that’s not the truth. . . . [¶] . . . [¶] [I]f you’re involved in this more than what we think, then we need to switch gears here . . . . [¶] Because if you’re not a witness, I want to know that . . . . [S]he was not breathing when you left and you know that.” Duke clarified to appellant, “[Y]ou understand I have not switched gears with you yet. . . . [¶] And I don’t want to do that.”
Duke momentarily exited the interview room and returned with the victim’s cell phone record to “prove” that appellant lied about calling the victim to check on her after he and Eichler left her. Appellant maintained he did not know who killed the victim nor was he involved in her death, and he stated “I would never hurt a hair on that girl’s head.” Duke responded by saying, “[T]here was only three of you there. . . . Only two of you left. . . . So, that’s tellin’ me something.” Duke stated, “[Y]ou’re obviously not under arrest, you’re not in cuffs, right? . . . Just tell us the truth one time through. That’s all we’re asking for. . . . That’s all we’re askin’ for because as you can see, all these things, they keep piling up in your lies and it doesn’t look good for you. I want to believe you, . . . but it’s gettin’ to the point where I want you to convince me that I can believe ya because somethin’ like this, it causes me concern that I can’t believe ya. . . . Can you just tell me the truth? You were there. There was three of ya. Two of you left. Tell me what happened, Ray. I don’t think that’s too much to ask. I think if nothing else, her family that you knew and were close to needs closure on this. It would be a nice way to let ‘em know that we’re all on the same team here. Us. You, her family who now has to grieve over her death. You’re one of those people that can do that for us, Ray. At least give her family the courtesy to allow us to tell them what happened. . . . We’ll wipe the slate clean, start from square one, okay? I can give you the time and we’ll say from this point forward, Ray wanted to tell us the truth.”
Appellant then provided the last explanation he would give in the portion of the interview admitted at trial. This time, appellant described a similar series of events leading up to Eichler’s and his late night drive with the victim, except he added that he had previously given the victim a Beretta firearm so she could protect herself from the alleged stalker. Once appellant stopped the car to urinate, he and the victim were standing outside the car and he accused her of leaving the threatening messages. The victim became upset, and she began telling appellant that he and Eichler had wronged her. Eichler joined the discussion outside the car for a period of time, but then returned to the car. The victim continued raising her voice and appellant began to feel scared. When he turned again to look at her, the victim was holding the gun he had previously given to her. Appellant realized he needed to take the gun from the victim, so he wrestled it away from her. He took the gun, wrapped it in his sweatshirt, and walked back toward the car to put the gun away. At that moment he heard three shots and he turned and saw the victim’s body fall to the ground. He looked around, but did not see anybody, and he went over to the victim but he could not lift her body to move her. He was afraid that he may be the next victim, so he returned to the car and drove away. He threw the Beretta out of the window of the car, over several lanes, and heard it splash into the water below.
Although the interview continued, the trial court ruled that at this point appellant was in custody for Miranda purposes and his further statements were excluded. Specifically, the trial court stated that it considered the totality of the circumstances, including the location and length of the interview and the detectives’ actions, and concluded that at the point in time when Pedersen told appellant to sit back down in his chair, a reasonable person would understand he was in custody. Regarding the voluntariness of appellant’s statements, the court relied on People v. Holloway (2004) 33 Cal.4th 96 (Holloway) and explained that detectives’ references to accidental versus premeditated murder did not render appellant’s statements involuntary, and it was not a situation where the detectives tricked him or wore him down, but rather “you can only tell a story wrong so often, and then the truth starts coming up.”
The trial court also found the Miranda warning, when it was eventually given, was inadequate, and appellant did not expressly waive his Miranda rights.
A. Voluntariness
“ ‘The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant’s involuntary confession. [Citation.] [These provisions] require[] the prosecution to establish, by a preponderance of the evidence, that a defendant’s confession was voluntary. . . . [¶] Under both state and federal law, courts apply a “totality of circumstances” test to determine the voluntariness of a confession. . . . On appeal, the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession is subject to independent review. [Citations.] In determining whether a confession was voluntary, “[t]he question is whether defendant’s choice to confess was not ‘essentially free’ because his will was overborne.” ’ [Citation.]” (Holloway, supra, 33 Cal.4th at p. 114.)
“ ‘It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. . . . Thus, “[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct,” the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, “if . . . the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible . . . .” ’ [Citations.]” (Holloway, supra, 33 Cal.4th at p. 115.)
“ ‘Lies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary.’ [Citations.] Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted.” (People v. Farnam (2002) 28 Cal.4th 107, 182.)
In Holloway, supra, 33 Cal.4th at pages 115-116, the California Supreme Court found that the detectives’ mention of a possible death penalty and suggestions that the defendant would benefit from giving a truthful, mitigated version of the crimes “did not cross the line from proper exhortations to tell the truth into impermissible threats of punishment or promises of leniency.” The court explained that a detective’s suggestions that the killings might have been accidental or the result of a fit of rage “fall far short of being promises of lenient treatment in exchange for cooperation.” (Id. at p. 116.) The court added, “To the extent [the detective’s] remarks implied that giving an account involving blackout or accident might help defendant avoid the death penalty, he did no more than tell defendant the benefit that might ‘ “flow[] naturally from a truthful and honest course of conduct” ’ [citation].” (Ibid.)
Here, appellant primarily complains that his statements were involuntary because detectives informed him of what would be “best” under the circumstances and made repeated offers of assistance during the interview. For example, Pedersen told appellant, “[T]his isn’t adding up and it’s not gonna take long for this house of cards to fall down. . . . [I]f, ah, there was a disagreement last night . . . [¶] and something happened by accident, it would be best if I find out about an accident.” Pedersen continued, “I need to find out what happened. You see, because . . . there’s more than one person that knows what happened. . . . [¶] Accident happens . . . . [¶] I can tell ya right now that the story doesn’t jive with what you’re telling me. . . . [¶] And, . . . we need to put this in the best light possible that we can.” Appellant continued to insist that he did not know anything, and Pedersen stated, “[T]his is gonna all come down on you. And, . . . you’re not cooperating with me, okay? [I]t’s very apparent to me that you know what happened to [the victim] and what I’m telling you is, is I’m, right now, you’re absolute best friend in the whole world because I can tell your side of the story. Of what happened last night.” Later, Pedersen reiterated, “I’m the guy who can tell your side of the story . . . I mean, better than anyone. Because, I’ll tell you what, people say I write like a girl. That’s how well I write. And I will write exactly the way you tell it to me. . . . [¶] I’ll write it the way you say it, man. If you say that you don’t know nothin’ happened and you’re gonna stick with this lame story where you thought she got back in the car . . . . [¶] . . . [¶] I mean, you gotta admit, that’s pretty lame. Twelve people aren’t gonna believe that. . . . I really wanna help you out of this jam, but you gotta help me help ya. Okay? I’m not sayin’ it’s gonna be easy. . . . [I]t’s not gonna be easy helpin’ you out of this jam, but I can do it. And it, the reason I can do is ‘cause I write really good. Okay? But I need you to lay out for me what happened. . . . [¶] [I]f I write it the way you, you told it, you’re gonna be a party to murder. And I don’t want you to be a party to murder if you’re not. I just want the truth to be told. . . . [¶] Don’t take responsibility for something that you did not personally do.” Pedersen further explained, “I can’t talk to you about what the, the outcome’s gonna be. All I know is that I can, I can explain it the way it happened and, if it’s . . . premeditated murder . . . I’ll prove it. . . . [¶] [B]ut if it was a happen chance, . . . we need to explain what transpired out there.”
Appellant contends Pedersen’s “attestations of friendship and offers of assistance were ‘materially deceptive’ ” and rendered his statements involuntary. He argues this conclusion is bolstered by the other circumstances such as the detectives’ references to premeditated versus accidental scenarios and fabricated physical evidence, the length of the interview, the “triple teaming” of appellant by three detectives, the absence of a Miranda warning, the location of the interview in the sheriff’s department interview room, appellant’s inexperience with the criminal justice system, and sleep deprivation. We disagree.
First, Pedersen’s suggestions that it would be “best” if he found out the killing was accidental and that he might be able to help appellant with his report writing skills do not rise to the level of impermissible promises of lenient treatment. To the extent Pedersen or other detectives implied that an account of an accidental or heat of passion shooting would yield a better outcome for appellant than a premeditated shooting, they were merely telling appellant of a benefit that might flow naturally from a truthful and honest course of conduct. (Holloway, supra, 33 Cal.4th at p. 116.) The circumstances of the shooting appeared compatible with any of these theories, and although detectives highlighted the differences to appellant, they in no way promised to abandon the theory of a premeditated killing if appellant confessed. (See People v. Thompson (1990) 50 Cal.3d 134, 169-170.) Nor did detectives misrepresent the applicable law of homicide or imply that appellant would avoid a more serious first degree murder charge by cooperating. (People v. Johnson (1969) 70 Cal.2d 469, 478-479 [finding detectives improperly suggested that by cooperating, the defendant might avoid a first degree murder charge or conviction, where his statements amounted to a confession of first degree murder under the felony-murder rule].) Detectives’ repeated exhortations to appellant to tell the truth were acceptable. (Holloway, at p. 115.)
Pedersen’s comments regarding his report-writing skill and his ability to tell appellant’s side of the story also did not render appellant’s statements involuntary, as this too appears to have been an honest explanation of the benefits that might flow naturally from a truthful course of conduct. As Pedersen explained, he would write in his report the version of events exactly as appellant told it. Pedersen did not suggest appellant would get more lenient treatment, and he said nothing beyond the obvious in telling appellant that an irrational story would cast doubt on appellant’s credibility and would raise suspicion regarding appellant’s true involvement in the victim’s death. Also, our conclusion that these comments did not render appellant’s statements involuntary is supported by the fact that appellant did not admit his presence at or involvement in the shooting immediately after Pedersen disclosed his report-writing ability, but rather appellant’s concessions came slowly, over several hours and often only when presented with inconsistencies in his story and purported evidence. It is therefore unlikely appellant’s incriminating statements were motivated by Pedersen’s statements regarding his skill in writing reports. (People v. Thompson, supra, 50 Cal.3d at p. 169.)
The other circumstances relied on by appellant fail to persuade us that his statements were involuntary. Appellant complains specifically about the detectives’ deception regarding tire tracks at the scene of the crime and the red light traffic photos. As set forth above, lies told by a police officer do not render statements involuntary unless the deception is of a kind likely to produce a false statement. (People v. Farnam, supra, 28 Cal.4th at p. 182.) Here, Pedersen asked appellant, “Is there any reason that your tire tracks would be on the road where I found [the victim] this morning?” Appellant replied that his tire marks would not be in Petaluma because he had never been to Petaluma, and Pedersen accepted this response and moved on to a different topic. Later, Pedersen suggested they had evidence from a red light camera placing appellant near the scene of the crime, and at this point, appellant conceded he had driven to that location but continued to deny involvement. We do not find that Pedersen’s deception regarding evidence placing appellant near the scene of the crime was the type likely to produce a false statement, and thus the deception was permissible. (People v. Jones (1998) 17 Cal.4th 279, 299; People v. Thompson, supra, 50 Cal.3d at p. 167.)
Although the portion of the interview admitted at trial lasted four hours and 40 minutes, appellant appeared alert, calm, and composed throughout. Although possibly inexperienced in the criminal justice system, he appeared intelligent and articulate in his conversation. We contrast this with a case where the defendant was hysterical, obviously distraught, and had been drinking. (People v. Esqueda (1993) 17 Cal.App.4th 1450, 1485.) When Pedersen asked if he was tired, appellant responded that he felt “really awake” because of all the emotions from the death of his friend, and he later clarified he had in fact slept some the previous night. He readily engaged in conversation with the detectives, regularly offering long, uninterrupted monologues regarding the events in question and other experiences involving the victim and Eichler. The detectives expressed frustration and impatience with the rationale of some of appellant’s explanations, but at no point did their conduct appear to surpass what might be expected in a serious discussion. It is true that Pedersen was friendlier, and Duke more direct, and true that appellant was outnumbered by two and even three detectives, but without more, we cannot say their interactions rose to a level of coercion that would render appellant’s statements involuntary. Therefore, we agree with the trial court’s conclusion that appellant’s statements were voluntary.
The trial court concluded that appellant was intelligent and articulate during the interview, and after independently viewing the videotape of the interview shown to the jury, we agree with this conclusion.
B. Miranda and a Finding of Custody
The trial court concluded that appellant was in custody for Miranda purposes approximately four hours and 40 minutes into the interview, and thus his statements were inadmissible after that point. On appeal, appellant contends he should have been deemed to be in custody around the time Pedersen told appellant, “[I]f I write it the way you . . . told it, you’re gonna be a party to murder.” This interaction occurred approximately two hours and 30 minutes into the interview. “On appeal, we accept the trial court’s findings of historical fact if supported by substantial evidence but independently determine whether the interrogation was ‘custodial.’ [Citations.]” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161-1162.)
“To invoke the protections of Miranda, a suspect must be subjected to a ‘custodial interrogation,’ i.e., he must be ‘taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citations.] ‘The ultimate inquiry is simply whether there is a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ [Citation.] Where no formal arrest has taken place, the pertinent question is ‘how a reasonable man in the suspect’s position would have understood his situation.’ [Citation.]” (People v. Esqueda, supra, 17 Cal.App.4th at p. 1481.)
Whether custody has occurred depends upon the totality of the circumstances, including such factors as “whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person’s conduct indicated an awareness of such freedom; whether there were restrictions on the person’s freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation.” (People v. Aguilera, supra, 51 Cal.App.4th at p. 1162.)
Here, detectives made contact with appellant at the suggestion of the victim’s brother. The interview took place in a sheriff’s department interview room, but only after detectives decided the victim’s house was too chaotic. Appellant drove himself down to meet with the detectives, and he picked up Eichler on his way to the station so she could talk with the detectives as well. The victim’s family told detectives that appellant and Eichler were “good friends” with the victim, and when appellant and Eichler arrived, the detectives did not view them as suspects, but rather as individuals who may have helpful information. Pedersen confirmed with appellant at the beginning of the interview that he understood he was not under arrest and could leave at any time. Appellant responded that he understood, and was there to help with the case.
As the interview progressed, detectives expressed doubt regarding some of appellant’s explanations and suggested they had certain evidence placing him at the scene of the crime, but detectives stated they believed appellant was a witness and was possibly covering for Eichler. Later in the interview, Duke reiterated that appellant was not under arrest, and they had “not switched gears with [him] yet.” In addition, no one took appellant’s car keys, cell phone, or wallet, he was not searched, and the door to the interview room was not locked during the period of the interview in question here. At one point when appellant was left alone in the interview room, he even utilized his cell phone, apparently checking a voice message. Appellant also moved freely in and out of his chair throughout the admitted portion of the interview.
Appellant argues he was told to wait in the interview room at one point, and he was later escorted to the bathroom, and these actions indicated his custodial status; however, we disagree with appellant’s characterizations of these events. In fact, Pedersen did need to leave the interview room approximately two hours into the interview, but instead of being told to stay in his seat, as appellant contends, Pedersen actually asked appellant, “Would you mind sitting here for just a few minutes?” When appellant asked, “Where?” Pedersen replied, “Right here. Just stay right here.” Pedersen’s comments implicitly recognized that appellant was free to leave and appeared more like an attempt by Pedersen to excuse himself for a moment, than a directive for appellant to stay. Appellant asked if he could use the restroom, and Pedersen told him, “Sure, sure, hold on just a second. Let me find it first, cause I’m not sure where it is.” Pedersen then returned and took appellant to the restroom. (Pedersen explained that he had to ask one of the other detectives where the restroom was located, and he then led appellant down the hallway and past the counter of the records section, where the records clerk had to “buzz” the door.) This conduct was not unduly restrictive given that Pedersen was in unfamiliar territory at the Marin County Sheriff’s Department, and it does not appear as though this action would lead a reasonable person to conclude he or she was no longer free to leave.
Appellant also complains of the accusatory nature of the questioning and an increasingly coercive environment. However, “a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a ‘coercive environment.’ Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ” (Oregon v. Mathiason (1977) 429 U.S. 492, 495.)
Although the portion of the interview at issue here was lengthy at four hours and 40 minutes, under the totality of the circumstances a reasonable person in appellant’s position would have understood he was free to terminate the interview and leave. We conclude the trial court did not err in determining appellant was not in custody for the portion of the interview admitted at trial.
II. Prosecutor’s Comments on Manslaughter During Closing Argument
Finally, appellant contends he was deprived of due process and a fair trial because the prosecutor erroneously argued that a manslaughter verdict required the conclusion that shooting the victim would have been the response of an “ordinarily reasonable person.”
During closing argument, the prosecutor explained that in order to reduce the charge to voluntary manslaughter, “It needs to be something that an ordinary reasonable person in the same circumstances would have a reaction. Would you have that reaction if you were in the circumstances? . . . You need your reason to be totally obscured by that intense emotion and provocation. It’s got to excite passion. You have to kill while under that excitement of passion. You have to act without thinking. An ordinary person needs to say, this situation would cause me to act rationally [sic], without thinking.” The prosecutor continued, “Let’s look at the argument for this heat of passion. You need provocation, and an ordinarily reasonable person in the same circumstances. What do we have? You did me wrong; you used me to get to my friend; when you’re alone, you’re not always alone. Do you believe an ordinarily reasonabl[e] person under this situation would shoot [the victim] in the back of the head because their passions have been aroused? It’s not happening.”
Defense counsel did not object to the these statements at trial. “To preserve for appeal a claim of prosecutorial misconduct, the defendant must make a timely objection at trial and request an admonition to the jury. [Citation.] A defendant is excused from the necessity of objecting and requesting an admonition if either would have been futile.” (People v. Najera (2006) 138 Cal.App.4th 212, 224.) Here, there is nothing to suggest an objection or request for an admonition would have been futile, and appellant is barred from challenging the prosecutor’s comments on appeal.
Even if we consider the merits of the challenge, we find any error was harmless. The prosecutor’s reference to the reasonableness of appellant’s response to the alleged provocation was incorrect. “The focus is on the provocation—the surrounding circumstances—and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion.” (People v. Najera, supra, 138 Cal.App.4th at p. 223.) However, prior to closing arguments, the court instructed the jurors, “If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.” The court then properly instructed the jury on the law of voluntary manslaughter and sudden quarrel or heat of passion. We presume the jury followed that instruction. (Najera, at p. 224.)
DISPOSITION
The judgment is affirmed.
We concur: Jones, P. J., Needham, J.