Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF130139. Paul E. Zellerbach and Roger A. Luebs, Judges.
Judge Zellerbach was the trial and sentencing judge for the joint trial of defendants. Judge Luebs was the trial and sentencing judge for the retrial of defendant Yalonda Renee Miles.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant Lakeith Leroy McCoy.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant Yalonda Renee Miles.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Defendants Lakeith Leroy McCoy and Yolanda Renee Miles were tried together before separate juries and found guilty of assaulting Anthony Thompson and Brandon Jones with a firearm and falsely imprisoning both men. (Pen. Code, §§ 245, subd. (a)(2), 236; counts 2-5.) In each of these counts, McCoy’s jury found he personally used a firearm, and Miles’s jury found she participated in the crimes knowing a principal was armed with a firearm. (§ 12022, subd. (a)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
In the joint trial, McCoy was also convicted of the attempted premeditated murder of Thompson (§§ 664, 187; count 1), and his jury found he personally used a firearm in the attempted murder (§ 12022.53, subd. (b)). Miles’s jury was unable to reach a verdict on the attempted murder charge, but Miles was later retried and convicted of the attempted murder of Thompson. (§§ 664, 187.) In Miles’s second trial, the jury found a principal was armed in the attempted murder (§ 12022, subd. (a)(1)) but found the attempted murder was not premeditated.
The evidence presented at both trials showed that the crimes against Thompson and Jones occurred in a Moreno Valley apartment on March 24, 2006. A third defendant, Ed Knox, was tried separately in March 2007 and was convicted of the same crimes as McCoy and Miles, with the additional finding he personally discharged a firearm in the attempted murder of Thompson. This court previously affirmed the judgment against Knox. (People v. Knox (June 18, 2008, E043342) [nonpub. opn.].)
McCoy was sentenced to 24 years plus life without the possibility of parole. Miles was sentenced to eight years. The appeals of McCoy and Miles have been consolidated.
McCoy claims insufficient evidence supports his attempted murder conviction and the premeditation and personal use findings on his attempted murder conviction. Miles joins these claims without further argument. Thus, Miles also claims insufficient evidence supports her attempted murder conviction.
Miles raises two additional claims that do not apply to McCoy. She first claims her pretrial statements to a detective during a police station interview were admitted against her in both her trials in violation of her Miranda rights. She argues she unequivocally invoked her right to counsel at the outset of the interview—before she was read and waived her Miranda rights. Thus she argues the interview should have ended before she was Mirandized, and her post-Miranda statements to the detective were inadmissible. Miles also claims the admission in both her trials of the audiotape of the interview, which included her initial assertion of her right to counsel, violated her due process rights under Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
We find each defendant’s claims without merit and affirm the judgments.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
1. The Events Surrounding the March 24, 2006 Crimes
Thompson and Jones testified for the prosecution. In early 2006, Knox, then age 18, was living in an apartment in Moreno Valley with his older brother Christian. In January 2006, Thompson, then age 20, moved into the apartment, and Knox’s girlfriend Miles, then age 18, moved in a few days later. Thompson and Miles were friends. Thompson referred to Miles as his “little sister” and trusted her.
Shortly after he moved into the apartment, Thompson began selling and delivering drugs for Knox, including methamphetamine. Knox agreed to pay Thompson a portion of the proceeds from the drug sales. Knox was also allowing Thompson to stay in the apartment rent-free and was providing half of Thompson’s food.
In March 2006, Thompson was angry because Knox was not paying him for the drug sales, and they argued about the money. One day, Thompson and Miles were walking to a fast food restaurant when they saw Knox. Knox was angry because Thompson was wearing a jacket Miles had given Knox for his birthday. Thompson told Knox that Miles said he could wear the jacket, but Knox did not believe him.
Thompson and Miles walked back to Knox’s apartment, and Knox followed in his car. During the walk, Thompson and Miles discussed how Miles was going to help Thompson get his money from Knox. Outside Knox’s apartment, Knox and Thompson argued and nearly got into a fistfight, and Knox told Thompson to move out.
Later that day, Thompson moved out of Knox’s apartment and went to his friend Jeremy’s house, which was across the street and a short distance away from Knox’s apartment. Jeremy’s house was a “flop” or “party” house where young adults and runaways stayed. The house was dirty and had no water, indoor plumbing, or electricity.
Six or seven people who hung out at Jeremy’s house believed Knox had a lot of money, and would jokingly discuss stealing from Knox when he was not home. The discussions became more serious a week or two before the shooting, when Miles became involved in the discussions.
Miles told the group she would know when Knox was not home, and she was willing to provide the group with access to Knox’s money, around $15,000, if they would “set her up” with Chris Trice, one of their friends. At some point, Thompson told Miles that Knox was cheating on her.
After Thompson moved out of Knox’s apartment, Miles “chirped” him on her cellular telephone and said she would meet him at Jeremy’s house. Later that day at Jeremy’s house, Miles and Thompson agreed that Miles would call Thompson when Knox was not home and provide Thompson with access to Knox’s apartment and his money.
Around 7:30 a.m. on March 24, Miles “chirped” Thompson on his cellular telephone and told him to “[c]ome now” to Knox’s apartment because Knox was not there. Thompson estimated Knox owed him about $1,000 and wanted the money to move to Las Vegas.
Thompson asked Jones to come with him to Knox’s apartment in case he “walked into a fist fight.” Jones, then age 22, had lived in Jeremy’s house “off and on” for two years. Thompson told Jones that Knox had between $10,000 and $15,000 in his apartment. Jones wanted a share of the money, drugs, or both. Jones was a friend of Knox’s older brother Christian.
Shortly after Miles called him on the morning of March 24, Thompson and Jones walked over to Knox’s apartment. Thompson knocked on the door, Miles opened it, and let Thompson and Jones into the apartment. Miles was crying and Thompson asked her what was wrong, but she did not respond.
Miles directed Thompson and Jones down the hallway and to the bedroom she shared with Knox. There, Thompson grabbed $60 to $80 he saw laying on a desk, put the money in his pocket, and asked Miles where the rest of the money was. At that point, Jones was headed for the door, but Miles said, “‘Brandon, where are you going? The money is in the other room under the bed.’” Miles then directed Thompson and Jones to the master bedroom where Knox’s brother Christian slept.
Thompson recalled that after he left Knox’s bedroom, Knox and McCoy jumped out of a bathroom and, with guns drawn, ordered Thompson and Jones to “freeze.” Thompson had met McCoy several times before. Jones recalled being on his hands and knees and looking under a waterbed when Knox and McCoy jumped out of a closet pointing guns.
Knox was holding a.22-caliber semiautomatic handgun and McCoy had a.357 revolver. Knox pointed his gun at the back of Thompson’s head, while McCoy pointed the revolver at Jones’s forehead. Both guns had potatoes on their ends to act as silencers. Knox said, “‘You came to rob me without a gun. You must be stupid.’” According to Jones, McCoy’s demeanor “definitely seemed a lot more aggressive” than Knox’s.
Knox and McCoy walked Jones and Thompson out of the bedroom and into the hallway. There, Knox and McCoy went through Thompson’s and Jones’s pockets and took their cellular telephones and other belongings. Thompson believed he and Jones were going to be shot and killed, so he said to Knox, “‘You know you owe me money.’” Knox did not respond.
Knox and McCoy then pushed Thompson and Jones into the living room, told them to lie on their stomachs, and told them they were going to die. McCoy told Thompson and Jones not to move or “we’ll shoot you, ” they were “stupid” for coming there without guns, they “fucked up, ” and were “going to get it.” Knox told Thompson he could not believe he was trying to “rob” him. McCoy said to Knox, “I told you so, ” and smiled and licked his lips.
Miles followed Knox and McCoy as they took Thompson and Jones into the living room. Jones told Knox that he and Thompson were there because Miles told them she was going to give them access to Knox’s money. Knox told Jones to be quiet, and he did not want to hear an excuse. Miles sat on a couch in the living room and said nothing, even when Thompson made eye contact with her.
While lying on his stomach in the living room, Thompson heard Knox and McCoy discussing what they were going to do with Thompson and Jones. Thompson and Jones both heard McCoy tell Knox to call someone so they could put Thompson and Jones in a car, drive them to a canyon where no one would see, shoot them, burn their bodies, and leave them there. Jones also heard Knox using a telephone and telling someone, “‘We should just kill them right here, ’” while McCoy said, “‘No. I am going to get a car and we are going to do this the right way.’”
Thompson believed he was going to be killed in the apartment, so at one point when Knox and McCoy were not paying attention to him, Thompson got up and ran to the front door. Miles yelled, “‘Oh, shit, [Thompson]’s running, ’” and grabbed Thompson’s right arm and shirt as he unlocked the front door. Knox pointed his gun in Thompson’s direction and said, “‘[Thompson], don’t run.’”
After Thompson had one foot outside the door, Knox hesitated for “a few seconds, ” then fired his gun, hitting Thompson in the back above his waistline. Thompson ran out of the apartment, and McCoy immediately followed him. Thompson made it across the street from the apartment, but collapsed on a sidewalk.
At 11:00 a.m. on March 24, Deputy Juan Salcido was driving in the area and saw Thompson stagger across a street and collapse on a sidewalk. Deputy Salcido saw that Thompson was bleeding from a gunshot wound, and called for an ambulance.
Before Knox shot Thompson, Jones did not believe Knox and McCoy would shoot them but were only trying to scare them. But after Knox shot Thompson, Jones was “terrified” and thought he was going to die.
After McCoy ran out of the apartment after Thompson, Knox raised his gun in Jones’s direction, put it down, then raised it again and told Jones he was not going to kill him because he knew Knox’s brother. Knox also said, “I can’t say the same thing for my friend.” Knox also told Jones, “‘We are cool, okay?’” and broke down crying.
Jones left the apartment though a sliding glass door that led to a patio. A short distance away, Jones flagged down a female police officer he saw driving a patrol car.
At 11:15 a.m. on March 24, Sheriff’s Deputy Dianna Moreno saw Jones wave to her as she was driving her patrol car in Moreno Valley. Jones was sweating and appeared to have been running. After Deputy Moreno searched Jones for weapons and did not find any, Jones got into the back of her patrol car and asked the deputy to move her patrol car because he did not want to be seen. Deputy Moreno drove to a dirt road alley. Jones described the incident to the deputy, and the deputy recorded his statements.
Detectives David Street and Jon Wade were called to the scene, and around 11:45 a.m., Jones pointed out Knox’s apartment to the detectives. Around the same time, Jones saw Miles walking toward Knox’s apartment with two of her sisters, and told them she was Knox’s girlfriend and was present at the time of the shooting. Detective Street spoke briefly with Miles, who denied she was present at the time of the shooting and said she had no information about the shooting. Several officers surrounded the apartment building, while Detective Wade knocked on the apartment door. Officers entered the apartment but found no one inside.
2. Thompson’s Injuries
Thompson was taken to an emergency room and rushed to an operating room with a gunshot wound to his left lower abdomen and flank. The bullet pierced his pancreas, traveled into his chest cavity, and made two holes in one of the chambers of his heart. During his initial operation, Thompson had low blood pressure, his heart stopped beating, and he was “practically dead.” The bullet holes in his heart were quickly repaired, however, and Thompson was resuscitated after 20 or 30 minutes. The surgeon called Thompson the “miracle guy” because he said “most people don’t recover” from such an injury.
Thompson was initially discharged from the hospital on May 3, but had to return for further surgeries. In July, Thompson’s spleen had to be removed in order to repair his pancreas. Swelling in his legs caused part of his leg muscle to die, and leg muscle also had to be removed. Thompson developed “foot drop, ” which prevented him from flexing his foot toward his body, used leg braces for over two years, and was no longer able to walk “normally” at the time of the joint trial in 2009.
3. The Investigation of the Shooting
Detective Wade searched Knox’s apartment pursuant to a search warrant. He found a sack of potatoes on the dining room floor, a single.22-caliber bullet on the floor in the master bedroom, a magazine for a.22-caliber semiautomatic handgun with 10 bullets in it on the master bedroom floor, and two boxes of.22-caliber ammunition on a shelf in the master bedroom closet.
In the smaller bedroom, the detective found a Smith & Wesson handgun case, a black cellular telephone, and $405 in the pocket of a pair of pants lying on the bed. The telephone could be used to “chirp” or directly connect with similar telephones. No guns were found in the apartment.
Detective Street spoke with Miles twice on March 24, first around noon at Knox’s apartment building and later that afternoon at the police station. The police station interview was audiotaped and played for Miles’s jury in the joint trial and to her second jury in her retrial. During the interview, Miles mentioned a person named Kevin Johnson or “KJ.” Detective Street later identified KJ as McCoy.
After interviewing Miles, the focus of Detective Street’s investigation was to find the shooter, Knox, and his accomplice, KJ. On March 27, Detective Street learned that Knox was in a hotel room in Riverside. The detective went to the hotel, contacted Knox by cellular telephone, and told him to come out and surrender, which Knox eventually did. Miles was in the hotel room with Knox. The detective found two telephone numbers on Knox’s cellular telephone for a person named KJ, and later learned that KJ was McCoy.
On March 30, Detective Street spoke with McCoy and told him that Knox shot Thompson and he was looking for a man named KJ. McCoy claimed he did not know KJ, and denied he was at Knox’s apartment at the time of the shooting.
On May 11, Detective Street searched McCoy’s apartment and found letters and a notebook containing references to McCoy as KJ, and a high school class ring with the initials KJ. Later that day, Detective Street arrested McCoy and interviewed him at the police station, after he waived his Miranda rights. The interview was recorded and played for McCoy’s jury.
On May 15, Detective Street arrested Miles. The arrest occurred outside a courtroom just after Miles testified at Knox’s preliminary hearing. At that time, Miles and Knox were married.
4. Miles’s Police Station Interview
After Miles waived her Miranda rights at the police station interview and agreed to answer Detective Street’s questions, she provided several inconsistent versions of what occurred. First, she admitted she called Thompson, told him Knox was not there, and let Thompson and Jones in to “rob” the apartment, but she did not care because she was angry with Knox. She said she was in the other room packing her things when she heard people yelling, and a gunshot. She was not sure Knox was in the apartment, because she never came out of the other room until after she heard the shot. Then she saw that the front and sliding glass doors were open, and no one was there.
Miles spent the previous night of March 23 at her mother’s house, after arguing with Knox at the apartment. She was angry with Knox because she had kissed Trice and Knox would not forgive her for it. She returned to the apartment around 10:00 a.m. on March 24 to get her clothes. No one was in the apartment when she got there or when she called Thompson a short time later. Knox had kicked Thompson out of the apartment for wearing his clothes, and Thompson wanted some of Knox’s money so he could move to Las Vegas. Miles believed Thompson was trying to break up her relationship with Knox, because he told her Knox was “getting ready to find a new girlfriend.” That was why Miles and Trice “ended up kissing.”
Miles said she did not hear Knox’s voice when she was in the other room; she only heard Jones and Thompson arguing. Then she “heard gun shots go off” and thought something happened between Jones and Thompson. Several days earlier, Jones told Thompson that Jones would “cap” Thompson and “take all [his] shit, ” so she thought Jones and Thompson were arguing about who would get what from the apartment. At first Miles did not know whether anyone had been shot, then she heard police sirens and left the apartment. On the way to her mother’s house, she saw an ambulance and at that point knew that either Jones or Thompson had been shot.
When Detective Street pressed Miles to tell him who was in the living room besides Jones and Thompson, Miles said she did not let anyone else into the apartment and doubted that Thompson would have. If anyone would have shot Thompson, Miles said, it would have been Jones because Thompson was everyone’s friend and no one liked Jones. No one liked Jones because he was lazy, always talked about “hitting licks, ” and at age 27 was too old to be staying at Jeremy’s dirty house.
When Detective Street told Miles that Jones said Knox fired the shot, Miles laughed and said, “Oh, I thought he was gonna say that it was me.” Then when the detective told Miles that Jones said she was in the living room when Knox fired the shot, Miles said, “Ooh, now, we have a problem, ” and insisted she was in the other room packing her clothes.
Then when Detective Street asked Miles where he could find Knox, Miles said Knox’s only good friend was Kevin Johnson, who stayed somewhere on University. Miles insisted that Knox would “never” shoot Thompson in front of her and she would “turn him in” if he did because Thompson was like her “little brother.” Then, when Detective Street said someone shot Thompson and it wasn’t Jones, Miles said, “Maybe Kevin was there?, ” and described Kevin Johnson or “KJ” to the detective. KJ, she said, had recently turned age 21, several days after Knox turned 21.
After being pressed to tell the truth about what happened, Miles admitted Knox and KJ were in the back room waiting for Thompson when she let Thompson and Jones into the apartment. Knox and KJ took Thompson and Jones into the living room, made them lie on the floor, and talked about beating them up in the canyon. KJ told Miles to come out of Knox’s bedroom and sit on the living room couch. Then when Thompson tried to run out the door, Knox and KJ both pointed guns at him, and a gun went off. Miles “assume[d]” that Knox was the one who fired the shot, because Knox was hotheaded and KJ knew better.
Then Miles admitted she knew Knox was the one who shot Thompson because the potato on the end of his gun exploded all over the floor. Miles also admitted she told Thompson to come over that morning, to prove to Knox that Thompson and the others who stayed at Jeremy’s house were not his friends and were planning to “rob” him as soon as Miles told them he was not there. Miles said “we, ” meaning her, Knox, and KJ, initially did not know whether Thompson was hit. Then, Miles said, “Oh my God, I snitched on them.”
Miles continued: KJ ran outside to see what happened after leaving his gun on the table, and Knox sat down “getting ready to cry.” Knox said he “didn’t mean it, ” he was sorry, and he let Jones leave through the back door. When asked who was “the bad ass there, ” Knox or KJ, Miles said KJ was more “hot headed.” Then Miles said KJ was not pointing a gun when Thompson fired his gun, but was on the telephone. Miles also denied that Knox or KJ were talking about shooting Thompson and Jones in Reche Canyon and burning their bodies; they were only saying they were going to take them there to beat them up. Miles “didn’t touch” Thompson as he ran out the door. KJ came back to the apartment after running outside, Knox grabbed their two guns from the table, and Knox and KJ left the apartment. Miles was allowed to leave at the end of the interview.
B. Miles’s Defense Evidence (Joint Trial)
1. Miles’s Testimony
Miles testified before both juries at her joint trial with McCoy, and her testimony was read into evidence in her retrial. Around two days before the shooting, she agreed to allow Thompson, Jones, and several others into Knox’s apartment to “rob” him when he was not there. She agreed to the plan because she was angry with Knox because Thompson had told her Knox was cheating on her and was going to kick her out of his apartment.
The next day, March 23, Miles told Knox that Thompson and others at Jeremy’s house were planning to rob him. Miles also told Knox that she had cheated on him with Trice. Miles felt bad about cheating on Knox, and Knox was angry. Miles slept at her mother’s house that night.
On March 24, the day of the shooting, Miles went to Knox’s apartment in the morning. Knox and McCoy were there. Miles told Knox she could make a telephone call and Thompson and the others would come to the apartment to rob him. Knox said they would not dare. Miles called Thompson to show Knox that the people at Jeremy’s house were not his friends, and so Knox would stop making her feel like a “slut” for having had sex with Trice.
Miles called Thompson and told him Knox was not at the apartment. Knox then told McCoy that Miles made the call and Thompson and others were coming over to “rob” the apartment. McCoy said it was Miles’s fault that people were coming to rob the apartment, and Knox should not trust Miles. Miles knew that Knox kept a loaded revolver and a loaded semiautomatic pistol in the apartment. Knox and McCoy went to Knox’s bedroom and retrieved the guns. They put potatoes on the ends of the guns to silence the sounds of any bullets they fired, and hid in Christian’s bedroom.
Thompson knocked on the door and Miles let him and Jones into the apartment, as Knox and McCoy had told her to do. Miles knew Thompson and Jones were walking into an ambush, but she thought McCoy might shoot her if she did not open the door. Knox had previously told Miles that McCoy was violent, and that McCoy did not like Miles. Knox and McCoy also told Miles to tell Thompson to go to Christian’s room.
Thompson and Jones followed Miles into Knox’s bedroom, and Miles sat on the bed. Miles was crying and Thompson asked her whether she told Knox she “messed around.” Miles said she had. Thompson then asked Miles whether some cash he saw in the room was hers, and she said “[n]o.” Thompson put the money in his pocket and asked Miles where Knox kept the rest of the money. Miles told him the rest of the money was in Christian’s bedroom.
Thompson and Jones then went into Christian’s bedroom. Miles knew Knox and McCoy had loaded guns and were hiding in Christian’s bedroom. Miles stayed in Knox’s bedroom, and heard Knox and McCoy screaming at Thompson and Jones. Knox was saying he could not believe they would try to rob him.
From Knox’s bedroom, Miles saw Knox and McCoy leading Thompson and Jones into the living room at gunpoint. McCoy came back to Knox’s bedroom to get Miles, and told her to sit on the couch in the living room. Miles complied because McCoy still had a gun in his hand. When Miles went into the living room, Thompson and Jones were lying on the floor.
Knox was saying he wanted to kill Thompson and Jones in the living room. Knox said, “‘I’m going to do it.... I’m going to kill both of them right now.’” McCoy said, “‘No, let’s do this right. You’ll get in trouble if you do it here.’” McCoy also said, “‘We need to take these two f’ing people out to the canyon and kill them there and burn their bodies.’” McCoy called someone and asked them to bring a van so he could take Thompson and Jones to a canyon and burn their bodies.
Miles thought McCoy was going to shoot Thompson, Jones, and maybe her, too, because McCoy was saying the situation was her fault. Miles said nothing because she did not want to draw attention to herself.
While Miles was still seated on the couch, Thompson began to get up from the living room floor. Knox came into the living room from the kitchen and pointed a gun at Thompson, and Miles said “‘[Knox], no’” and “screamed” at Thompson to get back down. Miles denied she said, “[Thompson] is running” or tried to warn Knox or McCoy that Thompson was trying to flee. She also denied trying to grab Thompson’s arm as he tried to flee. As Thompson ran out the door, Knox fired a shot, and the potato on his gun exploded all over the floor.
After McCoy followed Thompson out the front door, Jones began to get up from the floor, and Knox pointed his gun at Jones and told him to get back down. Then, Knox told Jones he was going to let him go because he knew Knox’s brother Christian, but told him not to leave through the front door because he would run into McCoy. After Jones left, Knox told Miles he was sorry and to clean the potato from the carpet.
Then McCoy came back and said he heard sirens, and Knox told Miles to take the trash out and leave the apartment. McCoy and Knox left through the front door, still holding their guns. Miles finished cleaning the potato from the carpet, put it in the trash, changed her clothes, took the trash out, and went to her mother’s house.
A few minutes after Knox left, he called Miles and said Thompson was lying on the street and was dead. McCoy got on the telephone and told Miles it was all her fault. Later that morning, Miles, accompanied by her sisters, walked back toward Knox’s apartment to see what had happened to Thompson.
A few days later, Miles met Knox at a motel room. She did so because she felt sorry for Knox and thought if she had kept her mouth shut the shooting would not have occurred. Around one week before Knox’s preliminary hearing, Knox wanted Miles to marry him so she could not testify against him. Miles agreed to marry Knox only after McCoy began threatening her around the same time, and Knox told her McCoy would not leave her alone unless she married him and testified for him at his preliminary hearing. Miles married Knox on May 12, 2006, three days before his May 15 preliminary hearing. Miles testified for Knox at his preliminary hearing, and was arrested immediately afterward.
Miles explained she lied to Detective Street about not being present at the time of the shooting because she did not want to implicate Knox or McCoy. She did not believe Knox was going to shoot anyone because he was not that type of person. Her “story” at Knox’s preliminary hearing was that Knox and McCoy were not in the apartment and she was the only one there.
2. Christian Knox’s Prior Testimony
Knox’s brother Christian was unavailable to testify at the joint trial, so the juries were presented with portions of his prior testimony at Knox’s trial in March 2007. Christian and his parents were supporting Knox because Knox was not working. Christian knew some of Knox’s friends, including McCoy. Thompson and Miles moved into the apartment in early 2006. Knox asked Thompson to leave because, among other reasons, Thompson was wearing Knox’s clothes. On March 23, Christian heard Knox and Miles arguing, and they left the apartment that night.
Christian owned a.22-caliber Smith & Wesson semiautomatic pistol because he had been robbed at gunpoint in the apartment. Christian showed Knox how to use the gun and load it, and Knox knew where Christian kept the gun and ammunition in the apartment. When Christian went to bed on March 23, the gun was on his nightstand. He went to work the next day at 6:00 a.m. and returned to the apartment at 8:00 p.m., but could not enter because a criminal investigation was in progress. He later discovered his gun was not in the apartment. He reported the gun stolen and it was never recovered.
3. Thompson’s Prior Statements to Detective Street
Detective Street testified before both juries to what Thompson told him on April 20, 2006, when he interviewed Thompson at the hospital. According to Thompson, Miles did not try to grab his arm as he bolted for the front door, but she did say, “[Thompson] is making a run for it, ” to alert Knox and McCoy that Thompson was trying to escape. Thompson did not see who shot him.
C. McCoy’s Defense Evidence
McCoy testified he was frightened because people were coming to break into the apartment, so he armed himself with Christian’s gun, which Knox retrieved from under Christian’s bed, and he and Knox hid in the bathroom in Christian’s bedroom. McCoy did not put a potato on his gun. While hiding in the bathroom, Knox was “frantic” and saying he was going to kill “him, ” but McCoy told Knox to calm down.
When Thompson and Jones came into Christian’s bedroom, McCoy jumped out of the closet and told them to “freeze, ” but Thompson kept reaching for his pockets. Then McCoy made Thompson and Jones lie on the living room floor so his safety was not at risk, but he did not search them. After Thompson said he was only there because Miles told him to come over, McCoy told Miles to come into the living room and sit down. McCoy was angry with Miles for “setting up” Knox, but he had no intention of harming Thompson or Jones.
Knox said, “‘I’m going to kill them, I’m going [to] shoot them now, ’” but McCoy said, “‘No, Ed, that’s not the right way to do it, ’” meaning he, McCoy, was going to call the police. McCoy never got a chance to call the police, however, because as soon as he grabbed his telephone he heard a gunshot. When McCoy heard the gunshot, his gun was on the table and his back was turned to Thompson and Jones. McCoy said to Knox, “‘What are you doing?, ’” and Knox responded, “‘I didn’t mean to.’”
McCoy ran outside, heading for his car, and came back only because he dropped his cellular telephone in the doorway. As he was driving away he saw Thompson, and it appeared that Thompson was handcuffed and the police were talking to him. He did not stop because he was on probation, and continued driving away.
McCoy visited Knox at the motel room the day Knox was arrested in order to give Knox money to buy food. Sometime after the shooting, Miles called McCoy and told him he had to put money on Knox’s jail account.
On May 11, 2006, McCoy was arrested and interviewed by Detective Street. Initially, McCoy denied he was present at the time of the shooting, and said he was with a girl named Lupe Harris. McCoy also admitted he lied to the detective when he said he was not KJ.
D. Miles’s Retrial on the Attempted Murder Charge
The prosecutor and Miles’s defense counsel presented substantially the same evidence at Miles’s retrial on the premeditated attempted murder charge as they presented at the joint trial. Thompson, Jones, Detective Street, and several other law enforcement officers testified for the prosecution, and the defense presented the prior testimony of Miles, McCoy, and Christian.
III. DISCUSSION
A. Substantial Evidence Supports McCoy’s and Miles’s Attempted Murder Convictions
McCoy claims that insufficient evidence supports his conviction for the attempted murder of Thompson and was only sufficient to show that Thompson and Jones were assaulted with firearms. Miles joins this claim without further argument. We find it without merit as to each defendant.
As discussed, the evidence showed that Knox shot Thompson as Thompson fled from Knox’s apartment. Miles and McCoy were prosecuted for the attempted murder of Thompson based on the theory that the attempted murder was a natural and probable consequence of the firearm assaults on Thompson and Jones, which Knox and McCoy perpetrated and Miles aided and abetted.
For the reasons we explain, substantial evidence shows, and the juries reasonably concluded, that Knox intended to kill Thompson when he shot Thompson, and McCoy and Miles were liable for the attempted murder under the natural and probable consequences doctrine.
1. Standard of Review
In considering a claim that insufficient evidence supports a verdict, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence which is reasonable, credible, and of solid value—from which a jury comprised of reasonable persons could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume in support of the judgment the existence of every fact the jury could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Reversal is unwarranted merely because we believe the evidence might reasonably justify a contrary conclusion. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
2. Attempted Murder/Aider and Abettor Liability
The elements of the crime of attempted murder are the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (§ 21a; People v. Lee (2003) 31 Cal.4th 613, 623.) The law imposes criminal liability on all “principals” to a crime. (§ 31; People v. Nguyen (1993) 21 Cal.App.4th 518, 529.) Principals include persons “concerned” in the commission of the crime, “whether they directly commit the act constituting the offense, or aid and abet in its commission....” (§ 31; People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).)
Aider and abettor liability is of two types. (McCoy, supra, 25 Cal.4th at p. 1117.) The first type arises when the defendant, “(i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v. Beeman (1984) 35 Cal.3d 547, 560-561.) This type of aider and abettor liability requires that the mental state of the aider and abettor “be at least that required of the direct perpetrator.” (McCoy, supra, at p. 1118.)
The second type of aider and abettor liability is based on the natural and probable consequences doctrine. (McCoy, supra, 25 Cal.4th at pp. 1117-1118.) Under this doctrine, a defendant is guilty not only of the intended crime he or she aided and abetted, but also “for any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 260.) Aider and abettor liability under the natural and probable consequences doctrine does not require that the defendant’s mental state “be at least that required of the direct perpetrator.” (McCoy, supra, at pp. 1117-1118.)
Aider and abettor liability under the natural and probable consequences doctrine arises when the defendant, with “(1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime; (4) the defendant’s confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.” (People v. Miranda (2011) 192 Cal.App.4th 398, 408.)
Under the natural and probable consequences doctrine, “[t]he issue ‘is not whether the aider and abettor actually foresaw the additional [or charged] crime, but whether, judged objectively, it was reasonably foreseeable.’ [Citation.]” (People v Vasco (2005) 131 Cal.App.4th 137, 161.) The charged crime will have been reasonably foreseeable if, “‘under all of the circumstances presented, a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citations.]’ [Citation.]” (People v. Miranda, supra, 192 Cal.App.4th at p. 408.)
Thus here, in order to hold McCoy and Miles liable for Knox’s attempted murder of Thompson under the natural and probable consequences doctrine, the juries had to find that McCoy and Miles: (1) directly perpetrated or aided and abetted the firearm assaults on Thompson and Jones; (2) Knox attempted to murder Thompson, or specifically intended to kill Thompson, and committed a direct but ineffectual act toward the intended killing; and (3) Knox’s attempted murder of Thompson was a reasonably foreseeable consequence of the firearm assaults. (People v. Lee, supra, 31 Cal.4th at p. 623 [elements of attempted murder]; People v. Miranda, supra, 192 Cal.App.4th at p. 408 [elements of aider and abettor liability under natural and probable consequences doctrine].)
3. Analysis
McCoy challenges the legal sufficiency of the evidence that Knox intended to kill Thompson, claiming the evidence showed only that Knox intended to assault Thompson with a firearm but did not intend to kill him. McCoy points out that Knox hesitated before he shot Thompson, and did not chase Thompson out of the apartment but allowed him to get away. He argues Knox “simply didn’t follow through” with shooting and killing Thompson, though there was nothing to prevent him from shooting Thompson a second time and killing him if that was his intent.
McCoy also points out that Knox immediately apologized for the shooting, said he didn’t mean to shoot Thompson, and promptly allowed Jones to leave the apartment without incident after the shooting. McCoy further argues that Knox’s threats to kill Thompson and Jones shortly before the shooting did not show an intent to kill. Rather, the evidence as a whole showed that Knox made the threats only because he was angry with Thompson and Jones for attempting to steal from him and wanted to frighten them.
For these reasons, McCoy argues, the record “does not show solid, credible evidence” that Knox intended to kill Thompson; thus McCoy “asserts vigorously” that “this ambiguous evidence of an attempt to kill is unreliable” and its use to convict him of the attempted murder violated his Fourteenth Amendment due process rights. In support of his due process argument, McCoy relies on People v. Reyes (1974) 12 Cal.3d 486 at pages 496 through 500, but there the court simply held the evidence lacked substantial probative value and was therefore insufficient to support the judgment.
Here, by contrast, substantial evidence shows, and the juries could have reasonably concluded, that Knox intended to kill Thompson when he shot Thompson. Shortly before he shot Thompson, Knox and Jones were viciously threatening to kill both Thompson and Jones and were discussing how they should carry out the murders. Then, when Thompson got up from the floor and fled the apartment, Knox tried to stop him, not by running after him, but by shooting him in the back at close range.
Given Knox’s death threats immediately before the shooting and the fact Knox shot Thompson at close range, the jury could have reasonably inferred that Knox intended to kill Thompson when he shot him. (See People v. Smith (2005) 37 Cal.4th 733, 741 [intent to kill can in many cases be inferred from the defendant’s acts and the circumstances of the crime]; People v. Lashley (1991) 1 Cal.App.4th 938, 945 [firing toward victim at a close range “in a manner that could have inflicted a mortal wound... is sufficient to support an inference of intent to kill....”].)
Substantial evidence also shows that McCoy directly perpetrated, and Miles aided and abetted, the firearm assaults on Thompson and Jones. McCoy does not dispute that substantial evidence shows he assaulted Thompson and Jones with a firearm and aided and abetted Knox’s firearm assaults on both men. Miles aided and abetted the firearm assaults by luring Thompson to Knox’s apartment under the pretext that Knox was not at home, there was a substantial sum of money in the apartment, and she would show Thompson where the money was so he could steal it. And when Miles let Thompson and Jones into the apartment, she knew Knox and McCoy were hiding in the apartment with firearms and would assault Thompson and Jones with the firearms after they began looking for the money. Miles further aided and abetted the assaults while the assaults were in progress, by yelling, “[Thompson] is running” to alert Knox that Thompson was escaping the apartment through the front door. Miles also grabbed Thompson’s arm in an effort to stop him from fleeing.
Finally, the juries could have reasonably concluded that Knox’s attempted murder of Thompson was a reasonably foreseeable consequence of the firearm assaults. As Thompson and Jones lay face down on the living room floor, Knox was saying he wanted to shoot both of them in the apartment, and vented anger at Thompson for trying to steal from him after all he had done for Thompson. Under all of the circumstances presented, including Knox’s threat to kill Thompson and Jones, and Knox’s manifest anger at Thompson for attempting to steal from him, Knox’s attempted murder of Thompson was a reasonably foreseeable consequence of the firearm assaults, and of the dangerous and volatile situation that arose as a result of and during the course of the assaults.
B. Substantial Evidence Supports the McCoy Jury’s Finding That the Attempted Murder of Thompson was Willful, Deliberate, and Premeditated
McCoy also challenges the sufficiency of the evidence supporting his jury’s finding that the attempted murder of Thompson was willful, deliberate, and premeditated. This claim does not apply to Miles as the jury in her second trial found the premeditation allegation not true.
1. Pertinent Legal Principles
Section 664, subdivision (a) prescribes a life sentence with the possibility of parole for “the person” guilty of attempted willful, deliberate, and premeditated murder, provided the fact “the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.” (§ 664, subd. (a); People v. Lee, supra, 31 Cal.4th at pp. 620-621.)
We review for substantial evidence a finding that an attempted murder was willful, deliberate, and premeditated. (People v. Nelson (2011) 51 Cal.4th 198, 213.) “‘In this context, “premeditated” means “considered beforehand, ” and “deliberate” means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.”’ [Citation.]” (People v. Jurado (2006) 38 Cal.4th 72, 118.)
“The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767.) “An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.” (People v. Stitely (2005) 35 Cal.4th 514, 543.)
“‘A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting motive, planning activity, and manner of killing—but “[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.”’ [Citation.]” (People v. Burney (2009) 47 Cal.4th 203, 235.) Nor are these three factors exhaustive; they are “merely a framework for appellate review[.]” (People v. Brady (2010) 50 Cal.4th 547, 562.)
2. Analysis
McCoy argues the evidence is insufficient to support the premeditation finding because it unequivocally showed that Knox shot Thompson as a result of an unconsidered or rash impulse, and not as a result of preexisting thought and reflection. We disagree. Based on the evidence, the jury reasonably concluded that the attempted murder of Thompson was willful, deliberate, and premeditated.
(a) Evidence of Planning
First, there was ample evidence of planning. Substantial evidence showed that Knox was planning to kill Thompson as soon as he knew Thompson was coming to his apartment that morning. Armed with firearms and using potatoes as silencers, Knox and McCoy hid in the apartment, waiting for Thompson to show up. Knox and McCoy then repeatedly and viciously threatened to kill Thompson and Jones after they came out of hiding and confronted Thompson and Jones with their firearms. They ordered Thompson and Jones to lie face down on the living room floor while they discussed how and where they were going to kill Thompson and Jones.
McCoy argues the evidence was insufficient to show that Knox planned to kill Thompson, because Knox did not shoot Thompson until after Thompson “bolted for the door to get away.” The shooting, McCoy argues, “was a spur of the moment incident” and Knox merely “reacted and fired after hesitating over whether to act at all.” Knox said he did not mean to shoot Thompson and cried immediately after he shot Thompson, did not pursue Thompson out of the apartment after he shot him, and allowed Jones to leave the apartment unharmed. This evidence, McCoy argues, indicates Knox neither intended nor planned to kill Thompson.
The jury rejected this view of the evidence, however, and reasonably concluded that Knox’s shooting of Thompson was the product of “preexisting thought and reflection.” The jury could have reasonably inferred that Knox shot Thompson at close range in order to kill him, just as he had planned to kill him, in order to prevent him from getting away, even if Knox did not carry out his plan to kill Jones.
(b) Evidence of Motive
There was also ample evidence of motive. Knox was angry with Thompson for trying to steal from him, and expressed that anger by telling Thompson how stupid he was for coming to his apartment unarmed. Knox said to Thompson: “‘You came to rob me without a gun. You must be stupid.’” The evidence of Knox’s motive to kill Thompson, or anger with Thompson, supported an inference that Knox and McCoy were serious when they were threatening to kill Thompson.
(c) The Manner of Shooting
Lastly, the manner of the shooting—particularly in combination with the evidence of planning and motive—supports the jury’s premeditation finding. As discussed, Knox shot Thompson at close range and in a vital section of his body, which could have and nearly did kill Thompson. (People v. Smith, supra, 37 Cal.4th at pp. 741-742 [shooting at close range which could have inflicted mortal wound sufficient to show intent to kill under all the circumstances].) It is also significant that the shooting occurred very shortly after Knox and McCoy had Thompson and Jones lying face down on the living room floor of the apartment at gunpoint, and were threatening to kill them and discussing how and where they would kill them. This indicated, and McCoy’s jury reasonably concluded, that the attempted murder of Thompson resulted from preexisting thought and reflection, rather than a rash or unconsidered impulse.
Finally, reversal of the premeditation finding is unwarranted merely because substantial evidence supports the contrary conclusion that the attempted murder was not premeditated. “‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.]” (People v. Burney, supra, 47 Cal.4th at p. 253.)
C. Substantial Evidence Supports McCoy’s Personal Use Enhancement in Count 1
McCoy claims the 10-year section 12022.53, subdivision (b) firearm enhancement on his attempted murder conviction in count 1 must be stricken because he was not the person who shot Thompson. We disagree.
McCoy’s argument misapprehends what it means to “personally use” a firearm for purposes of section 12022.53, subdivision (b). The statute provides: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years.” (Italics added.)
McCoy does not dispute that attempted murder is a felony “specified” in subdivision (a) of section 12022.53. Subdivision (a) specifies, “[a]ny felony punishable by death or imprisonment in the state prison for life” (§ 12022.53, subd. (a)(17)), and attempted premeditated murder is a felony punishable by imprisonment in the state prison for life (§ 664, subd. (a); People v. Lee, supra, 31 Cal.4th at p. 621).
McCoy’s jury was properly instructed that someone “personally uses” a firearm in the commission or attempted commission of an offense if he or she intentionally displays a firearm in a menacing manner, fires it, or hits someone with it. (Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 3146; People v. Grandy (2006) 144 Cal.App.4th 33, 42.) The personal use enhancement is thus not limited to a person who shoots another in the commission or attempted commission of an offense. Instead, the personal use enhancement of section 12022.53, subdivision (b) encompasses the menacing or threatening display of a gun. (People v. Palacios (2007) 41 Cal.4th 720, 725 & fn. 3.)
We review a personal use finding for substantial evidence. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.) And here, substantial evidence shows McCoy intentionally displayed a firearm in a threatening or menacing manner in the commission of the attempted murder of Thompson. McCoy variously pointed and displayed a firearm at Thompson and Jones while McCoy and Knox were threatening to kill and discussing how they would kill Thompson and Jones. McCoy’s menacing display of a firearm at Thompson and Jones, coupled with his and Knox’s threats to kill Thompson and Jones, prompted Thompson to “bolt for the door, ” after which Knox shot him.
McCoy further argues his 10-year section 12022.53, subdivision (b) personal use enhancement on count 1 must be stricken because the requirements of subdivision (e) of the statute were not pleaded and proved. This argument misapprehends the import of subdivision (e).
Section 12022.53, subdivision (e) extends the reach of the subdivision (b) enhancement to persons who, unlike McCoy, do not personally use a firearm in the commission of an enumerated offense, but who are nonetheless principals in the commission of the offense when: (1) the offense was committed at the direction or for the benefit of a criminal street gang (§ 186.22, subd. (b)), and (2) “any principal” in the offense personally used a firearm (§ 12022.53, subd. (e)(1)(A), (B); People v. Garcia (2002) 28 Cal.4th 1166, 1171-1175). Given that McCoy personally used a firearm in the commission of the attempted murder of Thompson, the prosecution was not required to plead or prove the alternative requirements of subdivision (e).
D. Miles’s Statements to Detective Street at the Police Station Were Properly Admitted
Miles claims the statements she made to Detective Street during her police station interview on March 24, 2006, were admitted in violation of her Miranda rights in both her trials. She claims her statements were inadmissible because she made them after she unequivocally invoked her right to counsel at the beginning of the interview, before she was advised of her Miranda rights, when she told the detective: “No really like either, charge me, do whatever you’re doing.... [¶]... [¶]... and call me a lawyer.... [¶]... [¶]... or let me go.”
We conclude Miles’s interview statements were properly admitted. Her request for an attorney was ambiguous, because it indicated she wished to have a lawyer to assist in the event she was charged with a crime, as opposed to having the assistance or presence of a lawyer during questioning by the police. Given this ambiguity, Detective Street properly advised her of her Miranda rights and sought to clarify whether, having her rights in mind, she wished to answer his questions. The record shows that Miles then waived her Miranda rights and answered the detective’s questions, with the express understanding she could stop the interview at any time and consult with an attorney if she wished to do so.
1. Relevant Background
As indicated, Detective Street spoke to Miles twice on March 24, 2006, first at Knox’s apartment and later at the police station. At the apartment, Miles denied she was present when Thompson was shot and denied having any information about the shooting. Later that day, after he had spoken with Jones and other witnesses, Detective Street transported Miles to the police station for a further interview.
At the beginning of the police station interview, Miles said she was tired and hungry, and asked how long she was going to be there. After giving Miles some water and crackers, Detective Street told Miles that Jones and Miles’s sisters had told him “a very different story” than Miles had told him. Miles said, “What? I don’t care. I’m cranky. I’m tired. I’ve been through this all day. I didn’t do shit to anybody. I am cool, you guys wanted [to] ask[] questions. Okay, you told me I wasn’t....”
Detective Street interrupted, saying “No, no, ” to which Miles responded, “Hold on. Let me finish.... [¶]... [¶]... or I am not going to say anything at all, ” to which the detective responded, “Well, that’s up to you.” (Italics added.) At that point Miles said, “No really like either, charge me, do whatever you’re doing.... [¶]... [¶]... and call me a lawyer.... [¶]... [¶]... or let me go.” (Italics added.) During Miles’s last statement, the detective said, “I may have to” several times. Then Miles said, “I’m really sick right now, ” and “You don’t have anybody saying I pulled anything.”
The detective then told Miles: “What I need, is the truth here. And look you don’t have handcuffs on and you’re not really....” Miles protested that the detective was “not saying” she was free to leave, and told the detective she would have left the police station by that point if she were free to leave. The detective told Miles, “That’s right, ” that she was not free to leave, and he had to decide whether to book her into jail or allow her to leave.
The detective then explained to Miles that she was not free to leave because she was being detained, and because she was being detained he needed to advise her of her rights. He then advised Miles of her Miranda rights, asked Miles whether she understood them, and Miles responded, “Yeah.” Then he asked Miles, “Having your rights in mind do you wish to answer questions? I just need to get a yes or a no.”
At this point, the following colloquy ensued:
“[MILES]: So basically if I don’t answer you, the way you want me to answer you, I’m going to be stuck here?
“STREET: No, we don’t keep people here. We send them to the jail.
“[MILES]: Yeah, whichever like, I’m going to jail if I don’t answer you the way you want me to answer you.
“STREET: No that’s not it at all. All’s I want is the truth. And you’re not, you have not told me the truth and you know that.
“(Long silence)
“STREET: And to be completely honest, I haven’t really made up my mind what I’m gonna do if you decide not to answer questions. Frankly, that’s your constitutional right and I respect that. I’m gonna have to... sit down and think about all the others [sic] things that I’ve come across in this investigation, so far.
“[MILES]: If you’re gonna look at anybody for shooting anybody, it should be [Jones]. [Jones] is always talking about popping somebody with that stupid throw-away gun he always has. [¶]... [¶]
“STREET:... So if you choose to invoke your rights, that is not....
“[MILES]: And at any time I can stop answering your questions?
“STREET: Well sure. I mean the way it works is that if we get into something you... don’t want to talk about, tell me. We’ll go around it. If you come to a point [where] you feel like you need an attorney or you... don’t want to answer any questions anymore, tell me, we’ll stop. That is your constitutional right, and I’m not here to tell you that if you don’t answer my questions, I am going to send you to jail.
“[MILES]: But you already made up your mind that if I don’t answer your questions, you’re going to send me to jail.
“STREET: That’s not true and I just told you, that I need to review everything that people have told me, so far.
“[MILES]: So, I’ll be here what, another eight hours?
“STREET: No, I don’t think so. I need some time to sit and evaluate the case and then I’ll... make up that decision. But, I want you to understand it’s not based on if you decide to invoke your rights or not because that really wouldn’t be fair.... I am not going to base my decision on the fact that you’re gonna cooperate or not cooperate. I told you also earlier today, I think that I don’t believe that you pulled the trigger but that if you are an accessory. If you’re covering up information that makes you....
“[MILES]: I can’t tell you what I don’t know
“STREET: Okay... and I’m not asking you to.
“[MILES]: All I heard was bang, bang and they’re out of there, they’re out of the house. I don’t see anybody in the house. I was in there packing my shit.
“STREET: Okay. I would like to hear exactly what happened, but before I can take your statement, you need to tell me... if you’re willing to, having your rights in mind do you wish to talk to me. I just need a yes or a no.
“[MILES]: Yeah.
“STREET: Okay. So go ahead and just tell me the story.
“[MILES]: Starting where?”
Miles then answered Detective Street’s questions, giving inconsistent versions of what occurred as described above. In her joint trial with McCoy and in her retrial on the attempted murder charge, Miles moved to suppress her statements on the ground she unequivocally invoked her right to counsel at the outset of the interview, and for this reason her subsequent Miranda waiver was invalid and her statements were inadmissible. Both courts denied the motion on the ground Miles’s initial invocation of her right to counsel was equivocal, and for this reason the detective’s Miranda advisement and further questioning in order to clarify whether she wished to speak to him, having her Miranda rights in mind, did not violate her Miranda rights.
2. Applicable Law and Analysis
On appeal, we independently review the trial court’s legal determinations, and defer to its factual findings if supported by substantial evidence. (People v. Williams (2010) 49 Cal.4th 405, 425 (Williams).) Here, however, the relevant facts are undisputed, and we must independently determine whether Miles unequivocally invoked her right to silence or to counsel at the outset of the police station interview, when she told Detective Street, “either, charge me.... [¶]... [¶]... and call me a lawyer.... [¶]... [¶]... or let me go.”
Miranda established a set of procedural safeguards, or prophylactic measures, to protect a suspect’s Fifth Amendment right against self-incrimination from the “inherently compelling pressures” of custodial interrogation. (Maryland v. Shatzer (2010) 130 S.Ct. 1213, 1219; Miranda, supra, 384 U.S. at p. 444; Williams, supra, 49 Cal.4th at p. 425.) These safeguards require that a person in custody must be informed prior to any questioning that (1) he has the right to remain silent, (2) anything he says can be used against him in a court of law, (3) he has the right to the presence of an attorney, and (4) if he cannot afford an attorney one will be appointed for him. (Berghuis v. Thompkins (2010) 130 S.Ct. 2250, 2259; Miranda, supra, at pp. 444, 467-473, 479.) Statements obtained in violation of these safeguards are inadmissible to prove the suspect’s guilt in a criminal case. (People v. Stitely, supra, 35 Cal.4th at p. 535; Miranda, supra, at p. 479.)
In Miranda, the high court specified that when a suspect indicates “in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” (Miranda, supra, 384 U.S. at pp. 444-445; Smith v. Illinois (1984) 469 U.S. 91, 97, fn. 6.) But “the law is settled that when a suspect under interrogation makes an ambiguous statement that could be construed as an invocation of his or her Miranda rights, ‘the interrogators may clarify the suspect’s comprehension of, and desire to invoke or waive, the Miranda rights.’ [Citations.]” (People v. Farnam (2002) 28 Cal.4th 107, 181 (Farnam), italics added; accord, Williams, supra, 49 Cal.4th at pp. 427-429 [both pre- and post-Miranda invocations of right to counsel or silence are to be judged under objective standard].)
Thus, in Farnam, the court held that the defendant’s refusal to answer an officer’s investigatory inquiries, before the defendant was arrested or advised of his Miranda rights, “fell short of a clear invocation of the... right to remain silent.” (Farnam, supra, 28 Cal.4th at p. 181.) The court explained: “That is, defendant’s comments (‘I’m not going to answer any of your fucking questions’; ‘Fuck this, I’m not staying here anymore’) and his attempt to walk away from the officers, viewed together, may simply have reflected that defendant did not want to stay at the scene and answer the particular questions posed by Officer Bradley. Under these circumstances, defendant’s comprehension and desire to invoke or waive his right to remain silent and right to counsel warranted clarification. Lieutenant Huff’s subsequent advisement of Miranda rights achieved just that; Huff did not ask defendant any substantive questions until defendant’s position was clarified and valid Miranda waivers were obtained. We therefore reject the claim that defendant’s confession... was obtained in violation of Miranda.” (Ibid.)
This is exactly what happened here. Viewed under an objective standard, Miles’s statement to “either, charge me.... [¶]... [¶]... and call me a lawyer.... [¶]... [¶]... or let me go, ” was not an unequivocal invocation of her right to silence or to counsel.
Instead, Miles’s statement reasonably indicated that she wished to remain silent and be represented by a lawyer if or in the event she was charged with a crime. (See, e.g., People v. Gonzalez (2005) 34 Cal.4th 1111, 1126 [suspect’s post-Miranda invocation of right to counsel was ambiguous because it indicated he wanted a lawyer “if” he was going to be charged with a crime]; see also McNeil v. Wisconsin (1991) 501 U.S. 171, 177-178 [distinguishing Fifth Amendment right to counsel, which protects a suspect’s “‘desire to deal with the police only through counsel, ’” from Sixth Amendment right to counsel which applies after suspect has been charged].)
And, given that Miles made the statement before she was advised of her Miranda rights, it also reasonably appeared to Detective Street that she did not understand she was not necessarily going to be charged with a crime regardless of what she told the detective, that she had a right to silence and to the presence of an attorney during the interrogation, and she could stop the interrogation at any point if she did not wish to answer the question or consult with an attorney.
In sum, given the content of Miles’s statement and the fact she made it before she was advised of her Miranda rights, Detective Street properly sought to clarify Miles’s “‘comprehension of, and desire to invoke or waive, ’” her Miranda rights (Farnam, supra, 28 Cal.4th at p. 181) by “pos[ing] a limited number of followup questions to render more apparent” her true intent (Williams, supra, 49 Cal.4th at p. 429). This did not violate Miles’s Miranda rights.
To be sure, Detective Street did an outstanding job, with awareness and respect for Miles’s constitutional rights, both in clarifying her intent to invoke or waive her Miranda rights and in conducting the subsequent interview. He made sure she was comfortable, and in no way promised or suggested she would be free to leave or would receive any leniency or favors, whether she agreed to answer his questions or not. He told Miles he “needed the truth” and would decide based on his entire investigation whether to charge her or let her go.
As observed in Williams: “In certain situations, words that would be plain if taken literally actually may be equivocal under an objective standard, in the sense that in context it would not be clear to the reasonable listener what the defendant intends. In those instances, the protective purpose of the Miranda rule is not impaired if the authorities are permitted to pose a limited number of followup questions to render more apparent the true intent of the defendant.” (Willliams, supra, 49 Cal.4th at p. 429.)
E. There Was No Doyle Error
Lastly, Miles claims the admission in both her trials of the entire audiotape of her police station interview with Detective Street violated her due process rights under Doyle, supra, 426 U.S. 610, because at the beginning of the interview the jury heard that she “attempt[ed] to invoke her right to an attorney.”
Miles has forfeited this claim by failing to raise it in either of her trials. (People v. Huggins (2006) 38 Cal.4th 175, 198.) Though she objected to the admission of the entire police station interview on Miranda grounds, Miles did not object to the admission of the initial portion of the interview, in which she told the detective to “charge me.... [¶]... [¶]... and call me a lawyer.... [¶]... [¶]... or let me go, ” on any ground, including the ground it violated her due process rights under Doyle. In any event, we find no error.
“In Doyle, the United States Supreme Court held that it was a violation of due process and fundamental fairness to use a defendant’s postarrest silence following Miranda warnings to impeach the defendant’s trial testimony. (Doyle, supra, 426 U.S. at pp. 617–618.)” (People v. Collins (2010) 49 Cal.4th 175, 203; see also People v. Earp (1999) 20 Cal.4th 826, 856.) Doyle is based on the rationale that the “use of silence for impeachment [is] fundamentally unfair... because ‘Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him....’” (Fletcher v. Weir (1982) 455 U.S. 603, 606; see also People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1555.) For similar reasons, “comment which penalizes exercise of the right to counsel is also prohibited.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 65.)
There is no Doyle error, however, if the evidence of the defendant’s assertion of his right to counsel is not offered to penalize the defendant’s exercise of the right in any way. (See, e.g., People v. Huggins, supra, 38 Cal.4th at p. 199; People v. Hughes (2002) 27 Cal.4th 287, 332, fn. 4.) And here, the prosecution made no reference whatsoever to Miles’s initial (and ambiguous) assertion of her right to counsel during the police station interview, either in her joint trial with McCoy or in her retrial on the attempted murder charge. There was therefore no Doyle error.
Miles suggests the admission of the evidence she asserted her right to counsel constituted automatic error, but she cites no authority for this proposition and it is contrary to established law. To be sure, it is not always Doyle error to permit evidence that a defendant exercised his right to counsel. (People v. Huggins, supra, 38 Cal.4th at p. 198.) Such evidence may be used to attack the defendant’s credibility. (People v.Crandell (1988)46 Cal.3d 833, 878 [no Doyle error when prosecutor asked jury to listen to defendant’s “tone of voice” and “flippant response” when defendant asked for attorney, and did not urge jury to draw any inference from “fact” or “timing” of defendant’s request for counsel]; People v.Huggins, supra, at p. 199 [no Doyle error when prosecutor attacked credibility of defendant’s denial he was involved in victim’s death, by showing defendant asked for counsel only after he denied involvement]; People v. Hughes, supra, 27 Cal.4th at p. 332, fn. 4 [no Doyle error when fact and timing of request for counsel was relevant to show defendant wanted to remove officer from his presence so he could destroy evidence under his fingernails].)
In any event, the admission of Miles’s request for counsel at the beginning of her police station interview was harmless beyond a reasonable doubt. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 66.) The evidence that Miles told Detective Street to either charge her and call her a lawyer or let her go was “brief and mild” (People v. Crandell, supra, 46 Cal.3d at p. 879), and it is not reasonably possible it affected the verdicts, given that the prosecutor never mentioned the evidence and in light of the overwhelming evidence that Miles aided and abetted McCoy and Knox in committing the crimes against Thompson and Jones on March 24, 2006.
IV. DISPOSITION
The judgments are affirmed.
We concur: McKinster, Acting P.J., Miller, J.