Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-041042-3
Ruvolo, P. J.
I.
INTRODUCTION
Appellant Leron Leon Morris (Morris) was convicted of two counts of first degree murder and two counts of first degree residential robbery. He claims on appeal that the court erred in admitting his pretrial statements to police. Morris also asserts that the court erred in its instructions to the jury on conspiracy, robbery and aiding and abetting. Finally, he argues that he was denied the effective assistance of counsel. We affirm.
II.
PROCEDURAL BACKGROUND
The Contra Costa County District Attorney charged Morris by information with two counts of first degree special circumstance murder (Pen. Code, §§ 187, 190.2, subds. (a)(3), (a)(17)) and two counts of first degree residential robbery (§§ 211, 212.5, subd. (a)). The information alleged two special circumstances; the murders were committed during the commission of a robbery, and there were multiple murder victims. The information also alleged enhancements as to each count of personal use of a firearm, intentional discharge of a firearm, and intentional discharge of a firearm causing great bodily injury or death. (§ 12022.53, subds. (b), (c), & (d).)
Unless otherwise noted, all further statutory references are to the Penal Code.
Following a jury trial, the jury found Morris guilty of all counts, found both special circumstances true, and found the personal use enhancement true as to each count. The jury found the intentional discharge enhancements not true.
The court sentenced Morris to an aggregate term of 20 years plus two consecutive life terms without the possibility of parole. This timely appeal followed.
III.
FACTUAL BACKGROUND
This case involves the murders of Jared Pulliam and Christal Langston, whose naked, bound bodies were found in the trunk of a burning car at approximately 4:30 p.m. on December 16, 2002. At the time of the killings, Karen Novak (Novak) lived on Laverne Way in Concord (the residence) with her minor son, her adult daughter Nicole Cyr (Cyr), and Morris, Cyr’s boyfriend. On December 13th, Jared Pulliam delivered three pounds of methamphetamine to Novak by leaving it on the front porch of her residence. Novak did not know Pulliam.
Unless otherwise indicated, all further dates referenced are in 2002.
The methamphetamine delivery was arranged by Novak’s husband, Joshua, who was incarcerated. Joshua arranged its delivery as a way to repay Novak for money he had stolen from her stock brokerage account, and which he previously, and unsuccessfully, sought to repay with stolen checks. He told Novak she should sell the methamphetamine, and suggested she enlist the help of Dominique Wright, an 18-year-old male cousin of Morris’s. Though Novak initially considered selling the drugs, she decided not to. Joshua contacted Wright after the methamphetamine was delivered, and arranged for him to sell it.
Novak was on probation at the time following her conviction of being an accessory after the fact to an armored car robbery.
When the methamphetamine was delivered to her residence on December 13th, Novak told Pulliam and his companion not to leave it on her front porch. They indicated, however, that they “weren’t authorized” to do that. Novak left the drugs on her porch until Cyr and Morris arrived home and Morris brought it inside the residence.
That evening, Novak called Pulliam and asked that he retrieve the drugs. Pulliam again responded he was “[no]t authorized” to do so. After a number of telephone calls to Pulliam, Novak ultimately arranged for him to pick up the methamphetamine at her residence on the afternoon of December 16, 2002.
Novak wanted to leave the drugs on her front porch for pick-up, but Morris told her that was not a good plan. Novak and Morris agreed that Morris would handle the methamphetamine pick-up because Novak was “uncomfortable with the whole situation,” and would be at work at the scheduled pick-up time. Novak wanted Morris “to let these people know to leave me alone after this,” and act “stern.”
Prior to the scheduled pick-up date, Morris called Wright and asked for his help with the drug return. Morris asked Wright because he believed the encounter might be dangerous, and he knew Wright’s criminal history and what he was capable of doing. A few days before the killings, Wright borrowed a .38-caliber revolver from his father. Morris was with him at the time, but was not in the room when Wright got the gun. Prior to that date, Wright suggested to Morris that they “keep the drugs,” but Morris told him that “wasn’t an option.”
Wright spent the night at the residence on December 15, 2002, and Morris knew that Wright had a handgun with him. Before leaving for work on December 16th, Novak told Wright and Morris to frighten Pulliam so he would never return to her home. Morris replied he had a gun, and it would be on the china cabinet in the living room. Novak and Morris planned that the drug courier would be shown the gun and “advised not to come back.”
Novak left for work at about 11:15 a.m., leaving Morris, Wright, and Cyr at the residence. Cyr was asleep in the bedroom she shared with Morris. After she left, Novak received a telephone call on her cell phone from Pulliam, who told her “my people are there.” Novak called her residence, but there was no answer. When she called back, Wright answered the telephone, and she told him “these people are there.”
Shortly thereafter, someone knocked on the door of the residence. Morris retrieved the duffle bag containing the drugs from his bedroom and moved it to a chair near the front door. He answered the door, and a man later identified as Pulliam asked if Morris had anything for him. Pulliam entered the house, and Morris turned to get the duffle bag.
Wright came from the kitchen area with a gun pointed at Pulliam. Pulliam attempted to run out the door, but Wright told him “[d]on’t try it. Wright grabbed Pulliam by the hood of his coat, and he fell. Wright punched him and ordered him to take off his clothes, which Pulliam did. A “girl,” later identified as Langston, came to the door. Wright let her in and “pretty much repeat[ed] the same process.” Pulliam said he had some money in his car, and Wright retrieved $60. Morris told police that Wright robbed Pulliam, “took what he had . . . does the same thing with [Langston], strips her and robbed her too, take her property, little purse and junk like that.”
At some point, Wright gave Morris the gun and Morris was left alone with Pulliam and Langston. Morris denied guarding the victims, explaining that “wasn’t the description of what I was doing.” He stated he was just holding the gun, though he did not know why. Both victims pleaded with him; Pulliam asked Morris to call Novak, and Langston asked him to let her go. Morris did not like what was happening, but did not let them go. He testified he did not have “control of the situation,” and did not want Wright to “turn on [him] in any type of way.” After Morris realized Wright was going to kill Langston and Pulliam, he testified that he “wasn’t going to do anything . . . [because] that would be taking chances, and that’s a chance that I didn’t want to take.”
Pulliam’s car was backed into the garage. Wright returned, brought Pulliam to the garage, and put him in the trunk of his car. Wright returned for Langston, who pleaded to be released because she had a son. Wright responded: “Shut up bitch. I have one too.” He put Langston in the trunk of the car with Pulliam, and put a pillow over both of them. Wright shot Pulliam twice. Langston screamed “Don’t shoot me. Don’t shoot me.” Wright shot her twice. Morris turned away, and heard one more shot.
The pillow found in the trunk of the car with the victims’ bodies matched a pillow found in the residence.
Morris gave police conflicting stories regarding what happened next. He first stated that Wright took a gas can and drove away, returning about an hour later. Morris ultimately testified that he got a gas can for Wright and followed Wright to Marsh Creek Road in his car. Wright parked Pulliam’s car and set it on fire using the gasoline. Wright and Morris left in Wright’s car and returned to Novak’s residence.
Wright told Morris to dispose of the victim’s clothing. Morris put them in bags. He told police he put the bags in the car before it was burned, but at trial testified that Wright did that. At Wright’s request, Morris also burned Pulliam’s wallet in the fireplace at the residence. When police initially told Morris that they found some clothing in the garbage at the residence, he responded “Burnt?” Morris then told police the clothes were his, and that there was a “[w]eird story behind that one.” He indicated he “basically caught [him]self on fire” while working on his car. Then, he burned his clothing on a barbecue grill. After Wright and Morris returned to the residence, Wright took five empty bullet casings and one bullet out of the gun and put them in the trash.
No identifiable remnants of a wallet were found in the fireplace.
After identifying Pulliam and learning of his plan to deliver drugs to the residence, police went to the Novak residence on the evening of December 18th to execute a search warrant. Novak, Cyr, and the minor were at the residence when police arrived, and were brought to a police station for questioning. Police found a gun in the room shared by Cyr and Morris, and learned that Morris was at his mother’s home. They went to find Morris under the mistaken belief that he was on parole and that his possession of the gun was a violation of the parole terms. Initially, they handcuffed Morris, though they told him he was not under arrest. They learned that he was not on parole while still at Morris’s mother’s home and uncuffed him, telling Morris they had been mistaken. The officers asked if he would come to the station and answer some questions, and Morris assented. Deputy Lance Santiago asked if he could re-handcuff Morris’s hands in front, saying it was police department policy for passengers to be handcuffed. Morris agreed. Police took Morris to the station, where he agreed to cooperate with police, and answered their questions.
Morris’s testified in his own defense at trial. He testified that his plan was simply to return the methamphetamine. Wright suggested beforehand that they keep it, but Morris told him no. During the incident, he was afraid Wright would turn on him if he intervened to prevent the killings. Wright told him the last bullet in the gun was for him. Morris explained “that whole day I was driven off fear anyway, so I would have done almost anything [Wright] asked me to do that day.”
IV.
DISCUSSION
A. Morris’s Statements to Police
Morris raises a number of issues regarding the admission of statements he made to police. Police brought Morris, as well as Cyr, Novak and Novak’s minor son, to the Contra Costa County Sheriff’s Department field operations building (the station) in the early morning hours of December 19th. They told Morris he was not under arrest, and that he was free to leave at any time. Morris was cooperative, stating “I’ll answer any questions you guys have. . . .” He asked police if he could be liable “just by knowing . . . what happened,” and expressed concern that “people don’t find out that I told . . . .” Morris told Detective Hebel, “I promise you I’m not involved . . . [b]ut I was there and I did see.” Over the course of the next 11 hours, Morris described the robbery and killing of the victims to police, indicating that Wright was responsible. He also consented to a blood test. At about 2:00 p.m. that day, police advised Morris of his Miranda rights. He continued to answer questions, and was booked into jail sometime after 8:30 p.m. The following day at about 5:00 p.m., police again questioned Morris. They again advised him of his Miranda rights and, with his consent, administered a polygraph examination.
The interview of Morris was not continuous during this period. The record reflects numerous breaks for food, restroom usage, visits with Cyr and the minor, sleep and police questioning of others.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
1. Waiver of Miranda Rights
Morris first argues that, though he was advised of his rights under Miranda, he never agreed to waive those rights. Accordingly, he maintains that his statements to police made after receiving his Miranda advisements were inadmissible. “ ‘In reviewing constitutional claims of this nature, it is well established that we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained. . . .’ [Citation.]” (People v. Storm (2002) 28 Cal.4th 1007, 1022-1023, citing People v. Cunningham (2001) 25 Cal.4th 926, 992.)
While respondent correctly notes that Morris did not raise this issue in the trial court, we address it in order to forestall his claims of ineffective assistance of counsel.
Morris concedes that “once [he] moved from witness to suspect in the eyes of the officers, he was advised of his Miranda rights,” and “does not argue that his statements prior to the advisement of his rights should have been excluded as a specific violation of Miranda.” He instead asserts that the failure to advise him of his rights earlier in the interview process was part of the “totality of the circumstances” demonstrating his statements to police were involuntary.
“To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent.” (People v. Stitely (2005) 35 Cal.4th 514, 535.) “After such warnings have been given . . . the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against [the individual].” (Miranda, supra, 384 U.S. at pp. 478-479, fn. omitted.) Miranda explained that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” (Id. at p. 475.)
A suspect’s waiver of Miranda rights, however, need not be express. “An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but it is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. . . . [I]n at least some cases, waiver can be clearly inferred from the actions and words of the person interrogated.” (North Carolina v. Butler (1979) 441 U.S. 369, 373, fn. omitted.)
“[T]he determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel. [Citation.]” (Fare v. Michael C. (1979) 442 U.S. 707, 724-725.) The totality of the circumstances approach “permits—indeed, it mandates—inquiry into all the circumstances surrounding the interrogation.” (Ibid.) The circumstances to be considered include personal attributes of the defendant such as intelligence, level of education, and prior contacts with the criminal justice system. (North Carolina v. Butler, supra, 441 U.S. at pp. 374-375.) “[W]e cannot assume from a silent record that defendant, having heard a recital of these rights, nonetheless declined to waive them. An express statement of waiver is not required under such circumstances. [Citation.]” (People v. Medina (1995) 11 Cal.4th 694, 752.)
Morris does not dispute that Detective Hebel advised him of his Miranda rights. Morris also concedes that Detective Hebel asked him, after informing him of each right, whether he understood it, and that Morris indicated he understood. Instead, Morris asserts that after the Miranda advisements were given, he sought clarification of “the rights thing,” but the officers “thwarted his attempts to understand those rights . . . .” Morris argues that he “stated his confusion about the extent [of] his right to remain silent in particular, and asked for clarification,” but the officers “refused” to answer and “cut him off.”
The exchange cited by Morris, which took place after Detective Hebel advised Morris of his rights, was as follows:
“Det. Hebel: Remember we had the lady come in, the nurse come in and draw blood?”
“Mr. Morris: Yeah.
“Det. Hebel: Okay. And I talked to you—we talked about it and we told you it was gonna [sic] happen before she—before she came in. And we told you she was gonna take alcohol, she was gonna test—we were gonna [sic] test for alcohol, drugs, and typing, we talked about DNA and how the comparisons—comparisons go.
“Mr. Morris: Right.
“Det. Hebel: You know, I’m explaining this as best as I know. [¶] And then you knocked on the door and you said, ‘Hey, she didn’t have me sign a consent or anything,’ ‘cause I talked about consent, right?
“Mr. Morris: Right.
“Det. Hebel: Okay. Are you cool with that? I mean do you understand that process and how it went?
“Mr. Morris: Well, just that you guys had told me that, you know, I’d sign something, so I just expected it.
“Det. Moule: Right. They didn’t do it. So I want to confirm that a verbal consent is cool.
“Mr. Morris: Sure.
“Det. Moule: Okay. Yes, it is.
“Det. Hebel: Go ahead.
“Det. Moule: ‘Cause you were just concerned—I wasn’t sure if you were concerned, you had questions about that?
“Mr. Morris: Yeah. She had told me I had to sign something else.
“Det. Moule: Yeah, I thought she was gonna provide something for you to sign and she didn’t.
“Mr. Morris: Was I supposed to get something to sign?
“Det. Moule: No—you know, there’s different types of consent. One type is written, and if you sign something that would be written. Another type is verbal. And Detective Hebel and I discussed that with you and you—and you said you would do it. That’s a verbal consent.
“Det. Hebel: It’s as valid as a written consent. We just thought she had some paperwork and she didn’t.
“Det. Moule: I don’t want you to be confused about that.
“Det. Hebel: We wanted to clarify it for you. Okay.
“Det. Moule: (Unintelligible.)
“Det. Hebel: I hope not. I think that was it.
“Det. Moule: (Unintelligible.) I hope it was.”
The record reflects that the officers responded to Morris’s stated concerns. A review of the videotape and transcript of the questioning demonstrates that the officers’ discussion of the oral consent to the blood test was not “[an] attempt[] to confuse his understanding of his rights,” but a response to Morris’s query about the written consent form regarding the blood sample. There is no contention here that Morris did not consent to having a blood sample taken—he did so orally, and repeatedly. After the blood draw, he told Detective Hebel “I thought you guys said I had to sign something.” Detective Moule responded “Oh, they didn’t have you sign anything? . . . Well, in our report we’re gonna [sic] write that we talked to you and you said you were gonna [sic] consent.” Morris responded “Okay.”
Morris next argues that the following exchange demonstrates that he did not fully understand his rights, and that the officers “cut him off and refused to respond to questions about his rights.”
“Det. Hebel: Okay. Is there anything that you left out of this that you haven’t told us about? ‘Cause remember, I haven’t been just sitting on my ass for the last hour or so, okay? [¶] I’ve been—I’ve been working and I have found out more information, okay? And I’m just not comfortable with a couple things. And I want to give you the opportunity to come completely clean with me on this. I figured we have a little bit of trust going on here. Some things are coming up that maybe that’s not—I feel like I’m getting played a little bit, I don’t know.
“Mr. Morris: Yeah.
“Det. Moule: Really it’s a bunch of bullshit. ‘Cause we’ve come this far and then now.
“Det. Hebel: And now
“Det. Moule: And you hold out some little bit, big deal, you know?
“Det. Hebel: I need to get those clarified, ‘cause all those little bits matter.
“Mr. Morris: Okay.
“Det. Hebel: So what is it that happened here that you’re not telling me about? If I have to tell you, I’m gonna have some problems with that. [¶] And let’s remember where we are. We’re in the middle of a homicide investigation. This is important stuff so I need you to be frank with me.
“Mr. Morris: Yeah. Okay. As far as referring back to the rights thing, you know, the rights?
“Det. Hebel: Uh-huh.
“Det. Moule: Well, let’s—check this out, Mr. Morris. We’ve continued to interview people, okay? And you know, I want to target on specifically what we’re talking about, okay? And we’re talking about other subjects that were involved in this. [¶] And a name has already come up and then you got away from that name. ‘Cause we actually talked about another name. And we know for a fact now that that person was present, okay? And that’s—that’s one of our issues.
“Mr. Morris: Another name?
“Det. Moule: Another name. . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Det. Moule: Okay, good. So okay, without telling us the name, why did you withhold that person? Is it that it’s family or is it that that person is a threat to you?
“Mr. Morris: Before then you guys told me my rights and stuff and all that, but then so basically any other thing I tell you guys right now, are you guys gonna hold that against me?
“Det. Hebel: You have the right to remain silent.
“Mr. Morris: Because that, you know, in the other case before this
“Det. Moule: Morris [sic], let’s not go on about the other cases. Check this out, Morris. This thing happened, and what happened to these people is bad, okay? But things happen for a bunch of different reasons. . . .”
Contrary to Morris’s assertion, the record does not show the officers trying to thwart his understanding or assertion of his rights. They had just informed Morris of his rights minutes earlier, specifically informing him that he had “the right to remain silent,” and explaining that meant he did not “have to answer my questions or talk to me.” A few minutes later, when Morris asked if they were going to hold his statements against him, Detective Hebel responded, “You have the right to remain silent.” Detective Moule’s comment about other cases reflects his attempt to keep Morris focused rather than an attempt to prevent him from asserting his rights.
Morris next claims that Detective Hebel “specifically lied to [him] when he asked if anything he said could be used against him in court. In response the officer said “Well, no.” Morris has correctly quoted Detective Hebel’s response, but not Morris’s query. The colloquy, which took place immediately after Morris was advised of his Miranda rights, was as follows:
“Det. Hebel: . . . Like I told you before, we try to put this together by interviews and things like that, to try to establish what happened, right? [¶] So—and I want to tell you—remind you again, if you’re honest
“Mr. Morris: The rights thing
“Det. Hebel: Huh?
“Mr. Morris: . . . (unintelligible) anything you say can and will be used against you in a court of law.
“Det. Hebel: Well, no. I was just gonna [sic] remind you I want you to be honest with me, okay? I need you to be honest with me.
“Det. Moule: You know your rights pretty good.
“Det. Hebel: Okay.”
Contrary to Morris’s assertion, he did not ask “if anything he said could be used against him in court.” It is apparent from the transcript of the exchange and the videotape itself that Detective Hebel thought Morris was finishing his sentence for him, by interjecting that Detective Hebel wanted to remind him again of “[t]he rights thing.” Detective Hebel responds in the negative, and explains “I was just gonna [sic] remind you I want you to be honest with me, okay?”
The totality of the circumstances here demonstrates that Morris impliedly waived his Miranda rights. Morris, a college-educated young man, acknowledged to police that he understood each Miranda right. He repeatedly stated his willingness to cooperate. After hearing his rights, including the explanation that the right to remain silent meant he did not have to answer any questions, he continued to answer the officers’ questions. The record demonstrates that Morris impliedly waived his rights under Miranda.
Morris was in his early twenties and had an A.A. degree.
2. Voluntariness of Morris’s Statements
Morris also maintains that all his statements to police, both those made before and after the Miranda advisements, should have been excluded as involuntary because the interrogation included improper coercion, threats, deceptions and inducements. He also asserts that the failure to advise him of his Miranda rights earlier in the questioning should be considered as part of the “totality of the circumstances” in determining whether his statements were voluntary. We independently review the determination of the trial court on the ultimate issue of voluntariness, as well as the trial court’s determinations regarding whether “ ‘ “coercive police activity was present, whether certain conduct constituted a promise and, if so, whether it operated as an inducement . . . .” [Citation.]’ . . .” (People v. Jones (1998) 17 Cal.4th 279, 296, citing People v. Memro (1995) 11 Cal.4th 786, 827.)
“ ‘What the Constitution permits to be admitted in evidence is “the product of an essentially free and unconstrained choice . . . ” to confess. . . . The question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’. . .” (People v. Jones, supra, 17 Cal.4th at p. 296, citing People v. Memro, supra, 11 Cal.4th at p. 827.) Nevertheless, “failures to heed a suspect’s invocation of Miranda rights, standing alone, do not necessarily constitute actual coercion. . . .” (People v. Storm, supra, 28 Cal.4th at p. 1037, fn. 13, citing People v. Bradford (1997) 14 Cal.4th 1005, 1039-1041.) “The determination whether a waiver is voluntary is one entrusted to the trial judge, based on the totality of the facts and circumstances, including the background, experience and conduct of the accused. [Citation.]” (People v. Michaels (2002) 28 Cal.4th 486, 512.)
Morris argues that the officers’ “deceptive statements” that they knew a third man named “Steve” was involved rendered his confession involuntary and unreliable, because the deception led to his “untrue statement” implicating “Steve.” Morris claims coercion based on police statements that they would not be able to “vouch for him” or “go through the wall for him” if he continued to deny that “Steve” was involved. He also asserts that the officers “even threatened to say that his girlfriend [Cyr] was involved” if Morris did not implicate “Steve.”
Police deception during interrogation is not necessarily impermissible. (People v. Jones (1998) 17 Cal.4th 279, 297.) “Police trickery that occurs in the process of a criminal interrogation does not, by itself, render a confession involuntary and violate the state or federal Due Process clause. (People v. Thompson (1990) 50 Cal.3d 134, 167 . . . .) Why? Because subterfuge is not necessarily coercive in nature. . . . And unless the police engage in conduct which coerces a suspect into confessing, no finding of involuntariness can be made. [Citations.]” (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280.)
The fact that police “deceived” Morris by stating they knew another man, “Steve,” was involved was not coercive. Morris first mentioned the name “Steve” during the questioning, not the officers. Morris told police he had burned his clothes while working on his car with a friend named “Steve.” After police advised him of his Miranda rights, they told him they knew a third party was involved in the killings. Their further questioning about “Steve” was a logical follow-up to Morris’s suspicious story about burning his clothes with Steve. While Morris initially denied it, he eventually said “Steve” was involved and had assisted Wright in committing the crimes.
Morris claims the statements were coercive because they resulted in untrue statements falsely implicating the fictional “Steve.” The fact that Morris lied to police, however, does not lead to the conclusion that their methods must have been coercive. Notably, Morris does not claim that he was coerced into falsely implicating himself—he claims he was forced to falsely implicate “Steve.” Morris’s false statements about “Steve,” after he already told police he was present during the crimes, were not incriminating admissions or confessions. It is apparent that when the officers told Morris they had evidence that a third man was involved, Morris saw an opportunity to exculpate himself. While the statements about “Steve” proved to be unreliable, it was not because Morris had been pressured or coerced. Instead, Morris’s statements about “Steve” were motivated by a desire to minimize his own culpability.
Lastly, the officers did not coerce Morris by threatening to say Cyr was involved—to the contrary, they told him they thought another man was involved. When the officers asked him who else was at the residence, Morris responded that Cyr was there. The officers indicated they thought a different person, a man, was involved, and told him “We know how involved [Cyr] is, okay? That’s all we’re gonna say. I don’t think we need to say more than that. . . . We know everything’s cool over there, okay?” The transcript and videotapes of Morris’s questioning show no improper coercion.
Morris also urges that the officers’ statements constituted implied promises of leniency. Generally, “ ‘ “any promise made by an officer or person in authority, express or implied, of leniency or advantage to the accused, if it is a motivating cause of the confession, is sufficient to invalidate the confession and to make it involuntary and inadmissible as a matter of law.” ’ [Citation.]” (People v. Ray (1996) 13 Cal.4th 313, 339, quoting People v. Hogan (1982) 31 Cal.3d 815, 838, overruled on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836.) “In identifying the circumstances under which this rule applies, we have made clear that investigating officers are not precluded from discussing any ‘advantage’ or other consequence that will ‘naturally accrue’ in the event the accused speaks truthfully about the crime. . . . The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. [Citations.]” (People v. Ray, supra, 13 Cal.4th at pp. 339-340.) Telling a defendant that the officer would inform the district attorney that defendant had been honest, without more, amounts “to truthful implications that his cooperation might be useful in later plea bargain negotiations. [Citation.]” (People v. Jones, supra, 17 Cal.4th at p. 298.)
Morris maintains the officers made implied promises of leniency, telling him he “had a good future ahead of him.” The officers said he was only “ ‘mildly involved’ and “the district attorney was going to contact him and see how involved he was.” Morris states “[t]hey suggested that if they wrote in their report that he had been lying to them . . . that it would go bad[ly] for him.” Morris also claims the officers said they “couldn’t promise him that ‘witness thing’ but ‘relocation is gonna [sic] happen.’ ”
Contrary to Morris’s claims in this regard, the officers never promised Morris leniency if he confessed. Morris misrepresents the record and Detective Moule’s statement about relocation. Detective Moule did not promise that “relocation is gonna [sic] happen.” His full statement was “We can’t promise you that that witness thing, relocation is gonna [sic] happen.” (Italics added.)
The other statements Morris identifies as promises of leniency likewise wither on examination of the record. Before Morris was a suspect in the case, the officers made the statement about Morris’s “good future” based on his education and intelligence, and said he could trust them. Once Morris’s description of the events started to change, the officers made the accurate observations that the inconsistencies in Morris’s statements did not “look good,” and that he was “digging [him]self a huge hole.” Detective Moule did say Morris was “mildly involved,” but immediately corrected himself, saying “You’re involved, okay? And the D.A.’s gonna decide how involved, okay?”
The record reflects that the officers made no false promises of leniency to Morris. Their questioning was persuasive, not coercive. Though Morris’s false statements about “Steve” were unreliable, they were a completely voluntary attempt to minimize his own culpability. Under these circumstances, the trial court did not err in denying the motion to suppress.
B. Ineffective Assistance of Counsel
Morris argues that he was deprived of the effective assistance of counsel because his attorney failed to move to dismiss the robbery and special circumstance charges under section 1118.1. He maintains that the prosecution did not establish the corpus delicti of robbery as to either victim, independently of his out-of-court statements. Morris asserts that there was no independent evidence that anything was taken from the victims because “their clothes had been burned” and “Langston’s body was found alongside her burned purse, her clothing and her jewelry remained on her body.” He also argues that there was no independent evidence that Pulliam had a wallet, and that the methamphetamine could not suffice as the object of the robbery because it was not in Pulliam’s possession at the time it was taken.
While the parties have presented an extensive discussion of this issue in their briefs, we find the determination to be relatively straightforward. The corpus delicti of a crime is composed of the fact of the loss or harm, and the existence of criminal agency as its cause. (People v. Jones, supra, 17 Cal.4th at p. 301.) The corpus delicti doctrine “requires an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her own out-of-court statements or . . . allows the defendant, on appeal, directly to attack the sufficiency of the prosecution’s independent showing.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1180.) The rule does not require “independent proof of the additional special circumstances element that the killing occur while the defendant was engaged in the commission of the underlying felony.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1264, italics omitted.) The purpose of the rule is to ensure that the accused is not admitting to a crime that never occurred. (People v. Jones, supra, 17 Cal.4th at pp. 301-302.)
Independent proof of the corpus delicti “may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.]” (People v. Alvarez, supra, 27 Cal.4th at p. 1171.) “There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.]” (Ibid.) Once a defendant’s out-of-court statements to police regarding the crime are corroborated by other evidence, his or her statements can be used to prove his guilt. (People v. Jones, supra, 17 Cal.4th at pp. 301-302.)
Robbery is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) It consists of the following elements: “(1) A person had possession of property of some value however slight; (2) the property was taken from that person or from his [or her] immediate presence; (3) the property was taken against the will of that person; (4) the taking was accomplished by either force or fear; and (5) the property was taken with specific intent permanently to deprive that person of the property. [Citation.]” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.) “[T]he crime of robbery begins with the commission of any of the defined elements and is completed when all of the remaining elements have been committed. It is a continuing offense that concludes not just when all the elements have been satisfied but when the robber reaches a place of relative safety. [Citation.]” (Id. at p. 1059.)
The corpus delicti of the crime of robbery was established here by independent evidence of loss by a criminal agency. First, the bodies of the victims were found bound and naked in the trunk of Pulliam’s car with gunshot wounds to their heads. That fact certainly permits an inference that their clothing and personal effects were taken from them without their consent, by force or fear, and with an intent to permanently deprive them of their property. The fact that what was apparently the victims’ partially burned clothing and Langston’s purse was found in the car with their bodies does not, as Morris suggests, demonstrate that he and Wright did not intend to permanently deprive them of the property. While, as Morris asserts, the motive for burning the victims’ clothes and personal effects may have been to prevent identification, the evidence supports the inference that the intent was to permanently deprive the victims of their property.
Morris also claims that the prosecution failed to prove the corpus delicti of the robbery of the methamphetamine because the methamphetamine was not in Pulliam’s possession at the time it was taken. He does not dispute that the drugs were taken, only that they were not taken from Pulliam. Morris’s claim is meritless.
Robbery does not require evidence that the object of the robbery was in the actual possession of the owner. It is sufficient that the property was taken from the owner’s “immediate presence” (People v. Carrasco, supra, 137 Cal.App.4th at p. 1057), or that force or fear was used to retain another’s property. (People v. Flynn (2000) 77 Cal.App.4th 766, 772 [even if the victim initially gave the property to the defendant, the jury could still find robbery where the evidence showed defendant later used force to prevent the victim from retrieving the property]; People v. Estes (1983) 147 Cal.App.3d 23, 27 [“By preventing the guard from regaining control over the merchandise, defendant is held to have taken the property as if the guard had actual possession of the goods in the first instance. . . .”)
There was evidence, other than Morris’s statements, that the methamphetamine was at the residence before Pulliam arrived, that Pulliam was going to the residence to retrieve it after Novak asked him to do so, that he actually arrived at the residence, and that there was no methamphetamine at the residence afterwards. The evidence was sufficient to support an inference that the drugs were either taken from Pulliam’s “immediate presence,” or that he was prevented from retrieving them by force or fear.
Once Morris’s out-of-court statements to police regarding robbery of the victims were corroborated by other evidence, his statements could be used to prove his guilt. (People v. Jones, supra, 17 Cal.4th at pp. 301-302.) Accordingly, it is not reasonably probable that, had Morris’s attorney moved to dismiss the robbery counts and special allegations, a more favorable determination would have resulted. (See People v. Lewis (1990) 50 Cal.3d 262, 288.)
C. Claims of Instructional Error
Morris claims a number of errors arose from the “legally invalid theory” that taking the three pounds of methamphetamine was a robbery. Morris asserts that it was reversible error for the court to instruct the jury on conspiracy to commit robbery as a basis for finding him guilty of first degree murder, because “there could be no conspiracy to commit a robbery of the drugs since the drugs were already in [Morris’s] possession” at the time of the alleged conspiracy. He also asserts that the court erred in instructing the jury “that it could find [Morris] guilty of the felony murder based on a legally valid theory, the taking of the wallet, or on the legally invalid theory of robbery, the theft of the drugs.”
At the outset, we note that contrary to Morris’s claim, the court did not instruct the jury that the factual basis for the robbery could be the taking of either the drugs or Pulliam’s wallet. The court instructed the jury in part as follows: “A conspiracy is an agreement between two or more persons with the specific intent to agree to commit the crimes—the crime of robbery, and with the further specific intent to commit that crime, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime, but is not charged as such in this case.” The court’s instructions did not specify what the possible objects of the robbery could be, only that the object of the conspiracy was robbery.
Morris maintains that the court erred in instructing the jury, over his objection, on conspiracy as a theory of first degree murder. He does not dispute that the conspiracy instruction itself was legally correct. He also concedes that there was evidence of conspiracy. Instead, based on his arguments addressed in the preceding section, he asserts that, because the prosecution failed to establish the corpus delicti of the robbery of the methamphetamine, it was error to instruct on conspiracy to commit robbery.
As previously discussed, it was not a “legally invalid theory” that taking the methamphetamine from Pulliam’s immediate presence, or preventing Pulliam from retrieving the methamphetamine, could be a robbery. Once the corpus delicti of the robbery was established, the question of whether the evidence was sufficient to prove the elements of robbery, including whether the drugs were in Pulliam’s immediate presence or whether he was prevented from retrieving them by force or fear, was a question of fact for the jury.
Morris also makes a slightly different argument, claiming that there could be no conspiracy to rob Pulliam of the methamphetamine because the drugs were in Morris’s possession at the time of the alleged conspiracy. We find no logic in this argument. A conspiracy to commit robbery can contemplate that the robbery occur in the future, when the victim has or attempts to retrieve his or her property.
1. Denial of Requested Modification to CALJIC No. 3.01
Morris maintains that the trial court erred in refusing his requested modification of CALJIC No. 3.01, the instruction on aiding and abetting. At trial, his counsel requested the following additional language, taken from People v. Snyder (2003) 112 Cal.App.4th 1200, be added to the instructions: “An accomplice need not share in the actual perpetration of a crime to be chargeable as a principal therein; liability as an accomplice to a crime may be based on having aided and abetted its commission. However, an aider and abettor is chargeable as a principal only to the extent he or she actually knows and shares the full extent of the perpetrator’s specific criminal intent, and actively promotes, encourages, or assists the perpetrator with the intent and purpose of advancing the perpetrator’s successful commission of the target offense.” The court denied his request, instead instructing the jury in this regard with CALJIC No. 3.01: “A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she: (1) With knowledge of the unlawful purpose of the perpetrator, and (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. . . .” We review the instructions as a whole and the jury’s findings to determine whether there is a “reasonable likelihood” that the instructions given caused the jury to misapply the law. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Cain (1995) 10 Cal.4th 1, 36.)
Morris asserts that the modified instruction he sought was “an accurate statement of the law,” as set forth in People v. Snyder, supra, 112 Cal.App.4th at page 1220. He claims the court erred in giving only “CALJIC No. 3.01[, which] does not state exactly what the court in [People v.] Beeman [(1984) 35 Cal.3d 547] actually said . . . result[ing] in mis-instruction on the essential elements of aiding and abetting.”
Morris cites no case which has required a trial court to instruct the jury with the additional language from Snyder. The language of CALJIC No. 3.01 has been upheld in numerous cases as an accurate statement of the law. (See People v. Tillotson (2007) 152 Cal.App.4th 382; People v. Hoang (2006) 145 Cal.App.4th 264, 273-274.) As recently explained in People v. Tillotson, “CALJIC No. 3.01 is accurate and complete. It is based on People v. Beeman (1984) 35 Cal.3d 547, 561 . . ., where the court suggested ‘an appropriate instruction should inform the jury that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’ ” (People v. Tillotson, supra, 152 Cal.App.4th at p. 397.)
There is no reasonable likelihood that the jury misapplied the law in this case. Accordingly, we find no error in the instructions to the jury.
IV.
DISPOSITION
The judgment is affirmed.
We concur: Reardon, J. Rivera, J.