Opinion
B221843
08-16-2011
THE PEOPLE, Plaintiff and Respondent, v. WARREN ANDREW NELSON, Defendant and Appellant.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA098143)
APPEAL from a judgment of the Superior Court of Los Angeles County, Allen J. Webster, Judge. Modified and, as so modified, affirmed.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
Warren Andrew Nelson appeals the judgment entered following his conviction by jury of attempted first degree robbery committed for the benefit of a criminal street gang in which Nelson personally discharged a firearm causing death. (Pen. Code, §§ 664/211, 186.22, subd. (b)(1)(C), 12022.53, subds. (d), (e)(1).)
We reject Nelson's claim of error in the admission into evidence of his statements to the police but modify the award of presentence custody credit to include conduct credit at the rate of 15 percent. As so modified, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The murder of Almira Herrera in the commission of attempted robbery.
On December 17, 2007, Alan Herrera lived in a converted garage behind his parents' home on East 112th Street in Los Angeles. The home, occupied by his parents, his older sister, Almira Herrera, her four children and his younger sister, was being remodeled.
At approximately 9:30 p.m., Alan Herrera and his friends Jose Posada, Ernesto Herrera, Jonathon Ramirez and Christopher Meza were playing video games and smoking marijuana in the garage. Alan Herrera thought he heard a noise in front of the house and went to the gate. As he opened the gate, he was approached by four males, two of whom were armed. Nelson, the shorter of the two armed males, had a nine-millimeter handgun; the other armed male, Archie Rucker, had a shotgun and wore a bandana over his mouth. Nelson, who had a scar under his left eye, pointed the handgun at Alan Herrera's head and led him past the house and into the garage. Rucker followed them with the shotgun. One of the unarmed individuals entered the garage with duct tape. Nelson and Rucker told Alan Herrera's friends to get on the floor of the garage, demanded money and looked around the garage.
Rucker and Nelson were tried separately. Rucker's conviction of murder was affirmed by this court in case No. B220186, filed March 8, 2011.
Alan Herrera's parents were sitting outside the home in the kitchen area. They heard noise and Alan Herrera's mother yelled, "What's going on[?]" Nelson told Rucker, "Mom[']s outside." Nelson escorted Alan Herrera at gunpoint out of the garage to the back of the house and Rucker followed with the shotgun. Nelson demanded money from Alan Herrera's parents. Jose Herrera, Alan's father, grabbed a chair and struck Nelson with it. As Rucker prepared to strike Jose Herrera with the shotgun, Alan Herrera intervened and Rucker struck Alan Herrera twice on the head. The commotion awakened Almira Herrera who grabbed a knife as she ran through the kitchen area and began chasing Nelson around the yard. Nelson tried to push Alan Herrera into the house but Almira Herrera continued to chase him with the knife. Rucker fired the shotgun into the air. Alan Herrera heard another shot and heard his sister say, "I got shot."
Jose Herrera testified he heard noises in the back yard and asked his wife to see what was going on. When he saw her again, Rucker had a shotgun pointed at her, and Nelson, the shorter of the two gunmen, was hitting Alan Herrera in the head with a handgun and demanding money. When Alan Herrera's mother escaped, Rucker struck Alan Herrera with the shotgun. Jose Herrera threatened Nelson with a chair and then hit Rucker with the chair, causing Rucker to fall. Rucker got up, fired the shotgun into the air and then pointed the shotgun at Jose Herrera. Rucker retreated with the shotgun and fled. Nelson and Almira Herrera struggled in another part of the yard. Nelson shot Almira Herrera and fled with the handgun. Jose Herrera did not see Nelson shoot his daughter because he was deciding whether to chase Rucker at the time. However, Nelson and Almira Herrera were struggling when the shot was fired and Nelson "had her with his arms around her . . . with the gun" to her chest.
Jose Posada testified that when Alan Herrera returned to the garage, Nelson had a gun to Alan's head. Another male was holding a shotgun. Two unarmed males did not enter the garage. The faces of the two armed males were partially covered. Nelson's face was covered from the tip of his nose. After Alan Herrera and the intruders left the garage, Posada heard one gunshot.
Christopher Meza testified that when Alan Herrera returned to the garage, four men were holding him at gunpoint. Two of the men had guns and another had duct tape. One of the men held a handgun to Alan's head. That individual was short, five feet, two inches tall, and had a scar under his left eye. Another male had a shotgun and wore a bandanna over his face. After the men exited the garage, Meza opened the garage door and saw Alan's sister "running after them, [and] he turned around and shot her." On redirect examination, Meza identified Nelson as "the shooter."
Ernesto Herrera testified that when Alan Herrera returned to the garage, he was accompanied by three males, one of whom was holding a handgun to Alan Herrera's head. The man holding Alan Herrera at gunpoint was "pretty short" and had a scar under his left eye. The intruders ordered everyone to the floor. Rucker pointed a shotgun at Ernesto Herrera's face and, while he was on the floor, someone began tying him with duct tape. When the men left the garage, Ernesto Herrera heard what sounded like somebody being pistol-whipped and a gunshot.
Ernesto Herrera was unavailable as a witness. His prior testimony was read to the jury.
Almira Herrera died of a gunshot wound to the chest. A knife, a piece of duct tape and an expended nine-millimeter shell casing were found at the scene.
Alan Herrera and Posada identified Nelson in a photographic lineup and at trial. Although Jose Herrera and Meza were unable to identify Nelson in a photographic lineup, they identified him at trial. Ernesto Herrera selected Nelson from a photographic lineup but was not certain of his identification. However, Ernesto Herrera identified Nelson at trial.
2. Gang evidence.
Sheriff's Detective Jason Bates testified the gang claimed by Nelson has approximately 40 members who commit crimes ranging from petty theft to murder. Nelson and Rucker are admitted members of the gang. Nelson admitted membership in the gang in interviews conducted by other law enforcement officers on December 29, 2006, on May 16, 2007, and on March 9, 2009. In response to a hypothetical question based on the facts of this case, Bates opined Nelson committed the charged offenses in association with the gang and for the benefit of the gang.
3. Nelson's custodial statements.
On June 23, 2008, Los Angeles Police Detective Roger Allen and his partner, Detective Wilhelm, interviewed Nelson in connection with the homicide. Immediately after that interview, Detective Mark Hahn interviewed Nelson. The next day, the jail advised Allen that Nelson wanted to talk and Allen and Wilhelm again interviewed Nelson. A recording of each interview was played for the jury.
In the first interview, after being advised of and waiving his rights pursuant Miranda v. Arizona (1966) 384 U.S. 436 , Nelson initially denied knowledge of the offense. As the questioning continued, Nelson admitted participation as a lookout but denied being armed. Finally, Nelson admitted he was armed with a pistol during the attempted robbery and his job was to "retrieve the goods." Nelson said, "Somebody grabbed [a Mexican male] and took him to the back and . . . he was pushed over to me and I was holding him for a minute." Nelson claimed "the sister came at" him with a knife and he shot her accidentally.
Prior to interviewing Nelson, Detective Allen did not tell Nelson a female had been shot, the female had a knife, or that the victim was Alan Herrera's sister.
In the second interview, Nelson denied he knew the identity of his companions, admitted he faced the possibility of life in prison and again indicated he fired the gun accidentally.
In the final interview, Nelson claimed rival gang members forced him to participate in the attempted robbery. Nelson did not enter the back house but stood by the door. Nelson denied shooting anyone and claimed he previously admitted he had accidentally fired a gun during the incident only because he feared for his life.
4. Verdicts and sentencing.
The jury acquitted Nelson of murder but convicted him of attempted first degree robbery and found criminal street gang and firearm enhancements true. After sentencing Nelson to prison, the trial court awarded Nelson credit for 570 days of actual presentence custody but denied Nelson any presentence conduct credit.
CONTENTIONS
Nelson contends his admission that he personally fired the gun that caused the death of the victim was an involuntary confession elicited by implied threats and promises of leniency. Nelson also contends the award of presentence custody credit must be corrected to reflect conduct credit at the rate of 15 percent.
DISCUSSION
1. No error in the admission of Nelson's confession.
a. Background.
At the start of the first interview, Nelson admitted he previously had been arrested for possession for sale of marijuana and that, in connection with that arrest, he was advised of his Miranda rights. When Nelson asked if he was being arrested, Detective Allan responded, "[n]ot necessarily. It depends on how this goes." Allen then advised Nelson he was facing "a pretty serious deal" and stated "perception" is critical and sometimes, "You set out to do one thing and another thing happens." Allen urged Nelson to be "completely honest" and indicated, "if you set out that you didn't want this to happen, that's very important. That's very important that you get that out when I talk to you. Do you understand? Because after I'm done talking to you, that's it. [¶] . . . [¶] . . . You know, there's no do-overs. You know what I'm saying? I'm talking about a home-invasion murder." "And this is the deal - well, it's not a deal, . . . this is just what I'm going to explain to you." Allen then stated his belief Nelson and his companions "did not mean for this to happen. That's what I believe. That's not how the law looks at it."
After Allen showed Nelson photographs of the crime scene, Nelson admitted he might have gone to the residence with an associate to purchase marijuana but denied involvement in the incident under investigation. Allen then indicated he knew Nelson was 21 years of age and had no felony convictions. Allen stated, "I mean, I'm looking at your criminal history and you really don't have one." When Nelson indicated he had only one prior case for possession for sale of marijuana, Allen responds, "Juvenile stuff. . . . [N]o felony convictions."
Allen then advised Nelson the charged offenses were "as serious as it can get. . . . A home invasion . . . robbery/murder." Nelson continued to deny involvement and claimed that on the night of the attempted robbery, he was homeless and was sleeping in a car parked near Century Boulevard and Normandie Avenue. Allen indicated he wanted Nelson to be aware of what he faced and indicated the victim's family was "going to march into court" and identify Nelson. Nelson again denied involvement and stated he knew nothing about the incident. Allen then asked whether Nelson had any children and, when Nelson answered in the negative, Allen stated, "I don't think you're ever going to have any children."
Allen again advised Nelson he did not think Nelson "set out to do anything other than get some money and get some dope." Nelson again stated he knew nothing about the incident.
After questioning Nelson about possible alibi witnesses, Allen advised Nelson he was going to be booked for murder and Allen would take the case to the District Attorney "and see what they think." When Nelson protested he had done nothing, Detective Wilhelm stated, "[T]here's a big difference in what your intention was, you know. Sometimes like my partner said, accidents happen, things that weren't planned happen. That goes a long way. It goes a really long way - intent. What the intention was."
In response to questions by Allen, Nelson stated he has no mother and was a dependent of the court during his school years. When Allen asked whether Nelson's fingerprints might be on the door to the garage apartment, Nelson conceded he had been in the courtyard sometime after December 17, 2007, probably December 28, 2007, with two associates to purchase marijuana and that he knocked on the door but no one was home.
The detectives then told Nelson he was getting himself in trouble. Allen stated, "You're a young man and[,] like I told you, what you set out to do and what happened, the details are important. . . . Do you understand? Details. Because what you're leaving me with here, you are going to be looked at as the guy that planned this - that got his crew together, was going to take over the house, went in and had planned to murder someone. That's the perception. That's what everyone's going to think and that's how it's going to be presented."
Allen continued: " You're making some poor decisions right now. You need to be 100 percent honest with me. . . . Because you have put yourself in a situation that is going to affect the rest of your life. [¶] . . . There is nothing you can do about it except be honest. Make us look at it in a different way. . . . [M]ake us look at it how it happened in your mind. . . . [¶] I want you to recall in your head what you told us, and you tell me[,] . . . is that going to pass? Is that going to make sense? What . . . do you think is going to happen to you in six months or a year from now when this thing goes to court and you [have] that flimsy [explanation]. . . . [¶] . . . [I]t's going to be looked at like you wanted this to happen, you planned it, you premeditated, you said, . . . [']Let's kill them.['] [¶] . . . [¶] That's how it will be perceived. So you need, as difficult as it is, to man up and tell your side of the story. If you didn't want that to happen, then . . . you need to wake up . . . because this is your only shot. [¶] . . . [¶] You put yourself at the crime scene. . . . You were not at that house December 28th. Not unless you saw the police there. [¶] . . . [¶] . . . You need to wake up because it's getting ugly for you. It's getting real bad."
Nelson then stated: "All right, man. Look. I went in there my intentions were to just be the lookout. . . . I went and knocked on the door, seen everybody was in there." Nelson claimed he heard a loud boom and ran. Nelson stated the robbery was planned by someone else and protested he was still going to jail even though he had done nothing. Nelson denied he had a gun and said he "was supposed to duct tape people up," but he did not. Nelson claimed he was "brought into it" at the last minute because he was in a bad situation. His companions said the victim had "drugs back there." Nelson recalled the passenger had a "long gauge" gun and the driver probably had a handgun but he did not see it. Nelson went into the backyard and knocked on the door but no one answered. He then returned to the front yard, heard a loud boom and ran.
Allen responded: "If that's what you said happened, that's what I will put in my report. . . . I don't know what's going to happen down the line. . . . I'm not the district attorney's office. I don't make those decisions." However, Allen did not think Nelson's statement was truthful.
Nelson then stated: "All right. Look, man. I had no intentions of going back there really. I didn't. [¶] . . . [¶] . . . [S]he came towards me." Nelson then stated, "If I tell you what happened, you got to get me out of here. I can't be in this state." Allen responded he could not make Nelson any promises but Nelson "need[ed] to tell . . . the truth."
Nelson replied: "All right, man. . . . [S]he came at me with a knife. [¶] . . . [¶] She was coming to stab me. [¶] . . . [¶] And at that time when I turned around, the knife, it was already jugged in my back." Nelson stated he had what he believed was a nine-millimeter handgun that he had been given by "one of the guys."
When Allen indicated he needed "all of the details" for his report, Nelson stated he and two other individuals went to the back yard. Nelson had a pistol and his job was to "retrieve the goods." Nelson "guess[ed]" that when he arrived at the house, "someone made a phone call and [a Mexican male] came out." "Somebody grabbed [the Mexican male] and took him to the back and . . . he was pushed over to me and I was holding him for a minute." Nelson "let go and the sister came at" him with a knife. Nelson did not mean to pull the trigger. He was homeless at the time and had no money or family.
Allen then stated he thought Nelson had been "fairly honest" and hoped Nelson would be "judged accordingly in the right perspective of things." When Nelson asked if he was going to be arrested, Allen indicated affirmatively and stated the District Attorney would determine what charge to file based on Allen's investigation.
b. Legal principles.
"The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made. [Citations.] In determining whether a confession was voluntary, ' "[t]he question is whether defendant's choice to confess was not 'essentially free' because his [or her] will was overborne." ' [Citation.]" (People v. Carrington (2009) 47 Cal.4th 145, 169.) In evaluating the voluntariness of a statement, no single factor is dispositive. (People v. Maury (2003) 30 Cal.4th 342, 404; People v. Williams (1997) 16 Cal.4th 635, 661.) Also, a confession is not involuntary unless the improper police conduct is a motivating cause of the confession. (People v. Williams (2010) 49 Cal.4th 405, 437; People v. Carrington, supra, at p. 170; People v. Guerra (2006) 37 Cal.4th 1067, 1093; People v. Maury, supra, at pp. 404-405.)
Although a confession is involuntary if it was elicited by any promise of benefit or leniency whether express or implied, " 'mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. . . . Thus, "[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, "if . . . the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible . . . ." ' [Citations.]" (People v. Holloway (2004) 33 Cal.4th 96, 115.)
There can be a fine line between permissibly urging a suspect to tell the truth by outlining the benefits that may flow from confessing and impermissibly making an implied promise of lenient treatment in exchange for a confession. (People v. Holloway, supra, 33 Cal.4th at p. 117.)
The erroneous denial of a motion to suppress a confession is reviewed under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 23. (People v. Neal (2003) 31 Cal.4th 63, 86.)
c. Nelson's appellate contention.
Nelson contends the detectives took advantage of his inexperience and vulnerability, impliedly threatened life in prison if Nelson did not make a statement, and impliedly promised leniency by improperly suggesting that, by admitting an accidental shooting, Nelson would avoid a murder charge. We address these claims in turn.
d. The detectives did not take improper advantage of Nelson's immaturity.
Nelson claims he had no significant prior contact with the criminal justice system and had never been interrogated in the sophisticated and manipulative manner employed by Detectives Allen and Whilhelm. Nelson claims he lacked parental guidance and was immature in that he told the detectives he had been a ward of the court during his school years. Also, Detective Allen knew Nelson was 21 years of age and new to the criminal justice system because, during the first interview, Allen conceded Nelson lacked any significant criminal history. When Nelson indicated he had only one prior case for possession for sale of marijuana, Allen responded, "Juvenile stuff. [N]o felony convictions." Based on the foregoing, Nelson claims Allen took "full advantage of [his] inexperience and vulnerability."
The transcript of the interview does not support Nelson's claim the detectives took advantage of his immaturity. Nelson was an adult in that he was 21 years of age and the record contains no evidence from which it might be concluded Nelson was immature for his age. Also, Nelson previously had been charged with possession for sale of marijuana and, in connection with that previous arrest, he was advised of his rights under Miranda. Consequently, Nelson was not new to the criminal justice system. In any event, nothing about Nelson's age or relative inexperience with the judicial system suggests he involuntarily made the statements that were admitted at trial.
e. The detectives did not make improper threats of life imprisonment.
Nelson claims the obvious implication of Allen's statement he did not think Nelson would ever have children was that, if Nelson continued to deny involvement, he would be charged with murder and imprisoned for life. Nelson concludes the remark constituted an improper threat of punishment.
However, this remark was not made in conjunction with a demand for a statement. Thus, it did not amount to a threat of punishment for failure to confess. (People v. Holloway, supra, 33 Cal.4th at p. 115.) Rather, it appears Allen made this statement to impress upon Nelson the seriousness of the charges Nelson faced. Accurately describing the possible consequences of a murder conviction is permissible. (Id. at pp. 115-116.)
Also, Nelson did not make any incriminating statements as a result of this statement. Thus, even assuming the remark amounted to an implied threat, it did not motivate Nelson to incriminate himself. (People v. Williams, supra, 49 Cal.4th at p. 437; People v. Carrington, supra, 47 Cal.4th at p. 170; People v. Guerra, supra, 37 Cal.4th at p. 1093; People v. Maury, supra, 30 Cal.4th at pp. 404-405.) Rather, after Allen made this statement and reiterated his belief Nelson intended only to get money and drugs, Nelson said he knew nothing about the incident. Nelson's continued denial suggests Nelson retained the "operative ability to calculate his self-interest in choosing whether to disclose or withhold information." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 58.) Consequently, Allen's statement regarding Nelson's prospects for ever having children did not result in Nelson's will being overborne.
f. The detectives did not make improper promises of leniency.
Nelson contends the detectives improperly led him to believe that, if he said the shooting was not planned and was an accident, the case would be looked at differently and he would not be charged with murder. Nelson bases this contention on various statements made by the detectives, including Detective Wilhelm's statement "there's a big difference in what your intention was, you know. Sometimes like my partner said, accidents happen, things that weren't planned happen. That goes a long way. It goes a long way - intent. What the intention was."
However, neither Wilhelm nor Allen ever said or implied that any statement made by Nelson would avoid a charge of murder. Thus, Nelson's claim he was led to believe he would not be charged with murder if he said the shooting was an accident is not supported by the record.
Further, in response to the cited comment, Nelson continued to deny involvement, stating: "I didn't do anything." Thus, the statement, even if improper, did not result in an incriminating statement. (People v. Williams, supra, 49 Cal.4th at p. 437; People v. Carrington, supra, 47 Cal.4th at p. 170; People v. Guerra, supra, 37 Cal.4th at p. 1093; People v. Maury, supra, 30 Cal.4th at pp. 404-405.)
Nelson next cites Allen's statement: "[W]hat you set out to do and what happened, the details are important. . . . Because what you're leaving me with here, you are going to be looked at as a guy that planned this - that got his crew together, was going to take over the house, went in and had planned to murder someone. That's the perception. That's what everyone's going to think and that's how it's going to be presented."
Nelson claims this remark caused him to "break[]." However, after Allen made this remark and others, Nelson admitted only that he had been a lookout. Although Nelson admitted he knocked on the door, he claimed he was only "watching the other people" when he "just heard a loud-ass boom and . . . ran."
Moreover, during the third interview, when Allen asked why Nelson had admitted involvement in the shooting in the first and second interviews, Nelson responded: "Because I was scared. . . . [Rival gang members] threatened to . . . kill me." Nelson did not claim his admissions had been caused by any threats or promises by the detectives.
Nelson further contends the detectives' repeated statements that an accidental shooting would be viewed differently than an intentional killing constituted a misstatement of the law in that the detectives knew the case would be charged as a felony murder if Nelson admitted participation in the attempted robbery. Under the felony-murder rule, Nelson's intent was irrelevant. Thus, the implied promise of more lenient treatment if Nelson did not intend to shoot the victim rendered the subsequent statement involuntary. Nelson compares his case to People v. Cahill (1994) 22 Cal.App.4th 296, in which detectives falsely implied one version of events had significantly less drastic consequences. Nelson claims that, as in Cahill, "the interrogation in this case was over the line and amounted to a promise of leniency." (Id. at p. 316.)
Nelson's reliance on People v. Cahill, supra, 22 Cal.App.4th 296 is misplaced. In Cahill, the defendant repeatedly refused to admit he had been present in the home of a murder victim. When he finally admitted his presence, he did so only after he was told that admission "might avoid a charge of first degree murder." (Id. at p. 317.) Cahill found the implied promise that, if the defendant admitted a role in the killing but stated he had not premeditated, he might avoid trial and conviction of first degree murder constituted a threat or an impermissible promise of leniency. (Id. at p. 314.) Further, the interrogating officer's "account of the law of murder was materially misleading in omitting any reference to the felony-murder doctrine." (Id. at p. 315.) Cahill noted it had to be presumed the officer knew an admission of presence in the home "would amount to a confession of felony murder." (Ibid.)
Here, unlike Cahill, the detectives made no representation that Nelson might avoid a murder charge if he admitted accidentally shooting the victim. Further, contrary to Nelson's assertion he was subject to the same liability regardless of whether the shooting had been an accident, several aspects of Nelson's culpability and liability depended on his intent. Had the jury found Nelson fired the gun accidentally, it would have been required to find the personal use of a firearm enhancement under Penal Code section 12022.53, subdivision (d) not true, as this enhancement requires the defendant intentionally to discharge a firearm.
Additionally, had the evidence revealed a more culpable mental state, the prosecutor might have sought the death penalty in Nelson's case. Moreover, the jury acquitted Nelson of murder, possibly as an act of lenity based on his truthfulness with the detectives. For all these reasons, Nelson's case is distinguishable from Cahill.
Contrary to Nelson's arguments, the detectives in this case did no more than explain to Nelson the benefits that might flow naturally from a truthful and honest course of conduct. People v. Holloway, supra, 33 Cal.4th at p. 116, a case with facts similar to those presented here, held a detective's "suggestions that the killings might have been accidental . . . , and that such circumstances could 'make[] a lot of difference,' f[e]ll far short of being promises of lenient treatment in exchange for cooperation. The detectives did not represent that they, the prosecutor or the court would grant defendant any particular benefit if he told them how the killings happened. To the extent [the detective's] remarks implied that giving an account involving . . . accident might help defendant avoid the death penalty, he did no more than tell defendant the benefit that might ' "flow[] naturally from a truthful and honest course of conduct" ' [citation] . . . ." (Ibid.)
We conclude the detectives in this case did not cross the line from proper encouragement to tell the truth into impermissible threats of punishment or promises of leniency. (People v. Holloway, supra, 33 Cal.4th at p. 117.) The detectives did not threaten punishment if Nelson were uncooperative, nor did they promise leniency in exchange for cooperation. To the extent the detectives implied Nelson might obtain some benefit from confessing, they promised no more than the benefits that flow naturally from a truthful and honest course of conduct. (Id. at p. 116; see also, People v. Williams, supra, 49 Cal.4th at p. 442 ["[T]here is nothing improper in pointing out that a jury probably will be more favorably impressed by a confession and a show of remorse than by demonstrably false denials."]; People v. Carrington, supra, 47 Cal.4th at p. 174 [mere exhortation by the police to tell the truth, when unaccompanied by a threat or a promise does not render a subsequent confession involuntary].)
Additionally, the detectives avoided making a "deal" with Nelson and repeatedly told Nelson the charging decision was not theirs to make. At the start of the first interview, Allen specifically retracted his use of the term "deal" in attempting to explain Nelson's situation, indicating what he was going to tell Nelson was "not a deal."
Later in the interview, Allen told Nelson: "I don't know what's going to happen down the line. . . . I'm not the district attorney's office. I don't make those decisions." Allen also stated: "I can't make promises. You know that."
In sum, the statements relied upon by Nelson do not demonstrate the detectives "cross[ed] the line from proper exhortations to tell the truth into impermissible threats of punishment or promises of leniency." (People v. Holloway, supra, 33 Cal.4th at p. 115.) Consequently, we reject Nelson's claim of error in the admission of these statements into evidence.
g. Any error was harmless.
In any event, any error in the denial of Nelson's motion to suppress the statements was harmless. Alan Herrera, Jose Herrera, Posada and Meza identified Nelson as the man with the handgun. Meza identified Nelson as "the shooter." Although Jose Herrera did not see Nelson fire the fatal shot, he testified Nelson and his daughter were struggling immediately prior to the firing of the shot and that Nelson had the handgun at Almira Herrera's chest. Additionally, Nelson repeatedly was described as the shorter of the two gunman and the witnesses uniformly testified he had a scar under his left eye, a description that conformed to Nelson's physical appearance. Further, a single expended nine-millimeter cartridge was found at the scene. Such a cartridge would not have been ejected by a shotgun. Based on this overwhelming evidence that Nelson shot Almira Herrera, any error in the admission into evidence of his statements to the detectives must be seen as harmless beyond a reasonable doubt. (People v. Neal, supra, 31 Cal.4th at p. 86.)
2. Nelson is entitled to presentence conduct credit at the rate of 15 percent.
The trial court gave Nelson credit for 570 days of actual presentence custody but denied Nelson conduct credit.
Nelson contends he is entitled to conduct credit at the rate of 15 percent, or 85 days, pursuant to Penal Code section 2933.1.
The People concede that, because Nelson was acquitted of murder (see Pen. Code, § 2933.2), he was entitled to conduct credit pursuant to Penal Code section 2933.1. We find the People's concession well taken and order the abstract of judgment modified accordingly.
DISPOSITION
The judgment is ordered modified to reflect presentence custody credit of 635 days consisting of 570 days of actual presentence custody and 85 days of conduct credit. The clerk of the superior court shall prepare an amended abstract of judgment reflecting this modification and forward it to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P.J.
We concur:
CROSKEY, J.
KITCHING, J.