Opinion
Santa Clara County Super. Ct. No. CC583935
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mihara, J.
Defendant Ly Van Nguyen was convicted by jury trial of second degree murder (Pen. Code, § 187) and conspiracy to sell ecstasy (Pen. Code, § 182, subd. (a)(1); (Health & Saf. Code, § 11379). The jury found true a Penal Code section 12022.53, subdivision (d) firearm allegation, and the court found true that defendant had suffered a prior strike and serious felony conviction (Pen. Code, §§ 667, subds. (a), (b)-(i), 1170.12). Defendant was committed to state prison for a term of 60 years to life.
On appeal, he claims that (1) the admission of his statements to the police was prejudicial error, (2) CALCRIM 570 erroneously describes provocation, (3) the prosecutor’s argument about provocation constituted misconduct, (4) the trial court prejudicially erred in failing to instruct the jury to resolve any doubt between murder and manslaughter in favor of manslaughter, (5) the court’s instructions improperly precluded the jury from considering lesser offenses before it had made a decision on the charged offense, (6) the court’s instruction on the specific intent element of the conspiracy count was prejudicially erroneous, (7) it was prejudicial error for the court to instruct the jury on the alleged overt act of “wanting to collect money” because this is not an “act,” (8) the errors were cumulatively prejudicial, and (9) the trial court erred in ordering defendant to pay $5,000 in attorney’s fees in the absence of any evidence that he had the ability to pay. We reject all of his contentions except for his challenge to the attorney’s fees order, and remand the matter to the trial court for a hearing on whether unusual circumstances exist which establish defendant’s ability to pay attorney’s fees.
I. Factual Background
Defendant and Quang La were good friends. They were acquainted with Hieu Nguyen, Luyen Nguyen, and Cuong Nguyen from playing pool together in Oakland. Rozanna P. was Cuong’s girlfriend. In mid-January 2005, Cuong met with Quang, defendant, and three other men to discuss dealing in marijuana and ecstasy. A man named Vu thereafter brought Cuong $15,000 to use to buy ecstasy. Vu lived at 3957 Tiverton Drive in San Jose. Cuong and Quang went to Oakland to complete the drug transaction. After this transaction, Cuong told Vu that he was $3,500 short from an earlier transaction and had two weeks to come up with the remaining funds. A few days later, Cuong, Quang, and defendant met to discuss what to do with the $2,000 profit they had made on the ecstasy deal. Cuong subsequently made unsuccessful attempts to round up the funds he owed.
At about 9:00 or 10:00 p.m. on January 31, 2005, Quang, accompanied by defendant and Hieu, drove his Mustang down from Oakland to pick up Cuong in Milpitas. Their plan was to go get the money that Cuong owed them from Cuong’s friend who owed him money. On the way down to Milpitas, Quang expressed concern that they would “lose face” if they did not get the money Cuong owed them that day. Defendant asked Quang whether Cuong had the money. Quang said they would have to wait and see. Defendant said that if Cuong did not have the money “it would turn in to a ‘big thing.’” The Mustang was accompanied to Cuong’s residence by a Honda driven by a man named Khanh. Khanh’s passengers were Luyen and a man whose first initial was T.
After Quang picked up Cuong, Cuong directed them to a house, and he got out and tried unsuccessfully to contact his friend. Cuong then directed them to a house at 3957 Tiverton Drive. Cuong got out of the Mustang and went to the front door of the house. Cuong came back to the Mustang and said that no one had answered the door. Defendant got out of the Mustang and went over to the Honda. Cuong also went over to the Honda. An argument ensued between defendant and Cuong. Defendant took out a pistol, and shot over the Honda at Cuong. Cuong, who was unarmed, tried to run up the driveway toward the house after defendant began shooting, but defendant continued shooting and Cuong fell to the ground. Defendant came around the Honda to where Cuong was lying on the driveway and shot him several additional times. Defendant returned to the Mustang, said “all the bullets gone,” and “Let’s go.”
Several people who lived near 3957 Tiverton Drive heard a Honda and a Mustang “racing down” Tiverton Drive at about 11:00 p.m. on January 31. A minute later, they heard gunshots ring out from 3957 Tiverton Drive. There were two groups of gunshots with a pause of about five seconds between the two sets of shots. A skinny Asian man in his 20s, about five feet, nine inches tall, and wearing a white baseball cap, jeans and a white jacket, was seen running from the driveway of 3957 Tiverton Drive and getting into the passenger side of one of the cars. Defendant is five feet, nine inches tall and weighs 130 pounds. The car that the skinny Asian man entered sped away, with three people in it, less than a minute after the gunshots. The other car drove off at the same time in the opposite direction.
Cuong was found lying in a pool of blood in the driveway of 3957 Tiverton Drive. Cuong had been struck by eight bullets. Three bullets had struck his head. Other bullets had struck his arms, his leg, and his buttocks. Two of the bullet wounds to his head would have been immediately fatal, and he would not have been able to move after their infliction. The other wounds were potentially survivable. All of the bullets had been fired at his left side or from behind him. At least one of the bullets that struck Cuong was a hollow point bullet, a type of bullet that is “designed to expand when it hits soft tissue.” A criminalist determined that the shots had been fired by a Smith and Wesson semi-automatic pistol. This type of pistol has a 10-round magazine and can also have one round in the chamber for a total of 11 shots. The police recovered eleven 9mm shell casings from the driveway and street area in front of 3957 Tiverton Drive.
The day after the shooting, defendant told the other men who had been present that they would “have to watch out [for] themselves and the[ir] families” if they told the police what they had seen. When Rozanna, concerned about Cuong’s disappearance, called Quang to find out what had happened, Quang claimed that he had never picked up Cuong. Defendant was arrested in Texas over six months after the shooting. During a police interview, defendant admitted shooting Cuong, and said he had done so because he was mad and Cuong owed him money.
II. Procedural Background
Defendant was charged by amended information with murder (Pen. Code, § 187) and conspiracy to sell ecstasy (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11379). It was further alleged that he had personally and intentionally discharged a firearm and caused Cuong’s death (Pen. Code, § 12022.53, subd. (d)) and that he had suffered a prior strike and serious felony conviction (Pen. Code, §§ 667, subds. (a), (b)-(i), 1170.12).
The prior conviction allegations were bifurcated, and defendant waived his right to a jury trial on those allegations. The defense did not present any evidence at trial. The prosecutor argued to the jury that defendant was guilty of first degree murder and conspiracy. Defendant’s trial counsel conceded in his closing argument that defendant shot Cuong. However, he suggested that there might have been a second shooter who shot Cuong additional times after defendant was done shooting, and, on this basis, contended that defendant might not have caused Cuong’s death. Defendant’s trial counsel maintained that the shooting occurred “in a fit of rage,” in a sudden quarrel or the heat of passion and therefore was manslaughter. He also contended that defendant had never been a part of the drug-selling conspiracy.
After a bit less than five hours of deliberations, the jury found defendant guilty of second degree murder and conspiracy, and found the firearm allegation true. After a court trial, the prior conviction allegations were found true. Defendant was committed to state prison for a term of 60 years to life, and he filed a timely notice of appeal.
A concurrent six-year term was imposed for the conspiracy count.
III. Discussion
A. Defendant’s Statements To The Police
Defendant challenges the admission of his statements to the police on three grounds. First, he contends that he did not knowingly and voluntarily waive his constitutional rights because the advisements were in English, which is not his native language. Second, defendant asserts that the interrogation should have been terminated when he indicated that he did not want to talk any longer. Finally, although he never raised this contention below, defendant claims that his statements were involuntary.
1. Background
Defendant’s trial counsel moved in limine to exclude defendant’s statements to the police on the ground that they were obtained in violation of Miranda. He asserted that the officers had advised defendant of his rights in English even though they knew that he was not a native English speaker, and the officers had ignored his repeated statements that he did not wish to continue talking to them. He did not assert that defendant’s statement had been involuntary.
Miranda v. Arizona (1966) 384 U.S. 436.
The only evidence introduced at the in limine hearing was a recording on compact disk and a transcript of defendant’s August 12, 2005 statements to two police officers. The interview was less than 80 minutes long. Defendant had been in a Houston, Texas county jail for a night and a day at the time of the police interview. The officers began by conversing with defendant about his family and confirming his name, personal data, address, and telephone number. Defendant exhibited no difficulties with the English language. He answered the officers’ questions with appropriate English responses.
At trial, one of the police officers was asked by defendant’s trial counsel if defendant “is not a native English speaker.” The officer responded: “That would be fair to say.”
After a brief discussion about defendant leaving his Oakland home, one of the officers advised defendant of his rights. “Okay. Well, because you’re in jail and we’re talking to you here, we gotta read you your rights. That’s just part of our thing, okay? Do you understand that?” Defendant said “Yes.” The officer advised defendant in English of each of his rights and asked defendant if he understood them. Defendant acknowledged that he did. The officers then immediately began to question defendant, and defendant responded to their questions without hesitation.
One of the officers told defendant “we know exactly what happened that night.” He characterized Cuong as “a shitty guy,” and said “I know he wasn’t a saint.” Defendant said “What do you mean a saint?” The officer explained that he meant that Cuong “wasn’t a nice guy.” He asked defendant to “try to help us understand what happened that night.” The officer told defendant “we have no doubt that you were there and, and you did it. . . . We know what happened, we just don’t know why.” He said that the officers “know about the ecstasy deal.” “We just need to hear from you why. Did he make a threatening movement toward you? Did he say he was gonna do something? I mean, it’s very important . . . .” Defendant responded by insisting that he did not use ecstasy.
The officer assured defendant that he knew that Cuong “was very bad. But we still find out everything that happened.” Defendant replied: “He’s bad, but he’s nice.” The officer said: “[H]e’s a nice guy, but you shot him for a reason.” Defendant replied “I never said I shot him.” The officer countered “we know you did.” The officer told defendant that it was “better” to “take responsibility for what you do.” He asked defendant “why did you shoot him?” Defendant said “I don’t even know why I shoot him.” The officer asked again “[w]hy did you shoot him?” and defendant said “I didn’t shoot him.” The officer told defendant that he knew that defendant had shot Cuong. He told defendant that “[i]f you’re sorry that you shot him, I will [write that down and] take that to the District Attorney.”
The officer said that they had “this huge mountain of evidence that says [you] did it.” “I mean I’m sure you’re tired of running.” He told defendant that knowing “the why . . . that could help. You know, somewhere down the road. I don’t know how, but it could help you.” “If, if you’re completely truthful with us, this is what we’ll do. We’ll go to the District Attorney and say, we, we know the victim wasn’t that nice of a guy, okay? . . . [H]e was supposed to pay back money. He didn’t pay back the money and, and [defendant] just got upset because he was messing around.” Defendant said “I don’t know what you’re talking about. He used ecstasy, but I don’t know about that.” The officer told defendant: “You need to be a man and come clean. For your friends.” Defendant said he did not care about his friends, but only his family.
The officer falsely told defendant that his DNA and fingerprints were on the shell casings, and eyewitnesses had identified him. The officers urged defendant to “tell us the truth” and “[j]ust be honest.” Again, they highlighted that “the why part” needed to be told, and “you don’t know how important that is man, when court time comes. I mean it could be extremely important. It could determine the level of punishment if you do that. I mean that could be very important.” Defendant again denied responsibility for the shooting. The officers urged defendant to “be truthful with us” and “take responsibility for your actions” because “that’s very important.” Defendant said: “If you want the truth, I’ll tell you the truth.” Defendant then said “I did it” and told the officers that he had killed Cuong because “he owed me a lot of money.” “I don’t know why I got mad, you know.” Defendant said he had argued with Cuong, and, after the argument, “I got kind of mad” and “[t]hat’s when I shot him.”
Defendant then said he did not want to say anything more because “I tell you already.” However, he continued to converse with the officers. Defendant admitted that he shot Cuong “like two or three times I think.” He said that his gun held 12 rounds and was a Smith and Wesson. After a little while, defendant admitted that he “shot him two or three or four times, more I don’t know.” Defendant confirmed that “[t]he reason you shot him is you just lost your temper because he owed the group money.” Defendant said that Cuong “was calling me names,” but “then you know, I don’t know why I did that.” Defendant told the officers that he shot Cuong first over the car. Cuong tried to flee up the driveway toward the house, and defendant came around the car and shot him several more times, including multiple shots after Cuong fell to the ground. Defendant said “I didn’t expect to shoot him.” Defendant asserted that Cuong owed “[t]he whole group money” for ecstasy, and the group owed somebody else money.
After reviewing the transcript and listening to the recording, the trial court denied defendant’s motion and ruled that the statements were admissible. At trial, defendant was assisted by a Vietnamese interpreter.
2. Standards of Review
“An appellate court applies the independent or de novo standard of review, which by its nature is nondeferential, to a trial court’s granting or denial of a motion to suppress a statement under Miranda insofar as the trial court’s underlying decision entails a measurement of the facts against the law. [Citations.] As for each of the subordinate determinations, it employs the test appropriate thereto. That is to say, it examines independently the resolution of a pure question of law; it scrutinizes for substantial evidence the resolution of a pure question of fact; it examines independently the resolution of a mixed question of law and fact that is predominantly legal; and it scrutinizes for substantial evidence the resolution of a mixed question of law and fact that is predominantly factual.” (People v. Waidla (2000) 22 Cal.4th 690, 730.) “[W]e accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained, we give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence.” (People v. Wash (1993) 6 Cal.4th 215, 235-236, citations and quotation marks omitted.)
3. Implied Waiver
“[A]fter the required warnings are given the accused, ‘[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.’. . . [T]he question whether the accused waived his rights ‘is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.’ Thus, the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an 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.” (Fare v. Michael C. (1979) 442 U.S. 707, 724-725.)
“Whether there has been a valid waiver depends on the totality of the circumstances, including the background, experience, and conduct of defendant. [Citations.] The age of the defendant is one factor in applying the totality test. [Citation.] Similarly, any language difficulties encountered by the defendant are considered to determine if there has been a valid waiver. [Citations.] There is a presumption against waiver, and the burden of showing a valid waiver is on the prosecutor.” (U.S. v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 751-752.) “[If] the defendant chose to speak with police after he was informed of his rights, understood the information he was given and was not tricked or coerced into surrendering those rights, a valid waiver will be implied.” (People v. Riva (2003) 112 Cal.App.4th 981, 989.)
Defendant claims that the record does not support a finding that he understood the Miranda advisements because the advisements were in English, which is not defendant’s native language. Defendant’s strong accent on the recording adequately demonstrates that English is not his native language. However, the record contains no indication that he was unable to understand the officer’s very clear advisements in English. Defendant explicitly acknowledged that he understood these advisements, and he encountered no difficulty in conversing with the two officers in English throughout their lengthy conversation.
Defendant points to three spots in the interview where, he contends, he expressed an inability to understand the officers. At one point, one of the officers said that Cuong was “not a saint,” and defendant asked what he meant. The officer explained that he meant that Cuong was not a “nice” person. We see nothing in this exchange to suggest that defendant was unable to understand the advisements. While the officer’s figurative use of the word “saint” might have been unclear to someone who was not a native English speaker (and who might take such words literally, yielding a nonsensical meaning), the simple words of the advisements did not involve any such ambiguities.
At another point in the interview, the officer told Cuong that the police “know about the ecstasy deal” and just wanted to hear from defendant why he shot Cuong. Defendant responded by insisting, as he did several times during the interview, that he did not use ecstasy. Defendant argues that his reply was unresponsive and suggested that he did not understand the officer. We disagree. Defendant’s response was consistent with his continuing refusal to admit that he had played any role in the drug dealing or the shooting. By telling the officers that he did not use ecstasy, defendant continued to attempt to distance himself from the drug transaction and everything related to it. His response was unresponsive, but it did not suggest a lack of understanding. Instead, his response suggested that he was trying to deflect the officers’ questions about the shooting and about his involvement in the drug transaction.
Defendant argues that his flip-flopping about whether he had shot Cuong indicates that he was unable to understand the officers. Not so. Defendant’s admission (“I don’t even know why I shoot him”) followed by his denial (“I didn’t shoot him”) was consistent with defendant’s apparent internal struggle over whether to accept responsibility for the shooting. It did not suggest that defendant did not understand English.
The totality of the circumstances supports the trial court’s conclusion that defendant understood his rights and voluntarily relinquished them by responding to the officers’ questions.
4. Alleged Invocations
Defendant contends that he twice invoked his right to remain silent, but the officers ignored him and continued to question him.
“In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect must unambiguously assert his right to silence or counsel. [Citation.] It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, either to ask clarifying questions or to cease questioning altogether. [Citations.] A defendant has not invoked his or her right to silence when the defendant’s statements were merely expressions of passing frustration or animosity toward the officers, or amounted only to a refusal to discuss a particular subject covered by the questioning.” (People v. Rundle (2008) 43 Cal.4th 76, 114-115, internal quotation marks omitted.) Whether an invocation of the right to remain silent occurred is a question of fact that is reviewed solely for substantial evidence. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238; People v. Waidla, supra, 22 Cal.4th at p. 730.)
Defendant claims that he invoked his right to remain silent shortly after he first admitted shooting Cuong. After defendant had admitted “I did it” “[bec]ause he owed me a lot of money,” the officers asked him how he felt, and defendant said “I feel better.” The officers repeatedly asked him how much money Cuong had owed him, and defendant professed no knowledge. When the officers pressed for more details and asked him “how it happened,” defendant said “I did already.” One officer asked: “I know but you tell me the specific details of how you got mad and how you built up to that.” Defendant responded: “I don’t know why I got mad, you know. ‘Cause you know, I didn’t want to do those things. I’ve been good, you know. I went to trucking school and (inaudible) you know. I can’t talk now.” The officer said “Okay.” Defendant said “Let me, let me rest a little while.” The officer responded “No, no, it’s okay.” The other officer said: “Gather yourself. This is extremely hard and I can imagine.” The officers returned to questioning defendant, and defendant responded to these questions. When one of the officers asked “[w]ho was in your car,” defendant said “I can’t say anything.” But he did not stop talking to the officers.
Defendant contends that he was invoking his right to remain silent when he said “I can’t talk now” and “I can’t say anything.” However, neither of these statements was an unambiguous invocation of his right to remain silent. Defendant’s “I can’t talk now” did not necessarily indicate that he was invoking his rights rather than seeking a moment to pause. His “I can’t say anything” did not suggest that he was invoking his right to silence as opposed to trying to protect his compatriots. The fact that defendant continued to unhesitatingly converse with the officers confirms that he was not attempting to invoke his right to remain silent.
Defendant claims that he invoked his right to silence at a second point in the interview after he had described in detail the events leading up to the moment of the shooting. Defendant said “And after that I (inaudible). That’s it. (Inaudible)” One officer said “You don’t wanna tell me any more?” Defendant said: “No.” The officer said “How come? Because you feel bad?” Defendant said “Just um, (inaudible), I tell you already.” After the officer said “Well I’m just, here’s the . . .,” defendant explained that he did not want to implicate his friends. The conversation continued thereafter, and defendant described how he had shot Cuong.
Defendant claims that this last “Inaudible” in the transcript is audible on the recording. The recording of this interview is of very poor quality. We are unable to discern what defendant is saying at this point in the interview. It is not important, because defendant thereafter confirmed the officer’s statement that defendant did not “wanna tell me any more.”
We do not see any unambiguous assertion of the right to remain silent in defendant’s statements to the officers at this point in the interview. Defendant’s statements indicated that he felt he had already revealed everything (“That’s it”; “I tell you already”) and had no further information of any value that he could reveal. His statements did not reflect that he was unwilling to continue talking to the officers, which was substantiated by his uninterrupted continuation of his conversation with the officers. We reject defendant’s claim that he invoked his right to remain silent.
5. Voluntariness
“A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it ‘does not itself compel a finding that a resulting confession is involuntary.’ [Citation.] The statement and the inducement must be causally linked.” (People v. Maury (2003) 30 Cal.4th 342, 404-405.)
“In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226, citations omitted.) The prosecution bears the burden of proving by a preponderance of the evidence that the statements were voluntary. (People v. Benson (1990) 52 Cal.3d 754, 779.) We exercise independent review on appeal. (Benson, at p. 779.)
Defendant claims that the police officers improperly coerced his statements because they disparaged the victim’s character, said that they already had solid evidence of his guilt, assured him that they would convey his statements to the prosecutor, and told him that his explanation of the circumstances of the killing “could be very important” and “could help” him.
It is not improper for police officers to falsely imply that they already know the facts about the crime and are merely seeking to confirm these facts because this kind of deception is “not of a type reasonably likely to procure an untrue statement.” (People v. Jones (1998) 17 Cal.4th 279, 297-299, citation and quotation marks omitted.) Although the officers here falsely told defendant that they had DNA and fingerprint evidence, these false statements were not of a type reasonably likely to induce a false confession, particularly since they were coupled with true statements that defendant had been implicated by his compatriots. The officers’ statement that Cuong was not a “saint” was also not improperly coercive. As a member of a conspiracy to sell ecstasy, Cuong was obviously not a “saint,” and this true statement was not likely to coerce a false statement. None of the other disparaging statements about Cuong were likely to trigger a false statement by defendant.
“The line to be drawn between permissible police conduct and conduct deemed to induce or to tend to induce an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the police. Thus, ‘advice or exhortation by a police officer to an accused to “tell the truth” or that “it would be better to tell the truth” unaccompanied by either a threat or a promise, does not render a subsequent confession involuntary.’. . . [¶] When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if in addition to the foregoing benefit, or in the place thereof, 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. The offer or promise of such benefit need not be expressed, but may be implied from equivocal language not otherwise made clear.” (People v. Hill (1967) 66 Cal.2d 536, 549.)
Here, the officers repeatedly encouraged defendant to explain his conduct, and told him that his explanation “could be very important” and “could help” him. The officers did not suggest that defendant would receive lenient treatment simply because he made a statement, but instead properly conveyed to defendant that an explanation of his motivation for killing Cuong was important and could potentially assist in his defense. The officers were not misleading defendant in this regard. His motivation was important, and it might have been helpful to him if his explanation had revealed that Cuong had assaulted, threatened, or provoked him.
Nor did the officers improperly coerce defendant by telling him that they would write down his statements and show them to the prosecutor. This too was a simple statement of fact. No one would be induced to make a false confession as a result of being told that his or her statements would be recorded and shown to the prosecutor.
Since the evidence did not reflect that the officers engaged in any coercive conduct, defendant’s statements were not involuntary.
Hence, we need not consider whether defendant’s trial counsel forfeited this contention by failing to raise it below.
B. Voluntary Manslaughter Issues
Defendant makes a series of contentions regarding the instructions concerning voluntary manslaughter and the prosecutor’s assertions in his argument to the jury regarding voluntary manslaughter. We need not address each of these contentions individually because voluntary manslaughter instructions were not merited in this case, and therefore defendant could not have been prejudiced by any errors in this regard.
The heat of passion form of voluntary manslaughter has both subjective and objective components. Here, evidence that defendant actually killed Cuong in anger over Cuong’s debt could have satisfied the subjective component of heat of passion. However, no evidence supported the objective component of heat of passion. “Although the provocative conduct may be verbal . . ., such provocation ‘must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment.’” (People v. Manriquez (2005) 37 Cal.4th 547, 585-586 (Manriquez).)
No rational juror could have concluded that the fact that Cuong owed money and engaged in name-calling would so inflame an ordinary person that he or she would lose reason and judgment. The Fourth District Court of Appeal addressed a similar situation in People v. Najera (2006) 138 Cal.App.4th 212 (Najera). Najera and the victim were drinking beer and talking in front of the house where they both lived, when the victim called Najera a faggot. Najera took umbrage at this, and told the victim to stop it. The victim refused to stop, and he called Najera a fag. The victim then got up and pushed Najera, and the two men began physically fighting. (Najera, at pp. 215-216.) The men continued to call each other names, and Najera become increasingly angry. A third man intervened and separated Najera and the victim, and the owner of the house told them to stop or he would call the police. The victim sat back down, and Najera went into the house. Najera told a woman in the house to tell the victim to repay Najera the $50 the victim owed Najera. (Najera, at p. 216.) After being in the house for five to 10 minutes, Najera came back out, walked straight up to the victim, and slashed the victim several times with a knife. (Najera, at p. 216.)
The victim died from his injuries, and Najera was prosecuted for first degree murder. The jury was instructed on heat of passion voluntary manslaughter, and the prosecutor made inaccurate arguments to the jury about provocation. (Najera, supra, 138 Cal.App.4th at p. 223.) Najera’s trial counsel did not object to this portion of the prosecutor’s argument. Najera was convicted of second degree murder. On appeal, Najera contended that the prosecutor had committed prejudicial misconduct. (Najera, at pp. 223-224.) The Fourth District agreed that the prosecutor’s argument had been inaccurate. Nevertheless, the court concluded that Najera’s trial counsel’s failure to object forfeited the contention. Najera’s trial counsel’s failure to object was not prejudicial because Najera had not been entitled to voluntary manslaughter instructions in the first place due to the lack of substantial evidence of provocation. The Fourth District ruled that, as a matter of law, the victim’s name-calling and pushing was inadequate to provoke a reasonable person to act rashly. (Najera, at pp. 223-226, fn. 2.)
There was more evidence of provocation in Najera than there was here, yet the Fourth District found that it was insufficient to justify voluntary manslaughter because the objective component of heat of passion was not supported by adequate evidence. Najera’s victim owed him money, called him a faggot, and pushed him. Cuong had owed defendant and his compatriots money for a couple of weeks. The group had driven Cuong to two different houses that evening at which Cuong had tried unsuccessfully to contact people who could provide the money. After the second unsuccessful attempt, defendant and Cuong engaged in a very brief verbal argument during which Cuong “was calling [defendant] names.” Evidence of Cuong’s failure to repay his debt coupled with his unspecified name-calling could not satisfy the objective component of heat of passion. This objective component depends on whether an ordinary person “‘would be so inflamed that he or she would lose reason and judgment.’” (Manriquez, supra, 37 Cal.4th at p. 586.) No rational juror could have concluded that an un-repaid debt and name-calling would cause an ordinary person to become so inflamed that he lost reason and judgment. Consequently, voluntary manslaughter instructions were not merited, and any instructional errors or inaccurate arguments regarding voluntary manslaughter could not have prejudiced defendant.
C. Instruction on Specific Intent Element of Conspiracy
Defendant claims that the trial court’s instructions on the specific intent element of the conspiracy count were prejudicially conflicting and misleading. He contends that the trial court erroneously told the jury that it was not required to find that he had the specific intent that a sale of ecstasy occur.
1. Background
At the beginning of the trial, the court told the jury that “[t]he People must prove that the members of the alleged conspiracy had an agreement and intent to commit Health and Safety Code §11379.” At the conclusion of the trial, the court again instructed the jury on the conspiracy count. “To prove that the defendant is guilty of this [conspiracy] crime, the People must prove that, one, the defendant intended to agree and did agree with Quang La, Luyen Nguyen, Cuong Nguyen, or Hieu Nguyen, or others to commit Health and Safety Code §11379; two, at the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit Health and Safety Code §11379; three, the defendant or Quang La, Luyen Nguyen, Cuong Nguyen, or Hieu Nguyen, or others or some or all of them committed at least one of the alleged overt acts to accomplish Health and Safety Code § 11379; and four, at least one of these overt acts was committed in California. [¶] The People must prove that the members of the alleged conspiracy had an agreement and intent to commit Health and Safety Code §11379.”
“To decide whether the defendant and one or more of the other alleged members of the conspiracy intended to commit Health and Safety Code §11379, sales of a controlled substance, please determine if the following elements have been proved: [¶] To prove sale of a controlled substance, the People must prove that, one, the defendant or a co-conspirator sold a controlled substance; two, the defendant or a co-conspirator knew of its presence; three, the defendant or a co-conspirator knew of the substance’s nature or character as a controlled substance; and four, the controlled substance was ecstasy.”
“Every crime charged in this case requires proof of the union or joint operation of the act and wrongful intent except for Health and Safety Code §11379, sale of controlled substance, and the firearm allegation . . . . Health and Safety Code §11379, sale of a controlled substance, the firearm allegations, . . . and the lesser included offense of . . . voluntary manslaughter, require general criminal intent. To be guilty of these offenses, a person must not only commit the prohibited act, but must do so intentionally or on purpose. [¶] It is not required, however, that the person intend to break the law. The act required is explained in the instruction for each crime or allegation. [¶] The following crimes require a specific intent or mental state: Penal Code §187, murder, and 182(a)(1), conspiracy. [¶] To be guilty of these offenses, a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the intent or mental state required are explained in the instruction for each crime.”
The prosecutor suggested to the trial court that it add a clarification to the instructions: “The defendant is not charged with violating Health and Safety Code §11379, sale of a controlled substance. He’s charged with violating Penal Code §182(a)(1), a conspiracy to violate Health and Safety Code §11379.” The court did not accept the prosecutor’s suggestion.
2. Analysis
“[T]he crime of conspiracy requires dual specific intents: a specific intent to agree to commit the target offense, and a specific intent to commit that offense.” (People v. Jurado (2006) 38 Cal.4th 72, 123.) Defendant does not challenge the instructions on the intent to agree; he finds fault only in the instructions on the specific intent to commit the target offense.
The trial court repeatedly told the jury that the prosecution had to prove that defendant and the other members of the conspiracy intended that one of them commit a violation of Health and Safety Code section 11379, which the trial court described as “sale of a controlled substance.” “The People must prove that the members of the alleged conspiracy had an agreement and intent to commit Health and Safety Code §11379.” (Italics added.) “[T]he People must prove that . . . defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit Health and Safety Code §11379.” (Italics added.) “The People must prove that the members of the alleged conspiracy had an agreement and intent to commit Health and Safety Code §11379.” (Italics added.) The jury could not have failed to understand from these repeated instructions that the prosecution was required to prove that defendant intended that he or another member of the conspiracy sell a controlled substance.
Defendant’s claim of error is based on the trial court’s instructions on the elements of a Health and Safety Code section 11379 violation. The trial court’s instruction on the elements of the target offense suggested that the prosecution not only had to prove that defendant intended the commission of the target offense but also that the target offense had actually been committed. The trial court instructed the jury that the offense of sale of a controlled substance required the prosecution to prove that defendant or one of his co-conspirators knowingly sold ecstasy. Since defendant was not charged with committing the offense of sale of a controlled substance, it was not necessary for the prosecution to prove that defendant or any of his co-conspirators had actually sold ecstasy. “Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object of the conspiracy. [Citations.] . . . ‘Conspiracy is an inchoate crime. [Citation.] It does not require the commission of the substantive offense that is the object of the conspiracy.’” (People v. Morante (1999) 20 Cal.4th 403, 416-417.) To the extent that the trial court’s instructions suggested that the prosecution was required to prove that the target offense had actually been committed, the instructions were misleading. However, requiring the prosecution to prove more than it was actually required to prove could have only benefited, rather than prejudiced, defendant.
Defendant also takes issue with the court’s instruction to the jury that a sale of controlled substance offense “require[s] general criminal intent[,]” and the prosecution is required to prove that the perpetrator committed the offense and did so “intentionally or on purpose” but need not prove that “the person intend to break the law.” Defendant claims that this instruction erroneously told the jury that the conspiracy offense was a general intent offense, rather than a specific intent offense. Not so. At the same time that the court instructed the jury that the target offense was a general intent crime, the court explicitly instructed the jury that the conspiracy offense required the prosecution to prove “a specific intent or mental state[,]” and referred the jury back to the earlier correct instructions on the specific intent elements of the conspiracy offense.
Thus, while we agree that the trial court’s instructions may have been misleading, the ambiguity in those instructions only increased the prosecutor’s burden and did not mislead the jury regarding the specific intent elements of conspiracy, upon which the trial court repeatedly and correctly instructed the jury.
D. Instruction on Overt Act of “Wanting to Collect Money”
Defendant asserts that the trial court erred in instructing the jury that “wanting to collect money” could constitute an overt act in furtherance of the conspiracy.
1. Background
Before the jury heard any evidence, the court instructed it: “An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed-upon crime.” At the conclusion of the trial, the court read the information’s allegations to the jury. The first overt act alleged in the conspiracy count was described as follows. “[D]efendant and others wanted Cuong Nguyen to pay them money he owed them from a prior sale of ecstasy.” The information read to the jury also alleged six other overt acts, including that defendant had shot and killed Cuong. The court instructed the jury on the elements of the conspiracy count. “An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed-upon crime. . . . The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.”
2. Analysis
Defendant’s argument is based on a false premise. Nowhere in the court’s instructions did it tell the jury that the alleged overt act of “want[ing] Cuong Nguyen to pay them money he owed them” could be or was in fact an “overt act.” The court merely read to the jury the allegations in the information to inform the jury of what the prosecution alleged. The jury instructions on the conspiracy count made it abundantly clear that it was the jury’s job to decide not only whether the factual allegation was true but also whether, if true, the allegation constituted an overt act in furtherance of the conspiracy.
The court explicitly told the jury that, to qualify as an overt act in furtherance of the conspiracy, the alleged overt act must be “an act” that is “more than” an agreement or a plan, and must be “done” to help accomplish the target offense. These instructions did not even intimate that a desire for repayment could qualify as an overt act. It is not reasonably likely that any rational juror would understand the court’s reading of the allegations in the information to establish or suggest the truth of that allegation or to negate the court’s explicit instructions on the elements of the crime. The court’s instructions on the overt act requirement were not erroneous, and the court did not err in reading the information’s allegations to the jury.
E. Cumulative Prejudice
As there were no trial errors that caused defendant any prejudice, there is no merit to defendant’s contention that reversal is required due to cumulative prejudice.
F. Attorney’s Fees
Defendant contends that the trial court erred in ordering him to pay $5,000 in attorney’s fees in the absence of evidence that he had the ability to pay this sum.
“If the court determines that the defendant has the present ability to pay all or a part of the cost [of appointed counsel], the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability.” (Pen. Code, § 987.8, subd. (e).) “‘Ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.” (Pen. Code, § 987.8, subd. (g)(2).)
The trial court explicitly based its attorney’s fees order on defendant’s ability to work in prison. “I do think attorney’s fees would be appropriate.” “Since the defendant will be able to work in prison, I think attorney’s fees in the amount of $5,000 will be ordered.” The court also imposed a $10,000 restitution fund fine and $5,000 in restitution to cover funeral expenses. The probation report contains no evidence that defendant had any financial resources. At the time of the probation report, defendant had been incarcerated for 16 months. He had not completed high school, and had a very limited employment history in low-wage, unskilled warehouse jobs. Defendant was sentenced to 60 years to life in state prison.
The Attorney General concedes that the trial court’s order is not supported by substantial evidence of defendant’s ability to pay $5,000 in attorney’s fees. He contends that we should remand the matter for a hearing on defendant’s ability to pay. Defendant urges us to strike the order in the interests of judicial economy as there is no significant likelihood that defendant will be found able to pay any such sum.
A defendant’s ability to pay attorney’s fees must be based on his “present ability” to pay, and precludes consideration of the defendant’s future financial position beyond a six-month period following the hearing. The record does not show that defendant has any present financial resources. Defendant, who had only worked in two brief unskilled jobs prior to his arrest, had been incarcerated for more than a year before the sentencing hearing. As he has been and will remain incarcerated, his license to drive a truck does not provide him with the ability to pay fees. Defendant is a young man in his early twenties with no skills who will spend the vast majority of his remaining lifetime in prison.
Since defendant was sentenced to state prison, the trial court was precluded from basing its ability to pay finding on his future financial resources unless it found “unusual circumstances.” The court made no such finding. Defendant’s prospective ability to work in prison is not “unusual circumstances,” as most prisoners have the ability to work in prison. Any wages defendant earns in prison will be credited first against the $15,000 in restitution and restitution fund fines the court ordered him to pay (Pen. Code, § 2085.5), sums which will certainly not be satisfied by six months of prison wages. The court was not permitted to consider defendant’s future financial position beyond six months following the sentencing hearing.
Clearly, the record before us cannot support a conclusion that, due to unusual circumstances, defendant has the ability to pay $5,000 in attorney’s fees. The question is whether we should strike the order or remand for a hearing to determine whether unusual circumstances are present that establish defendant’s ability to pay. The California Supreme Court faced such a question in People v. Flores (2003) 30 Cal.4th 1059 (Flores). Flores contended that “remand would be pointless” because he had been sentenced to prison and the trial court had not found his circumstances to be unusual. The California Supreme Court agreed with the Court of Appeal that “whether defendant’s financial circumstances are unusual for someone sentenced to prison is not the issue on appeal” and should not be subjected to appellate speculation. Instead, a remand was appropriate “so that the trial court may, after having conducted a hearing into the question, make an informed decision” as to whether unusual circumstances exist. (Flores, at pp. 1068-1069.) Although we can see no basis in the record for a finding of unusual circumstances, such a decision is committed to the trial court in the first instance, so we decline to speculate about whether such circumstances exist. We will remand for a hearing.
IV. Disposition
The judgment is reversed, and the matter is remanded with directions to the trial court to hold a hearing to determine whether unusual circumstances exist that establish defendant’s ability to pay attorney’s fees. If the court determines that such circumstances exist, it shall set an appropriate amount of attorney’s fees within defendant’s ability to pay and reinstate the remainder of the judgment. If the court concludes that no such circumstances exist, it shall strike the attorney’s fees order and reinstate the judgment.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.