Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF181605. Paul A. Vortmann, Judge.
Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
STATEMENT OF THE CASE
On April 25, 2008, the Tulare County District Attorney filed a first amended information in superior court charging appellant Ezekiel Perez as follows:
Count 1--murder (Pen. Code, § 187, subd. (a)) by a criminal street gang member (§ 190.2, subd. (a)(22)) committed by discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21) to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)) with a principal personally intentionally discharging a firearm causing great bodily injury or death to the named victim (§12022.53, subds. (c), (d), (e)(1));
Unless otherwise noted, all statutory references are to the Penal Code.
Count 2--attempted murder (§§ 187, subd. (a), 664) for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)) with a principal personally and intentionally discharging a firearm causing great bodily injury or death to the named victim (§12022.53, subds. (c), (d), (e)(1));
Count 3--permitting another to shoot from a vehicle (§ 12034, subd. (b)) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A));
Count 4--attempted murder (§§ 187, subd. (a), 664) for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)) in which a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1));
Count 5--shooting from a motor vehicle (§ 12034, subd. (c)) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)) with personal use of a firearm (§ 12022.5, subd. (a)(1));
Count 6--shooting at an inhabited dwelling (§ 246) for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)) with personal use of a firearm (§ 12022.5, subd. (a)(1)).
On April 28, 2008, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On May 6, 2008, the jury returned verdicts finding appellant guilty as charged of the substantive counts and finding all of the special allegations to be true with the exception of the personal use of a firearm allegations (§ 12022.5, subd. (a)(1)) attached to counts 5 and 6.
On July 2, 2008, the court denied appellant probation and sentenced him to life in state prison. The court imposed the term of life without the possibility of parole on count 1 plus 25 years to life for the related personal and intentional discharge of a firearm (§ 12022.53, subd. (d)). The court imposed a consecutive term of life with the possibility of parole on count 2 plus 25 years to life for the related personal and intentional discharge of a firearm (§ 12022.53, subd. (d)). The court imposed the middle term of two years on count 3 plus three years for the related gang enhancement (§ 186.22, subd. (b)(1)(A)). The court imposed a term of life with the possibility of parole on count 4 plus a term of 10 years for the related personal and intentional discharge of a firearm (§ 12022.53) and directed those terms to be served consecutively to those imposed on count 2. As to counts 5 and 6, the court imposed the middle term of five years plus five years for the related gang enhancement (§ 186.22, subd. (b)(1)). The court stayed the terms imposed on counts 3, 5, and 6, awarded 455 days of custody credits, imposed a $200 restitution fine (§ 1202.4, subd. (b)), and ordered appellant to pay $2,862.56 In restitution (§ 1202.4, subd. (f)).
On August 7, 2008, appellant filed a timely notice of appeal. We modify certain aspects of the sentence and affirm in all other respects.
On appeal, appellant challenges the denial of a suppression motion, the constitutionality of the “drive-by shooting” special circumstance (§ 190.2, subd. (a)(21)), the imposition of the restitution order, and the accuracy of the abstract of judgment. For the convenience of the reader, we will include facts of the substantive offenses substantially verbatim from the report and recommendation of the probation officer filed June 20, 2008. We will also include additional facts from the appellant’s post-arrest interview with law enforcement officers and from the trial record to provide additional context.
“BRIEF SUMMARY OF FACTS:
“On March 27, 2005, the defendant committed murder, with the special allegation the defendant personally discharged a firearm, the defendant committed the crime while being an active member in a criminal street gang, and the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle. He also committed willful, deliberate, and premeditated attempted murder, with the special allegation the defendant personally discharged a firearm causing great bodily injury. The defendant also permitted another to shoot from a vehicle. The defendant discharged a firearm from a vehicle.… The defendant also shot at an inhabited dwelling.… All crimes were committed for the benefit of a criminal street gang.
“OFFENSE:
“Reports of the Tulare County Sheriff’s Department indicate on March 27, 2005, deputies were dispatched to Richgrove for the report of a shooting of two victims, Anthony Castro and Alejandro Salazar. Deputies immediately learned the victim Anthony Castro had died prior to the arrival of ambulances. Further investigation revealed on that morning, the defendant met up with minor, A.C., who had a stolen vehicle and a gun. The two went to a Kmart and purchased ammunition for the gun and proceeded to Earlimart, where they observed victim, Pedro Flores, outside of his apartment on the phone. The defendant and co-defendant drove by and flashed a three, a gang sign for Southern gangs, and the victim flipped them off. They made a U-turn and the defendant, who was identified as the driver, started shooting at Pedro Flores. Pedro ran into his apartment and several more shots were fired.
“From this location, the defendants drove to a gas station in Richgrove where … Anthony Castro … [and his minor brother, V.C.] were located..… While there, [V.C] saw the defendants flash a gang sign; however, they [the Castros] ignored them and left the station in their car. [The Castros subsequently picked up their friend, Alejandro Salazar.] The defendants followed them to the Castro residence where they dropped off [V.C.] and told their mother about the incident. As a result, she did not allow them to take the car out again. The victims, Anthony and Alejandro, started walking down the street and the defendants drove by again. The defendant fired numerous shots at them, striking Anthony several times and killing him; Alejandro was shot three times and was taken to the hospital.
“When the defendant was arrested, he confessed to being in the stolen car and going to Kmart and buying ammunition because he and A.C. were going to go bird hunting. He admitted to the shootings; however, stated he was merely the driver and A.C. was the shooter, directing him where to go.”
Minor, A.C., was separately convicted of murder and sentenced to life without the possibility of parole. In a prior appeal (People v. Contreras (Dec. 27, 2007, F051844 [nonpub. opn.]), we vacated his life sentence because the record did not reflect the trial court was aware it had discretion to sentence him to a lesser term of 25 years to life for the special circumstance murder. We remanded for resentencing and affirmed the judgment in all other respects. At resentencing, the trial court again imposed the sentence of life without the possibility of parole for the murder conviction. He again appealed and we affirmed the sentence against challenges of abuse of sentencing discretion and cruel and unusual punishment. (People v. Contreras (August 17, 2009, F056106) [nonpub. opn.], p. 2.)
Additional Facts from the Trial Record Concerning the Earlimart Shooting (Counts 4-6 of the Information)
A week before Easter 2005, someone stole Alejandro Reyes Gonzales’s white Honda Accord and he reported the theft to police. At the time of the theft, Gonzales’s car had tinted rear windows and tinted rear windshield but was not modified in any other respect. The car did not have any decals or designs on the exterior.
At 9:00 a.m. on Easter Sunday 2005, Ariana Flores was working in the sporting goods department of the K-Mart store in Delano. Two individuals purchased.22-caliber ammunition from her. Ariana said the duo looked like “bald gangsters” and dressed in baggie clothing. Ariana’s co-worker, Edith Mata, was working in the K-Mart garden shop and she checked the receipt of the two men as they departed through the garden shop exit. Later that day, police officers visited the K-Mart and showed a photographic lineup to Ariana and Mata. Mata identified appellant’s photograph, described him as “slightly chubby with a bald head,” and said he was the individual who held the receipt that morning.
In March 2005, Pedro Flores lived in an Earlimart apartment with his mother and siblings. At the time, he was a member of a Northerner criminal street gang, represented by the number 14 and the color red. At 9:30 a.m. on Easter Sunday, Flores was standing outside the apartment when two bald men dressed in black drove by in a white Honda and exchanged gang signs with him. He later saw the car park and the passenger fire a rifle in the direction of his sisters’ bedroom. Flores ran inside the apartment and gathered his sisters in his mother’s bedroom. Flores looked outside the apartment window and saw the passenger hang outside the window of the parked Honda and fire multiple bullets at Flores.
Ten-year-old J.B. lived in the apartment in front of the Flores family’s apartment. J.B. was playing outside when he heard two gunshots. J.B. ran to the front window and saw two Hispanic men in a white Honda. J.B. said the Honda had tinted windows, an “H” decal on the back, and stickers bearing little red painted chains. The stickers were located all around the car. J.B. said the passenger shot a long brown gun over the top of the car at the Flores apartment. He said the passenger fired the weapon about four times and then the driver took off down the road. Flores described the driver to police as “skinny, big lips, dark, [and] bald.” He described the passenger as bald, chunky, and dark in complexion.
Additional Facts from the Trial Record Concerning the Richgrove Shooting (Counts 1-3 of the Information)
At 10:00 a.m. on Easter Sunday 2005, Anthony Castro was filling his mother’s car with gas while his minor brother, V.C., waited inside the vehicle. A white Honda with tinted windows and a logo in the middle of the rear of the car pulled up to get gas. The driver of the Honda was skinny and wore a black hooded sweater bearing the number “13.” While the driver pumped gas, the passenger remained seated in the Honda. The passenger was short, bald, chubby, mustached, and wore a white T-shirt. The passenger held three fingers up at V.C. V.C. turned away and he and Anthony drove off as soon as the car was filled.
Anthony and V.C. went to pick up their neighbor, Alejandro Salazar, a onetime member of the Northern-affiliated Richgrove street gang. While the two brothers were driving to get Salazar, they passed the white Honda going in the opposite direction. The passenger was now driving and the driver was seated in the back. The Honda turned around to follow them but Anthony was able to speed away. Anthony and V.C. picked up Salazar, returned the car to the Castro home, and then Anthony and Salazar began to walk to the latter’s home. The two men saw the white Honda down the block as they were walking. The passenger in the Honda was thin, bald, and dressed in a dark shirt. He was seated behind the driver. The driver was bald, heavy, mustached, and wearing gloves. Salazar identified the driver as appellant.
The Honda approached Anthony and Salazar and the latter saw the passenger point a rifle out of the car window and start to fire the weapon. Salazar heard six or seven shots and sustained wounds to the head, legs, and back. After Salazar fell down from his wounds, Anthony ran toward the nearby home of his cousin, Sandra Vigil. Salazar eventually got up and ran to his own home. The white Honda sped away.
Castro’s cousin, Sandra Vigil, was driving home from a store when she noticed a white Honda with tinted rear windows and an “H” on the rear of the car. The Vigil home was located a few doors down from the Castro home. Vigil noticed two people fall to the ground, get back up, and then run into her home. She also noticed the white Honda speed off down a dirt road. Vigil stopped at her home, went inside, saw Anthony face down on the floor, and called 911. Dr. Gary Walter, a forensic pathologist, later performed an autopsy on Anthony Castro’s body and concluded he suffered three gunshot wounds and died from a fatal wound to the back.
At 7:30 p.m. on Easter Sunday 2005, Kern County Senior Deputy Sheriff William Hakker received a dispatch about a stolen white Honda in McFarland. The dispatcher advised Hakker the vehicle and suspects were still at the scene. Hakker saw the car parked off the road next to the front door of an apartment. The driver’s door was open and Hakker shined a spotlight on the interior. A Hispanic male in the driver’s seat reacted to the light and ran into the apartment. Hakker ran into the apartment after him and encountered and detained minor, A.C. Hakker also searched the Honda and found a sawed-off shotgun and sawed-off.22 rifle on the floorboard directly behind the driver’s seat.
Tulare County Sheriff’s Sergeant Gary Hunt contacted minor, A.C., on March 28, 2005, at A.C.’s residence. Hunt conducted a search of the residence and found two shirts on the premises. Each shirt had the number “13” on the front and the words “bow down” on the back. Hunt took a full statement from A.C. and then prepared a photographic lineup with pictures depicting the possible second suspect. Appellant’s photograph was among those included in the lineup and Edith Mata of the Delano K-Mart identified his picture as the person who purchased the ammunition. After Mata identified appellant’s photograph, the Kern County Sheriff’s Department attempted to locate him and eventually arrested him on April 5, 2007.
Appellant’s Confession
Kern County Sheriff’s deputies arrested appellant on April 5, 2007. On that same date, Tulare County Sheriff’s Detectives Gary Hunt and Cesar Fernandez interviewed appellant in the McFarland Substation of the Kern County Sheriff’s Department. The detectives gave appellant admonitions under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and he agreed to speak with the detectives. Appellant initially denied any involvement in the shootings in Earlimart and Richgrove. Detective Hunt told appellant that minor, A.C., had told police that he--appellant--was the “trigger man.” Detective Hunt then suggested that appellant had actually been the driver and that A.C., “a little kid,” instigated the shootings and fired the weapon to “make a name for himself.” Hunt also told appellant “during your travels there was [sic] a number of people who saw you.…”
Appellant eventually told the detectives, “This shit, that’s shit been haunting me.…” According to appellant, A.C. asked him to accompany him to town and buy some bullets to “shoot birds.” Appellant said the bullets were for a.22 rifle that was black and brown. A.C. was dressed in a shirt bearing the number “13.” Appellant explained that A.C. was too young to buy ammunition and that they were getting the ammunition to shoot doves. He also said A.C. advised him the car they were using was stolen. Appellant said he was driving in Earlimart when A.C. jumped in the back seat and began firing shots at someone outside. Appellant said he was shocked when A.C. began firing the weapon from the vehicle.
At one point in the interview, appellant contradicted himself and said A.C. drove to Earlimart and that he, appellant, did not drive at all until they were prepared to depart from the Richgrove gas station.
After that shooting, appellant said he became scared and quickly drove away. He said they had to stop for gas in Richgrove because the vehicle was running low on fuel. Appellant paid for the gas and A.C. pumped the fuel. After they got fuel, A.C. went to the back seat and subsequently discharged the weapon. Appellant said he could not find his way out of Richgrove and became panicked. He stopped the car and A.C. took over the driving duties.
DISCUSSION
I. DID THE TRIAL COURT ERRONEOUSLY DENY APPELLANT’S MOTION TO SUPPRESS HIS STATEMENTS TO POLICE?
Appellant contends the trial court erroneously denied his motion to suppress statements he made to police. Appellant specifically contends the detectives violated Miranda v. Arizona, supra, 384 U.S. 436 by disregarding repeated invocations of his right to refuse to speak to them. Appellant also claims his statements were involuntary because they were the product of deception, false promises of leniency, and psychological coercion by the detectives.
A. Procedural History of Suppression Motion
On April 15, 2008, appellant filed a motion in limine to suppress his April 5, 2007, statement and other statements to police as violating the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution as well as provisions of the California Constitution. Appellant argued that (1) he invoked his constitutional rights and law enforcement personnel ignored those invocations; (2) due to duress he was unable to voluntarily, knowingly, and intelligently waive his Miranda rights; and (3) the interrogating detectives engaged in deception and made express or implied promises of leniency in exchange for appellant’s statement.
On April 18, 2008, the court conducted a contested hearing on the motion. Tulare County Sheriff’s Detective Gary Hunt testified he interviewed appellant at the McFarland Substation on April 5, 2007. Hunt said he read Miranda rights from a card and appellant waived those rights before Hunt asked him any questions. Hunt said the interview was recorded on audio and video and transcribed. Hunt said appellant did not try to stop the interview in any way or assert his rights.
Hunt said appellant was detained in a questioning or interrogation room at the start of the interview. Appellant was not handcuffed. Detective Fernandez was also present during the interview. Both detectives were dressed in a shirt and tie and carried badges and side arms. Hunt advised appellant his name had come up “in a situation” and that Hunt had to question him to tie up loose ends with respect to the whole investigation. At the time, Hunt had a list of typewritten questions to ask appellant. Appellant indicated he would waive his rights and Hunt initially asked a series of innocuous questions about appellant’s background. Hunt then asked appellant to explain what happened on Easter Sunday 2005. Appellant gave his explanation, the detective took a break, and appellant remained alone in the interrogation room for five or ten minutes.
When Hunt returned to the room, he confronted appellant and asserted appellant was lying. Hunt further asserted that appellant had gone to K-Mart, purchased weapons, and had been the passenger in a car, among other things. At that point, appellant said, “ …F---, I’m gonna stop you already, shit um, serious, just came out with some.…” Hunt did not stop and ask appellant whether he was asking to stop questioning. Instead, Hunt played a portion of a tape recording in which minor A.C. blamed appellant for what occurred. After appellant heard the taped excerpt, Hunt questioned him further.
Hunt indicated it was basically appellant’s choice as to the version of events that Hunt would convey to the district attorney. Hunt subsequently told appellant the detectives knew he had lied to them and “to be honest with you, [if] I take that to the D.A., um, that’s not gonna look good.” Hunt next suggested that a number of things could have happened and it was to appellant’s benefit to give the correct explanation of what actually happened. Hunt explained, “[H]e [appellant] had already lied to me, and so I explained to him that, you know, lying to us in the investigation made him look guilty.…”
On redirect examination, Hunt testified he explained to appellant some of the evidence against him and suggested it was a good idea to be honest. Appellant responded by saying, “F---, I’m gonna stop you already, shit, um, serious, just came out with some.…” Hunt interpreted appellant’s statement to mean that appellant wanted the detective to stop talking about the evidence he had in front of him. Hunt testified, “He [appellant] seemed overwhelmed with the things that I talked to him about.” Hunt acknowledged that he continued to ask appellant questions and said appellant did not try to stop him at any time after that point.
As to his references to “the truth,” Hunt explained he was just encouraging appellant to tell the truth. Hunt testified at the suppression hearing, “There was evidence against him that he was involved in this that didn’t match up with what he was telling me about not being involved, and I was explaining to him that … him lying and being caught in the lie … was something that was gonna make him look guilty.” Hunt also told appellant the final charging decision was in the hands of the district attorney but that Hunt was going to make a report to the district attorney.
Appellant was 22 years old at the time of the questioning, had only an 11th grade education, and had never been engaged in law enforcement questioning as Hunt and Fernandez were conducting. Early in the questioning, Hunt asked whether appellant had any idea who committed the homicide. Appellant said, “I could, I could um imagine, I don’t want to say nothing, I already said, so, I don’t want to say nothing, you gave me my rights and stuff, you know.” Hunt interpreted this to mean that appellant understood his rights. Hunt continued to ask and appellant continued to answer questions after making the statement. At one point in the questioning, appellant surmised he was not going back home to his children, regardless of his answers. Hunt said the decision as to whether appellant would go home belonged to the district attorney.
At the conclusion of the testimony, defense counsel argued that “implied psychological coercion” occurred during the interrogation. Without hearing argument from the prosecutor, the court denied the motion to suppress, ruling appellant had been properly advised, the officers confronted him with statements from other suspects in the case, and the officers’ conduct did “not seem contrary or in violation of any principles of Miranda or the extension of Miranda that I’m aware.”
B. Governing Law
The test for determining whether a confession is voluntary is whether the defendant’s will was overborne at the time he or she confessed. (People v. Maury (2003) 30 Cal.4th 342, 404.) In the present case, there is no claim of physical intimidation. As defense counsel pointed out in the superior court, we are concerned only with psychological coercion. In evaluating a claim of psychological coercion, the question is whether the influences brought to bear on the accused overbore his or her will to resist and brought about confessions not freely self-determined. (People v. Kelly (1990) 51 Cal.3d 931, 952.) A confession may be found involuntary if it is extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. Although coercive police activity is a necessary predicate to establish an involuntary confession, such conduct does not itself compel a finding that a resulting confession is involuntary. The statement and the inducement must be causally linked. (People v. Maury, supra, 30 Cal.4th at p. 404.) In other words, the statement is involuntary only if the threat or promise actually induces defendant to make the statement. (People v. Lucas (1995) 12 Cal.4th 415, 442.)
The California Supreme Court has observed: “The business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means. ‘[A]lthough adversarial balance, or rough equality, may be the norm that dictates trial procedures, it has never been the norm that dictates the rules of investigation and the gathering of proof.’ [Citation.] ‘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.’ [Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 297-298.) An officer’s mere advice or exhortation 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 subsequently confession involuntary. The distinction between permissible and impermissible police conduct does not depend upon the bare language of inducement. Instead, it depends upon the nature of the benefit to be derived by the defendant if he or she speaks the truth as represented by the police. (People v. Hill (1967) 66 Cal.2d 536, 549.) When the benefit pointed out by the police is simply that which flows naturally from a truthful and honest course of conduct, the subsequent statement will not be considered involuntary. (People v. Belmontes, (1988) 45 Cal.3d 744, 773, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Under current law, no single factor is dispositive in determining voluntariness; rather, courts consider the totality of circumstances. (People v. Williams (1997) 16 Cal.4th 635, 660-661.) In considering the totality of the circumstances, relevant elements include the existence of police coercion; the length of the interrogation; the location of the interrogation; the continuity of the interrogation; and the defendant’s maturity, education, physical condition, and mental health. (Id. at p. 660; People v. Massie (1998) 19 Cal.4th 550, 576). Other characteristics of the defendant to be considered are his or her age, sophistication, prior experience with the criminal justice system, and emotional state. (In re Shawn D. (1993) 20 Cal.App.4th 200, 209.)
C. Challenged Portions of April 5, 2007 Interview
Although the interview consists of 44 transcribed pages, appellant focuses on several specific portions of the interview to assert that his confession was involuntary.
1. Alleged Invocations of the Right to Remain Silent
The following exchange occurred relatively early in the interview of appellant:
“Esequiel Perez: Well um, in my own words, what we think were talking, suppose somebody mentioned my name, you know, this is a serious thing.
“Det. Hunt: Okay.
“Esequiel Perez: That’s why sir.
“Det. Hunt: How do you feel about talking to me about it?
“Esequiel Perez: It’s kind of, it’s kind of frightening, and I’m f---ing scared you know.
“Det. Hunt: Okay.
“Esequiel Perez: Nervousing.
“Det. Hunt: Zeke, if you had anything to do with this case, tell me about it now.
“Esequiel Perez: I can’t, I can’t say nothing sir, I can’t sir, I don’t want to say nothing wrong, I don’t want to say nothing dumb.
“Det. Hunt: Okay.
“Esequiel Perez: But no, I didn’t do shit or nothing. It had nothing to do with nothing, shit.
“Det. Hunt: Alright, um, do you know for sure who did this?
“Esequiel Perez: Um, I’ve heard and shit, yeah, from what I’ve heard, heard somebody, yeah somebody was doing a lot of things, but, yeah, they’re busted and shit, they’re busted.
“Det. Hunt: Okay, um do you have any idea who did it?
“Esequiel Perez: I could, I could um, imagine, I don’t want to say nothing, I already said, so, I don’t want to say nothing, you gave me my rights and stuff, you know.
“Det. Hunt: Okay. Um, is there anybody that you can eliminate from the investigation that you know wasn’t involved?
“Esequiel Perez: Uh, I can’t do that.
“Det. Hunt: Okay. Uh, tell me why I should believe that you weren’t involved in this?
“Esequiel Perez: I’m right here, so I’m talking to you, this is (Unintell), I, I can’t really answer that. Why should you believe me, I mean, you don’t know me and you don’t know a damn thing about me, you know, it’s like I don’t know nothing about you, and, why should you believe me, why should I believe you? You know, about things, it’s like, I don’t know, can’t really answer that one, but.…”
Later in the interview, the following exchange occurred:
“Det. Hunt:... Here’s the deal, here’s what, you need to look, think about. Um, I got two binders of the stuff here, and I’m not gonna show you all the binders and stuff. But uh, I know that what you’re telling me for instance is that you, that you were with your girlfriend because I know that you went to uh K-Mart that morning, and that you were there with [A.C.] at K-Mart. Um, and as a matter of fact, I even know which door you went out of when you went to K-Mart, and the door that you went out of was the door of, the garden door. And um, not only did I remember that it was the garden door, but um, the girl who, who was working at the garden door center, she picked you out of a line up. So I know that you’re not telling me that truth that you were with your girlfriend hiding out in her[] bedroom from her parents that morning, and, the situation is this, the, the situation is that the case is already to go, the case has already been to the D.A., and the D.A. said, before we file charges against Zeke, we need to hear his side of the story, because there’s a few things that could have happened. There’s, there’s no question that you were in the car there with them. Uh, there’s no question that you were at K-Mart with them, there’s no question that you were, well, there’s no question in my mind that you were driving and uh, and that Zeke [sic] was the one back there pulling the trigger. The question is did you know this was something that he was gonna do, or is this something where he was back there being stupid. Because if you had no knowledge that it was gonna happen, then that’s different, than if you were driving along and you did this drive by shooting and you were out hunting for Norteno’s or God knows what...
“Esequiel Perez:... [F---], I’m gonna stop you already, shit um, serious, just came out with some (Unintell).
“Det. Hunt: Okay, well, let me um, here’s the problem, (tape plays). There’s your problem, is uh, we have a little kid, who was out trying to make a name for himself, and we know that you’re not wrapped up like he’s wrapped up we went.…”
On appeal, appellant contends the foregoing passages include an unambiguous assertion of his right to remain silent and that Detective Hunt’s follow-up responses constituted impermissible further interrogation. A trial court’s ruling on a Miranda issue will not be set aside unless it is palpably erroneous, i.e., lacking substantial evidentiary support. (People v. Nitschmann (1995) 35 Cal.App.4th 677, 683.) Appellate courts normally give great weight to the considered conclusions of the trial court that has previously reviewed the same evidence. (People v. Esqueda (1993) 17 Cal.App.4th 1450, 1483.)
To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of the right to remain silent, to the presence of counsel, and to appointed counsel, if indigent. If the suspect knowingly and intelligently waives these rights, the police are free to interrogate him or her. If at any point in the interview the suspect invokes Fifth Amendment rights, the questioning must cease. To invoke the Fifth Amendment privilege after it has been waived--and to halt police questioning after it has begun--the suspect must unambiguously assert his or her right to silence or counsel. In California, it is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda either to ask clarifying questions or to cease questioning altogether. (People v. Stitely (2005) 35 Cal.4th 514, 535.)
In the instant case, appellant’s comments about “I don’t want to say nothing” and “I’m gonna stop you already” were not unambiguous statements evidencing a desire to remain silent. The first comment about saying “nothing” could reasonably be considered simply a reflection of appellant’s nervousness and fear about being interrogated. His second comment about saying “nothing” could reasonably be considered a reflection of appellant’s hesitancy to identify third-party perpetrators of the offenses under investigation. His later comment--“I’m gonna stop you already”--was neither an unambiguous assertion of his right to remain silent nor an unambiguous request for counsel. Detective Hunt had just outlined a lengthy scenario about appellant’s conduct prior to the offenses. Appellant’s exclamatory remark could reasonably be considered an attempt to stop the officer’s running commentary so that he--appellant--could offer his version of the events in question. As respondent points out, appellant’s words did not suggest that he wanted to remain silent. Rather, they suggested that appellant wanted Detective Hunt to stop talking about the evidence that law enforcement personnel had collected against appellant.
In sum, the trial court could reasonably conclude appellant did not invoke the right to remain silent when he made any of the three comments and properly denied suppression of appellant’s April 5, 2007, statements.
2. Alleged Offer of Leniency
Appellant contends Detective Hunt illegally induced him to confess by falsely indicating he would use his influence to obtain a relatively lenient sentence for him or perhaps avoid the filing of charges altogether. Appellant bases his contention on the passage that was quoted in section C.1. and continues as follows:
“Det. Hunt:... This is your one and only opportunity before I take this case to the D.A. and say okay, here’s his side of the story, and if your side of the story is, he’s full of shit, he’s back there with a gun, he did something stupid, um, then I could take that to the D.A., and the D.A. could decide whether their gonna file charges against you or not.…
“Esequiel Perez:... So, so either or, either or not [sic] matter what I tell you (Unintell) I’m, I’m not gonna go home back to my kids right?
“Det. Hunt:... No...
“Esequiel Perez:... (Unintell) gonna go back (Unintell).…
“Det. Hunt:... No, I’m not, here’s what’s going, oh no, this is, it’s not whether or not you’re going back to your kids today, uh, I’m taking this case to the D.A., and the D.A. is gonna make a decision whether or not to file charges against you, okay? The uh, I, I’m not put any [sic] charges on you right now. I’m taking it to the D.A. first, Kern County is gonna do with you whatever Kern County is gonna do [sic] with you. But uh, this case is going to the D.A., and there may be a warrant out for your arrest, um, because it’s gonna go to the D.A. with your statement. And, that’s the question, the question is what’s your statement gonna be. Um, you um, but essentially this is your opportunity because this is... the last stop before it goes to the D.A., now, I have to confirm all this through, through my boss, I don’t make the final decision or not whether or not were [sic] gonna place charges on you.
“Um, I talked to my boss, told him that me and him were coming down here, that were [sic] gonna talk to you, um, that’s the plan in my head, is that I’m gonna take this case to the D.A. cause that’s what the D.A. asked for. But, I gotta talk to my boss, I gotta, uh, tell him what you told me, I gotta remind him of what we have in the case so far, and um, he’s gonna have to make that final decision. And then after that, like I said, this is your opportunity um, to uh, to make your, your statement um, well, in the meantime, Kern County I’m sure is gonna book you in, cause what do you got like four warrants or something like that? And uh...
“Esequiel Perez:... Misdemeanor warrants, misdemeanor.…”
Appellant interprets the foregoing passage to mean that “the District Attorney presently intended to charge appellant in connection with the shootings, but the District Attorney’s charges could be more lenient (‘different’) if appellant confessed -- rather than denied -- his role to the officers.” Appellant further contends the critical question is not whether any promises were made and broken but “whether the officers deliberately induced appellant to confess by painting a totally false picture of the criminal justice system as one where appellant could reasonably expect that confessing and explaining his actions to the officers would earn him a relatively light sentence, or even no charges at all, in connection with his role in the shootings.”
Mere advice or exhortation by police that it would be better for the accused to tell the truth does not render a subsequent confession involuntary when the advice is unaccompanied by either a threat or a promise. (People v. Higareda (1994) 24 Cal.App.4th 1399, 1409.) 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, courts can perceive nothing improper in such police conduct. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1202.)
In the instant case, Detective Hunt’s comments amounted to exhortations to tell the truth. Hunt indicated he would bring appellant’s truthful statements to the attention and consideration of the district attorney and the district attorney would decide the appropriate charges to file. Hunt later advised appellant that if he lied and the detectives took such information to the district attorney, “that’s not gonna look good.” An interrogating agent’s promise to inform the government prosecutor about a suspect’s cooperation does not render a subsequent statement involuntary. (United States v. Guerrero (9th Cir. 1988) 847 F.2d 1363, 1366.)
Appellant nevertheless contends Detective Hunt made false representations of potential leniency. However, a careful reading of the interview transcript reveals that Detective Hunt advised appellant: “I have to confirm all this through, through my boss, I don’t make the final decision or not whether or not we[’]re gonna place charges on you.” He further advised appellant he was going to take the case to the district attorney, that he was going to do so at the district attorney’s request, that he was going to give the district attorney the investigative information he had gathered so far, and that the district attorney was going to make the final decision. Detective Hunt did not promise appellant any benefit or lenient treatment but simply reminded appellant of the benefit that could come from a truthful statement. Moreover, he expressly reminded appellant that a charging decision rested with the district attorney and not with the investigating officers.
Appellant’s claim of false representations of potential leniency is not supported by the record on appeal and must be rejected.
3. Alleged Deception and Subterfuge
Appellant contends Detective Hunt’s implied representations of leniency in exchange for appellant’s cooperation were not only false but constituted a form of deception and subterfuge directed at pressuring him to admit his involvement in the charged offenses.
We have concluded that Detective Hunt did not make implied representations of leniency. Rather, he simply reminded appellant of the benefit that could come from a truthful statement. Appellant nevertheless goes on to assert that Hunt made deceptive statements about the strength of the case against him. He cites the following exchange between Hunt and appellant at their interview:
“Det. Hunt: Well, Esequiel, um, well, I appreciate you coming down to help take care of this, but, we know that your [sic] involved in this incident, and what we have to do is we have to talk about what role you played, because there’s uh, obviously we’ve been working on this case for a couple of years, and there’s some real issues that we have, and here’s some of the issues. Um, first of all, [A.C.] said that you’re, that you are the trigger man, [A.C.] says that you’re the trigger man, and I brought the tape here. You want to hear it?
“Esequiel Perez: No, uh-uh.
“Det. Hunt: No? Okay, well, and to be honest, I think it might be kind of the opposite of what he says. Um, what he says is that he’s driving along and that you uh, you know, pulled this gun out and shoot, and um, my honest opinion is I think it’s the other way around. Uh, I think that you’re driving along and you got a little kid who’s trying to make a name for himself being an idiot, does something stupid and got you wrapped up into this. Um, but there’s more than just, uh, there’s more than just [A.C.’s] word, uh, we have other things to because, um, during your travels there was a number of people who saw you, uh, this kid who got shot, he’s [sic] little brother was at the gas station there in Richgrove earlier, and uh, there was a guy who was walking with um, the guy who was walking with the one who got killed. And, you know, if the case is that uh, [A.C.] was in the back seat and did something stupid which I think is probably the case, and that’s what we need to hear from you to get this thing cleared up.
“Esequiel Perez: And what, what would that do?
“Det. Hunt: What would that do?
“Esequiel Perez: Yeah.
“Det. Hunt: Uh, that means that uh.…
“Esequiel Perez:... It’s still, it’s still, I’m still, and it was like that, like, I’m still wrapped up in something.…
“Det. Hunt: Well, there’s.…
“Esequiel Perez:... Serious, either, either I could, I could say, yeah, it was me, or I could say, it was, you know, say yeah, it was me and shit when it wasn’t.
“Det. Hunt: Well, here’s the deal.…
“Esequiel Perez:... Cause I was, you know.…”
Appellant contends Detective Hunt’s statement was deceptive in many respects because it did not accurately describe the strength of the evidence against appellant. He points out that Contreras’s recorded statement could not be used against him at trial (Bruton v. United States (1968) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d 518.) He further notes that at trial neither Pedro Flores nor V.C. were able to identify appellant. A police officer’s implication during an interview that he knew more than he did or could prove more than he did is permissible. (People v. Jones, supra, 17 Cal.4th at p. 299.) Moreover, it is permissible to confront a suspect with the confession of an accomplice (People v. Long (1970) 6 Cal.App.3d 741, 748.) In addition, it is acceptable to tell the suspect, falsely, that his accomplice has confessed. (People v. Felix (1977) 72 Cal.App.3d 879, 885.) Thus, there was nothing inappropriate in Detective Hunt telling appellant that Contreras had confessed.
As to the ability of witnesses to identify appellant, an officer’s misrepresentation linking a suspect to a crime or statements that inflate the extent of the evidence against a suspect do not necessarily render a confession involuntary. (Amaya-Ruiz v. Stewart (9th Cir. 1997) 121 F.3d 486, 495.) Here, Detective Hunt said “during your travels there was a number of people who saw you.” Those people included the little brother of “this kid who got shot” and “the guy who was walking with the one who got killed.” Appellant argues that Pedro Flores (the kid who was shot), V.C. (the little brother at the gas station), and Alejandro Salazar (the person walking with the one who was killed) did not identify appellant at trial. Although this trio was unable to identify appellant at trial, each testified that he saw the driver and passenger in the suspect vehicle at the time of the offenses and offered a general description of their features. Thus, appellant’s characterization of Hunt’s statements as “misrepresentations” is a debatable one.
Even if his statements could somehow be construed as lies, “[l]ies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1240.)
4. Alleged Psychological Coercion
Appellant contends the police officers in the instant case engaged in illicitly coercive and relentless interrogation. In appellant’s view, Detective Hunt “hammered away” at appellant, effectively telling him “what he wanted to hear through the form of his questions and conveying that the interrogation would not cease until appellant conformed his story accordingly.” Appellant argues that Hunt repeatedly accused him of being a liar and doubted the veracity of his version of events.
In questioning a suspect, an officer may ask tough questions, exchange information, summarize evidence, outline theories of events, confront the suspect with contradictory facts, and engage in debate with the suspect. Good faith confrontation is an interrogation technique entailing no apparent constitutional vice. (People v. Andersen (1980) 101 Cal.App.3d 563, 576.) Detective Hunt’s confrontation of the appellant concerning evidence in the case against him was within the bounds of proper interrogation.
Appellant nevertheless contends he was only 22 years old at the time of the interview, only had an 11th grade education, had a minor juvenile record, and was relatively unsophisticated in the ways of the law. These are factors to consider in determining the voluntariness of a confession. (People v. Boyette (2002) 29 Cal.4th 381, 412.) As respondent points out, appellant had significant life experiences despite his relative youth. He was a gang member who had one child of his own and was stepfather to another child. He was working on reestablishing a relationship with the mother of his child. Appellant was employed in the construction field and did staining, painting, and “a lot of things.” Appellant said he even applied his trade skills out-of-county, in Santa Barbara.
Appellant was not handcuffed during his interview, was offered a drink of water, and was supplied with correct Miranda advisements. The interview was not unduly long and nothing in the transcription suggests that prolonged questioning led to appellant’s inculpatory statements. Rather, appellant acknowledged that the crimes had been “haunting” him, he knew he could not run away from them, he realized they were serious, and he lied to the detectives because of his concern for his children.
5. Prejudice
Appellant contends his confession to the detectives was “unquestionably the centerpiece of the prosecution case against him,” this was an otherwise close case, and it was error to admit the confession into evidence. Assuming arguendo evidentiary error, admission of an involuntary statement at trial is subject to harmless error review. (Arizona v. Fulminante (1991) 499 U.S. 279, 310.) In the instant case, K-Mart employee, Edith Mata, identified appellant as the person who bought ammunition for a.22-caliber rifle on the date of the shootings, the type of weapon used in the crimes. J.B. identified a distinctive Honda used in the Earlimart shooting of Flores’s residence. Flores described the two occupants of the Honda. Both J.B. and Flores described the gun used in the shootings. Alejandro Salazar, minor V.C., and Castro’s cousin, Sandra Vigil, tied the Honda to similar crimes with a similar gun that occurred less than one-half hour later in the nearby town of Richgrove. Salazar and Castro’s brother tied two similarly-described individuals to those later offenses.
At trial, Salazar identified appellant as the driver of the Honda. Police recovered the Honda the same day as the shootings. Officers found the vehicle in the possession of Trinidad Garcia and minor A.C., appellant’s companion in the Honda the previous day. Officers recovered a.22-caliber rifle from the Honda and criminalist McCombs testified it was most likely the one involved in the crimes. Even if we assume a Miranda violation or an involuntary statement, admission of the appellant’s confession was harmless beyond a reasonable doubt in light of the foregoing evidence.
6. Conclusion as to the Suppression Motion
After considering the totality of the circumstances in this case, we conclude the prosecution bore its burden of proving, by a preponderance of the evidence, that the statements made by appellant in the April 5, 2007, interview were voluntary. Accordingly, there was no due process violation in introducing those statements at trial. (See People v. Williams, supra, 16 Cal.4th at p. 660.)
D. Alleged Ineffective Assistance of Counsel
Appellant lastly contends that trial counsel was ineffective by failing to specifically move to suppress appellant’s confession on all of the grounds cited on appeal.
These grounds include: (1) appellant’s claim of efforts to invoke his right to silence; (2) Detective Hunt’s failure to seek clarification of appellant’s invocations of the right to remain silent; (3) Detective Hunt’s alleged deceptions; (4) appellant’s youth and lack of sophistication; and (5) the officers’ references to sentencing leniency.
To prevail on an ineffective assistance claim, appellant bears the burden of showing both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) “In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
In the instant case, counsel’s tactics and strategic reasons do not appear on the face of the record. Although appellant contends there could be no reasonable tactical basis for trial counsel’s choices, it is reasonably likely that counsel narrowed his grounds to those he thought most strongly supportive of his motion to suppress. Since there was a conceivable reason for counsel’s actions, we will reject appellant’s assertion of ineffective assistance of trial counsel.
II. DID THE DRIVE-BY SHOOTING SPECIAL CIRCUMSTANCE (§ 190.2, SUBD. (A)(21)) VIOLATE DUE PROCESS AND AMOUNT TO CRUEL AND/OR UNUSUAL PUNISHMENT?
Appellant contends the “drive-by shooting” special circumstance (§ 190.2, subd. (a)(21)) violates dues process and amounts to cruel and/or unusual punishment. Appellant specifically contends the special circumstance is unconstitutional because it effectively duplicates the crime of drive-by shooting first degree murder (§ 189).
“Prescribing punishment for various forms of homicide is distinctly within the police power of the states, as is the definition of the elements of crimes and the delineation of their punishments.” (People v. Malfavon (2002) 102 Cal.App.4th 727, 738.) Section 189 establishes three categories of first degree murder: (1) various types of premeditated killings; (2) felony murders; and (3) intentional murder by shooting out of a vehicle with intent to kill. Section 190 specifies three possible penalties for first degree murder: death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life.
Section 190.2, in turn, reduces from three to two the sentencing options by providing in pertinent part:
“(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: [¶]... [¶]
“(21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, ‘motor vehicle’ means any vehicle as defined in Section 415 of the Vehicle Code.”
Appellant argues that the special circumstance established by section 190.2, subdivision (a)(21) is unconstitutional both on its face and as applied here, primarily that it is overbroad and also that it violates the Eighth Amendment of the United States Constitution. The question of the constitutionality of section 190.2, subdivision (a)(21) was resolved in People v. Rodriguez (1998) 66 Cal.App.4th 157, 165 review denied November 24, 1998 (Rodriguez). In Rodriguez, Division Two of the Second Appellate District held among other things: (1) drive-by murders have become a widespread threat to public safety and a statutory provision directed at deterring such conduct is fully within the power of the Legislature and voters to adopt; (2) sections 189 and 190.2, subdivision (a)(21) require that the shooting out of a vehicle be both intentionally at another person and with the intent to inflict death; and (3) since a sentence of death for intentionally shooting a victim with intent to kill would not violate the Eighth Amendment, it follows that a sentence of life imprisonment without the possibility of parole (LWOP) cannot violate the Eighth Amendment. After a thorough analysis of the issue, the court in Rodriguez found that the special circumstance was not unconstitutional on its face. (Id. at pp. 161-162, 164, 166-167, 172-173.)
Appellant acknowledges the contrary authority of Rodriguez but maintains the earlier case was incorrectly decided. We disagree. The meticulously reasoned analysis of Rodriguez clearly supports the constitutionality of section 190.2, subdivision (a)(21).
Appellant also challenges section 190.2, subdivision (a)(21) “as applied” because the murder was elevated to a first degree murder under section 189 by operation of the same facts which establish the special circumstance, rather than a finding of premeditation. The U.S. Supreme Court has held the fact that an aggravating circumstance duplicates one of the elements of the charged crime does not make the sentence constitutionally infirm. (Lowenfield v. Phelps (1988) 484 U.S. 231, 246, rehearing denied 485 U.S. 944.) The California Supreme Court has similarly held that the lying-in-wait special circumstances is not constitutionally infirm simply because it duplicates an element of first degree murder. (People v. Edelbacher (1989) 47 Cal.3d 983, 1023, fn. 12.)
In Harmelin v. Michigan (1991) 501 U.S. 957, the Supreme Court upheld a sentence of life without possibility of parole for possession of 672 grams of cocaine, a serious crime, but less heinous than shooting a victim with the intent to kill. In view of the Harmelin decision, the California Supreme Court has said that “the length of a sentence of imprisonment is largely a matter of legislative prerogative, and cannot violate the Eighth Amendment in any but the rarest cases.” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1193.)
In view of the foregoing authorities, the application of section 190.2, subdivision (a)(21) in this case is not unconstitutional under the Eighth Amendment.
III. DID THE TRIAL COURT ERRONEOUSLY FAIL TO IMPOSE A RESTITUTION FINE PAYABLE TO THE CALIFORNIA VICTIM COMPENSATION AND GOVERNMENT CLAIMS BOARD ON A JOINT AND SEVERAL BASIS?
Appellant contends and respondent concedes the judgment should be modified to indicate that restitution fines be imposed in a joint and several manner.
Respondent observes:
“The court ordered appellant to pay a $2862.56 restitution fine pursuant to section 1202.4, subdivision (f). (2CT 375) Appellant contends that the trial court’s order was erroneous in that it required him to pay direct victim restitution in the full amount owed to Alejandro Salazar, rather than requiring that the restitution be imposed in a joint and several manner with [minor A.C.]. Appellant concedes that the amount imposed is correct; however, he claims that, when the orders on the two cases are considered in combination, the [California Victim Compensation and Government Claims Board] will receive unjust enrichment because the orders were not for ‘joint and several’ restitution. (AOB 75-78) Although respondent notes that the trial court implicitly imposed restitution in a joint and several manner, respondent does not object to modification of the judgment to expressly so provide.”
The trial court is directed to modify the judgment of sentence to expressly impose restitution in a joint and several manner. The trial court is further directed to amend the abstract of judgment accordingly and then transmit certified copies of the amended abstract to all appropriate parties and entities.
IV. DID THE ABSTRACT OF JUDGMENT CONTAIN A CLERICAL ERROR WITH RESPECT TO THE FIREARM ENHANCEMENT ATTACHED TO COUNT IV?
Appellant contends and respondent concedes the abstract of judgment contains a clerical error with respect to count 4.
Respondent explains:
“On count 4, the jury found true that appellant had personally used a firearm in conjunction with his attempted murder of Pedro Flores pursuant to section 12022.53, subdivision (b). (2CT 326, 331) Although the court imposed the proper 10-year term for this enhancement at sentencing (4RT 710) and the abstract of judgment properly indicates the 10-year sentence (2CT 378), the abstract improperly indicates that appellant was convicted of section 12022.53, subdivision (d), a subdivision which punishes different conduct and carries a different sentence. (CT 378)”
The trial court is directed to correct the abstract of judgment to reflect the imposition of a 10-year term under section 12022.53, subdivision (b) with respect to count 4. The trial court is further directed to transmit certified copies of the amended abstract to all appropriate parties and entities.
DISPOSITION
The judgment of conviction is affirmed. The trial court is directed to modify the judgment of sentence to expressly impose restitution in a joint and several manner and amend the abstract of judgment accordingly. The trial court is further directed to correct the abstract of judgment to reflect the imposition of a 10-year term under section 12022.53, subdivision (b) with respect to count 4. The trial court shall transmit certified copies of the amended abstract to all appropriate parties and entities.
WE CONCUR: Vartabedian, Acting P.J. Gomes, J.