Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR34065
Reardon, J.
Following a jury trial and the denial of a motion for new trial, appellant Andrew Dale Powers was sentenced to life in prison without possibility of parole for the following offenses: first degree murder; burglary; first degree robbery; plus, as to the murder count, the special circumstances of burglary, robbery, and torture, and as to counts 1 and 2, a criminal street gang enhancement. This appeal takes aim at the admission at trial of statements appellant made to interrogating police officers, charging that they were obtained without a valid waiver of his rights, and notwithstanding his invocation of his Fifth Amendment privilege. As well, he protests that the prosecutor committed misconduct by playing for the jury an unredacted taped conversation which had been redacted, and challenges the denial of his motion for new trial. We affirm.
I. FACTUAL BACKGROUND
A. The Victim; Witnesses at the Apartment
Decedent Darin James Bond was a small-scale marijuana dealer, selling small amounts from his apartment that he shared with Dennis Diaz in Windsor. There were no guns at the apartment, but Diaz had a sword in a sheath that he kept by his bed.
Bond was cautious; no stranger ever came to the apartment to purchase marijuana unless in the company of a mutual friend. Bond kept the marijuana in a safe. If someone did not pay at the time of receiving the marijuana, Bond maintained a running tab of what was owed. He wore a silver Raiders ring with a black stone, and a silver watch.
On the evening of December 18, 2003, Kimberly Saleh, a friend of Bond, John Kaehler, a friend of both roommates, and Josh Freeland were at the Windsor apartment, along with Bond and Diaz. Saleh and Freeland were frequent visitors to Bond’s apartment.
Saleh left around 10:30 p.m. She told Bond she would come over the next day around 10:30 a.m. Kaehler spent the night. Around 11:00 p.m. or midnight, Freeland and someone else came to the door. Diaz yelled to Freeland to come back tomorrow.
Diaz left for work around 7:00 a.m. on December 19, 2003. After Diaz left, Freeland came over with another person, looking to buy “an 8th” of marijuana. They were dressed in black with black gloves. Bond answered the door; he was upset that they came by so early and woke him up. After Bond quoted a price the two men left, saying they forgot the money in their truck, but then took off. Kaehler left the apartment around 7:30 or 8:00 a.m. He returned to Bond’s apartment between 10:00 and 10:30 a.m., knocked on the door but there was no response. The door to the apartment was not tight against the jamb. Kaehler went back around 11:00 or 11:45 a.m., knocked again, but there was still no answer.
B. Saleh Discovers Bond
Saleh called Bond several times starting at 10:30 a.m., but no one answered. At midday she came by the apartment, knocked, opened the door—it was unlocked—and discovered his body. Bond’s body was on the floor, covered with a blanket. Blood was on the walls; the apartment was “completely trashed.”
C. The Crime Scene and Body
Police arrived around 12:40 p.m. The apartment was in “general disarray.” Furniture had been overturned. Clothes from the closet were strewn on the floor. The top of the toilet tank had been removed and set aside. It appeared as though the place had been searched.
On top of a dresser was a locked safe. The key was located, the safe unlocked; it contained approximately 55 grams of marijuana in Ziploc bags. There was a brown sheath in the corner, but no sword, knife or machete that it could have encased. On the coffee table the officers found marijuana residue, Zigzag papers, and a glass pipe.
Blood splatter was found on the walls, ceiling, and barbells; blood was also smeared on the wall. A baseball bat was on the carpet just inches above Bond’s head, and a Farberware knife handle was next to his body; the blade was missing.
Bond’s feet were tied with a rope, and several of his teeth were knocked out. There was an “[e]xtraordinary amount of injury [to] the body,” including five stab wounds to Bond’s torso. A piece of wood was lodged in Bond’s head above the hairline. Numerous wood splinters and shards were located at the scene. A trigger mechanism broken from the stock of a Marlin firearm, as well as metallic pieces from the weapon, were also found.
The forensic pathologist testified that Bond had both blunt force injuries—contusions, abrasions, and lacerations—and sharp force injuries—single-edge stab wounds and incisions—distributed over a large portion of his face and body. He also had chop wounds, inflicted by a heavy sharp object such as a machete or axe. A chop wound will cause a clean division of tissue but can also fracture bone underneath. The cause of death was blunt force head injuries. The killing blow was one crushing blow to the skull, imposed after the other injuries had been inflicted.
The pathologist concluded that either someone handled two weapons at the same time, or there was more than one assailant. This opinion was based on the fact that all the injuries were delivered in the space of a few minutes, over many different areas of the body with different types of force involved, and an overlap between two kinds of force; at least a knife and a blunt force object was involved, if not two or three different blunt force objects.
D. Actions of Appellant and Freeland
Freeland lived with his mother and stepfather, about a 15-minute walk from Bond’s apartment. Several days before the murder, Saleh was walking with Lucas Valtenbergs and Freeman after leaving Bond’s apartment. Freeland told her that he had shown nothing but love for Bond, but “all he had done is shit on him.” Valtenbergs mentioned that Freeman said he felt left out or not accepted by Bond.
Freeland’s mother, Christine Scarioni, saw Freeland and appellant at her home on December 18, 2003, at around 9:00 p.m. Ferlun Scarioni saw his stepson and appellant at the house the next morning. They left around 8:00 or 9:00 a.m. Mrs. Scarioni saw appellant and another person who she assumed was her son get into a white truck and leave.
At around 11:00 a.m. Freeland came into his mother’s room asking for cigarettes. It looked like he just got out of the shower. She brought cigarettes to his room; appellant was there sitting in a chair.
Freeland and appellant left. Appellant was wearing Freeland’s black shirt and beige Dickies. Mrs. Scarioni went into Freeland’s bathroom. She picked up two T-shirts that did not belong to her son, some socks, and a pair of pants. There was a pair of shoes in the bathtub that were not her son’s.
The police arrived at the Scarioni residence around 3:50 p.m. In the kitchen the police found a large Farberware kitchen knife, which matched the knife handle found at the scene. In the bathroom was a wet pair of black Ben Davies pants on the vanity, several pairs of dirty white socks, and a white T-shirt with a brown stain on the floor, and a pair of black and red Converse shoes soaking in the bathtub. Appellant admitted that the Ben Davies pants were his. A ring that belonged to Bond was inside the pants pocket.
In Freeland’s room the word “Norte” was written on the dresser. Mrs. Scarioni said that the writing had been there less than a month. The police also found a pair of wet black leather gloves; there was a trace of blood on the back middle finger of the left glove. The DNA profile indicated Bond’s blood was a major contributor and Freeland a possible minor contributor. A shirt in the bedroom had appellant’s blood on it.
A right-hand motorcycle glove cover was located at the Scarioni residence. What appeared as the matching left-hand glove cover was on the floorboard of the pickup truck belonging to appellant’s grandfather, which appellant had borrowed. The police also searched appellant’s house. Norteno graffiti appeared on a mirror.
E. Arrests
Late in the evening on December 19, 2003, Deputy Gelhaus arrested appellant on an unrelated matter. There was a silver metal watch in his jacket pocket. The watch appeared similar to the one Bond wore. At the time of arrest he had a scratch from his right earlobe across his cheek, and scratches on his arm. Appellant had fresh dots on his face—one on one side, four on the other.
Appellant’s grandfather testified that appellant’s property was released to him, including a chrome type watch which was his. Appellant had borrowed it from him.
Mrs. Scarioni identified appellant as the person who was with Freeland earlier that day. She identified the clothing appellant was wearing as belonging to her son. The initials “J.F.” were inside the waistband of the pants appellant was wearing.
Freeland was arrested the next day. He had a small cut on his left hand, and scratches on his legs, chin, and ear.
F. Gang Experts
Anthony Souza was a gang officer for the California Highway Patrol before he retired. Based on their tattoos and “the graffiti,” he believed appellant and Freeland were active members of the Nortenos, a criminal street gang as defined by Penal Code section 186.22.
Souza explained that “[r]espect is what they’re all about.” Thus, refusing to sell marijuana to a gang member on credit could be viewed as disrespectful to the member and his gang. Disrespect brings retaliation. A gang member who tolerates disrespect is considered weak. He would have to “make himself look good” or would be beaten up or worse. An onlooker who allowed another member to assault or rob without participating would also be regarded as weak.
A violent murder helps the “doer” by elevating his status within the gang. It also promotes the gang by instilling fear in the public.
Gangs also do home invasions of drug dealers’ homes, taking guns, money, and drugs without fear that the victim might call the police. Gang members might use torture to make the victim divulge where the “stuff” is.
Souza expressed his opinion that “this was a gang case,” based on a number of factors: the perpetrators were gang members, there was torture, Freeland felt he had been “shit on,” plus it was a home invasion robbery of a drug dealer.
Detective George Collord of the Santa Rosa Police Department worked in the gang investigations unit. He testified that residential robberies are one of the “main stays” of the Norteno gang. Gang members learn how to extract information regarding the location of drugs, guns, and money and are taught how to commit a home invasion residential robbery. A gang member who just stands by and does not take an active part in a robbery will not be looked upon favorably.
It was Collord’s opinion that appellant’s four-dot tattoo announced that he was a Norteno, and he earned the right to have the tattoo through a “major amount of work.” Further, Bond’s murder was consistent with a residential robbery carried out by the Nortenos: Bond was a drug dealer, gang members committed the robbery and murder, and force was applied to elicit information. However, nothing about the mechanics of the crime itself made it a gang crime.
Collord indicated that there is a strict rule that a gang member in custody does not discuss his crime other than to say the code section of the charge. It is a “household polic[y]” not to brag about the crime because “that’s a good way to end up with evidence against you.” It would be unusual for appellant to tell people in jail that he killed someone.
Gang-related drawings were found in appellant’s cell while he was in custody and on mail that was searched.
G. Custodial Interview
Detective Vance Eaton interviewed appellant on December 20, 2003. A CD of the interview was played for the jury. After receiving advisements pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), Eaton said he wanted to ask appellant about what happened in Windsor with him and “Josh.” Appellant said he had not been in Windsor that day and had done nothing. He had been “walking everywhere” in Santa Rosa. He called his grandmother from Santa Rosa and told her he left his grandfather’s truck in town because he ran out of gas. Appellant said he did not know anyone named “Josh.”
When asked if he was high “right now,” appellant replied “No.” He was “coming down” off crank.
Eaton told appellant there had been a homicide that day. Appellant asserted: “Alls I have to say is I didn’t do anything.” Eaton showed appellant a photograph of Freeland. Appellant said he never saw him before. “I do not hang out with white people like that.... ‘Cause I hang out with other Mexicans.” He insisted that the clothes he was wearing were his. Appellant claimed Norteno. He said the tattoos on his face made him look “like a little gang-banger,” which made him “the perfect person to blame for it.”
H. Recorded Statements to Family Members and Freeland
After being charged with murder, appellant talked with his mother and grandfather. The conversations were recorded and played for the jury. Appellant told his mother he was charged with murder and was “probably gonna do a good twenty-five to thirty years.” His mother indicated the facts might prove differently. Appellant replied: “Nahh, I do know. I....” Regarding Freeland, appellant said: “Yeah and he fuckin’ snitched on me and said it was all me.” And further: “They already had him before they got me. And that’s why they knew it was me ‘cause they, he fuckin’, he fuckin’ said that I did it.” Appellant also said he would have taken off had he been released. Appellant told his grandfather he was in on a murder charge, and “[H]e’s tryin’ to put everything on me.” Further, “I didn’t even go out that, that day thinkin’ anything would happen.... It just did. And I have to deal with it. Possibly, I may never see the streets again.”
A recording of appellant’s January 15, 2004 jail conversation with Freeland was also played to the jury. Appellant warned Freeland that they were put next to one another in hopes they would say something, and their cells might be bugged. Freeland told him that his mother identified appellant’s clothing for the police. Appellant also stated: “But someone is snitching, all right? I’ll tell you that right now because the cops told, sat me down and told me everything that happened. Everything. And that’s why I was like, ‘What the fuck. How does he know this shit?’ ” Appellant said the police told him Freeland was trying to “put it all on” him; Freeland said the police were saying the same thing to him.
Additionally, appellant said that they went there “for some weed” and “to buy dank from him.... The most I’m guilty for is buying marijuana.” He didn’t tell the police about buying weed “ ‘cause I was afraid to.” After they referred to what the papers were reporting about the crime, appellant commented: “Whoever really did do that is a straight savage though.... Alls I know is I didn’t do shit man. I went there to buy some dank weed.”
Appellant also mentioned that the police showed him a ring they found in Freeland’s room that belonged to Bond, and asked where Freeland got it. Freeland reported that appellant’s shoes did not have blood on them. Appellant responded: “Cause we didn’t do nothing to get blood on ‘em.” About the scratches on his arms, appellant mentioned they “were from a cat, ah. My mom’s cat. I picked it up and threw it right?”
Additionally, appellant expressed concern that a jury would think he was “a fuckin’ criminal” because of his tattoos and “this big ass record of violent shit.”
Appellant protested: “Naw, I’m innocent even if I, if they start to say I am guilty, fuck that. For a 187 you need a witness and murder weapon.” Freeland reported that the police said “the knife handle... matches a... kitchen set to my house.” Appellant asked, “Was there a [ ] knife missing?” When Freeland said there was, appellant responded: “[T]hat doesn’t look good.” Freeland noted that “[t]hey didn’t find no blade.” Appellant grunted, “Damn!”
Freeland also mentioned that the police said they found gloves with blood on them. Appellant reacted: “What?! [¶]... [¶] That’s impossible. Bloody gloves at the house, um, no.” There were no witnesses to place them at the scene because they did not kill Bond. They were there that morning and bought some weed. Everything was fine when they were there.
I. Appellant’s Conversation with Carl Trumble
Carl Trumble was in custody with appellant between December 19 and December 31, 2003, on convictions for possession of stolen property, felony transportation of methamphetamine, and misdemeanor driving under the influence. In less than two weeks he was to enter an inpatient program. At the time of trial Trumble was in custody for violation of probation, and was facing prison. In exchange for his trial testimony, the district attorney offered Trumble a six-month county jail term and to keep him out of prison. Trumble stated he would not have testified without the deal because he had misgivings about his safety in prison after testifying “against a Norteno.”
Appellant confided to Trumble that he was being held on murder charges, and that he and a younger buddy robbed and killed a pot dealer in Windsor. Appellant said they “pummel[ed]” the victim and hacked, hit or poked at his eyes, using a machete and gun butt. He left with “two-eighths” of weed and a little bit of jewelry.
Trumble told a correctional officer at the facility that appellant bragged that he and a friend beat someone up with a shotgun, stabbed his eyes and body with a machete, and “ended up killing” him. Appellant said he took the shotgun from the victim. Trumble was disgusted and upset. Trumble did not ask for anything in return for the information.
On December 31, 2003, Trumble related his conversation with appellant to Detective Eaton. Trumble had less than two weeks before he was to enter an inpatient program. The detective did not make any promises or offer any deals in exchange for the information. Trumble told Eaton that appellant stated that the victim had pulled a gun or shotgun on him and his friend, but they managed to get the gun away and beat him with it, and at one point poked the victim in the eyes with a machete. Eaton asked Trumble if he had read newspaper accounts about the case. Trumble first said he had not. Throughout the conversation he referenced that he read about the Windsor murder and also mentioned an article that reported the age of one the suspects as seventeen. However, he had not read the paper on the day of the interview. Newspaper articles reporting on the murder, taken into evidence, did not mention a machete, poking an eye, using a gun butt, or theft of jewelry.
Defense counsel read prior testimony on this point: “Detective Eaton asked you: ‘Have you been reading the newspaper about this case?’ You immediately answer him: ‘No, I haven’t.’ ”
J. Appellant’s Trial Testimony
Appellant lived in Healdsburg with his grandparents and mother. He left school when he was 14 years old. He was unemployed, and would borrow or sell drugs to purchase methamphetamine.
Appellant belonged to a Norteno street gang since he was about 11 years old. It was the “in crowd at that time.” He considered himself part Hispanic. As a gang member he got into fights, did drugs, and got drunk. Other than fighting, he did not “get into it” with an enemy gang. He did not deal with bosses, take orders or receive training. Around December 18 and 19, 2003, appellant made the dots under his left eye “bigger” because he wanted to be recognized as a gang member.
Appellant testified that he first met Freeland on December 18, 2003, at his friend Gabe’s house in Windsor, although he had seen him around a few times. They went to Freeland’s house, smoked methamphetamine and hung out. Later, Freeland wanted to buy marijuana. They went to Bond’s apartment in appellant’s truck. This was his first visit to the apartment. Freeland mentioned that Bond might not sell him marijuana because he owed $10. While appellant waited in the truck, Freeland knocked on the window but was not let in. They returned to Freeland’s house.
The two went back to Bond’s apartment as the sun was coming up. Freeland was wearing motorcycle-type gloves; appellant was not wearing gloves. Bond told Freeland to stop waking them up. This was the first time appellant met Bond. Bond said Freeland had to pay what he owed before he bought more. While waiting, appellant picked up a baseball bat leaning against the door. Appellant saw a sword in its sheath leaning against the couch; he did not touch it.
On cross-examination appellant stated that Freeland called before the second visit and Bond told him to come over. It was during the first visit that Bond yelled at Freeland for being there so early.
They returned to Freeland’s house. His clothes were wet from the rain, so he borrowed clothes from Freeland, left his there and asked Freeland to put them in the dryer for him. Appellant left and went to his friend Israel’s house. Around 10:00 or 11:00 a.m., he returned for his clothes. Freeland told him to come upstairs. There was a chair in Freeland’s room with “a bunch of stuff on it,” including gloves. Freeland was “real nervous” and said he “fucked up,” confiding that he just participated in the beating death of Darin Bond. Freeland said that after appellant left, people went to Bond’s apartment “to trade a gun for some weed.” Bond took the gun and told Freeland he wanted the money “or you’re not getting this back.” They fought and “beat the shit out of him.” Freeland believed Bond might be dead.
Freeland said he needed to get rid of his clothes because there was blood on them. Appellant saw blood on a jacket and shirt. Freeland also needed money for gas and wanted a ride to San Francisco. Freeland showered.
Appellant agreed to help Freeland because they belonged to the same gang. He put Freeland’s clothes in a garbage bag and threw it over a fence near the railroad tracks. There was a trash can in Freeland’s room with a knife, papers, and some socks. He dumped the can in a bin by the house.
Freeland gave appellant a watch, asking him to trade it for dope and maybe money for gas to get to San Francisco. Appellant put it in his pocket; he assumed it was Freeland’s. Appellant did not recall receiving a ring or putting it in his pants, and did not know how it got there. Appellant identified the pants that he left at Freeland’s house.
After appellant dumped the clothing he drove to Healdsburg. He was supposed to meet Freeland again, but appellant decided not to. The truck was low on gas so he parked in a Safeway lot and bussed to Santa Rosa to make an “SOR appointment.” He called his grandparents to let them know where the truck was and said he probably would not be home that night.
Appellant lied to Detective Eaton because he and Freeland agreed that if questioned, they would “deny knowing each other, deny being at his house.” He did not want to be involved, and did not want to be a snitch or rat.
Appellant acknowledged speaking with Trumble about the crime when he was in jail (see below), but did not admit that he killed anyone or used a gun or machete. Trumble had seen a newspaper article and asked appellant about it. Appellant said he was “kind of involved in it, but didn’t actually do it.”
Appellant explained that he got scratched on his arms when he picked up his mother’s cat. The glove in his grandfather’s car was not his.
II. DISCUSSION
A. Waiver of Miranda Rights
Appellant charges that the trial court should have granted his motion to exclude statements he made to the police after advised of his rights under Miranda, supra, 384 U.S. 436. He maintains that, under the totality of the circumstances, he did not impliedly waive his rights and therefore his statements are inadmissible. In considering a claim that statements are inadmissible because they were obtained in violation of Miranda, we accept the trial court’s resolution of disputed facts and inferences, as well as its evaluation of credibility, where supported by substantial evidence. (People v. Kelly (1990) 51 Cal.3d 931, 947.) We independently review uncontradicted evidence to determine whether the challenged statements were obtained illegally. (People v. Sims (1993) 5 Cal.4th 405, 440-441, overruled on another point in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032.)
1. Hearing
At the hearing on appellant’s in limine motion concerning the admissibility issue, a tape of Detective Eaton’s custodial interrogation was played for the court and Detective Eaton testified. He stated that prior to the interview he did not mistreat appellant, or make any promises or threats. He explained that before entering the interview room, he stopped to check appellant’s demeanor. Appellant was talking to himself. Eaton noted his agitation. He was moving excitedly. Eaton was concerned that appellant might be under the influence of a controlled substance. However, there was nothing in appellant’s demeanor or otherwise that led Eaton to believe he was not an involved participant in the discussion.
Eaton asked appellant if he understood his rights. He replied in the affirmative. Next, he inquired if appellant was willing to answer some questions. Appellant replied, “tell me what they are.” Eaton explained that he did not understand this response as putting a condition on whether appellant was willing to answer questions. Rather, appellant “made it clear he wanted to know what I wanted to ask of him so that makes the imperative on me to ask the first question.” Eaton believed appellant expressed “not only impatience, but an urgency to move forward with the interview.” At that point Eaton “felt that he was lucid, coherent and well in command of his faculties, so I jumped into the interview.” The following exchange took place after the admonitions and acknowledgments:
“VE Okay. So... you understand those rights that I just explained to you.
“AP Yes.
“VE Okay. Are you willin’ to answer some questions?
“AP On, tell me what they are.
“VE Okay. Well... I don’t want talk to you about the, the, the chain. Okay? ANDREW... you need to hear me out. [¶]... [¶]...
“AP All right, I’m sorry. Sorry.
“VE All right.
“AP I’m just crank, I mean, I mean...
“VE Okay.
“AP... forget it, man.
“VE Why don’t you take a few deep breaths while I talk...
“AP Oh, I’m breathin’ all right.
“VE... and then, and then, and then I’ll be quiet so you can talk. All right?
“AP All right.
“VE Okay. But I need to know that you’re understanding and listening.
“AP I am.
“VE Okay. I wanna talk to you about what happened up in Windsor today. Okay?
“AP I wasn’t in Windsor today.
“VE And I wanna find out from you, m’kay, what happened...
“AP I don’t know what you’re...
“VE...with you...
“AP... talking about.
“VE... with you and JOSH.
“AP I don’t know nobody named JOSH.
“VE ‘Kay. Well...
“AP What, what the fuck, ma... man, this is...
“VE Okay. You’re, uh...
“AP... oh man, this is weird, man, I don’t like this, man, I’m bein’ fuckin’ set up by some tweaked out somebody, some broad, I don’t know. Somebody did somethin’ wrong and they’re, I know, man, you know what I’m talkin’ about. These motherfuckers do this shit. And, uh...
“VE Hey, ANDREW.
“AP... Goddamn, I don’t wanna go through this, man. Take me to jury trial, I didn’t fuckin’ do anything. I don’t even want hear it, man...
“VE Hey, ANDREW.
“AP... I, I don’t wanna hear it.
“VE Would you entertain the possibility,...
“AP Seriously, I don’t wanna hear it, man...
“VE... that you...
“AP... you’re gonna stress me out, man.
“VE... that, that you did, that you did nothing wrong? Okay?
“AP Yes, man...
“VE And that you’re in the wrong place at the wrong time? Would you entertain that possibility?
“AP Nope. No, I, no, because I haven’t fuckin’ (inaudible...)...
“VE So, if you haven’t been in Windsor today, then you won’t have a problem tellin’ me where you were today so we can verify that.
“AP I told you where I was, man, I was in Santa Rosa, man.
“VE ‘Kay. Where were you at in Santa Rosa?
“AP Walking everywhere, man, I’ve seen you, man, I knew somethin’ weird was goin’ on, I just had a feeling all day....”
The trial court pointed out that appellant never stopped the course of the questioning, but rather kept “going into it.” The court concluded that “at the very least there is implied consent,” and further noted that appellant knew how to express himself when he wanted to, because later he asked for a lawyer and the questioning stopped.
2. Governing Law
For a defendant’s statements to be admissible against him, he must have knowingly and intelligently waived his rights to remain silent, and to the assistance and presence of counsel. (Miranda, supra, 384 U.S. at p. 475.) However, a suspect who wishes to waive his Miranda rights and submit to interrogation by law enforcement officers need not do so with any particular words or phrases. (People v. Cruz (2008) 44 Cal.4th 636, 667.) “A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision.” (Ibid.) Indeed, a valid waiver of Miranda rights may be either express or implied. (People v. Whitson (1998) 17 Cal.4th 229, 246-247 [discussing relevant federal and state high court authorities].) Moreover, an accused’s “expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights. [Citations.] In contrast, an unambiguous request for counsel or refusal to talk bars further questioning.” (People v. Cruz, supra, 44 Cal.4th at pp. 667-668.) Finally, while there is a threshold presumption against finding a Miranda rights waiver, ultimately the question is whether, under the totality of circumstances surrounding the interrogation, the waiver was knowing and intelligent. (Id. at p. 668.)
3. Analysis
The totality of circumstances of Detective Eaton’s interrogation of appellant supports the trial court’s finding that appellant knowingly and intelligently made an implied waiver of his Miranda rights. First, although Eaton expressed some suspicion that appellant might have been under the influence of drugs, he testified that appellant was coherent and an involved participant in the conversation. Our review of the record supports the conclusion that appellant was lucid and coherent in that he was able to follow the questioning in a responsive manner. Additionally, Eaton took off appellant’s handcuffs at the beginning of the interview and left them off throughout.
Second, when Eaton asked appellant if he was willing to answer some questions, appellant said “tell me what they are.” Eaton reasonably interpreted appellant’s response as impliedly waiving his Miranda rights, and expressing a willingness to go forward. Thus, he began the interview.
The tone of the interview itself was cordial, with no threats or promises or heavy-handedness. Moreover, the record is devoid of any suggestion that Detective Eaton resorted to physical or psychological pressure to prompt responses from appellant. In short, he was not worn down by improper interrogation techniques, trickery, etc. (People v. Cruz, supra, 44 Cal.4th at p. 669.)
As well, there is nothing in the record suggesting that appellant did not understand his legal rights. After Eaton explained the Miranda rights to appellant, he asked if appellant understood those rights. Appellant said he did. Eaton also told appellant he needed to know that appellant was understanding and listening. Again, appellant said he was. And, as the trial court noted, appellant showed he understood and knew how to exert his rights later on in the interview when he said he “wanna lawyer, man.” Eaton shut down the interview at that point.
Appellant highlights the three times he said he did not “wanna hear it.” These statements, occurring very close in time and interspersed with nothing threatening by Detective Eaton, were made after appellant began answering the questions he gave Eaton permission to lay out. Thereafter, he continued to willingly participate in the interview. Under the totality of the circumstances, we agree with the trial court that appellant did not indicate an unwillingness to waive his Miranda rights.
B. No Halt to Interrogation
Appellant contends he summoned his Miranda right to remain silent during the following exchange that occurred shortly after Eaton said he wanted to talk about what happened in Windsor:
Some of this is repetitious of the interview segment quoted in part A., ante, but we repeat it for clarity.
“AP... Oh, man, this is weird, man. I don’t like this, man, I’m bein’ fuckin’ set up by some tweaked out somebody, some broad, I don’t know. Somebody did somethin’ wrong and they’re, I know, man, you know what I’m talkin’ about. These motherfuckers do this shit. And, uh...
“VE Hey, ANDREW.
“AP... Goddamn, I don’t wanna go through this, man. Take me to jury trial, I didn’t fuckin’ do anything. I don’t even wanna hear it, man...
“VE Hey, ANDREW.
“AP... I, I don’t wanna hear it.
“VE Would you entertain the possibility...
“AP Seriously, I don’t wanna hear it, man...
“VE... That you...
“AP... you’re gonna stress me out, man.
“VE... that, that you did, that you did nothing wrong? Okay?
“AP Yes, man...
“VE And that you’re in the wrong place at the wrong time? Would you entertain that possibility?
“AP Nope. No, I, no, because I haven’t fuckin’ (inaudible...)...
“VE So, if, if you haven’t been in Windsor today, then you won’t have a problem tellin’ me where you were today so we can verify that.
“AP I told you where I was, man, I was in Santa Rosa, man.”
Contrary to appellant’s assertion, he did not invoke his Fifth Amendment privilege. Questioning must cease whenever a defendant indicates, in any manner and at any time prior to or during an interview, that he or she wishes to exercise the right to cut off the interrogation. (Miranda, supra, 384 U.S. at pp. 473-474.) However, in order to call upon the Fifth Amendment privilege after a defendant has waived it, and halt police questioning after it has commenced, the suspect must unambiguously assert the right to silence or counsel. (Davis v. United States (1994) 512 U.S. 452, 459; People v. Rundle (2008) 43 Cal.4th 76, 114-115.) The words used to halt the interrogation must be construed in the given context. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.) In Musselwhite, the detective was probing where the defendant was at a particular time, and announced he was through bantering and getting down to the facts. The defendant responded: “ ‘I don’t know what you, I don’t want to talk about this. You all are getting me confused.” (Id. at pp. 1238-1239.) Our Supreme Court agreed with the trial court that this exchange did not evidence an attempt by the defendant to terminate the interview. (Id. at p. 1239.)
So ruling, our state’s high court referred to a number of cases in which the reviewing court concluded that the suspect’s purported attempt to invoke the right to remain silent and terminate questioning was “something less or other than that.” (People v. Musselwhite, supra, 17 Cal.4th at pp. 1239-1240.) Thus, in each of the following cases, the defendant’s statement did not amount to an invocation of Miranda rights: (1) People v. Davis (1981) 29 Cal.3d 814, 823-824 (defendant’s single statement during polygraph that he did not want to answer a question); (2) People v. Jennings (1988) 46 Cal.3d 963, 977-978 (after assailing the questioning police officer, the defendant’s statement that “ ‘ “I’m not going to talk”.... “That’s it. I shut up,” ’ ” was but an expression of “ ‘momentary frustration and animosity’ ” toward the officer); (3) In re Joe R. (1980) 27 Cal.3d 496, 516 (taken in context, the defendant’s statement, “ ‘ “That’s all I got to say” ’ ” or “ ‘ “That’s all I want to tell you” ’ ”); and (4) People v. Silva (1988) 45 Cal.3d 604, 629 (defendant’s statement, “ ‘ “I really don’t want to talk about that” ’ ”). (People v. Musselwhite, supra, 17 Cal.4th at p. 1240.)
Construed in context, appellant’s remarks did not amount to an unambiguous summoning of the right to remain silent. Instead, the “I don’t wanna hear it,” “I don’t wanna go through this” and “take me to jury trial” remarks are more reasonably construed as an expression of appellant’s disbelief and frustration that he had been implicated as a suspect in the Windsor incident. Further, the record as a whole does not suggest that appellant wanted to stop the interview until he asked for a lawyer. He continued to participate and express himself without hiatus.
Because we reject appellant’s Miranda arguments, we also reject the contention that his trial testimony was the tainted product of his statements to the police.
C. No Prosecutorial Misconduct
During motions in limine, defense counsel requested redaction of two references to his client’s “prior criminality” that appeared in a taped conversation between appellant and members of his family. The trial court listened to the tape. The prosecutor had no objection to the redactions and the court ordered them.
When it came time to play the tape at trial, the redacted transcript was provided to the jury. However, the prosecutor mistakenly started to play the unredacted tape for the jury and stopped after hearing the first reference to appellant’s violent past when he realized he had the wrong tape. The jury thus heard “the DA tried to start bringing up shit from my past” and “I’m fuckin violent and I need to be kept in jail and all this bullshit so the judge had to fuckin’ (unintelligible).” However, this language did not appear in the transcript given to the jury.
The tape had not reached the second redaction.
Defense counsel moved for a mistrial, making it clear that he was not impugning the prosecutor’s integrity. The trial court denied the motion. The court’s solution was to replay the correct tape from the beginning on the theory that if nothing were mentioned about the mixup, the jury may not be aware of it. The tape had been played at the very end of the day, and the court believed “it probably got by, meaning without anyone picking [it] up.” Further, the prosecutor argued that the sound quality of the tape was poor and thus the jurors more likely followed the correctly redacted transcripts. And, besides arguing that the redacted material was admissible evidence, the prosecutor additionally asserted that the reference to appellant’s violent past was not prejudicial because the jury had heard appellant refer to his violent past in the taped conversation between appellant and Freeland. And, the jury would also hear about his conviction for arson from appellant’s conversation with Detective Eaton.
Now, on appeal, appellant charges prosecutorial misconduct.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Hoyos (2007) 41 Cal.4th 872, 923.) A showing of bad faith is not required to sustain a claim of prosecutorial misconduct. (People v. Hoyos, supra, 41 Cal.4th at p. 924, fn. 36.)
Here, there is one criticized instance in which the prosecutor mistakenly played the wrong tape. One of two references to appellant’s violent past, which should have been redacted, was played before the error was discovered. The jury had the correct, redacted transcript. The quality of the tape was poor. And in any event, evidence of appellant’s violent criminal past was already properly before the jury through the recorded conversation between appellant and Freeland. Additionally, appellant’s statement to Detective Eaton that he did five years for arson and counterfeiting was legitimately before the jury. This minor slip simply did not amount to a denial of due process. Nor was it deceptive or reprehensible behavior meriting the sanction of misconduct under state law.
D. New Trial Motion Properly Denied
Finally, appellant maintains the trial court erred in denying his motion for new trial based on a claim that trial counsel was ineffective in failing to hire an investigator or locate witnesses.
F. Geoffrey Dunhan was appointed as defense counsel for appellant after his conviction. Dunham filed a motion for new trial, submitting his own and appellant’s declaration. Dunham declared that trial counsel, Bernabe Hernandez, had been uncooperative and refused to discuss the case. Further, he believed that Hernandez had been disciplined by the State Bar for misconduct of a similar nature, and was currently no longer eligible to practice law in this state. Appellant stated that he met with Hernandez approximately three times over three years. The first meeting was no longer than 10 minutes and did not include the exchange of any significant information. The next two meetings were longer but did not include the exchange of meaningful information. Hernandez never discussed the facts of the case or possible defenses with appellant. Appellant did not believe Hernandez interviewed any potential witnesses, in particular Israel Garcia, who was with appellant at the time of the murder and could have provided a potential alibi. Nor did appellant believe Hernandez used a court-appointed investigator. Appellant never received copies of relevant reports, notwithstanding requests for the same. Finally, Hernandez did not discuss appellant’s prospective testimony with him. It appeared to appellant that Hernandez was “distracted by outside considerations and did not seem to understand the facts of the case.”
Countering this motion, the prosecutor submitted a declaration stating that the preliminary hearing transcripts showed that Hernandez actively cross-examined witnesses and was “clearly familiar with the crime reports.” As well, in preparing for the jury trial, the prosecutor had numerous conversations with Hernandez regarding discovery, witness availability and evidence viewing issues. They went over all the evidence items and photos. Further, he made special arrangements to accommodate Hernandez with a “ ‘contact visit’ ” with appellant before he testified. During the two years after the preliminary hearing, appellant made many court appearances. The prosecutor observed Hernandez and appellant communicate, and noted that they appeared to enjoy a collegial relationship. Appellant never complained about his representation. When the prosecutor asked appellant during cross-examination whether Israel would be able to say appellant was with him for 20 minutes sometime during the morning in question, appellant responded, “ ‘I doubt he would remember. That’s three years ago and I went over there every day.’ ” Finally, the prosecutor observed Hernandez in numerous felony jury trials and “noted that in this matter as he always did, Mr. Hernandez ably and competently represented Mr. Powers in an adversarial manner and never appeared distracted from the issues involved in this jury trial.”
The trial court denied the motion on the papers submitted. Appellant maintains that summary denial, with no effort to determine the validity of the assertions, was error. We disagree.
The determination of a motion for new trial is anchored so completely in the discretion of the trial court that we will not disturb its action absent a manifest and unmistakable abuse of that discretion. (People v. Staten (2000) 24 Cal.4th 434, 466.) There was no abuse of discretion here.
First, defense counsel stated, “This is going to be a very brief proceeding because by and large I’m going to submit it on the papers.” While counsel perhaps envisioned some argument, in essence he asked for what he got.
Second, to meet the burden of demonstrating ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient, meaning that the representation fell below an objective standard of reasonableness under the prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) This can be difficult because the defendant must overcome a strong presumption that trial counsel’s conduct comes within the wide range of reasonable professional assistance and that under the circumstances, the challenged action might be based on a sound tactical decision. (People v. Thomas (1992) 2 Cal.4th 489, 530-531.) In addition, the defendant must show prejudice stemming from counsel’s performance or absence thereof. (People v. Williams (1997) 16 Cal.4th 153, 215.)
Our review of the trial record does not support the assertion that Hernandez was inadequately prepared for trial. He made protective motions, argued them, cross-examined witnesses and examined appellant. Moreover, in denying the motion, the trial court relied on having been present throughout the proceedings: “Remember, I was in the trial” said the judge. “That’s always helpful.”
Further, appellant’s statement that counsel did not meet with him to discuss prospective trial testimony was contradicted by the prosecutor’s declaration. We note, too, the self-serving nature of defendant’s declaration and the absence of complaint during trial.
Additionally, we are not convinced that counsel was inadequate in failing to interview Israel Garcia. The range of what suffices as constitutionally adequate assistance is broad, and courts must accord presumptive deference to counsel’s choices concerning allocation of time and resources on behalf of his or her client. (Strickland v. Washington, supra, 466 U.S. at pp. 689-691; People v.Gonzalez (1990) 51 Cal.3d 1179, 1252, modified by statute on another ground, as stated in In re Steele (2004) 32 Cal.4th 682, 691.) Thus, “[c]ounsel may make reasonable and informed decisions about how far to pursue particular lines of investigation.” (People v. Gonzalez, supra, 51 Cal.3d at p. 1252.)
Here, appellant testified that he doubted Israel would remember he had been at his house for 20 minutes on the morning of the murder. It was three years ago and he went over to his house daily. Moreover, he had tried, unsuccessfully, to contact Israel. Appellant thought he had moved. Against these circumstances it was not deficient for counsel to fail to track down Israel. We also point out that appellant did not submit the declaration of Israel or anyone else setting forth alibi testimony that they would have offered for the defense in the event of a new trial.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.