Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No.05- 050344-1
Kline, P.J.
Darren Ray Pratcher (appellant) was convicted, following a jury trial, of first degree murder. On appeal, he contends (1) the direct filing of charges in adult criminal court violated his due process and equal protection rights under the state and federal Constitutions, and also violated California’s constitutional requirement of uniform operation of the laws; (2) his pretrial statements to police should have been suppressed because they were involuntary and were taken in violation of his Miranda rights; (3) exclusion of evidence of the criminal record of intended victim Marlin Daniels violated his constitutional right to present a defense and to due process of law; (4) the trial court’s refusal to give two jury instructions and its refusal to modify one instruction violated his rights to due process of law and to present a defense; (5) the prosecutor’s many acts of misconduct violated his rights to due process of law and a fair trial; (6) juror misconduct deprived him of his constitutional right to a fair trial; and (7) his sentence of 50 years to life violates state and federal guarantees against cruel and unusual punishment. We shall affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
PROCEDURAL BACKGROUND
On March 9, 2005, the Grand Jury of Contra Costa County filed an indictment accusing appellant of murder (Pen. Code, § 187), and further alleging personal use of a firearm (Pen. Code, § 12022.5, subd. (a)(1)), and intentional and personal use of a firearm causing great bodily injury (Pen. Code, § 12022.53, subds. (b), (c), (d)). The Grand Jury also found that appellant was at least 14 years old at the time of the offense. (Welf. & Inst. Code, § 707, subd. (d)(2)(A), (B).)
On October 11, 2006, a jury found appellant guilty of first degree murder and found true the firearm use allegations.
On January 19, 2007, the trial court sentenced appellant to 25 years to life in prison on the murder count, and to an additional 25 years to life in prison on the Penal Code section 12022.53, subdivision (d), firearm enhancement, for a total of 50 years to life in state prison.
The court stayed sentence on the Penal Code section 12022.5, subdivision (a)(1), enhancement pursuant to Penal Code section 654.
On March 7, 2007, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Brandon Young, who was 17 years old at the time of trial, had known Terrance Kelly for seven or eight years. They were friends and Kelly was going to be his stepbrother because Kelly’s father and Young’s mother were “probably going to get married.” Also, Kelly’s father was Young’s baseball coach for a couple of years.
In August 2004, Altanette Turner (nicknamed Bootsie) was Young’s girlfriend. Young also knew Isaiah McClain (nicknamed Buckey) and his brother Joshua McClain (nicknamed Kool-Aid) from going to school with them and seeing them in Central Richmond, also known as “Deep C.” He also knew Markel Robinson, Jamelia Brown, and knew of Kevin Vaughn (nicknamed Bam). He knew Larry Pratcher, with whom Kelly hung out; he also knew of Larry’s brother, appellant, whose nickname was “Money-D,” and who was from Central Richmond. Kelly and Young were not from Central Richmond.
On August 12, 2004, Kelly was staying at Young’s house. Kelly dropped Young off at work and later picked him up. Kelly then dropped him off at a cousin’s house and agreed to pick him up later. Young later went to Bootsie’s house, where he saw Bootsie and her siblings, as well as Charlia Potts. He watched television in Bootsie’s room that evening. At some point, he looked out the window and saw appellant in a white t-shirt and gray beanie walking past a group of townhouses located on Nevin Street in Richmond known as “the Barretts.”
A couple of hours later, Young called Kelly to ask for a ride home. A friend of Kelly’s answered his cell phone and said Kelly was playing basketball. Kelly called back and said he was on his way and told Young to wait outside. Young said he was not going to stand outside. Kelly then said he would call Young when he was outside. Young explained to the jury that he did not want to wait outside because “people was coming through there shooting. And I’m not from down there and I’m not fixing to be in no cross fire.” Young acknowledged there was a problem between people from Central Richmond and people not from Central Richmond.
Kelly arrived a short time later and called to say he was outside. Young ran back upstairs to get his coat and then back up again to get his charger. When he walked outside, he did not see Kelly and wondered where he was. He looked around and saw the car with the door open. Young walked into the middle of the street and saw Kelly lying on the ground. He ran to him and was in shock; he could not believe it. He did not see anyone in the area except two security guards inside the Barretts’ gates.
He then banged on Bootsie’s door and said “[m]y brother on—T.K. on the ground.” He said to call his mother or an ambulance. When Bootsie’s mother came outside and checked Kelly’s pulse, Young ran to Kaiser Hospital and told the person there that his brother was on the ground bleeding. She said to sit down and let her take his information. He said he did not have time and ran back to the scene. He also called his mother who said she was on her way there.
Young did not consider himself a snitch because he did not see anything. He had heard a saying that snitches get killed, but he did not really care about that.
Young also testified that on the Monday before August 12, 2004, he and Kelly went to Bootsie’s house. Appellant was there and as Young walked by, appellant said to him, “Boy, it ain’t cool to be bringing people over here.” Young just kept walking. Kelly did not hear what appellant said, and Young did not tell him because “[h]e already knew.”
Also, within about a year before Kelly’s death, Young and Kelly were at a basketball tournament at which appellant was also present. Kelly and Young were saying, “What’s up?” to people. Kelly said “What’s up?” to appellant and appellant “just looked at him.”
On cross-examination, Young acknowledged he was on probation for gun possession and evading the police in a car. He also had been charged with an armed car-jacking, which he denied having committed.
On August 12, 2004, Patricia Fletcher and her four children lived in a two-story house on 7th Street in Richmond. The house had a fenced-in backyard that was accessible by a side gate. Across the street from her house, on Nevin, was the Barretts, where “it was kind of rowdy”; teenagers hung out there and shot dice. Fletcher had asked the teenagers not to hang out in her driveway. She had occasionally seen appellant in front of her house, though she did not know him by name. She did not give appellant permission on August 12, 2004 to go through her side gate into her backyard or to store anything there.
On August 12, 2004, Fletcher, who worked as a physical therapist at a convalescent hospital, got home from work at about 5:00 p.m. The usual young men were hanging out in front of her house and her three daughters were inside the house. Fletcher left the house at 6:00 p.m. to go to choir practice and returned at about 8:00 or 8:30 p.m. All of her children were home and her daughter Altanette’s boyfriend, Brandon Young, was there also. While Fletcher was making a sandwich in the kitchen, Charlia Potts came over, stayed for about 10 minutes, and then left.
Fletcher went into her bedroom and watched television. When she saw light flashing across at the Barretts, she got up and looked out the window, thinking it was the guards. A few minutes later, she saw Altanette and Young go downstairs and heard the door to her house shut as Young left, and then heard a banging on the door as he came back again. When Altanette opened the door, Young, who was frantic, shouted, “Call my mama! Call my mama! Something done happened to T.K.” Her kids shouted for her to come outside, so Fletcher went outside where she saw Terrance Kelly lying face down on the ground, with one leg still inside his car.
Fletcher approached Kelly and felt for a pulse. She felt a faint pulse. He was bleeding and did not appear to be breathing. She had one of her daughters turn the car engine off since it was still running and the car was in gear, “bumper to bumper” against a neighbor’s car. She also asked the guards if anyone had called 911. It was 9:00 or 9:30 p.m. at that point. Young ran down the street to Kaiser Hospital, which was a block away. As Young returned from Kaiser, his mother arrived at the scene, and he went over to her. They both stood there hugging each other and crying hysterically. It took about 10 to 15 minutes for an ambulance to arrive.
Landrin Kelly, Terrance Kelly’s father, testified that Kelly was 18 years old when he was killed. Brandon Young is the son of Landrin’s then-girlfriend, with whom he had been together for five years in August 2004; they lived together in the Hilltop area of Richmond. Kelly had graduated from De La Salle high school in May 2004, and liked to play all sports. On the day he was killed, Kelly asked to use his father’s car to go to Hercules to play basketball. Kelly had his own car, but he did not want to drive it because a headlight was out. Landrin let Kelly use his car, an Oldsmobile. Landrin last talked to Kelly about 15 to 20 minutes before he was killed, at about 10:15 or 10:20 p.m. When he learned of the shooting, he immediately went to the scene.
Anthony Brown, who was 17 years old at the time of trial, testified that he was a friend of Terrance Kelly, whose nickname was T.K. On August 12, 2004, they had been at the Hercules Recreation Center playing basketball from about 6:30 or 7:00 p.m. until around 9:00 p.m. Kelly gave Brown a ride to his grandmother’s house in Richmond in a white Oldsmobile, dropping him off at 9:30 or 9:45 p.m.. Five or ten minutes later, Brown received a phone call and learned that Kelly was dead.
Vincent Owens, who was 20 years old at the time of trial, testified that he lived in the Barrett apartments, in a part of Richmond known as “Deep C,” which runs from the Richmond BART station to about First Street. Appellant was from Deep C, as was his brother, Larry. Owens also knew Kool Aid, Buckey, and Bootsie, who all were from Deep C. He also knew Bam and Jamelia Brown.
In August 2004, Kool Aid (Joshua McClain) asked Owens to hold a.22 caliber rifle for him. Owens planned to return the rifle to Kool Aid when he asked for it. While Owens still had the rifle, appellant came to his house and asked for Kool Aid’s gun. Appellant did not say why he wanted the rifle and Owens did not ask. Appellant did say he needed the gun “real quick.” Owens wiped his fingerprints off of the gun, which was loaded, and gave it to appellant in a black nylon carrying case. Appellant gave him a toy BB gun in return. Forty-five minutes to one hour after Owens gave appellant the gun, Owens’s sister came in and told him that someone had been shot.
The next day, Kool Aid came looking for his gun. When Owens said he did not have it, Kool Aid said Owens owed him money for it. Owens and some of his family members gave Kool Aid $250.
Charlia Potts, who was 18 years old at the time of trial, had lived on 26th Street in Richmond her whole life. She knew Patricia Fletcher, whom she called Auntie Pat; Altanette Turner (Bootsie) is her cousin. She also knew a number of people from Deep C, including Larry Pratcher and appellant. Appellant used to hang out by her Auntie Pat’s house. Potts also knew Terrance Kelly and Brandon Young.
On August 12, 2004, Potts went to Fletcher’s house at about 11:00 a.m. and spent the day with her cousins and Young, resting and watching television. That night, Potts came out of the house and was surprised to see appellant coming from the side of the house where the gate is. Appellant was quiet and looked mad. His expression was like, “ ‘Leave me alone’ ” or “ ‘Don’t talk to me.’ ” Potts talked to appellant’s brother, Larry Pratcher, and his friend, Markel Robinson, who were there with appellant. Appellant was holding something inside his coat; Potts was not sure if it looked like a gun. Potts acknowledged that she had told a police officer after the shooting that the object was a gun. Appellant went and sat on the porch.
Earlier that evening, before it got dark, Potts saw appellant at the Barretts playing with a rifle. Also earlier that day, Potts had seen appellant at the Barretts “horsing around” with some boys and girls, including a girl named Roxanne. She did not see appellant with a BB gun, but saw Markel Robinson holding one. She also had seen and heard appellant arguing with Roxanne and Roxanne’s cousin, Tamara Daniels, at the Barretts. Later, a woman and a man came by in a car and she heard them arguing with appellant.
That night, while Potts was inside Patricia Fletcher’s house, Young received a phone call that his ride was there. Young went upstairs and got his charger, came back down, and went outside. Seconds later, Young came back to the house. He was crying and said that something had happened to Kelly; he also said to call his mother. Potts went outside and saw Kelly, who was bleeding and looked like he had been trying to get out of the car. She had not heard any gunshots. She did not see anyone else, including appellant, Larry Pratcher, or Markel Robinson.
After the shooting, Potts thought she knew who had done it. She told Altanette Turner what she thought that same night, before she talked to police; Altanette told her to keep quiet. Potts did not realize that some boys overheard this conversation. One of the boys said, “ ‘Ya’ll bitches better [sic] than say anything.’ ” She was not scared at first but, a day or two later, the boys threatened to fight her or kill her. Potts also testified that the previous week, before coming to court, she had received a phone call that she would be beaten up or killed if she testified. Initially, Potts denied knowing who made the threats, but later testified that they came from Isaiah McClain. She did not identify him at first because she was scared; she did not want anybody to do anything to her. She had not received any threats from appellant.
Jamelia Vaughn, formerly Jamelia Brown, who was 19 years old at the time of trial, testified that she had married Kevin Vaughn, nicknamed Bam, almost two years previously. Vaughn knew appellant and his brother Larry, with whom she had gone to school. She also knew Markel Robinson, Joshua McClain, Isaiah McClain, and Vincent Owens. They had all grown up together in central Richmond. She did not know Brandon Young or Terrance Kelly.
On the evening of August 12, 2004, Vaughn was outside of her home at the Barretts with Kevin Vaughn. At Kevin’s request, she picked up appellant, Larry Pratcher and Markel Robinson at “Vincent’s” house on the other side of the Barretts to give them a ride to appellant’s house. When the three young men got into the car, either appellant or Larry was carrying “[s]omething long wrapped up,” which Vaughn believed was a gun.
Kevin asked Vaughn to drive them to a location on 6th Street near appellant’s house, which she did. Once there, she heard Kevin say to go see if the person there had a gun. She knew they were unable to acquire a gun there because they returned to the car empty handed and discussed their inability get another gun. No one in the car said why they needed a gun. Vaughn dropped off appellant, Larry Pratcher, and Robinson at Bootsie’s (Altanette Turner’s) house, where “they hang out,” before driving home with Kevin. Either appellant or Larry took the gun. It might have been about 8:00 p.m. at that point; it was dark outside.
When Kevin left about a half hour later, she saw appellant, Larry, and Robinson still in front of Altanette Turner’s house. About an hour after she had dropped them off at Turner’s house, Vaughn heard two faint gunshots.
On cross-examination, Vaughn testified that, after she picked up appellant, Larry, and Robinson, they and Kevin talked about something that had happened earlier in the day when a man named Marlin Daniels had made threats against appellant’s life. Appellant, Larry, and Markel seemed agitated and Kevin was very angry. They were all more agitated and angry when they were not successful in getting a second gun. She heard them talk about the fact that Marlin Daniels was supposed to be coming back to kill appellant. They also talked about Daniels having a gun. There was no mention of Terrance Kelly.
The trial court admitted evidence of conversation in the car for its effect on appellant’s state of mind, not for the truth of the matter.
Vanessa Hamilton, who was 16 years old at the time of trial, lived in Richmond and had known appellant since he was in fifth grade. She also knew appellant’s brother Larry, Vincent Owens, Joshua McClain, and McClain’s brother Buckey. They were all from central Richmond. She did not know Terrance Kelly, but had heard of him; she did not think he was from central Richmond. A couple of days after Kelly was shot, Hamilton got a ride in a van to go watch a “girl fight.” Appellant was also in the van. She had heard a rumor that appellant was involved in the killing of Kelly, though she did not believe it. She asked appellant what happened, with respect to Kelly’s killing, and he said, “ ‘I had to do what I had to do.’ ” She probably responded that he had “fucked up,” but she did not recall for sure. Appellant did not say anything else. His behavior did not seem any different from usual. When Hamilton left the van, appellant said, “ ‘Don’t tell nobody you seen me.’ ”
Richmond Police Detective Jeffrey Soler was working as an evidence technician on the night of August 12, 2004, when he was dispatched to the shooting scene. He saw an Oldsmobile automobile facing south on 7th Street; its right bumper had come into contact with the parked vehicle in front of it. All four car doors were closed. The two rear windows were fully up; the driver’s window was down about an inch and a half, and the front passenger window was fully down. There was no bullet damage to any of the windows. He found three.22 caliber casings near where the victim’s body had been. Near one casing, he found a gray wool cap and on the sidewalk there was a sweatshirt/jacket. He also found a cell phone charger cord nearby. On the side of a house on 7th Street (Patricia Fletcher’s house), behind the gate, there was a rifle, a bag, and a T-shirt. In the chamber of the rifle, Soler found an expended casing. Four bullets were recovered from Terrance Kelly’s body during the autopsy and were turned over to police.
Forensic pathologist Ikechi Ogan performed an autopsy on Terrance Kelly. Kelly had suffered three gunshot wounds to the head and one to the back. One bullet entered from the top, right side of the head; another bullet entered at the upper right cheek; another bullet entered at the lower right cheek; and another bullet, the last shot, entered the right back and punctured Kelly’s heart and lung. The wound paths of the three gunshots to the head were all right to left and downward. The wound path of the gunshot to the back was right to left and upwards. The cause of death was multiple gunshot wounds to the head and torso.
The two facial wounds were not necessarily fatal. The gunshot wounds to the top of the head and the back would have been fatal within seconds. Dr. Ogan opined that the facial wounds likely were inflicted first because Kelly would have been immediately incapacitated after the shots to the top of the head and back, and Dr. Ogan did not believe he would have been able to open a door and attempt to get out after receiving such wounds. The gunshot wounds to the face were “on-shots,” meaning the assailant would have fired the bullets from a position such that they impacted the face at a 90-degree angle. None of the shots to the head were close range shots.
It was possible that the wound to the back resulted from Kelly being shot while he was slumped over the steering wheel of his car. Based on the amount of blood on the ground, it was possible that the shot to the back occurred after Kelly was out of the car. It was not a possibility that Kelly was on the ground and the person firing the gun was standing over him when he was shot in the back, but the person could have been close to the ground, shooting at Kelly at a shallow angle. If Kelly had been in the car while all four shots were fired, Dr. Ogan would have expected there to be more blood in the car.
Criminalist Chris Coleman testified as an expert in firearms. He had examined the Marlin bolt action.22 caliber rifle found at the shooting scene. The rifle was a manual weapon, which meant that “[o]nce you fire the gun and pull the trigger, the gun is decocked, empty cartridge, open the bolt, pull it back to eject and cock the firing mechanism, push it forward and lock it to fire the next round.” Although Coleman could not determine whether the empty cartridge cases found at the scene were from the rifle also found there, the empty cartridge cases and the cartridges found in the rifle all had the Remington head stamp on the rim of the cartridge and were all of the same caliber.
When Coleman fired the rifle, the empty cartridge ejected to the right and slightly backward. Generally, if a shooter pulled the bolt back vigorously while firing, the cartridge case would land within three to five feet of him or her. If the person brought the bolt back softly, the case would land at his or her feet. Given that the three empty cartridge cases found at the scene were nine to twenty feet apart, Coleman opined that the shooter was moving as the shots were fired.
Appellant’s left ring fingerprint was found on the right side of the wooden stock on the rifle, about a quarter inch from the injection port.
Mitchell Peixoto, a sergeant with the Richmond Police Department, testified that he was familiar with the area of Richmond known as Deep C. As part of his investigation of Kelly’s murder, Peixoto obtained a search warrant for appellant’s house which was executed at about 2:15 a.m. on August 14, 2004. Appellant’s mother, father, and brother were at home at the time. In the master bedroom, officers found an Intratech assault type machine pistol. In a dresser drawer in another bedroom, officers found a Remington.22 caliber bullet. In another drawer of the dresser, officers found a book with appellant’s name on it and an item with the name “Money-D” on it. There was also an envelope in the same drawer with Larry Pratcher’s name on it. Peixoto talked with appellant’s family, who did not know where appellant was. At the end of the search, police arrested appellant’s brother, Larry, having received information that he was at the scene of the shooting. Police made other efforts to locate appellant, including putting out bulletins and placing his photograph in the newspaper, but could not find him.
However, on August 17, 2004, appellant came into the police station at about 6:30 p.m. That evening, Peixoto conducted a videotaped interview of appellant for a little more than an hour. Appellant denied shooting Kelly and also denied being present at the scene when Kelly was shot. When Peixoto mentioned that a beanie cap had been found at the scene, appellant became very apprehensive. He said, “I had lost a beanie” and asked what color beanie was found. A short time after the subject of the beanie arose, appellant terminated the interview.
Later, while appellant was being transported to the Martinez Juvenile Hall, appellant continually tried to talk to Peixoto about the case. Peixoto refused to talk further until he stopped driving and could get out an audio recorder. When he arrived at the police parking lot at Juvenile Hall, Peixoto and Detective Villalobos recorded a further conversation with appellant while they were still in the patrol car. Appellant said he was at the scene when the shooting occurred, though he did not see who the shooter was. He said he was probably the last one to run away from the scene, which was why everyone thought he did it. He said he most likely left his beanie at the scene. Appellant also said that he knew Kelly from the neighborhood, that Kelly was “a pretty famous football player,” that he knew Kelly from a three-on-three basketball game where they got into a confrontation, and that he had thrown an egg at Kelly’s car, but did not hit it, but “they were cool later.”
A redacted videotape and audiotape of appellant’s interviews were played for the jury. In the second interview, appellant said he was standing on the porch of Bootsie’s (Altanette Turner’s) house when he heard one or two shots, which he thought came from a BB gun. Appellant had a BB gun with him at the time and had started loading it when he heard more shots, for a total of three or four. He could not see who was shooting, but saw everyone running. Because he was the last to run from the scene, other people thought he was the shooter.
Defense Case
Richmond Police Sergeant Manjit Sappal interviewed Charlia Potts on August 13 and 19, 2004. Potts told Sergeant Sappal that she was not present when Kelly was shot. During her first interview, Potts said she was afraid she would be killed for speaking with police. She said, “They said they was going to kill us.” During the second interview, Potts said, “People are threatening our lives. I don’t want to... be up on this.”
Sergeant Sappal acknowledged that most witnesses were not coming forward because they were afraid of being labeled snitches and being killed. He opined that people from central Richmond would be afraid of being killed in retaliation if they testified against someone else from central Richmond.
Richmond Police Officer Eric Smith interviewed Jamelia Vaughn (then Brown) on September 30, 2004. Initially, her answers were vague and she did not say anything about having seen appellant, Larry Pratcher, Markel Robinson, or Kevin Vaughn with a gun on August 12, 2004. Later, she said she wanted to be truthful and described driving to Vincent Owens’s house and about Markel Robinson, appellant, and his brother Larry getting into the car with what looked like a gun with a white sheet wrapped around it. She said they got into her car and she drove them to the area of the Barretts apartment complex. Kevin Vaughn was also in the car.
Vaughn told Smith that she overheard a discussion about a fight that had occurred between appellant and a girl named Tamara, and heard appellant say Tamara threatened to get someone to kill him. She also heard that Tamara’s father had gone by the Barretts later that day and had said, “ ‘You all better not be here when I get back.’ ” She said that they also went to look for a second gun, for protection. She said appellant seemed upset and nervous.
Richmond Police Detective Jose Villalobos participated in the search of appellant’s home. Appellant’s father showed him the purchase receipt for the gun found in the master bedroom. After checking with the FBI computer database, Villalobos returned the gun to appellant’s father.
Appellant’s mother, Muriel Pratcher, testified that appellant was born in Oakland. He and his family lived in two rough neighborhoods in Oakland before buying a house in Richmond in 2000, also in a rough neighborhood with a fair amount of violence.
On the evening of August 12, 2004, Ms. Pratcher was at home with her husband when someone started banging on their door. When they asked who it was, a man said in a rough voice that he was looking for Darren. The man said appellant had shot his daughter with a BB gun. Once the Pratchers heard the daughter talking too, they opened the door. The man appeared to be intoxicated; he was slurring his words, mumbling, and repeating the same thing over and over again. Once inside the house, they stayed about five or ten minutes, with both of them talking about how appellant had shot the girl with a BB gun.
The trial court admonished the jury that the testimony regarding this conversation was not being admitted for its truth, but for its effect on appellant when it was communicated to him.
About 20 minutes after the two people left, appellant and his brother, Larry Jr., came home. Ms. Pratcher told appellant that a girl and her father had come to the house looking for appellant regarding a BB gun. Appellant looked shocked and fidgeted with his hands. Later that evening, appellant went to the Barretts, where he hung out a lot. She saw him briefly when he returned home with Larry Jr. at about 10:00 p.m.
The next morning, August 13, 2004, Ms. Pratcher was going to take appellant to get his school clothes off of lay away and then go to Pinole High School, where they had made a transfer request for appellant. When she said it was time to go, appellant broke down and started crying. He fell down on his knees, put his arms around her waist, and said how much he loved her. He also said he had to go, though he did not say why. She tried to calm him down, but he kept crying for about 20 minutes. She asked him what was wrong and said, “You’re scaring me.” When Ms. Pratcher asked if it had “anything to do with the boy,” meaning the shooting of Terrance Kelly, appellant just dropped his head. She had never seen him that upset before. She tried to get appellant to stay, but he left anyway.
Ms. Pratcher acknowledged that she had told police officers that appellant had nodded in the affirmative and further acknowledged on cross-examination that he had nodded.
On cross-examination, Ms. Pratcher testified that appellant had said, “I don’t know if I should tell you or not,” and when she asked him if it was something bad, he said yes. She then said, “If it’s something bad, tell me. I’d rather hear it from you than from somebody else.” Appellant then started crying again. He never said anything about it being an accident, self-defense, or mistaken identity. He offered no reason for what he had done.
Ms. Pratcher then called her husband and asked him to come home. She told him, “Darren did it,” based on the way appellant had acted. At about 2:45 a.m. the following morning, August 14, 2004, police came and searched the house. Appellant was not there and Ms. Pratcher had not heard from appellant since he left the previous day. When she spoke with police at the police station, she did not mention the visit from the father and daughter because there “wasn’t no reason for me to bring it to their attention. I didn’t know anything about the other incident.”
On cross-examination, Ms. Pratcher acknowledged that she never told police about the man and his daughter who came to her house on the night of August 12, 2004. She did tell the defense investigator about it in December 2005.
Dr. Myla Young, a clinical neuropsychologist, testified as an expert in the field of psychology, with a specialization in neuropsychology and the adolescent brain. Dr. Young performed testing on appellant on February 14, 2006 to determine his neuropsychological functioning, i.e., the relationship between his brain function and his behavior. She did not believe appellant attempted to fake or malinger his performance on the testing.
With respect to intellectual functioning, Dr. Young opined that appellant’s I.Q. was 83, which placed him in the low average range. Appellant was in the 11th grade, but his reading and math skills were at a 7th or 8th grade level. Dr. Young examined appellant’s school records and noted that from grades three to six appellant did very well in school. In the seventh through ninth grade his grades started to fall and he did poorly on standardized testing. Dr. Young believed that the frontal area of appellant’s brain was not maturing the way it should, so that by seventh or eighth grade he did not have the brain maturity to keep up with his peers. When he began attending 10th grade in Juvenile Hall, his grades improved because he was in a structured environment.
Dr. Young explained that the frontal lobe of the brain, which is the last part of the brain to develop, is critical to a person’s ability to be successful as an older adolescent and adult. As this area of the brain matures, it allows a person to engage in complex reasoning, problem solving, and changes in behavior. Because this maturing process is not yet complete in adolescence, adolescents are not permitted to do many things until a certain age, such as driving a car, purchasing alcohol, joining the military, voting, or signing a contract. The brain continues to develop into the twenties. An adolescent who had suffered trauma would operate at a lower level than an adolescent with a normal developing brain.
Dr. Young’s testing of appellant showed that he had impairment in the frontal part of the motor cortex of both the left and right hemispheres. His temporal lobe was dysfunctional. His visual memory ranged from low normal to moderate or severe impairment. The temporal lobe, the limbic system, and the frontal lobe were all dysfunctional when compared with age-specific peers. People with temporal lobe dysfunction often have an exaggerated fear response and unusual suspiciousness. They might also have perceptual inaccuracy, which includes not recognizing someone they know when they see them in a new context. They also might not recognize emotional expressions and might also have increased impulsivity.
Dr. Young also tested appellant in the area of executive functioning, which includes the ability to think, reason, problem solve, and anticipate consequences; to initiate behavior; and to shift one’s thinking based on information presented. Maturation in this area is greatest at about 16 years old and continues into adult life. She concluded that appellant had mild to moderate brain impairment primarily in the temporal, limbic, and frontal system. He functioned better in structured situations than in unsure or complex situations. Appellant’s temporal lobe functioning showed the most severe level of impairment. Dr. Young did not know the cause of appellant’s brain impairment.
A SPECT scan of appellant’s brain corroborated the opinions Dr. Young had reached in her own testing of appellant. Dr. Young also administered a Rorschach test, which indicated that appellant had experienced a major depression, that his perceptual accuracy was significantly impaired, and that he was overwhelmed by emotional stress. If appellant had post traumatic stress disorder (PTSD), it would be consistent with the areas of impairment Dr. Young had identified.
Dr. Young opined that appellant’s performance on testing, compared to other individuals his own age, showed impairment in the ability to plan ahead, consider consequences, determine more than one solution to a problem, and stop or redirect his course of action. This type of impairment made appellant more vulnerable to the environment, including peer pressure, than an unimpaired adolescent. Dr. Young believed that appellant’s brain functioning was the same or worse in August 2004, compared to when she tested him in February 2006.
On cross-examination, Dr. Young testified that she had not made any diagnosis regarding whether appellant had frontal lobe damage. She stated, “It’s unclear whether we’re talking about frontal lobe damage or immaturity. [¶]... [¶] That’s why I used the word dysfunction.”
On cross-examination, Dr. Young testified that, in preparing to testify, she had reviewed various documents related to the case, including the police reports. She had information, inter alia, that appellant’s brother, Larry Pratcher, had approached Kelly in the car after Kelly called out to him. After some conversation, Larry “walked away from the car and provided some information to the other individuals who were there at the time.” The court told the jury that it could only consider hearsay statements in determining the weight to give the expert’s opinion.
Dr. Howard Friedman, a neuropsychologist, testified as an expert in the fields of psychology, neuropsychology, neuropharmacology, and emotional disorders. Dr. Friedman met with appellant three times, on August 1, 2 and 21, 2006 at Juvenile Hall, in order to evaluate whether certain emotional difficulties might have been present and affected appellant’s behavior during the charged offense. He did both a clinical interview and psychological testing.
Dr. Friedman described PTSD as an anxiety-related problem in which someone is involved in a traumatic or life-threatening experience and continues to re-experience the trauma thereafter. A person might have various symptoms, including nightmares about the experience, constant thinking about it, or trying to avoid thinking about it. A person might also be subject to hyper-arousal, with a startle response and alertness to anything that might remind him or her of the experience. The Diagnostic and Statistical Manual (DSM) divides PTSD into acute and chronic, depending on the longevity of symptoms; PTSD is considered chronic when the symptoms are still present three months after the trauma. Children are more likely than adults to internalize their feelings and avoid talking about emotional issues, which makes it more difficult to diagnose PTSD in children. According to research studies, up to 70 percent of children living in a very violent community have elements of PTSD.
In the clinical interview, appellant told Dr. Friedman about his history of involvement in dangerous situations. He said he had been shot at a number of times, including once in front of his house; he also had been held up at gunpoint and had been pistol-whipped. Appellant said that four of his friends had been shot and killed, although he did not witness those killings. Appellant said he had recurring thoughts and dreams about the incidents; he also had images of bullets flying past his head. He also had nervous system reactions, such as a racing heart, sweating, and changes in his breathing rate. He said he avoided certain locations that he believed were dangerous for him and felt nervous when he was outside his house, since he had been shot at there. Appellant also described symptoms of hypervigilance, of being on edge and looking for a threat all the time.
The trial court admonished the jury that the statements appellant made to Dr. Friedman, regarding which Dr. Friedman testified on direct examination, were admitted for the basis of the doctor’s opinion, not for the truth of the matter.
Before the shooting, appellant’s symptoms had been getting worse, as more people he knew were getting killed. His symptoms were present in August 2004. He had the sense of a foreshortened future, that he was at risk for being killed. He did not talk to other people about his feelings. Since the shooting, during his incarceration, appellant’s PTSD symptoms had gotten somewhat better.
Dr. Friedman discussed the events of August 12, 2004 with appellant. Appellant told him that he and his friends were playing around with BB guns and he shot a girl. She said she was going to tell her father and get him to confront appellant. Appellant’s friends warned him that the girl’s father was dangerous and had killed people. Appellant became more scared and felt the man was a threat to him, that the man was looking for him and potentially could come back and kill him. Appellant explained that, in his neighborhood, when someone was looking for you, it was to have a violent confrontation and kill you.
Appellant’s friends, who were three or four years older than him, encouraged him to get a gun to protect himself. He became more and more worried and, while he considered going home, he decided not to do so because he knew the girl’s father had already gone to his home. Dr. Friedman noted that it is common for people with PTSD who are in fight or flight mode to think clearly and identify alternative courses of action.
Appellant told Dr. Friedman that he had taken one tablet of ecstasy within an hour of the shooting and had also used marijuana. There is a common perception that marijuana will calm the user down, but in fact it suppresses control systems and intensifies whatever emotion one is already experiencing. The combination of ecstasy and marijuana would make a person feel more agitated and anxious.
Appellant said that when he arrived at the 7th Street location where the shooting occurred, he was “afraid he was potentially going to be killed,” and had a “ ‘movie clip’ ” going in his head, with sensations of bullets flying past his head and the sounds of gunshots and car tires screeching, which related to actual episodes in which he had previously been involved. Dr. Friedman believed appellant’s description was consistent with the symptoms of PTSD involving re-experiencing previous traumas and perceptual distortions. Appellant also said he was feeling physical symptoms including a pounding heart, anxiety, agitation, and jerkiness in his movements, all of which were consistent with PTSD.
When Kelly’s car pulled up, appellant said he was thinking, “ ‘Him or me. It’s him or me. Gotta get him before he gets me.’ ” Appellant said he heard his friends say, “ ‘It’s him. It’s him.’ ” Appellant believed he was going to be killed. He said he went to the side of the building to get the gun, unwrapped it, and went toward the car. He was unable to see into the car. After the shooting, appellant’s brother said something like, “ ‘Why did you shoot T.K.?’ ” and appellant was surprised. The next morning appellant broke down in tears with his mother, who was crying also, when he told her he would have to leave home. He was gone for several days and felt guilty about what had happened.
According to Dr. Friedman, the information provided by appellant in the clinical interview was consistent with PTSD.
In addition to the clinical interview, Dr. Friedman conducted psychological testing. He administered a trauma symptom inventory, the Millon adolescent clinical inventory, the Rorschach test, and subtests of the Wechsler adult intelligence test. Dr. Friedman believed appellant had put forth his best efforts on the tests, had not attempted to deceive him, and was not malingering.
Based on the clinical interview and the testing, Dr. Friedman opined that in August 2004 appellant was suffering from chronic PTSD. He believed appellant had a limited ability to cope, would tend to look to other people for guidance, and would have difficulty recognizing the problems he was facing. He also would be less able to think through consequences of his actions during a high stress situation, would be likely to act impulsively, would tend to be hyper-vigilant, would have an impaired ability to make rational choices and consider multiple options, and would become cognitively disengaged.
Dr. Friedman opined that firing four shots at a person from a bolt action rifle was not inconsistent with the presence of PTSD if the person is acting on automatic, acting to survive. Nor was going home and using a Play Station inconsistent with the presence of PTSD since dissociation from emotional content is common with PTSD. Appellant’s crying and holding onto his mother, but not being able to have a conversation with her about what happened, was consistent with PTSD in that it showed an inability to open up emotionally. The same would be true of his failure to relate the details of the shooting to an acquaintance or to the police following his arrest. Finally, Dr. Friedman opined that the circumstances of the shooting of Terrance Kelly were consistent with the fight or flight survival mode of PTSD.
On cross-examination, the prosecutor asked Dr. Friedman about fights appellant had got into at school prior to the shooting. Evidence of these incidents were admitted solely for its effect on “the expert’s basis for his opinion,” not for its truth. Appellant had told Dr. Friedman that he generally got into fights with boys who were trying to take something from him or push him, and he would have to fight back or get beaten up. Appellant did not tell Dr. Friedman about an incident in November 2003 in which he slapped a student and broke her glasses. Regarding an incident in April 2003 in which appellant and two other boys committed an unprovoked attack on a female student because he thought she did not go to his school, Dr. Friedman did not believe that incident was inconsistent with appellant suffering from PTSD. Dr. Friedman was aware of an incident in July 2004 in which appellant had attacked an individual, punching him in the face and knocking two teeth out. This incident was not inconsistent with appellant’s having PTSD. Dr. Friedman did not believe information about appellant fighting in the classroom or his defiance to school authorities was relevant to his PTSD diagnosis.
Rebuttal
Contra Costa County District Attorney’s investigator Daryl Jackson testified that there was no record at the Richmond Police Department of appellant having been the victim of a pistol whipping, a shooting, or any other criminal act. Nor was there any record of his having been a witness to a shooting. He acknowledged that if a person is a crime victim or witness and does not have contact with the police, there would be no record in the system.
The parties stipulated that People’s exhibit Nos. 45 and 46 were portions of writings that Detective Peixoto found in appellant’s bedroom. The two passages, which were shown to the jury, were earlier described by the court as having the name “Money-D” at the top. The first passage reads: “ ‘Us younstas heartless now if you aint from are part of town you’s a fuckin target now so you better smarten up copt some gats and grow some nuts cause some niggaz bout to die and it’s not go be us.’ ” The second passage reads: “ ‘All you nigga go die ya’ll don’t want beef with a central nigga get turned into a stick figa.’ ”
A redacted videotape of Muriel Pratcher’s August 14, 2004 interview with police was played for the jury to show the demeanor of Ms. Pratcher and the officers during the interview, and not for the truth of the statements made. The prosecutor later read portions of the interview into the record as arguably inconsistent with her trial testimony. This included the statement that appellant and his brother had played a Play Station game after they got home on the night of August 12, 2004. The next morning, appellant told her something bad had happened and said, “it’s something horrible that I did.” When she asked if it was about the boy who got hurt, appellant shook his head in the affirmative. When her husband got home that night, Ms. Pratcher told him that “Darren did it,” referring to the shooting.
Laura Easley, a registered nurse at Juvenile Hall, testified that she performed physical examinations for minors at intake and again every 12 months while they are at Juvenile Hall. On February 2, 2006, Easley examined appellant. At that time, appellant responded to various questions, stating that he was going to school at Juvenile Hall; he had never been so upset that he wanted to hurt himself; and he had never been a victim or witness of abuse, violence, or suicide. He indicated that there were guns at his home or friends’ homes and he had used street drugs like marijuana. He had broken the pinky in his left hand at age 12, and the thumb in his right hand at age 13. Easley also asked appellant what his plans were and he answered that he was planning to finish high school and wanted to go to college and get a degree or become an interpreter of sign language. Easley did not find anything during the examination that would cause her to refer appellant to a doctor or a mental health professional.
Sandra Marian Marsh, a program manager for Contra Costa County children’s mental health, testified that part of her job involved supervising clinicians at Juvenile Hall. Part of the intake procedure at Juvenile Hall involved minors undergoing a mental status examination and a 52-question self-administered questionnaire called the Massachusetts Youth Screening Instrument (MAYSI). The test for boys covered alcohol and substance abuse, anger and irritability, depression and anxiety, suicide, somatic complaints, thought disorders, and traumatic experiences. The MAYSI was not a diagnostic tool, but was used to determine whether additional questions needed to be asked or additional mental health support might be needed.
Appellant took the MAYSI test on June 13, 2004 (while at Juvenile Hall approximately two months prior to the shooting in this matter). Appellant marked no in response to the following questions: whether he had a lot of trouble falling asleep or staying asleep; whether he had nervous or worried feelings that kept him from doing things that he wanted to do; whether he had a lot of problems concentrating or paying attention; whether he had been really jumpy or hyper; whether he had wished he were dead; whether he had too many bad moods; whether he had nightmares bad enough to make him afraid to go to sleep; whether he had felt that life was not worth living; whether he had felt like hurting or killing himself; whether he had a bad feeling that things don’t seem real, like in a dream; whether he had felt shaky when he was nervous or anxious; whether his heart had beat very fast or he had been short of breath or his hands had felt clammy or his stomach had been upset; whether he had felt that he could not do anything right; whether it had been hard for him to feel close to people outside of his family; whether he had given up hope for his life; whether he had ever had something very bad or terrifying happen to him; whether he had ever been badly hurt or in danger of getting badly hurt or killed; whether he had had a lot of bad thoughts or dreams about a bad or scary event that happened to him; whether he had ever lost his temper or had a short fuse; whether he enjoyed or was turned on by fighting; whether he was easily upset; and whether he thought a lot about getting back.
Appellant marked yes to the following questions: whether he had ever been drunk or high at school, and whether he had ever seen someone severely injured or killed. Marsh had not administered the questionnaire to appellant, so she did not know what appellant’s demeanor was like when he took it.
On cross-examination, Marsh testified that appellant answered no to the questions whether he felt like he did not want to go to school anymore and whether he ever used alcohol and drugs to help him feel better.
Linda Foster, a licensed marriage and family therapist, testified that she was employed as a mental health clinical specialist at Juvenile Hall. She gave appellant the MAYSI test in June 2004. She told him the test was confidential and that the purpose of the test was to learn how he had been doing the last few months before he was in Juvenile Hall. Foster saw no red flags during her interview with appellant and marked on the test “generally unremarkable.” She also noted that appellant was “stable, calm, and cooperative.” Appellant “denied having any kind of mental health history and said that he was doing okay.” Foster concluded there was no need for further mental health intervention.
Foster saw appellant again on August 20, 2004. She was asked to interview him because he had been placed on suicide watch because of the charges against him. She talked to appellant for about 20 minutes, and he seemed stable and coherent, with no acute distress. She did not notice anything during the interview that caused her concern regarding his mental health. Her notes indicated that he had “zero psychiatric symptoms” indicating a need for suicide watch status or further mental health intervention. Foster acknowledged on cross-examination that there were many undiagnosed psychological issues at Juvenile Hall and that many youths had difficulty opening up to her when meeting with her for the first time. Also, appellant’s June 2004 medical questionnaire indicated that he admitted using marijuana, but his August 2004 medical questionnaire indicated that he said he did not use any drugs.
DISCUSSION
I. Direct Filing of Charges in Criminal Court
Appellant contends the direct filing of charges in adult criminal court violated his due process and equal protection rights under the state and federal Constitutions, and also violated California’s constitutional requirement of uniform operation of the laws.
A. Trial Court Background
Appellant was 15 years old when he shot and killed Terrance Kelly. The prosecutor filed charges against him in criminal court under Welfare and Institutions Code section 707, subdivision (d)(2) (section 707(d)), which permits direct filing in criminal court for specified offenses without a prior juvenile court determination that the minor is unfit for disposition under juvenile court law.
Section 707(d)(2) provides in relevant part: “Except as provided in subdivision (b) of section 602, the district attorney or other appropriate prosecuting officer may file an accusatory pleading against a minor 14 years of age or older in a court of criminal jurisdiction in any case in which any one or more of the following circumstances apply:
Before trial, appellant filed a motion to dismiss the indictment and transfer his case to juvenile court, arguing that the direct file provisions of section 707(d) violated his rights to due process, equal protection, uniform operation of the laws, and the separation of powers provisions of the state and federal Constitutions. The prosecutor opposed the motion, arguing that the court was bound by the California Supreme Court’s decision in Manduley v. Superior Court (2002) 27 Cal.4th 537 (Manduley), which had rejected several challenges to the constitutionality of section 707(d). The trial court subsequently held a hearing on appellant’s motion and ultimately denied it.
With respect to appellant’s claim that the direct filing provisions violated his due process rights, the court ruled: “As to the first issue, which is the challenge to—the challenge to Proposition 21, direct filings procedures based on the effect of Roper v. Simmons [(2005) 543 U.S. 551 (Roper)] on Manduley, I am bound to follow Manduley, except to the extent that the California—the U.S. Supreme Court [Roper] decision casts substantial doubt on it.... [¶]... [¶]
“[Roper] addressed an Eighth Amendment issue and, ultimately, punishment of death, and held that the death penalty wasn’t appropriate for minors based on the less mature brain development and the effects that has on the ability to judge consequences and impulse control. [¶]... [¶]
“I don’t think there’s a due process problem here, and Manduley has dealt with most of the issues.
“There’s the only issue open to me, which is whether [Roper] changes and substantially casts doubt on the validity of Manduley. I don’t think it did, so that issue, I’m going [to] deny the motion.”
The court later added:
“And I also note that [Roper] itself was a case in which the defendant was being prosecuted as an adult, so the California—the U.S. Supreme Court doesn’t inherently have a problem with juveniles being prosecuted as adults because that’s what happened in the [Roper] case.
“The question simply is who gets [to] make the decision. Manduley—since it’s not unconstitutional for that decision to be made by the prosecution rather than by a Court, and I don’t think that anything [in] Roper says that is an unconstitutional due process violation.”
B. Legal Analysis
In Manduley, supra, 27 Cal.4th at pages 562, 567 and 573, the California Supreme Court held, inter alia, that section 707(d) did not violate the minor petitioners’ rights to due process or equal protection under the California or federal Constitutions, and did not violate the uniform operation of the laws requirement of the California Constitution.
1. Due Process
In rejecting the petitioners’ due process claim, the California Supreme Court in Manduley stated: “[P]etitioners do not possess any right to be subject to the jurisdiction of the juvenile court. As we have concluded, the legislative branch properly can delegate to the prosecutor—who traditionally has been entrusted with the charging decision—discretion whether to file charges against a minor directly in criminal court, and the Legislature also can eliminate a minor’s statutory right to a judicial fitness hearing. Therefore, a prosecutor’s decision pursuant to section 707(d) to file charges in criminal court does not implicate any protected interest of petitioners that gives rise to the requirements of procedural due process.” (Manduley, supra, 27 Cal.4th at p. 567.)
Appellant acknowledges this holding in Manduley, but argues that it should be reconsidered in light of the subsequent United States Supreme Court cases of Atkins v. Virginia (2002) 536 U.S. 304, which held that execution of mentally retarded persons violated the Eighth Amendment, and Roper, supra, 543 U.S. 551, which reached the same result with respect to offenders who committed their crimes when they were under the age of 18.
However, both cases cited by appellant involved the death penalty, and the United States Supreme Court has repeatedly “held that ‘death is different,’ and [has] imposed protections that the Constitution nowhere else provides. [Citations.]” (Harmelin v. Michigan (1991) 501 U.S. 957; see also pt. VII., B. 1., post.) We are not persuaded that the decisions in Atkins v. Virginia and Roper affect the validity of our Supreme Court’s holding in Manduley.
We also observe that in Roper, supra, 543 U.S. 551, 557, the 17-year-old defendant, who was charged with first degree murder, burglary, stealing, and kidnapping, was outside the criminal jurisdiction of the Missouri juvenile court system and was therefore tried as an adult. Although the defendant was initially sentenced to death, the Missouri Supreme Court set aside the death sentence and resentenced him to life in prison without the possibility of parole. (Id. at pp. 559-560.) The United States Supreme Court affirmed that judgment. (Id. at pp. 560, 578-579.) These facts further undermine appellant’s argument that Manduley should be reconsidered in light of the holding in Roper.
In sum, we are bound by our Supreme Court’s decision in Manduley, supra, 27 Cal.4th 537. Consequently, appellant’s due process challenge to section 707(d) cannot succeed. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
2. Equal Protection and Uniform Operation of the Laws
Appellant included with his motion a copy of a report—Juvenile Justice in California,2004, California Department of Justice, Criminal Justice Statistics Center (“Juvenile Justice”)—which contained statistics showing that Blacks, Hispanics, and Asians accounted for approximately 87 percent of the direct filings in criminal court in California in 2004, despite constituting only 65 percent of the persons referred to probation, while only eight percent of Whites were subjected to direct filing despite constituting 30 percent of those referred to probation.
At the hearing on the motion, appellant presented the testimony of Dr. Michael Males, who testified that he used a trend analysis to examine the proportions, by race, of individuals who were sentenced to incarceration by adult courts before and after passage of Proposition 21 (which amended section 707). According to Dr. Males, while there was an increase in the ratio of adult court to juvenile court incarcerations for all races, there was a much greater increase among minorities. For Whites, the increase was 20.1 percent; for Hispanics, 52.3 percent; for Blacks, 64.1 percent; and for Asians and other minorities, 41.7 percent.
Dr. Males testified that there were six counties in which the direct filing rates were much higher than the state average; Contra Costa was one of the six counties. He observed that the counties that use direct filing the most are also the ones that show the widest racial disparities in minority direct transfer compared to other counties. The fact that disproportionate minority transfer occurs in counties that used direct filing the most strengthened his conclusion that direct filing was what underlay the disproportionate minority transfer.
According to Dr. Males, the results of his statistical analysis were consistent with a conclusion that passage of Proposition 21 had exacerbated the disproportionate transfer of minorities into adult criminal court. Dr. Males testified that he could not say definitively that this was a true showing of cause and effect, but that it was a very strong inference, and an alternative explanation did not immediately come to mind.
With respect to appellant’s claim that the direct filing provisions violated his right to equal protection and uniform operation of the laws because they adversely affected certain racial groups, the trial court ruled:
“As to the second motion, which is [an] equal protection challenge, the statistics are troubling. There’s no question the statistics are troubling.
“However, they don’t, according to Dr. Males, prove in fact that there is any invidious discrimination going on.
“He said he didn’t know anything about—they didn’t say that the result here, the disparate result, was based on discrimination.
“They said that the statistics don’t say that racial discrimination was involved in any individual case, much less in Mr. Pratcher’s case.
“So even if you assume that the statistics are valid, I think for purposes of this—perhaps we can get to that in a minute—I don’t think under [McCleskey] v. Kemp [(1987) 481 U.S. 279] Supreme Court case, or under In re Seaton [(2004) 34 Cal.4th 193], the California Supreme Court case, that a correlation, even if there is one, statistically as to race allows an assumption of causation, that that discrepancy is caused by invidious discrimination based on race.
“And for that reason, I don’t think that the racial challenge is well-taken. [¶]... [¶]
“... I think there is a question to the validity of the statistics Dr. [Males] testified to.
“He really doesn’t have any idea what the basis was for assuming, for ascribing race there [to] 10,000 reports whose statistics were reported, and he did a statistical analysis on.
“He didn’t look at individual files, doesn’t know if it was done on appearance, self-description, based on error, checking the wrong box. He has no idea whether the right criteria were used.
“So there is some question about the validity of the statistics. They probably aren’t the best we have. [¶]... [¶]
“But I do think there is some reason to question the statistics, given the way they’re put together. [¶] “But my decision [is] not based on any question I have of the statistics, because I think they’re probably as good as we’re going to get. And they do show a troubling trend, but I think the trend under the Constitution’s not enough.”
In Manduley, supra, 27 Cal.4th 537, our Supreme Court rejected an equal protection challenge based on assertions that section 707(d) would have a discriminatory effect, explaining: “Section 707(d) contains no overtly discriminatory classification. In their challenge to section 707(d), petitioners do not contend that the district attorney filed charges against them in criminal court on the basis of some invidious criterion or for a discriminatory purpose, or that section 707(d) has had any discriminatory effect. Petitioners instead contend that section 707(d) might result in invidious discrimination because it contains no standards guiding the prosecutor’s discretion whether to file charges in criminal court. Similarly, several amici curiae assert that historical data regarding racial disparities in the juvenile justice system suggest that section 707(d) likely will exacerbate such inequities. Such speculation is insufficient to establish a violation of the equal protection clause.” (Manduley, at p. 569, fn. omitted.)
Appellant argues that the subsequent data now show that section 707(d) has resulted in discrimination against members of racial minority groups, which inferentially supports a conclusion of invidious discrimination. (See, e.g., Baluyut v. Superior Court (1996) 12 Cal.4th 826, 834-835.) Appellant acknowledges that a showing of racially disproportionate impact does not suffice to prove an equal protection violation, but argues that such disproportionate impact might in some cases “demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.” (Washington v. Davis (1976) 426 U.S. 229, 242.) He asserts that this is such a case. We disagree.
First, and most importantly, the statistics cited both in the Juvenile Justice report and by Dr. Males in his testimony do not compare the specific crimes for which minors either remained in the juvenile court or had charges filed in criminal court. Such data might have had a major effect on the statistical calculation regarding racial disparities in direct filing. Second, as the trial court observed, there are questions regarding the reliability of the statistics on race. Finally, there is no suggestion in this case that the prosecutor’s direct filing of the charges against appellant in criminal court were based on invidious discrimination.
Even Dr. Males acknowledged that he could not say definitively that the data portrayed a true showing of cause and effect as to whether the passage of Proposition 21 had exacerbated the disproportionate transfer of minorities into adult criminal court, but could only say that it was a strong inference.
Regarding his claim that the data show that the direct filing provisions violated the uniform operations of the laws requirement of article IV, section 16, subdivision (a), of the California Constitution, appellant relies on a plurality opinion of the Utah Supreme Court to support his argument. (State v. Mohi (Utah 1995) 901 P.2d 991, 1004 [statutory direct filing provisions violated uniform operation of laws provision of Utah Constitution].) However, our Supreme Court rejected just such an argument in Manduley, supra, 27 Cal.4th at page 573, explaining: “Contrary to the reasoning of the plurality opinion in Mohi..., traditional prosecutorial charging discretion, which includes the discretion to bring any charges against a particular offender, encompasses decisions how to apply the same law to different offenders, often without any express statutory criteria guiding such decisions.... None of these prosecutorial decisions, unless based upon invidious discrimination or retaliatory motive, ever has been considered to be unconstitutionally arbitrary. Therefore, prosecutorial discretion resulting in the different application of the same law to different offenders does not necessarily violate the requirement of uniform operation of the laws.” (Manduley, at p. 573.) As we have already explained with respect to appellant’s equal protection argument, the statistical data presented by appellant does not change this conclusion.
We reject appellant’s various challenges to the constitutionality of section 707(d).
II. Appellant’s Statements to Police
Appellant contends his pretrial statements to police should have been suppressed because they were involuntary and were taken in violation of his Miranda rights.
A. Trial Court Background
Before trial, appellant moved to exclude his statements to the police as involuntary and taken without a knowing and intelligent waiver of his Miranda rights.
At a hearing on the motion to suppress, the prosecutor presented the testimony of Sergeant Mitchell Peixoto, who interviewed appellant at the Richmond Police Department and then transported him to Martinez Juvenile Hall on August 17, 2004, five days after the shooting. Before the interview, Peixoto advised appellant of his Miranda rights. When Peixoto asked appellant if he understood those rights, appellant said “yes” or “yeah.” Near the end of the interview, appellant told Detective Villalobos, who was present at the time, that he wanted a lawyer. The officers ended the interview and prepared appellant for transportation to Juvenile Hall.
While Peixoto was driving appellant to Juvenile Hall, appellant asked where they were going. When Peixoto said they were going to Juvenile Hall, appellant asked why, and Peixoto said because appellant was going to be booked for murder. Appellant then began talking and rambling about things Peixoto did not understand, and Peixoto told him he had asked for an attorney and needed to stop talking. By then they had reached Juvenile Hall. Peixoto parked and then told appellant, “ ‘If you want to make a statement without an attorney present, you have to volunteer that, convince me that you want to.’ ” Appellant said he wanted to change his old statement and make a new statement.
Peixoto told appellant he could make a statement, as long as it was voluntary. Peixoto said he would write down what appellant said, and then appellant could read the statement and sign it. Appellant then made a second statement, which was audiotaped. Peixoto asked him several times during the interview whether he wanted to make the statement then or later with an attorney present.
On cross-examination, Peixoto testified that he had received a call at about 6:30 p.m. on August 17 that appellant had turned himself in. Peixoto arrived at the Richmond Police Department at about 7:30 p.m. and he and Detective Villalobos began the interview with appellant at 8:30 p.m. Appellant was alone in an interview room when Peixoto arrived. During the videotaped interview, the officers talked to appellant about the beanie cap found at the scene and appellant said he had lost a beanie. The officers told appellant that they would be able to determine whether there were any of his hairs on the beanie. Peixoto also falsely said there are scientific techniques that can determine within a matter of hours when a hair came out of someone’s head and ended up on the cap; he said this in the hope that appellant would say something incriminating.
At one point during the interview, after Peixoto asked when he lost his beanie, appellant asked to use the phone, but Peixoto said he did not have a phone with him. Peixoto also said they would get to that (i.e., the question of when he lost his beanie), but right then it was not important. In the middle of the interview, appellant said something about his father having mentioned an attorney and he was starting to think about that. He also asked questions about whether he could get a lawyer, and Peixoto answered in the affirmative, saying he had read appellant his rights. He also asked if appellant had understood them. Peixoto then continued questioning appellant because appellant had not asked for an attorney. Peixoto left the room and a short time later Villalobos ended the interview.
While Peixoto and Villalobos were transporting appellant to Juvenile Hall, appellant seemed nervous, and he asked where he was being taken. Peixoto responded that appellant had been arrested for murder and was being booked at Juvenile Hall. When appellant asked why he was being booked for murder, Peixoto said that he believed appellant was being untruthful and that “ ‘[w]e have witnesses put you at the scene.’ ” Appellant started talking about other people telling him to be untruthful and Peixoto told him to stop talking. Most of the conversation during the drive to Martinez involved Peixoto telling appellant not to talk because he had already asked for an attorney and the officers were in no position to take another statement at that time.
During the second interview in the back of the patrol car, which began at 10:38 p.m. and was recorded with an audio recorder set up on the center console, Peixoto did not re-advise appellant of his Miranda rights, nor did he offer to let appellant make a phone call or tell him that he could have a family member present. Peixoto told appellant he could ask for an attorney at any time during the statement. The officers prepared a written statement at the end of the interview and appellant signed it.
The transcript of the interview shows that, after appellant told the officers he was present at the scene of the shooting, he said, “Now, after I tell you that statement right there, then I want an attorney.” Detective Peixoto responded, “Actually, okay, you can ask for an attorney. But what I’d like—again we’re still under your attorney/client privilege [sic] right now. You went off it for a while to say you were at the scene.” Peixoto then told appellant that his next question would be, “where were you,” but that appellant had asked for an attorney. Some things were then said that were reported as partially “unintelligible,” and then appellant began answering questions again. Near the end of the statement, appellant answered in the affirmative to Peixoto’s question, “Just to confirm, these are things that we’re gonna put in your statement. And you’re agreeing to these things without being a lawyer present, is that correct?” to which appellant responded, “Yeah.”
Appellant’s father, Larry Pratcher, Sr., also testified at the hearing on the motion to suppress. On August 17, 2004, Mr. Pratcher talked to appellant on the telephone and appellant said he wanted to turn himself in. Later, Mr. Pratcher and Pastor Charles Hopkins picked appellant up and drove to the Richmond Police Department. A police lieutenant told appellant he was going to be arrested, and put handcuffs on him. Mr. Pratcher did not recall appellant being read his rights at that time. Appellant, Mr. Pratcher, and the pastor were taken to a small room, in which they waited for about 10 minutes until two additional officers arrived and took appellant upstairs for questioning. Mr. Pratcher did not think Sergeant Peixoto was one of the two officers.
While driving to the police station and also while waiting in the small room, Mr. Pratcher told appellant not to speak to the police. On the drive to the station, he also told appellant not to speak to police without an attorney present. The two officers who came into the room said they were taking appellant to an interview room for further questioning and, before they left, Mr. Pratcher believed he told appellant not to speak to them without an attorney present, but he was not sure. At that point, Mr. Pratcher and the pastor left the station. No officer asked Mr. Pratcher whether he wanted to be present while appellant was being questioned.
On cross-examination, Mr. Pratcher testified that he was aware that appellant was arrested on a gun charge a couple of months before August 17, 2004. He believed appellant understood him when he said not to talk to police without an attorney present. Appellant responded, “Okay.”
After argument by counsel, the trial court issued its ruling. First, with respect to the Miranda issue, the court stated that, in the videotape, “initially, [appellant] is in the interview room by himself. And there is, in my opinion, no evidence of stress, of discomfort, of nervousness. He is just sitting in the chair. There’s no fidgeting, there’s no outward sign of emotional effect. He doesn’t look like he’s upset about being in the police department, at least from his demeanor. He’s not pacing the room, he’s sitting in the chair. [¶] We often get a lot of information watching someone in the interview room before or during the interview when they’re left alone. And none of the things that I often see were present here.”
The court further stated that there was “nothing in the conversation either at the time or later that leads me to believe that [appellant] did not understand the [Miranda] warning.” The court also said that, in light of appellant’s previous arrest and acknowledgement that he had been in jail before, it was reasonable to assume that appellant had previous experience with talking to officers and receiving Miranda warnings, and that he came across on the videotape as “fairly street smart.” The court noted that appellant had done well in school until recently and there was no evidence of handicaps regarding comprehension, and also said, “I have to note that a 15-year-old today in an urban environment is what a 20-year-old used to be.” Appellant did not seem to be at a loss in talking with the officers; nor did he seem “intimidated by them at all.” In concluding there was no Miranda violation, the court further observed that appellant’s father thought appellant understood him when he said not to talk to the police officers.
With respect to voluntariness, the court again noted that there was no evidence of nervousness, distress, or emotional upset either before or during the videotaped interview. Appellant did not ask to speak with his father or another adult. The officers were not overbearing, aggressive, or intimidating, but rather were conversational in tone. The court further observed that appellant withstood any subtle pressure to say something incriminating, never wavering from his insistence that he was not present at the scene.
The court then discussed Peixoto’s mention of appellant’s brother, when he had said that appellant’s brother was in jail and was to be arraigned in the morning: “ ‘I mean we need to get to the bottom of this, you know. Maybe he don’t need to be there, you know.’ ” The court found this statement “troubling” and “borderline.” However, in the context of the entire interview, the court did not believe it invalidated the voluntariness of appellant’s statement, particularly since appellant did not cave in to the pressure and make an incriminating statement.
Regarding the “ruse of telling [appellant] that the DNA from the cap can time the placement of the cap at the scene,” the court noted that such a ruse is not prohibited, but instead is another factor to be considered in the totality. Appellant’s voice reflected more concern at that point, but he still denied being present at the scene, only acknowledging that he had a cap and lost it. The court believed appellant may have realized he was in trouble at that point because he then clearly invoked his right to an attorney, which led the police officers to immediately stop the interview.
Regarding appellant’s father’s statement to appellant that he should not talk to police without an attorney present, the court again noted that it is a factor to take into account. But, in this case, the court found that Mr. Pratcher’s statements and his testimony that appellant seemed to understand him demonstrate that appellant understood his right not to talk to police without an attorney present and chose to ignore it.
The court then concluded that appellant’s first statement, made at the police department, was voluntary. The court also reiterated its conclusion that the Miranda warning was properly given and that the waiver was knowing and intelligent.
As to the second interview, the court found that appellant clearly initiated the interview. It also believed that the officers acted properly in reminding appellant of his invocation of his right not to talk without an attorney present. The court further found that there was no legal requirement for a re-admonishment at the start of the second interview, given that there was only a short time—a bit more than an hour—between the end of the first statement and the beginning of the second.
Although appellant sounded concerned during the second interview, the court found that he initiated the interview repeatedly and there was no evidence of coercion during that interview. Appellant clearly wanted to change his original statement, asking if he could “tell them the additional piece and then invoke and get a lawyer and not talk to them any further.” The officers repeatedly told appellant he could invoke and get a lawyer at any time. Finally, the court noted that everything appellant said in both interviews was exculpatory, and there was no evidence of any coercion or that his will was overborne. Indeed, the evidence showed appellant understood he had a right to an attorney and invoked when “it was getting a little hot” during the first interview. The court thus concluded that both statements were voluntary and admissible.
B. Legal Analysis
1. Alleged Miranda Violation
When reviewing a denial of a suppression motion based on an alleged Miranda violation, “ ‘ “[w]e must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citation.]” ’ ” (People v. Crittenden (1994) 9 Cal.4th 83, 128.) The prosecution bears the burden of establishing by a preponderance of evidence that a defendant’s statements were not obtained in violation of his or her right against self-incrimination. (Colorado v. Connelly (1986) 479 U.S. 157, 168-169; People v. Bradford (1997) 14 Cal.4th 1005, 1033-1034.)
The Fifth Amendment privilege against self-incrimination is protected by procedural safeguards that ensure that any waiver of this right is made “voluntarily, knowingly and intelligently.” (Miranda, supra, 384 U.S. at p. 444.) The safeguards articulated in Miranda require that “[p]rior to any questioning, the [suspect] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” (Ibid.) Statements, whether inculpatory or exculpatory, obtained in violation of Miranda may not be used by the prosecution at trial. (Id. at pp. 444, 479.)
A waiver of Miranda rights need not be express so long as the totality of the circumstances indicates that it was knowing and voluntary. (North Carolina v. Butler (1979) 441 U.S. 369, 373; People v. Whitson (1998) 17 Cal.4th 229, 246.) A valid Miranda waiver may be implied when the defendant is fully informed of his or her constitutional rights, acknowledges that he understands his rights, but proceeds to give a statement to police. (People v. Whitson, at pp. 247-248.)
In the present case, appellant first argues that the statement by his father—made at the police station and in the presence of the officer who took custody of appellant—that he should not talk to police without an attorney present constituted an invocation of appellant’s right to counsel.
Appellant points to Welfare and Institutions Code section 626, subdivision (d), which provides that a peace officer who arrests a minor must take that minor before a probation officer without unnecessary delay. Section 627.5 provides that, when a minor is taken before a probation officer pursuant to section 626, the probation officer shall immediately advise the minor and his or her parent or guardian of the minor’s rights against self incrimination. “If the minor or his parent or guardian requests counsel, the probation officer shall notify the judge of the juvenile court of such request and counsel for the minor shall be appointed....” (§ 627.5.) According to appellant, the statement by appellant’s father invoked appellant’s right to counsel under section 627.5, and this invocation should have been communicated to the officers who interviewed him.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
However, as respondent points out, appellant did not raise this issue at the hearing on the motion to suppress in the trial court. In fact, what counsel argued was that appellant’s failure to remain silent after his father told him not to speak to a police without an attorney present suggested that appellant did not understand the Miranda warnings. When the court specifically asked if counsel was suggesting that the father could invoke for appellant, counsel merely said it was a factor to be considered “with respect to the knowing and intelligent waiver, the voluntariness of the statement and with respect to the issue of invocation of counsel.” Accordingly, appellant waived this claim by failing to raise it in the trial court. (See People v. Saunders (1993) 5 Cal.4th 580, 589-590.)
Moreover, even were the claim not waived, and even assuming that such a statement could be construed as an invocation of appellant’s right to counsel, the record does not support appellant’s claim that his father warned him, in the presence of a police officer, not to talk to police without an attorney present. Rather, Mr. Pratcher testified that he told appellant on the way to the police station not to speak to police without an attorney present; he believed he repeated this warning while at the police station, but he was not sure.
Appellant next argues that the coercive circumstances of his custody and interrogation require a finding that he did not validly waive his Miranda rights and that his statements to police were not freely and voluntarily made. According to appellant, during the first interview, the officers’ refusal to let appellant make a telephone call constituted a violation of section 627, subdivision (b), which provides in relevant part: “Immediately after being taken to a place of confinement... and, except where physically impossible, no later than one hour after he has been taken into custody, the minor shall be advised and has the right to make at least two telephone calls from the place where he is being held, one call completed to his parent or guardian, a responsible relative, or his employer, and another call completed to an attorney.... Any public officer or employee who willfully deprives a minor taken into custody of his right to make such telephone calls is guilty of a misdemeanor.” (§ 627, subd. (b).)
The trial court found that there may have been a violation of the portion of section 627, subdivision (b), that required an advisement of the right to call an attorney, but noted that the remedy would not be suppression of the statement, in light of article I, section 28, subdivision (f)(2) of the California Constitution. With respect to the officers’ refusal of appellant’s request to make a telephone during the first interview, the trial court did not believe appellant was attempting to exercise his right to call an attorney. Instead, the court believed that, in context, “when he’s asking about the phone, isn’t the immediate conversation before that about trying to remember when he lost the beanie and then he says he doesn’t remember. And the officer says, ‘Think about it.’ And [appellant] says, ‘Could I use your phone?’ Isn’t the context this has to do with finding out when he lost his beanie[,] from the transcript?”
The court found that the portion of section 627, subdivision (b), regarding advisement of the right to call a parent did not apply, given that appellant had come to the police station with his father.
The trial court’s finding that appellant was not attempting to invoke his right to call a parent or counsel when he asked to make a phone call is supported by substantial evidence. (See People v. Williams (1998) 16 Cal.4th 635, 659-660.)
After the exchange between appellant and the officer mentioned by the trial court, the officer said, “And if that’s something I think we need to go back to, we’ll get you the phone and we’ll... [¶]... [¶]—know exactly what it is.”
Therefore, a case relied on by appellant, People v. Burton (1971) 6 Cal.3d 375, 383-384, in which our Supreme Court held that a minor’s request to speak with his father during the interrogation constituted an invocation of his privilege against self-incrimination, is inapplicable here. (But see Fare v. Michael C. (1979) 442 U.S. 707 [whether minor’s request to see his probation officer is an invocation of Miranda rights depends on totality of circumstances].)
2. Voluntariness
“The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant’s involuntary confession. [Citation.]” (People v. Massie (1998) 19 Cal.4th 550, 576.) “A defendant’s admission or confession challenged as involuntary may not be introduced into evidence at trial unless the prosecution proves by a preponderance of the evidence that it was voluntary. [Citations.] A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. [Citations.]” (People v. Williams, supra, 16 Cal.4th at p. 659.)
In determining the voluntariness of a confession, “courts apply a ‘totality of the circumstances’ test.” (People v. Massie, supra, 19 Cal.4th at p. 576, citing Withrow v. Williams (1993) 507 U.S. 680, 693-694.) “Among the factors to be considered are ‘ “the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.” ’ [Citation.]... In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (People v. Massie, at p. 576.)
“On appeal, we review independently the trial court’s determination on the ultimate legal issue of voluntariness. [Citation.] But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including ‘ “the characteristics of the accused and the details of the interrogation” [citation],’ are subject to review under the deferential substantial evidence standard. [Citation.]” (People v. Williams, supra, 16 Cal.4th at pp. 659-660.)
With respect to the first interview, appellant argues that Peixoto’s false statement that DNA analysis could show, within a few hours, when a hair or hair follicle had been deposited in a beanie demonstrates coercion. He also asserts that the officers falsely told him that if he gave them names of other people who had been at the crime scene, they would not keep a record of what he told them, so he would not be a snitch. Appellant further argues that Peixoto’s reminder that appellant’s brother, Larry, was in custody and his suggestion that “maybe your brother doesn’t need to be in there” was another coercive tactic that rendered his statement to police involuntary. (See, e.g., People v. Steger (1976) 16 Cal.3d 539, 550 [“A threat by police to arrest or punish a close relative, or a promise to free the relative in exchange for a confession, may render an admission invalid”].)
“[A]lthough police may use deceptive tactics in attempting to persuade a defendant to confess, such deception may be considered in deciding whether the totality of the circumstances indicate that the confession was involuntary. [Citations.]” (In re Shawn D. (1993) 20 Cal.App.4th 200, 213 (Shawn D.) In Shawn D., the appellate court found that officers’ coercive actions—including repeated lies to the 16-year-old defendant, references to his being tried as an adult, and statements about his placing his girlfriend in a “ ‘precarious situation’ ” by denying any wrongdoing—were “not commendable.” (Shawn D., at p. 214.) However, it was the officers’ repeated suggestions that the defendant would be treated more leniently if he confessed that plainly rendered the defendant’s resulting confession involuntary. (Ibid.)
In the present case, as in Shawn D., the officers’ lies to appellant and the comment about his brother are factors to consider in determining whether coercive tactics by the police rendered appellant’s statement involuntary. Here, however, the potentially coercive incidents did not permeate the interview; nor did appellant receive any promises of leniency. (Compare Shawn D., supra, 20 Cal.App.4th at p. 214.) Moreover, as the trial court pointed out, none of these tactics worked: appellant never confessed to shooting Kelly and, when he perhaps became more concerned after the officers discussed his lost beanie with him, appellant ended the interview. As our Supreme Court concluded in People v. Williams, supra, 16 Cal.4th 635, 660: “[T]he record [belied] defendant’s claims that his admissions were the product of police coercion” where the defendant maintained his innocence during most of the interrogation and, even when he later admitted his presence at the scene of the murders, he insisted that he had played no role in the killings.
There are additional factors to consider in assessing the voluntariness of appellant’s statement during the first interview. (See People v. Massie, supra, 19 Cal.4th at p. 576.) On the one hand, appellant was only 15 years old, was described as being immature with a low average IQ, and was possibly suffering from PTSD. On the other hand, appellant had done quite well in school until his grades started slipping in middle school; he had suffered a recent arrest and was presumably familiar with police questioning and Miranda warnings; his father had told him not to talk to police without an attorney present, and believed appellant understood what he had told him, and appellant chose to ignore this advice until quite late in the interview; he was given Miranda warnings at the start of the interview and said he understood them; the interview was not prolonged; the officers were not aggressive or intimidating in their questioning; appellant did not seem nervous or upset and denied his involvement continuously; and the officers stopped the interview as soon as appellant invoked his right to an attorney.
Balancing the various factors for and against voluntariness, we conclude that, in the totality of the circumstances, appellant’s statement during the first interview was voluntary. (See People v. Massie, supra, 19 Cal.4th at p. 576.)
With respect to the second interview, appellant claims his statement should have been suppressed because it was the product of the first, tainted, interrogation. This argument fails, given our finding that appellant’s statement from the first interview was properly admitted. Appellant also argues, however, that the statement should have been suppressed because the prosecution did not prove that appellant voluntarily reinitiated questioning after invocation of his Fifth Amendment privilege. According to appellant, Peixoto’s comment, while driving appellant to Juvenile Hall, that he did not think appellant was being truthful and that he believed appellant had been at the scene were calculated to elicit a response from appellant and therefore constituted further police-initiated interrogation. We disagree.
First, Peixoto’s comment that he believed appellant was being untruthful and that there were witnesses who put appellant at the scene was in direct response to appellant asking why he was being booked for murder. Most of the remainder of the conversation during the drive to Martinez consisted of Peixoto telling appellant not to talk because he had already asked for an attorney. Later, when the officers took an additional statement from appellant, they repeatedly reminded him of his right to have an attorney present while he gave a statement. We thus agree with the trial court’s findings that appellant clearly initiated the second interview and that the officers acted properly in reminding appellant of his invocation of his right to counsel. As the United States Supreme Court explained in Edwards v. Arizona (1981) 451 U.S. 477, at pages 484-485, an accused, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Italics added; compare Rhode Island v. Innis (1980) 446 U.S. 291, 301 [“A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect... amounts to interrogation”].)
For all of these reasons, both of appellant’s statements to police were properly admitted at trial.
III. Exclusion of Evidence of Marlin Daniels’s Criminal Records
Appellant contends exclusion of evidence of Marlin Daniels’s criminal records violated appellant’s constitutional right to present a defense and to due process of law. In particular, he argues that Daniels’s records were admissible pursuant to Evidence Code sections 1103 and 1202.
A. Trial Court Background
After the prosecutor concluded his rebuttal case, defense counsel sought to introduce some of Marlin Daniels’s criminal records, arguing that the evidence was relevant to show that appellant reasonably relied on information he heard about Daniels’s violence, to corroborate statements appellant made to Dr. Friedman about having heard that Daniels had killed people. While counsel acknowledged that appellant’s statements to Dr. Friedman were not admitted for the truth, he thought the evidence should be admitted, given that the prosecutor had been permitted to impeach statements appellant made to Dr. Friedman. In particular, counsel asked the court to admit records pertaining to Daniels’s convictions for involuntary manslaughter, drug use and sales, and burglary, as well as a record of a restraining order against Daniels.
The prosecutor objected to the admission of this evidence, arguing, “there’s no legal basis for getting in a non-testifying individual’s prior record to show that a non-testifying defendant believed that he was a threat to him in some fashion because that’s what he told his psychologist when the statements don’t come in for the truth of that.”
The court denied appellant’s request, explaining: “I will note, initially, that all the evidence that was allowed on cross-examination to impeach the defendant was allowed to impeach his credibility and those were based on personal knowledge of those events; specifically, the discipline issues at school were based on his personal knowledge of those events since he was a participant in them.
“And that’s one example. Each piece of evidence that was allowed as impeachment of his credibility [was] strictly based on his personal knowledge of those events. [Appellant] has no knowledge, whatsoever, of Mr. Daniels’[s] criminal history, some of which occurred before he was born....
“The information that would corroborate [appellant’s] statements to the psychologist could have been those individuals who told [appellant] about Mr. Daniels’[s] criminal history or penchant for violence or penchant for whatever. Those were the individuals who allegedly told him that he should be concerned, wary, apprehensive of, scared of this individual for a variety of reasons. That would be the corroboration because the corroboration would necessarily have to be of [appellant’s] statements to the doctor that he was scared of this individual because of what he was told. There is no evidence whatsoever that [appellant] knew, had ever met or had ever seen Mr. Daniels. [¶]... [¶]
“The criminal history records, I don’t think there’s an issue about the foundation admissibility. It’s the relevance and whether or not they are proper corroboration. He has no knowledge of those. It doesn’t corroborate anything because he had no knowledge of those.
“All he had knowledge of, from what we heard, was from what other individuals told him.... [¶]... [¶]
“... The records themselves could not corroborate the information he gave the psychologist. It just couldn’t because he had absolutely no knowledge of that.
“Similarly—or actually, a collateral issue, Mr. Daniels being a dope fiend, in and of itself, is not relevant.... There is nothing to say that somebody who is a quote dope fiend, dope addict, acts in a particular manner.... [¶]... [¶]
“As I stated, there were a number of ways I think to legitimately—even with [appellant] not testifying, to legitimately corroborate the information, partially done with one of the witnesses... Ms. Brown aka Vaughn, who testified that she heard others telling [appellant] and him discussing it with them, that he should be afraid of, concerned about, protect himself from Mr. Daniels. That corroborated his statement to the psychologist, as would have the other individuals in the car or the other individuals who were at the scene.
“To bring in records, in my estimation, does not corroborate anything and would be improper as corroboration. So I will not allow those documents to come into evidence.”
The court also found that records regarding Daniels’s convictions for possession and sale of controlled substances to show he was frequently under the influence “was not relevant to the visit [to] the Pratcher home, aside from the fact that was the description Muriel Pratcher gave of his demeanor. What was, frankly, more important was whether or not he was violent or threatening during that encounter, and if that was related to [appellant], which there was testimony it was. His mother related that to him. That was the important piece of that evidence and relevant to the issues here. [¶] Whether he showed up drunk at their door or not doesn’t say anything to the issues at hand of whether he should be afraid of him.”
B. Legal Analysis
On appeal, appellant argues that Daniels’s criminal records were admissible under Evidence Code section 1103 “as evidence of Daniels’s bad character for assaultiveness and deadly violence,” and under Evidence Code section 1202 “as evidence to impeach Daniels’s hearsay statements that he just wanted to talk to” appellant. Respondent asserts that appellant failed to argue for admissibility on these specific grounds in the trial court, and has therefore waived the issue on appeal. (See Evid. Code, § 354; People v. Saunders, supra, 5 Cal.4th at p. 590.) Appellant responds that counsel’s comments at the hearing were sufficient to alert the trial court “that he was seeking to admit the evidence of Mr. Daniels’s violent background as evidence of his violent character, and that he desired that evidence to support [appellant’s] defense of imperfect self-defense.” (See People v. Rowland (1968) 262 Cal.App.2d 790, 798.)
Evidence Code section 1103 provides in relevant part: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:
Evidence Code section 1202 provides in relevant part: “Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing.”
We agree with respondent that defense counsel did not argue for admission of this evidence in the trial court on the grounds now raised on appeal. During extensive discussions in the trial court, both out of the presence of the prosecutor and in open court, counsel was focused primarily on the value of the records reflective of Daniels’s violence as corroboration of appellant’s statements to Dr. Friedman that he feared Daniels, and secondarily on using the records showing Daniels’s drug use as corroboration for Ms. Pratcher’s testimony that Daniels seemed to be under the influence when he came to her house. The court therefore also based its ruling solely on those grounds. There was nothing in the colloquy between counsel and the court to indicate that counsel also intended to raise Evidence Code sections 1103 and 1202 on the grounds argued on appeal to support admissibility of the evidence. Consequently, since the trial court never was given the opportunity to address these asserted grounds for admissibility, the issue is waived on appeal. (See Evid. Code, § 354; People v. Saunders, supra, 5 Cal.4th at p. 590.)
Appellant notes in his reply brief that, during the in camera hearing, defense counsel did raise Evidence Code section 1202 as a basis for admitting evidence of Daniels’s drug convictions, but only in the context of impeaching the expected testimony of Tamara Daniels, who in fact never testified. Obviously, that is not the ground on which appellant argues for admissibility of the records evidence under Evidence Code section 1202 on appeal. This new ground—that he had a right to rebut the statement of hearsay declarant Daniels to Ms. Pratcher that he was only looking for appellant to talk to him—was never raised in the trial court.
We agree with the trial court that Daniels’s criminal records reflecting violence were not corroborative of appellant’s statement to Dr. Friedman that he was afraid of Daniels and had heard that Daniels had killed someone. Jamelia Vaughn’s testimony corroborated appellant’s claim that he was afraid; facts of which appellant was unaware were not proper corroboration. (Cf. People v. Cash (2002) 28 Cal.4th 703, 726 [evidence of victim’s customarily violent debt collection practices was not relevant to show defendant’s state of mind at time he killed victim “unless defendant knew of those practices”].) As to the records of Daniels’s prior convictions for drug use, we agree with the trial court that this evidence was not relevant to whether appellant was afraid of Daniels.
IV. Jury Instructions
Appellant contends the trial court’s refusal to give two jury instructions and its refusal to modify one instruction violated his rights to due process of law and to present a defense. Specifically, appellant argues the court improperly (1) refused a defense request to instruct on the significance and effect of antecedent threats; (2) refused a defense request to instruct on heat of passion; and (3) refused a defense request to modify an instruction on imperfect self-defense.
A. Antecedent Threats
Appellant requested that the jury be instructed on antecedent threats by Daniels, pursuant to CALJIC No. 5.50.1, which provides in relevant part: “Evidence has been presented that on [a] prior occasion[s] the alleged victim [threatened]... the defendant. If you find that this evidence is true, you may consider that evidence on the issues of whether the defendant actually and reasonably believed [his]... life or physical safety was endangered at the time of the commission of the alleged crime.
“In addition, a person whose life or safety has been previously threatened... by [another]... is justified in acting more quickly and taking harsher measures for self protection from an assault by [that person]..., than would a person who had not received threats from... the same person....”
Appellant argued that there was sufficient evidence of perfect self-defense to warrant this instruction. The trial court found that the evidence would not support a finding of perfect self-defense, and therefore denied the request.
It is well settled that, upon a defendant’s request, and when supported by substantial evidence, the trial court must instruct that the jury may consider “the effect of the victim’s antecedent threats and assaults against the defendant on the reasonableness of [the] defendant’s conduct. [Citations.]” (People v. Garvin (2003) 110 Cal.App.4th 484, 488; accord, People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664 (Gonzales).) Respondent asserts that CALJIC No. 5.50.1 is inapplicable to the present case, not only because Daniels was not in fact appellant’s victim, but also because this instruction is not applicable to cases involving imperfect self-defense. It is true that CALJIC No. 5.50.1 discusses a defendant who “actually and reasonably believed” he or she was in danger, and most cases deal only with the effect of antecedent threats on a perfect self-defense claim.
On the other hand, the recently promulgated CALCRIM instruction on imperfect self-defense includes the following bracketed paragraphs: “[If you find that [the victim] threatened or harmed the defendant [or others] in the past, you may consider that information in evaluating the defendant’s beliefs.]
“[If you find that the defendant knew that [the victim] had threatened or harmed others in the past, you may consider that information in evaluating the defendant’s beliefs.]” (CALCRIM No. 571 (new Jan. 2006).)
Even assuming that appellant was entitled to have the jury instructed with CALJIC No. 5.50.1 in support of imperfect self-defense (and that he did not waive this issue by basing his request in the trial court solely on perfect self-defense), we nonetheless find that any error was harmless. (See Gonzales, supra, 8 Cal.App.4th at pp. 1664-1665 [trial court’s failure to give requested instruction on effect of antecedent assault was harmless].) As in Gonzales, counsel “thoroughly aired this subject in argument.” (Id. at p. 1664.) Also as in Gonzales: “The concept at issue here is closer to rough and ready common sense than abstract legal principle. It is also fully consistent with the otherwise complete [imperfect] self-defense instructions given by the court. It is unlikely the jury hearing the evidence, the instructions given and the argument of counsel would have failed to give [appellant’s] position full consideration.” (Id. at p. 1665, fn. omitted.) Appellant plainly cannot show that he was prejudiced by the court’s refusal to give the requested instruction regarding antecedent threats, under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 835-836.)
B. Heat of Passion
Appellant requested a heat of passion instruction, CALJIC No. 8.42, which provides in relevant part: “The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up [his] [her] own standard of conduct and to justify or excuse [himself] [herself] because [his] [her] passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted [him] [her] were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation....
“The question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from passion rather than from judgment.”
Defense counsel argued that the expert witness testimony regarding appellant’s emotional and neuropsychological impairments supported a heat of passion instruction because it showed appellant was acting under an emotional state that negated malice. The court ultimately denied the request, finding that a heat of passion instruction did not apply to the factual scenario of the case in terms of the evidence that had been presented.
Voluntary manslaughter is defined as “ ‘the unlawful killing of a human being without malice.’ ([Pen. Code,] § 192.) A defendant lacks malice and is guilty of voluntary manslaughter in ‘limited, explicitly defined circumstances: either when the defendant acts in a “sudden quarrel or heat of passion” (§ 192, subd. (a)), or when the defendant kills in “unreasonable self-defense”—the unreasonable but good faith belief in having to act in self-defense [citations].’ [Citation.]” (People v. Lasko (2000) 23 Cal.4th 101, 108.)
In the present case, the trial court instructed on imperfect self-defense, which focuses on a defendant’s subjective, unreasonable fears. The court correctly found, however, that a heat of passion instruction was not warranted given the lack of evidence that appellant’s “ ‘reason was actually obscured as the result of a strong passion aroused by a “provocation” sufficient to cause an “ ‘ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than judgment.’ ” ’ [Citation.]” (People v. Lasko, supra, 23 Cal.4th at p. 108, italics added; CALJIC No. 8.42.) Indeed, the expert testimony portrayed appellant as suffering from mental impairments that clouded his reason and caused him to overreact to a perceived threat.
Because the evidence did not support a finding that appellant’s situation was such “as also would have aroused the passion of the ordinarily reasonable person faced with the same situation” (CALJIC No. 8.42), the court properly refused to give a heat of passion instruction. (See People v. Garvin, supra, 110 Cal.App.4th at p. 489.)
C. Imperfect Self-Defense
Appellant requested that the court give the jury CALJIC No. 5.17, on imperfect self-defense. Defense counsel later asked that the third paragraph of the instruction be deleted. That paragraph provides: “[However, this principle is not available, and malice aforethought is not negated, if the defendant by [his] [her] [unlawful] [or] [wrongful] conduct created the circumstances which legally justified [his] [her] adversary’s [use of force], [attack] [or] [pursuit].]” The court said that it believed this paragraph might be applicable, based on appellant’s shooting of Tamara Daniels with a BB gun which, under appellant’s theory, eventually led to the shooting. The court ultimately gave the complete instruction.
Imperfect self-defense is also referred to as “unreasonable” self-defense.
CALJIC No. 5.17 provides in full: “A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of [voluntary] [or] [involuntary] manslaughter.
Appellant argues that the trial court erred in giving the third paragraph of CALJIC No. 5.17 because its language is “overbroad, ambiguous, and misleading,” specifically asserting that this paragraph “gives the erroneous impression that the doctrine of imperfect self-defense is not applicable if the defendant has committed any sort of wrongful or unlawful act, and what type of unlawful or wrongful act will suffice to deprive him of the defense is left to the unguided speculation of jurors.”
Appellant notes that this paragraph has been omitted from the new CALCRIM instruction on imperfect self-defense. (See CALCRIM No. 571 (new Jan. 2006).)
The paragraph in question is taken from language in In re Christian S. (1994) 7 Cal.4th 768, 773, footnote 1 and, although that language was dictum, our Supreme Court has since reiterated the same principle. (People v. Seaton (2001) 26 Cal.4th 598, 664 [“Because, however, defendant’s testimony showed him to be the initial aggressor and the victim’s response legally justified, defendant could not rely on unreasonable self-defense as a ground for voluntary manslaughter”].) CALJIC No. 5.17 correctly states California law.
Appellant further argues that even if the instruction was proper, the court had a sua sponte duty to define “wrongful conduct” for the jury since that phrase “has a specialized meaning which would not be readily understood by jurors.” (Cf., State v. Arthur (Wash. 1985) 708 P.2d 1230, 1232 [finding, in a broader self-defense context, phrase “unlawful act” to be impermissibly vague].) We disagree. The instruction itself set the context and made clear that appellant’s “unlawful or wrongful conduct” must have “created the circumstances which legally justified his adversary’s use of force, attack or pursuit.” (CALJIC No. 5.17.) The instruction also made clear that the jury had to determine whether appellant was the initial aggressor and, if so, to take that into consideration in determining his culpability. Thus, taken as a whole, the instruction is not impermissibly vague and the court did not err in denying appellant’s request to omit the third paragraph.
V. Alleged Prosecutorial Misconduct
Appellant contends the prosecutor’s many acts of misconduct—both during cross-examination of witnesses and argument—violated his rights to due process of law and a fair trial.
Our Supreme Court has explained that “ ‘ “ ‘[a] prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] 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 court or the jury.” ’ ” [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819.) The defendant need not show that the prosecutor acted in bad faith. (Id. at p. 822.)
The California Supreme Court has further observed that “ ‘ “ ‘a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]....’ ” ’ [Citation.] [¶] Prosecutors, however, are held to an elevated standard of conduct... because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.]” (People v. Hill, supra, 17 Cal.4th at pp. 819-820.)
A. Alleged Misconduct During Cross-Examination
1. Trial Court Background
During cross-examination of defense expert Dr. Myla Young, the prosecutor asked several questions about what, if anything, Dr. Young had read related to the crime before interviewing appellant. After Dr. Young responded in the affirmative to the question, “You didn’t read anything about the facts of the crime before you talked with the defendant?” the prosecutor asked, “Look at the probation report?” Defense counsel objected and asked to approach. After a sidebar conference, the court admonished the jury to disregard the last question and struck it from the record. At the next recess, defense counsel observed that the court had directed the parties not to mention the fact that appellant was on probation prior to committing the present offense. Counsel asked for a mistrial. The prosecutor responded that he was not asking about the probation report in terms of the prior gun charge, but about the probation report prepared for this case. The trial court stated that asking about the probation report should have been discussed first outside of the presence of the jury because lay people often have a misperception about what the term “probation” means. The court concluded by stating that it had admonished the jury and that the prosecutor’s question did not rise to the level of a mistrial.
During cross-examination of Dr. Howard Friedman, the prosecutor asked, in the context of the diagnosis of PTSD, “Would you agree that writing about incidents of violence—” at which point defense counsel objected. The court sustained the objection and told the jury to “[d]isregard that portion.” The court then refused defense counsel’s request to approach and told the prosecutor to “move on.”
This reference was apparently to appellant’s rap lyrics.
A short time later, the prosecutor was asking Dr. Friedman about factors that were relevant to him in deciding whether appellant suffered from PTSD, and asked “[B]ut if you had information that he knew who the person was, that he got the gun after finding out who the person was and shot him multiple times, wouldn’t that be possibly inconsistent with post traumatic stress disorder?” Defense counsel objected and asked to approach. The court announced the mid-morning recess and, after the jury left the courtroom, it stated that, during in limine motions, it had told both counsel not to raise the issue of appellant’s rap lyrics or his prior gun possession in front of the jury without first raising it with the court. Defense counsel claimed this was part of a pattern of conduct by the prosecutor. The court responded, “I think I could spend the rest of the day critiquing for each of you how I think this should go and how I think it’s going. That’s not for me to do....”
The court either misunderstood that the gun the prosecutor referred to was that used during the present offense or possibly was referring to a previous question and objection about which appellant is not complaining on appeal.
Later during the cross-examination of Dr. Friedman, the prosecutor asked, “After he lied to the police officers, they convinced him that they had sufficient evidence that might tie him up to the crime, he decided not to talk to them anymore; isn’t that true?” Defense counsel objected and asked to approach. After a sidebar conference, the prosecutor asked, “Doctor, like I said, once the officers told him that they had the evidence to link him to the murder, gray beanie, the defendant didn’t want to talk anymore; right?” Defense counsel objected again, “based on the Court’s ruling.” The court responded, “Rephrase, please. The jury will disregard the last question and answer.” A few questions later, the prosecutor asked, “Once someone tells the defendant that they’ve got sufficient information that ties him to the scene after his denial of having been there, isn’t it reasonable to say ‘I don’t want to talk anymore’—terminate the conversation I should say?” Defense counsel objected on relevance grounds and the court sustained the objection.
During subsequent recross-examination of Dr. Friedman, the prosecutor asked, “About my contacting you, on August 25th, I was sent a copy of your results and every statement that the defendant made was blacked out?” The court sustained defense counsel’s objection and granted his request to strike the question.
Later, after confirming that Dr. Friedman had testified that he had not told appellant what the tests were about before giving them to him, the prosecutor asked, “Do you know if the Defense counsel told him that or not?” The court sustained defense counsel’s objection and, when counsel asked to approach, excused the jury. Defense counsel argued that the question constituted misconduct because it implied that the defense fabricated a defense. “The bottom line is Mr. Brown is suggesting that I coached my client, told him about PTSD, gave him information to allow him to perform the tests appropriately. That is an absolutely flagrant, unsubstantiated, improper attack on the integrity of Defense counsel.” Counsel moved for a mistrial.
The court said it would look at cases cited by defense counsel and, during a subsequent conference outside the presence of the jury, defense counsel further argued that the question, by asking about communications between counsel and his client, went to privileged information. Counsel further argued that the question went to “the heart of the defense; namely, whether or not [appellant] fabricated this defense at the behest of Defense counsel....” The court stated that it believed the question was improper because it implied that appellant had found out what the test was about and that, “with that knowledge, you could by your answers, tinker with the results.” The court, however, further stated, “Unlike the cases that we have here, that was the beginning and end of the comment though. I think that it was an improper question. Had it gone further, I think it would clearly be misconduct.” The court further found that an admonition would be sufficient and that a mistrial was not called for.
The court later admonished the jury: “There was a question yesterday by the Prosecutor of the doctor regarding whether the doctor knew whether [defense counsel] had spoken to his client about a subject matter. It’s not a proper question. I’ve stricken it from the record. You’re not to consider that if you find that in your notes.”
A short time later, the prosecutor asked the court to tell the jury that there were times the prosecution was not allowed to speak with a defense witness. Defense counsel responded that the prosecutor had “repeatedly throughout the trial suggested through innuendo materials were not provided to him, he didn’t have opportunities to speak with experts.” Counsel asked that, if the court was going to instruct the jury at all, that it tell them the prosecutor “was given everything in a timely manner and according to the law.”
This instance of claimed misconduct does not involve a particular question by the prosecutor, but more generally concerns alleged improper insinuations related to discovery during the prosecutor’s questioning of various witnesses.
The court subsequently admonished the jury: “There were a couple of questions back and forth about materials being provided from one side or the other and talking to, in particular, experts by one attorney or the other. In general terms, let me tell you that there are certain requirements, laws, procedures that dictate the exchange of information between the parties, and when attorneys may speak with an opposing side’s expert witnesses and when they may not. [¶] Those are not matters for your consideration in any way, shape or form. If there’s been mention of that or implication in the questions by either side, it’s not a matter for your consideration, not an issue in this case.”
Earlier, the court had similarly admonished the jury at the request of the prosecutor, after defense counsel had asked Dr. Friedman on direct examination whether he had spoken with the prosecutor before trial.
2. Legal Analysis
It is misconduct for counsel to refer to facts not in evidence. (People v. Hill, supra, 17 Cal.4th at p. 828.) A prosecutor also commits misconduct if he or she attacks the integrity of defense counsel. (Id. at p. 832.)
In the present case, even assuming all of the complained of questions constituted misconduct, in light of the relatively minor nature of the improper questions in the context of a lengthy trial, as well as the response of the trial court, striking many answers and/or admonishing the jury, we conclude that appellant was not prejudiced by the alleged misconduct. (See People v. Hill, supra, 17 Cal.4th at p. 819.)
First, in context, the prosecutor’s question to Dr. Young regarding the probation report clearly was referring to the present case and, even if the jury was confused by the his use of the word “probation,” the jury already had information that appellant previously had been arrested for gun possession. Next, the question to Dr. Friedman regarding “writing about incidents of violence” was cut off before the jury could have any sense of where the prosecutor was going with the question. Moreover, the court admonished the jury to disregard the question, and the jury ultimately heard some of appellant’s rap lyrics. Next, regarding the question about whether appellant knew who the person was before he shot him, the jury also had heard testimony from Dr. Young—although not admitted for its truth—that suggested appellant could have learned of the victim’s identity after his brother approached and spoke with Kelly just before the shooting.
Next, regarding the prosecutor’s questions to Dr. Friedman about appellant’s decision to stop talking to police once he believed they had evidence tying him to the crime, it is not clear that the prosecutor was violating the court’s ruling at the sidebar conference, which was not reported, given that the trial court twice sustained objections to this question on relevance grounds, once telling the prosecutor to rephrase. Moreover, even if it was misconduct, it was minor.
Next, regarding both the prosecutor’s question to Dr. Friedman about whether he initially gave the prosecutor a copy of his report with all of appellant’s statements blacked out and defense counsel’s general complaint that the prosecutor had insinuated that counsel had not provided certain materials to him or had kept him from speaking to the experts, these slight instances of misconduct, if indeed they were misconduct, were cured by the trial court’s admonition to the jury that discovery-related matters were not an issue in the case and were not to be considered “in any way, shape or form.”
Finally, the court found improper the prosecutor’s question regarding whether Dr. Friedman knew if defense counsel had told appellant what the tests were about, but the court did not seem to believe it was misconduct. We conclude that, even if it was misconduct, it did not prejudice appellant given that the court immediately sustained defense counsel’s objection and subsequently admonished the jury that it had been an improper question, it had been stricken from the record, and the jury should not consider it.
We do not condone the prosecutor’s several failures—whether inadvertent or intentional—to abide by the trial court’s in limine rulings. But again, in light of the relatively minor nature of the improprieties in the context of a very long trial and the trial court’s swift action in sustaining objections and/or admonishing the jury, we do not believe appellant was prejudiced by the prosecutor’s questions, under either state or federal standards. (See People v. Hill, supra, 17 Cal.4th at p. 819.)
B. Alleged Misconduct During Closing Argument
1. Trial Court Background
During closing argument, while discussing how to understand premeditation and deliberation, the prosecutor said, “You can use your common life experiences. Premeditation and deliberation, the law says it’s not the amount of time but the opportunity to have meaningful reflection. That could be done, (snaps fingers), like that. [¶] How can you do it? How can you premeditate and deliberate in that short a period of time? I’ll give you an example. Driving your car, pull up, the light is yellow. You’ve got a choice. What are you thinking; punch it and go through, hit the brakes and I stop?”
Defense counsel objected that the prosecutor’s argument “misstates the law, legal principle, lowering the Prosecution’s burden of proof.” The court responded, “Ladies and gentlemen, as I’ve instructed you, the instructions on the law come from the Court. If the attorney’s arguments differ from those instructions, you are to follow my instructions. This is argument, not evidence.” The court then told the prosecutor to “[g]o ahead.”
The prosecutor continued: “You come up to that light. What are you going to do; hit the brakes or hit the gas? You generally look to your left, your right. You look to see if there are cars coming, people in the area and then you make a decision, hit it and make it or hit the brakes because I’m not going to make it. You have premeditated, thought about it and deliberated in your mind. And then you act, hit the brakes or hit the gas. That’s premeditation, and deliberation. It’s not labeled in minutes, seconds, hours.” The prosecutor then went on to discuss how premeditation and deliberation applied in this case.
2. Legal Analysis
It is misconduct for a prosecutor to misstate the law by attempting “ ‘to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.’ ” (People v. Hill, supra, 17 Cal.4th at pp. 829-830.) In evaluating a claim of prosecutorial misconduct based on a prosecutor’s comments to the jury, we must determine whether “ ‘there is a reasonable possibility that the jury construed or applied the prosecutor’s comments in an objectionable manner.’ [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 132-133; People v. Berryman (1993) 6 Cal.4th 1048, 1072.)
We do not agree with appellant’s portrayal of the prosecutor’s comments as trivializing the concepts of premeditation and deliberation. As the prosecutor said, he was merely using a real-life situation to attempt to explain the sort of short timeframe within which premeditation and deliberation can occur. These comments did not constitute misconduct. (See People v. Hill, supra, 17 Cal.4th at pp. 819-820.)
VI. Alleged Juror Misconduct
Appellant contends juror misconduct deprived him of his constitutional right to a fair trial.
A. Trial Court Background
After the jury rendered its verdict, but before sentencing, appellant moved for a new trial, based, inter alia, on alleged misconduct by Juror No. 6. In support of the motion, appellant submitted a declaration from defense counsel, declarations from two jurors who served on the jury with Juror No. 6, and a declaration from a defense investigator who had talked to another juror. In his declaration, defense counsel stated that he became aware, through several interviews with jurors, that Juror No. 6 had “failed to disclose during voir dire that he had been the victim of a drive-by shooting at a barbershop at some point in the past, and that he communicated this information to the jury during deliberations.” Defense counsel further stated that, had he known about this incident, he would have questioned Juror No. 6 further and might have asked the trial court to remove the juror for cause or might have exercised a peremptory challenge against him.
Juror No. 4 stated, in his/her declaration, that Juror No. 6 had told the jury near the end of deliberations that “[h]e grew up in a tough neighborhood in Hunter’s Point, San Francisco. He understood that most jurors did not have this experience. When he was younger he was the victim of a drive-by shooting. He was present in a barbershop waiting for a haircut when a car drove by and sprayed bullets into the shop. He was lucky not have been hit. [Juror No. 6] did not state whether anyone in the shop was hit. [Juror No. 6] told the jury that he was relating this experience to show that one can grow up in a violent neighborhood and still make positive choices, as he had done, and that living in such a neighborhood was not an excuse for criminal behavior. He did not want the other jurors to think he was an expert on the subject. [¶] [Juror No. 6] described this experience toward the end of jury deliberations, prior to the jury reaching its verdict.” Juror No. 7’s declaration recounted the same incident in very similar words. Finally, in his declaration, defense investigator Doug Henley stated that he had spoken on the telephone with Juror No. 10, who told him that Juror No. 6 “had made... statements about being a victim of some kind of shooting in Hunter’s Point. I asked her why he said that, and she stated they were a very forthright and honest jury. She believed the shooting experience was a factor for him in reaching a decision in the case.”
Before trial, Juror No. 6 had filled out a questionnaire, in which he answered “no” to the following two questions: Question No. 13, which asked, “Have you, a family member, close friend, or significant other been a victim, witness, or defendant in a criminal matter?” and question No. 32, which asked, “Have you, a family member, or close friend ever been the victim of a shooting or another type of serious physical assault?”
After argument on this issue, the court ruled as follows: “I think there are two ways to look at this. I think that reasonably the Court could find that there has been no misconduct because there is insufficient evidence one way or the other to show that the omission by the juror of the information was deliberate and there is just a lack—there is just as much of a lack of information that it was honest but inadvertent. And I think that the Court could find that there is not sufficient evidence of misconduct based on that, what has been presented.
“I think the Court could also reasonably find that there could be misconduct, that information should have been disclosed. The question on the questionnaire was sufficient to put the juror on notice that they should have disclosed that, but then the question becomes, is there prejudice? In my opinion there is just not enough evidence from what has been presented to find that there is prejudice. I could find either way. I think the conclusion is the same, that either there is no misconduct and we don’t move further or even if there is misconduct, there is no prejudice and we end up at the same place.
“On the record in front of me presented on the motion for new trial, I do not believe that there is a sufficient basis to overturn the verdict of the jury. Deny the motion for new trial on that issue.”
B. Legal Analysis
“We begin with the basic proposition that one accused of a crime has a constitutional right to have the charges against him or her determined by a fair and impartial jury. [Citations.] A prospective juror’s ability to be fair and impartial is explored during the process of voir dire.... [¶]... [¶] ‘A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.]’ [Citations.]” (People v. Duran (1996) 50 Cal.App.4th 103, 111-112 (Duran).)
In determining whether to grant a new trial based on juror misconduct, the trial court must first determine whether the evidence presented is admissible. (Duran, supra, 50 Cal.App.4th at p. 112.) Evidence Code section 1150, subdivision (a), provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental process by which it was determined.”
If the court finds the evidence admissible, it must then decide whether such evidence establishes misconduct. (Duran, supra, 50 Cal.App.4th at p. 113.) “There is serious question whether honest voir dire mistakes can ever form the basis for impeachment of a verdict. [Citations.].... [¶] What is clear is that an honest mistake on voir dire cannot disturb a judgment in the absence of proof that the juror’s wrong or incomplete answer hid the juror’s actual bias. Moreover, the juror’s good faith when answering voir dire questions is the most significant indicator that there was no bias. [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 300 (Hamilton).)
Finally, if the court finds that misconduct did occur, it “must determine whether the misconduct was prejudicial. [Citations.] Once misconduct has been established, prejudice is presumed; reversal is required unless the reviewing court finds, upon examination of the entire record, there is no substantial likelihood that any juror was improperly influenced to the defendant’s detriment. [Citations.]” (Duran, supra, 50 Cal.App.4th at p. 113.)
On review, “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination. [Citations.]” (People v. Nesler (1997) 16 Cal.4th 561, 582.)
Here, with respect to admissibility, the trial court properly found that (1) the evidence contained in the declarations regarding Juror No. 6’s statement about the barbershop shooting was admissible as potential evidence of misconduct during voir dire, and (2) the other jurors’ statements regarding the effect of Juror No. 6’s statement on jury deliberations were not admissible, pursuant to Evidence Code section 1150.
We need not address the trial court’s alternative ruling that any misconduct was not prejudicial because we conclude that the evidence presented does not establish misconduct. First, in comparing question No. 13 in the juror questionnaire with the statement Juror No. 6 made during deliberations, this question does not appear—even to us—to apply to the situation he described in this juror’s comment. This question was included with a number of questions under the heading, “Criminal Justice System,” and the question itself, regarding whether the juror had been a victim or witness in a criminal matter plainly referred to official criminal matters such as those involving police or the court system. Nothing in the declarations submitted suggested that the shooting Juror No. 6 witnessed had led to his involvement in the criminal justice system.
Next, question No. 32 asked whether the juror or anyone close to him had “ever been the victim of a shooting or another type of serious physical assault.” While this question might have applied to Juror No. 6’s experience at the barber shop, it is arguably ambiguous as to whether someone who was in a barbershop when bullets sprayed the shop—who was not actually shot and there was no indication that he was a target—would consider himself a “victim” as used in this question, rather than a bystander or witness. Given that appellant did not present evidence directly from Juror No. 6 regarding his reasons for answering question No. 32 as he did, and without undue speculation on our part about his possible thought processes, we cannot conclude that any omissions on the questionnaire or during voir dire were intentional, rather than inadvertent. (See Hamilton, supra, 20 Cal.4th at p. 300.)
We observe that the declarations contained characterizations by other jurors of what Juror No. 6 said. But none of those characterizations purported to quote Juror No. 6. Thus, while appellant is correct that it is “deemed established” (see Tapia v. Barker (1984) 160 Cal.App.3d 761, 766) that Juror No. 6 made a statement during deliberations about his experience with a shooting in a barbershop, that does not mean the trial court must assume that Juror No. 6 used the precise words used in the declarations when those declarations do not so aver. Thus, we reject as speculation appellant’s assumption that this juror used the word “victim” in describing his experience. Moreover, even assuming he did so, the evidence presented on the motion for a new trial does not prove that his incomplete answer hid his actual bias, but instead merely shows that he may not have understood that his situation, in which he was not shot and was apparently not the target of the shooting, required an affirmative answer to this question. (See Hamilton, supra, 20 Cal.4th at p. 300.)
In sum, the evidence is insufficient to prove that Juror No. 6 committed misconduct or was actually biased. (See Duran, supra, 50 Cal.App.4th at p. 113.)
VII. Cruel and Unusual Punishment
Appellant contends his sentence of 50 years to life in prison violates state and federal guarantees against cruel and unusual punishment. He argues both that (1) considering the circumstances of the offense and his particular characteristics, the sentence is disproportionate, and (2) a sentence of 50 years to life violates national and international legal standards. He asserts that his sentence should be reduced to second degree murder or voluntary manslaughter with a firearm enhancement.
A. Trial Court Background
On January 16, 2007, appellant filed a motion to modify his sentence to manslaughter with use of a firearm, arguing that the 50-year-to-life sentence that was statutorily required for his convictions constituted cruel and unusual punishment as applied. He also filed a motion requesting a declaration that his prospective sentence was unconstitutional under the Eighth Amendment and in violation of international law.
After hearing argument at the sentencing hearing on January 19, 2007, the trial court denied both motions, ruling as follows:
“I think these issues come up more frequently than certainly we have ever seen in the past. And it’s terribly unfortunate, but it appears as though the majority of the cases that come to court involve young people between the ages of 15 and 26 years old involved in the most serious of crimes. It’s not the appropriate time to have a discussion on why that is, but that seems to be the effect, that that is the age range that we are seeing.
“And a number of very serious cases including murder cases, lots of murder cases involve individuals in that age range. I think that is a tragedy for society, that young people, for some reason, have reached the point where the value of life doesn’t have the same weight that it once did. But that is a reality as well. We don’t see as many 40-year-[olds] involved in these cases.
“The issue before the Court is whether or not the perspective [sic] sentence rises to the level that it is unconstitutional as cruel and unusual punishment. The 50 years to life sentence in this case—or enumerated sentence in this case is a combination of the initial conviction itself, plus the enhancement, which was found to be true by the jury.
“The Legislature has seen fit to impose an enhancement on certain weapons-related crimes....
“The only question for this Court on this particular issue is whether or not that perspective [sic] sentence is unconstitutional, based on the constitution—the precepts of the constitution and not whether or not in a particular case there are those who would disagree with it. That’s a separate issue. The issue that I’m ruling on now is whether or not it’s unconstitutional.
“In my review of the case law, I don’t believe that it is unconstitutional. I don’t believe that there is support for that. And I don’t think that this case is, by its factual scenario, combined with the fact that Mr. Pratcher was 15 at the time, falls in a category of something—or a scenario that is so different from other cases that it makes that super speculative [sic] sentence unconstitutional.
“So I would deny that motion....”
In imposing sentence, the court discussed in detail appellant’s request to reduce his sentence and on his particular circumstances:
“With regard to the evidence in the trial, what—what troubled me through the trial itself, and a lingering feeling that I had throughout was that whether it was Mr. Kelly or the other gentleman, I couldn’t get past the feeling that someone was going to get very hurt or die that day. The circumstances leading up to this, unfortunately, almost guaranteed that.
“To have a shotgun in the hands of someone who was obviously that angry almost guarantees a bad result. And it happened to be Mr. Kelly who lost his life, but someone was going to lose their life that day or be seriously injured. You don’t fire a rifle at someone and not have something bad happen unless you are really lucky that your shot doesn’t hit.
“In the circumstance, the fact that this took place in a crowded neighborhood, the chances of that—those bullets not hurting someone were small. There was a great deal of planning that went into this. And the planning that took place did not match the perceived danger. The actions taken of not only finding the gun, looking for another weapon that was more powerful that was not obtained, hiding the weapon, and shooting at someone sitting in a car who absolutely there is no evidence and there was no suggestion that—whether it was Mr. Kelly or anyone else—but that Mr. Kelly presented a danger or risk in no way, shape or form. He was merely sitting in the car.
“And whether it was Mr. Daniels or Mr. Kelly, that was true. The fact that there were four successive shots with a gun that required manipulation to fire those successive shots that occurred, probably led the jury to the first degree murder verdict, but certainly indicated to the Court that this was not an accident or something random. It was intended.
“The fact that Mr. Pratcher was 15 at the time truly is a tragedy for society, but it doesn’t change the outcome and it doesn’t change the fact that Mr. Kelly is dead. Whether it was a 40-year-old, a 30-year-old or the 15-year-old, the end result is the same. I agree that we view, in certain circumstances, someone’s age as a factor in evaluating their behavior, but we also have to evaluate that behavior in terms of the history, their history and what led up to the event.
“I think Mr. Pratcher started having problems when he moved for probably a variety of reasons. And we heard during the in limine motions, most of which the jury did not hear because I didn’t think it was appropriate for them to consider as part of their verdict, but I heard about aggressive, violent behavior that clearly was different than the elementary school, but clearly was not justifiable and was outwardly aggressive toward others.
“We can spend all afternoon on what rap music lyrics mean, an expression or someone’s true feelings come out. I can tell you that the rap lyrics that I reviewed, all but one line of which the jury did not hear because I did not think it was appropriate, were extremely violent. I’m not convinced that this is merely the musings of a young person. There’s more on the level of venting. I think it is terribly sad that someone at the age of 15 is feeling that kind of rage, and fixing that is not going to happen.
“The statutory—in addressing the Defense requests under Dillon[ to reduce the conviction to a lesser offense of second degree or voluntary manslaughter, the Dillon case stands by itself. The case had been cited to me only twice now. This is the second time and only recently. It stands by itself.
People v. Dillon (183) 34 Cal.3d 441 (Dillon).
“I’ve done quite a bit of research. And there are virtually no other cases that go where Dillon went. It stands for the fact, I think, that the Court has the authority to reduce a conviction, if appropriate, under the circumstances.
“I don’t think that the factual scenario is analogous to our situation here. And I truly do not find that the factual scenario in this case would justify this Court from—to diverge from the statutorily-mandated sentence for the conviction that the jury brought in. I just don’t think that it falls in that category.
“As I said before, I think that there was a lot of thought, whether misguided or not is separate. But an awful lot of thought went into this act and a great deal of coldness to allow someone to shoot into an occupied car at someone who’s clearly not a threat; and not just once, but four times. I think you could even explain the first one in some fashion, but two, three and four, I don’t know how you explain them.
“So I don’t believe that a reduction to a lesser-included offense would be appropriate in this case under the circumstances.”
The court then sentenced appellant to 25 years to life on the first degree murder conviction, with a consecutive term of 25 years to life on the Penal Code section 12022.53 firearm use enhancement.
B. Legal Analysis
We, like other courts, are troubled by imposition of lengthy sentences on youthful offenders. (See, e.g., In re Nunez (2009) 173 Cal.App.4th 709, 727 (Nunez) [concluding that “youth so striking as petitioner’s” (14 years old) combined with absence of injury or death to victim raised strong inference that a sentence of life in prison without parole for kidnapping offense constituted cruel and unusual punishment]; People v. Em (2009) 171 Cal.App.4th 964, 981 (conc. & dis. opn. of Moore, J.) (Em) [“A 50-year-to-life term for an immature 15-year-old with an underdeveloped sense of responsibility, who was an aider and abettor and not the shooter, and who had a relatively minor criminal record, is not within the limits of civilized standards”].) However, given the rigid requirements of the applicable sentencing laws and the extremely narrow grounds available—under both the state and federal constitutions—for finding that a sentence constitutes cruel and unusual punishment, we reluctantly conclude that the facts of this case do not permit such a finding.
1. Disproportionality Claim
Appellant first argues that the sentence in this case is disproportionate, considering the circumstances of the offense and his particular characteristics, and therefore constitutes cruel and unusual punishment.
“Article I, section 17 of the California Constitution prohibits infliction of ‘[c]ruel and unusual punishment.’ A sentence may violate this prohibition if ‘ “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” ’ [Citation.] [¶]... [Appellant] must overcome a ‘considerable burden’ to show the sentence is disproportionate to his level of culpability. [Citation.] Therefore, [f]indings of disproportionality have occurred with exquisite rarity in the case law.’ [Citation.]” (Em, supra, 171 Cal.App.4th at p. 972.) An important consideration in making a disproportionality determination relates to “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (In re Lynch (1972) 8 Cal.3d 410, 425.)
In re Lynch, supra, 8 Cal.3d at pages 426-429, also discussed other considerations in making such a determination, which include comparing the punishment imposed with punishments prescribed by California law for more serious offenses and comparing the punishment imposed with punishments prescribed by other jurisdictions for the same offense. (See pt. VII, B., post, for a discussion of these factors in the context of appellant’s contention that a sentence of 50 years to life for any 15-year-old constitutes cruel and unusual punishment.)
“ ‘Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.’ [Citation.]” (Em, supra, 171 Cal.App.4th at p. 971.)
Appellant relies on Dillon, supra, 34 Cal.3d 441, in which a 17-year-old defendant was convicted of first degree murder and attempted robbery, and was sentenced to life in prison after he shot and killed a man during an attempt by the defendant and his friends to steal the marijuana plants the victim was growing. The defendant had previously overheard the victim threaten to shoot anyone who came on his property. (Id. at pp. 450-451.) When the defendant heard the victim approaching and saw him carrying a shotgun, the defendant “began rapidly firing his rifle at him.” (Id. at p. 452.) Our Supreme Court concluded that the specific facts of the crime and the defendant’s culpability demonstrated that the imposition of a life sentence constituted cruel and unusual punishment. (Id. at pp. 451, 489.)
In the present case, appellant points out that he was only 15 years old when he shot Terrance Kelly. He presented evidence at trial both that adolescents’ brains are immature and that appellant was immature even for a 15-year-old. He also presented evidence that he was of low average intelligence and that he suffered from PTSD. In addition, there was evidence that appellant came from a loving family; that he had suffered only one prior juvenile adjudication for gun possession, a misdemeanor, for which he was on probation at the time of the shooting in the present case; and that he was doing well in school at Juvenile Hall.
There was some evidence suggesting that appellant killed Kelly after mistaking him for Marlin Daniels, whom appellant believed was going to retaliate against him for shooting Daniels’s daughter with a BB gun. However, there was also evidence suggesting that appellant killed Kelly because he did not like him and did not want Kelly invading his territory.
The verdict does not reflect which scenario the jury believed, although in a letter to the trial court, one juror stated a belief that there was no evidence showing appellant “was out to murder” Kelly, and requested that the court take into consideration appellant’s age, maturity level, and other influences when it sentenced him.
Appellant argues that this evidence, particularly regarding his impairments and his likely intent when he shot Kelly, while not necessarily negating his guilt of murder, “mitigate the seriousness of his offense.” He asserts that, like the defendant in Dillon, he was surrounded and influenced by older people, including his brother Larry, Kevin Vaughn, and Markel Robinson, and that his actions were influenced by stress, anxiety, panic, and fear, even as he “became trapped in [a] deadly situation that was, inexcusably, of his own making.”
Appellant, however, omits several important additional facts noted by the trial court in its lengthy and detailed discussion of this issue before and during the sentencing hearing. With respect to appellant, the court noted that it had heard during in limine motions “about aggressive, violent behavior that... clearly was not justifiable.” The court also cited rap lyrics that appellant had written, most of which again were not admitted into evidence at trial, but which were extremely violent. The court stated: “I think it’s terribly sad that someone at the age of 15 is feeling that kind of rage, and fixing that is not going to happen.”
In addition, unlike in Dillon—where the defendant suddenly panicked and shot the victim—the evidence shows that a great deal of planning went into this crime, well beyond what the perceived danger warranted. This included obtaining a gun, looking for a more powerful gun, and waiting for the victim to appear. Furthermore, at the time appellant shot Kelly, who was simply sitting in a car, there was no suggestion that whoever appellant thought was in the car—whether Kelly or Daniels—presented any danger. Also, the fact that appellant fired four successive shots with a gun that required manipulation for each shot fired showed that the killing was intended. As the trial court stated, “an awful lot of thought went into this act and a great deal of coldness to allow someone to shoot into an occupied car at someone who’s clearly not a threat; and not just once, but four times. I think you could even explain the first one in some fashion, but two, three and four, I don’t know how you explain them away.”
The parties dispute whether we can consider the grand jury testimony of Kevin Vaughn, which was never alluded to by the trial court, in determining whether appellant’s sentence constituted cruel and unusual punishment and, if so, whether the testimony in fact bolsters the prosecution argument that appellant knew that it was Terrance Kelly in the car before shooting him. Because consideration of this testimony is not necessary to our conclusion, we need not decide whether it is something that can be taken into account in deciding this issue.
We believe that appellant’s youth, immaturity, PTSD diagnosis, and minor criminal record are all factors to consider here. However, when balanced against the other very troubling circumstances of the crime and evidence of appellant’s anger and danger to society, as discussed by the trial court, we cannot conclude that this is one of those cases, occurring “ ‘with exquisite rarity’ ” (Em, supra, 171 Cal.App.4th 964, 972), that like Dillon, warrants a finding of disproportionality. (See Em, at p. 976 [sentence of 50 years to life imposed on immature 15-year-old, who was convicted of first degree felony-murder as an aider and abettor, was not disproportionate when balanced against seriousness of crime, defendant’s participation in crime and gang affiliation, and danger defendant presented to society].)
Appellant’s situation is distinguishable from the recent case of Nunez, supra, 173 Cal.App.4th 709, in which the 14-year-old petitioner had been convicted of kidnapping for ransom and was sentenced to life in prison without parole (LWOP) even though no one had been harmed or killed during the offense. The Fourth District Court of Appeal held that the “case is among the rarest of the rare in which the punishment imposed violates article I, section 17 of the California Constitution.” (Id. at p. 725.) The court further held that “because petitioner is the only known offender under age 15 across the country and around the world subject to an LWOP sentence for a nonhomicide, no-injury offense, we also conclude his severe sentence is so freakishly rare as to constitute arbitrary and capricious punishment violating the Eighth Amendment.” (Id. at p. 715.)
In finding the imposed sentence void in the abstract for offenders younger than 16, the Nunez court noted that the consequences of a defendant’s actions inform the nature of the offense. (Nunez, supra, 173 Cal.App.4th at p. 726, quoting In re Lynch, supra, 8 Cal.3d at p. 426 [“ ‘ “[T]here are rational gradations of culpability that can be made on the basis of injury to the victim” ’ ”].) The court further stated that “[a]ge also matters,” and that the petitioner’s youth and the absence of injury or death to any victim raised a strong inference that imposition of an LWOP sentence for the kidnapping offense violated our state Constitution. (Nunez, at p. 726.) Finally, that “the state’s sentencing scheme makes a perverse distinction between juvenile offenders under 16 years old, providing for harsher punishment for those who do not harm a victim kidnapped for ransom than for those who commit murder with special circumstances,” the imposition of a greater punishment for kidnapping was “arbitrary and grossly disproportionate.” (Id. at pp. 729-730.)
In finding the sentence void as applied to the petitioner, the court noted that, in addition to his youth and the no-injury consequences of his offense, the petitioner had a “slender history of criminality” and unrebutted evidence of PTSD and major depression, resulting from, inter alia, having been shot and having seen his brother shot and killed. (Nunez, supra, 173 Cal.App.4th at pp. 732-733.) These facts, combined with the “anomaly” of the state judging petitioner irredeemable by imposing an LWOP sentence “while at the same time extending hope of rehabilitation and parole to all juvenile kidnappers... who murder their victims,” convinced the court that the petitioner’s sentence violated the state Constitution as applied. (Id. at pp. 733-734.) Although there are some similarities between appellant and the petitioner in Nunez, that case involved virtually unique and anomalous sentencing disparities, as well as unrebutted evidence of severe PTSD based on extreme experiences in the petitioner’s life far beyond anything shown here.
The court found, for similar reasons, that the petitioner’s sentence violated the Eighth Amendment. (Nunez, supra, 173 Cal.App.4th at pp. 734-737.)
The fact that appellant was only 15 years old at the time of the shooting obviously adds to the already immense tragedy of this case. Nonetheless, as we have just discussed, given “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (In re Lynch, supra, 8 Cal.3d at p. 425), appellant has not overcome the “ ‘considerable burden’ ” required under California law to demonstrate that the sentence is disproportionate to his level of culpability.
2. United States Constitution
“The Eighth Amendment to the United States Constitution states, ‘[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ [Citation.] ‘The Eighth Amendment, which forbids cruel and unusual punishments, contains a “narrow proportionality principle” that “applies to noncapital sentences.” ’ [Citation.] The appropriate standard for determining whether a particular sentence for a term of years violates the Eighth Amendment is gross disproportionality.” (Em, supra, 171 Cal.App.4th at pp. 976-977.) Appellant has failed to show such gross disproportionality. (See id. at p. 977 [citing two three strikes cases in which United States Supreme Court upheld sentences of 25 years to life and 50 years to life for petty thefts, concluding that if such sentences were not grossly disproportionate, a 15-year-old’s sentence of 50 years to life for murder was not grossly disproportionate]; compare Nunez, supra, 173 Cal.App;4th at pp. 734-737.)
3. National and International Legal Standards
Appellant also argues that, regardless of the particular facts of this case, his sentence constitutes cruel and unusual punishment because the Unites States Supreme Court has consistently recognized that juveniles deserve special treatment under the law and are less culpable than similarly-situated adult offenders, evolving standards of decency require juveniles to be sentenced less harshly than adult offenders, and customary international law requires that juvenile offenders be given special protection.
Appellant relies on Roper, supra, 543 U.S. 551, 561, 564, in which the United States Supreme Court held that the death penalty is excessive punishment for people under 18 years old, relying on “ ‘the evolving standards of decency that mark the progress of a maturing society’ ” and a “national consensus against the death penalty for juveniles.” The court further explained that various differences between juveniles and adults “render suspect any conclusion that a juvenile falls among the worst offenders.” (Id. at pp. 569-570; accord, Thompson v. Oklahoma (1988) 487 U.S. 815, 822-823 [reaching same conclusion with respect to minors under age 16.)
Appellant argues that the reasoning and result in Roper is equally applicable to the present case, in which a 15-year-old was sentenced to 50 years to life in prison. The Supreme Court, however, has repeatedly stated that “ ‘[p]roportionality review is one of several respects in which we have held that ‘death is different,’ and have imposed protections that the Constitution nowhere else provides. [Citations.]” (Harmelin v. Michigan, supra, 501 U.S. at p. 994; see also Ring v. Arizona (2002) 536 U.S. 584, 605-606.) In Roper, supra, 543 U.S. 551, 568-569 also, the court observed that “the death penalty is reserved for a narrow category of crimes and offenders.” Thus, the death penalty is subject to “ ‘unique substantive and procedural restrictions’ ” that do not apply to lengthy prison terms. (People v. Demirdjian (2006) 144 Cal.App.4th 10, 14, quoting Thompson v. Oklahoma, supra, 487 U.S. at p. 856 (conc. opn. of O’Connor, J.); cf. Harris v. Wright (9th Cir. 1996) 93 F.3d 581, 585 [“[W]hile capital punishment is unique and must be treated specially, mandatory life imprisonment without parole is, for young and old alike, only an outlying point on the continuum of prison sentences. [Citation.] Like any other prison sentence, it raises no inference of disproportionality when imposed on a murderer”].)
Indeed, the Roper court affirmed the juvenile defendant’s sentence of “ ‘life imprisonment without eligibility for probation, parole, or release except by act of the Governor.’ ” (Roper, supra, 543 U.S. at p. 560, quoted in State v. Craig (La.App. 2006) 944 So.2d 660, 662.)
Appellant argues that there is an international consensus against sentencing minors to life in prison. Roper, supra, 543 U.S. 551 described international opinion as “instructive” but “not controlling.” (Id. at pp. 575, 578.) The court in Roper rested its conclusion that the Eighth Amendment does not permit the death penalty to be imposed on juvenile offenders largely on the trend in this country toward abolition of the juvenile death penalty, noting that such a trend “carries special force in light of the general popularity of anticrime legislation [citation], and in light of the particular trend in recent years toward cracking down on juvenile crime.” (Id. at p. 566.)
In contrast to the death penalty, there is no consensus in the United States against life sentences for juvenile offenders. Appellant has provided no relevant information regarding the law on life imprisonment of minors in this country. Respondent, however, has cited an article showing that, as of September 2006, 42 of the 50 states permitted the sentences of life in prison without the possibility of parole for juvenile offenders. (Note, Disposing of Children: The Eighth Amendment and Juvenile Life Without Parole After Roper (2006) 47 B.C. L.Rev. 1083, 1089-1090.) In 27 of those 42 states, life without parole was mandatory for certain enumerated crimes. (Id. at p. 1090.) Some states permit minors to be sentenced to life in prison without the possibility of parole for crimes other than murder, such as robbery, aggravated assault, and rape. (Ibid.)
Statistics cited in a pre-Roper case demonstrate that the consensus on this subject has not changed dramatically in recent years. In Harris v. Wright, supra, 93 F.3d 581, 583-585, the Ninth Circuit Court of Appeals rejected the argument that a mandatory sentence of life in prison without the possibility of parole for a 15-year-old defendant constituted cruel and unusual punishment because, inter alia, there was a strong legislative consensus against imposing mandatory life sentences without parole on offenders under the age of 16. The court first explained that, “[t]o establish that evolving standards of decency preclude his punishment, [the defendant] bears the ‘heavy burden’ [citation] of showing that our culture and laws emphatically and well nigh universally reject it. [Citation.] The most important indicators of the nation’s penal sentiments are the enactments of its elected legislatures. [Citation.]” (Id. at p. 583, fn. omitted, citing Stanford v. Kentucky (1989) 492 U.S. 361, 369-371, 373)
The Harris court then noted that, while several states prohibited mandatory life terms on defendants for crimes committed before the age of 16, there were at least 21 states that did impose mandatory life terms without parole on 15-year-old offenders, and concluded: “Whatever degree of consensus might be necessary before we could overturn the considered judgment of a state legislature, this doesn’t come close.” (Harris v. Wright, supra, 93 F.3d at p. 584.) The court’s conclusion that a mandatory sentence of life in prison without the possibility of parole for a 15-year-old defendant did not constitute cruel and unusual punishment was based, inter alia, on the defendant’s failure to satisfy his burden of proving a strong legislative consensus against imposing mandatory life sentences without parole on offenders under the age of 16. (Id. at pp. 584-585.)
Finally, a number of California appellate courts have upheld life sentences imposed on juvenile offenders against claims of cruel and unusual punishment. (See, e.g., Em, supra, 171 Cal.App.4th 964 [affirming two consecutive 25-years-to-life sentences imposed on 15-year-old for aiding and abetting felony-murder]; People v. Demirdjian, supra, 144 Cal.App.4th 10 [affirming two consecutive 25-years-to-life sentences imposed on 15-year-old convicted of two special circumstance murders]; People v. Villegas (2001) 92 Cal.App.4th 1217 [affirming 40-years-to-life sentence imposed on 17-year-old convicted of attempted first degree murder, mayhem and assault with a firearm]; People v. Gonzales (2001) 87 Cal.App.4th 1 [affirming 50-years-to-life sentences imposed on two 16-year-olds convicted of aiding and abetting first degree murder]; People v. Ortiz (1997) 57 Cal.App.4th 480 [affirming 26-years-to-life sentence imposed on 14-year-old convicted of vicarious felony-murder]; People v. Guinn (1994) 28 Cal.App.4th 1130 [affirming life sentence without possibility of parole imposed on 17-year-old convicted of special circumstance murder]; compare Nunez, supra, 173 Cal.App.4th 709.)
Appellant cites various international treaties and conventions that reflect international understanding that juveniles must be afforded special treatment in the criminal justice system. For example, the Convention on the Rights of the Child (CRC), which was adopted on November 20, 1989 (28 I.L.M. 1448) and, according to appellant, was ratified by 191 of the 193 nations of the world (not including the United States), provides: “Every child deprived of liberty shall be treated... in a manner which takes into account the needs of persons his or her age.” (CRC, art. 37(c), 28 I.L.M. at p. 1470.) The CRC further provides that “the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society” must be taken into account. (CRC, art. 40(1), 28 I.L.M. at p. 1471.) (See also Hussain v. United Kingdom (1996) 22 E.H.R.R. 1, 19, ¶ 53 [European Court of Human Rights concluded LWOP sentence imposed on juvenile would “raise issues” under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, “in respect of the inhumanity of imposing life sentences on children”].) Although appellant may be correct that the trend in international law is toward the protection and rehabilitation of juvenile offenders rather than punishment and deterrence, at this time in history, there is plainly no consensus in this country, either legislative or judicial, against imposition of a sentence of 50 years to life in prison on juvenile offenders who have been convicted of first degree murder. (See Roper, supra, 543 U.S. at pp. 566, 575, 578.)
Appellant’s claim that his sentence constitutes cruel and unusual punishment cannot succeed.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Richman, J.
“(A) The minor is alleged to have committed an offense that if committed by an adult would be punishable by death or imprisonment in the state prison for life.
“(B) The minor is alleged to have personally used a firearm during the commission or attempted commission of a felony, as described in Section 12022.5 or 12022.53 of the Penal Code.”
We further note that subsequent to Atkins v. Virginia and Roper, the California Supreme Court reiterated its holding in Manduley when addressing other questions regarding treatment of minors in adult court. (See People v. Thomas (2005) 35 Cal.4th 635, 642, 644.)
“(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”
“As used in this instruction, an ‘imminent’ [peril] [or] [danger] means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer.
“[However, this principle is not available, and malice aforethought is not negated, if the defendant by [his] [her] [unlawful] [or] [wrongful] conduct created the circumstances which legally justified [his] [her] adversary’s [use of force], [attack] [or] [pursuit].]
“[This principle applies equally to a person who kills in purported self-defense or purported defense of another person.]”