Opinion
A097542.
10-27-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHN W. SLOAN, Defendant and Appellant.
Appellant John W. Sloan was convicted of second degree murder. On appeal, he alleges a multitude of errors, including improper jury instructions, Miranda errors, wrongful admission of evidence, sentencing error, and cumulative error. We affirm.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
I.
PROCEDURAL BACKGROUND
Sloan was charged with two counts of murder, one of Javier Duran and one of Francisco Barba Gonzalez. (Pen. Code § 187, subd. (a).) In each count, the district attorney alleged that Sloan personally and intentionally discharged a firearm, personally and intentionally discharged a firearm causing death, and personally used a firearm within the meaning of section 12022.53, subdivisions (b)-(d). The district attorney additionally alleged in each count that Sloan inflicted great bodily injury (§ 12022.7) and committed each murder intentionally and by means of discharging a firearm from a motor vehicle with the intent to inflict death. (§ 190.2, subd. (a)(21).)
Francisco Barba Gonzalez is referred to in the reporters transcript as Francisco Barba. We continue to do so in this opinion for clarity.
All further section references are to the Penal Code, unless otherwise indicated.
Following a jury trial, the jury found Sloan guilty of second degree murder as to count 2, the killing of Francisco Barba. The jury deadlocked on count 1, and the court declared a mistrial. The jury found the multiple murder special circumstance not true. The jury found true the personal use of handgun enhancements under section 12022.53, subdivisions (b), (c), and (d). The jury also found true the allegation that Sloan personally inflicted great bodily injury to Francisco Barba under section 12022.7, subdivision (a).
The court sentenced Sloan to a total sentence of 45 years. The court imposed a 20-year sentence for the conviction of count 2, and imposed a 25 years to life consecutive term pursuant to section 12022.53, subdivision (d).
At sentencing, the court imposed a three-year term for a great bodily injury enhancement under section 12022.7, subdivision (a). The court struck this term following appellants request for correction of a sentencing error.
This timely notice of appeal followed.
II.
FACTUAL BACKGROUND
A. Prosecution Case
On January 16, 2000, Don Gunther was at home on Cruikshank Road in Kelseyville. That evening there was a party at the housing complex east of his home, at which about six or seven people had gathered outside. At about 10:30 p.m., Gunther called the sheriffs department to complain about noise from the party. He saw the sheriff arrive and talk to individuals at the party, then leave. The party resumed and became louder.
After Gunther went to bed, he heard a car with a loud exhaust arrive. He heard "some guys talking," followed by two shots. Then "all heck broke loose, a lot of yelling and screaming and crying." Gunther heard the vehicle leave quickly. He called the police.
Catriona Matthews attended the party on Cruikshank Road that night with her friends Melissa Cain and Vanessa Calvillo, who was dating Javier Duran. She saw a brown station wagon pull into the parking lot. Javier Duran, age 20, and Francisco Barba, age 15, went over to the car. She did not pay much attention until "all of a sudden [she] saw Francisco [Barba] running, and [she] heard two shots, and [she] saw Javier [Duran] fall to the ground." Matthews testified that it was possible that she heard the two shots first and then saw Duran running. She ran over to Duran and began screaming. Roberto Ramirez and Vanessa Calvillo ran over. Ramirez told Matthews and Calvillo to take off Durans shirt so he could cover the wound. Duran was not breathing, so Ramirez administered CPR. Duran began breathing, and Ramirez went to help Francisco. Matthews and Calvillo stayed with him, but Duran "stopped breathing when he was in [their] arms."
It appears that Vanessa Calvillo is erroneously identified as "Melissa" in this portion of the transcript.
Matthews testified that she did not know if Duran or Barba owned a gun, had tattoos, or were gang members. She did not see any weapons in Durans or Barbas possession on January 16, 2000.
Ramirez, Durans uncle, attended the January 16 party while he was on leave from the military. Ramirez knew that Duran was involved in a gang called the "Surenos" for a while, but he "stayed away from that" after his daughter was born.
Deputy Sheriff Andrew Davidson was dispatched to the scene of the party about 10:30 p.m. regarding a noise complaint. The individuals at the party were cooperative, and he left after about five minutes. Deputy Davidson was dispatched to the scene again at 12:18 a.m. He arrived to find Duran lying on the ground not breathing, and Barba lying on the ground unconscious, with what appeared to be a gunshot wound to the chest. An ambulance arrived, and medical personnel pronounced Duran dead. Barba was taken to the hospital, where he died.
Deputy Davidson inadvertently parked his patrol car on the spot where the brown station wagon had been. Deputy Davidson did not move the patrol car, and remained there until about 7:00 a.m. to protect the crime scene.
Police found two shell casings at the crime scene, and sunflower seeds near the casings. Criminalist John Yount testified that the two casings identified as being from the crime scene were fired from two different guns, one a Taurus or Baretta nine-millimeter, and one by an Intratech pistol.
Police obtained a surveillance tape taken that evening at a gas station in Kelseyville about a 70-second drive from the scene of the shooting. The tape showed Sloan exiting a tan station wagon in the gas station at approximately 12:11 a.m. The tape also showed Houghton John exiting the drivers side of that vehicle, and his brother Adrian John inside the vehicle.
Police conducted a search of Houghton Johns home on January 21, 2000. They found casings from a nine-millimeter handgun, items in both Houghton Johns and Sloans names, and two newspapers with front page stories about the killings. Officers also found graffiti with the number 187, the Penal Code section for murder, and a sketch of a handgun. They found a brown station wagon concealed in brush behind the residence.
Detective Christopher Rivera packaged the two shell casings found in Houghton Johns home and the two shell casings found at the crime scene and sent them to the Department of Justice for fingerprint testing. No fingerprints were found, and the casings were then sent to Yount at a different Department of Justice lab. Detective Rivera was of the opinion that the reason Yount determined that the two casings at the scene were from different guns was because either he or the Department of Justice mixed up two of the shell casings.
Detective Chris Carlisle of the Lake County Sheriffs department also participated in the search of Houghton Johns home. Detective Carlisle asked John if he would accompany him to the police station to talk to him, and John went voluntarily. Detective Carlisle told John why he wanted to talk with him and that he was free to leave at any time. John initially denied any knowledge of the killings. After approximately four hours of questioning, John agreed to provide a written statement. He indicated that on the night of the killings, he and Sloan were out driving in Kelseyville. They saw some lights behind them, and because John had no license, they turned off the highway into the apartment complex parking lot to "ditch" the sheriff. Two males approached their car. One was approximately 23 years old and tall, the other looked about 19 years old and was stocky. They both started throwing gang signs and asking if they were "bangers," or gang members. John and Sloan responded that they were not bangers, but "Jines," slang used by John to mean "Indians." The males accused them of being "busters." Sloan responded they were not, and asked them if they had some weed for sale. The "tall guy" said yes, "reached into his left pants pocket . . . and pulled out a gun, like a black-looking one with no hammer." Sloan "pulled out his gun from his waist and fired twice. It wasnt loud; he fired quickly . . . . [¶] The tall guy fell over . . . [¶] The second guy took off running. [¶] We just took off in shock."
Sloan was arrested on January 24, 2000. After advising Sloan of his Miranda rights, Detective Carlisle and Deputy Sheriff Corey Paulich questioned Sloan. After three and a half hours of denying involvement in the killings, Sloan stated "Okay, Ill tell you; I shot the fuckers." After asking Sloan further questions about the incident, Detective Carlisle then told Sloan he "wanted to go through it again with the use of a tape recorder." In the recorded interview, Sloan stated that he and Houghton John drove up to the scene of the party because they thought the partygoers were Indians with whom they could drink. Two males approached their car and asked if "You guys south you guys bang or somethin[g]." "The man just walked it up. Like that and they just said fuck it and just walked up and the little boy is sayin[g] you guys bang." The males asked if they were "busters," a term Sloan understood to mean a "chump" and to "disrespect Nortenos." Sloan and Houghton John responded that they were not busters. The tall male started "throwing some shit," meaning gang hand signs. Sloan thought the tall male was "going for his gun somehow" and Sloan fired two shots. Sloan was "not sure" if he saw the gun or he "just thought." Sloan dropped his gun in a lake. At the end of the taping, Detective Carlisle asked if Sloan remembered being advised of his Miranda rights, and Sloan responded affirmatively.
Detective Carlisle later took Sloan out on the sheriffs patrol boat to search for the gun. They used an underwater camera at the site where Sloan indicated the gun was thrown, but found nothing.
On January 25, 2000, an officer at the jail where Sloan was being held called Deputy Paulich to say that Sloan wanted to talk to him. Deputy Paulich arrived at the jail to find Sloan crying. Sloan asked him if this could be a death penalty case. Deputy Paulich responded that it was "potentially," but it was not his decision. Sloan felt remorseful, and asked Deputy Paulich how he could express that to the families of the victims. Deputy Paulich suggested he write a letter of apology, which Sloan did.
Houghton John was also in the same jail. Following the interview, Deputy Paulich went to the tower area of the jail where speakers in the cell are controlled to listen to any conversations between Sloan and John. He overheard Sloan tell John the same things he had told the officers in the interview the day before.
At trial, Houghton John refused to testify.
Deputy Paulich also overheard Sloan talking to another inmate, Stanley Hines. Sloan told Hines that "he was looking at a possible self-defense." Hines asked Sloan if he had seen any weapons, and Sloan indicated he had not. Hines told him that he "didnt have a self defense case unless he could find someone who said the victims had some type of weapon."
Ralph Preciado shared a cell with Sloan in the Lake County Jail in July or August 2000, where they talked about Sloans case. Sloan initially told Preciado that Houghton John was the shooter, and that the weapon was disassembled and was "all over the lake." After a newspaper report that a parolee had been found in possession of a nine-millimeter Taurus, Sloan got "a little worried." Following publication of the article, Sloan told Preciado that the gun was not thrown in the lake, but that "somebody had gotten ahold of the John family, and they were interested in purchasing a weapon to do somebody with."
Sloan then told Preciado that he was the shooter. He explained that when they drove up to the scene, two people approached the car and asked what gang affiliation they were claiming. Sloan told them they were not "bangers." The two called them "Fing busters" and became verbally aggressive. Sloan indicated that one of them "made a motion as though he was going to pull something out." Sloan became frustrated and was spitting sunflower seeds at the two people, "[a]nd just with that he just pulled the weapon out and fired [twice]." Sloan and Preciado went to the jail law library one day and positioned chairs like a four-passenger vehicle in order to discuss the shooting and Sloans defense.
In January 2000, Joseph Deanda lived in Redwood Valley and owned a nine-millimeter Taurus handgun that he kept in his home. He last saw his handgun on January 4, 2000, in his bedroom dresser drawer. On January 13, 2000, he noticed that his handgun was missing, and filed a report with the Mendocino County Sheriffs Department. Marissa Silvera and her sister Marianne Barekzaie cleaned Deandas house on January 5, 2000, and were alone in the house for a while. Marissa Silvera was Sloans girlfriend at the time, and they subsequently married. Marianne Barekzaie never saw a handgun in Deandas house, nor did she see Silvera take a handgun from his residence.
B. Defense Case
Ed Collins, a retired San Francisco police officer, testified regarding the characteristics of gangs and gang members. He testified that the term "buster" is "very, very serious . . . so inflammatory that it would be the equivalent of calling an African-American the N-word. Its extremely insulting." He testified that the tattoos on Barbas legs signified membership in the Sureno gang. The tattoo of the roman numeral "XIV" that Sloan had on his neck indicated affiliation with the Nortenos.
One of the tenets of the gang lifestyle is never to let an insult go unredressed. It is expected that gang members, even those as young as 14 or 15, will be armed "to one degree or another." Collins testified that "Surenos and Nortenos do not bluff . . . . If you see someone reaching into a waistband, you know hes a gang member, he knows youre a gang member, its serious. They dont fake it. If you reach for your waistband . . . that would definitely be a threatening gesture to anybody . . . ."
Lakeport Police Officer Rob Rumfeld testified as an expert on gangs and gang activity in Lake County. He testified that the Street Villains were a local Sureno gang whose violence was limited to assaults without the use of guns. In Lake County, there had never been "any firearm-related assaults from our Villains." Officer Rumfeld knew Francisco Barba, " a young member who was being groomed into the ranks of the Villains." He had received reports that Barba carried a gun; however, he never found one in his numerous searches of Barba. Barba had never been arrested for any crime.
III.
DISCUSSION
A. Jury Instructions
Sloan argues that the courts instructions on voluntary manslaughter and involuntary manslaughter as they relate to imperfect self-defense were erroneous. He maintains that the instructions applied the modified doctrine of manslaughter set forth in People v. Blakeley (2000) 23 Cal.4th 82 retroactively, and that because the error was prejudicial, his conviction of the greater offense of second degree murder must be reversed. Respondent argues that the instructions as a whole adequately instructed the jury and that regardless of any error, there was no prejudice.
At trial, Sloans counsel indicated he was "in accordance with the instructions." We may review any instruction given, even though no objection was made below, to consider whether the defendants substantial rights were affected by the alleged instructional error. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
Sloan also argues that the failure to instruct the jury properly violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution to due process and trial by jury. "Defendants cursory argument that this instructional error violated his federal rights to trial by jury and due process of law is without merit." (People v. Crowe (2001) 87 Cal.App.4th 86, 97, fn. 9; see People v. Lasko (2000) 23 Cal.4th 101, 113.)
Prior to People v. Blakeley, the difference between whether a killing in imperfect self-defense was voluntary or involuntary manslaughter was based on whether there was intent to kill. " `A person who kills another in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury may be guilty of voluntary or involuntary manslaughter depending on the existence of an intent to kill. " (People v. Ceja (1994) 26 Cal.App.4th 78, 86, citing People v. Glenn (1991) 229 Cal.App.3d 1461, 1467, both abrogated by People v. Blakeley, supra, 23 Cal.4th 82.)
In People v. Blakeley, supra, the court held that "when a defendant, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary, not involuntary, manslaughter." (People v. Blakeley, supra, 23 Cal.4th at pp. 88-89.) Prior to Blakeley, such a killing would have been involuntary manslaughter. Likewise, the same killing done without a conscious disregard for life is now involuntary manslaughter. The court recognized that this holding expanded the definition of voluntary manslaughter to include killings committed with conscious disregard for life, even if done without intent to kill. (Id . at p. 92.) Consequently, the Blakeley court held that retroactive application of its holding would be unconstitutional. (Id. at pp. 91-92.)
In the companion case of People v. Lasko, supra, 23 Cal.4th 101, the court held that "an unlawful killing without malice (because of a sudden quarrel or heat of passion) is voluntary manslaughter, regardless of whether there was an intent to kill." (Id. at pp. 109-110.) People v. Crowe, supra, 87 Cal.App.4th 86 held that Laskos holding that voluntary manslaughter does not require an intent to kill did not redefine that crime, and therefore could be relied upon by defendants regardless of when the crime occurred. (Id. at p. 95.)
The killings here occurred on January 16, 2000, and People v. Blakeley applies only to killings taking place after June 2, 2000. (People v. Blakeley, supra, 23 Cal.4th at pp. 91-92.)
The jury here was instructed with a combination of pre- and post-Blakeley instructions. The instruction given for voluntary manslaughter read: "Every person who unlawfully kills another human being without malice aforethought but with an intent to kill, is guilty of voluntary manslaughter in violation of . . . Section 192(a). [¶] There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury. [¶] `Conscious disregard for life, as used in this instruction, means that a killing results from the doing of an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his or her conduct endangers the life of another and who acts with conscious disregard for life. [¶] In order to prove this crime, each of the following elements must be proved: [¶] (1) A human being was killed; [¶] (2) The killing was unlawful; and [¶] (3) The perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life; and [¶] (4) The perpetrators conduct resulted in the unlawful killing. [¶] A killing is unlawful, if it was not justifiable." The jury was instructed on the definition of involuntary manslaughter, in pertinent part as follows: "Every person who unlawfully kills a human being, without malice aforethought, and without an intent to kill, and without conscious disregard for human life is guilty of the crime of involuntary manslaughter in violation of . . . Section 192, subdivision (b). [¶] There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury."
Even if these instructions were improper, reversal is required only if Sloan was prejudiced as a result. " `[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.]Watson [(1956) 46 Cal.2d. 818, 836 . . . .] A conviction of the charged offense may be reversed in consequence . . . only if, "after an examination of the entire cause, including the evidence," . . . it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred. " (People v. Lasko, supra, 23 Cal.4th at p. 111, citing People v. Watson, supra, 46 Cal.2d at p. 836.)
Sloan argues that the alleged instructional error was prejudicial because it is reasonably probable that a "correctly-instructed jury" would have found that the killing of Barba was "[c]ommitted . . . without intent to kill, . . . with a conscious disregard for life, but . . . with an actual but unreasonable belief in the need for self-defense." Consequently, he argues that the jury would have found him guilty only of involuntary manslaughter.
The weak link in Sloans prejudice argument is his contention that it is reasonably probable that, if given pre-Blakeley instructions on manslaughter, the jury would have found he acted in imperfect self-defense in his killing of Barba. The jury, however, rejected Sloans claim that he acted in imperfect self-defense, and Sloan does not assert that the instruction given on the definition of imperfect self-defense was error.
The jury necessarily found the killing of Barba was not in unreasonable self-defense when they returned a verdict of second degree murder. The jury was instructed on the difference between murder and manslaughter as follows: "The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. [¶] When the act causing death, though unlawful, is done in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, the offense is manslaughter. In that case, even if an intent to kill exists,[] the law is that malice, which is an essential element of murder, is absent. [¶] To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused death was not done in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury." Consequently here, as in Lasko, the jury verdict of second degree murder demonstrates that the jury found that the People proved that the killing was not in unreasonable self-defense. (People v. Lasko, supra, 23 Cal.4th at p. 114.)
Sloan maintains that the jury necessarily found no intent to kill Duran or Barba, and that consequently they could not have convicted him of voluntary manslaughter on the instructions given. To the contrary, the instructions allowed a verdict of voluntary manslaughter without finding an intent to kill. The jury was instructed that "[i]n order to prove [voluntary manslaughter], each of the following elements must be proved: [¶] 1. A human being was killed; [¶] 2. The killing was unlawful; and [¶] 3. The perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life; and [¶] 4. The perpetrators conduct resulted in the unlawful killing." (Italics added.)
Moreover, Sloans contention that the fact that the jury deadlocked regarding whether the Duran killing was in self-defense demonstrates a reasonable probability that a properly instructed jury would have found imperfect self-defense as to the killing of Barba is likewise meritless. None of the factors that would allow reasonable people to differ about whether the Duran killing was in self-defense exist in regard to the killing of Barba. In contrast to the evidence regarding Duran, there was no evidence that anyone saw or thought they saw Barba with a weapon. The most the evidence suggests is that Barba, described by Sloan as the "little boy," made gang hand signals while standing behind Duran and asking about Sloans possible gang affiliation. No reasonable jury could find that Sloan acted in imperfect self-defense in killing Barba.
The question was not unreasonable, given the "XIV" tattoo on Sloans neck.
Sloan next argues that the evidence showed that he committed the Duran killing in self-defense, and that his state of mind "should be deemed" the same for the Barba killing because they were committed in "immediate succession." "If the shot fired at Duran was fired in self-defense, as several jurors believed, then so was the shot which was fired at Barba" because Barba was an equal participant in the confrontation and was Durans ally and supporter throughout the confrontation, standing only a few feet behind Duran.
Sloans legal and factual arguments both fail. First, the cases on which Sloan relies for his claim that his state of mind should be deemed the same for both killings are inapposite. Neither Fifth Circuit Court of Appeals case involved a claim of imperfect self-defense, nor are they binding on this court. (See De La Rosa v. Lynaugh (5th Cir. 1987) 817 F.2d 259; Green v. Estelle (5th Cir. 1979) 601 F.2d 877, abrogated on other grounds in Taylor v. Whitley (5th Cir. 1991) 933 F.2d 325, 327 fn. 1.)
Moreover, while the evidence supporting Sloans claim of imperfect self-defense in regard to the killing of Duran was equivocal, the evidence of imperfect self-defense in regard to the killing of Barba was not. Consequently, there is no support for Sloans claim that his state of mind in regards to the necessity for self-defense should be deemed the same as to both killings. There was simply no evidence supporting Sloans contention that he had an honest or actual belief that it was necessary to defend himself from imminent peril or harm by Barba.
Accordingly, even if the jury instructions were improper, there is no reasonable probability that Sloan suffered any prejudice.
B. Miranda Arguments
Sloan asserts a number of Miranda violations. First, he argues that the prosecution did not prove that he was advised of all four Miranda rights prior to his initial questioning in which he confessed to the killing. Second, he maintains that questioning should have ceased when he allegedly told police something to the effect of "he had nothing to say . . . ." Finally, Sloan argues that Deputy Paulich failed to read him his Miranda rights after Sloan summoned him to the jail but before their conversation, and that Sloans inculpatory statements were tainted by the illegality of his confession the previous day.
Sloan states that it is unclear whether trial counsel adequately raised all the grounds for the alleged Miranda violations at the motion to suppress below which he now asserts on appeal. He argues that if his trial counsel failed to object or otherwise properly preserve these issues or others that he now raises on appeal, he was deprived of the effective assistance of counsel. Accordingly, we consider all the issues raised by Sloan on appeal on the merits.
Sloan first argues that the prosecution failed to prove he received all the components of the required Miranda warnings. He urges that Detective Carlisles testimony that he read Sloan his Miranda rights "from a department issued waiver form" was inadequate to prove that he was advised of his Miranda rights. "An appellate court applies the independent or de novo standard of review . . . to a trial courts granting or denial of a motion to suppress a statement under Miranda insofar as the trial courts underlying decision entails a measurement of the facts against the law . . . . As for each of the subordinate determinations, it employs the test appropriate thereto. That is to say, . . . it scrutinizes for substantial evidence the resolution of a pure question of fact; . . . and it scrutinizes for substantial evidence the resolution of a mixed question of law and fact that is predominantly factual." (People v. Waidla (2000) 22 Cal.4th 690, 730.)
Sloan also asserts that Houghton John was not advised of all four Miranda rights, and that consequently there is no "presumption" that Sloan was either. We have not applied any presumption, but have reviewed the trial courts determination in this regard for substantial evidence.
Sloan asserts in his October 6, 2003 letter brief that, as in People v. Neal (2003) 31 Cal.4th 63, the police here had a "policy" of intentionally violating Miranda rights by continuing to question suspects despite any invocation of the right to silence. In Neal, the officer admitted that he "intentionally continued interrogation in deliberate violation of Miranda in spite of defendants invocation of both his right to remain silent and right to counsel . . . in order to obtain a statement . . . `[f]or possible further impeachment at trial . . . . " (Id. at p. 74.) In contrast here, Detective Carlisle neither testified that he intentionally violated Miranda nor that he had a policy to do so. In response to a hypothetical question, Detective Carlisle agreed only that "there are actually cases where a person would say I dont want to talk to you, but you would continue an interview depending on the demeanor."
At the hearing on the motion to suppress, Detective Carlisle testified that Sloan was arrested on January 24, 2000. He and Deputy Paulich drove Sloan to the Lower Lake substation. After getting Sloan some orange juice, Detective Carlisle read him Miranda rights from a department issued waiver form "verbatim." Detective Carlisle testified that "[I]ts a two-part form. The top has Miranda rights, and the bottom has a permission to search form. Thats what I commonly use during interviews to read Miranda rights." Sloan expressly waived his Miranda rights. "[Sloans] reply was that he heard his Miranda rights. He knew of his Miranda rights, and he was willing to talk to us . . . . He was very confident. And there was a mention of he had either heard his Miranda rights before or he knows his Miranda rights." Deputy Paulich likewise testified that the Miranda admonitions were read to Sloan from the form. Sloan testified at the hearing on the motion to suppress that he did not really recall if his Miranda rights were read to him, but they were "probably; I dont know." The trial court found that "its clear to the court that the officer, that is, Chris Carlisle, did read the defendant his rights; both officers have testified that that occurred, and the defendant in the taped portion of the statement admitted that he was given his rights." There was substantial evidence supporting the trial courts factual determination in this regard.
Sloan also asserts that his statement was involuntary because police made a "careful choice" not to have him sign a Miranda waiver form. There is no requirement, however, that Miranda rights be waived in writing. (See North Carolina v. Butler (1979) 441 U.S. 369, 373.)
Sloan next maintains that despite his assertion of his right to remain silent, the officers continued the interrogation. While we "review the record and make an independent determination [of whether Sloan invoked his right to remain silent], we . . . may `give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence." (People v. Jennings (1988) 46 Cal.3d 963, 979.)
Sloan testified at the hearing on the motion to suppress that he told officers several times "throughout the interrogation" that he did not want to talk to them. Deputy Paulich testified that he did not remember Sloan telling the officers he had "nothing to say," though he "may have said that." Detective Carlisle also agreed that Sloan may have said that, but went on to explain the context. The defense attorney asked Detective Carlisle if Sloan "ever state[d] to you that he didnt want to talk to you?" and Detective Carlisle responded: "I dont believe so. I believe he was just saying that you guys should go get the people who actually killed them."
Statements similar to that claimed to have been made by Sloan during interrogations have been found insufficient under the circumstances to invoke the defendants right to silence. In People v. Jennings, supra, the defendant told police during an interrogation: "Im not going to talk . . . Im not saying shit to you no more, man. You, nothing personal man, but I dont like you. Youre scaring the living shit out of me . . . . Thats it. I shut up." (People v. Jennings, supra, 46 Cal.3d at p. 977.) The court held that, in the context of the entire interrogation, these statements could be construed as an indication that he would talk no more to that particular officer, rather than a general invocation of his right against self-incrimination. (Id. at pp. 978-979.) In People v. Ashmus (1991) 54 Cal.3d 932 (abrogated on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117), the defendant interrupted an officers questioning to state: "youre gonna to try to con-, now I aint saying no more. [¶] [Police Officer]: Pardon? [¶] [Defendant]: You aint gonna, no. Im not gonna get accused of somethin. I love people too much. [¶] [Police Officer]: Um hum. [¶] [Defendant]: I wouldnt even kill a fly, Im sorry. [¶] [Police Officer]: Who said anything about killing anybody? [¶] [Defendant]: I wouldnt even hurt a fly or kill a fly, Im sorry, dont say no more . . . ." (Id. at p. 968.) The court found this insufficient to invoke his right to silence, noting that "[defendant] spoke to his interrogators; he uttered the words in question; and without hesitation he proceeded to speak to them further. He evidently sought to alter the course of the questioning. But he did not attempt to stop it altogether." (Id. at p. 970.)
Here, contrary to Sloans contention, the evidence was in conflict regarding whether Sloan actually told the officers during the interrogation that he had "nothing to say." Neither officer recalled the claimed statement, although they testified that Sloan might have said it. Even if Sloan made the statement, he continued to talk to the officers and answer questions. He began the interrogation with complete self-confidence, denying involvement in the killings. As the questioning went on, they stopped for bathroom and food breaks. Ultimately, Sloan admitted that he killed both men, repeated the statement on tape, and indicated that he had been advised of his Miranda rights.
As in Ashmus, supra, 54 Cal.3d 932, Sloan continued to speak with police after the alleged "nothing to say" statement. Such a statement, moreover, is equivocal and could have indicated merely that he had no information on a particular topic or, as in Ashmus, that he sought to alter the course of the questioning. As Detective Carlisle testified, his understanding was that Sloans statement was to the effect that the police "should go get the people who actually killed [Barba and Duran.]" Under the circumstances here, the statement alleged to have been made by Sloan was insufficient to invoke his right against self-incrimination.
The third Miranda violation claimed by Sloan is that his initial statements to Deputy Paulich on January 25, 2001, were made without Miranda warnings. He argues that their conversation was the functional equivalent of questioning within the meaning ofRhode Island v. Innis (1980) 446 U.S. 291.
Sloan also argues that his subsequent statements on that date were the "tainted fruits" of the first statement, and therefore should be suppressed. Because we found no Miranda violation in regard to the first statement, there is no subsequent taint.
Rhode Island v. Innis held that "Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." Rhode Island v. Innis, supra, 446 U.S. at pp. 300-301.) The functional equivalent of questioning consists of "any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Id. at p. 301, fn. omitted.)
The statements at issue took place after Sloan summoned Deputy Paulich to the jail. When Deputy Paulich arrived, Sloan was crying. He asked if the statement officers had shown him the day before was actually from Houghton John. Sloan also asked if the death penalty was possible, and Deputy Paulich told him it was. Sloan also "questioned about how to let [the victims families] know that he was sorry." Deputy Paulich suggested that he could write a letter to the families. It is not clear from the testimony whether Sloan wrote this letter before or after he signed the Miranda waiver form. After 15 or 20 minutes, Deputy Paulich read Sloan his Miranda rights and Sloan expressly waived those rights by signing the form. Deputy Paulich did not ask Sloan any questions until after he signed that form.
Here, even if Deputy Paulichs suggestion that Sloan could write a letter to the victims families was the functional equivalent of questioning, it was harmless beyond a reasonable doubt. There was overwhelming evidence that Sloan shot the two victims. Sloan had made a full confession the previous day. Houghton John made a statement to police substantially to the same effect. Preciado testified that Sloan told him he had shot the two victims. Consequently, any Miranda error in regard to the January 25, 2001 interaction was harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 531-541.)
C. Prosecutorial Vouching
After informant Ralph Preciado testified about his jailhouse conversations with Sloan, the prosecutor asked if Preciado had been promised anything to obtain his testimony. Preciado testified that he had been promised nothing. The prosecutor then read a "letter that Im going to be sending to the district attorney" in another county in which charges against Preciado were pending. That letter stated in part: " `Through this letter I wish to inform you that Ralph Preciado provided this office with invaluable assistance by testifying truthfully, honestly and completely in the prosecution of the People of the State of California versus John William Sloan in a double murder case. [¶] With regards to Mr. Preciados criminal charges pending in your county I ask that you give his cooperation with this office full consideration with regards to the sentence to be imposed in his case. "
Sloan argues that these statements constitute improper vouching by the prosecutor and an improper opinion as to a witnesss credibility. "[A] prosecutor may not express a personal opinion or belief in a witnesss credibility when there is `"substantial danger that jurors will interpret this as being based on information at the prosecutors command, other than evidence adduced at trial." " (People v. Fauber, supra, 2 Cal.4th 792 at p. 822, citing People v. Adcox (1988) 47 Cal.3d 207, 236.) In Fauber, a plea agreement admitted into evidence referred to the district attorneys preliminary determination of that witnesss credibility. The court held that the reference "should have been excised on a timely objection on the ground of irrelevancy." (Id. at p. 822.)
The letter was read without objection below, and consequently the issue was waived on appeal. (People v. Fauber (1992) 2 Cal.4th 792, 821.) We address the issue because Sloan claims on appeal that the failure to object was due to ineffective assistance of counsel.
Any error in allowing the entire letter here to be read to the jury does not, however, require reversal under either theWatson (People v. Watson, supra, 46 Cal.2d 818) or Chapman (Chapman v. California (1967) 386 U.S. 18) tests. First, as the court in Fauber noted, the letter " `cuts both ways " by suggesting to the jury an incentive for Preciado to lie. (People v. Fauber, supra, 2 Cal.4th at p. 822.) "Moreover, common sense suggests that the jury will usually assume—without being told—that the prosecutor has at some point interviewed the principal witness and found his testimony believable, else he would not be testifying." (Id. at p. 822.) Consequently, any error in admitting that portion of the letter regarding Preciados truthfulness was harmless.
Sloan himself claims in another part of his brief that "Preciados testimony was inherently suspect."
D. Alleged Errors in Admitting Evidence
1. Evidence of Hiness Statement to Sloan
Sloan maintains that the court erred in admitting testimony, over objection, by Deputy Paulich about a statement he overheard inmate Stanley Hines make to Sloan to the effect that Sloan "didnt have a self-defense case unless he could find someone who said the victims had some type of weapon." Sloan argues that the statement was hearsay to which no exception applied and improper lay opinion as to legal principles. "
`Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Contrary to Sloans argument, no hearsay exception need be demonstrated here because the statement was not hearsay. The testimony was not admitted to prove the truth of Hiness statement about the law of self-defense. Instead, it was admitted as evidence supporting the prosecution theory that Sloan fabricated his claim of self-defense. Accordingly, it was neither hearsay nor improper lay opinion testimony. Moreover, the court instructed the jury that it must follow the courts instructions on the law, even if those instructions conflicted with other statements of the law made during trial. The court did not err in allowing testimony regarding Hiness statement.
2. Evidence of Detective Riveras Opinion Regarding the Shell Casing Mix-up
Sloan argues that it was error to admit, over objection, Detective Riveras opinion testimony that either he or the Department of Justice had mixed up one of the shell casings found at Houghton Johns house and one of the shell casings found at the crime scene. Detective Rivera had packaged and sent the two shell casings found in Houghton Johns home and the two shell casings found at the crime scene to the Department of Justice for fingerprint testing. No fingerprints were found, and the casings were then sent to Yount at a different Department of Justice lab. Detective Rivera was of the opinion that the reason Yount determined that the two casings at the scene were from different guns was because either he or the Department of Justice mixed up two of the shell casings.
A lay witness is permitted to testify to his or her opinion that is "rationally based on the perception of the witness." (Evid. Code 800, subd. (a).) Detective Rivera testified that, after criminalist Yount indicated that the pair of shell casings labeled as being found at the crime scene were from different guns, Detective Rivera conducted an investigation. Detective Rivera determined "that [the casings] were mixed up sometime during the process." Detective Rivera testified that before the search of Houghton Johns house, he personally examined the two casings found at the crime scene and found them to be nine-millimeter casings as "close to identical" as he could determine. The trial court did not err in allowing testimony regarding Detective Riveras determinations and opinions on the shell casing mix-up because they were rationally based on his perceptions.
E. Cumulative Errors and Ineffective Assistance of Counsel
Sloan argues that his conviction must be reversed due to cumulative errors. He also asserts throughout his brief that any failure by his trial counsel to object and preserve the issues he now raises was ineffective assistance of counsel. " `[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. [Citation.]" (People v. Cunningham ( 2001) 25 Cal.4th 926, 1009.) We must examine as a whole, both individually and collectively, the effect of the errors to determine whether appellants were deprived of the constitutional right to a fair trial. (In re Jones (1996) 13 Cal.4th 552, 583.) Here, we have considered the issues raised and determined that Sloans claims of error are meritless or were harmless. Consequently, Sloans claims of ineffective assistance of counsel fail. Moreover, the harmless errors in this case do not collectively rise to the level of reversible and prejudicial error.
F. Sentencing Error
Sloan argues that the court erred in imposing a term of 25 years to life for the firearms enhancement under section 12022.53, subdivision (d). He asserts that "firearms use is a necessary element of second degree murder under section 190(d)," and that consequently the sentence violates section 654, which prohibits double punishment for the same act. Respondent maintains that People v. Hutchins (2001) 90 Cal.App.4th 1308 provides that there is no double punishment under section 654 where, as here, " `the underlying crime and the enhancement are not identical. " (Id. at p. 1314.)
Section 654 provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).) "The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them." (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.) " `We must "view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" [Citation.] " (Id. at pp. 1312-1314, citing People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
Section 654 does not bar imposition of the firearm enhancement here for two reasons. First, "the express language of [section 12022.53] indicates the Legislatures intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties." (People v. Hutchins, supra, 90 Cal.App.4th at p.1313.) "The plain language of . . . section 12022.53 [] mandates imposition of the additional enhancement sentence. Thus, the statute clearly and unambiguously states that `[ n]otwithstanding any other provision of law, any person who is convicted of a [specified] felony . . . and who in the commission of that felony intentionally and personally discharged a forearm and proximately caused great bodily injury . . . or death, . . . shall be punished by a term of 25 years to life in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony. " (Id. at p. 1313, some italics omitted, citing § 12022.53, subd. (d).)
Second, Sloans contention that firearm use was a specific element of the underlying offense is based on his misconception that section 190, subdivision (d) defines the offense, rather than section 187. It does not. Section 190, subdivision (d) did not create a new offense, but rather imposed a mandatory increased "penalty provision" where a defendant committed second degree murder by way of a drive-by shooting. (People v. Garcia (1998) 63 Cal.App.4th 820, 827-829.) Accordingly, the enhancement under section 12022.53, subdivision (d) does not punish a specific element of the underlying offense. Moreover, sections 190, subdivision (d) and 12022.53, subdivision (d) do not impose penalties for the same acts. The enhanced sentence mandated by section 190 is based on use of a firearm in a "drive-by" situation. The purpose for imposing a higher sentence in such a "drive-by" situation is "to deter persons from discharging firearms from a motor vehicle" (People v. Myers (1997) 59 Cal.App.4th 1523, 1533) because it is "a treacherous and cowardly act. `It allows the perpetrator to take the victim by surprise and make a quick escape to avoid apprehension . . . . " (Id. at p. 1532, citing People v. Bostick (1996) 46 Cal.App.4th 287, 292. Consequently, "the law is not punishing appellant twice for the same act; rather, the law is punishing him once for each of the components of that act which make it so dangerous and antisocial. " (People v. Hutchins, supra, 90 Cal.App.4th at p. 1315.) We conclude that the trial court did not err in imposing sentence under the firearm enhancement pursuant to section 12022.53, subdivision (d).
A related issue concerning multiple enhancements is currently before our Supreme Court in People v. Oates (2002) 97 Cal.App.4th 1172, review granted July 24, 2002, S106796.
IV.
DISPOSITION
The judgment is affirmed.
We concur: Kay, P.J. & Rivera, J.