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P.v. Woolsey
P.v. Woolsey
09/24/07



P.v. Woolsey



Filed 9/21/07 P.v. Woolsey CA4/2



NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA





FOURTH APPELLATE DISTRICT





DIVISION TWO



THE PEOPLE,



Plaintiff and Respondent,



v.



LANNY WOOSLEY,



Defendant and Appellant.



E039885



(Super.Ct.No. FWV030154)



OPINION



APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown and Ingrid Adamson Uhler,[1]Judges. Affirmed in part and reversed in part.



Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.



Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.



Defendant Lanny Woosley was convicted of 11 crimes, including two unusually nasty murders. He had acquired an illegally modified handgun that could fire over 30 rounds per second; in an apparent road rage incident, he or an accomplice used it to mow down a couple of high school students ‑‑ total strangers to them ‑‑ who were on their way home from a party.



Defendants appellate contentions, however, revolve around procedural issues, lesser counts, and sentencing. They are that:



1. The trial court erred by allowing the prosecution to introduce portions of defendants statements to the police that were obtained in violation of Miranda.[2]



2. The trial court erred by failing to give a unanimity instruction.



3. The trial court essentially instructed the jury that it did not have to find two of the statutory elements of the crime of making a criminal threat.



4. When the jury sent out a note indicating that it was deadlocked, the trial court gave an erroneous response.



5. In imposing an upper term sentence, and in imposing consecutive sentences, the trial court violated Cunningham.[3]



6. The trial court erroneously imposed a 20-year personal and intentional firearm discharge enhancement, even though this enhancement had not been pleaded or found true.



7. The jury erroneously found more than one multiple-murder special circumstance true.



8. The trial court erroneously imposed a parole revocation restitution fine.



9. The abstract of judgment is erroneous.



We find no error affecting the conviction. However, aside from defendants challenge to consecutive sentencing, we agree with his claims of sentencing error. Hence, we will reverse the judgment with respect to the sentence only and remand for resentencing.



I



FACTUAL BACKGROUND



A. September 2003: Assault With Intent to Commit a Sexual Offense (Count 7), Forcible Oral Copulation (Count 8), and Making a Criminal Threat Against Doe (Count 9).



Defendant sold Jane Doe some methamphetamine on credit. Doe gave the money to her friend, Melissa Hacker, and asked her to deliver it to defendant. Hacker kept it instead.



Defendant phoned Doe several times, demanding his money. One evening in September 2003, he went to her home and demanded the money. He displayed a handgun.



After Does two children had gone to bed, defendant pointed the gun at her head and ordered her to orally copulate him. She refused, but he said if [she] didnt he would shoot [her] in the head. She then complied. Defendant was sitting on her couch. He put the gun down on the couch. Doe testified: [W]hen I would see him not looking at it, . . . I would try to grab for it, but every time she tried, he spotted her doing so, and he grabbed the gun himself.



Thereafter, according to Doe, [defendant] kept driving by my house, calling me, letting me know he was there, that he was watching me. In his phone calls, he said that he wanted his money. As a result, she gave him some collectible DVDs.



B. October 14, 2003: Attempted Murder of Hacker (Count 4), Making a Criminal Threat Against Hacker (Count 5), and Attempted Murder of Dunning (Count 6).



Defendant failed to pay his methamphetamine supplier. The supplier therefore kidnapped him, phoned his family, and demanded that they pay a ransom. After about 13 hours, defendant escaped or was released.



A week or so later, defendants cousin saw defendant with an AP9‑model handgun. Defendant told him that it fired very rapidly ‑- [W]hen you pulled the trigger it emptied the clip.



In October 2003, defendant told Hacker [p]robably four times [t]hat he wanted his money or he was going to kill [her]. One of these threats was made face to face; the rest were left as phone messages.



On October 14, 2003, around midnight, Hacker was driving home from a friends house in her van; her friend, Steven Dunning, was with her. They realized that they were being followed by what they identified as a Nissan Maxima.



Hacker turned onto Amethyst Avenue, but it was a cul de sac. As she was making a U‑turn, the Maxima stopped, partially blocking her way. The passenger in the Maxima got out. He was holding a gun. As Hacker drove back around the Maxima, the passenger fired a rapid burst of shots. Bullets riddled the van; some passed within inches of Hacker and Dunning, but they were not hit. Neither Hacker nor Dunning saw the gunman clearly enough to be able to identify him.



Erik Rivas testified pursuant to a grant of immunity. Erik had been friends with defendant for four or five years. When defendant was kidnapped, Erik moved in with defendant and his family.



According to Erik, defendant regularly carried a gun. It was an AP9 that defendant had modified so as to make it fully automatic.



Erik testified that he drove defendant to collect a drug debt from a woman. They were in Eriks Toyota Camry. When they found her, she was in a van, on a cul de sac. She tried to drive past them; she almost hit Eriks car, but Erik pulled away and she went through and [defendant] got out and . . . shot the gun at them . . . . Eight or nine stray bullets even hit Eriks car; one passed through his jacket, but he was not hit.



C. January 18, 2004: Murder of Heyman (Count 1), Murder of Harris (Count 2), and Attempted Murder of Universal (Count 3).



On January 18, 2004, defendant visited the home of Alejandro and Mayra Rivas in Hesperia. Alejandro Rivas was Erik Rivass brother. Mayras cousin, Alexis Jimenez, was also there. Defendant and Jimenez had not met before; however, they were around the same age, and they seemed to get along well. Around 10:00 p.m., defendant and Jimenez said they wanted to go out. They borrowed the Rivases maroon Honda Accord.



Sometime after 11:00 p.m., Michael Universal was taking his friends Chris Heyman and Blake Harris home from a party in Upland. They had all been drinking; Universal had had a few beers. Universal was driving his fathers Ford Mustang. He got on the I‑210 freeway at Campus Avenue, heading east. He denied having any confrontation with any other vehicle. He stayed in the slow lane the whole the way.



Harris, who had been talking to his girlfriend on his cell phone, asked Universal to go back to Upland to pick her up. Universal got off at the Haven Avenue offramp. He turned left (north) onto Haven, went over the freeway, then got into a left-turn lane, preparing to get back onto the freeway and go west. There were two left-turn lanes; the Mustang was in the one farthest to the left.



Suddenly, shots were fired into the Mustang. Universal was not hit, but Heyman and Harris were killed. The shots came from the rear and a little to the left of the Mustang  i.e., from southbound Haven. At the scene, the police later found 48 nine-millimeter shell casings.



A search of defendants home revealed a collection of newspapers containing articles about the shooting.



D. January 18-19, 2004: Carjacking (Count 10) and Arson of Property (Count 11).



At the time of trial, victim Carlos Marquez was unavailable to testify. Diana Boiteau, however, testified that, in January 2004, Marquez was driving a Chevrolet Malibu that she had rented for him.



On January 18, 2004, sometime between 10:00 p.m. and 1:00 a.m., Marquez arrived at Boiteaus hotel room. He was extremely upset, like hysterical. He told her that, when he had been stopped at a stop sign, another car stopped nearby; a person got out and fired two shots into the engine of the Malibu. They then took the car. He said that there had been some stereo equipment in it.



When the police questioned Marquez, he admitted driving a Malibu that Boiteau had rented. However, he denied ever being carjacked. Likewise, at the preliminary hearing, Marquez denied ever being carjacked. This time, he also denied driving a rental car. He denied even knowing Boiteau. Nevertheless, at the preliminary hearing, Boiteau identified Marquez.



On the night of January 18-19, Erik went out to the garage of defendants house in Rancho Cucamonga and found both defendant and Jimenez there. According to Erik, defendant told him that a Mustang had cut him and Jimenez off on the freeway. When they got off the freeway, at Haven, defendant got out of the car, pulled out a gun, and sprayed the Mustang. There were three people inside. Defendant saw them slumped over. He was pretty much bragging about it. He showed Erik the gun.



Defendant also told Erik that he had carjacked a Malibu. He showed him some stereo equipment that he had gotten from the car. Jimenez was present when defendant was telling Erik all this. Later, Erik saw a Malibu in front of defendants house.



On January 19, 2004, around 3:00 or 4:00 a.m., defendant and Jimenez got back to the Rivases home in Hesperia. They were in a Malibu; they said they had left the Accord behind. According to the Rivases, They were talking about a Malibu and jacking this guy for speakers . . . . The next day, the Rivases saw the speakers from the Malibu.



Erik moved out of defendants home, because [he] didnt want to know nobody that killed nobody. Their relationship had actually started to sour two or three weeks earlier, when defendant stole a speaker box that he had previously given Erik out of Eriks car. After Erik moved out, defendants family accused him of stealing some tools. He denied doing so.



About a week after the shooting, Erik ran into defendant at the home of a mutual friend. Erik had heard that his brothers car had been used in the shooting. Erik told defendant that, if his brother were to go down for this shooting, then he was going to say something about it . . . . Defendant responded, I wasnt the shooter. I was just the driver.



On January 20, 2004, Jimenez committed a carjacking in Fontana. A police chase ensued. After colliding with a police car, Jimenez appeared to be reaching for a gun; the police opened fire. Jimenez died in a hail of bullets.



An AP9 nine-millimeter handgun was found by Jimenezs body. This turned out to be the weapon used to shoot up Hackers van, as well as the weapon used to kill Heyman and Harris. Originally semiautomatic, the gun had been modified to make it fully automatic. It could fire at the rate of about 1,900 rounds a minute. Neither the prosecution expert nor the defense expert had ever heard of a handheld gun that fired that fast. The defense expert testified, Ive seen military weapons a little higher in terms of rate of fire, but for this type of weapon its actually almost an unbelievable figure.



On January 24, 2004, defendants cousin saw defendant vacuuming out a brand new Malibu; it had a rental company sticker. He did not see any bullet holes in it. Defendant asked him if he knew of anybody who needed Malibu parts. Later, he heard defendant say he had to get rid of it, possibly blow it up.



On January 25, 2004, around 1:30 a.m., firefighters responded to a car fire near Chino Airport. The car turned out to be Marquezs Malibu. A flammable liquid had been used to start the fire. There were no visible bullet holes in the car; however, part of the hood had melted away.



E. Defendants Statements to Police.



On January 26, 2004, defendant agreed to go to the police station for an interview. He told police that on January 18-19, 2004, he was at the Rivases home all night; the next day, he learned that Jimenez had taken the Rivases Accord without their permission.



On January 27, 2004, officers asked defendant if they could speak to him again. He did not want to be interviewed at home, lest that upset his mother; he agreed to go to the police station instead. The interview was conducted by Detective Brad Toms. It was audiotaped and videotaped.



At first, defendant told essentially the same story. Detective Toms accused him of lying; he said he had evidence that defendant had been in the car when the Haven overpass shooting occurred. Detective Toms suggested [h]ypothetically that defendant was just driving around with Jimenez when Jimenez unexpectedly started shooting.



Defendant then essentially adopted Detective Tomss suggestion. He said that, on January 18, 2004, he and Jimenez borrowed the Rivases Accord to buy some methamphetamine in Pomona from a friend of Jimenez, but the friend was not home. They got back on the I‑210 freeway, heading east, toward defendants house (which was near Archibald and Highland Avenues). Defendant was driving.



They got off at Campus Avenue. At that point, defendant said, the car almost hit them. (After saying that, however, defendant denied that the car was the Mustang.) Defendant then changed his mind about the best route to his house; he decided to get back on the freeway. When he did, the Mustang was there . . . . The Mustang swerved over towards us . . . and we were playing like, you know, little fucking bullshit . . . . Jimenez told defendant to speed up to em.



Both cars got off at Haven. The Mustang turned left (north). Defendant turned right (south). Once again, however, he changed his mind about the best way to go. He made a U‑turn so he could get back on the freeway, intending to go west. There were two left-turn lanes leading to the freeway. Defendant was in the inside lane; the Mustang was in the outside lane, stopped. There were three people in the Mustang.



Defendant said: And then I made a left-hand turn to get back on the freeway and I heard pow, pow, pow. He repeatedly said that Jimenez hung out the window. Defendant looked back in his rearview mirror and saw the victims all still. Jimenez said, Keep driving, so defendant continued on to his house.



When they arrived, Erik was in the garage. Defendant admitted telling him about the shooting but denied telling him that he was the shooter. Defendant claimed that Erik was lying: [H]e . . . has a grudge against me because I took his amp.



At first, defendant told Detective Toms that the gun belonged to Jimenez. Eventually, however, he admitted, Its my gun, adding,  . . . Im obsessed with that . . . gun. He had gotten the gun after he himself was kidnapped. Detective Toms asked him, Why would you give your gun to [Jimenez?] Defendant answered, I dont know. [I]t doesnt make no sense, defendant conceded, why would you have anybody hold your bitch for you[?]



After initially denying knowing anything about the Malibu, defendant admitted, We took it. He explained that Jimenez said that since he did [the shooting], to make sure I wont tell on him, . . . I had to do something. At this point, Jimenez had a shotgun, which he had gotten from the trunk of the Accord. Defendant had his own gun, but it ha[d] no more ammo in it.



Jimenez ordered defendant to drive to Fontana, then switched seats with him. They saw [a] Mexican guy in a Malibu. Defendant got out, pointed his gun at the guy, and told him to get out of the car and walk away. They left the Accord in Fontana and drove the Malibu back to Hesperia. When they got there, Jimenez told the Rivases what had happened.



Defendant gave Jimenez the gun in exchange for the Malibu and the stereo from the Malibu. Defendant drove the Malibu around for a while, then took it to Chino, poured gas on it, and burned it. He explained, I didnt want the karma . . . .



Finally, defendant admitted making that bitch [i.e., Doe] suck my . . . dick because she . . . owed me money. He admitted having a gun with him at the time, although he claimed it was inoperable. He also admitted shooting at Hackers van. He claimed that Hacker had been about to ram Eriks car.



F. Defendants Testimony.



Defendants trial testimony was essentially consistent with his statement to Detective Toms, except as noted below.



Defendant admitted committing the charged forcible oral copulation. He also admitted telling Erik to follow Hacker and to block her van. He claimed, however, that he just wanted to talk to her. When she took off, he testified: I grabbed the gun, and I pulled the trigger and I shot the van. He could not explain why he fired, although he denied having the intent to kill. He denied making any threats of death or great bodily injury against either Doe or Hacker.



Defendant testified that, on January 18, 2004, as he and Jimenez were driving back from Pomona, his AP9 was in a bag on the passenger-side floorboard. When they were on the Campus Avenue offramp, a Mustang on the onramp crossed into their lane and ran them off the road. After they got back on the freeway, Jimenez said, Hey, theres that Mustang. Speed up. Defendant complied.



After defendant got off on Haven, made a U‑turn, and got ready to get back onto the freeway, he saw the Mustang again. Although it was in a left-turn lane, it was pointing diagonally to the right, as if the driver intended to get back onto Haven. Defendant therefore swerved around it on the left, even though this took him into the southbound traffic lanes.



At defendants house, after the shooting but before the carjacking, defendant realized for the first time that Jimenez had a sawed-off shotgun, wrapped in a jacket.



A few days after the shooting, defendant ran into Erik at a friends house. Erik warned him, [I]f my brother gets wrapped up into this . . . Im going to say anything to make you the shooter. Previously, defendants mother had thrown Erik out of the house because she believed that he had stolen some tools. Also, defendant had lent Erik money to buy an amplifier; when Erik failed to pay him back, defendant had taken the amplifier.



II



PROCEDURAL BACKGROUND



A jury found defendant guilty on two counts of first degree murder (Pen. Code,  187, subd. (a), 189); three counts of attempted murder, one of which (Universal) was found to be willful, deliberate, and premeditated (Pen. Code,  187, subd. (a), 664, subd. (a)); two counts of making a criminal threat (Pen. Code,  422); assault with intent to commit a specified sexual offense (Pen. Code,  220); forcible oral copulation (Pen. Code,  288a, subds. (a) & (c)(2)); carjacking (Pen. Code,  215); and arson of property (Pen. Code,  451, subd. (d)).



Some firearm-related enhancements were found true; others were found not true. In connection with the forcible oral copulation count, a one-strike law special circumstance was found true. (Pen. Code,  667.61, subd. (e)(4).) Two multiple-murder special circumstances were found true. (Pen. Code,  190.2, subd. (a)(3).)



Defendant was sentenced to four consecutive life terms (including two without the possibility of parole), plus a total determinate term of 44 years 4 months.



III



DEFENDANTS MIRANDA CONTENTIONS



Defendant contends that portions of his statements to the police were obtained in violation of Miranda.



A. Additional Factual and Procedural Background.



1. The beginning of the interview.



Detective Toms interviewed defendant at the police station. It is undisputed that, at the beginning of the interview, defendant was not in custody. Detective Toms said:



Det. B. Toms: I want you to understand that this is a voluntary interview.



Lanny Woosley: Yeah.



Det. B. Toms: Okay. You dont have to talk to me if you dont want to talk to me.



Lanny Woosley: I have no problem.



Det. B. Toms: Okay. Great. Um[,] if there is ever a problem and you want to do anything[, t]he door is unlocked, the bathroom is right there, you want to take a break, you want to do whatever you want to do[,] let me know.



Lanny Woosley: All right.



Det. B. Toms: Ill give you a ride home when were done.



Lanny Woosley: All right.



2. Defendants first request to go home.



Initially, defendant maintained that he had been in Hesperia, asleep, when the shooting occurred. Detective Toms claimed to have proof that defendant had actually been in the car with Jimenez. Starting on page 33 of the unredacted transcript, there was this exchange:



Det. B. Toms: . . . Let me ask you a question. Will you take a polygraph right now?



Lanny Woosley: Voluntarily?



Det. B. Toms: Yeah, of course, everything is voluntarily.



Lanny Woosley: Hum. What time is it? I got to get back home.



Det. B. Toms: Its ten oclock.



Lanny Woosley: I got to get back home. Ill do it tomorrow. For sure.



Det. B. Toms: Well[,] I got to get it cleared up tonight[,] dude.



Lanny Woosley: Well.



Det. B. Toms: I can have someone here in twenty[‑]five minutes.



Lanny Woosley: No. I got to go home cause I get up early.



Det. B. Toms: For what?



Lanny Woosley: I got to take my girlfriend to school and I got to find a job.



Det. B. Toms: Dude[,] you havent been looking for a job for days.



Lanny Woosley: Yeah, I got an application down from.



Det. B. Toms: Lanny.



Lanny Woosley: Yes.



Det. B. Toms: Dude[,] you got to tell me the truth here[,] man.



Lanny Woosley: I am. (Italics added.)



3. Defendants second request to go home.



At page 55, Detective Toms said:



Det. B. Toms: Lanny[,] help me out[,] man. Let me go tell those families.



Pause in speaking.



Lanny Woosley: I want to go home.



Det. B. Toms: You dont want to help me out?



Lanny Woosley: I cant.



Det. B. Toms: Why? Why? Lanny.



Lanny Woosley: Hum?



Det. B. Toms: Check it out[,] man. I know what you[re] worried about.



Lanny Woosley: What? What am I worried about? Im wondering if Im going to jail.



Det. B. Toms: I know thats what you[re] worried about.



Lanny Woosley: . . . Why? Why do I, why should I go to jail?



Det. B. Toms: Lanny[,] I dont know why.



Lanny Woosley: I didnt do anything. (Italics added.)



4. Defendants admission of stealing the car.



Starting on page 66, defendant admitted being the driver when Jimenez committed the shooting; however, he denied any knowledge that the shooting was going to occur.



On page 95, defendant admitted taking the Malibu:



Det. B. Toms: How did you get the car?



Lanny Woosley: We took it.



Defendant then admitted carjacking the Malibu at gunpoint, although he claimed that Jimenez had a shotgun and forced him to do it and that his own gun was not loaded.



5. Defendants third request to go home.



At page 102, defendant said:



Lanny Woosley: Im telling you everything I know. Just arrest me or left [sic] me go. I got to go home. I got to get home to my sick mom. Im already going to jail. Fucking shit, he fucking stupid mother fucker, fucking shoot these innocent kids and shit. I feel like I got to do something the fucking you know so I can be you know do some dirt with him so fucking so I dont get in trouble of shit or so he doesnt think Im going to fucking snitch on him so he doesnt fucking kill me. (Italics added.)



Detective Toms tried to interrupt him, but defendant continued on in this vein, concluding:



Lanny Woosley: . . . And Im telling you the truth now. You know? So whats my rights?



Det. B. Toms: Are you going to, do you want to continue [to] talk to me[,] or?



Lanny Woosley: No, Im done. I got. I just.



Det. B. Toms: I mean there is a lot of questions.



Lanny Woosley: Like what?



Det. B. Toms: Tons.



Lanny Woosley: Like what?



Det. B. Toms: Well I mean. Are you sure you dont want to talk to me anymore?



Lanny Woosley: Like what, though[?] Whats the questions?



Detective Toms began asking questions again. Defendant soon admitted burning the Malibu.



6. Defendants request for a lawyer, followed by defendants self‑admonition.



Starting on page 114, Detective Toms said:



TOMS: Okay, listen to me, theres a problem because theres difference[s] in statements.



WOOSLEY: Yeah. [] . . . []



TOMS: And I have a lot of questions to ask you to clear that stuff up. All right, but because of the things that are happening here, because you know, a couple of things that you said, I want to let you know what you[r] rights are.



WOOSLEY: Huh.



TOMS: Okay.



WOOSLEY: Yeah.



TOMS: Do you understand what Im sayin?



WOOSLEY: So, I want to talk to my lawyer, please then. Oh, what do you mean, why do I have to, why, why, why, okay, Im already, Im goin to jail, right?



TOMS: Well, you know . . .



WOOSLEY: Come on, be straight up with me.



TOMS: Heres the, heres the deal. What youre telling me is not the exact truth[,] dude.



WOOSLEY: Im telling you exactly what happen[ed] on the night.



TOMS: Listen, okay I know that.



WOOSLEY: What else do you want to know?



TOMS: You, youre telling me your version of what happened that night, but I have other versions . . .



WOOSLEY: I was only . . .



TOMS: . . . from other people that you talked to.



WOOSLEY: [B]ut they werent there.



TOMS: Right.



WOOSLEY: I, I could have told them fuckin anything, right? Im telling you exactly what happened cause I was the only one that was there.



TOMS: Why would you tell them something different than youre telling me?



WOOSLEY: Cause I wanted to be cool, maybe. . . . [M]aybe thats my way of fuckin blocking that shit out in my head.



TOMS: Maybe it is. But the thing is . . .



WOOSLEY: Maybe it is.



TOMS: . . . is, I want to know why that you told those things and before I can ask you those questions, I want to make sure you understand your rights.



WOOSLEY: Yeah.



TOMS: Okay.



WOOSLEY: [Y]ou have the right to remain silent anything you say can and will be used against you in the court of law. [I]f you can[]t afford an attorney, (inaudible) afford one, an attorney, one will be appointed to you (inaudible) but if you (inaudible) if you can not afford an attorney, one will be appointed to you uh, (inaudible).



TOMS: Pretty close.



WOOSLEY: Pretty close.



TOMS: Pretty damned good. I read it off a card.



WOOSLEY: Its not that hard. Its not that hard.



TOMS: Well I read it off the card to make sure its right.



WOOSLEY: Youve got to ask me if I understand the rights and then you go on.



TOMS: Thats exactly right.



WOOSLEY: (inaudible) recite it, anything you can, anything you say can and will be used against you in a court of law. You have the right to an attorney. Anything, or, if you cannot afford an attorney, one will be appointed to you at the, at the cost of somethin, or, of if you cannot afford to pay for an attorney, one will be, uh, I dont know, it says somethin about that.



TOMS: Watch a lot of TV?



WOOSLEY: Yeah. Well, I just, I remember it.



TOMS: Well thats, thats pretty damn good. (Italics added.)



7. Detective Tomss formal admonition.



After some further conversation, on page 123, Detective Toms gave defendant the following Miranda warning:



TOMS: All right, you know this by heart, but Im going to go ahead and read it to you anyway. . . . You have the right to remain silent. Anything you say can be used against you in court. You have the right to an attorney before and during questioning. If you cannot afford an attorney, one will be appointed for you, by the court, free of charge, before questioning. Do you understand the rights Ive just explained to you?



WOOSLEY: Yes I do.



TOMS: And with these rights in mind, are you willing to talk to me?



WOOSLEY: Yeah . . . .



B. Additional Procedural Background.



Defendant filed a pretrial motion to suppress that portion of the interview that followed page 115, when he said, So, I want to talk to my lawyer, please then. He argued, among other things,[4]that this statement had been obtained in violation of Miranda.



In response, the People argued that Miranda did not apply because defendant had not been in custody. They also argued that his request for a lawyer was an anticipatory invocation and/or equivocal.



The trial court found that defendant was in custody for the first time at page 95, when he admitted carjacking the Malibu. Hence, at that point, Detective Toms should have given him a Miranda warning. However, it also found that defendant was effectively given a Miranda warning at page 116, when he recited his rights himself. Accordingly, it granted the motion to suppress, but only with respect to pages 96 through 116.



The trial court disregarded defendants statement at page 102, I got to go home, because pages 96 through 116 were already out anyway and because thats before his rights were read. Similarly, it disregarded defendants request for an attorney at page 115, explaining, [I]t doesnt matter because he hasnt been read his Miranda rights anyway yet . . . .



C. Analysis.



1. General legal background.



Defendants who are in custody must be given Miranda warnings before police officers may interrogate them. [Citation.] (People v. Huggins (2006) 38 Cal.4th 175, 198.)



To protect the Fifth Amendment privilege against self-incrimination, a person undergoing a custodial interrogation must first be advised of his right to remain silent, to the presence of counsel, and to appointed counsel, if indigent. [Citation.] As long as the suspect knowingly and intelligently waives these rights, the police are free to interrogate him. [Citation.] However, if, at any point in the interview, the suspect invokes his rights, questioning must cease. [Citations.] Statements obtained in violation of these rules are inadmissible to prove guilt in a criminal case. [Citations.] (People v. Stitely (2005) 35 Cal.4th 514, 535.)



The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is . . . reconstructed, the court must apply an objective test to resolve the ultimate inquiry: [was] there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] The first inquiry, all agree, is distinctly factual. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a mixed question of law and fact . . . . [Citation.] Accordingly, we apply a deferential substantial evidence standard [citation] to the trial courts conclusions regarding basic, primary, or historical facts: facts in the sense of recital of external events and the credibility of their narrators . . . . [Citation.] Having determined the propriety of the courts findings under that standard, we independently decide whether a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave. [Citation.] (People v. Ochoa (1998) 19 Cal.4th 353, 401-402, quoting Thompson v. Keohane (1995) 516 U.S. 99, 112-113 [116 S.Ct. 457, 133 L.Ed.2d 383], id. at p. 110, and id. at p. 112.)



[A] police officers subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda. [Citation.] (Stansbury v. California (1994) 511 U.S. 318, 324 [114 S.Ct. 1526, 128 L.Ed.2d 293].) However, [a]n officers knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. [Citation.] Those beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action. [Citation.] Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officers degree of suspicion will depend upon the facts and circumstances of the particular case. (Id. at p. 325, quoting Berkemer v. McCarty (1984) 468 U.S. 420, 440 [104 S.Ct. 3138, 82 L.Ed.2d 317].)



2. The finding that defendant was not in custody until he admitted taking the Malibu.



As already noted, the trial court found that defendant was not in custody until he admitted being involved in carjacking the Malibu (page 95). Defendant argues that it should have found that he was in custody earlier, when he asked to go home the interview did not stop (pages 33-34 and 55).



Preliminarily, defendant forfeited this contention by failing to raise it below. A judgment will not be reversed on grounds that evidence has been erroneously admitted unless there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . . [Citation.] . . . Miranda-based claims are governed by this rule. (People v. Mattson (1990) 50 Cal.3d 826, 853-854, quoting Evid. Code,  353.) Thus, the defendants Miranda objection at trial must have been made on the same grounds as those raised on appeal. (People v. Hill (1992) 3 Cal.4th 959, 982, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Visciotti (1992) 2 Cal.4th 1, 54.)



In his motion to suppress, defendant argued only that the portion of the interview following his request to talk to a lawyer, on page 115, should be suppressed. At the hearing on the motion, the trial court expressly found that defendant was not in custody when he asked to go home; defense counsel did not disagree. Finally, when the trial court suggested that defendant was first in custody on page 95, when he admitted taking the car, defense counsel adopted its suggestion. Defendant never argued, however, that he was in custody any earlier than page 95.



Separately and alternatively, however, we agree with the trial court: None of the circumstances surrounding defendants requests to go home indicated that he was in custody. The first time, defendant was responding to Detective Tomss request that he take a polygraph test; he was indicating that he did not have enough time for the test, not that he wanted to leave immediately. Moreover, even after Detective Toms responded,  . . . I got to get it cleared up tonight, defendant repeated, I got to go home cause I get up early. This confirms that Detective Tomss response was not, in effect, a refusal to let him go home. Detective Toms having requested the interview in the first place, obviously it was in his interest to continue it. He was free to try to persuade defendant that he should (rather than that he had to) remain. After he said, Dude[,] you got to tell the truth, defendant simply decided that it was in his best interest to continue the interview.



Similarly, the second time that defendant said, I want to go home, Detective Toms responded, You dont want to help me out? This implied that defendant was indeed free to go, if that was what he really wanted to do; once again, defendant simply decided that it was in his best interest not to leave. Nothing in either of these exchanges overrode Detective Tomss initial assurances that the interview was voluntary.



Defendant also argues that the trial court applied an incorrect burden of proof on this issue. At one point in the hearing, the trial court opined that defendant was not in custody when he admitted taking the Malibu. It based its opinion on the fact that it was reasonable for Detective Toms to continue to question him:  . . . I do believe that the officer had a right to continue to ask Mr. Woosley questions about . . . the taking of the car . . . . I dont think at that point in time he was absolutely positively in a position where all of a sudden by operation of law or otherwise [he] became in custody. Shortly afterward, however, the trial court changed its mind: As I think about it more, I dont think that really matters. Because the real inquiry is not what the officer should do. The inquiry is at what point objectively is Mr. Woosley in custody. And that determines what the officer should do . . . . It therefore ruled that defendant was in custody when he admitted taking the Malibu.



Defendant seizes upon the trial courts remark, I dont think at that point in time he was absolutely positively . . . in custody. (Italics added.) He claims that this shows that the trial court was erroneously placing the burden or proof on him, instead of on the prosecution. (See People v. Davis (1967) 66 Cal.2d 175, 180-181 [prosecution has burden of disproving custody].) Not so. The trial court was not addressing the burden of proof. It only meant that, if all of the other facts tended to show that defendant was not in custody, the fact that he admitted taking the Malibu did not require a contrary finding. In any event, it eventually changed its mind on this point.



Finally, even assuming the trial court applied an erroneous burden of proof, the error was not prejudicial under any standard. The asserted error did not affect the trial courts findings of historical fact; it affected, at most, its finding as to when custody began. This, as already discussed, is a mixed question of law and fact that we review independently. In his reply brief, defendant even concedes that this [c]ourt will make an independent review of the uncontradicted facts which will largely moot [this point]. We conclude this asserted error was harmless.



3. The continuation of the interrogation after defendants request for a lawyer.



Defendant argues that his request for a lawyer, on page 115, precluded any further interrogation.



If the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. [Citation.] But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation. [Citation.] This second layer of prophylaxis for the Miranda right to counsel, [citation], is designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights, [citation]. (Davis v. U.S. (1994) 512 U.S. 452, 458 [114 S.Ct. 2350, 129 L.Ed.2d 362], quoting McNeil v. Wisconsin (1991) 501 U.S. 171, 176 [111 S.Ct. 2204, 115 L.Ed.2d 158] and Michigan v. Harvey (1990) 494 U.S. 344, 350 [110 S.Ct. 1176, 108 L.Ed.2d 293].)



In Edwards v. Arizona (1981) 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378], the Supreme Court held that, once a suspect has requested counsel, the interrogation cannot resume even if the police give a new Miranda warning, and even if the suspect thereafter purports to waive the right to counsel: [W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. (Edwards, at p. 484, italics added, fn. omitted.)



The People assert that defendants request for a lawyer was a mere anticipatory invocation, and hence of no legal consequence, because he had not been taken into custody at this point . . . . (See generally McNeil v. Wisconsin, supra, 501 U.S. at p. 182, fn. 3; People v. Avila (1999) 75 Cal.App.4th 416, 421-423.) The trial court, however, found that defendant was in custody as of page 95; his request for counsel occurred on page 115. We have combed the Peoples brief in vain for any argument (as opposed to this bare assertion) that the trial courts custody finding was erroneous. Indeed, elsewhere in their brief, the People take the position that, in making this finding, the court understood and correctly applied the law.



The trial court disregarded defendants request for a lawyer for two reasons. First, it explained that defendant had not yet been given a Miranda warning. However, a suspect in custody who has been given a Miranda warning cannot be questioned after he or she has requested a lawyer; a suspect in custody who has not been given a Miranda warning deserves the same solicitude, or more ‑‑ certainly not less.



Second, the trial court explained that it had already excluded that portion of defendants statement after he was in custody (page 95) and before he was given a Miranda warning (page 116), and that this included page 115, on which he asked for a lawyer. Under Edwards, however, assuming defendant did effectively invoke his right to counsel, giving him a Miranda warning would not allow the police to reinitiate questioning.



To make an effective invocation, however, the suspect must unambiguously request counsel. (Davis v. U.S., supra, 512 U.S. at p. 459.) [I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. [Citations.] (Id. at p. 459.) [W]hen a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. (Id. at p. 461.)



In addition, as already mentioned, further questioning is not barred if the suspect himself reinitiates conversation. (Davis v. U.S., supra, 512 U.S. at p. 458.) An accused initiates further communication, exchanges, or conversationsof the requisite nature when he speaks words or engages in conduct that can be fairly said to represent a desire on his part to open up a more generalized discussion relating directly or indirectly to the investigation. [Citation.] (People v. San Nicolas (2004) 34 Cal.4th 614, 642, quoting People v. Mickey (1991) 54 Cal.3d 612, 648, quoting Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045 [103 S.Ct. 2830, 77 L.Ed.2d 405] [plur. opn. of Rehnquist, J.].)



Here, defendants request for a lawyer ‑‑ So, I want to talk to my lawyer, please then ‑‑ standing alone, was unequivocal. However, it did not stand alone. In virtually the same breath, defendant launched an inarticulate barrage of questions about the case. When Detective Toms demurred (Well, you know . . .), defendant insisted, Come on, be straight up with me. Defendant prodded further, asking What else do you want to know? At that point, it was unclear whether defendants request for a lawyer was sincere or a mere trial balloon, which he retracted immediately so that he could engage in a further discussion. (Cf. Oregon v. Bradshaw, supra, 462 U.S. at pp. 1045-1046 [plur. opn. of Rehnquist, J.] [defendant who had requested counsel reinitiated conversation by asking, Well, what is going to happen to me now?].)



Detective Toms therefore quite properly insisted on giving defendant a Miranda warning. He stated, [B]efore I can ask you those questions, I want to make sure you understand your rights. Even when the suspect reinitiates the conversation, the police are well advised to administer a Miranda warning before proceeding. Moreover, in the unusual circumstance here, that the suspect has not been given a Miranda warning already, we can think of no better way to determine whether the suspects request for a lawyer is unequivocal than by following the tried-and-true Miranda procedure. This is the exact opposite of badgering; it does not trigger a similar concern that the police may be trying to grind the suspect down.



Defendant argues that the trial court made no finding that his request for counsel was equivocal. At the same time, however, it made no finding that it was not equivocal. Instead, stating, We can argue all day long whether or not thats an equivocal invocation, it concluded that it doesnt matter, because it was resting its ruling on other grounds. Nevertheless, the question of whether the invocation was equivocal was clearly raised and litigated. Because we apply an independent standard of review to this question, the trial courts findings on it (or the lack thereof) are irrelevant.



Defendant also argues that, before giving a Miranda warning, Detective Toms engaged in prohibited interrogation ‑‑ for example, by saying, What youre telling me is not the exact truth[,] dude. [T]he term interrogation under Miranda refers not only to express questioning, but also to 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. (Rhode Island v. Innis (1980) 446 U.S. 291, 301 [100 S.Ct. 1682, 64 L.Ed.2d 297], fns. omitted.) Detective Toms was evidently walking a fine line ‑‑ he was trying to be straight up with defendant, by answering his immediate questions, while postponing any substantive discussion of the case until after defendant had been Mirandized. To this end, he basically said that he believed that defendant was not telling . . . the exact truth, because he had heard other versions; he said he wanted to ask more questions, but, he concluded, before I can ask you those questions, I want to make sure you understand your rights. This was not calculated to elicit any incriminating information from defendant, and significantly, in the upshot, it did not.



We therefore conclude that, in light of the uncertainty surrounding defendants apparent invocation of his right to counsel, Detective Toms was allowed to clarify it by giving a Miranda warning. As we will discuss further below, defendant was given a valid Miranda warning, and he responded with a valid waiver of his Miranda rights, including his right to counsel. Accordingly, interrogation beyond that point was not barred.



4. The trial courts finding that defendants self-admonition was effective.



The trial court found that defendant was effectively given a Miranda warning on page 116, when Detective Toms said,  . . . I want to make sure you understand your rights, and defendant replied, [Y]ou have the right to remain silent anything you say can and will be used against you in the court of law. [I]f you can[]t afford an attorney, (inaudible) afford one, an attorney, one will be appointed to you (inaudible) but if you (inaudible) if you can not afford an attorney, one will be appointed to you uh, (inaudible).



Defendant argues that this self-admonition was inadequate, because it was not delivered by Detective Toms and because it did not include all of the required information. He did not raise the first point (the identity of the admonisher) in his written motion to suppress; however, he did preserve it by raising it at the hearing on the motion. He never raised the second point (the adequacy of the admonition) at all; thus, he has forfeited it. We will discuss it on the merits below, but only as an alternative to forfeiture.



In Miranda itself, the United States Supreme Court stated, [W]e will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on informationas to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time. (Miranda v. Arizona, supra, 384 U.S. at pp. 468-469, fn. omitted.) Further,the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it. (Id. at p. 468.)



That court, however, ha[s] never insisted that Mirandawarnings be given in the exact form described in that decision. In Miranda itself, the Court said that [t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. [Citations.] . . . [T]he rigidity of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant, and . . . no talismanic incantation [is] required to satisfy its strictures. [Citation.] (Duckworth v. Eagan (1989) 492 U.S. 195, 202-203 [109 S.Ct. 2875, 106 L.Ed.2d 166], fn. omitted, quoting Miranda v. Arizona, supra, 384 U.S. at p. 476 and California v. Prysock (1981) 453 U.S. 355, 359 [101 S.Ct. 2806, 69 L.Ed.2d 696].) The inquiry is simply whether the warnings reasonably conve[y] to [a suspect] his rights as required by Miranda. [Citation.] (Duckworth, at p. 203, quoting Prysock, at p. 361.)



Here, Detective Toms had just indicated that he was going to give defendant a Miranda warning. Defendant preempted him by reciting the warning himself. Detective Toms, however, immediat

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