P. v. Balbuena

Filed 5/5/10 P. v. Balbuena CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Alexander Balbuena appeals from convictions of murder, attempted murder and street terrorism. He contends his convictions must be reversed because his confession was coerced in violation of his constitutional rights; the trial court erred in instructing the jury to view his unrecorded statements, but not his recorded ones, with caution; his attorneys failure to object to certain expert testimony constituted ineffective assistance of counsel; and the trial court violated his right to be present at all critical stages of trial. He further contends the trial court erred in failing to instruct the jury on a charged enhancement under Penal Code section 12022.53, subdivision (b), [1] and in imposing 25-year-to-life prison terms pursuant to section 12022.53, subdivision (d). We conclude the abstract of judgment must be corrected to strike the 25-year-to-life terms under section 12022.53, subdivision (d), and replace them with terms of 20 years pursuant to section 12022.53, subdivision (c). In all other respects, the judgment is affirmed.

STATEMENT OF THE CASE

Appellant was charged by information filed on August 28, 2006, with the murder of Jose Segura ( 187), attempted murder of Oralia Giron ( 187/664), and street terrorism ( 186.22, subd. (a)), with allegations that he personally used, and intentionally and personally discharged, a 9 millimeter semiautomatic pistol, causing great bodily injury and death ( 12022.53, subds. (b), (c), (d)), in connection with the murder and attempted murder.[2] It was alleged in connection with all counts that appellant was a minor at least 14 years of age at the time the offenses were committed (Welf. & Inst. Code,  707, subd. (d)(2)(A).)[3]

Appellants trial began with in limine motions on March 13, 2008. Jury trial began on March 20. On April 1, after two and a half days of deliberation, the jury found appellant guilty of first degree murder, attempted second degree murder, and street terrorism, and found true the allegations that appellant intentionally and personally discharged a firearm in the commission of the murder and attempted murder. The court, outside the presence of the jury, found appellant was over the age of 14.

On June 13, 2008, appellant was sentenced to a prison term of 25 years to life on the murder count, with a consecutive term of 25 years to life for the section 12022.53, subdivision (b), (c) and (d) enhancement; a consecutive middle term of seven years on the attempted murder count, with a consecutive term of 25 years to life for the section 12022.53, subdivision (b), (c) and (d) enhancement; and a concurrent middle term of two years on the count of street terrorism.

Appellant filed a timely notice of appeal on July 7, 2008.

STATEMENT OF FACTS

In the late evening hours of January 16 or early morning of January 17, 2006, Luis Ochoa, also known as Gizmo, was shot and killed with a shotgun while sitting in a vehicle at the corner of Battery Street and Duboce Avenue in North Richmond. Detective Cary Goldberg was investigating this murder when, on January 17, he was notified that another homicide had occurred about two blocks away from the first one, in front of 1218 Battery Street, at the southwest corner of the intersection of Battery Street and Vernon Avenue. At the scene, Goldberg saw a four-door Honda Accord that appeared to have backed up and knocked over a portion of the fence separating the embankment south of Vernon Avenue from the Richmond Parkway. Jose Segura was in the car, dead, with a gunshot wound to his left cheek and two others to the left side of his neck. Goldberg suspected the two homicides might be connected because he noticed a lot of people and vehicle traffic around the residence at 1345 Battery Street, which was unusual for an area where people normally would not be around while police were present and made Goldberg think the people at 1345 Battery had a vested interest in what the police were doing.

The police found 13 shell casings on Battery Street, in front of 1218 and slightly to the south of the residence. Four were .32 caliber semi-automatic cartridge casings and the rest were 9 millimeter casings. The police recovered five bullet fragments, one from the fence, three from the car and one from Seguras body. The bullet fragment found in the front passenger foot well of the car was a .32 caliber bullet and the one found in Seguras body was a 9 millimeter. A subsequent autopsy revealed that Segura had suffered five gunshots to his head, neck and upper chest, all the bullets having come from the left side.

Jose Segura lived at 1218 Battery Street with Oralia Giron and their two children, a three-year-old daughter and a three-month-old son. They rented a room from Seguras brother and sister-in-law, and Girons two brothers also sometimes lived at the house. Segura was not a gang member, but Girons two brothers were members of the MS13 gang.[4]

On January 17, Giron, Segura and the children had gotten into their Honda, which was parked by the sidewalk outside the house. Giron got out and went back to the house for the babys bottle and, when she returned, Segura got out of the car to close the gate. Giron got into the back seat of the car on the passenger side, next to the baby in the middle of the back seat and the three-year-old behind the drivers seat.

As Segura was closing the gate, a green Astro van passed the Honda slowly, then stopped, and a young Hispanic male got out and walked over to talk to Segura. Segura looked scared. Three other people approached Girons car from behind, a black guy who stood by the drivers side of the car, a Hispanic who stood next to the passenger side, and a Hispanic who stood front of the car. All three looked younger than the man talking to Segura; the black man looked about 16 or 17 and the other two 18, 19 or 20. The one standing in front of the car was kind of short, had hair just barely starting to grow out after having been shaved and was clean-shaven. The person standing on Girons side of the car was a little bit taller, had long hair, a small goatee and bags under his eyes, and was wearing a black cap. The man who had been talking to Segura was wearing a white shirt and dark blue pants and his head was completely shaved.

Giron asked the person standing next to her side of the car what was happening, and he replied that he was seeking revenge for a friend and he mentioned the name Gizmo. Segura got back into the car. Giron was looking at the person standing next to her side of the car and saw him move his head, saying yes to the guy who was in [Seguras] side. Giron looked at Segura very fast and saw the black guy take a gun out of his pocket and start shooting. Giron did not see whether the other people around the car were also shooting. She suddenly felt the car going backwards very fast. When the car backed up against the hill near the freeway, Giron saw that the people had gotten into the van, which left, stopped at the next corner, then went out of her line of sight. Giron was shot in the leg.

Giron testified that she did not think she would be able to recognize or identify the people involved in the shooting. She had told a police officer that she thought she recognized the person who talked to Segura at the gate as someone she had seen coming and going from one of the houses on Battery Street.

At about 6:00 p.m. on the evening of January 17, the police served a search warrant for the residence at 1345 Battery Street. The one person inside, 15-year-old K.L., was hesitant, but cooperative. K.L. said she was renting a room in the house from Juan Herrera, also known as Willow. With K.L.s assistance, the police recovered a 9 millimeter magazine, 9 millimeter ammunition, .22 caliber ammunition, and a .38 caliber revolver from the house. Goldberg testified that at this point he had never heard appellants name and had no suspects or leads for the shooting.

Goldberg testified that K.L. said she had been standing on her porch and saw a green Astro van parked in front of the house with members of Gizmos family around it. Julius Stinson (known as Jujakas or Jakas) and appellant were there, and K.L. saw appellant get a gun from the van and Stinson get a gun from a black Chevy Tahoe. The van left the area, as did appellant and Stinson, and within minutes K.L. heard nine gunshots. K.L. looked in the direction of the gunfire and saw a vehicle traveling backwards up the hill, then saw appellant and Stinson running back to the residence. Stinson got into a vehicle, while appellant entered 1345 Battery Street and appeared to be trying to get rid of a gun; the other person on the porch with her told appellant to get that out of here. Sometime after the shooting, K.L. went to the Green Store and spoke with appellant, asking what had happened, and appellant told her he shot the individual . . . in the forehead.

The police decided to bring K.L. into the field operations building to record her statement. K.L. expressed concern for her safety if people in the area thought she was giving the police information and, at her request, they handcuffed her and made it appear that she was being detained rather than voluntarily leaving the house with them. Goldberg did not know whether K.L. knew her interview at the office was video recorded; he did not specifically tell her that it was and the equipment was not obvious.

In this interview, the video tape of which was played for the jury, K.L. said she was standing on the porch of her house and saw several of Gizmos cousins arrive in a turquoise van. Appellant got into a red Blazer that drove around the corner, and Jujakas, wearing a reddish plaid-ish shirt, grabbed a gun from a black Tahoe, put it in his pants and started running toward where the shooting occurred. K.L. saw the turquoise van stop where the shooting happened and heard like nine shots with two different sounds she thought were separate guns. She saw the victims car go up the hill and saw Jujakas and appellant running towards her house. Jujakas got into the back of Smurfs black Tahoe truck. Appellant came into the house and K.L. knew he had a gun because she heard Rosa tell him dont put it there as he tried to put it under the couch. Appellant ran and jumped into the black Tahoe, which drove down the block. Later, K.L. went to the corner store and saw appellant talking to a black dude outside. She first said she did not talk directly with appellant, but listened to the conversation and overheard appellant say all I did was shoot him in the forehead. When Goldberg told her this was different from what she had related at the house, she said she asked appellant who got killed and appellant said I shot him in the forehead, Jujakas shot the lady in the chest, and (Gizmo)s cousins shot .357. K.L. told the officers that appellant lived in the apartments on 6th, at the top, with his parents and K.L.s sister-in-law.

K.L. testified at trial that, in November 2006, she and her son were living at 1345 Battery Street with Rosa and Rosas husband, Willow. K.L.s sons father, Bache, was a friend of Willows but did not stay at the house. By the time of trial, she and Bache had a second son and K.L. was expecting a third child. As far as she knew, no one K.L. associated with was connected to the Richmond Sur Trece (RST) gang. On the morning after Gizmo was killed, K.L. testified, she went to her porch and did not see anyone outside. She went to school from 8:30 to 11:00 a.m., then went to a wig appointment. K.L. denied hearing any shots fired; seeing appellant walking on Duboce Avenue with a gun; running into the house and attempting to hide a gun; going to the Green Store later that day; or hearing appellant say he had shot the man in the car. She recalled being interviewed by the police, but did not remember telling Detective Goldberg she did not want to testify and was afraid to do so. She acknowledged that she was on electronic home detention because of an arrest warrant based on her failure to appear in court, but claimed she had not been aware she was supposed to appear.

K.L. claimed that when the police were searching the house on January 17, Goldberg threatened to charge her with possession of firearms or ammunition and to take away her child if she did not tell him what he wanted to hear. Goldberg took her telephone, searched through the photographs, showed her one of appellant, whom she knew as Jay Leno, and tried to get her to say that appellant was involved in the shooting that day and that he had told her about it at the Green Store. Goldberg told K.L. that he believed appellant was one of several people involved in the shooting, had run into her house to hide a gun, and had told her at the Green Store that he shot someone. At the police station, K.L. told the police the story Goldberg had given her because she was afraid of his threats. K.L. testified that she did not know where appellant lived and when the police took her to an area and asked if he lived there, she identified a random house.

Goldberg testified that when he attempted to serve K.L. with a subpoena before the preliminary hearing, she had moved and her mother refused to provide her current location; he eventually found her through a telephone number her mother gave him and, when she refused to tell him her location, through her employer. K.L. refused to testify because she was scared of retaliation, as Bache and Willow were associated with RST. On cross-examination, Goldberg denied threatening to take away K.L.s children or charge her based on the items found in the house if she did not tell him what he wanted to hear. He did not recall taking K.L.s cell phone from her.

Detective Shawn Pate testified that when he attempted to serve K.L. with a subpoena for the trial, she became very angry and refused. Later, after being told she could be arrested, she said she would appear but would not cooperate. She never said she had not witnessed anything on the day of the shooting and everything she said about it had been fed to her by Goldberg. K.L. came to court on the scheduled date but the case was being trailed and she was asked to wait to be given the new trial date. Within five minutes, she fled the building. An arrest warrant issued and she was subsequently arrested.

After interviewing K.L. on January 17, Detective Pate drove her to the apartment building she had said appellant lived in and she pointed out his apartment. Goldberg obtained a warrant, went to the apartment and arrested appellant at about 2:00 a.m. on January 18. Appellant was in bed with his pregnant girlfriend and a small child who turned out to be K.L.s son. Although appellant did not have a shaved head or shoulder length hair, as Giron had described the assailants, Goldberg testified that many individuals subjected to high stress in violent crimes will mistake physical characteristics and details.[5]

Goldberg and Pate interviewed appellant for approximately 90 minutes, beginning at about 2:45 a.m. Goldberg testified that appellant did not say he felt tired or could not think straight because of the hour and that, based on his body language, demeanor and conversation, appellant seemed somewhat at ease and did not seem to be experiencing stress or obvious fatigue. Appellant was advised of his Miranda[6]rights and waived them.

The tape of appellants interview was played for the jury.[7] Initially, appellant denied being at the scene of the shooting. Subsequently, he admitted being at the scene, in front of the car, but denied having a gun. Eventually he acknowledged having shot three or four rounds with the .32 caliber gun. Appellant first said he disposed of the gun by throwing it in the ocean, then later said he threw it in the park and explained the location. He first said he was the only shooter, but eventually stated that Jujakas and Willow were also shooting, that they were joined by a person from a van, and that Willow directed them to shoot. Appellant said he did not know there were children in the car, that he shot at the front window and that the victim was a thirteen. He said that he was not trying to kill anyone, just to scare them, and that he did not think he hit the victim. Appellant acknowledged he was a member of RST and was trying to represent RST, and that the shooting was a gang retaliation.

Detective Goldberg testified that he viewed several things appellant said during the interview as validating the account he gave. These included his mentioning a woman sitting in the back seat of the car, which Goldberg did not believe a distant onlooker would have known; his saying he shot four times, as the police found only four .32 caliber shell casings at the scene; his referring to Segura being shot in the head, which Goldberg believed only someone in the immediate vicinity would have known; his saying he approached the car from behind, which was consistent with Girons account; and his referring to a point when only the man was in the car and the woman came back out, which was again consistent with Girons account.

Asked whether he lied to appellant during the interrogation, Goldberg testified that they employed a ruse, a commonly employed technique to give the person being interrogated the feeling that they caught me . . . the games over, I need to be honest. Contrary to what he told appellant, prior to the interrogation Goldberg had not spoken with Stinson and appellant had not been picked out of a photo lineup. Goldberg denied threatening appellant or promising him anything during the interrogation.

In November 2006, Goldberg interviewed Kay Daniels, who was in federal custody for drug related offenses and facing a significant amount of prison time. Goldberg testified that Daniels admitted being a member of Mad Circle, part of the Project Trojan gang, and wanted to trade information for a reduction in his sentence. Daniels said that RST and MS[13] were having issues and it was a result of the recent killing of Gizmo. He said he was standing near 1345 Battery Street prior to the shooting and heard Willow and appellant (known to him as Jay Leno), who were in the garage, say something about catching someone slipping, which in gang terms means doing violence to an enemy when it is not anticipated. Daniels also saw K.L. in front of the house. He saw Julius Stinson walking toward 1345 Battery Street, then saw a van pull up and an unidentified Hispanic male get out and talk with Stinson and Herrera. The three then walked toward a gold color Honda parked near the end of Battery Street by Vernon. Several minutes later, Daniels heard gunshots, looked in the direction of the shots at the end of Battery near Vernon, and saw the Honda driving backwards, first slowly and then accelerating as the shots progressed. Daniels identified Stinson and the Hispanic male as the shooters. Daniels did not notice appellant being with the others walking to the scene of the shooting, but said he was not particularly paying attention at that point.

The jury also heard Danielss taped statement. Daniels said that he was in front of Willows house a few days after Gizmo was killed, talking with Willow, appellant, Oso, and a Mexican who used to work at Beacon. The group was mad and shit talking about what they [were] gonna do . . . [] . . . [] Lets go down there and get on the fools. Daniels saw Stinson hit the corner in the van and then saw a Honda hit the corner. A dude with his broad. Willow, Stinson and the dude that used to work at Beacon started funning a little bit, running up . . . . Daniels heard hella shots, ran over and saw the car going in reverse, with Stinson, Willow and the Beacon man shooting at it. Stinson was on the drivers side of the car, the Beacon man was in the middle. Daniels did not actually see Willow firing, but saw him with a gun. Daniels initially said he was not sure whether appellant went with the others toward the Honda, saying I know something was bouts to happen. Later in the interview, he said that appellant was with the others when they started going up this way, but he did not remember seeing appellant during the shooting. As Stinson ran away from the scene, Daniels asked him,  what the fuck?  and Stinson said,  yeah, they my boys . . . I gotta do whatever, whatever.  Daniels saw Willow run back to the garage with two guns. Willow said,  Those the fools that smoked Gizmo.  The Beacon man ran back and got into his car, which was parked by Willows house.

Goldberg interviewed Herrera (Willow), who said he fired a 9 millimeter one time before the gun malfunctioned.

Detective Pate testified as an expert in the recognition and identification of Hispanic gangs. Pate opined that appellant was a member of RST, which came under the umbrella of the Sureno gangs. RSTs main purpose was selling narcotics and RST members often worked with the Project Trojans, who controlled most of the street level narcotics in North Richmond. Gizmo, Willow and Bache were RST members; Stinson was not but was a member of Project Trojan. Pates opinion that appellant was an RST member was based in part on the fact that he lived in the RST compound, a narcotics distribution area and place RST members lived; he socialized at the house where K.L. lived, which was known to be an RST house; and he was contacted by K.L. at the Green Store, which was controlled by the Project Trojans and RSTs. Appellant equivocated about his RST membership during the interrogation, but at juvenile hall he clearly claimed to be a member of RST.

Additionally, Pate believed appellant was an RST because he got engaged in a retaliatory shooting for a hard core RST who is killed allegedly by an MS[13]. Pate testified that the police had known throughout the investigation that there were problems between the MS13 and RST gangs. MS13 is also considered a southern gang, but was in conflict with RST, particularly over narcotics. There had been three or four shootings between MS 13 and RST in the months before Gizmo was shot, and the present shooting was clearly because they believed, or had in their mind that the people who killed Gizmo were the MS[13]s down the street and which they targeted. The crime was [a]bsolutely committed for the benefit of RST because it is them representing themselves as a gang against another gang trying to take over their area, acting in concert for [the] respect of the gang, to maintain their presence and control of the drug trade.

DISCUSSION

I.

Appellant argues his confession should have been excluded because it was an involuntary product of police coercion. The law governing voluntariness of confessions is settled. In reviewing the voluntary character of incriminating statements,  [t]his court must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat. [Citations.] With respect to the conflicting testimony, the court must accept that version of events which is most favorable to the People, to the extent that it is supported by the record.  ([People v. Hogan (1982) 31 Cal.3d 815,] 835.) (People v. Thompson (1990) 50 Cal.3d 134, 166.) In order to introduce a defendants statement into evidence, the People must prove by a preponderance of the evidence that the statement was voluntary. [Citation.] . . . When, as here, the interview was tape-recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial courts determination of voluntariness. (People v. Vasila (1995) 38 Cal.App.4th 865, 873.) (People v. Maury (2003) 30 Cal.4th 342, 404 (Maury).)

 A statement is involuntary if it is not the product of  a rational intellect and free will.  (Mincey v. Arizona (1978) 437 U.S. 385, 398.) The test for determining whether a confession is voluntary is whether the defendants will was overborne at the time he confessed. (Lynumn v. Illinois (1963) 372 U.S. 528, 534.)  The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were such as to overbear petitioners will to resist and bring about confessions not freely self-determined. [Citation.] [Citation.] In determining whether or not an accuseds will was overborne, an examination must be made of all the surrounding circumstancesboth the characteristics of the accused and the details of the interrogation. [Citation.] [Citation.] (People v. Thompson, supra, 50 Cal.3d at p. 166.) (Maury, supra, 30 Cal.4th at p. 404.)

 A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. (People v. Benson (1990) 52 Cal.3d 754, 778, citing Colorado v. Connelly [(1986)] 479 U.S. [157,] 167.) A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. (Benson, supra, at p. 778.) Although coercive police activity is a necessary predicate to establish an involuntary confession, it does not itself compel a finding that a resulting confession is involuntary. (People v. Bradford (1997) 14 Cal.4th 1005, 1041.) The statement and the inducement must be causally linked. (Benson, supra, at pp. 778-779.) (Maury, supra, 30 Cal.4th at pp. 404-405.) (People v. McWhorter (2009) 47 Cal.4th 318, 346-347.)

A confession is obtained by a promise within the proscription of both the federal and state due process guaranties if and only if inducement and statement are linked, as it were, by proximate causation. This is certainly true for the federal right. The requisite causal connection between promise and confession must be more than but for: causation-in-fact is insufficient. (Hutto v. Ross [(1976)] 429 U.S. [28,] 30 (per curiam).) If the test was whether a statement would have been made but for the law enforcement conduct, virtually no statement would be deemed voluntary because few people give incriminating statements in the absence of some kind of official action. (U.S. v. Leon Guerrero (9th Cir. 1988) 847 F.2d 1363, 1366, fn. 1.) The foregoing is also true for the state right. (People v. Kelly [(1990)] 51 Cal.3d [931,] 973 (conc. opn. of Mosk, J.).) (People v. Benson (1990) 52 Cal.3d 754, 778-779.)

 It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. . . . Thus, [w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, if . . . the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible . . . .  (People v. Jimenez (1978) 21 Cal.3d 595, 611-612, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17.) (People v. Holloway (2004) 33 Cal.4th 96, 115.)

At the beginning of his interrogation, appellant denied being Sureno, but said he was with RST and MS13 was trying to take over. Appellant denied being at the scene of the shooting or having seen Jujakas since Gizmo was shot. Detective Pate told appellant they already knew he was at the present shooting because they had talked to Jujakas, and that they knew two guns were fired and one of the people in the car had picked you all out. The detective told appellant that [t]his is where its important for you to be honest with us so if there is some way to help yourself out, this is the time to do it, said the police needed to know what appellant was thinking at the time, offered suggestions of how he might have been feeling, and told him several facts he said the police knew about the shooting. Appellant said, I was just right there and that shit happened.

Detective Goldberg then suggested that it might not have been appellants gun that killed the victim, and appellant denied having had a gun. The detectives told him they had already established that he did have a gun and the question was which gun had killed the victim. They again discussed needing to know what appellant was thinking and told appellant, the thing that is gonna hurt you is if you lie or not be honest, because witnesses would tell the jury we saw this guy, he had a gun, this is what the gun looked like . . . . Appellant said he was at the house and that shit just happened. The detectives asked about the people in the green van, whom appellant said he did not know, and appellant said the guy in the van just hopped out and started shooting. Goldberg expressed appreciation for appellants honesty about being present, but urged him to go further so the jury would see he was trying to be honest, and Pate reiterated the possibility that appellants gun might not have killed the victim.

Appellant stated that he was right there in front of [the victims] car at the time of the shooting, but insisted he did not have a gun. At this point, Goldberg told appellant, You got to remember, were giving you the opportunity to try and work through this so maybe you can be there for your kid in a few years. Pate told him it was a good thing that not everyone died in the shooting, but it meant someone had identified appellant and witnesses had said he had a gun and pulled the trigger. Appellant continued to insist he did not shoot anyone and was just standing in front of the car.

At this point Pate told appellant the important thing was whether he was shooting the .32 caliber or the 9 millimeter, because only one of them hit someone. Goldberg asked, Now you figure it out. Whats a bigger round? Whats a bigger gun? A nine? Or a thirty-two? Appellant said a nine and Goldberg asked, Okay. So what do you think is more likely to go through windows and kill someone? Appellant said, Nine. Goldberg asked which gun appellant had and appellant said, The thirty-two. Pate asked whether appellant was saying this because it was the truth or because it was what he thought the police wanted to hear, and appellant said, Nah. I had the thirty-two. I had the thirty-two.

In response to further questioning, appellant said he threw the gun in the ocean, acknowledged that he and Jujakas were both shooting, and said he shot three, four rounds. When asked where he got the gun, appellant first said a dopefiend came and sold it to us, then when told the detectives did not believe him, said he found it in a stolen car. Appellant said he did not know there were babies in the car, but only saw the woman in the back and man in the front. Asked who he aimed at, appellant said he just shot the front window. Appellant said the victim said he was a thirteen.

Appellant tried to say he was the only one shooting and the detectives told him there were two shooters and [h]onestys the only thing thats gonna help you out now. They told appellant they knew he ran with Jujakas after the shooting, stressed the seriousness of the crime, and told appellant the only thing that would help him when the case went before a jury would be if he showed some sort of remorse and you showed some bit of honesty. This aint about, oh well now its a whole coat, Im not down for snitching. Youre fighting for your life now. You want to be able to get out sometime in your life. To be able to see your baby. Dont you? Appellant said he did not want to be a snitch. The detectives told him they were pass [sic] that now and Jujakas was not looking out for him.

The detectives told appellant he was looking at 25 years to life for murder and outlined the significant additional penalties for shooting the passenger, endangering the children and related enhancements, then told appellant he needed to be honest and show remorse because he was looking at [t]wenty-five to life or life without. [] . . . [] Its gonna be one of those two different things. You got to figure it out.

Goldberg suggested he could draw a map that appellant could fill in and appellant moved forward and worked on this with him. He first denied anyone told him to do this hit, then said Willow pointed out, thats the dude. Thats the dude, said lets go over there, and he, appellant and Jujakas walked around the block to the car on Battery so they would not be seen approaching. Appellant said Willow had a nine and Jujakas had a gun but he did not know what kind; appellant shot four bullets, Willow and Jujakas each fired four or five; and a person wearing a number 45 Oakland jersey got out of the green van and joined in the shooting.

Goldberg told appellant he did not believe he had thrown the gun in the ocean and suggested it would help appellant to be honest about this because theyll know your not lying and that you are showing some remorse and if appellant directed the police to the gun it would show he, not the others, had had the .32 caliber, which would be better for appellant if the .32 did not kill anyone. Appellant said he threw the gun in the park and explained the specific location; the detectives got a map and appellant pointed out where he was running and where he threw the gun. Appellant said he did not think he hit the man in the car cause all those thirty-two dont go through, I was just hitting at the window. Appellant said he was not trying to kill anyone, just scare them; he was shooting at the front window; and he thought whoever was on the side hit the man in the head. Appellant said he knew the man had been shot in the head because as soon as he heard a shot he saw the man bleeding, demonstrating what he saw by motioning with his hands to show blood running down his face and slumping over in his chair. Appellant said Willow told the group to shoot, Jujakas started shooting first, and appellant shot after Willow and Jujakas had already hit the victim. He said he had barely start[ed] hanging with RST, but acknowledged he was a member of RST and trying to represent it, and the shooting was a gang retaliation. Appellant spontaneously showed Goldberg a tattoo on his arm, but said it was not an RST tattoo, [j]ust the smile face, the clown face, you dont know the clown faces?

At the suppression hearing, Goldberg testified appellants interview began at about 2:41 a.m. on January 18, 2006, and lasted about an hour and a half. Appellant did not ask for food or beverage during the interview, and was allowed to use the rest room when he asked to do so at the end. Goldberg had previously interviewed K.L., who identified appellant and said he had confessed to her. He had interviewed Oralia Giron, who said she had been in the rear passenger compartment of the car when shots were fired but did not identify appellant. Goldberg had taken part in inspecting the crime scene, where shell casings, including four .32 caliber casings, had been found, and he had seen Segura, with a gunshot to his head, in a Honda Accord. He and Detective Pate had not spoken with Julius Stinson (Jakas or Jujakas) but, as a ruse to elicit the truth, told appellant that they had, and that Jujakas had said appellant was at the scene of the shooting.

Richard Ofshe testified as an expert on the influence used in police interrogations. In his view, the interrogators, working in tandem, used a psychologically coercive strategy that is pushed forward by offering leniency through suggestion, and then ultimately through blatant statement of the same point to overcome resistance. . . . [I]t is a motivational strategy that is all about benefit if you comply, and more serious punishment if you dont. And thats the strategy that is used repeatedly, was developed and then used repeatedly throughout this interrogation. Its not a simple one statement. The detectives used a coherent strategy throughout the interrogation, promising appellant he would receive the worst possible punishment if he continued to maintain he had no involvement with the crime, while if he agreed to various suggestions it would open the door to and result in his receiving great leniency, or relative leniency. . . . [] Once compliance is gained, its then used to overcome subsequent resistance.

Appellants primary argument is that the detectives elicited his confession by means of a strategy of offering leniency in sentencing in exchange for honesty, including directing appellant as to what story would be viewed as honest. Specifically, he maintains that the detectives gave him the very clear impression that if they believed he was  honest and told the truth, he would not get twenty-five to life or life without and die in prison, but would instead see his baby in a few years.  He cites several points at which the detectives urged him to be honest, told him that without cooperation he would be tried as an adult, be fighting for his life and face twenty-five to life or life without and then die in prison,  and told him that if he confessed he would  see your baby and be there for your kid in a few years.  Appellant argues the detectives told him what they would accept as honesty and truth by falsely claiming they had evidence placing him at the scene of the shooting and witnesses who had seen him with a gun, thereby eliciting from him the story they wanted him to supplythat he was the shooter Giron saw in front of the car.

Drawing on Ofshes testimony, appellant urges the detectives first used false claims to get him to admit he was present at the scene of the shooting, telling him that they had talked to Jujakas; evidence had been presented to a judge who signed a warrant for appellants arrest; and they knew where appellant ran, knew he got into Smurfs car, and knew a red Bronco was involved. Only the first of these claims was false: The police had not yet talked to Jujakas. Appellant had been arrested pursuant to a warrant, and K.L. had told the police she saw appellant get into a red Blazer, saw appellant and Jujakas running from the scene, and saw Jujakas and then appellant get into Smurfs car. Appellant argues the detectives again falsely claimed to have evidence when, in the face of appellant admitting his presence but denying having had a gun, they told appellant that witnesses put the gun in your hand. This was not a false claim, inasmuch as K.L. had told the detectives she knew appellant had a gun when he came to the house immediately after the shooting and she heard Rosa tell him dont put it there as he tried to put it under the couch, as well as that appellant later told her he had shot the victim in the forehead. While the communication of false information is a factor weighing against voluntariness, it  does not alone render a resulting statement involuntary.  (In re Shawn D. (1993) 20 Cal.App.4th 200, 209, quoting People v. Hogan, supra, 31 Cal.3d at pp. 840-841.)  The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.  (Maury, supra, 30 Cal.4th at p. 411, quoting People v. Ray (1996) 13 Cal.4th 313, 340.) Given what information the detectives did have linking appellant to the crime, the deception used here was not of the type to induce an innocent man to implicate himself in the crime. (People v. Watkins (1970) 6 Cal.App.3d 119, 125 [defendant falsely told his fingerprints had been found on get away car; defendant had been identified by victim of robbery and found in vicinity shortly after it].)

Appellant also argues the detectives coerced appellants confession by offering him various scenarios for how the crime might have been committed that would mitigate his liability: Either you are a young man that is angry because your best friend was just killed, and thats understandable thats a logical explanation. Or somebody like Jujakas forced you to do this . . . . [M]aybe you werent thinking straight, maybe you were upset, maybe that guy aimed the gun at you, maybe hes a gang member, maybe hes the guy that killed Gizmo . . . .[] . . .[] Was it a spur of the moment type thing or did you plan it for the whole night? It was after the last of these questions that appellant first acknowledged he was present, but maintained he did not have a gun. Addressing the latter point, the detectives again offered various scenarios: [I]f its a justifiable homicide or its something you did out of rage and you just werent thinking straight then thats important for us to get down accurately. If youre just a killer that just wants to go around to kill people and skin cats and all that type of stuff, then by all means tell us and well document that as such. Maybe you were shooting in defense and just, right maybe tying to scare him.

This tactic was permissible. (People v. Holloway, supra, 33 Cal.4th at pp. 116-117.) As the Holloway court explained, [Detective] Hashs further suggestions that the killings might have been accidental or resulted from an uncontrollable fit of rage during a drunken blackout, and that such circumstances could make[] a lot of difference, fall far short of being promises of lenient treatment in exchange for cooperation. The detectives did not represent that they, the prosecutor or the court would grant defendant any particular benefit if he told them how the killings happened. To the extent Hashs remarks implied that giving an account involving blackout or accident might help defendant avoid the death penalty, he did no more than tell defendant the benefit that might  flow[] naturally from a truthful and honest course of conduct  (People v. Jimenez, supra, 21 Cal.3d at p. 612), for such circumstances can reduce the degree of a homicide or, at the least, serve as arguments for mitigation in the penalty decision. As the appellate court explained in People v. Andersen [(1980)] 101 Cal.App.3d [563,] 583, Homicide does possess degrees of culpability, and when evidence of guilt is strong, confession and avoidance is a better defense tactic than denial.  (People v.Holloway, supra, 33 Cal.4th at p. 116.) To the same effect, the court found in People v. Carrington (2009) 47 Cal.4th 145, 171, Detective Lindsays suggestions that the Gleason homicide might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime. Here, in presenting appellant with different scenarios for how the crime could have occurred, the detectives told appellant time and again that it was important for them to know what he was thinking. This was relevant and accurate, as appellants mental state would bear on the determination of which offense he could be charged with and found to have committed.

Throughout the interview, the detectives urged appellant that it would help him to tell the truth and hurt him not to. This is the main basis of appellants argument, that the police impermissibly promised appellant lenient treatment in return for his confession.

Several of the passages appellant cites involve general exhortations for appellant to tell the truth, sometimes combined with suggestion that this might allow the officers to help him: This is where its important for you to be honest with us so if there is some way to help yourself out this is the time to do it; Be honest. This is the only time we can help you out man; [W]e are giving you the opportunity to try and work through this so maybe you can be there for your kid in a few years; Honesty is the only thing thats going to help you out now; and Be honest with me. [] . . . [] Tell me the truth. These statements by the detectives did not promise any specific benefit to appellant, but only such benefits as flow[] naturally from a truthful and honest course of conduct, which is permissible. (People v. Holloway, supra, 33 Cal.4th at p. 115.) Encouraging a suspect to tell the truth by suggesting this will be to his or her advantage is permissible. (People v. Vasila, supra, 38 Cal.App.4th at p. 874.)

There are places in the interrogation where the detectives crossed the line. For example, the detectives told appellant, See lets be very honest right now. The only thing thats going to help you in about 2 years when this goes before a jury of 12 people, like he was telling you about, is the fact that you showed some sort of remorse and you showed some bit of honesty. This aint about, oh well now its a whole coat, Im not down for snitching. Youre fighting for your life now. You want to be able to get out sometime in your life. To be able to see your baby. Dont you? Clearly the detectives at this point were implying appellant would be viewed more favorably and treated more leniently if he was honest. In the passages appellant offers as examples of blatant offers of leniency in exchange for honesty, the detectives told appellant he would be tried as an adult and would soon be fighting for [his] life, that he faced twenty-five to life, and that if he did not show remorse, he would be looking at . . . [] [t]wenty-five to life or life without. [] . . . [] Its gonna be one of those two different things. You got to figure it out. After the detectives outlined the various prison terms attached to the offenses, they suggested, what you need to salvage my friend is . . . . [] Do you show remorse? [] Do I wanna get out of prison when Im forty-five years old? Or do I wanna die in prison? These were unquestionably improper offers of leniency in exchange for honesty. (See People v. Vasila, supra, 38 Cal.App.4th at p. 874 [one investigator promised not to institute federal prosecution; the other promised to release the defendant on his own recognizance]; People v. Jiminez, supra, 21 Cal.3d at pp. 611-612 [defendant was told he faced the death penalty and things would go better for him with the jury if he talked about the case].)

In determining whether these improper offers rendered the confession involuntary, the question is whether, given all the circumstances, the promise was a motivating factor in the giving of the statement. (People v. Vasila, supra, 38 Cal.App.4th at pp. 873-874.) This is where appellants claim fails.

First, appellants critical admissions were made before improper tactics were employedthat he was in front of the car, that he had the .32 caliber gun, and that he had shot three or four rounds at the front window of the car. What followed was further elaboration of the details of the shooting, with appellants primary resistance being to revealing his companions actions. In claiming that the detectives promised leniency in exchange for cooperation well before he actually confessed, appellant cites two pages in the transcript of the interrogation as the points where he made his confession.[8] At these pages, appellant stated that he was standing in front of the car and that he shot after Jujakas and Willow had hit the victim. This claim simply ignores appellants earlier statements that he was standing in front of the car and fired four bullets from the .32 caliber at the front window.[9]

Second, the totality of the circumstances reflect that appellants crucial admissions were voluntary and not coerced. Having reviewed the videotape of appellants confession, we find ourselves in agreement with the trial courts commendably thorough and detailed ruling regarding the nature of the interview. While appellant was a minor without criminal history, he was hardly a child as characterized in his briefs: He was 16 years old, arrested in bed with his pregnant girlfriend, and well versed in the gang activities in his neighborhood. The atmosphere of the hour and a half long interview (which included periods when he was left in the interview room by himself) was not overtly harsh or threatening, and appellants demeanor throughout was relaxed and displayed no intimidation or fear. (See People v. DePriest (2007) 42 Cal.4th 1, 35.) As the trial court noted, it was a non-threatening atmosphere for a police interrogation, and the defendant did not demonstrate or exhibit any fear of the officers. [T]he tone of the interview was quite professional, relatively moderate, mostly conversational. Most of it was back and forth between the detectives and the defendant. And my sense is the defendant did answer the questions he was asked freely. [] . . . [] . . . [T]he officers did not raise their voices excessively. There was no browbeating of the defendant. Although the detectives became somewhat animated regarding the children in the car, their conversations with the defendant were never abusive toward him. Toward the end of the interview, appellant spoke conversationally, willingly worked on the map with the detectives and volunteered to show the tattoo no one had asked about. The trial court concluded that it was left with a strong and consistent impression that the defendant at all times was acting voluntarily, that he was not intimidated by the officers. He made calculated decisions as to how much he could or should tell the officers, but when he did so, he had done so calmly, casually, and without any apparent fear of the officers.

Finally, to the extent any portions of appellants confession should have been suppressed as induced by improper interrogation tactics, the error was harmless beyond a reasonable doubt. (People v. Cahill, supra, 5 Cal.4th at pp. 509-510.) As explained, the crucial admissions that appellant shot at the front window of the car with a .32 caliber were admissible. And even aside from appellants confession, the evidence against him was very strong. According to Goldbergs description of K.L.s statements at the house, she saw appellant get a gun from a van and Jujakas get a gun from a Chevy Tahoe, saw the van, appellant and Jujakas leave the area, and minutes later heard nine gunshots. She then saw appellant and Jujakas running back to the house, Jujakas getting into a vehicle and appellant entering the house and apparently attempting to get rid of a gun. Later in the day, appellant told her he had shot the victim in the forehead. In the taped interview that was played for the jury, K.L. told the police she saw appellant get into a car that drove toward the scene of the shooting while Jujakas ran toward it with a gun, and after hearing the gun shots, saw appellant return to the house and attempt to put what she believed to be a gun under the couch, then run and jump into the black Tahoe that Jujakas had already gotten into. Later, appellant told her he shot the victim in the forehead.

While K.L. testified that none of the above statements were true, and that Detective Goldberg had coerced her into identifying appellant and providing the story she gave, there is virtually no chance the jury believed her. K.L. testified at trial that she was not present for any of the events she described, but Kay Daniels testified that he saw her in front of the house before the shooting. K.L. testified that she did not know where appellant lived and that she identified a random house when the police asked her to show them. Yet when the police went to precisely the apartment K.L. pointed out, they found not only appellant but also K.L.s own child. There is little chance the jury could have concluded K.L.s trial testimony, rather than her prior statements to the police, was truthful.

Appellant suggests that the physical evidence demonstrates the admissions K.L. described him having made did not describe what actually happened: K.L. related appellant having said he shot the victim in the forehead; Jujakas shot Giron in the chest; and Gizmos cousins shot .357s. But in fact, Segura was shot behind his left ear, in his neck and in his upper chest; Giron was shot in the leg; and the police found evidence of .32 caliber and 9 millimeter weapons, but not .357s. None of these points is so inconsistent with the facts as to necessarily discredit K.L.s statement or the statement she attributed to appellant. If appellant shot from the front of the car and saw blood on Seguras face, he could well have thought he hit Segura in the forehead. Similarly, seeing Giron in the backseat of the car, appellant could have assumed she was shot in the chest rather than the leg. Appellant did not necessarily know what type of gun the other shooters fired.

Additionally, Daniels told the police that appellant was one of the group outside Willows house talking about doing violence and that he saw appellant going with the others toward the scene of the shooting, although he did not see where appellant was during the shooting.

II.

As has been described, the jury saw and heard the videotape of appellants confession to the police. They also were given evidence that appellant told K.L., in a conversation at the Green Store, that he shot Segura in the forehead. The trial court instructed the jury pursuant to CALJIC No. 2.70: You are the exclusive judges as to whether the defendant made a confession or an admission, and, if so, whether that statement is true in whole or in part. [] Evidence of an oral confession or an oral admission of the defendant not made in court should be viewed with caution. After these instructions had been given, the prosecutor requested a modification of CALJIC No. 2.70, arguing that the direction to view an admission with caution applies to an admission made out of court and related by a witness, but not to an admission that is recorded, because with a recording, the making of the statement and the rendition of the words are preserved in their pristine form as they were stated. The court then told the jury it needed to correct a mistake in the instructions it had given and reread the instructions on confessions and admissions, this time stating, Evidence of an oral confession or an oral admission of the defendant not recorded on audiotape or videotape and not made in court should be viewed with caution.

Appellant argues the instruction to view unrecorded admissions and confessions with caution indicated that the jury should not view recorded admissions and confessions with caution. Because his defense depended on convincing the jury that his recorded confession was coerced and therefore should be viewed with caution, appellant argues that the modified instruction undercut his defense and lightened the prosecutions burden of proof.

Appellant recognizes the general rule that CALJIC No. 2.70 should be given sua sponte when evidence of a defendants oral statement is used to prove the prosecutions case (People v. Slaughter (2002) 27 Cal.4th 1187, 1200; People v. Beagle (1972) 6 Cal.3d 441, 455; People v. Shoals (1992) 8 Cal.App.4th 475, 498), as well as that the cautionary instruction should not be given when the jury is presented with a tape recording of the oral admission (People v. Slaughter, at p. 1200). The reason for the latter rule is that  the purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.] (Ibid., quoting People v. Beagle, at p. 456.) There is no need for this determination in the case of a recorded statement.

Accordingly, appellant acknowledges that, under normal circumstances, the trial court would have been correct to modify the cautionary instruction to apply only to the evidence of appellants unrecorded statements. He urges that the circumstances in this case were extraordinary, however, because his defense asked the jury to view his recordedstatements with caution and the instruction told them not to do so.

Appellant contends the present case is controlled by Cool v. United States (1972) 409 U.S. 100 (Cool). In Cool, at a trial for possession of counterfeit bills, an accomplice testified for the defense that he was guilty of the offense but the defendant was not involved. (Id. at pp. 100-101.) The trial court instructed the jury that an accomplices testimony is open to suspicion,  but also that if the jury was convinced beyond a reasonable doubt that the accomplices testimony was true, it should be given the same effect as any other witnesss testimony. (Id. at p. 102.)

Appellant characterizes Cool as holding that the standard accomplice instruction posed no problem where the accomplice testifies for the prosecution, but where the accomplice testifies for the defense, an instruction telling the jury to view the accomplices testimony skeptically places an improper burden on the defense . . . . ([Cool, supra,] 409 U.S. at p. 103) and improperly reduces the states burden of proof. This is not an accurate portrayal of the holding.

In explaining the propriety of accomplice instructions when the accomplice testifies for the prosecution, because the instructions represent no more than a commonsense recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity, Cool stated that [n]o constitutional problem is posed when the judge instructs a jury to receive the prosecutions accomplice testimony with care and caution.  (Cool, supra, 409 U.S. at p. 103.) The court went on to say, But there is an essential difference between instructing a jury on the care with which it should scrutinize