P. v. Miller
Filed 7/27/12 P. v. Miller CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY MILLER,
Defendant and Appellant.
D056855
(Super. Ct.
No. SCE266581)
APPEAL from
a judgment of the Superior Court
of San Diego County,
Lantz Lewis, Judge. Affirmed.
I.
INTRODUCTION
Defendant
Anthony Miller appeals from a judgment entered after a jury convicted him of
two counts of first degree murder. On
appeal, Miller contends (1) that the trial court should not have admitted
inculpatory statements that Miller made to police detectives at his home and at
the police station, on the grounds that he was not given Miranda
title="">[1] warnings prior to or during the
interrogations, and that the statements were involuntary because they were
induced by deceptive and coercive police tactics; (2) that the trial court
erred in instructing the jury on the defense of duress by improperly modifying
the standard CALCRIM instruction in a manner that shifted to the defense the
burden of proving duress; and (3) that the trial court erred in imposing
consecutive life terms because the court was acting under the misimpression
that it did not have the discretion to impose concurrent life terms. We conclude that none of Miller's contentions
has merit. We therefore affirm the
judgment of the trial court.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
A.
On March 1, 2006, Samir Yousif had
planned to meet his friend, Heather Mattia, for a late dinner in El
Cajon. Mattia
and her brother owned the Granada Liquor Store on Broadway in El
Cajon, and Mattia was working at the store until 11:00 p.m. that night. After 11:00
p.m., Yousif went to the restaurant where he and Mattia were going
to meet, but Mattia was not there.
Yousif called Mattia's cell phone.
She did not answer. He then drove
to the store.
When Yousif
arrived at the store, he noticed that the lights were off, and the store
appeared to be closed for the day.
Yousif parked his car and honked the horn, but no one came out of the
store. He went to the door of the store
and discovered that it was not locked.
He opened the door and called out for Mattia but got no response. Yousif then walked to a neighboring fast food
restaurant and asked if Mattia was there.
Upon finding out that Mattia was not there, Yousif asked an employee of
the restaurant to accompany him back to the Granada Liquor Store. Omar Serdah agreed to accompany Yousif. Yousif and Serdah went into the store, where
they found Mattia's body and the body of Granada Liquor Store employee Firas
Eiso lying next to each other on the floor.
Yousif and
Serdah both called 911, and police officers responded to the Granada Liquor
Store. The officers found the bodies of
Mattia and Eiso lying face down on the floor near the cash register, with their
arms crossed underneath their heads.
Each had suffered a gunshot wound to the head. The cash register drawers were open and had
been emptied. Eiso's pants pockets and
Mattia's jacket pockets had been pulled inside out.
The store
had a motion-activated video security system.
The recordings from the store's cameras showed a number of things that
occurred between 11:04 p.m. and 11:29 p.m.
First, car headlights can be seen turning on across the street. The car crossed the street and parked in
front of the store. Mattia and Eiso set
the alarm, locked the door, and started to leave. A man, later identified as Jean Rices, forced
Mattia and Eiso back into the store at gunpoint, and made them crawl in front
of the cash register counter. Rices, who
was wearing a hoodie, and another man who was wearing a ski mask (later
identified as Miller) can be seen going behind the counter where the cash
registers were located. Both men were
wearing gloves. Miller went through the
cash registers, removed money and other items, and put the money and items into
a duffle bag.
The cameras recorded Miller and
Rices standing close to one another.
They appeared to be talking to each other. The recordings then show Miller walking
toward the door and looking back at Rices for approximately five seconds. After looking back at Rices, Miller left the
store.
At 11:11 p.m., less than two
seconds after Miller walked out of the store, one of the cameras was apparently
activated by the motion of dust that was kicked up as a result of a bullet
ricocheting in the store.
Rices left the store approximately
12 seconds after Miller. The next event
that the recordings show is Yousif arriving at the store.
The case
remained unsolved until November 2006, when El Cajon Police Department
Detective James Hoefer received information that Miller had been involved in the
Granada Liquor Store robbery and murders.
Hoefer and two other detectives went to Miller's apartment in Alpine to
interview him. Miller lived in the
apartment with his mother and younger siblings.
The
detectives initially asked Miller what he knew about some bank robberies for
which Rices had been arrested. The
detectives then brought up the subject of the Granada Liquor Store robbery and
murders. Miller initially denied knowing
anything about the robbery and murders.
However, after Hoefer told Miller that he had received information that
Miller had been involved, Miller changed his story. Miller first said that he had been the
getaway driver, but later acknowledged that he was the person who had held the
bag of money.
Miller told
the detectives that he and Rices had been talking about committing robberies
for several months, and that he knew that the Granada Liquor Store would have a
lot of cash. Miller said that on the
night of the robbery, he, Rices and another man, Nut-Nut, had driven to a location
across the street from the liquor store, where they stopped. Rices laid out the plan for the robbery. Miller then drove the car over to the liquor
store. Mattia and Eiso came out of the
store, and Rices forced them back into the store at gunpoint. Nut-Nut was supposed to follow Rices, but he
"froze up", so Miller got out of the car with a bag and followed
Rices into the store. When Miller
entered the store, he saw that Rices had made Mattia and Eiso lie down on the
floor, and both were begging for their lives.
Miller said
that he retrieved the cash after Mattia told them where it was, and that he
also grabbed two packs of cigarettes. As
Miller left with the money, he walked by Rices, who told him, "Get in the
car. Start the car now. I gotta handle some business." Miller left the store.
At trial,
Miller told a different story. Miller
said that Nut-Nut had not been involved.
According to Miller, he had been in the car riding around with Rices and
Rices's girlfriend when Rices suddenly decided to rob a liquor store. Miller testified that the incriminating
things that he had told police had been lies, and said that he had told the
police these lies because he was "stressed" at the time.
B. Procedural background
Miller was charged in an information with two counts of
murder (Pen. Code, § 187, subd. (a)).
circumstances, i.e., committing murder while aiding and abetting in robbery and
burglary (§ 190.2, subd. (a)(17)) and multiple murders (§ 190.2, subd. (a)(3)),
as well as the enhancement that another principal was armed with a firearm in
committing the offenses (§ 12022, subd. (a)(1)).
A jury
convicted Miller of both counts of first degree murder, and found as to each
count that another principal was armed with a firearm.
verdict as to the special circumstance allegation that the murders were
committed in the course of a burglary or robbery.
The trial
court sentenced Miller to an indeterminate term of 50 years to life, consisting
of two consecutive terms of 25 years to life, plus a consecutive two years for
the firearm enhancements.
Miller
filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court did not
err in admitting statements that Miller made to police
Miller contends that the trial
court erred in admitting statements he made to the detectives when they
interviewed him at his apartment and later at the police station. Miller maintains that the detectives violated
his Fifth Amendment rights by using a "question-first" technique that
rendered meaningless any subsequent Miranda
warnings. Miller also contends that the
court should not have admitted his statements because the statements were not
made voluntarily.
1. Additional
background
Prior to
trial, Miller moved to suppress the statements he made to the detectives during
the interview at his apartment and at the police station. Miller argued that the statements had been
taken in violation of Miranda, and
that he had been coerced into making the statements. The court held a hearing on the motion.
At the
hearing, Miller called Detective Hoefer to testify. Hoefer testified that he had been the lead
detective on the Granada Liquor Store murder investigation. Almost nine months after the crime, he
received information from a confidential informant that Rices had admitted to
committing the murders, and that Miller had been involved in the robbery. On the same day that Hoefer received this
information, Hoefer and two investigators from other law enforcement agencies
went to Miller's apartment. They were
dressed in plain clothes and drove an unmarked vehicle. Miller's mother answered the door, and the
investigators asked to speak with Miller.
When Miller came to the door, the investigators asked him if they could
speak with him. Miller agreed to talk
with them.
There were
other people in the apartment. When
Miller headed toward the dining room table, Hoefer asked whether they could
talk in a more private area. Miller then
led the detectives to his mother's bedroom.
The door to the bedroom was left open while the detectives talked with
Miller. The detectives did not tell
Miller that he could not leave the room.
The
detectives questioned Miller regarding what he knew about Rices having committed
bank robberies. After discussing that
topic, Hoefer asked Miller if he knew of any involvement that Rices might have
had in the Granada Liquor Store robbery and murders. The detectives told Miller that they thought
he might have some information about those events, but did not tell him at that
time that they suspected he had been involved.
Hoefer
handed Miller photographs of the murder victims at the liquor store. According to Hoefer, after seeing the
photographs, Miller began to "wring his hands, look to the left, and burp
quietly." Miller then handed the
photographs to another detective. Hoefer
asked Miller if he had killed the two victims, and also asked whether Miller
had played any part in the robberies.
Hoefer told Miller that the victims' families were frustrated by not
knowing what had happened. Hoefer then
told Miller that he knew that Miller had been involved. After Hoefer made this statement, Miller had
difficulty speaking and his voice became slightly hoarse. Miller said that he wished he could speak to
his godfather. Miller then admitted that
he had been involved in the robbery and murders.
Hoefer
testified that he never told Miller that Miller could not leave the room. The detectives told Miller repeatedly that he
was not under arrest. They never
displayed handcuffs or guns. After
Miller admitted to having been involved in the murders, he left the room
unaccompanied three times, and was out of the room for several minutes each
time. During the interview, Miller's
mother would occasionally look in to see if anyone needed anything.
At the end
of the interview at Miller's apartment, Detective Hoefer asked Miller if he
would be willing to come to the police station for a videotaped interview. Miller agreed to do so. The detectives left Miller in the apartment
so that he could change his clothes.
When Miller came out of the apartment 10 to 15 minutes later, Hoefer
told Miller that the trip to the station was voluntary, and that if Miller changed
his mind about the interview, they would bring him home. Hoefer reminded Miller several times, both on
the ride to the police station and while at the police station, that the
detectives would take him home whenever he wanted to leave. The detectives did not handcuff Miller or pat
him down.
During the
ride to the police station, Miller asked what his potential sentence might
be. Hoefer replied that it would not be
up to him, but that the case had the potential to be a death penalty case. Miller said that if it came to that, he would
accept it.
At the
police station, the detectives told Miller again that he was not under arrest,
that he was free to leave, and that they would take him home if he wanted them
to; he only had to ask.
After the
interview at the police station, Hoefer offered to pay for Miller to stay in a
hotel. Miller accepted the offer without
hesitation. Miller spent the night in a
hotel with a different El Cajon police detective. The plan was that Miller would show police
where they might be able to find some evidence related to the crimes the
following morning. The next day, Hoefer
told Miller that he did not have to take the police to try to find the evidence
and that he was free to leave at any time.
Miller gave Hoefer a hug and shook his hand. Hoefer left and did not accompany Miller and
the other officers that day.
Miller
drove around with the police officers to locations where he thought the murder
weapon might be. Later, Miller went to
the county jail, at the request of police, and engaged in a pretext interview
with Rices. Hoefer had explained to
Miller that he did not have to do any of these things, but said that he would
appreciate it if Miller would do them. Miller agreed to do the pretext
interview with Rices, but declined to conduct another pretext interview with a
different inmate.
Shortly
after 5:00 p.m. that evening, Hoefer asked Miller if he wanted to go home. Miller said that he did. Hoefer asked Miller to provide him with
telephone numbers at which Hoefer would be able to reach Miller. Miller responded that he was not planning to
run and instead, was planning to do some extra work to earn more money for the
holidays. Hoefer then took Miller home.
Two days
later, Hoefer arrested Miller at Miller's apartment. At the time of his arrest, Miller thanked the
officers for how they had treated him.
Miller did
not offer any other evidence as to what occurred during his interviews with
detectives.
Based on
Detective Hoefer's account of the circumstances under which Miller made the
statements at issue, the trial court concluded that Miller had not been in
custody during either the interview at his house or the interview at the police
station. The court found that the
detectives' representations to Miller that he was free to leave had been
genuine, and that the detectives had not conditioned Miller's ability to leave
on his providing them with information.
2. Analysis
a. There
was no Miranda violation because
Miller was not in custody at the time he confessed to his role in the robbery
and murders
Miller argues that the detectives
should have given him Miranda
warnings as soon as the interview at his apartment turned to the subject of the
Granada Liquor Store murders. He
suggests that a reasonable person in his position would have believed that he
was in police custody at that point in time.
"Miranda requires courts in criminal cases to exclude, at least from
the prosecution's case-in-chief, self-incriminatory statements made by the
accused during custodial
interrogation unless the accused has knowingly and voluntarily waived the Fifth
Amendment privilege against self-incrimination, which in this context includes
the rights to silence and the assistance of counsel." (People
v. Lessie (2010) 47 Cal.4th 1152, 1156, italics added.) " 'Thus two requirements must be met
before Miranda is applicable; the
suspect must be in "custody," and the questioning must meet the legal
definition of "interrogation." '
[Citation.] The prosecution has the
burden of proving that a custodial interrogation did not take place. [Citation.]
[¶] A person is in custody for
purposes of Miranda if he is
'deprived of his freedom in any significant way or is led to believe, as a
reasonable person, that he is so deprived.'
[Citation.] 'Interrogation
consists of express questioning or of words or actions on the part of police
officers that they should have known were reasonably likely to elicit an
incriminating response.'
[Citations.]" (
Cal.App.4th 947, 953.)
In People v. Ochoa (1998) 19 Cal.4th 353 (Ochoa), the California Supreme Court outlined the standard of
review that applies to a defendant's claim that he was in custody for purposes
of determining whether Miranda
advisements were required:
"The question whether defendant was in custody for
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 court's 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
court's 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.]" (
We conclude that the facts, as
found by the trial court based on Detective Hoefer's testimony, demonstrate
that Miller was not in custody for purposes of Miranda during either the initial interview at his apartment or the
videotaped interview at the police station.
Miller agreed to talk with the detectives in his home. He was expressly and repeatedly told that he
was not under arrest. During the
interview, the door to the bedroom was left open, and Miller's mother came in
periodically to see if anyone needed anything.
The police made no show of force.
Miller left the room at least three times during the interview, and the
detectives did not stop him or suggest he was not free to leave. Given these circumstances, a reasonable
person would have believed that he was at liberty to stop the interview and
would not have considered himself to be under the restraint associated with a
formal arrest. (See Ochoa, supra, 19 Cal.4th
at pp. 401-402.)
With respect to the interview at
the police station, when the detectives asked Miller if he would come to the
police station for a videotaped interview, they specifically told Miller that
he did not have to do so, and again informed him that he was not under
arrest. Once at the police station, the
detectives again assured Miller that he was not under arrest and that they
would take him home any time he wanted to leave. The following day, when Miller accompanied
police officers to attempt to locate evidence pertaining to the liquor store
robbery and murders and participated in the pretext interview with Rices, the
police again reminded Miller that he was not under arrest and that he was free
to leave. A reasonable person would not
have considered himself to be under arrest or under the restraint associated
with arrest under these circumstances.
We therefore conclude that the trial court correctly determined that the
interviews of Miller at his apartment and at the police station, prior to his
formal arrest two days later, were not custodial interrogations, and that the
trial court thus did not err in declining to suppress the statements that
Miller made to police during these interviews.
b. Miller's
statements were voluntary and were not the product of coercion
Miller's
contention that his confession was coerced either because the detectives were
too nice to him, or because they offered an implied promise of leniency if he
agreed to talk with them, fails.
" 'It
long has been held that the due process clause of the Fourteenth Amendment to
the United States Constitution makes inadmissible any involuntary statement
obtained by a law enforcement officer from a criminal suspect by coercion. [Citations.]
A statement is involuntary [citation] when, among other circumstances,
it "was ' "extracted by any sort of threats . . . , [or] obtained by
any direct or implied promises, however slight . . . ." ' " [Citations.]
Voluntariness does not turn on any one fact, no matter how apparently
significant, but rather on the "totality of [the]
circumstances." [Citations.]' [Citation.]" (People
v. Leonard (2007) 40 Cal.4th 1370, 1402 (Leonard).)
" '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 . . . ." ' [Citations.]" (People
v. Holloway (2004) 33 Cal.4th 96, 115.)
"The test for determining
whether a confession is voluntary is whether the questioned suspect's 'will was
overborne at the time he confessed.'
[Citation]" (
669.) " 'A finding of coercive
police activity is a prerequisite to a finding that a confession was
involuntary under the federal and state Constitutions. [Citation.]' " (Ibid.)
Miller
suggests that his inculpatory statements were coerced because the detectives
"cozied" up to him, such that he was "lulled into believing
false assurances that the officers were interested only in information about
Rices and the perpetrator of the shooting" at the Granada Liquor
Store. In addition, Miller argues that
the detectives' statement to the effect "that by helping them appellant
was also helping himself," was improperly coercive. Finally, Miller contends that his statements
were involuntary because the detectives impliedly promised Miller leniency in
exchange for a confession.
As an example of coercion on the
part of the detectives, Miller contends that when Hoefer told him that the
penalty for the charges he was facing included the possibility of capital
punishment, Hoefer was "clearly implying appellant was being given the
opportunity to avoid such charges."
However, the record belies Miller's contention. Hoefer did not raise the possibility of
Miller receiving the death penalty on his own.
Rather, Hoefer mentioned capital punishment only in responding to
Miller's question about what his potential sentence might be. In addition, Hoefer did not imply to Miller
that Hoefer would have control over the punishment that Miller might face. On the contrary, Hoefer specifically told
Miller that the penalty would not be up to Hoefer, and proceeded to tell Miller
the truth, which was that the case had the potential to be a death penalty
case. Beyond this, by the time Hoefer
told Miller that he might be facing capital charges, Miller had already implicated himself in the crime. Thus, Detective Hoefer's statement about
capital punishment could not have caused Miller to confess his role in the
robbery scheme.
It was not
improper for the detectives to suggest to Miller that he would be better off if
he helped them by telling them the truth about what had occurred. "Absent improper threats or promises,
law enforcement officers are permitted to urge that it would be better to tell
the truth." (People v. Williams (2010) 49 Cal.4th 405, 444, citing, e.g.,
145, 171; People v. Hill (1967) 66
Cal.2d 536, 549 [" 'advice or exhortation by a police officer to an
accused to "tell the truth" or that "it would be better to tell
the truth" unaccompanied by either a threat or a promise, does not render
a subsequent confession involuntary' "], quoting People v. Nelson (1964) 224 Cal.App.2d 238, 250.) There is no evidence that the detectives
threatened Miller or promised him leniency in exchange for telling them the
truth. Further, it was not improper for
detectives to focus their questioning on what Miller knew about Rices's role in
the robbery and murders. There is no
evidence that the detectives suggested to Miller that he would not be
prosecuted for his role in the crimes.
The fact that Miller asked Hoefer what his potential punishment might be
while they were riding in the car to the police station indicates that Miller
understood that he would be held responsible for his role in the crimes.
There is no evidence that the
detectives threatened Miller, made false promises to him, either expressly or
impliedly, or engaged in abusive questioning.
The fact that the detectives made Miller feel comfortable, and that he,
in turn, cooperated with them, does not constitute evidence that Miller's
inculpatory statements were the result of coercive police tactics. There is simply nothing in this record that
demonstrates that Miller was coerced into confessing his role in the crime.
B.
instruction on the defense of duress, any error that the court might have made
in altering the CALCRIM instruction on duress was harmless
Miller contends that the trial court erred in instructing
the jury on the defense of duress by telling the jury that Miller had the
burden of proving that he acted under duress in participating in the Granada
Liquor Store robbery.
1. Additional
background
At Miller's
request, the trial court instructed the jury on the defense of duress. However, the court modified the standard
CALCRIM No. 3402 instruction to shift the burden of "proving th[e]
defense" to Miller.
The
standard CALCRIM No. 3402 instruction provides:
"The defendant is not guilty of _________________
<insert crime[s]> if (he/she)
acted under duress. The defendant acted
under duress if, because of threat or menace, (he/she) believed that (his/her/
[or] someone else's) life would be in immediate danger if (he/she) refused a
demand or request to commit the crime[s].
The demand or request may have been express or implied.
"The defendant's belief that (his/her/ [or] someone
else's) life was in immediate danger must have been reasonable. When deciding whether the defendant's belief
was reasonable, consider all the circumstances as they were known to and
appeared to the defendant and consider what a reasonable person in the same
position as the defendant would have believed.
"A threat of future harm is not sufficient; the
danger to life must have been immediate.
"[The People must prove beyond a reasonable doubt
that the defendant did not act under duress. If the People have not met this
burden, you must find the defendant not guilty of _________________ <
After
defense counsel requested that the court instruct the jury on the defense of
duress, the trial court heard argument from the attorneys regarding whether it
would be appropriate to give the instruction.
The prosecutor argued that if the court were to give the instruction,
the burden to prove the defense was on the defendant and the jury should be so
instructed. The court agreed with the
prosecutor and modified the paragraph of CALCRIM No. 3402 that states that the
People must prove that the defendant did not act under duress to read as
follows:
"The defendant has the burden of proving this
defense. To meet this burden, the
defendant must raise a reasonable doubt that he acted in the exercise of his
free will."
2. Analysis
Miller
contends that the trial court erred in modifying the duress instruction in this
manner. He argues that CALCRIM No. 3402
correctly places the burden on the People to prove that the defendant did not
act under duress. Specifically, Miller
maintains that because a trial court properly instructs on duress only if the
defendant has met his burden to produce evidence that raises a reasonable doubt
that he acted in the exercise of his free will, the People bear the burden to
prove, beyond a reasonable doubt, that the defendant did not act under duress.
We need not
determine whether the trial court's modification of the CALCRIM No. 3402 duress
instruction was erroneous because, even assuming that it was, on the record in
this case, any such error was harmless.
Our review of the record convinces us that there was insufficient
evidence of duress to justify any instruction on that defense. Since Miller was not entitled to have the
jury instructed on the defense of duress, the trial court's giving an erroneous
modified instruction concerning that defense could not have prejudiced
him. (See People v. Johnson (1993) 6 Cal.4th 1, 43 [concluding that, because
evidence of provocation was insufficient, "trial court's instruction on
manslaughter was inappropriate and unnecessary, though obviously not
prejudicial to defendant"].)
A trial court has a sua sponte duty
to instruct regarding a defense if there is substantial evidence to support the
defense and it is not inconsistent with the defendant's theory of the case. (People
v. Montoya (1994) 7 Cal.4th 1027, 1047.)
Substantial evidence is evidence from which a jury reasonably could
conclude that the particular facts underlying the instruction exist. (People
v. Flannel (1979) 25 Cal.3d 668, 685-686.)
In deciding whether there is substantial evidence to support a defense,
"the trial court does not determine the credibility of the defense
evidence, but only whether 'there was evidence which, if believed by the jury,
was sufficient to raise a reasonable doubt . . . .'
" (People v. Salas (2006) 37 Cal.4th 967, 982.)
Duress is available as a defense to
defendants who commit a crime "under threats or menaces sufficient to show
that they had reasonable cause to and did believe their lives would be
endangered if they refused." (§ 26,
subd. Six; People v. Otis (1959) 174
Cal.App.2d 119, 124–125.)
name="_ftnref4" title="">[4] The defense of duress requires evidence that
the defendant acted upon an actual and
reasonable belief that his life was presently
and immediately endangered if he refused to participate. (People
v. Quinlan (1970) 8 Cal.App.3d 1063, 1068; People v. Manson (1976) 61 Cal.App.3d 102, 206.) The immediacy of the threat or menace is
central to the duress defense. Threats
of future harm do not diminish criminal culpability. (People
v. Bacigalupo (1991) 1 Cal.4th 103, 125, judgment vacated on other grounds
by Bacigalupo v. California (1992)
506 U.S. 802.) In order to establish the
duress defense, the threat or menace "[must] be accompanied by a direct or
implied demand that the defendant commit the criminal act charged." (People
v. Steele (1988) 206 Cal.App.3d 703, 706.)
" 'The common characteristic of all the decisions upholding [a
duress defense] lies in the immediacy and imminency of the threatened
action: each represents the situation of
a present and active aggressor threatening immediate danger; none depict a
phantasmagoria of future harm.'
[Citations.]" (
The
evidence on which Miller relies to support his contention that there was
substantial evidence to support the defense of duress in this case is the
evidence that the trial court summarized when the court was considering whether
to instruct the jury on duress:
"Defendant's testimony at trial was that after Mr.
Rices got out of prison, he told Mr. Miller about all the bad things he did,
including stabbing people. Mr. Rices had
earned the nickname, according to Mr. Miller, of 'Face' because he shot another
gang member in the face.
"Mr. Miller testified that he knew that Mr. Rices
murdered people inside and outside of prison.
He testified that he knew Mr. Rices always had a gun. On March 1st, Mr. Miller testified he wasn't
planning to do a robbery. He was just
going to hang out, took his Playstation and clothes to Mr. Rices' place. There was a decision to go out for the
purpose of recreation, movie or bowling.
The evidence shows that he didn't take his key with him, the key to his
house in Alpine.
"He testified that evening, Rices seemed very
agitated. In fact, pissed off. He was yelling instructions at Nichele
Hopson. Mr. Miller said he first saw the
gun when he got out of the car at the Granada parking lot. Rices gave him the duffle bag and mask and
told him to put on the mask and follow him.
At that time, Mr. Rices had a distant look in his face, something Miller
had never seen before.
"I'm not going to go into any detail [about] what
happened in the store because I basically agree with the People that that's not
really the pertinent transaction. But I
have considered the fact that, inside the store, Rices is yelling, telling him
to hurry up, giving him directions and orders to get the money. Mr. Miller says, 'I did what Rices told me to
do.' In Nichele Hopson's trial
testimony—again, I'm not assessing credibility—she contended that the robbery
wasn't planned. She never heard Rices
and Miller plan a robbery. She only knew
what was happening when it was happening.
She was out that evening for recreation.
"Crucial to my decision is a statement attributed
to Miller in the El Cajon police station interview. . . . Mr. Miller says the following after being
question by Investigator Hoefer, 'Do you remember what time you go to her
house,' referring to Raquel Good. 'No, I
can't say I do,' so on and so forth. And
then, 'I was kind of—once it was going down—well, before. Once I realized and kind of got—I was like,
okay, he's about to do something stupid.
I was like, fuck. Damn. What do I do
You know, do I just—you know, do I just get out and try to walk out of
the car, leave him here, leave him stuck on top of that You know, I didn't want to do that and fuck
around and have this little—shooting at me, you know, pissed. If he's going to kill anyone over
anything. You know, he'll definitely
kill me for turning my back on him.
That's what he would say, "You turned your back on me. You're walking out." He would try.
I'm pretty positive that he would have let off a few rounds at
me.' "
Our review
of the record establishes that the trial court's summary accurately sets out
all of the evidence that would arguably support a duress defense.
that it does not constitute substantial evidence to support the elements of the
defense of duress.
Duress
requires that the defendant show that he acted under immediate threat of harm and reasonably believed his life was in
danger, such that the defendant
did not have time to form the required criminal intent. (§ 26, subd. Six; People v. Heath (1989) 207 Cal.App.3d 892, 899-901.)
Although Miller's statement to
police suggested that Miller may have believed that Rices would have shot him
if Miller refused to participate in the robbery, there is no evidence that
Rices made either an express or an implied threat that he would kill Miller if
Miller did not commit the robbery with him.
There was no evidence that Rices pointed the gun at Miller prior to
Miller's decision to follow Rices into the store and assist in the robbery, or
that Rices said or did anything that suggested that he would harm Miller if
Miller refused to participate. Miller
seems to have reached the conclusion that Rices might have shot him if he
refused to assist Rices based on other information that he knew about Rices's
history of violence, and his belief that Rices was a bad character. Miller's statement that he was "
have let off a few rounds at me" (italics added) demonstrates that Miller
did not firmly believe that Rices had actually threatened him. Rather, it appears that Miller was simply
speculating about what he thought Rices might do. This generalized fear of an accomplice is not
the type of fear that would negate a defendant's criminal intent for purposes
of a duress defense. In order to be
entitled to an instruction on duress, there must be evidence that the
defendant's fear of harm was based on express or implied threats or menace,
such that the defendant had an actual and reasonable belief that his life was
in immediate danger.
Even if there was evidence that
Miller actually believed that Rices would do him immediate harm if he refused
to participate in the robbery, this would not be sufficient to support a duress
defense because there was no evidence of a threat on Rices's part, and no
evidence that such a fear on Miller's part would have been reasonable under the circumstances.
The evidence demonstrated that Rices and Miller had been friends for
many years, and there was no evidence that Rices had ever been violent toward
Miller or any of Rices's other friends.
In addition, Miller admitted that he perceived Rices to have been
"bragging" when Rices told Miller about having shot a rival gang
member in the face. Miller's conclusion
that Rices might kill him if he did not assist Rices thus cannot be considered
to have been objectively reasonable.
No
reasonable jury could have concluded on the basis of the evidence presented at
trial that Miller reasonably and actually believed that he faced imminent death
if he refused to participate in the robbery.
Rather, any belief that Miller may have had that he was acting under an
imminent threat to his life would clearly have been based on mere speculation
on his part. Miller thus was not
entitled to an instruction on duress.
Since he was not entitled to a duress instruction at all, Miller cannot
demonstrate that he was prejudiced by the court's giving a duress instruction
that may have incorrectly shifted the burden to prove the defense onto him.
C. The
record reveals that the trial court understood that it had discretion to sentence
Miller to concurrent sentences, but chose to impose consecutive sentences.
Miller
contends that the trial court "was not aware of the extent of its
discretion" to impose concurrent, rather than consecutive, prison
terms. He asserts that the trial court
"stated it could find no legal or factual basis for imposition of
concurrent terms," despite the fact that pursuant to section 669, the
sentence would automatically be concurrent unless the court found reasons to
impose consecutive sentences. On this
basis, Miller concludes that the court "misunderstood its authority to
impose concurrent terms." In the
alternative, Miller contends that to the extent the trial court may have
understood that it had discretion to impose either concurrent or consecutive
terms, but nevertheless decided to exercise that discretion to sentence him
consecutively, the trial court abused its discretion by choosing to sentence
him to consecutive terms and imposing a term of 50 years to life.
When a
defendant is convicted of multiple crimes, the trial court has discretion to
impose sentence on the subordinate counts to run consecutively or
concurrently. (§ 669; see also
court has discretion to determine whether several sentences are to run
concurrently or consecutively.
[Citations.] In the absence of a
clear showing of abuse, the trial court's discretion in this respect is not to
be disturbed on appeal. [Citation.] Discretion is abused when the court exceeds
the bounds of reason, all of the circumstances being considered." (Id. at
p. 20.)
We reject
Miller's contention that the trial court was under the misimpression that it
had no discretion to impose concurrent sentences in this case. There is nothing in this record that suggests
that the trial court was under such a misimpression. Rather, after hearing argument from both
parties, the trial court assessed the case and indicated that in determining
whether to sentence Miller to concurrent or consecutive terms, the court was
trying to base the sentence on Miller's personal culpability in the robbery and
murder. The trial court explained:
"I indicated that I struggled, Mr. Miller, in terms
of how to balance all these things. . . . [¶] The
balance is really a very, in my mind, fragile balance. When I read the probation officer's report
and the rationale for recommending the consecutive term, I didn't reject
it. I understood it. And I was bothered by the idea that this
court would sentence Mr. Miller for these crimes motivated by, basically,
retribution, and I wanted to assure [defense counsel], Mr. Miller, and family
members who are here that the court is not motivated by retribution.
"I sought some guidance in cases that are similar,
and our jurisprudence throughout the United States rejects retribution as the
justification for penalty . . . . What you do, in American criminal law, is
consider the defendant's intentions. You
consider moral guilt. You consider the
degree of criminal culpability.
Punishment must be tailored to a defendant's personal responsibility and
moral guilt. And my decision is being
guided by that. . . .
"When I balance all these factors, Mr. Miller, I
told [defense counsel], I reject the conclusion that you were a dupe or a pawn
of Mr. Rices. I reject that. I don't believe a faithful, fair evaluation
of the evidence can come to the conclusion that your story was credible, that
all of a sudden, that evening, you are confronted with the need to make a
decision in a heartbeat, 'Get out of the car, put on this mask, come inside
with me, hold this bag.' That do[esn]'t
make [any] sense at all.
"So in measuring your criminal culpability, I do
believe that, in a fashion, the genesis for this, the comments that you made to
Mr. Rices, you testified you were aware that this guy is a bad guy. You were aware that he was armed. You were aware that that gun could be used. All of these factors play into my decision as
to the degree of your criminal culpability and your moral culpability.
"[¶] . . . [¶]
"You did not pull the trigger. I don't believe you entered the store with
the intent to kill. The People did not
argue to the jury that you entered the store with the intent to kill. For me, the bottom line is you were
responsible for selecting Granada. You
were a major participant in that crime, and but for your role, but for your
promotion of the crime, these two young people would be alive today. So that's my assessment of your moral
culpability and your criminal culpability, and that's why I made the tentative
conclusion [to sentence consecutively].
"And I have to say, I'm going to stick to that
tentative conclusion, and I can't find any factual, legal, or moral basis for
merging the punishment for the murder. You've
been convicted of first degree murder, two first degree murders. I can't find any rationale that would justify
my merger of those two punishments. The
punishment should be separate."
It is clear from the trial court's
comments that the court was aware that it had the discretion to sentence Miller
to either concurrent or consecutive terms, and that the court made a deliberate
decision to exercise its discretion to impose consecutive terms. When the court stated, "I can't find any
factual, legal, or moral basis for merging the punishment for the murder,"
the court was not indicating that it believed it had no authority to impose concurrent sentences on Miller. Rather, the court was expressing its opinion
that given the circumstances of this case, including the fact that there were
two murder victims and that Miller played a significant role in planning the
robbery that resulted in the murders, consecutive terms were the appropriate
sentencing choice.
Miller also
contends that to the extent the trial court understood that it had discretion
to sentence him to either concurrent or consecutive terms and chose to sentence
him to consecutive terms, the trial court abused its discretion by imposing a
term of 50 years to life. Miller
suggests that this sentence is "unfair." We disagree.
The trial court acted reasonably in deciding to impose consecutive terms
of 25 years to life―one term for each victim in the Granada Liquor Store
robbery and murder. Although Miller may
not have been the person who pulled the trigger, as the trial court noted, he
was the one who suggested the Granada Liquor Store as the target for the
robbery, and he willingly participated in the robbery with Rices, whom he knew
to be armed with a gun and prone to commit violent crimes. The sentence imposed does not exceed the
bounds of reason, and we see no basis for second-guessing the trial court's
discretionary sentencing decision.
IV.
DISPOSITION
The
judgment is affirmed.
AARON, J.
WE CONCUR:
McDONALD, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] Miranda
v. Arizona (1966) 384 U.S. 436 (Miranda).
name="_ftn2" title="">[2] All statutory references are to the
Penal Code unless otherwise specified.
