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People v. Dykes

June 15, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
EARNEST EDWARD DYKES, JR., DEFENDANT AND APPELLANT.



Alameda County Super. Ct. No. 118376. Judge: Jeffrey W. Horner.

The opinion of the court was delivered by: George, C. J.

Defendant Earnest Edward Dykes appeals from a judgment of the Alameda County Superior Court imposing a sentence of death following his conviction of the first degree murder of Lance Clark (Pen. Code, § 187, subd. (a)),*fn1 one count of attempted murder (§§ 664, 189), and one count of robbery (§ 211), both involving Bernice Clark. In connection with each count, the jury found true an allegation that defendant personally used a firearm. (§ 12022.5.) With respect to the charge of attempted murder, the jury found not true an allegation that the attempted murder had been willful, deliberate, and premeditated. (§§ 189, 664, subd. (a).) In connection with the attempted murder and robbery counts, the jury found true the allegations that the victim suffered great bodily injury and that she was a victim age 70 years or older. (§ 12022.7, subd. (c).) The jury found true a robbery-murder special-circumstance allegation. (§ 190.2, subd. (a)(17)(A).) At the penalty phase of the trial the jury determined that the punishment should be death. The trial court imposed a sentence of death and imposed sentence on the non-capital offenses. Defendant's appeal is automatic. (§ 1239, subd. (b).)

We affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase Evidence

Bernice Clark owned an apartment building in Oakland. During a period of unemployment, defendant, who was 20 years of age, resided for several months with his mother in one of the apartments in Bernice's building. The apartment defendant shared with his mother overlooked the rear parking lot of the building.

Tenants, including defendant, were aware that Bernice carried ample cash with her on her frequent visits to the apartment building. On her visits, Bernice cashed checks for tenants and lent them money; she had cashed a check for defendant. Indeed, another tenant, LaCondra Douglas, had warned Bernice not to carry cash with her. Douglas testified that defendant had expressed an intent to rob Bernice prior to the commission of the charged crimes. Tenants testified that they had observed Lance Clark, the murder victim, who was Bernice's young grandson, accompanying Bernice on her rounds on multiple occasions.

In November 1992, defendant acquired a .45-caliber revolver. Bianca Rodriguez, then his girlfriend, testified that at his request she gave him the money with which to purchase the weapon. Douglas testified that about two months prior to the commission of the charged crimes, she sold defendant approximately 20 bullets for his handgun.

On the afternoon of July 26, 1993, Bernice, who was then 70 years of age, and her grandson Lance, then nine years of age, drove to the rear parking lot of the apartment building, where she consulted with her handyman. Bernice testified that she was approached by one of her tenants, Edward Tyson, who asked to borrow $20. She agreed, and while he was signing a receipt, a man approached wearing a stocking mask. The man placed a dark object against her head. She recognized the man as defendant and told him that he looked like one of her tenants. She heard a shot, then defendant said something about money or a holdup, and she recalled a struggle over her wallet. She heard only one shot, but her recollection of the crime was confused, and she was unable to hear well after the weapon discharged.

Tyson testified that on the afternoon of July 26, 1993, Bernice agreed to lend him $20. He heard her drive to the rear parking lot and approached her as she sat in the driver's seat with the door open. Tyson observed Lance seated in the passenger seat of the vehicle. As Tyson signed a receipt, a man approached wearing a light-colored hooded sweatshirt. He had a woman's nylon stocking over his head. The man demanded money of Tyson, but Tyson backed away and denied he had any. Tyson witnessed the man point his weapon at Bernice and demand money. Tyson heard Bernice inform the man that he resembled one of her tenants named Earnest. Tyson fled, and as he passed a gap in the fence he heard a firearm "dry fire." He subsequently heard two shots in quick succession, the first followed by a sound of breaking glass. After an interval he heard a third shot. He heard the robber continue to demand money after the first shot.

Alphonso Odom, who had been staying for several months with a resident of the apartment building located next to the one owned by Bernice, testified that he was acquainted with defendant and with Bernice. Odom observed defendant in front of the apartment building a few minutes prior to the shooting. Defendant was wearing a grey hooded sweatshirt and green or blue acid-washed jeans. Odom observed Bernice drive with her grandson to the rear of the apartment building. Shortly thereafter, Odom heard two shots and witnessed the second shot being fired as he stood on his apartment balcony. He observed defendant standing by Bernice's vehicle holding a firearm and wearing a gray sweatshirt and green or blue acid-washed jeans. He heard the sound of breaking glass after the second shot, and observed defendant flee over the back fence.

Odom ran from his apartment to the scene of the shooting, joining Tyson, who had returned after initially fleeing. They observed Lance slumped over in the automobile. Bernice's neck was bleeding. Lance had been shot and soon stopped breathing. Emergency medical personnel were unable to revive him.

Tyson remained at the scene, while Odom returned to his apartment. Tyson gave a statement to the police, picked defendant's photograph from a photo lineup, and reported that the robber's voice sounded like defendant's. Odom, on the other hand, did not contact the police concerning his knowledge of the crime until after he was arrested on unrelated charges a few days subsequent to the commission of the charged offenses. He hoped for leniency in return for information he was able to provide. His testimony was impeached with prior felony convictions.

Defendant changed his attire and returned to the scene of the shooting. There he spoke with a police officer, stating that he had observed Tyson speaking with Bernice as she sat in her vehicle and that as he crossed the parking lot he heard shots. An unidentified, armed Black male wearing jeans and a white hooded sweatshirt ran past him and fled over the back fence. The officer testified that defendant appeared composed and was not intoxicated. Odom overheard some of this discussion, reporting that defendant told the officer, "that's messed up. The dude ran right by me."

In the afternoon or evening of July 26, 1993, Odom lent his bicycle to defendant. When defendant returned with some beer, defendant said to Odom, "that was f'd up, you know, what happened." Odom agreed and said he knew defendant was responsible for the shooting. Odom testified that defendant admitted he was the culprit and said, "man, I didn't mean it to go down like that."

Lance was killed by a single gunshot that passed through his body from his left chest, exiting on the lower right side of his back. There was a large entry wound, indicating the same bullet had passed through Bernice's neck before it struck Lance. The forensic pathologist, Dr. Paul Hermann, was unable to determine with certainty Lance's position when he was shot, but the pathologist believed Lance had been leaning to the left. Bernice received an injury to her neck but survived.

An examination of Bernice's automobile produced a bullet lodged inside the rear door on the passenger side. The impact of the bullet had shattered the door's window. Another bullet later was discovered in the front passenger floor area.

Dr. Lansing Lee, a firearms expert, testified that the bullets discovered in Bernice's vehicle were for a .45-caliber semiautomatic pistol. Although the ammunition was manufactured for a semiautomatic weapon, it also could be fired by a certain vintage Colt .45-caliber revolver. Such a weapon could be fired by single action if the shooter pulled back the hammer using two pounds of pressure. The weapon also could be fired without pulling back the hammer, but would require at least eight pounds of pressure to fire.

Sergeant Madarang of the Oakland Police Department was interviewing Tyson at the police station on the day of the crime when he received a telephone call from someone who would identify herself only as Connie, stating that she had sold defendant some bullets a few days preceding the crime, and that defendant had told her he planned to rob Bernice. In her own testimony, LaCondra Douglas would admit only that she placed an anonymous call to the police on that date, denying she had reported that defendant had purchased ammunition from her.

On August 7, 1993, defendant telephoned the Oakland Police Department, stating he "want[ed] to know if I shot somebody." He mentioned Bernice and provided his location, but denied responsibility for the crime. He was arrested and transported to the police department for interrogation. Arresting officers directed him not to speak while he was being transported, but he did so in a rambling manner, wondering how he could be identified and stating he would not commit anything like the charged crimes. Once defendant arrived at the police station, he was advised of his constitutional rights and interrogated by Officers Chenault and Madarang. During two hours of questioning, he denied responsibility for the crime. He reported that he had heard the shots because he had been walking through the parking lot on his way to purchase beer, and repeated his story of having witnessed an unidentified Black male flee from the scene. Ultimately the officers confronted him with evidence in their possession, including statements of eyewitnesses. Defendant became distressed and admitted involvement in the shooting. The unrecorded statement reflected the circumstance that he was aware prior to the shooting that Lance was in the vehicle.

Defendant subsequently made two tape-recorded statements. These were played for the jury. In the first statement, he explained that his family expected more of him than he was able to deliver and that he needed money to attend Laney Community College. He observed Bernice from the rear of his apartment and decided to rob her. He approached the vehicle and demanded money. She did not respond quickly, so he unsuccessfully attempted to fire a warning shot, and on the second attempt fired a shot to the rear of the vehicle, intending to destroy the rear window. Bernice said "don't be silly, child" and told him to take the money from her wallet but leave the cards. He had one hand on the wallet and the other hand, which was holding his firearm, on the headrest of the driver's seat. During the struggle over the wallet, the weapon fired accidentally. He claimed he had not observed Lance in the vehicle. He departed from the scene, changed his clothes, and returned to the apartment building to see what was happening. He subsequently threw the murder weapon, a .45-caliber Colt service revolver manufactured in 1917, into the Oakland Estuary. He stated he had drunk four cans of Olde English 800 malt liquor prior to committing the crime and one afterwards, but in his statement he informed the police he was not under the influence of alcohol when he committed the crime. Defendant sobbed during the recorded statements and reiterated "I didn't mean for it to go down like that. I'm no killer." He informed the officers he had spent two weeks following his commission of the crime drinking alcohol and using marijuana, feeling that his world was coming to an end. After his father notified him he had been mentioned in the newspaper as a suspect in the crime, he telephoned the police department.

Defendant testified on his own behalf at trial, giving substantially the same narrative he had given in his taped statements. He testified he had spent the afternoon preceding the crime applying for employment, and then returned home and performed household chores. When he observed Bernice drive into the rear parking lot of the building, he formed the intent to rob her. He retrieved his loaded firearm, and then took some stockings from his mother's room to wear as a mask. Donning jeans over his shorts and pulling the hood of his sweatshirt over his head to disguise himself from Bernice, he proceeded to the parking lot and confronted Bernice without ever observing Lance in her vehicle. He demanded her money. She said, "Don't be stupid, child." When she hesitated, he attempted to fire his weapon, but failed. A second attempt resulted in a warning shot aimed at the rear of the vehicle. Bernice tried to remove the cash from her wallet, but defendant grabbed the wallet.

In his trial testimony, defendant claimed for the first time that after he fired the warning shot, LaCondra Douglas's boyfriend drove into the parking lot and defendant became flustered and rushed, leading to the accidental firing of the weapon during his struggle with Bernice over her wallet. He denied intending to shoot Bernice or injure her. He seized the cash from the wallet and fled through a gap in the rear fence, wondering whether he really had shot Bernice. He changed his clothing, found a hiding place for his firearm, purchased some beer, and shortly thereafter returned to the parking lot to find out what had transpired. He lied to the police, trying to offer a description of the shooter that "somewhat" matched his own appearance, in case he had been observed during the shooting. He subsequently disposed of his weapon and spent the ensuing days in a state of intoxication, "trying to forget." He testified that he "was just doing stuff like [he] felt this was [his] last days on earth or something." After discussion with his father, he telephoned the police department to determine whether there was a warrant for his arrest. During the initial stage of his interrogation, he had denied responsibility for the crimes because he was frightened.

In the course of his testimony, defendant denied that his girlfriend had given him the money to buy the firearm and claimed that LaCondra Douglas had provided him with the ammunition free of charge, months prior to the crime. He testified he had test-fired the weapon and found its firing unpredictable. Defendant testified he had observed Lance accompanying Bernice on only one occasion. Defendant denied he had stated prior to committing the crime that he intended to rob Bernice, claiming he merely had been present when other tenants discussed robbing her. He acknowledged he was on probation for illegal possession of a firearm at the time he committed the crime and knew he should not be armed, but he claimed he needed a weapon to protect himself from the drug dealers who trafficked in his neighborhood.

B. Penalty Phase Evidence

Penalty phase evidence introduced by the prosecution included testimony from Bernice, Lance's sister Kristie, and Lance's elementary school teacher. They described how they had learned of Lance's death and described the impact of his death upon them. Bernice recounted the difficult course of her recovery from her physical injuries.

Oakland Police Officer Rand Monda described the circumstances of defendant's prior illegal possession of a loaded, concealed firearm.

Defendant's mother, father, sister, brother, and aunt testified on his behalf, describing their love for him and their hope that he would be granted a sentence of life imprisonment.

II. DISCUSSION

A. Asserted Errors Affecting the Guilt Phase of Trial

1. Denial of Motion to Exclude Statements

Defendant claims statements he made to the police and the deputy district attorney at the police station following his arrest were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), because the police failed to honor his asserted unequivocal request for counsel. He also contends he made these statements involuntarily. Finally, he challenges as involuntary the statements he made in the police vehicle as he was being transported to the police station after his arrest. Defendant argues that the trial court's failure to suppress the statements constituted a violation of rights secured by the Fifth Amendment to the United States Constitution and requires reversal of his conviction and sentence of death.

a. Factual Background

At the in limine hearing on defendant's motion to exclude his statements from evidence, the parties presented starkly contrasting accounts of defendant's interactions with arresting officers Grier and Fritz, and his interviews with Sergeants Madarang and Chenault.

On August 7, 1993, defendant telephoned a police dispatcher to inquire about his potential responsibility for the charged crimes. Officer Fritz arrived to arrest him. Fritz placed defendant in his patrol car, advised him that he was under arrest on suspicion of murder, and directed him not to ask questions concerning the case. Fritz did not advise defendant of his Miranda rights or pose any questions. Defendant began to talk, inquiring how he had been identified and remarking that he had not been in trouble recently. Fritz then asked Officer Keller to join him in the police vehicle. Fritz again informed defendant that he should not inquire about the charges or make any statements. Defendant nonetheless continued to speak, again questioning who had identified him and inquiring, "are you sure it's me?" After approximately 10 minutes, Officer Keller exited from the vehicle and Fritz drove defendant to the police station, arriving at approximately 10 a.m.

Defendant was placed in an interview room and was offered food, drink, and cigarettes. Sergeant Madarang, the primary investigating officer, was at that time in Sacramento. He returned to Oakland, entering the interrogation room with his partner, Sergeant Chenault, at approximately 12:20 p.m. He asked defendant some preliminary questions. Sergeant Madarang then read defendant the full Miranda advisements directly from a printed form, which defendant initialed. Defendant agreed to speak with the officers. Over the next hour and a half, he denied any responsibility for the shooting and claimed to have been merely a witness. At approximately 2:00 p.m., the officers took a break, offering defendant refreshment and a bathroom break. They returned for further interrogation at approximately 3:30 p.m. Defendant continued for approximately an hour to deny guilt. The detectives informed defendant that witnesses had identified him as the shooter, and challenged him with the evidence they had gathered against him. Defendant became emotional and stated he wished to explain what really happened. At approximately 4:45 p.m., defendant confessed to the crime, explaining he decided to rob the victim because he was under financial pressure from his family.

Sergeant Madarang subsequently initiated a tape-recorded interview in which defendant again confessed. Defendant acknowledged he had been advised of his rights when the officers first arrived to question him. Sergeant Madarang again read the Miranda advisements to defendant. After confirming that his initials were on the Miranda form, defendant stated he understood his rights and wished to speak with the detectives. At the end of the tape-recorded interview, defendant confirmed he was not promised anything or threatened in any way.

After the tape-recorded interview with Sergeant Madarang, defendant participated in another tape-recorded interview with Deputy District Attorney O'Connor, again confessing to the murder. At the beginning of this second interview, defendant confirmed that he already had spoken to the officers, that he had done so freely and voluntarily, and that the officers had read the Miranda advisements to him. After the deputy district attorney again read defendant the Miranda advisements, defendant initialed a second Miranda form and stated he understood his rights and, having those rights in mind, wanted to speak.

Defendant testified at the hearing that he had telephoned the police because he had read a newspaper article about the shooting. According to defendant, he made no requests for action on the part of the police department, but was informed an investigator would arrive to speak with him. He was placed in the patrol car. He inquired whether the officers had a warrant, but said nothing else. After his arrest he waited two to three hours in a small room at the police station before being interviewed by the officers.

Defendant claimed that when the officers began to interrogate him, they failed to advise him of his rights. He claimed he requested counsel, but was informed "there isn't one right now, but we'll get one for you," and the interrogation continued. According to defendant, the officers accused him of committing the murder, stated he could not make a statement later if he waited for a lawyer, threatened him with not seeing his girlfriend unless he told the truth, and informed him the matter was not sufficiently serious to warrant a judgment of death. Defendant testified the police informed him that a truthful confession would be beneficial to him and result in imprisonment only for a few years, and advised him that if he did not tell the truth then, his statement would constitute damaging evidence when he was brought before a court and at trial. According to defendant, he again requested counsel and to telephone his parents. Defendant testified he confessed only after the officers ignored his requests for counsel, asserted that they had witnesses against him, stated that he would have no opportunity to make a statement later, and patted him on the shoulder urging him to confess. On cross-examination, defendant acknowledged that he had been offered food and drink throughout the interviews, that he had been advised of his constitutional rights in past unrelated matters, that he knew he could speak with a lawyer, and that on prior occasions he had been arrested and had refused to talk to the police.

Sergeants Madarang and Chenault testified that defendant did not request to speak with an attorney during their interrogations. They denied defendant's other assertions. The officers denied threatening or making promises to defendant to persuade him to confess. They denied having discussed the death penalty or offered benefits in exchange for the confession. The officers did not say it would "make a difference" to the court or the prosecution if defendant told the truth. They did not threaten defendant would not see his parents or girlfriend unless he confessed, nor did they inform him that if he confessed he would be subject to imprisonment for only a few years. Sergeant Madarang denied patting defendant on the shoulder. Madarang testified that throughout the interviews, the officers provided defendant with soft drinks and with cigarettes at his request, allowed him to use the restroom, and offered him food.

In argument on the motion, the prosecutor stressed defendant's written and recorded acknowledgements that he had been advised of his rights in a timely manner. Defense counsel did not seriously contest the Miranda issue, stating in response to the prosecutor's argument: "I think the issue is not whether or not he was properly admonished. I believe that the timing - you know, I see no reason to disbelieve, frankly, the time of that." Instead, defense counsel argued: "The issue is whether or not he was told it was a capital offense, whether he was told things would be better for him."

The trial court denied the motion to suppress and admitted defendant's statements, accepting the officers' version of the events as true and concluding that defendant properly was advised of and waived his Miranda rights. The court made a finding that Sergeants Madarang and Chenault were credible witnesses, based on "the content of their testimony" and the court's "personal observations of their demeanor as they testified." The court concluded it was established beyond a reasonable doubt that defendant had received timely admonitions and knowingly and intelligently had waived his rights. The court further found, beyond a reasonable doubt, that defendant's statements "were freely and voluntarily given." Specifically, the trial court concluded "that there [were] no circumstances of coercion or force, and that the totality of the circumstances indicate[d] that these statements were voluntarily given." With respect to the statements made to the deputy district attorney, the trial court reached the same conclusions, finding beyond a reasonable doubt that defendant was "appropriately and in a timely fashion advised . . . of his constitutional rights, and . . . freely and voluntarily waived those rights."

b. Defendant's Challenge to the Admissibility of His Confessions

Defendant asserts his initial confession to Sergeants Madarang and Chenault was obtained in violation of Miranda because it was elicited from him after his unequivocal request for counsel. Defendant also asserts his second confession to Deputy District Attorney O'Connor was the tainted product of his initial confession. We conclude the trial court properly denied defendant's motion to suppress these two confessions.

Pursuant to Miranda, supra, 384 U.S. 436, "a suspect [may] not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel." (People v. Cunningham (2001) 25 Cal.4th 926, 992; see also People v. Rundle (2008) 43 Cal.4th 76, 114, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) After a knowing and voluntary waiver, interrogation may proceed " "until and unless the suspect clearly requests an attorney.' " (People v. Gonzalez (2005) 34 Cal.4th 1111, 1124.) The prosecution bears the burden of demonstrating the validity of the defendant's waiver by a preponderance of the evidence. (People v. Bradford (1994) 14 Cal.4th 1005, 1034, citing Colorado v. Connelly (1986) 479 U.S. 157, 168.)

In considering a claim on appeal that a statement or confession is inadmissible because it was obtained in violation of a defendant's Miranda rights, we "review independently the trial court's legal determinations . . . . We evaluate the trial court's factual findings regarding the circumstances surrounding the defendant's statements and waivers and " "accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence." ' " (People v. Rundle, supra, 43 Cal.4th at p. 115.)

The trial court in the present case was aware that the prosecution's burden was to establish the validity of defendant's waiver by a preponderance of the evidence but, apparently to demonstrate its confidence in its conclusion, applied the stricter beyond a reasonable doubt standard. The court stressed that it credited the officers who testified that defendant was advised of his Miranda rights in a timely manner and that he never requested counsel. The two tape-recorded interviews, the first with the officers and the second with the deputy district attorney, further corroborate the officers' version of the events. In the tape-recorded interviews, defendant acknowledged that he had been advised of his rights at the commencement of the prior interrogation, that he initialed the waiver form, and that he wished to speak to the authorities. We accept the trial court's resolution of the factual dispute that existed between the defense and the prosecution witnesses, along with its credibility determination, because both findings were amply supported by the evidence.

Defendant's attack on the credibility of all of the police officers, unsupported by the record of the suppression hearing, is insufficient to provide a basis for rejecting the trial court's findings. Defendant urges that the very comprehensiveness of the officers' denials that they urged defendant to confess undermines the officers' credibility. We are persuaded, however, that the trial court's determination that the officers were credible witnesses is supported by substantial evidence. In sum, defendant's Miranda claim lacks merit. Having concluded that defendant's initial confession to the officers was not obtained in violation of Miranda, we reject defendant's related claim that his second confession to the deputy district attorney was the tainted product of his initial confession.

Defendant also challenges the admission of the statements on the ground they were involuntary. Any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion is inadmissible pursuant to the Fourteenth Amendment to the federal Constitution and article I, section 7 of the California Constitution. (People v. Sapp (2003) 31 Cal.4th 240, 267; People v. Neal (2003) 31 Cal.4th 63, 67.) To determine the voluntariness of a confession, courts examine " "whether a defendant's will was overborne' by the circumstances surrounding the giving of a confession." (Dickerson v. United States (2000) 530 U.S. 428, 434.) In making this determination, courts apply a "totality of the circumstances" test, looking at the nature of the interrogation and the circumstances relating to the particular defendant. (People v. Haley (2004) 34 Cal.4th 283, 298; People v. Massie (1999) 19 Cal.4th 550, 576.) With respect to the interrogation, among the factors to be considered are " " "the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity . . . ." ' " People v. Massie, supra, 19 Cal.4th at p. 576.) With respect to the defendant, the relevant factors are " " "the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health." ' " (Ibid.) "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 . . . .' " ' " (People v. Neal, supra, 31 Cal.4th at p. 79.)

As with Miranda claims, the trial court's legal conclusion as to the voluntariness of a confession is subject to independent review on appeal. (People v. Haley, supra, 34 Cal.4th at p. 298; People v. Massie, supra, 19 Cal.4th at p. 576.) The trial court's resolution of disputed facts and inferences, its evaluation of credibility, and its findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence. (People v. Haley, supra, 34 Cal.4th at p. 298; People v. Massie, supra, 19 Cal.4th at p. 576.) The state bears the burden of proving the voluntariness of a confession by a preponderance of the evidence. (People v. Haley, supra, 34 Cal.4th at p. 298.)

In the present case, again applying the beyond a reasonable doubt standard, the trial court concluded that "there [were] no circumstances of coercion or force, and that the totality of the circumstances indicates that these statements were voluntarily given." The interrogating officers specifically denied defendant's claims, including that they offered him benefits for confessing, issued threats, or misled him concerning the potential punishment he faced. The trial court credited the officers' testimony, and its credibility determination is supported by substantial evidence.

Under all the circumstances, we agree with the trial court that defendant's statements were made voluntarily. Although defendant was required to wait approximately two hours before the interrogation began, the delay was not the result of improper police conduct. Rather, it arose because the police had not planned to arrest or interview defendant prior to his own telephone call to the police; Sergeant Madarang, the lead investigator, was in Sacramento and was required to travel to Oakland to interview defendant. During defendant's interrogation, the officers provided defendant with soft drinks and cigarettes, allowed him to use the restroom, and offered him food. Most important, as the trial court found, the officers did not engage in any impermissibly coercive tactics in procuring defendant's confession.

Defendant contends his own unbalanced mental state rendered him susceptible to coercion. His claim that he was mentally disturbed is based primarily upon the circumstance that he telephoned the police dispatcher and that he spoke in a rambling manner in the police vehicle while being transported to the police station. This conduct, however, may be explained by the stress and emotion felt by defendant after recognizing that he would face responsibility for the crime.

In any event, his own vulnerability does not demonstrate official coercion. "Insofar as a defendant's claims of involuntariness emphasize that defendant's particular psychological state rendered him open to coercion, this court has noted that "[t]he Fifth Amendment is not "concerned with moral and psychological pressures to confess emanating from sources other than official coercion." ' " (People v. Smith (2007) 40 Cal.4th 483, 502, italics added.) Although defendant may have felt vulnerable, there is no indication of police coercion during his initial contacts with the police or during the subsequent interrogations. Similarly, although defendant claims his decision to confess was based upon his youth and his absence of experience with the criminal justice system, there was no indication of police exploitation of these circumstances. On the contrary, during his tape-recorded interviews, defendant expressly stated that he was speaking freely and voluntarily.

Consequently, the trial court properly concluded that defendant's confession was made voluntarily.

c. Defendant's Challenge to Statements He Made in the Patrol Car

Defendant contends his spontaneous statements made en route to the police station on August 7, 1993 were similarly involuntary because he was mentally disturbed at the time he made the statements.

In response to an ambiguous challenge to the voluntariness of statements defendant made in Officer Fritz's patrol vehicle, the trial court found that these statements "were freely and voluntarily given." In addition, according to the trial court, although defendant was not given Miranda advisements, his statements were made spontaneously and "were not the product of custodial interrogation." Accordingly, the trial court concluded that these spontaneous statements were admissible. The trial court also stated that based upon its personal observation of Officer Fritz as he testified, it found that the officer was "a believable and credible witness."

Defendant again contends his unbalanced mental state is evidenced by his conduct in contacting the police and in his repetitive and rambling statements made while he was seated in Officer Fritz's patrol car. Fritz did not describe defendant's statements as rambling or incoherent. Defendant himself testified that he said nothing at all in the patrol car, whether rambling or otherwise, other than to inquire whether the officers had a warrant. Fritz credibly testified that he did nothing more than sit and listen to defendant. There is no evidence of any official coercion or of exploitation of defendant's youth or asserted inexperience. Defendant's claimed psychological vulnerabilities do not suggest his statements were involuntary. (See People v. Leonard (2007) 40 Cal. 4th 1370, 1403; People v. Smith, supra, 40 Cal.4th at p. 502.) Accordingly, we conclude that the trial court properly denied defendant's motion to suppress the statements defendant made in the police car.

2. Prior Consistent Statements

Defendant contends that the trial court erred by permitting the prosecutor to enhance the credibility of prosecution witness Alphonso Odom through the admission of Odom's prior consistent statements. Defendant claims in essence that these prior out-of-court statements constituted hearsay and were not made admissible by Evidence Code section 791, subdivision (b). In pertinent part, that provision limits the admission of a prior out-of-court statement to circumstances in which there has been an express or implied charge that the witness is fabricating or is influenced by bias or other improper motive, and the statement was made before any potential bias or motive to lie arose. Defendant points out that the defense had not yet impeached Odom when the statements were admitted, and he claims that, in any event, Odom already had a motive to fabricate when he made the prior statements.

This claim arises in the following factual setting. At trial, Odom recounted his observations on the day the crimes were committed. He testified he was present at his home that afternoon. He resided in the apartment building next to the building in which defendant resided. He observed defendant, wearing distinctive clothing, standing near the mail box area of his own apartment building. From the vantage point of his apartment balcony, Odom observed defendant proceed down the driveway toward the back of the building and the parking lot where the murder occurred. Returning to the interior of the apartment, Odom heard a shot. He ran to the balcony and witnessed the shooting that resulted in Lance's death. Odom hurried to the scene and attempted to provide assistance to Lance until he realized that the boy was dead. Odom returned to his home as the police approached. Odom observed defendant return to the scene and "act surprised" during defendant's discussion with the responding officers. Later that day, Odom made it known to defendant that he, Odom, realized defendant was the perpetrator of the crime. Defendant responded "it wasn't supposed to go down that way."

During his trial testimony, Odom experienced some difficulty recalling the precise course of events, explaining that the years intervening between the crimes and the trial rendered precise recollection difficult. He was uncertain whether he had seen defendant at the mailboxes on one or two occasions, that is, whether he had returned to his apartment during defendant's visit to the mailboxes. During his testimony, initially he recalled having heard only one shot, but later, with the assistance of his prior statements to refresh his recollection, reported having heard two shots. Odom was uncertain of the precise words employed by defendant in making the foregoing admission.

Defendant complains of three occasions on which the prosecutor displayed to Odom his prior statement to the police, his preliminary hearing testimony, or notes from a photographic lineup, thereafter requesting that Odom ratify the prior statements.

In the first example, Odom testified that the person he observed at the door of Bernice's automobile with a gun in hand was wearing the same clothing he had observed defendant wearing just before the gunshots sounded. During further direct examination on the following day of trial, in the context of identifying the shooter, Odom testified, "I didn't see a face, I just seen the same clothing." The prosecutor then read Odom's preliminary hearing testimony, as follows:

"Q: Was there any question in your mind that was [defendant] you saw?

[¶] A: No, there was no question in my mind, because I had just seen him in that clothing." Odom confirmed he had given that answer at the prior hearing, adding "Like I said I seen him in that clothing." The prosecutor essentially repeated the question and received the same answer. Ultimately the prosecutor inquired: "Is it your testimony now that you have no question as you sit there now that it was the defendant . . . that you saw at the door of the car?

[¶] A: Yes.

[¶] [Q:] You do or do not have?

[¶] A: I mean, yes, it was Earnest Dykes."

In the second example, Odom testified concerning his encounter with defendant on the day of the crime when defendant admitted his culpability. Odom recalled at trial that defendant said something to the effect "it wasn't supposed to go down like that," but Odom apologized, expressing some uncertainty regarding the exact wording of this admission. The prosecutor responded: "Well, no need to apologize. And you testified yesterday that [defendant] told you that he did this, is that correct?" The examination continued:

"[¶] A: Yes.

[¶] Q: When you picked the photograph out, photograph number two, on August 10th, you picked that photograph as being the person who told you they did it, is that correct?

[¶] A: Come again? I didn't . . . .

[¶] Q: When you picked [defendant's] photograph out of the group of photographs, you picked his photograph as being the person who told you he did it, is that correct?

[¶] A: Yes. Yes.

[¶] Q: So in other words you were saying the same thing at that time as you said here in court yesterday?

[¶] A: Yes."

The final example occurred when Odom testified that defendant told him he took the money he stole from Bernice Clark and his weapon to a girlfriend's residence after the crime. According to Odom's testimony, defendant commented that he had stolen "about a hundred bucks." Odom was uncertain of defendant's exact words. In response to a question posed by the prosecutor, Odom verified that in his statement to the police and when he testified under oath at the preliminary hearing, he stated that Dykes told him he "got about a hundred bucks."

Defendant concedes that his attorney did not interpose timely objections to the questions on the ground asserted on appeal. As defendant also acknowledges, numerous decisions by this court have established the general rule that trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal. (People v. Partida (2006) 37 Cal.4th 428, 433-435; People v. Lewis (2001) 26 Cal.4th 334, 357.) Defendant asserts that the forfeiture rule should not apply, because there is a "heightened need for reliability and fairness in a capital case." This court, however, has rejected the claim that the forfeiture rule does not apply in capital cases. (People v. Benavides (2005) 35 Cal.4th 69, 115 [rejecting a claim that we should conduct " "plain error review' " notwithstanding forfeiture in capital cases]; People v. Cain (1995) 10 Cal.4th 1, 28.) Defendant fails to establish the existence of any "structural defect" such as was identified by the high court in Arizona v. Fulminante (1991) 499 U.S. 279, 309-310, that would lead us to overlook our forfeiture doctrine.

Defendant adds that, even if the evidentiary claim was forfeited, the underlying claim should be reached on the theory that the prosecutor committed misconduct in conducting the examination of Odom, rendering the trial fundamentally unfair. But trial counsel's failure to object in a timely manner to asserted prosecutorial misconduct also results in the forfeiture of the claim on appeal. (People v. Stanley (2006) 39 Cal.4th 913, 952.) Contrary to defendant's assertion, even if we assume there was merit to the claim, a timely objection and a request for admonition would not have been futile.

In any event, defendant's claims are not meritorious. Defendant assumes that the sole possible basis for the admission of Odom's prior statements was Evidence Code section 791, subdivision (b), but that the evidence did not meet the requirements of that provision. This statute permits the admission of a prior consistent out-of-court statement when there has been a charge that the testimony at the hearing has been fabricated or "influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (Evid. Code, § 791, subd. (b).) Defendant claims that the prior consistent statements were elicited before there had been any attempt to impeach Odom, and after Odom already had developed a motive to fabricate. He asserts that Odom's motive to fabricate - the desire to be released from jail - arose before he contacted the police to offer assistance in their investigation.

Even if Odom's out-of-court statements were not admissible because they were not made "before the bias, motive for fabrication, or other improper motive is alleged to have arisen" (Evid. Code, § 791, subd. (b)), if defendant had interposed hearsay objections to the introduction of the prior statements, the prosecutor might have been able to demonstrate that at least the first two statements were admissible as examples of prior identification pursuant to Evidence Code section 1238.*fn2 As the Law Revision Commission comment to that provision explains: "Under Section 1238, evidence of a prior identification is admissible if the witness admits the prior identification and vouches for its accuracy." (Cal. Law Revision Com. com., 29B pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 1238, p. 249; see People v. Gould (1960) 54 Cal.2d 621, 626 ["Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached [citations], evidence of an extra-judicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value . . . ."], overruled on other grounds in People v. Cuevas (1995) 12 Cal.4th 252, 263; see also People v. Boyer (2006) 38 Cal.4th 412, 480; 1 Witkin, Cal. Evidence (2000 ed.) Hearsay, § 163, pp. 876-877.)*fn3

The prosecutor also might have been able to secure the admission of all three of the statements on the ground that the witness had been forgetful and evasive during his testimony, rendering prior statements admissible for their truth as prior recorded recollections pursuant to Evidence Code sections 1235 and 770. Discussing the two provisions, we explained that "[t]hose statutes . . . provide for the admission against a hearsay challenge of a prior statement by a witness "if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.' [Citation.] Under Evidence Code section 770, prior inconsistent statements are admissible only if: "(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.' " (People v. Sapp, supra, 31 Cal. 4th at p. 296.) Under certain circumstances, testimony may be considered inconsistent with prior statements when it reflects absence of recollection or evasiveness. (See People v. Green (1971) 3 Cal.3d 981, 987-988; see also People v. Sapp, supra, 31 Cal.4th at p. 297.)

We need not speculate whether, in response to defense objections, the prosecutor could have established the proper foundation for admissibility of each of Odom's prior out-of-court statements under these provisions, because it is clear that admission of the statements was harmless. Defendant admitted in his recorded confessions and in his trial testimony that he robbed Bernice and was responsible for the shot that injured her and killed Lance. Prosecution witness Edward Tyson, along with the surviving victim, Bernice, also provided detailed eyewitness testimony. Defendant himself testified that he demanded money from Bernice, and his claim that he did not recall the exact amount was impeached by his prior inconsistent statement to the police at the time of his arrest that he had garnered exactly $142.

Defendant counters that prejudice occurred because Odom's credibility was essential to the prosecution's case. According to defendant, Odom's credibility was important not only because Odom testified that defendant admitted committing the crimes and assertedly provided details that were not available from other witnesses, but also because Odom's testimony provided a significant basis for the charge of premeditated murder and premeditated attempted murder. Defendant claims this was because Odom testified he observed defendant standing near the apartment building mailbox shortly before the first shot rang out - testimony assertedly giving rise to an inference that defendant planned the crime in advance "and that he was waiting for Mrs. Clark to arrive in order to commit the crime." But defendant himself testified that he decided up to one-half hour in advance of the crime to rob Bernice and also decided on that occasion to arm himself with a loaded firearm, even though his purpose was to confront an elderly woman who was known to lend money freely. It added little to the proof of premeditation for Odom to suggest that defendant had been standing outside the apartment building shortly before committing the crime.

Moreover, to the extent defendant's claim is based upon the argument that the jury would infer that critical portions of Odom's trial testimony were true because Odom had made prior statements that were consistent with his trial testimony on other points, the contention lacks merit. The same inference could be gleaned through many other instances in which the prosecutor referred to Odom's prior consistent statements. The prosecutor repeatedly referred to Odom's prior statements and testimony during his direct examination of Odom, and no objection was forthcoming at trial (or, for that matter, on appeal).*fn4

3. Prosecutorial Misconduct

Defendant contends the prosecutor committed prejudicial misconduct on a number of occasions during the guilt phase of the trial. He claims a violation of his right to a fair trial under the Fifth and Fourteenth Amendments to the federal Constitution and parallel provisions of the state Constitution.

We review claims of prosecutorial misconduct pursuant to a settled standard. "Under California law, a prosecutor commits reversible misconduct if he or she makes use of "deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights - such as a comment upon the defendant's invocation of the right to remain silent - but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action " "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' " (People v. Riggs (2008) 44 Cal.4th 248, 298; People v. Crew (2003) 31 Cal.4th 822, 839.) In addition, " "a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion - and on the same ground - the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' [Citation.] " (People v. Stanley, supra, 39 Cal.4th at p. 952.) Objection may be excused if it would have been futile or an admonition would not have cured the harm. (See People v. Hill (1998) 17 Cal.4th 800, 820.)

In considering defendant's claims, we recall the limited issues that were in dispute in the present case. In view of defendant's testimony and his confessions, defense counsel admitted in his argument to the jury that defendant had fired the shot that injured Bernice Clark, and that he had committed a robbery and a robbery murder. Defense counsel disputed that defendant intended to kill Bernice. Counsel also urged the jury to conclude that because Lance's killing assertedly was accidental and occurred while defendant was attempting to disengage from Bernice in their struggle over her wallet, the killing was not committed to "advance" the felony within the meaning of the robbery-murder special-circumstance allegation. Although the point is not critical to the discussion of the present issue, to avoid confusion we note that there is no requirement that the prosecution prove an additional or different element that the killing be committed to "advance" the felony. (People v. Horning (2004) 34 Cal.4th 871, 907-908.)*fn5

a. Opening Statement

Defendant contends the prosecutor's opening statement was argumentative, unsupported by the record, and constituted an appeal to passion and prejudice. He refers to the following comments: "You know, there's three ways to get money. You can earn it, you can borrow it, or you can steal it, and [defendant] chose to steal it at gunpoint from a senior citizen in the company of a nine-year-old child and a dog. [¶] After you hear all the evidence from the technician and two criminalists you will be convinced that the same bullet that passed through Mrs. Clark's neck then passed through her grandson's body and killed him. And he died looking at her, and she had to sit there next to him in the car. I think it probably goes without saying that that sort of experience almost defies description."

There was no objection and the claim is forfeited. (People v. Prince (2007) 40 Cal.4th 1179, 1275.)

In any event, the claim lacks merit. With one possible exception, the statement was closely tied to the evidence presented by the prosecutor. Respondent acknowledges that the evidence may not have established that the victim died looking at his grandmother, but there was evidence that could support the view that the child was leaning toward his grandmother when he was shot. As we have commented, "remarks made in an opening statement cannot be charged as misconduct unless the evidence referred to by the prosecutor "was "so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted." ' " (People v. Wrest (1992) 3 Cal.4th 1088, 1108.) In the present case, the jury was instructed that the prosecutor's opening statement did not constitute evidence. As we have declared in a comparable case, "[a]ny inconsistency between the opening statement and the evidence was inconsequential. [Defendant] was permitted to confront all witnesses and to challenge and rebut all evidence offered against him. Under these circumstances, [defendant] suffered no conceivable prejudice." (Id. at pp. 1109-1110.)

Defendant contends that the quoted language describing him in an unflattering and critical light was argumentative and constituted an appeal to passion. The comments, along with the prosecutor's description of Bernice Clark's tragic experience, were based upon evidence to be presented at the trial, however, and were within the "broad scope of permissible argument." (People v. Chatman (2006) 38 Cal.4th 344, 387 [the prosecutor properly could claim the defendant lied, lacked humanity, was frightening, and was barely human].)

b. Examination of Witnesses

Defendant contends the prosecutor committed misconduct "during the examination of witnesses by improperly injecting emotion into the guilt phase of the trial, seeking to elicit inadmissible evidence, and implying that the defense was obstructionist."

Defendant refers to the examination of Bernice Clark, alleging in his opening brief that the prosecutor asked her whether her grandson was "dead and buried by the time she was released from the hospital." The prosecutor did not make the comment that appears in defendant's opening brief. Rather, in the context of exploring the witness's memory of events from the time of the crime to the point when she gave a statement to the police during her hospital stay, the prosecutor inquired whether she recalled making the statement, whether she recalled when during the stay she had made the statement, whether she slept a great deal in the hospital, whether she remembered visitors, or whether the hospital stay "sort of [ran] together when you think back on it?" Bernice responded that she was not told about her grandson's death while she was in the hospital. When she added that she recalled hospital visits from her granddaughter and son, this colloquy ensued:

"Q: And they had not told you yet that -

[¶] A: No.

[¶] Q: That Lance was dead?

[¶] A: No. [¶]

[Q:] Did you go to his ...


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