APPEAL from a judgment of the Superior Court of Sacramento County, Steve White, Judge. Affirmed as modified. (Super. Ct. No. 05F06126).
The opinion of the court was delivered by: Nicholson, J.
CERTIFIED FOR PUBLICATION
During a two-week period in 2005, defendants Joseph Johnson and Jessica Nicole Holmes, along with Holmes's boyfriend, Corey Schroeder, robbed or attempted to rob at least five gas stations in the Sacramento area. Their mode of operation was virtually the same for each robbery: Schroeder would case the station, Johnson would rob the station attendant at gunpoint, and Holmes would drive them away. On the trio's last attempted robbery, Johnson shot and killed the station attendant, Prem Chetty.
Separate juries convicted Johnson and Holmes of murder during the commission of an attempted robbery, and multiple counts of second degree robbery and attempted second degree robbery. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17), 211, 664.) They also found true gun-use enhancements and principal-armed enhancements as to each count. (Pen. Code, §§ 12022, subd. (a)(1), 12022.53, subds. (b), (d).)*fn1
The trial court sentenced Johnson to a prison term of life without the possibility of parole for the special circumstance murder, an additional 25 years to life for the firearm enhancement attached to the murder conviction, and an additional consecutive determinate term of 34 years four months for the remaining convictions and enhancements.
The trial court sentenced Holmes also to a prison term of life without the possibility of parole for the special circumstance murder, an additional 25 years to life for the firearm enhancements attached to the murder conviction, and an additional consecutive term of seven years eight months for the remaining convictions and enhancements.
Both defendants appeal. Johnson claims the trial court erred when it:
(1) Determined the pretrial and in-court identification procedures used by the police and the prosecution were not unduly suggestive;
(2) Ruled that evidence of an uncharged robbery that Johnson sought to introduce to show third-party culpability was inadmissible under Evidence Code section 352 where the court relied on his confession to that robbery which was suppressed under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda); and
(3) Ruled that evidence of an exculpatory statement purportedly made by Johnson to a girlfriend did not qualify for admission under Evidence Code section 356.
Johnson also asserts cumulative constitutional error, and a sentencing error for not receiving any custody credit.
Defendant Holmes claims the trial court erred by:
(1) Refusing to suppress confessions Holmes made to police while in custody allegedly in violation of her Miranda rights; and
(2) Imposing cruel and/or unusual punishment in violation of her federal and state constitutional rights.
Holmes also asserts sentencing error for not receiving any custody credit.
Except to modify the judgments to award custody credit to each defendant, and to correct Holmes's abstract of judgment, we affirm.
June 25, 2005 Robbery at L&S Shell Gas Station, Madison Avenue and Auburn Boulevard (Count Three - Johnson only)
At about 11:20 a.m. on June 25, 2005, Johnson entered the automotive repair store adjacent to the L&S Shell gas station. Timothy Meton was working as the cashier. After the other customers left, Johnson pulled a gun from his waistband and demanded Meton give him "all the money."
As Meton took the money out of the cash register, Johnson "gestured" with the gun and told him to "[h]urry up." Meton gave Johnson all of the cash in the tray. Johnson told Meton to give him the money underneath the tray. Meton showed Johnson there was no money underneath the tray. Johnson stuffed the money into the front pocket of his sweatshirt and ran out the door toward a McDonald's restaurant located across the street. Meton estimated he gave Johnson about $700.
Meton participated in two lineups. The first, on July 10, 2005, was a photographic lineup that included Johnson. Meton did not identify anyone. The second, on July 15, 2005, was a live lineup. Meton requested the individuals each say "hurry up" and "underneath too." He identified Johnson after hearing the individuals speak. Johnson was the only person who was in both the photographic lineup and the live lineup.
Meton also identified Johnson in court as the robber.
Holmes's jury heard Holmes's July 11, 2005 interview with Sacramento County Sheriff's detectives. Regarding this robbery, Holmes stated Johnson had called her and asked her to pick him up. She, Schroeder, and another girl did so. Johnson directed Holmes to park at the McDonald's, and he went across the street to the Shell station. After he came back from the Shell station, he said, "Let's leave." After they drove out of the parking lot, Johnson told Holmes he had robbed the station. Holmes knew Johnson had a gun with him. She drove Johnson to another location, and he gave her $20 for the ride.
June 28, 2005 Robbery at Arco Gas Station, Walerga Road and Hillsdale Boulevard (Count Four - Johnson and Holmes)
On June 28, 2005, Kuljit Rai was working alone at his Arco gas station on the corner of Walerga Road and Hillsdale Boulevard in Sacramento County. At about 2:00 p.m., Johnson entered the store and robbed Rai at gunpoint of about $75. After Johnson ran out, Rai followed him and saw Johnson get into the back passenger seat of a small, white, four-door car. Rai could not see anyone else in the car.
The store's surveillance tape showed a White male in a white tank top enter the store. The tape also shows Johnson entering the store.
On July 15, 2009, Rai identified Johnson at a live lineup as the robber. Rai also identified Johnson in court as the robber.
During closing arguments, Johnson conceded his guilt to this crime.
June 28, 2005 Attempted Robbery of Shell Gas Station, Auburn Boulevard and Antelope Road (Count Five - Johnson and Holmes)
About 30 minutes after the Arco robbery, Johnson attempted to rob a Shell gas station at the corner of Auburn Boulevard and Antelope Road in Citrus Heights. Ewa Her was working at that station when, at about 2:30 p.m., he heard a voice behind him coming from the cash register counter. He turned around and saw Johnson standing at the counter and pointing a gun at him. Johnson repeatedly demanded Her to give him the money. When Her did not, Johnson put his hand on top of the gun and pulled back the slide. Her "freaked out" and ran to the back room. He never gave Johnson any money.
About a minute before Johnson came into the store, a White man in a white tank top came into the store and purchased a soda and some chips. Her did not attend a live lineup and he did not identify Johnson at trial.
There were two minors in the store at the time of the robbery. One of the minors saw Johnson put a glove on his right hand and possibly his left, pull a gun out, and heard him tell the clerk to give him money. The minors both identified Johnson at a live lineup and at trial as the robber.
Holmes's jury heard Holmes's statement that she had driven Johnson to this gas station, and she drove away after Johnson came back from the store.
During closing argument, Johnson conceded his guilt to this count.
June 30, 2005 Robbery of Arco/Valero Gas Station at San Juan Avenue and Winding Way (Count Nine - Evidence Presented to Holmes's Jury Only)
Thomas Claussen was working alone the evening of June 30, 2005, at the Arco/Valero gas station at San Juan Avenue and Winding Way.*fn2 A tall, Black male entered the store. The man was slim, about 18 years old, wearing a blue Kobe Bryant jersey, a black baseball hat, and a glove on his hand. The man aimed his gun at Claussen and demanded money. Claussen gave the man all of the money in the cash drawer, about $130. After the robber left, Claussen went outside, but he could not see the man. Claussen saw a maroon pickup truck leave the area, but he did not know if the truck was related to the robbery.
Claussen attended a live lineup that included Johnson. However, Claussen was unable to identify anyone as the robber of his store. On the sheriff's department lineup identification form, Claussen wrote that the robber was darker skinned than any of the lineup participants.
Holmes told detectives she drove Johnson to the Arco/Valero station. Johnson told her where to park. Johnson went into a nearby liquor store and then went into the Arco/Valero station. Johnson said nothing about a robbery when he came back to the car. Holmes did not know Johnson had robbed the station until a couple of days later.
Deputies later seized a Kobe Bryant jersey from the home where Johnson had been living. Johnson appears to be wearing the same jersey in a DMV photo.
As to Holmes, the court declared a mistrial on this count after her jury announced it was deadlocked. The prosecutor subsequently moved to dismiss the charge, and the court granted the motion.
June 30, 2005 Robbery of Chevron Gas Station at Dewey Drive and Madison Avenue (Count Six -- Johnson and Holmes)
Also on June 30, 2005, at about 8:20 p.m., Johnson entered a Chevron gas station on the corner of Dewey Drive and Madison Avenue, walked to the counter, pointed a gun at the employee, Jesus Fernandez, and demanded all the money. Fernandez put all of the money from the cash register, between $250 and $300, into a bag and gave it to Johnson. Johnson left the store and went behind a building.
On July 21, 2005, Detective Biondi showed Fernandez surveillance images from the robbery, and then showed him a photographic lineup. Fernandez identified himself and the robber in the surveillance images. Then, when viewing the photographs, Fernandez first pointed to Johnson and another person, but then he identified Johnson as the robber. Fernandez did not attend a live lineup. He identified Johnson in court as the robber.
As to Holmes, the court declared a mistrial on this count after her jury announced it was deadlocked. The court later granted the prosecution's motion to dismiss the charge against Holmes.
July 5, 2005 Uncharged Robbery in Roseville
Shortly before 7:00 p.m., July 5, 2005, Johnson walked into a Valero gas station at Sunrise Avenue and Coloma Road in Roseville. He picked up a soda, walked to the counter, pointed a gun at the employee, Rui Mar, and demanded she give him money from the cash register. Mar told Johnson she could not open the register unless he purchased something. Johnson continued pointing the gun at Mar and threatening her. She tried to hide behind an ice machine next to the register. Johnson fired two shots and left.
Officers found two bullet holes behind the counter area. One .380- caliber bullet was found inside cigarette packs stored behind the register. Two .380-caliber shell casings were also found. Surveillance video taken from the store showed a man in a white tank top inside the store before the robber entered the store.
On July 8, 2005, at the request of a Roseville police sergeant, Mar viewed a media release and still photos posted on the Sacramento County Sheriff's Department Web site regarding a July 7 murder in Citrus Heights. Mar informed the officer the person in the still photos was the same person who had attempted to rob her.
On July 15, 2005, Mar attended a live lineup in Sacramento County. She quickly identified Johnson from the lineup as the robber. Later, Mar identified Johnson in court as the robber.
Holmes's jury heard Holmes's statement to detectives that she drove Johnson to the Valero station in Roseville. Schroeder went into the store to buy Holmes a soda. Then Johnson went inside and came back with a soda. Holmes had the radio on and did not hear any gunshots. Johnson and Schroeder talked about Johnson shooting at the clerk. Johnson said he had "shot right next to her."
Holmes denied she had known Johnson was going to commit a robbery. She claimed she drove and parked wherever Johnson told her because "he needed [her] to take him." She thought she was taking Johnson to buy marijuana.
July 5, 2005 Robbery of Chevron Gas Station at Walnut Avenue and Marconi Avenue (Counts Seven and Eight -- Johnson and Holmes)
About 30 minutes after the uncharged Roseville robbery, Johnson walked into a Chevron gas station store at Walnut Avenue and Marconi Avenue in Sacramento County. He picked up a container of milk and a bag of chips, walked to the counter, and asked the employee, Mathew Johnson, for a cigar. Mathew turned around to get the cigar, and when he turned back around, Johnson was pointing a gun at him. Johnson threatened to shoot unless Mathew gave him the money from the register. As Mathew pulled the tray out of the register, another station employee, Lidia Fretwell, entered the store from the outside. Mathew told Fretwell they were being robbed. He tried to give Johnson the tray, but Johnson refused to touch it. He ordered Mathew to remove the money and give it to him. Mathew gave him about $170. Johnson took the money and left.
Mathew followed Johnson outside and saw Johnson get into a white compact car, possibly a Ford Escort, behind the station. He could not see if anyone else was in the car. At trial, Mathew testified that Corey Schroeder, a man he knew from his apartment complex, had come into the store about one hour before the robbery and had bought a pack of cigarettes.
A customer, Corrine Kelly, entered the store as a Black man exited the store holding a Nestle Quik. Kelly saw the man walk to an adjacent parking lot and get into a white or beige Ford Escort occupied with two other people.
Mathew identified Schroeder and Johnson in separate live lineups; Schroeder as the man who came into the store an hour before the robbery, and Johnson as the robber. Mathew also identified Johnson as the robber at trial.
Fretwell identified Johnson as the robber from a photographic lineup. She also identified Johnson at trial as the robber after she looked at the photo she had previously identified. She did not attend a live lineup.
Holmes's jury heard Holmes's statement to detectives that she had driven Johnson to the Chevron station. He told her to park behind the gas station. Schroeder went into the store first to buy fireworks, she thought. When Schroeder came back, Johnson asked him how many people were working inside the store. Johnson told Holmes he had to get something and got out of the car. Holmes drove away after Johnson came back. Later, Johnson told her he had robbed the store.
July 5, 2005 Purchase of Bullets at Big 5
At about 8:00 p.m. on July 5, 2005, the evening of the Chevron gas station robbery and the uncharged Roseville robbery, Johnson, Holmes, Schroeder, and an unidentified Black male purchased ammunition at a Big 5 Sporting Goods store on Arden Way near Watt Avenue. They bought a box of Remington .380 bullets with cash. Video from the store's surveillance system shows the four people all standing by the ammunition counter at one point. Schroeder is wearing a white tank top.
Holmes's jury also heard Holmes's statement to detectives that she had driven Johnson to Big 5 to buy bullets. She denied knowing what Johnson intended to do with them. Holmes's sister's ex-boyfriend went with them to buy the bullets.
July 7, 2005 Murder and Attempted Robbery at Shell Gas Station at Greenback Lane and Auburn Boulevard (Counts One and Two -- Johnson and Holmes)
On July 7, 2005, Prem Chetty was working at a Shell station at Greenback Lane and Auburn Boulevard in Citrus Heights. He was killed that evening in an attempted robbery.
Surveillance videotape from the station recorded a Black man wearing a gray sweatshirt and a black cap take something out of one of the store's coolers. He walked up to the store's counter where Chetty was waiting. The man picked up another item to buy, and then handed Chetty some money. When Chetty opened the cash register drawer, the man pulled a gun on Chetty and demanded the money. When Chetty did not give the robber any money, the man shot Chetty more than once and then left the store. Chetty died of gunshot wounds to the neck and chest.
The video also appears to portray Schroeder wearing a red shirt inside the store prior to the robbery.
Three witnesses who were in the vicinity of the Shell station at the time of the murder testified. Kimberly Irvine was at the Chevron station across the street when she heard a couple of gunshots. She looked toward the Shell station and saw a man wearing dark clothing run out of the store and toward the fence and bushes that divided the Shell station from a Jack-in-the-Box restaurant. The man ran out of view and she did not see where he went.
Dee Scott-Chee and Carol Webber were in a car stopped at the traffic light at Greenback Lane and Auburn Boulevard when Chee heard two gunshots. She saw a person run quickly from the Shell station into the bushes dividing the station and the Jack-in-the-Box.
Webber stated she saw the face of the man leaving the station. At a photo lineup, Webber selected the photograph of Johnson's cousin, Thaddeus Taylor, as the person who looked "the closest in the eyes." Later, at a subsequent photo lineup, Webber again did not select Johnson as the man she saw.
Randy Cockrell was sitting inside his car with his girlfriend at the Gold's Gym parking lot near Greenback Lane and Auburn Boulevard when he heard two gunshots. He looked in his rearview mirror and saw a White male run from the Shell station toward a white, four-door sedan that was parked behind the Jack-in-the-Box. The sedan drove onto Greenback Lane toward the freeway.
Deputies recovered three spent shell casings and two deformed copper-jacketed bullets from the scene. The casings were each marked with a head stamp of "R-P .380 auto."
Holmes's jury heard her statement to detectives in which she admitted driving Johnson to the Shell station. She drove a white, 1994 Ford Escort, which was registered in her mother's name. She had picked Johnson up at the home of his cousin, Thaddeus Taylor, with whom he had been living. Johnson told Holmes he wanted to "get something," so Holmes stopped at the Shell station. Johnson told her to park by the fence between the station and the Jack-in-the-Box. Johnson got out of the car with Schroeder. Schroeder went inside the store to buy cigarettes. He returned to the car and told Johnson and Holmes he could not buy them because the store clerk had asked him for identification.
Holmes stated Johnson either went through a hole in the fence or jumped the fence to get to the station. Holmes heard three gunshots. Johnson came back to the car and got in the backseat. After they drove away, Johnson told Holmes and Schroeder that he had "tried to rob" the clerk and had shot him. Neither Holmes nor Schroeder believed him. Holmes told the detectives she did not know about the murder until the day of her interview.
Johnson had two girlfriends, Chelsea Ciscoe and Natalie Brand, with whom he spent time after the murder and prior to his arrest. He admitted the murder to both women. Chelsea told detectives that Johnson told her the clerk at the Shell station had reached for Johnson's gun and Johnson "freaked out." Johnson said the clerk was going for the gun and Johnson thought he might be shot. Johnson told Chelsea he "blinked" and the whole incident was over.
Natalie told detectives that Johnson had admitted he killed the clerk. Johnson told Natalie that he went to rob the clerk, but he did not mean to shoot and kill him. The clerk had grabbed for the gun, Johnson had been scared, and he fired the gun. Johnson told Natalie that he had gone to do the robbery because his uncle with whom he had been living had kicked him out of the house. Natalie recanted her statements at trial.
Detectives searched the bedroom Johnson shared with his cousin, Thaddeus Taylor. Thaddeus directed detectives to a speaker box. Inside, detectives found a Beretta model 84, nine millimeter handgun.*fn3 There was a live round inside the chamber and nine live rounds in the magazine. Detectives also found a box of Remington .380-caliber ammunition from Big 5. Inside the box were 44 .380-caliber round-nose bullets and three .380-caliber hollow-point bullets. The box had empty spaces for three bullets.
At the sheriff's station, Thaddeus's father, Fred Taylor, viewed still photographs from the Shell station surveillance videotape and also the surveillance video. He identified Johnson as the person depicted in the surveillance photos.
Thaddeus told detectives the person depicted in the still photos resembled Johnson, and Johnson had a hat and sweatshirt like the person in the video wore. Thaddeus began to cry when he saw the surveillance video. He told the detectives the person in the video looked like Johnson, and he was pretty sure it was Johnson.
Thaddeus testified that Johnson first showed him a gun after Johnson returned from a trip to Los Angeles. Thaddeus saw the gun maybe one or two more times. The gun was kept in the bedroom in a speaker box connected to the computer. Thaddeus had never fired the gun.
Immediately prior to his arrest, Johnson called his Uncle Fred. Fred encouraged Johnson to turn himself in. Johnson told Fred that he had "shot someone Thursday night." Johnson then surrendered himself to authorities.
Johnson gave a statement to detectives in which he admitted shooting Chetty, shooting at Rui Mar in the uncharged Roseville robbery, and committing the other robberies, including the robbery at the Valero/Arco station against Thomas Claussen. The trial court suppressed Johnson's confession on Miranda grounds.
A forensic specialist determined the two .380 caliber casings and one .380 caliber bullet recovered from the uncharged Roseville robbery scene, and the .380 caliber casings and two .380 caliber bullets recovered from the Shell station murder scene, were all discharged from the Beretta nine millimeter handgun found in Thaddeus's and Johnson's bedroom.
We provide additional facts below as needed.
I. Suggestiveness of Identification ...