Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed. Super. Ct. No.07NF1429
The opinion of the court was delivered by: Aronson, J.
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A jury found defendant Robert DeSylvia guilty of second degree murder (Pen. Code, § 187, subd. (a); all statutory references are to the Penal Code unless otherwise noted) for fatally shooting Cecil Jerome Atkins. The jury also found DeSylvia intentionally discharged a firearm in causing Atkins's death. (§ 12022.53, subd. (d).) DeSylvia contends the trial court erred in admitting certain pretrial statements to investigating police officers and giving Judicial Council of California Criminal Jury Instruction CALCRIM No. 3472, "Right to Self Defense: May Not Be Contrived." For the reasons set forth below, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2007, 72-year old Robert DeSylvia owned and operated Bobby De's Darts and Hobbies, a business located in an Anaheim strip mall. DeSylvia planned to drive his trailer to Florida on April 14. During the first two weeks of April, Atkins performed some repairs on DeSylvia's trailer in preparation for the trip.
On April 13, 2007, surveillance videos from other businesses in the strip mall show Atkins arriving at DeSylvia's shop riding a bike. Atkins initially parked the bike outside the shop, but later moved it inside, and the two men then walked to a bar located a few doors from DeSylvia's business. The two men spent much of the evening in the bar conversing about DeSylvia's impending trip. DeSylvia had been coming to the bar for a few years and knew many of the regular customers. One patron testified DeSylvia refused Atkins's numerous requests to take him on the Florida trip as his mechanic.
The surveillance videos show DeSylvia and Atkins left the bar together in the early morning hours of April 14, 2007. They appeared to be talking and having a good time as they walked back to DeSylvia's shop. Approximately 25 minutes later, Atkins walked out of the shop with his bike, while DeSylvia followed Atkins out to the sidewalk in front of the shop.
The surveillance videos show DeSylvia and Atkins engaging in a heated argument, with both men gesturing wildly and closely confronting each other. After a few minutes of this heated exchange, DeSylvia turned and walked back inside his shop with Atkins following him through the open door. The two men emerged from the shop after a few minutes, continuing their argument in the doorway before they again retreated inside the shop. A few minutes later, Atkins exited the shop and the door closed behind him. He paced around for a moment before picking up his bike as though preparing to leave. Before Atkins could leave, however, DeSylvia opened the door, walked out, and resumed the argument with Atkins. DeSylvia then turned and walked back into his shop with Atkins following him through the open door.
Moments later, DeSylvia called 911 to report he shot Atkins, explaining Atkins came into his shop, demanded money, and threatened to kill DeSylvia with a knife. Anaheim police arrived at DeSylvia's shop and found him still on the phone with the 911 operator. The police officers, with their guns drawn, ordered DeSylvia to exit his shop. Officer Timi Fife handcuffed DeSylvia and handed him off to Officer Justin Whitehead. Fife then went into the shop with several other officers while Whitehead remained with DeSylvia.
While Whitehead patted down DeSylvia for weapons, DeSylvia exclaimed, "'I shot him. I was trying to protect myself.'" Whitehead completed his search without responding.
Fife returned a few minutes later and escorted DeSylvia to her police car so he could sit on the bumper. Fife then placed paper bags over DeSylvia's hands and waited for the forensics team to arrive. Because DeSylvia remained handcuffed, Fife asked him if the handcuffs were too tight.
In response, DeSylvia launched into an explanation of the shooting, claiming he did not want to shoot Atkins, but he had to do it. Fife asked if Atkins was his friend. DeSylvia responded he had seen Atkins around, but Atkins was not his friend. Fife did not ask any further questions, but DeSylvia continued to discuss the shooting.
DeSylvia explained that Atkins was a local transient who attempted to enter DeSylvia's business when he was closing up. DeSylvia claimed Atkins pulled a seven-inch knife on him, prompting DeSylvia to run back inside his shop, close the door, and retrieve his gun. When he returned to the front of the shop with his gun, he found Atkins had entered the shop, but no longer held the knife. According to DeSylvia, Atkins continued to advance toward him, so DeSylvia pointed his gun at Atkins's chest. Undeterred, Atkins continued to approach DeSylvia, stating he did not think DeSylvia would shoot him. DeSylvia explained he shot Atkins because he continued to advance toward him. DeSylvia claimed he did not want to shoot, but felt he was too old to fight Atkins.
Approximately 30 minutes after the police arrived at the scene, the forensic technician swabbed DeSylvia's hands for gunshot residue. Officers then removed DeSylvia's handcuffs. He remained near the police car without handcuffs for approximately 30 minutes as investigators continued to process the scene. At that point, Fife explained to DeSylvia he was not under arrest, but the detectives would like to speak with him about the incident. Fife asked DeSylvia if he would come to the police station to talk with the detectives. DeSylvia responded, "'Yeah. Sure.'" When Fife offered DeSylvia a ride to the police station, DeSylvia opened the backdoor of the police car on his own and voluntarily climbed in. Whitehead and Fife drove DeSylvia to the police station, walked him into an interview room, and waited a few minutes until Detective Robert Blazek arrived.
Blazek conducted three videotaped interviews of DeSylvia between 4:15 and 7:30 a.m. -- one from 4:15 to 5:15 a.m., a second from 6:15 to 6:30 a.m., and a third from 6:30 to 7:30 a.m. At the beginning of the first and second interviews, Blazek explained to DeSylvia he was not under arrest, he could leave at any time, and he did not have to talk to the police. In between the first and second interviews, Blazek asked for DeSylvia's permission to take a blood sample, photographs, and DeSylvia's clothing. DeSylvia granted each of these requests. At the conclusion of the third interview, Blazek arrested DeSylvia for Atkins's murder.
Before trial, DeSylvia moved to exclude all his statements to investigators, claiming officers violated his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The trial court heard the testimony of Fife, Whitehead, and Blazek, and reviewed the video recordings of DeSylvia's three interviews, the audio recording of DeSylvia's 911 call, transcripts of each of these recordings, and a portion of the surveillance videos showing the police arriving at DeSylvia's shop. The trial court admitted DeSylvia's initial statements to Whitehead and Fife at the scene and DeSylvia's statements during the first interview at the police station, but excluded the statements made during the second and third interviews.
As noted above, the jury found DeSylvia guilty of second degree murder and that he intentionally discharged a firearm in causing Atkins's death. The trial court sentenced DeSylvia to 15 years to life on the second degree murder conviction and a consecutive sentence of 25 years to life on ...