APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. (Super. Ct. No. SCS212840)
The opinion of the court was delivered by: McDONALD, Acting P. J.
CERTIFIED FOR PUBLICATION
Affirmed in part, reversed in part and remanded.
Martin Manzo appeals a judgment following his jury conviction of first degree murder (Pen. Code, § 187, subd. (a)),*fn1 discharging a firearm at an occupied vehicle (§ 246), attempted murder (§§ 664, 187), and unlawfully possessing ammunition (§ 12316, subd. (b)(1)). On appeal, Manzo contends: (1) the trial court erred by admitting statements he made to police after he invoked his Fifth Amendment right to remain silent; (2) the trial court erred by admitting prior consistent statements made by the prosecution's primary percipient witness; (3) cumulative error deprived him of his due process right to a fair trial; and (4) the evidence is insufficient to support his section 246 conviction for discharging a firearm at an occupied vehicle.
FACTUAL AND PROCEDURAL BACKGROUND
On August 3, 2007, Jose Valadez and Jose Estrada had been friends for five or six years. They had been together for two or three days, smoking methamphetamine. That afternoon, they were walking near a convenience store in San Ysidro when they saw Manzo driving his white truck. One or two days before, Manzo had tattooed the name of one of Valadez's sisters on Valadez's wrist.*fn2 Valadez flagged Manzo down and asked him whether he could tattoo the name of his other sister on his other wrist. When Manzo agreed, they got in his truck.*fn3 Manzo drove the truck while Estrada sat in the middle and Valadez sat on the passenger side of the front seat. Manzo drove to his apartment in Chula Vista and parked the truck. He told Valadez and Estrada he was going to get his tattoo gun and went inside. Manzo returned carrying a small, dark, zip-up bag, which he placed behind the driver's seat. He got in the truck, drove to the back corner of the apartment complex, and parked the truck.
Manzo got out of the truck, stood next to the driver's seat with the door open, and pulled out a gun from his waistband. Smiling, Manzo placed the gun on the seat. Valadez, who was leaning forward replacing a shoelace, asked Manzo whether he could see the gun. Manzo picked up the gun, extended his right arm, and pointed the gun at Valadez and Estrada. Manzo pulled the gun's trigger, but it did not fire. He pulled out the gun's magazine (or clip), pulled out the bullet, and manually loaded the gun. Manzo pointed the gun at Valadez and Estrada and pulled the trigger again. The gun fired and its bullet struck Valadez in his left cheek, causing profuse bleeding. With an "evil trippy face," Manzo then pointed the gun at Estrada and pulled the trigger, but the gun did not fire.
At gunpoint, Manzo ordered Estrada to push Valadez out the truck's passenger side front door. Estrada opened the door and Valadez fell out onto the ground. Manzo then directed Estrada to get Valadez's cell phone. When Estrada refused, Manzo pointed the gun at him and Estrada then took a cell phone from Valadez's pocket.*fn4
Manzo drove away with Estrada and stopped at a construction site, where he told Estrada to take off his blood-soaked shirt. After Estrada took off his shirt, Manzo held the gun to his head and pulled the trigger. However, the gun did not fire. Manzo attempted to load the gun with a different cartridge, but the gun still did not fire. Manzo then laughed and drove away with Estrada. Manzo stopped a few more times, worked on the gun, and tried to shoot Estrada. However, the gun still did not fire. Manzo ultimately drove to a San Ysidro motel and told Estrada to get a room. When Estrada refused to do so, Manzo got out of the truck and sipped some beer. He then got back in the truck and drove toward the exit of the parking lot.
At about 8:00 p.m., a police officer blocked the motel parking lot exit with his patrol car. Manzo jumped out of his truck and ran away. Officers apprehended him as he tried to jump over a fence. After subduing and arresting Manzo, officers found six 9-millimeter cartridges in his pant's pocket. One of the cartridges had a mark on its primer typical of a firing pin impression.
Estrada remained in the passenger seat of Manzo's truck and was arrested without resistance. Estrada was not wearing a shirt. Officers found a knife in his pocket. He had blood spatter on the right leg of his shorts, blood transfer stains on his right lower leg, and blood saturation stains on the right buttocks of his shorts and underwear. He also had blood on the right side of his torso. The blood from Estrada's clothing matched Valadez's DNA profile.
David Garber, a Chula Vista Police forensic specialist, found a soft-sided lunch cooler in the bed of Manzo's truck. The lunch cooler contained a disassembled 1940 Russian Tokarev pistol. The cooler also contained a cell phone with a bloodstain that matched Valadez's DNA profile. The cooler also contained a bandana with Manzo's DNA on it.
Garber also found the pistol's slide release near the truck's gas pedal on the driver's side floorboard. The battery compartment of a black Motorola Boost cell phone (apparently found on or near Manzo or elsewhere at the scene) contained 10 bindles of methamphetamine and a plastic baggie with a Rivotrol (a sedative) pill.*fn5 The methamphetamine's street value at that time was between $700 and $1,000 and was in a quantity greater than would be for personal use.
An information charged Manzo with the murder of Valadez (§ 187, subd. (a)), discharging a firearm at an occupied vehicle (§ 246), the attempted murder of Estrada (§§ 664, 187), and unlawfully possessing ammunition (§ 12316, subd. (b)(1)). The information also alleged that in the commission of the first three offenses Manzo personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)). It also alleged that in committing the murder and section 246 offenses Manzo intentionally and personally discharged a firearm, causing great bodily injury and death (§ 12022.53, subd. (d)). It alleged that in committing the section 246 offense Manzo personally inflicted great bodily injury on Valadez (§ 12022.7, subd. (a)). The information alleged that Manzo had suffered three prison prior offenses (§§ 667.5, subd. (b), 668), two prior serious felony convictions (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and two prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, 668).
At trial, the prosecution presented evidence substantially as described above. Furthermore, the prosecution presented the testimony of Steven Campman, M.D., a forensic pathologist who performed the autopsy on Valadez. Campman testified the gunshot wound to the left side of Valadez's face was atypical because there were multiple holes caused by a deformed or fragmented bullet. He retrieved two larger and about a dozen smaller bullet fragments from Valadez's head. Based on the lack of stippling, powder burns, or powder residue on the left side of Valadez's head, Campman concluded that the gun was probably at least two to three feet away from Valadez when he was shot. Campman testified Valadez's injuries were consistent with the gun being about 27 inches from his skin when fired.
Chula Vista Police Detective Eric Nava testified regarding a reenactment of the shooting he and two other detectives conducted using Manzo's Ford F150 truck. They determined that a gun pointed by a person standing in the opened driver's side door toward a passenger leaning slightly forward would be about 27 inches away from that passenger's left cheek. Photographs of the reenactment were admitted in evidence.
Anthony Paul, a firearms expert, testified the gun found in Manzo's truck was a 1940 Russian Tokarev military pistol designed to fire 7.625-millimeter bullets, which are smaller than 9-millimeter bullets. He stated that firing a 9-millimeter bullet through the Tokarev pistol was possible, but it would create a high risk that the pistol would not operate properly (e.g., would not fire or would cause the bullet to fragment). He found that the feed lips of the gun's magazine assembly were irregular and mutilated, which would cause the gun to not operate properly. If the magazine were not working, the gun, however, could be loaded manually. He found a bullet base lodged in the gun's barrel. That base matched the bullet removed from Valadez's head. If a person attempted to fire the gun with the bullet base lodged in its barrel, the gun would misfire. Paul also examined the six 9-millimeter cartridges found in Manzo's pocket. A mark on the primer area of one cartridge showed an attempt had been made to fire it. Three of the cartridges were compressed, which could have been caused by a person attempting to manually load an improperly-sized cartridge into a gun's chamber (e.g., by loading a 9-millimeter cartridge in the Tokarev pistol's barrel with a bullet base lodged in it). If a person attempted to manually load a 9-millimeter cartridge in the pistol with the bullet base lodged in its barrel, the cartridge would not insert completely and the pistol's slide would not shut completely.
Steven Dowell, a criminalist with the Los Angeles County Coroner's Office, testified he analyzed several gunshot residue kits, including samples taken from Manzo's hands, Estrada's hands, Estrada's face, the waistband of Estrada's shorts, the waistband of Estrada's underwear, Valadez's hands, a baseball cap, and parts of the interior of Manzo's truck. Gunshot residue was found on Manzo's hands, Estrada's face, the left waistband of Estrada's shorts, Valadez's right hand, and the baseball cap. No gunshot residue was found on Estrada's hands or underwear. Gunshot residue was found on the driver's side dashboard and inside roof of the truck and on its passenger's side dashboard and inside roof. No gunshot residue was found on the middle dashboard and middle inside roof.
Carolyn Gannett, a criminalist with the San Diego County Sheriff's Crime Lab, testified as a blood spatter expert. She analyzed photographs of Estrada, which showed bloodstains on his torso, arm, and shorts. The bloodstains on his torso could have been contact stains or transfer stains caused by blood contacting his skin (e.g., through a blood-soaked shirt). Estrada's shorts had both spatter stains and transfer stains. The transfer stains were caused by sitting on the blood-saturated seat. His underwear also had a large bloodstain on its right side. Estrada's right leg had stains consistent with Estrada sitting in the middle seat and Valadez sitting to his right in the front passenger's seat. Gannett also visually examined Manzo's truck and analyzed photographs of its interior. She saw blood on the far right side of the passenger's seat near its back and vertical portion. She did not see any blood on the middle seat or driver's seat. She also saw blood on the inside of the passenger's door and a drip pattern on the seat hinge, suggesting the door was shut or nearly shut when Valadez was shot. Blood found above the passenger's door frame showed the door had been opened at some point.
The prosecution presented the testimony of Estrada regarding the incident, as well as video recordings and transcripts of his police interviews. The prosecution also presented the testimony of other percipient witnesses. Deborah Gallegos testified that on the day of the incident she saw Manzo drive his white truck with two passengers and park near her apartment. She said she heard an argument between Manzo and the passenger sitting in the "shotgun" position (presumably the far right side). Manzo then got out of his truck and went into his apartment. Manzo returned to his truck and quickly backed it up into an empty parking stall at the end of her building. She heard a gunshot and went outside. Manzo gave her a "frozen look," jumped into his truck as it was inching forward, and then drove away.
Larry Morgan testified that on the day of the incident he saw Manzo drive into the apartment complex with two passengers. He later heard a "popping sound" and saw Manzo drive away with just one passenger.
John Parquet testified that on the day of the incident he saw two passengers sitting in Manzo's truck, which was parked near Manzo's apartment. When Parquet walked by the truck, the passenger on the right side asked him for a cigarette and Parquet gave him one. He saw Manzo standing outside the front door of his (Manzo's) apartment. Parquet then walked to a convenience store and, on his return, thought he saw someone crouching down next to his red truck while Manzo sat in the driver's seat of his white truck parked next to it. A person ran and got into Manzo's truck and then Manzo drove it away with only one passenger.
Demond Dukes heard a popping sound, looked toward the parking lot, and saw a Hispanic male with a shaved head holding a gun in his left hand. The man was standing outside the open driver's door of Manzo's truck. He could not identify either Manzo or Estrada as the shooter.
After Manzo's arrest, police interviewed him. Manzo denied any involvement in, or any knowledge of, the shooting. He stated that on the day of the incident he picked up "Jose" (i.e., Estrada) at Friend's Market in San Ysidro because he asked for a ride. He denied having any other passengers in his truck that day. After initially denying he drove back to Chula Vista after picking up Estrada in San Ysidro, Manzo later stated he might have gone back to his Chula Vista apartment to check on his girlfriend, but does not remember because he was drunk. He stated he did not know whether there was any blood in his truck because he was drinking. He denied owning or ever shooting a gun. He stated that neither he nor Estrada hurt anyone that day (other than police officers). He denying knowing he had six bullets in his pocket and denied they were his. He stated that when police stopped him, he was taking Estrada back to Friend's Market. He ran because he did not want to get crushed in his truck and the officers were chasing him.
The parties stipulated that Estrada is right-handed and that the white bindles found in the cell phone were methamphetamine. They further stipulated that the murder charge against Estrada was dismissed without prejudice, meaning the charge could be refiled.
In his defense, Manzo presented the testimony of Zoltano E., the son of his girlfriend. On the day of the incident, Zoltano was 11 years old.*fn6 That afternoon, he saw Manzo driving his truck, which then had two passengers, northbound on Broadway in Chula Vista. Later that afternoon, while Zoltano was standing outside a store on Broadway, Manzo pulled his truck over; at that time he had only one passenger, Estrada. Zoltano saw a gun in Estrada's waistband and blood on his hand and leg. He testified Estrada tried to cover the gun with his T-shirt. When Zoltano asked him what happened, Estrada replied he got a cut. Zoltano testified that although he had been with his friend, Michael V., all day, Michael was inside the store when he (Zoltano) saw Manzo and Estrada. Afterward, Zoltano and Michael walked to Zoltano's apartment and saw police officers there.
In rebuttal, the prosecution presented the testimony of Chula Vista Police Officer Naranjo, who said he spoke with Zoltano on his (Zoltano's) arrival at the apartment and determined he had no valuable information. However, after he was allowed to call his mother, Zoltano told Naranjo he wanted to talk to him alone. Zoltano stated "Jose" was a friend of Manzo's and Manzo had tattooed Jose's wrist about a week before. Jose was a passenger in Manzo's truck when he saw them by the store on Broadway about 15 minutes before he (Zoltano) arrived at the apartment. Zoltano stated he saw blood on Jose's hand and a gun tucked in his waistband. He also stated the passenger had "Catalina" tattooed on his wrist.
Chula Vista Detective Pene testified that he interviewed Zoltano at the police station on August 3, 2007. Zoltano told him he saw Manzo's truck only one time that afternoon when Manzo was driving it southbound on Broadway with Valadez and another passenger in it. Zoltano followed the truck as it turned the corner to Flower Street and then only Manzo and Estrada were in the truck. Manzo told Zoltano something like: "Whatever happened, I didn't do it." Zoltano told Pene that before the interview he had spoken with his neighbors, who had told him some details regarding the incident. Pene testified that when Zoltano was first contacted by police at the apartment, he gave them a false name and said Manzo would be driving a Honda.
Michael V., Zoltano's friend, testified he was with Zoltano on August 3, 2007, when they were at the Sand Hustler store, and left together riding skateboards. He never saw Zoltano talk to anyone in a truck.
The jury found Manzo guilty of all four charged offenses and found the firearm allegations true. Manzo admitted the prior conviction allegations. The court imposed a total prison term of 150 years to life, plus a consecutive five-year enhancement. Manzo timely filed a notice of appeal.
Admission of Manzo's Statements to Police
Manzo contends his convictions of murder, discharging a firearm at an occupied vehicle, and attempted murder must be reversed because the trial court erred by admitting statements he made to police after he invoked his Fifth Amendment right to remain silent.
The Fifth Amendment of the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." This provision applies to the states under the Fourteenth Amendment's due process clause. (Malloy v. Hogan (1964) 378 U.S. 1, 8.) The Fifth Amendment right against self-incrimination generally applies to preclude the admission of involuntary pretrial confessions or other incriminating statements made by a defendant during coercive police interrogation. (Dickerson v. United States (2000) 530 U.S. 428, 433-435; Oregon v. Elstad (1985) 470 U.S. 298, 304 (Elstad).) If a defendant's statements were obtained by " 'techniques and methods offensive to due process,' [citation] or under circumstances in which the [defendant] clearly had no opportunity to exercise 'a free and unconstrained will,' [citation] the statements would not be admitted." (Elstad, at p. 304.)
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) sets forth an exclusionary, prophylactic rule that unless certain warnings are given to a defendant, statements made by the defendant during custodial interrogation are presumed involuntary and are generally inadmissible at trial.*fn7 (Miranda, supra, 384 U.S. at pp. 478-479; Elstad, supra, 470 U.S. at pp. 306-307; Tankleff v. Senkowski (2d Cir. 1998) 135 F.3d 235, 242.) "Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda." (Elstad, at p. 307.) Miranda stated that a defendant in custody "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." (Miranda, at p. 479.) "The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." (Id. at p. 444.) After an individual is admonished of his or her Miranda rights, "[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." (Id. at pp. 473-474, italics added, fn. omitted.) "[N]o particular form of words or conduct is necessary on the part of a suspect in order to invoke his or her right to remain silent [citation], and the suspect may invoke this right by any words or conduct reasonably inconsistent with a present willingness to discuss the case freely and completely." (People v. Crittenden (1994) 9 Cal.4th 83, 129.)
However, the United States Supreme Court recently held that a suspect may invoke the right to remain silent only by an unambiguous statement to that effect. (Berghuis v. Thompkins (2010) ___ U.S. ___, ___ [130 S.Ct. 2250, 2260, 2263] (Berghuis).) In Berghuis, the court stated: "Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his ' "right to cut off questioning." ' [Citation.] Here he did neither, so he did not invoke his right to remain silent." (Berghuis, at p. ___ [130 S.Ct. at p. 2260].) It further stated: "If Thompkins wanted to remain silent, he could have said nothing in response to [the police officer's] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation." (Berghuis, at p. ___ [130 S.Ct. at p. 2263].) Accordingly, in the circumstances of Berghuis, the court concluded the defendant's statement to police made after he remained largely silent for almost three hours after receiving a Miranda warning constituted an implied waiver of his right to remain silent.*fn8 (Berghuis, at p. ___ [130 S.Ct. at p. 2263].) Therefore, Berghuis concluded the state court correctly rejected the defendant's Miranda claim that the trial court should have excluded his answer of "yes" to the officer's question whether he prayed to God to forgive him for shooting the victim. (Id. at pp. ___ [130 S.Ct. at pp. 2257, 2263-2264].)
In reviewing a trial court's finding whether a defendant knowingly and intelligently waived his or her Miranda rights, "[w]e must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained." (People v. Boyer (1989) 48 Cal.3d 247, 263, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) "Whether a suspect has invoked his right to silence is a question of fact to be determined in light of all of the circumstances, and the words used must be considered in context." (People v. Peracchi (2001) 86 Cal.App.4th 353, 359-360, fn. omitted.) We apply federal standards in reviewing a defendant's claim that extra-judicial statements were elicited from him or her in violation of Miranda. (Peracchi, at p. 360; People v. Bradford (1997) 14 Cal.4th 1005, 1033.) Extra-judicial statements obtained in violation of Miranda are inadmissible to establish the defendant's guilt. (People v. Sims (1993) 5 Cal.4th 405, 440.) However, the erroneous admission of extra-judicial statements obtained in violation of Miranda is not per se reversible error. (Sims, at p. 447; People v. Johnson (1993) 6 Cal.4th 1, 32-33.) Rather, we apply the harmless error analysis of Chapman v. California (1967) 386 U.S. 18, 24 to determine whether reversal is required. (Sims, at p. 447; Johnson, at pp. 32-33; Peracchi, at p. 363.) Under the Chapman standard, an error is reversible unless it is harmless beyond a reasonable doubt. (Chapman, at p. 24.)
Before trial, Manzo filed an in limine motion to exclude statements he made to police obtained in violation of his Fifth Amendment right to remain silent. Quoting excerpts from the transcript of his August 3, 2007, interview with police, Manzo argued he invoked his right to remain silent after police advised him of his Miranda rights. Shortly after his interview with police began, the following transpired:
"[DETECTIVE] PENE: And I don't think you pulled the trigger. So, let me--you've heard this before. Let ...