The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
Petitioner, Orlando DeLaTorre, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, barely fourteen years old at the time of the underlying offense, is currently serving a maximum sentence of fifty years to life plus three additional consecutive indeterminate life sentences in prison after a jury convicted him on one count of first degree murder, three counts of attempted murder, and other related offenses. Petitioner raises five claims in this federal habeas petition; specifically: (1) he did not receive an adequate Miranda admonishment and did not waive his Miranda rights before making statements to the police which were used against him a trial ("Claim I"); (2) his statements to the police were involuntary and a result of coercion ("Claim II"); (3) there was insufficient evidence for the jury to find Petitioner guilty of first degree murder and premeditated attempted murder ("Claim III"); (4) the jury instructions removed a valid defense and removed consideration of an element of the crime, impermissibly lowering the prosecution's burden of proof ("Claim IV"); and, (5) the imposed sentence is cruel and unusual ("Claim V"). Both Petitioner and Respondent consented to the jurisdiction of a United States Magistrate Judge in this case. Docket No. 4, 14. For the reasons stated herein, the federal habeas petition is denied.
I. FACTUAL BACKGROUND*fn1
The facts of this case are all too common. A gang member "disrespects" a rival gang member, threats are made, a weapon is retrieved, and someone is needlessly killed over mere words. As a consequence of misguided bravado, defendant Orlando Delatorre--who was 14 years old when the killing occurred but was tried as an adult--will likely spend the rest of his life in prison for aiding and abetting the murder of Adrian Cortez. . . .
Some of the victims and co-defendants have the same last name. To avoid confusion, we will initially refer to them by their first and last names and thereafter use their first names only.
In October 2004, defendant lived across the street from Vanessa Ramirez. Vanessa and defendant were both Sureno gang members. Vanessa's cousin, Adrian Cortez, was a member of the rival Norteno gang.
On the night of October 2, 2004, Adrian spoke with Vanessa on the sidewalk by her residence. Adrian was accompanied by Albert Blanco, Isael Teran, and Gustavo Teran. Adrian and Gustavo were Nortenos, and Albert and Isael associated with the gang. According to Vanessa, Adrian's companions said disrespectful things to her. Defendant heard the exchange, came out of his apartment onto the balcony, and exchanged insults with his gang rivals. They used words like "scrap," which is disrespectful of Surenos. Defendant called them "buster," which is disrespectful of Nortenos. Defendant challenged them to fight and threatened to kill Isael. Adrian, Gustavo, Albert, and Isael began to leave but continued arguing with defendant as they walked to Adrian's apartment nearby.
Defendant went back inside his apartment, telephoned David Villanueva, and asked him to come over with his gun. Defendant came back outside carrying a machete, walked down to his driveway, and told her his "homies" were coming with a gun and it would not be his fault if her cousin got "blasted."
Adrian returned with his friends, and the argument continued. David and Larry Villanueva arrived in a car with at least one other male, and they joined the fray. According to Vanessa, it looked as though there might be a fight. David had a rifle, and Larry had two bottles in his hands. Adrian's group picked up some rocks. Defendant told David to shoot or "kill 'em," and David fired some shots, two of which hit 16-year-old Adrian in the chest and killed him. David fired more shots as he moved toward Albert, Isael, and Gustavo, who were fleeing. Defendant and the Villanuevas then drove away in their car.
Two days later, on October 4, 2004, two undercover detectives investigating the murder saw a car matching the description of the one involved in the shooting. Larry, defendant, and two other males were in the car. The detectives followed the car to Larry's residence, where Larry went inside and returned with something in a blanket and placed it in the trunk. When the four men drove off, uniformed officers stopped the car. A loaded .357 caliber handgun and sawed-off shotgun were wrapped in a blanket in the trunk. Defendant was arrested and transported to the Lodi police station. Detectives Brucia and Kermgard interviewed defendant after his arrest. Defendant told them he knew the concealed weapons were in the car when he was arrested. He admitted that he was a Sureno and that David and Larry were his gang friends. On the night of the shooting, defendant knew that David was going to shoot Adrian, who was a Norteno. Adrian and his Norteno friends had been disrespecting defendant's sister, so he called David and asked him to bring his gun. Defendant admitted that he told David to "kill 'em" or "shoot 'em," meaning Adrian and the other Nortenos. According to defendant, he wanted David to shoot any Norteno. Detective Brucia testified as a gang expert and explained that the crimes were committed during a classic clash between members of rival gangs and that defendant committed the crimes on behalf of the Sureno gang. Detective Brucia was not aware of any other felonious activities by defendant, who was 14 years old when the crimes were committed.
Defense Defendant testified he had been a Sureno for about a year at the time of the shooting. On the night of October 2, 2004, he heard arguing outside where his sisters were playing. Thinking they might be in trouble, he went outside and saw Adrian and his friends shouting insults. Defendant shouted back then went inside, called David, and asked him to bring his gun. Defendant asserted he did not want to shoot or kill anyone; he just wanted to scare off Adrian and his companions. When defendant went back outside, Adrian and his crew challenged him to a fight. Vanessa persuaded Adrian to leave with his friends, but they returned. Defendant, who claimed he did not own a machete, picked up a stick, and Vanessa pulled out a knife. David arrived with a rifle. When Adrian and his friends picked up rocks, defendant told David to "shoot 'em." Adrian had a rock the size of defendant's head, and defendant was afraid of being hit. Defendant ran to the car when he heard the shots.
Defendant admitted he knew there were guns in the car when he was arrested two days later. He stated, however, he did not learn about the guns until the officers stopped the car, at which point Larry told him there were guns in the trunk.
II. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted).
"Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).
III. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner argues that his statements to police should not have been admitted at trial because he did not receive a valid Miranda admonishment and he did not make a knowing and intelligent waiver of his rights under Miranda. Specifically, Petitioner finds fault with the interrogating detective's admonition that anything Petitioner said "may" be used against him in court, rather than "would" be used against him, that the admonition only informed Petitioner of his right to "the presence of an attorney before and during" interrogation and not of his right to consult with that attorney, and that he was not informed that the real reason he was being interrogated was in relation to a murder investigation. Petitioner also contends that the prosecution failed to meet their high burden of proving that Petitioner had validly waived his rights under Miranda.
In ruling on Petitioner's claim on direct appeal, the California Court of Appeal stated as follows:
Defendant contends that he did not receive adequate Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (hereafter Miranda), that he did not waive his Miranda rights, and that his incriminating statements to the police were involuntary. Thus, according to defendant, the trial court erred in denying his motion to exclude these statements. Not so.
A Miranda waiver must be knowing, intelligent, and voluntary. (Colorado v. Spring (1987) 479 U.S. 564, 573 [93 L.Ed.2d 954, 965].) There are two distinct dimensions to this requirement: "'First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.'" (Ibid., quoting Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410, 421].)
We independently review the totality of the circumstances to determine whether the prosecution has met its burden and proved that the statements were voluntary. (Arizona v. Fulminante (1991) 499 U.S. 279, 285-286 [113 L.Ed.2d 302, 315]; People v. Thompson (1990) 50 Cal.3d 134, 166, disapproved on other grounds in Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829.) In making this determination, we consider factors such as the length of the interrogation, its location, its continuity, and the defendant's sophistication, education, physical condition, and emotional state. (People v. Williams (1997) 16 Cal.4th 635, 660; In re Shawn D . (1993) 20 Cal.App.4th 200, 209.) "[A]ny factual findings by the trial court as to the circumstances surrounding an admission or confession, including '"the characteristics of the accused and the details of the interrogation" [citation],' are subject to review under the deferential substantial evidence standard. [Citation.]" ( People v. Williams, supra, at p. 660.)
Here, Detectives Brucia and Kermgard interviewed defendant. They asked a few preliminary questions about his age and grade in school, and then informed him that he had been arrested for carrying a loaded concealed weapon. The detectives explained that they wanted to discuss the matter but first needed to advise him of his rights, as follows: "You have the right to remain silent. Anything you say may be used against you in court. [¶] You have a right to the presence of an attorney before and during any questioning. If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want. [¶] Do you understand those rights?"
Defendant nodded that he understood. After a brief pause, one of the detectives asked defendant: "You want to tell me what happened today and kind of how you became involved in that car and getting arrested and stuff today?" Defendant indicated that he did not understand the question but freely answered the questions that followed. A short time later, the detectives began to discuss Adrian's murder. They eventually obtained defendant's statement that he was a gang member who had summoned David, a fellow gang member, to bring a gun to shoot the Nortenos because "they were disrespecting [defendant's] house." He urged David to "kill 'em" because he wanted any Norteno shot.
In defendant's view, the Miranda advisement was inadequate because, rather than being advised that his statements can and will be used against him in court, he was told his statements may be used against him; furthermore, he was not told of the right to consult with counsel prior to being questioned, only to the right to the presence of counsel prior to questioning. The contention fails. Miranda warnings "are 'prophylactic' [citation] and need not be presented in any particular formulation or 'talismanic incantation.' [Citation.] The essential inquiry is simply whether the warnings reasonably '"[c]onvey to [a suspect] his rights as required by Miranda."' [Citation.]" (People v. Wash (1993) 6 Cal.4th 215, 236-237.)
The advisement that any statements may be used against him reasonably conveyed to defendant that his statements could be used against him. And notification that he had the right to the presence of an attorney free of charge prior to questioning reasonably conveyed that he had the right to consult with an attorney before answering the detectives' questions. Indeed, Miranda summarized its holding as follows: "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Miranda, supra, 384 U.S. at p. 444 [16 L.Ed.2d at pp. 706-707], italics added.) Thus, the warnings given to defendant "reasonably conveyed" his essential Miranda rights.
The circumstances also support the trial court's finding that defendant waived his Miranda rights. "[A]n express wavier [of Miranda rights] is not required where a defendant's actions make clear that a waiver is intended." (People v. Whitson (1998) 17 Cal.4th 229, 250; North Carolina v. Butler (1979) 441 U.S. 369, 373 [60 L.Ed.2d 286, 292] ["waiver can be clearly inferred from the actions and words of the person interrogated"].) A suspect's indication he understood the Miranda advisement, and his subsequent responses to questions, demonstrate a knowing and intelligent agreement to speak with authorities. (People v. Whitson, supra, at pp. 247-250 [defendant's willingness to speak with the police readily apparent from his responses]; People v. Medina (1995) 11 Cal.4th 694, 752 [express statement of waiver not required when defendant was read his rights and thereafter made a statement]; People v. Sully (1991) 53 Cal.3d 1195, 1233 [implied waiver found when suspect was advised of his rights, said that he understood them, and then gave a statement].)
Defendant's waiver of his Miranda rights can be implied from the fact that, after nodding affirmatively indicating he understood his rights, and after a pause during which there was ample time for him to choose to refuse to speak to the detectives or to choose to request an attorney, defendant answered the detectives' questions. Defendant argues there is no basis to imply a waiver because he was an unsophisticated minor, was not very bright intellectually, and was tired after being in jail for five hours before questioning. But neither a low I.Q. nor any particular age of minority is a proper basis to assume his inability to voluntarily waive Miranda rights. (People v. Lewis (2001) 26 Cal.4th 334, 384 [rejecting the claim that a 13 year old lacked capacity to waive Miranda rights]; In re Charles P. (1982) 134 Cal.App.3d 768, 772 [upholding waiver of Miranda rights by a 12 year old]; see also In re James B. (2003) 109 Cal.App.4th 862, 873 [waiver of Miranda rights by a 12 year old].) Nor is there any evidence defendant was sleepy or exhausted when the detectives questioned him at 7:23 p.m. Defendant's demeanor during questioning disclosed that he was alert and coherent, although concerned about his situation. The fact that defendant was able to respond to the detectives' questions in a meaningful way demonstrated his education and age were not impediments to his understanding and waiving his Miranda rights.
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that certain warnings must be given before a suspect's statements made during custodial interrogation can be admitted in evidence. Dickerson v. United States, 530 U.S. 428, 431 (2000) (citing Miranda, 384 U.S. 436). "These warnings (which have come to be known colloquially as 'Miranda rights') are: a suspect '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.'" Id. at 435 (quoting Miranda, 384 U.S. at 479). However, "no talismanic incantation [is] required to satisfy [Miranda's] strictures," California v. Prysock, 453 U.S. 355, 359 (1981), and the Supreme Court "has never insisted that Miranda warnings be given in the exact form described in that decision," Duckworth v. Eagan, 492 U.S. 195, 202 (1989). In reviewing the adequacy of a set of Miranda warnings, "[t]he inquiry is simply whether the warnings reasonably 'conve[y] to [a suspect] his rights as required by Miranda.'" Id. at 203 (quoting Prysock, 453 U.S. at 361 (second and third alterations in original)).
Not only must the suspect be informed of his Miranda rights, the suspect must also waive those rights before any statement he makes will be admissible at trial. Miranda, 384 U.S. at 436. A Miranda waiver must be knowing, intelligent, and voluntary. Colorado v. Spring, 479 U.S. 564, 573 (1987). This inquiry "has two distinct dimensions." Moran v. Burbine, 475 U.S. 412, 421 (1986).
First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Such a waiver, however, does not need to be explicit. North Carolina v. Butler, 441 U.S. 369, 373 (1979) ("An express written or oral statement of waiver . . . is not inevitably either necessary or sufficient to establish waiver."); see also Berghuis v. Thompkins, 560 U.S. __, 130 S.Ct. 2250, 2261-62, 176 L.Ed.2d 1098 (2010). A waiver of Miranda rights may be implied through "the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver." Butler, 441 U.S. at 373. "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." Thompkins, 130 S.Ct. at 2262.*fn2 "[T]he question of waiver must be determined on 'the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" Butler, 441 U.S. at 374-65 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (other citations omitted).
This "totality of the circumstances" approach to determining waiver is equally applicable when the suspect is a juvenile. Fare, 442 U.S. at 725. "This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." Id. (citing Butler, 441 U.S. 369); see also Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (the characteristics of the accused can include the suspect's age, education, and intelligence); Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (experience with law enforcement is another factor to consider). The Supreme Court, however, "has emphasized that admissions and confessions of juveniles require special caution." In re Gault, 387 U.S. 1, 45 (1967); see also Haley v. Ohio, 332 U.S. 596, 599-600 (1948); Doody v. Ryan, __ F.3d __, 2011 WL 1663551, at *18-19 (9th Cir. 2011).
Petitioner's challenges to the particular incantation of the Miranda warnings he received amount to distinctions without a difference. Police interrogating a suspect cannot make a guarantee that a suspect's statements will be used in court. Perhaps the suspect's statement will convince the authorities that the suspect is innocent of the crime. Perhaps the suspect will later plead guilty and his statement will never be used to convict him before a jury of his peers. Miranda only requires authorities performing a custodial interrogation of a suspect to inform the suspect of the possibility that his or her statements could be admitted as evidence in court. See Miranda, 384 U.S. at 479 (suspect must be informed "that anything he says can be used against him in a court of law" (emphasis added)); id. at 444 (Summarizing the Court's holding and stating that prior to questioning a suspect must be informed "that any statement he does make may be used as evidence against him." (emphasis added)); see also Spring, 497 U.S. at 574 (The Miranda warnings include "the critical advice that whatever [the suspect] chooses to say may be used as evidence against him." (emphasis added)). The California Court of Appeal's determination that Petitioner was adequately informed of the possibility that anything he said to the detectives could later be used against him in court was objectively reasonable.
Petitioner's challenge to the Miranda warning on the basis that it did not inform him of his right to consult with his attorney is equally unavailing. Petitioner was warned that he had "a right to the presence of an attorney before and during any questioning." Clerk's Tr. at 808. Even a fourteen-year-old would understand that this encompassed more than a right to have an attorney sit next to him before and during questioning, without the ability to communicate with the attorney or for the attorney to act on your behalf. The presence of an attorney necessarily implies the counsel of that attorney. While Miranda did hold "an individual held for interrogation must be clearly informed that he has a right to consult with a lawyer and to have the lawyer with him during interrogation," Miranda, 384 U.S. at 471-72 (emphasis added), this can reasonably be interpreted as a statement that the suspect must be warned of his right to the presence of an attorney before questioning. One cannot contemporaneously answer a question from an officer and obtain advice from counsel, the right to consult with an attorney means the right to the presence of an attorney before questioning. Indeed, in other portions of the Miranda opinion the court refers only to the presence of an attorney, id. at 479 (suspect "has the right to the presence of an attorney"); id. at 444 (same); see also Moran v. Burbine, 475 U.S. 412, 420 (1986) (Miranda imposes an obligation on officers to inform a suspect of his right to "'have counsel present . . . if [he] so desires'" (quoting Miranda, 384 U.S. at 468-70)), and the Court found it was the presence of an attorney that sufficiently protected a suspect's rights, Miranda, 384 U.S. at 456 (the presence of counsel is an adequate protective device); see also id. at 469-70. The California Court of Appeal reached a reasonable conclusion when it determined that the detective's warning to Petitioner reasonably conveyed to Petitioner that he had a right to counsel before and during any questioning.
Petitioner also claims that he did not validly waive his Miranda rights. After petitioner was read his Miranda rights, the detective asked: "Do you understand those rights?" Petitioner nodded that he understood. Clerk's Tr. at 809. Petitioner then went on to answer the detectives' questions without asserting his right to remain silent or asking for an attorney. In the course of the interrogation, in which Petitioner made several incriminating statements, Petitioner never indicated that he did not understand a question. Indeed, a review of the transcript leaves one with the impression that Petitioner was able to converse with the detectives in a manner that is not readily distinguishable from an average adult under similar circumstances. But see Gallegos v. Colorado, 370 U.S. 49, 54 (1962) ("[A] 14-year-old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police. . . . He cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions."). While Petitioner claims that he is of limited education, receiving exclusively Fs on his report card, the Court of Appeal aptly concluded "[t]he fact that defendant was able to respond to the detectives' questions in a meaningful way demonstrated his education and age were not impediments to his understanding and waiving his Miranda rights." Slip Op. at 6. As the trial judge noted with regard to Petitioner during an evidentiary hearing on Petitioner's motion to suppress: "He's smart, he just didn't apply himself." Rep.'s Tr. at 32; see also id. at 54. Furthermore, the trial court concluded after viewing the video of the interrogation that Petitioner was alert throughout the questioning, did not appear to be tired, to have any mental disability or defect, or be under the influence of alcohol or drugs, and that the detectives were not deceptive and the information they gave Petitioner was accurate. Id. at 55.
Viewing the totality of the circumstances, everything except Petitioner's young age suggests Petitioner made a knowing, voluntary, and intelligent waiver of his Miranda rights. A suspect's age, alone, is not enough to invalidate a waiver of Miranda. Fare, 442 U.S. at 725. Petitioner was clearly informed of his Miranda rights, nodded that he understood them, yet chose to make a statement to the police.
Additionally, Petitioner's assertion that his statement must be suppressed because he was only told he was being questioned with regard to some guns which were found in the vehicle he was arrested in, and not that he was being questioned with regard to a murder investigation, lacks merit. In Colorado v. Spring, the Supreme Court held "that a suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege." 479 U.S. at 577. The California Court of Appeal reached a reasonable conclusion under controlling Supreme Court precedent when it determined, under the totality of the circumstances, Petitioner had validly waived his Miranda rights. As such, Petitioner is not entitled to habeas relief on this claim.
In Claim II, Petitioner argues that his statement to police should have been suppressed because the statement was involuntary and a result of coercion, in violation of due process. Specifically, Petitioner alleges the detectives who interrogated him implied that if he told the truth he would not be charged with murder and the detectives coerced Petitioner into speaking by asking him to think what his mother would think if he were charged with murder.
With regard to this Claim, the California Court of Appeal determined as follows:
We conclude that the videotape of the interview and the totality of the circumstances show defendant's statements were voluntary and uncoerced. During the interview, which was not lengthy, the detectives were not overbearing or intimidating. They made sure defendant had been fed and treated him in a manner appropriate for a boy of his age. Defendant understood their questions and answered them coherently. In determining voluntariness, the critical issue is "whether the defendant's 'will was overborne at the time he confessed.'" (People v. Maury (2003) 30 Cal.4th 342, 404; see also, e.g., In re Shawn D., supra, 20 Cal.App.4th at p. 208.) It was not.
Defendant disagrees with this assessment and argues the detectives impermissibly made an implied promise that if he told the truth, he would not be prosecuted for murder. He relies on specific portions of the interview which, when viewed in context, do not support his claim.
During the interview, one of the detectives said: "I don't think that you want to be involved in a homicide investigation. I already know that you were out there when Adrian was shot so don't tell me that you weren't there. [¶] You are 14 years old. You do not want to spend the rest of your life in jail or prison or CYA or wherever because you are part of this. [¶] Now is the time to start distancing yourself from who I already know pulled the trigger." Defendant asked why he was being questioned. The detective replied: "Because people are putting you there and that makes you involved. It makes you involved in conspiracy to commit murder. And that, basically-conspiracy to commit murder is basically the same as committing murder. [¶] If you weren't part of the planning of that homicide or a part of the commission of that homicide, there is no reason for you to go to prison for the rest of your life. Just being there, I mean, don't get me wrong, being there is a problem, but it's a much better problem to have to deal with than being part of a homicide."
After telling defendant that David had been arrested, the detective stated: "Whether anyone else gets charged with murder is based on basically how honest they are and how forthcoming they are with me when they sit in that chair. [¶] I already know that he shot and killed Adrian. You don't need to compound your problems by sitting here and trying to protect him or lying to me because that's not going to help you. [¶] You got to think about Adrian's family. You got to think about the guy that was killed, that family. You got to think about yourself, your family, your mom. Do you think your mom wants me to call her and tell her that you were arrested for murder tonight?"
The detective informed defendant that others had placed defendant at the scene. He explained that if defendant is "just standing out there and shit breaks out around you and you didn't know anything about it, that's one thing. But if you are part of it, if you are out there yelling, screaming, telling someone to get a gun, telling them to shoot him, something like that, yeah, that's a lot different. But I don't think you were actually out there yelling, shoot em, shoot em. [¶] Am I right?"
Defendant nodded and the detective replied: "I didn't think so. You're 14 years old. You got caught up in the wrong place at the wrong time, didn't you?" At that point, defendant said that he was there but did not know David was going to shoot anyone. The detective later told defendant: "You don't want to sit here and lie to me and tell me that you don't know what happened when other people have already told me what happened. You don't want to drag yourself into this. When you lie to me, that means that you become part of the conspiracy and that's when you get arrested for conspiracy to commit murder. [¶] Like I said, I don't think you want to be here for that. I don't think that's what you did. But if you sit here and lie to me, then it makes me think that you were part of it." Soon thereafter, defendant revealed that he had called David to bring the gun and, when David arrived, defendant told him "kill 'em," meaning Adrian and his friends. "'[W]here a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law.'" (People v. Williams, supra, 16 Cal.4th at p. 660.) But "investigating officers are not precluded from discussing any 'advantage' or other consequence that will 'naturally accrue' in the event the accused speaks truthfully about the crime. [Citation.] The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. [Citations.]" (People v. Ray (1996) 13 Cal.4th 313, 340.)
Here, there is no evidence that a promise of leniency prompted defendant's confession. Rather, the detective's comments advised defendant that if he lied to protect David or others involved in the murder, defendant could be charged with conspiracy to commit murder; thus, he should be honest to avoid this fate. As the detective stated, "You don't want to drag yourself into this." But the detective also advised him that if he was actually involved in the murder and told someone to get a gun and shoot the victims, "that's a lot different." Viewed in context, the detective's statements conveyed that liars who protect participants in the murder could be charged with conspiracy to commit murder, not that participants will not be prosecuted if they are honest about their involvement.
Under the totality of the circumstances, defendant's statements were voluntary, and the trial court properly allowed them to be introduced into evidence.
In determining the voluntariness of a confession, a court "examines whether a defendant's will was overborne by the circumstances surrounding the giving of a confession." Dickerson, 530 U.S. at 434 (citation and internal quotation marks omitted). "The due process test takes into consideration the totality of all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation." Id. (citations and internal quotation marks omitted). It is not sufficient for a court to consider the circumstances in isolation. Instead, "all the circumstances attendant upon the confession must be taken into account." Reck v. Pate, 367 U.S. 433, 440 (1961) (citations omitted).
As the Supreme Court has observed, "[t]he application of these principles involves close scrutiny of the facts of individual cases." Gallegos, 370 U.S. at 52. "The length of the questioning, the use of fear to break a suspect, [and] the youth of the accused are illustrative of the circumstances on which cases of this kind turn." Id. (citations omitted). Thus, we ask: "Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process." Schneckloth, 412 U.S. at 225-26 (citation omitted).
The California Court of Appeal reached a reasonable conclusion when it determined Petitioner's statement was not a result of coercion. As the court noted, viewing the detectives' statements in light if the entire interrogation, the detectives did not make any promises of leniency to Petitioner. The detectives accurately informed Petitioner that if he lied to protect those involved in the murder he could be involved in a conspiracy. They also informed him that, although they did not think he was involved in the murder, he could face serious consequences: "If you were just standing out there and shit breaks out around you and you didn't know anything about it, that's one thing. But if you are part of it, if you are out there yelling, screaming, telling someone to get a gun, telling them to shoot him, something like that, yeah, that's a lot different. But I don't think you were actually out there yelling shoot em, shoot em." Clerk's Tr. at 820. As it turns out, Petitioner later admitted to doing just that: calling his friend David and telling him to bring a gun, id. at 826, and, once David arrived, telling David to "kill em." id. at 828. As with the voluntariness of Petitioner's Miranda waiver, see Claim I, supra, the only factor that weighs in favor of a finding that Petitioner's statements were involuntary is Petitioner's age. All other factors indicate that Petitioner's statement was made voluntarily. As such, the Court of Appeal's determination was reasonable and Petitioner is not entitled to habeas relief on Claim II.
In his third claim for relief, Petitioner claims that his convictions for first degree murder and three counts of attempted murder were based on insufficient evidence. Specifically, Petitioner alleges that there exists insufficient evidence in the record of his intent to kill the victims and insufficient evidence that his actions were premeditated and deliberate. In ruling on this claim, the California Court of Appeal stated as follows:
We next reject defendant's argument that we must reverse the murder and attempted murder convictions because there was insufficient evidence that he harbored the requisite intent to kill the victims.
Attempted murder requires the specific intent to kill. (People v. Lee (2003) 31 Cal.4th 613, 623.) "First degree murder may be found when the prosecution proves beyond a reasonable doubt that the actor killed with malice aforethought, intent to kill, premeditation, and deliberation." (People v. Memro (1995) 11 Cal.4th 786, 862; see also Pen.Code, §§ 187, 189.) Intent to kill is rarely proved by direct evidence; rather, it must usually be inferred from circumstantial evidence. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208.)
Defendant contends he simply told David to shoot the victims, which is not the same as urging him to kill them. Defendant fails to give due deference to the relevant standard of review. "'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation .] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' [Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In his statement to the detectives, defendant admitted that on the night of the murder, he summoned David, a fellow gang member, to bring a gun because Adrian and his friends had been disrespecting defendant's sister and "disrespecting [defendant's] house." After calling David, defendant told Vanessa his "homies" were coming with a gun and it would not be defendant's fault if Adrian got "blasted." Defendant threatened to kill Isael. He told the detectives that after David arrived, defendant urged David to "kill 'em" and "shoot 'em," meaning Adrian and his friends, because defendant wanted any Norteno shot. In other words, he intended to kill them all. This is ample evidence that defendant harbored the specific intent to kill Adrian, Gustavo, Isael, and Albert. Defendant appears to argue that People v. Bland (2002) 28 Cal .4th 313 (hereafter Bland ) dictates a different result with respect to the three attempted murder counts because there is no evidence that defendant specifically intended to kill Albert, Gustavo, and Isael after Adrian was killed.
Bland held that attempted murder requires the specific "inten[t] to kill the alleged victim, not someone else. The defendant's mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others." (Bland, supra, 28 Cal.4th at p. 328.) But Bland also held that there could be a concurrent intent such that "a person who shoots at a group of people [may still] be punished for the actions towards everyone in the group even if that person primarily targeted only one of them." (Id. at p. 329.) Concurrent intent can be inferred " 'when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity,' " which is referred to as a "kill zone." (Ibid.)
Defendant intimates Adrian was the primary target and there is no evidence that defendant or David had the intent to kill Gustavo, Isael, and Albert after Adrian was shot. In his view, Adrian's companions were scattering and out of harm's way when David continued shooting, which means David was intending only to drive them off or to commit an assault.
"Bland did not suggest that the 'kill zone' was the only way to establish concurrent intent to kill more than one person in a fired-upon group. [¶] '"The act of firing toward a victim at a close, but not point blank, range 'in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill. . . .'" '[Citation.]" (People v. Campos (2007) 156 Cal.App.4th 1228, 1242.) That is one interpretation of what occurred in this case. Defendant wanted Nortenos killed and urged the gun-toting David to "kill 'em," meaning Adrian, Gustavo, Isael, and Albert. Defendant did not say "kill Adrian" or "kill one of them"; he said "kill 'em" and unleashed David and his rifle on all four of the Nortenos, who were armed with only rocks. This supports an inference of an intent to kill all four men.
In defendant's reply brief, he observes the People failed to respond to defendant's argument that there is insufficient evidence of premeditation and deliberation to support the murder and attempted murder counts. However, defendant's three-page argument in his opening brief does not include any analysis of the minimum evidence required to support a finding of premeditation and deliberation. It discusses only the lack of an intent to kill and merely contains a throw away line at the close of his argument "that an intent to kill and premeditation and deliberation are not supported by the evidence." Therefore, the argument is forfeited because of defendant's failure to adequately develop and support it in his opening brief. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [a reviewing court need not discuss claims asserted perfunctorily and insufficiently developed]; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159 [appellate contentions must be supported by analysis]; People v. Baniqued (2000) 85 Cal.App.4th 13, 29 [omissions in opening briefs cannot be rectified in reply briefs].)
In any event, there is ample evidence of premeditation and deliberation. "'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]' "(People v. Koontz (2002) 27 Cal.4th 1041, 1080; accord, People v. Halvorsen (2007) 42 Cal.4th 379, 419.) The processes can occur rapidly, even after an altercation is underway. (People v. Mayfield (1997) 14 Cal.4th 668, 767; People v. Sanchez (1995) 12 Cal.4th 1, 34.)
The types of evidence that typically support a finding of premeditation and deliberation are planning activity, a relationship with the victim or conduct from which a motive can be inferred, and a manner of killing or attempted killing from which a preconceived plan can be inferred. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) However, these categories are not prerequisites; they are guidelines to assist reviewing courts in assessing whether the evidence supports an inference that a killing or attempted killing resulted from pre-existing reflection and a weighing of considerations rather than an unconsidered or rash impulse. (People v. Sanchez, supra, 12 Cal.4th at pp. 32-33.)
Here, defendant became agitated over the Nortenos' lack of respect, challenged them to fight, and threatened to kill Isael. After the Norteno group left, defendant chose to telephone David and ask him to bring a gun. He then told Vanessa that his "homies" were coming with a gun and indicated Adrian might get "blasted." The Nortenos returned and, when David and Larry arrived armed with a rifle and bottles, the Nortenos armed themselves with rocks. Defendant told David to "kill 'em."
These facts reflect that defendant made a premeditated and deliberate decision to escalate a verbal altercation into a deadly one by instigating David to bring a firearm to the fracas and then urging David to use it in a deadly manner. Substantial evidence supports a finding of premeditation and deliberation.
The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). A petitioner for writ of habeas corpus "faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).
A federal habeas court determines the sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. See Jackson, 443 U.S. at 324 n. 16. Murder is defined by California Law as "the unlawful killing of a human being . . . with malice aforethought." See Cal. Penal Code § 187(a). Murder in the first degree is defined as follows:
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed to primarily penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any action punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.
Cal. Penal Code § 189. "Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." People v. Superior Court, 41 Cal. 4th 1, 7, 58 Cal. Rptr. 3d 421, 157 P.3d 1017 (2007).
Petitioner's statement to the police, which was admitted into evidence through the testimony of one of the interviewing detectives, see Rep.'s Tr. at 778-79, contains ample evidence from which, viewed in the light most favorable to the prosecution, a jury could conclude Petitioner to be guilty of first degree murder and three counts of attempted murder. In pertinent part:
Q: Okay. So when they went to pick you up, what happened? A: He was out there.