(Super. Ct. No. SF108698A)
The opinion of the court was delivered by: Duarte ,j.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On June 21, 2008, defendant Marquis Boner--an 18 year old with no record of violence--shot Rigoberto Galaviz dead, as Galaviz was trying to stop defendant from fleeing from a robbery. Defendant was quickly captured, and confessed to the robbery and to shooting Galaviz. In securing defendant's confession, the interviewing detectives did not tell defendant that Galaviz was dead.
The jury found defendant guilty of murder, robbery, and discharging a firearm from a motor vehicle, and found true a robbery-murder special circumstance and firearm allegations. (Pen. Code, §§ 187, 211, 12034, subd. (d), 190.2, subds. (a)(17) & (a)(22), 12022.53, subds. (b) & (e)(1).) The jury acquitted defendant of a second robbery, as well as allegations that he was a member of a criminal street gang and committed the crimes for the benefit of a gang, and rejected other firearms allegations. With the concurrence of the People, in light of the not-true findings on the gang charges, the trial court struck the firearm enhancements found true by the jury, and sentenced defendant to prison for life without possibility of parole for murder with special circumstances, and stayed determinate terms for the robbery and vehicle discharge counts (see Pen. Code, § 654). Defendant timely appealed.*fn1
On appeal, defendant contends his confession should not have been introduced as evidence because it was involuntary from its inception or, alternatively, became involuntary after the detectives lied to him about Galaviz's physical condition. As we will explain, our independent review of the record, including a DVD of the interrogation, shows defendant's confession was voluntary.
Defendant also contends the trial court improperly overruled foundational objections to gang-related material that had been downloaded from social networking websites. We conclude the trial court did not abuse its discretion in overruling the defense objections; further, in light of the acquittal on all gang-related charges, any error was harmless.
Accordingly, we shall affirm the judgment.
The evidence showed defendant, his brother Antwaine Boner (Antwaine), and their companion, Anthony Moody (Moody), robbed a group of young women outside a bar on the night of June 20-21, 2008, and Galaviz was fatally shot trying to stop the robbers from fleeing the scene. All three robbers were apprehended nearby, with the murder weapon.*fn2
The robbery of the women took place at a club in an unincorporated area of San Joaquin County, east of Stockton.*fn3 Several women left the club after midnight, when a "tall African-American male" wearing a red jersey and displaying a revolver, accompanied by two other African-American men, robbed them of gold chains, money, and a cell phone, then fled. Galaviz tried to stop the robbers, and was fatally shot.
One of the women identified defendant at trial as one of the robbers, and another woman had identified defendant in a field showup as "the one that took her necklace."
Soon after the shooting, not far from the club, peace officers stopped a car driven by defendant, whereupon defendant and Antwaine fled, leaving Moody to be arrested with the murder weapon, and leaving some loot in the car. Both defendant and Antwaine were soon captured. Later, defendant gave a detailed confession to the robbery and the shooting, a DVD of which was played for the jury, and which we discuss in detail in Part I of the Discussion, post.*fn4
The defense argument at trial emphasized the burden of proof, and suggested defendant confessed while exhausted in order to protect his brother or Moody, and that the investigators had quickly and unreasonably made up their minds that defendant was guilty.
The evidence about defendant's confession consists of the DVD of the interrogation and limited, undisputed, testimony by the lead investigator. Because there are no material factual disputes, we must review the denial of defendant's motion de novo. (See People v. Maury (2003) 30 Cal.4th 342, 404 (Maury).)
The People must demonstrate by a preponderance of the evidence that defendant's confession was voluntary. (Maury, supra, 30 Cal.4th at p. 404.) The California Supreme Court has summarized the relevant test in part as follows:
"A statement is involuntary if it is not the product of '"a rational intellect and free will."' [Citation.] The test for determining whether a confession is voluntary is whether the defendant's 'will was overborne at the time he confessed.' [Citation.] '"The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were 'such as to overbear petitioner's will to resist and bring about confessions not freely self-determined.' [Citation.]" [Citation.] In determining whether or not an accused's will was overborne, "an examination must be made of 'all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation.' [Citation.]" [Citation.]' [Citation.]
"A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence." (Maury, supra, 30 Cal.4th at pp. 404-405.)
Detective Chanda Bassett testified she knew defendant had not slept in more than a day, and had been drinking. He had been given food at about 9:30 a.m. on June 21, 2008, his interrogation began at 1:50 p.m., and he was provided more food near the end of the interrogation, which ended about 4:00 p.m. that day. Defendant appeared tired, but did not appear to be under the influence, and he appeared to understand the questions posed, and stated he was not under the influence. He did rub his wrists, perhaps because handcuffs (which were taken off before the interrogation began) can be uncomfortable. Bassett knew defendant was only 18 years old, and that his only criminal record was a misdemeanor hit and run.
The principal evidence at the hearing was the DVD of the interrogation itself. Without giving a line-by-line account, we provide sufficient detail to fully address defendant's claims.*fn5
When Detectives Bassett and Hood entered the interrogation room, a well-lit room with a table and chairs, defendant smiled and answered questions about his name, address, age and other preliminaries. When asked about tattoos, he displayed his arm without hesitation and discussed the number "209" tattooed there, then described the numbers on his red jersey as signifying notable San Francisco 49er football players. He denied being under the influence and agreed, laughing, when one detective said, "You've been here for too long, unless . . . you smuggled some in[,]" but defendant did say he had not slept since "Thursday night" and woke up around 10:00 a.m. the day before. He nodded when asked if he had graduated from high school.
Bassett read defendant his rights. (See Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].) She asked if he understood each right, and he nodded or said he did, before she asked him about the next right.
Defendant explained that the trio (himself, Moody and Antwaine) saw the keys in a car belonging to "Junior" and took the car, but then said they had dropped Junior off. When asked whether he had beaten Junior up and taken the keys, defendant laughed, stretched, and said, "No." The trio split a pint bottle of "Amsterdam" liquor, which made defendant "a little bit tipsy, but I wasn't drunk."*fn6
When defendant said he did not hang out much with his brother, he stretched back in his chair and smiled again. Bassett teased defendant about Antwaine being better at a "Madden" video game, ...