P. v. Childs

Filed 6/25/07 P. v. Childs CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Kennedy-Powell, Judge. Affirmed.

Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Defendant and appellant Earl Lamont Childs appeals from the judgment entered following his conviction of first degree murder and attempted robbery.^[1] He contends the trial court erred in: (1) allowing the prosecution to introduce into evidence his postarrest statement to police and (2) refusing to give an instruction on duress as a defense to the charge of felony murder. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence adduced at trial established that at 1:45 p.m. on February 4, 2004, employee Irma Balbuena was at the cash register of the Y & Y Market talking to customer Percy Taylor while the owner, Kazuyo Yoshida, was in the back making lunch. Balbuena noticed defendant and Kaheal Parrish enter and look around the market. About 10 minutes later, a third young man entered and said to defendant and Parrish, Hurry up. You are taking too long. After purchasing some gummy bears, this third man walked outside the store but remained standing with his back to the door. Balbuena next saw defendant, who appeared scared but not nervous, pointing a gun at Taylor. Defendant announced, This is a robbery. Dont move, then instructed Parrish to jump over the counter and search Balbuena. While Parrish complied, Taylor kept his hands in the air and defendant held his gun aimed alternately at Balbuena and Taylor. As defendant was searching her, Balbuena noticed Yoshida holding the silent police alarm. Parrish apparently noticed too. Warning that the police were being called, he jumped back over the counter and darted towards the door. As Balbuena ran into the office, she heard a single gun shot. On the video monitor in the office, Balbuena saw Taylor lying on the floor, bleeding.^[2]He had suffered a single fatal gunshot wound to the head. Several days later, the police showed Balbuena a photographic lineup from which she identified defendant as the man with a gun. Yoshidas description of events generally was consistent with Balbuenas.

Defendant was arrested on March 3, 2004. That day, Detective Salaam Abdul interviewed him. The interview was recorded, and the recording was played for the jury. Initially, defendant maintained that it was a case of mistaken identity. He said the robbery at the market was set up by other senior gang members who had a grudge against him. C-crazy (defendant did not know his given name) planned the robbery.^[3]When Abdul asked whether defendant was forced to participate, defendant replied, They did hold a grudge. Nah they didnt force me? . . . Thats what Im saying. Defendant elucidated: Im being honest. Thats what I said. It was Dutch, man. Everybody -- if -- I dont know. If I could -- if I could prove it to you, I would. [] Dutch the same size as me, he just a little bulkier than me. Defendant insisted: Im not trying to bullshit you, but it was Dutch. Im -- Im set up.

Later in the interview, defendant admitted participating in the robbery but maintained that the shooting was an accident resulting from a defective gun. Defendant told the officers: I didnt mean -- I didnt mean to kill that man because he didnt mean no harm. Defendant related that he had been at his girlfriends home when fellow gang member Gaines arrived.^[4]Defendant accompanied Gaines to a place where other gang members were congregated. There, C-crazy pulled defendant aside and told him homies in the pen aint feeling that shit, you know what Im saying. You get out and (inaudible) homies (inaudible), Im like, man, I did my time, I did my stretch for you. And I did six man you respect me. [] He like me, I aint respecting nothing. The next day, when C-crazy and Gaines came by, defendant did not want to go outside to meet them, but his girlfriend convinced him to go see what they want, if not, you going to look stupid. Once outside, defendant got into the car with them but started to get nervous when they went to pick up Parrishs car. When C-crazy asked defendant you want to do something. Im like no. So Im thinking, like, man, this is crazy, man. (Inaudible). [] I tell myself I aint about to do nothing, man. (inaudible) I aint going to do nothing but then. [] When they came they like, man, we got a lick up right now. And we got some players.^[5] When they said the target was a liquor store, Im like a liquor store, man, thats a waste of my time. [] Might as well hit a bank, man, yall talking about a liquor store. And I -- and C-crazy tell me they got [a] cash register all this, ATM machine, lottery -- Im like man. One of the other gang members pulled defendant aside and warned him not to participate, but when another gang member asked defendant why he was acting scared, defendant protested that he was not scared. After it was decided that they would use Parrishs car, defendant, Parrish and Gaines got in the car and drove past the targeted liquor store while C-crazy watched from another car parked nearby. Defendant did not want to go through with it but he was like fuck it because I only want to push -- [Parrish] always have like a 380 in his little glove compartment. So he gave that to [Gaines] and shit. Im like man, I dont want to get down my nigger. And when we got there, we -- we -- we were bullshitting, you know what Im saying. [] We was already walking around the store for a long time because I -- I wasnt going to pull it. I wasnt going to do it, you know what Im saying. Defendant elaborated: Yeah, Im like -- Im like, man, I dont want to do this shit, man. When we was in the store, we looking at each other. Im panicking and shit . . . . [] DETECTIVE ABDUL: So first of all, you guys walking around? [] EARL CHILDS: Yeah, walked around. [] DETECTIVE ABDUL: Just checking out stuff? Okay. [] EARL CHILDS: And we -- we was all like scared for a minute. And then -- [Parrish] just jumped over the counter and [Gaines] tried to shut the door so I -- I was like yeah, I pulled a gun, like man dont move, man, just dont move, man.  [] . . . [] DETECTIVE ABDUL: Right. [] EARL CHILDS: He hopping over the counter. Then the little girl pushed the button. And I -- I was like, you know what Im saying, was [Gaines] was like come on, come on. When I turned around, I already had the gun in my gun [sic]. [] But when -- when I turned around, I went turn, and when I went to turn, the gun went off. I -- the old man didnt have no (inaudible). As a matter of fact, I had already knew about that store along time ago. [] I never even knew about robbery. I knew the old man had -- I think he hit the lottery back in the day or something (inaudible) I remember that. You know what Im saying. I had -- I already knew about that store. [] Thats why he always there. Thats why I wasnt intending to do nothing stupid, you know what Im saying.^[6]Defendant explained that he didnt intend to kill Taylor: My intentions were -- I just want to get this shit over with. I dont care. Once I get this shit over with. Im -- Im gonna just end up leaning, going somewhere on the cut, you know what Im saying. To Abduls question whether they talked about the robbery beforehand so everyone would know what to do, defendant responded: Oh, what Im staying back. [Gaines] hand me this piece. Im like I dont want this big ass gun. He like man, just take this one, you know what Im saying. Im going to take the 380 because (inaudible) they was like that. [] So I already (inaudible) I already knew, you know what Im saying. [] I already knew the game, you know what Im saying. Im like all right. [] So I already knew. (Inaudible) always got to be at the door, close by the door or something, because the gunman has to protect the door. After the robbery, defendant gave the gun back to Gaines, who gave it to C-crazy.

A criminologist and ballistics expert from the Los Angeles Police Department did not examine the gun used to shoot Taylor. He did testify that guns cannot be rigged to fire without the trigger being pulled, although a gun can be altered to reduce the pressure needed to fire it.

Defendant did not introduce any evidence. His motion to dismiss the robbery count as to Yoshida was denied.

DISCUSSION

A. Defendant Did Not Unambiguously Invoke His Right to Counsel

Defendant contends the trial court erred in allowing the prosecution to introduce into evidence his postarrest statement to police. He argues that the statement was obtained in violation of his constitutional rights because he made an unequivocal invocation of his right to counsel. We disagree.

Once a suspect asserts his or her right to counsel before or during a custodial interrogation, the interrogation must cease and the suspect must not be subjected to further interrogation until counsel has been made available to him. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1122.) But an ambiguous or equivocal reference to an attorney is not sufficient to stop an interrogation. On the contrary, the suspect  must unambiguously request counsel . . . . Although a suspect need not speak with the discrimination of an Oxford don, [citation], he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.  (Id. at p. 1124.)

Formerly, the prosecution bore the burden of establishing a waiver of the right to counsel. (See People v. Duren (1973) 9 Cal.3d 218, 237.) Now, pursuant to Article I, section 28, subdivision (d) of the California Constitution, federal standards govern. (People v. Cunningham (2001) 25 Cal.4th 926, 992.) The federal standard, articulated by the court in Davis v. United States (1994) 512 U.S. 452, 459, relieves the prosecution of the burden to affirmatively negate the possibility that the defendant intended to invoke his right to counsel; rather, the prosecution need show only that the defendants statement was sufficiently ambiguous that a reasonable officer hearing it would conclude only that the defendant might or might not be invoking his right to counsel.

In reviewing the trial courts determination that the suspect did not unequivocally and unambiguously invoke his right to counsel, we must accept the trial courts evaluations of witness credibility and its resolution of disputed facts and inferences if supported by substantial evidence. (Gonzalez, supra, 34 Cal.4th at p. 1125.) From facts that are undisputed or found by the trial court, we independently determine whether the challenged statement was illegally obtained. (Ibid.)

Here, the prosecutor sought a pretrial order allowing into evidence statements made by Childs to the police during the postarrest interview. The evidence presented at the Evidence Code section 402 hearing established that defendant was in custody at about 4:30 p.m. on March 3, 2004, when he waived his Miranda^[7]rights and spoke to a detective and an FBI agent about an unrelated bank robbery. At about 9:10 p.m. that day, Detectives Abdul and Fanning interviewed defendant about this case. The transcript of that interview includes the following exchange: DETECTIVE ABDUL: Okay. All right. Let me do this real quick. You have the right to remain silent. You understand? [] EARL CHILDS: Yeah. [] DETECTIVE ABDUL: Yeah? [] EARL CHILDS: Yes. [] DETECTIVE ABDUL: Anything you say may be used against you in court. Do you understand? [] EARL CHILDS: Yeah. [] DETECTIVE ABDUL: You have a right to a presence of an attorney before and during questioning. Do you understand? [] EARL CHILDS: But can I have [an] attorney? [] DETECTIVE ABDUL: Yeah, if you want one. But then that means you cant -- we have nothing else to each other. [] EARL CHILDS: Why would it be like that? [] DETECTIVE ABDUL: Thats just how it is. If you want to talk to me about it, you can talk to me. Im just thats why we have to read you these things. [] EARL CHILDS: Yeah, I want to talk to you, you know what Im saying, I dont know if I (inaudible) same (inaudible) I want an attorney. [] DETECTIVE ABDUL: Okay. Put it this way. If you cant afford an attorney, one will be appointed for you free of charge before any questions, if you want. [] You said you had an attorney for five thousand. How come you didnt take -- how can you retain him? [] EARL CHILDS: I got him. [] DETECTIVE ABDUL: Wheres he at? [] EARL CHILDS: I -- he out in the street. I havent got in touch with him. He is one of my friends. [] DETECTIVE ABDUL: How come you didnt turn yourself in then if you had an attorney, like you were supposed to? [] EARL CHILDS: I was -- (inaudible) Im going to keep it real. Everybody was telling me no, turn yourself in. [] DETECTIVE ABDUL: Whos -- whos everybody? [] EARL CHILDS: Shit -- [] DETECTIVE ABDUL: I know your mother didnt. [] EARL CHILDS: I havent even talked to her. I havent talked to my mother (inaudible) [] DETECTIVE ABDUL: You talked to your dad [] EARL CHILDS: No. [] DETECTIVE ABDUL: after the incident, you hadnt talked to your dad? [] EARL CHILDS: Nope. [] DETECTIVE ABDUL: Okay. He said you talked to me after -- one time after that incident. [] EARL CHILDS: I dont -- I aint talked to him. I havent even talked to my dad for at least a month. I havent talked to him. [] DETECTIVE ABDUL: Okay. You want to about -- to us about what happened? Yes or no? [] EARL CHILDS: Yeah. [] DETECTIVE ABDUL: Did they give you anything to drink downstairs? You look like youre thirsty. You thirsty, man? You want a Coke, Pepsi -- [] DETECTIVE FANNING: Water? I know I do. You want something to drink? [] DETECTIVE ABDUL: Yes. Yes, yeah, yeah, yeah, yeah. Put your initials right next to there. Right next to that. (Italics added.) Whereupon, defendant signed a form waiver of his Miranda rights.

Regarding the italicized portion of the exchange, Abdul testified at the hearing: I heard Mr. Childs say, Yeah, I want to talk to you, you know what Im saying. I dont know if I . . . . Then it is inaudible. It seemed like he was mumbling, I dont know if I want an attorney. 

The prosecutor argued that the record established that defendant never made an unambiguous request for counsel. Defense counsel countered that, once defendant stated that he had retained an attorney for $5,000, all questioning should have ceased and defendant should have been allowed to contact his attorney. The trial court allowed the evidence, reasoning that any ambiguity in defendants statements to Abdul was resolved when defendant signed the Miranda waiver card.

After an independent review, we agree with the trial court. In light of the circumstances defendants prior waiver of his right to counsel when talking to the FBI agent about the bank robbery; his recorded statement I dont know if I (inaudible) same (inaudible) I want an attorney; Abduls testimony that in the inaudible portion of the recorded statement defendant said I dont know if I want an attorney; and defendants subsequent signing of the waiver form defendants prior statement But can I have [an] attorney? was no more than an equivocal and ambiguous reference to counsel. This was not sufficient to trigger an end to the interrogation. Accordingly, defendants constitutional right to counsel was not abridged and the recorded statement was properly admitted into evidence.

B. There Was Insufficient Evidence to Warrant an Instruction on Duress

Defendant contends the trial court erred in refusing his request to instruct the jury with CALJIC No. 4.40.^[8] He argues that the following evidence supported the duress instruction: Balbuena testified that defendant looked nervous while he was holding the gun; defendant stated he was an unwilling participant, he was given the gun he used in the robbery and he was set up.^[9]We disagree.

The duress defense is articulated in Penal Code section 26, which provides in pertinent part as follows: All persons are capable of committing crimes except those belonging to the following classes: [] . . . [] Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused. Duress is not generally a defense to murder. (People v. Anderson (2002) 28 Cal.4th 767, 774-778 (Anderson).) However, duress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. [Citations.] If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony. (Id. at p. 784 [jury properly instructed that duress could be a defense to kidnapping and to felony murder with kidnapping as the underlying felony].)

However, a trial court need only give those requested instructions supported by evidence that is substantial. Central to a defense of duress is the immediacy of the threat or menace on which the defense is premised. [A] phantasmagoria of future harm, such as a death threat to be carried out at some undefined time, will not diminish criminal culpability. (People v. Bacigalupo (1991) 1 Cal.4th 103, 125 (Bacigalupo), citations omitted.) The duress defense requires a present and active aggressor threatening immediate danger. (People v. Petznick (2003) 114 Cal.App.4th 663, 676 (Petznick).)

The court in Bacigalupo found defendants vague and unsubstantiated assertion in his statement to police that the Columbian Mafia had threatened to kill him and members of his family if he did not commit the charged offense did not constitute substantial evidence warranting a duress instruction. [I]n the absence of substantial evidence of immediacy of the threatened harm, the trial court did not err in refusing defendants proffered instructions. (Bacigalupo, supra, 1 Cal.4th at p. 125.) In Petznick, the court found evidence of the defendants reluctance to participate in the crimes insufficient to support a duress instruction. (Petznick, supra, 114 Cal.App.4th at p. 677.)

Here, the trial court reasonably concluded there was no evidence of imminent threat of harm or other substantiated evidence of duress to support CALJIC No. 4.40. At most, defendant was not enthusiastic about participating in the robbery. That he was scared and nervous does not equate with duress; fear of getting caught, injured or killed in an armed robbery reasonably can produce fear and anxiety. It is hardly surprising that members of a gang may feel pressure to commit crimes initiated by shot callers or other senior members. This evidence, alone as it was here, is insufficient to warrant a duress instruction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

BOLAND, J.

^[1] Defendant, Kaheal Parrish and Zack Gaines were jointly charged with first degree murder and two counts of attempted second degree robbery; as to defendant, a felony-murder special circumstance, gun use, and three strikes enhancements also were alleged. After Parrish was convicted in a separate jury trial (a conviction we recently affirmed in a published opinion, People v. Parrish (June 19, 2007, B188975) __ Cal.App.4th__, a jury found defendant guilty of first degree murder and attempted robbery; and found true the gun use but not true the special circumstance allegations. Defendant was sentenced to 50 years to life in prison with some counts and enhancements stayed pursuant to Penal Code section 654. Defendant filed a timely notice of appeal.

^[2] The incident was captured from different perspectives by the markets video monitoring system; the videos were shown to the jury.

^[3] At trial, Abdul testified that defendants reference to being set up could mean that a person didnt know that something was going to take place and they ended up at a particular incident when they did not know that it was going to happen and then it happened. Abdul did not believe the video tape reflected a set up. Abdul also testified that there could be negative ramifications to a gang member or members of his family if the gang member refused to participate in a criminal activity organized by a shot caller in the gang. Abdul opined that C-crazy was a shot caller.

^[4] Defendant referred to Gaines alternately by his given name and by his gang moniker, C-dave. He referred to Parrish alternately by his given name and by his gang moniker, infant blue devil. For the most part we refer to defendants cohorts by their last names.

^[5] Lick is a gang term for a robbery.

^[6] Later in the interview, defendant gave a succinct summary of the incident: We -- me and [Parrish] came in first. Walked around awhile. Yeah -- I was like -- I was like, man, (inaudible) because I really didnt want [to] do it so he hopped over the counter and then [Gaines] came in, closed the door. Then thats when I pulled the gun out. [] It was the hammer already cocked -- the hammer already the -- little thing -- the hammer, man. And so it all -- it be going off sometime and everything. Thats why (inaudible) keeping it down because the hammer and the pin is already -- the pin is shaved down. [] And so when I -- when I went to pull it, I -- my intention wasnt to shoot this man. . . . I just want to do what I got to do and get out of there with -- when I went to move -- when I went to move the gun and walk away, thats when it went off.

^[7]Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

^[8] CALJIC No. 4.40 reads: A person is not guilty of a crime [other than ] when [he] [she] engages in conduct, otherwise criminal, when acting under threats and menaces under the following circumstances: [] 1.  Where the threats and menaces are such that they would cause a reasonable person to fear that [his] [her] life would be in immediate danger if [he] [she] did not engage in the conduct charged, and [] 2.  If this person then actually believed that [his] [her] life was so endangered. [] This rule does not apply to threats, menaces, and fear of future danger to [his] [her] life[,] . . . .

^[9] Defendant argues that Abdul testified that set up meant compelled to participate, but this is not what Abdul said. (See fn. 3, ante.)