P. v. Hill
Filed 11/19/13 P. v. Hill CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
TYRELL
HILL,
Defendant and Appellant.
A135250
(Alameda
County
Super. Ct. No. 164489A)
Defendant
was found guilty by jury trial of first
degree murder (Pen. Code, § 187);
circumstances allegations that the murder occurred during the commission of
attempted robbery and burglary or attempted
burglary (§ 190.2, subd. (a)(17)(A) & (G)) were found true. He was sentenced to life imprisonment without
the possibility of parole.
name="_ftnref2" title="">[2] Defendant raises two issues on appeal: (1) that the trial court erred in admitting
his statement to the police, as it was involuntary; and (2) that the trial
court committed reversible error in
failing to instruct upon the required elements for felony murder special
circumstances if the jury determined that defendant was not the actual killer (those
elements being that he either had the intent to kill, or that he was a major
participant in the underlying felony and acted with reckless indifference to
human life). The trial court’s
determination that defendant’s statement was voluntary was not error. While we accept the concession of the Attorney
General that the trial court erred in omitting the referenced elements of the
felony murder special circumstances from its instructions to the jury, we find
the error to be harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18 (Chapman).) Accordingly, we affirm.
I. Background
Kenneth
Holowatch and Stephanie Bogue grew medical marijuana in their home in West
Oakland, for distribution to medical marijuana dispensaries. Defendant learned of the grow operation and
on June 12, 2009, he and
Albert “Beeker†Tisdale and two other accomplices decided to rob the growers of
their marijuana.
Around
1:00 p.m., the robbers went to the
victims’ home in defendant’s van. They
knocked on the door and asked for “Christie,†insisting that she owed them
money. Bogue indicated through a closed
door that no one by that name lived there; the robbers left. Since the home had been burglarized a few
weeks earlier, Bogue was concerned about the incident. She tried to call the police several times, but
had difficulty getting through. The
robbers retrieved a submachine gun from a nearby car. They then returned to the victims’ home. Three robbers got out, while the driver stayed
in the van. One robber stayed in front
of the victims’ home with the submachine gun, defendant went to the side of the
home, and a third robber who was armed with a rifle went to the rear of the
house. Someone kicked in the door to a
laundry room at the rear of the house, but that did not lead to the interior of
the home.
Holowatch
and Bogue were huddled in the kitchen when defendant broke a window and pushed
a handgun through the blinds. He yelled
at the victims, stating, “We’re serious.†Bogue told defendant that they could have
anything they wanted, just not to hurt them, and indicated they had no
money. The victims then panicked and
fled the home. In the front yard they were
confronted by the man with the submachine gun. Holowatch struggled with the man over the
submachine gun, while telling Bogue to run. Bogue started to run, but came back to help
Holowatch fight for the weapon. As the
struggle for the submachine gun continued, defendant came around from the side
of the house and fired his handgun at Holowatch. The man with the submachine gun was then able
to shoot Holowatch.
title="">[3] Bogue dropped to the ground and covered her
head as more rounds were fired. She
heard the sound of the robbers running past her.
Two
neighbors observed part of the confrontation in front of the victims’ home. One saw a struggle and two men with long guns;
she then heard shots. The other heard
gunshots, looked out her window and saw one man running from the scene holding
a long gun (not the submachine gun) and another running from the scene holding
a pistol.
The
police responded to the scene and found Holowatch dead in front of the house. His cause of death was later determined to be
multiple gunshot wounds
and blunt force head trauma. The laundry
room door had been kicked in and the side window was broken. Six spent 9 millimeter shell casings were
found on or near the walkway leading to the victims’ house, as well as one live
round and two spent slugs. Once the
submachine gun was recovered, it was ascertained that it was fully automatic
and fired 9 millimeter rounds. It was
later determined that the six shell casings were fired by the submachine gun;
the two slugs were fired from a different weapon, either from a 9 millimeter or
.38 caliber firearm.
On
July 29, 2009, the police received a tip regarding the location of the
submachine gun that was used in the attempted robbery and shooting. As a result, they staked out defendant’s home
and observed defendant and Tisdale meet up with an individual named Jamaine
Barnes. A
Barnes’ residences and the submachine gun was located.
Barnes
had been in custody the day of the shooting. He told police that he met with defendant on
July 12, the day after he was released from jail. Defendant told him about the shooting,
indicating that he and Tisdale picked up the submachine gun from Barnes’
apartment because they wanted to use it in a robbery. Defendant and three others drove defendant’s
van to a house, looking for drugs. The
homeowner came out of the house, grabbed the barrel of the submachine gun and
struggled for control of the weapon. Defendant told Barnes, “Bra, we had to pop the
nigga.†From defendant’s description of
the attempted robbery and shooting, Barnes understood that defendant was the
one holding the submachine gun.
name="_ftnref4" title="">[4]
Defendant
and Tisdale were subsequently arrested and defendant gave a statement to police
officer Sergeant Phillips, wherein he admitted involvement in the attempted
robbery, but sought to minimize his participation. He admitted that they were going to rob the
homeowners of their marijuana and that they retrieved the submachine gun, which
had been taken from Barnes’ apartment, from a nearby car. While defendant admitted that he broke the
side window of the home to gain entry, he said that he did so with a pipe and
that he did not have a gun. He heard
shooting while he was still on the side of the house; he fled from the scene,
running past the crowd in front of the house. He denied being involved in the shooting. A search of the house where defendant and
Tisdale lived revealed an assault rifle, a handgun, marijuana, and
ammunition. A loaded semi-automatic
handgun was found in a bedroom with defendant’s wallet; an assault rifle and a
fake gun were located in a downstairs bedroom.
Defendant
was charged with murder, including special circumstances allegations that he
committed the murder while engaged in a burglary and a robbery, with
enhancements for personal use of a firearm, intentionally discharging a
firearm, and discharging a firearm causing great bodily injury or death, and
two counts of felon in possession of a firearm, as well as an allegation that
defendant suffered a prior prison conviction. After pleading no contest to the felon in
possession of a firearm charges and admitting the prison prior, defendant
proceeded to jury trial on the remaining charges and allegations. As detailed above, he was found guilty of
first degree murder with special circumstances; the allegation that he
personally used a firearm was found true, as was the allegation that he
intentionally discharged a firearm; the other firearm enhancement was found not
true. He was sentenced to life in prison
without the possibility of parole;
name="_ftnref5" title="">[5]
this timely appeal followed.
II. Discussion
A. Voluntariness of Defendant’s Statement
The
People bear the burden to establish by a preponderance of the evidence that a
defendant’s confession was voluntary. (
576 (Massie).)
voluntary, the question is whether defendant’s will was overborne, so that his
choice to confess was not essentially free.
(People v. Memro (1995) 11
Cal.4th 786, 827.) “On appeal, the trial
court’s findings as to the circumstances surrounding the confession are upheld
if supported by substantial evidence, but the trial court’s finding as to the
voluntariness of the confession is subject to independent review. [Citations.]â€
(Massie, supra, at p. 576.) We must
determine “ ‘[w]hether the influences brought to bear upon the accused
were “such as to overbear [defendant]’s will to resist and bring about
confessions not freely self-determined.â€
[Citation.]’ †(
166.) To this end, we examine
“ ‘ “all the surrounding circumstances—both the characteristics of
the accused and the details of the interrogation.†[Citation.]’ †(Ibid.)
Simply put, we must determine, based
upon a totality of the circumstances, if the statement was the product of
defendant’s own free will, or was his will overborne by police coercion,
whether express or implied. (See, e.g.,
501–502.)
On
appeal, defendant claims that his statement to Sergeant Phillips was
involuntary due to the coercive conditions he was subjected to prior to and
during the interview (including the length of time he was kept in the interview
room, the alleged lack of access to bathroom facilities, water, food, or a bed,
and room temperature) and due to police interrogation tactics (including
alleged threats and promises, and deception). We disagree.
Defendant
was awoken at his home and arrested at approximately 8:00 a.m. on December 1,
2009. He was taken to the Oakland Police
Department and placed in an interview room at 9:50 a.m. At 11:15 p.m., he was interrogated by
Sergeant Phillips. Sergeant Phillips
explained that the reason for the 13-hour delay before defendant’s interview
was the need to complete tasks related to the searches and arrests, and to evaluate
available information before conducting the interview, including reviewing
reports written by other officers and interviewing individuals detained during
the execution of the search warrants, as well as interviewing codefendant
Tisdale (which began at 8 p.m.).
During
the 13 hours he was kept in the interrogation room,
defendant was checked on regularly by police officers (a log indicates he was
checked on nine times), and asked if he needed food or drink, or to use the
bathroom.
occasion he was given a jacket after he complained that he was cold.
socks. The temperature in the room had previously
been turned down in response to a comment by defendant. The log indicated that defendant went to
sleep at one point, and indeed Sergeant Phillips woke defendant up when he came
in to interview him. Defendant was
sleeping on a table in the interview room.
After obtaining a Miranda
waiver (Miranda v. Arizona (1966) 384
U.S. 436), Sergeant Phillips interviewed defendant from 11:15 p.m. until 1:08
a.m. At 1:50 a.m., defendant was placed
in a room with Tisdale and they were allowed to talk alone, and they then spoke
with officers (for approximately 50 minutes total).
The
trial court found that the temperature change in the room was not a tactic by
the police, but rather was just the defendant complaining about what he did not
like (first the room was too warm, then too cold). The trial court found there were no extreme
temperature changes. While the defendant
was kept waiting for several hours before his interview began, due to the need
to complete other parts of the investigation first, he was not denied food,
water or drink or the opportunity to use the facilities. He was checked on regularly. He was brought juice, when he requested it. The police did not prevent him from sleeping;
he did sleep (albeit on a table rather than a bed). Other than complaining about the temperature
in the room (which the police apparently tried to respond to first by changing
the temperature and later by providing defendant with a jacket), defendant did
not complain about the conditions. He
did not indicate that he was being deprived of food or drink or use of the
facilities. During the interview, an
officer offered defendant a soda and asked if he needed to go to the
bathroom. He did not appear to be worn
down by the conditions, as he minimized his role in the robbery and shooting. On these facts, we find nothing coercive regarding
the conditions preceding or during the interview, which itself lasted less than
three hours (including the time he was with Tisdale).
As
far as defendant’s complaints about the interview techniques, we also find
those unavailing. First, we note that
Sergeant Phillips testified that he made no threats or promises of leniency to
defendant during the interview; he also testified that he did not raise the
issue of the death penalty. Defendant
first contends that he was threatened and/or promised leniency by Sergeant
Phillips, when Phillips told him that, “We got to present the shit to the DA
. . . the way it looks now―ya’ll look like— ya’ll look like
real wolves . . . if it stays the way it is now, man. [¶] . . . [¶] [I] mean somebody gotta explain something
‘cause ya’ll look like wolves, man. Ya’ll
look like menaces. And you know what they do to them.†(Italics added by defendant.)
contrary, this was not a threat that defendant was going to receive the death penalty.
The excerpt comes at a point in the interview
where Sergeant Phillips was explaining that this was a particularly brutal and
violent crime, and that defendant had nothing in his criminal history involving
that kind of violence. He was trying to give
defendant the opportunity to explain how and why the shooting happened,
including any mitigating circumstances. The consequences that would flow from such a
senseless and brutal murder would otherwise be severe; Phillips was merely
explaining truthfully the consequences that would flow from the commission of
such an offense. This was not an
impermissible threat of imposition of the death penalty. (People
v. Holloway (2004) 33 Cal.4th 96, 115–116.)
The
statements by Phillips also were not an implied promise of leniency, but were
merely an offer of the opportunity to tell the truth about what happened. Defendant also complains that at one point
Sergeant Phillips told him that if what defendant said did not line up with
other evidence, “then you gonna look like you lying and it’s going to be all bad.†(Italics
added by defendant.) Phillips went on to
reference defendant’s past criminal history, saying “you’ve been involved with
some shit. You know how this shit flow
better than I know.†Although the
relevance of this passage is not explained in his brief, presumably defendant
is arguing that these comments also constituted a threat. To the contrary, it appears that Sergeant
Phillips was merely explaining that defendant knew from his past experiences
with the criminal justice system that
if the evidence demonstrated he was lying, it would not look good. None of this amounted to implied coercion.
Defendant also argues
that Sergeant Phillips used deception, telling defendant that he had been
identified by a witness even though he had not been. Police may, of course, lie to those they
interrogate. (Thompson, supra,
50 Cal.3d at p. 167.) They may
imply that they know more than the suspect does, or that they have evidence
that the suspect does not possess. (People
v. Jones (1998) 17 Cal.4th 279, 297.)
While lies told to a defendant by the police may impact the
voluntariness of an ensuing confession, “they are not per se sufficient to make
it involuntary. [Citation.]†(People v. Musselwhite (1998) 17
Cal.4th 1216, 1240 (Musselwhite).)
Deception does not “undermine the voluntariness of a defendant’s
statements to the authorities unless the deception is ‘ “ ‘of a type
reasonably likely to procure an untrue statement.’ †’ †(People v. Williams (2010) 49 Cal.4th
405, 443.) This deception was not of the
type likely to induce a false confession by defendant (and indeed it did not
induce a full confession, as defendant continued to minimize his involvement).
We must also bear in
mind characteristics of the defendant, including his age (an adult in his 30’s)
and his prior criminal experience (prior arrests and prosecutions, including
one resulting in a state prison commitment). Considering all of the circumstances, we find
defendant’s statement was voluntarily made; the trial court did not err in so
ruling. As the trial court said,
“[t]here is nothing here . . . that comes close to rising to the idea
that this statement is involuntary . . . .†We conclude, as the court did in Musselwhite,
“[i]n short, evaluating the circumstances of the police questioning of
defendant in its totality, we conclude it falls short of rendering his
confession . . . involuntary in any constitutionally meaningful
sense.†(Musselwhite, supra,
17 Cal.4th at p. 1243.)
B. Failure to Instruct Upon Elements of Felony-Murder
Special Circumstances
As the Attorney
General concedes, the trial court erred in omitting a portion of the special
circumstances instruction. The trial
court instructed, pursuant to CALJIC No. 8.80.1 that if the jury found
defendant guilty of murder in the first degree, they must then determine if the
following special circumstances were true or not true: (1) that the murder was committed by defendant
when he was engaged in the attempted commission of robbery, and (2) that the
murder was committed by defendant when he was engaged in the commission or
attempted commission of the crime of burglary.
The court further instructed that if the jury determined that
defendant was the actual killer, unless an intent to kill was an element of
the special circumstance, they did not have to find defendant intended to kill
in order to find the special circumstance to be true. (Italics added.) The trial court failed to instruct, however,
on the requirements if the jury were to find that defendant was not the actual
killer. The omitted language from CALJIC
No. 8.80.1 would have indicated that: “If
you find that a defendant was not the actual killer of a human being, [or if
you are unable to decide whether the defendant was the actual killer or [an
aider and abettor] . . . you cannot find the special circumstance to
be true . . . unless you are satisfied beyond a reasonable doubt that
such defendant with the intent to kill [aided,] [abetted,]
. . . [or] [assisted] any actor in the commission of the murder in
the first degree] [.] [, or with reckless indifference to human life and as
a major participant, [aided,] [abetted,] . . . [or] [assisted] in
the commission of the crime of [attempted robbery or burglary or attempted
burglary] which resulted in the death of a human being . . . .]†(CALJIC No. 8.80.1, italics added.) This omission was clearly error; the issue
remains as to whether or not that error must lead to reversal of the true
findings as to the special circumstances allegations.
First, it must be
noted that it is apparent from the verdicts of the jury that they did not find defendant
guilty of first degree murder because he was the actual killer. While the jury found defendant guilty of first
degree murder,
title="">[12]
they found not true the allegation that he personally and intentionally
discharged a firearm causing great bodily injury or death.
not the actual killer. Thus, the omitted
language from CALJIC No. 8.80.1 was relevant to the jury’s determination of
whether the felony murder special circumstances were true.
Omission of these very
same elements from the felony murder special circumstance instructions was at
issue in People v. Mil (2012) 53 Cal.4th 400, 410–420 (Mil). The court found such error was not structural
error, but was subject to a harmless error analysis under Chapman, supra,
386 U.S. 18. (Mil, supra, at pp. 411–414.) As the California Supreme Court recently
explained in People v. Gonzalez (2012) 54 Cal.4th 643, 666 (Gonzalez),
the appropriate harmless error test for jury instructions which erroneously
omit an element of an offense “does not require proof that a particular jury
‘actually rested its verdict on the proper ground [citation], but rather on
proof beyond a reasonable doubt that a rational jury would have found the defendant
guilty absent the error [citation]. . . .’ †(Italics omitted.) Proof of the former can be proof of the
latter, but such a determination is not essential to a finding of harmlessness.
A reviewing court often must conduct a
thorough examination of the record in order to determine if the error was
harmless. (Gonzalez, supra, at p.
666.)
As Mil
explained, “Neder instructs us to ‘conduct a thorough examination of the
record. If, at the end of that
examination, the court cannot conclude beyond a reasonable doubt that the jury
verdict would have been the same absent the error―for example, where the
defendant contested the omitted element and raised evidence sufficient to
support a contrary finding―it should not find the error harmless.’ [Citation.] On the other hand, instructional error is
harmless ‘where a reviewing court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by overwhelming evidence.’ [Citations.]†(Mil, supra, 53 Cal.4th at
p. 417.) Just as in Mil, our
task, then, “is to determine ‘whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted element.’ [Citations.]†(Ibid.)
The omitted elements
here, as in Mil, are that the defendant must have either had the intent
to kill, or have been a major participant in the underlying felony and acted
with reckless indifference to life. The
Attorney General apparently concedes the issue of whether defendant had the
intent to kill and argues instead that the error was harmless beyond a
reasonable doubt “because the evidence necessarily established [he] was a major
participant and acted with reckless indifference to human life.†Our analysis shall, therefore, focus on the
latter two elements that were not instructed upon.
A “ ‘ “major
participant†’ †in the underlying felony is one whose participation
is “ ‘ “notable or conspicuous in effect or scope†’ †or “ ‘ “one
of the larger or more important members†’ †of the group committing
the underlying felony. (People v.
Smith (2005) 135 Cal.App.4th 914, 928, questioned on other grounds in People
v. Garcia (2008) 168 Cal.App.4th 261, 291–292.) This level of participant is to be contrasted
with the hypothetical “nonmajor participant†in Tison v. Arizona (1987)
481 U.S. 137 (Tison), such as a participant who “merely [sat] in a car
away from the actual scene of the murders acting as the getaway driver to a
robbery.†(Tison, supra, at p.
158.) The mental state of reckless
indifference to human life “ ‘[i]s one in which the defendant “knowingly
engage[es] in criminal activities known to carry a grave risk of deathâ€
. . .’ [citation] [and] requires the defendant be ‘subjectively
aware that his or her participation in the felony involved a grave risk of
death.’ [Citations.]†(Mil, supra, 53 Cal.4th at
p. 417, original italics.) As noted
in Tison, the major participant and reckless indifference elements often
overlap. (Tison, supra, at
p. 158.)
As detailed by the
Attorney General, there was ample evidence supporting both of these elements
that were missing from the jury instructions; indeed, defendant “does not
contest the sufficiency of the evidence to support these findings.†Included in this evidence is defendant’s
admission that he knew the robbery was going to take place, that it was his van
that was used in the crime, that he knew the victims were home, and that he
admitted breaking the window in order to gain entry into the home. Additionally, according to witness Bogue,
defendant stuck his firearm through the window he broke and said, “We’re
serious,†and later fired his gun at Holowatch as the victim was struggling
with another robber over the submachine gun, enabling that robber to regain
control of the submachine gun and shoot the victim. Witness Barnes had indicated that defendant
told him that he and Tisdale picked up the submachine gun from Barnes’
apartment because they wanted to use it in a robbery. Whether there was sufficient evidence to
support these findings, however, is not the issue. As the court made clear in Mil, “our
task in analyzing the prejudice from the instructional error is whether any
rational fact finder could have come to the opposite conclusion.†(Mil, supra, 53 Cal.4th at p.
418, original italics.)
Defendant argues that
there was evidence before the jury from which a rational fact finder could have
come to the conclusion that he was not a major participant in the attempted
robbery and burglary, and that he did not act with reckless indifference to
human life―his statement to the police. Specifically, he argues that his statement
indicated he was a nonviolent drug hustler, that he did not have a gun, that he
did not participate in the shooting, and that he did not plan the robbery. While some hypothetical rational jury might
have been able to rely upon this evidence, if believed, to support a finding
that defendant was not a major participant who acted with reckless indifference
to human life had they been properly instructed, that would require that they fully
accepted defendant’s version of the events. Despite defendant’s attempt in his statement to
the police to minimize his role in the events leading to the victim’s death,
the jury found beyond a reasonable doubt that defendant not only personally
used a firearm, but that he also intentionally discharged that firearm during
the commission of murder.
name="_ftnref14" title="">[14]
The jury apparently rejected defendant’s
account minimizing his participation in the crimes and accepted other evidence,
including the account of witness Bogue.
No rational jury, having found that defendant personally used and
intentionally discharged a firearm under the facts in this case could conclude
that he was not a major participant who acted with reckless indifference to
human life. The trial court’s error in
omitting the relevant portion of CALJIC No. 8.80.1 was, therefore, harmless
beyond a reasonable doubt.
III. Disposition
The
judgment is affirmed.
______________________
Sepulveda, J.*
We concur:
______________________
Margulies, Acting P.J.
______________________
Dondero, J.
* Retired Associate Justice of
the Court of Appeal, First Appellate District, Division Four, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
further statutory references are to the Penal Code.
jury also found true an allegation that defendant personally used a firearm
(§ 12022.5, subd. (a)) and an allegation that he intentionally discharged
it (§ 12022.53, subd. (b)); it found not true an allegation that he
discharged a firearm causing great bodily injury (as defined in § 12022.7,
subd. (a)) or death (§ 12022.53, subd. (d)). Defendant pleaded no contest to two counts of
being a felon in possession of a firearm
(§ 12021, subd. (a)(1)), and admitted an alleged prior prison
conviction, before the commencement of his jury trial.
